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CROSS-BORDER TRANSFER OF THE REGISTERED SEAT- A CINDERELLA OF THE FREEDOM OF ESTABLISHMENT?

G. Orga-Dumitriu

Abstract

We would have expected perhaps that the surprising statement made in 1997 by a French author, H. Le Nabasque - who, quite directly, did not hesitate to say that «the European company law is not a right of mobility of companies» – to become today an outdated paradox. And yet, while the right of secondary establishment (externalized through the companies'prerogative to establish subsidiaries, branches, agencies on the territory of Member States - other than the State of origin) became a real benefit of the internal market, the right of primary establishment (more exactly, the transfer of the company seat from one Member State to another) knows some limitations, at least in the current status of the EU law (I). The case-law progress, meaning the actual militant action of CJEU in the purpose of liberalization of the right of establishment via the famous ruling Centros, Uberseering, Inspire Art contributed not only to the determination of the prohibited restrictions to exercising the right of secondary establishment, but also to the admission of the intra-Community transfer of the company actual seat. The above mentioned case-laws and, newly, the contributions (even partial) marked by the solutions of Cartesio or Vale are insufficient, in the absence of a judgment comparable to that imposed in Sevic AG on cross-border mergers, to actually and under certainty and legal predictability conditions ensure the transfer of the registered office from one Member State to another (II). Excepting the Regulations on the European company (SE), the European Economic Interest Grouping (EEIG) and the European Cooperative Society (SCE), no secondary text authorized the transfer of a company seat from one Member State to another without dissolution followed by reconstitution of the company on the territory the new headquarters is intended to be set. In other words, while SE, EEIG and SCE enjoy the competitive advantage of complete intra-community mobility for the national companies, the transfer of the statutory seat from one Member State to another becomes a difficult operation given the legal and fiscal barriers imposed by the laws of the Member States. In 2007, the European Commissioner Mac Creevy announced the abandonment of the 14th Directive proposal on the cross-border transfer of the registered office; thereafter the topic seems to be re-enlisted on the political agenda of the European policy makers: the European Parliament resolution of 2 February 2012 covering recommendations to the Commission for adopting a directive in this field was followed by the public consultation launched of January 2013 (III). Moreover, the revival of the interest manifested in the legal environments is clear in reiterating the principle rules on which such a legislative initiative might rely on: the continuity of the legal personality, limiting the scope to equity companies and private limited companies, ensuring a rigorous procedure governing the transfer, the 577 SGEM 2014 International Multidisciplinary Scientific Conferences on Social Sciences and Arts tax-neutral and ensuring the protection of the stakeholders - employees, creditors or minority shareholders (IV).

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DOI resolver: doi.org/10.5593/sgemsocial2014/b21/s5.076

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