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Author(s)

Hana Horak  & Kosjenka Dumančić

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ABSTRACT

Cross-border transfer of the company seat for more than decade was and still is hot and unresolved topic in EU Company Law. Freedom of establishment is indisputable cornerstone of EU company law and Internal Market enshrined in Articles 49 and 54 of the Treaty on the Functioning of the European Union (TFEU) but still the company’s cross border mobility is unsolved. The company transfer of the seat is closely connected with different Member States legal tradition in relation with the two different “seat theories” that apply. By the practice of the European Court of Justice both seat theories “the real seat theory” and “the incorporation theory” are proclaimed as in line with the EU law. Nevertheless, the process of cross border transfer of the seat occurs as compelling problem for the cross-border company mobility. In most Member States at the moment the cross border transfer of the company seat requires the winding-up of the company and establishing the new one in the other Member State. This procedure leads to the loss of legal and business continuity and national approaches to this issue differ. The Member States intention is to protect shareholders, creditors and employees and they justify restrictions on these reasons. After a long and quite successful journey of the European Court of Justice judgments in favorem of the EU Internal market and with VALE case on the top, there was European Parliament initiative for a proposal for 14th Directive with an aim to regulate cross border transfer of seat. The initiative is still not realized. After the ECJ judgment in Case VALE where the “importance to continue the economic activity” was enshrined there is new European Court of Justice case Polbud that deals with cross-border transfer of the company seat. The authors will examine new developments in the area of EU company law with accent on cross border transfer of the company seat and analysis of the case Polbud.

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