28 research outputs found
Company âEmigrationâ and EC Freedom of Establishment: Daily Mail Revisited
Following the ECJâs recent case law on EC freedom of establishment (the Centros, Ăberseering and Inspire Art cases), regulatory competition for corporate law within the European Union takes place at an early stage of the incorporation of new companies. In contrast, as regards the âmoving outâ of companies from the country of incorporation, the ECJ once considered a tax law restriction against the transfer abroad of a companyâs administrative seat as compatible with EC freedom of establishment (the Daily Mail case). For years, this decision has been regarded as applicable to all restrictions imposed by countries of incorporation, even the forced liquidation of the âemigratingâ company. This paper addresses the question whether EC freedom of establishment really allows Member States to place any limit on the âemigrationâ of nationally registered companies. It argues that EC freedom of establishment covers the transfer of the administrative seat as well as the transfer of the registered office and, therefore, that the country of incorporation cannot liquidate âemigratingâ companies. In addition, it addresses the question whether a new Directive is needed to allow the transfer of a com- panyâs registered office and the identity-preserving company law changes. It argues that such a Directive is necessary to avoid legal uncertainty and to protect the interests of employees, creditors and minority shareholders, among others, who could be detrimentally affected by the âemigrationâ of national companies