The Transfer of Seat of Companies within the European Single Market
Dumitru Ovidiu Ioan
The company law in Europe continues showing a difference of opinions in relation to the transfer of a company seat from one system to other, affecting the well functioning of the Single Market and the principle of freedom of establishment provided by the Treaty, no matter the way those organisations want to move, the Court of Justice being the only one offering, in time, clarifications and decisive solutions, many of them limiting the member states’s action in restraining the freedom of establishment of companies.
As a consequence, the caselaw on transfer of seat of companies from one member state to another, rather timid at the beginning, but approaching a more bold attitude recently, become more favourable towards the acceptance of the freedom of establishment in most cases of transfer, the national company law, especially the provisions on conflict of law, facing a new challenge in the harmonisation of the provisions related to incorporation, functioning, merger/division/conversion or the creation of secondary establishments.
Moreover, the development of the market, leaning towards a speedy digitalisation, forces both the institutions and the members states to take measures to solve the problem of transfer of seat of companies in a more integrated market and one of the steps made in this way was the adoption of the Company Law Package, by which the European Union addressed two crucial issues: the use of digital tools by the companies and the cross-border conversions, mergers and divisions.
The article follows the main developments of the treaty provisions and caselaw in relation to freedom of establishment and transfer seat of companies, especially the pivotal decisions of the Court of Justice which made possible for the new attitude in the field and analyses the possible structural implications of the new provisions on cross-board conversions.
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