The trading companies operating in the tourism field, established on the territory of a European Union member state, benefit from the possibility of establishing, transferring their registered office on the territory of any other European Union member state. This aspect of the establishment right representing the base of the mobility principle of these legal entities – mobility imposed by the current necessities of the European economy - it is recently recognized by the practice of the Court of Justice of the European Communities.mobility, trading company, registered office, tourism

Luminita Tuleaşca

English

Research Papers in Economics

Mobility of the trading companies operating in the tourism industry  190 
MOBILITY OF THE TRADING COMPANIES OPERATING IN THE 
TOURISM INDUSTRY 
 
LuminiŃa Tulea că
* 
   
Abstract 
The  trading  companies  operating  in  the  tourism  field,  established  on  the  territory  of  a 
European  Union  member  state,  benefit  from  the  possibility  of  establishing,  transferring  their 
registered office on the territory of any other European Union member state.  This aspect of the 
establishment right representing the base of the mobility principle of these legal entities – mobility 
imposed by the current necessities of the European economy    it is recently recognized by the practice 
of the Court of Justice of the European Communities. 
 
Keywords: mobility, trading company, registered office, tourism.  
 
JEL Classification: K23, L80, L83 
 
I.  INTRODUCTION 
 
As  in  any  other  activity  field,  in  the  tourism  industry  as  well,  the  trading 
companies represent the main players of this economic activity. 
As  regards  their  mobility,  in  this  matter  too,  there  is  still  the  traditional 
conception according to which the connection between these legal entities and the 
states wherein they were established is so important that, in the absence hereof, the 
trading companies terminate their existence, cease to exist as a legal entity, even if 
they intended to establish another specific connection to another member state. 
The conception is legally obsolete and inappropriate to the mobility necessities 
of those involved in the tourism market. 
On the other hand, the legal frame in which the enterprises, including the ones 
in the tourism field, have to perform their activities within the Community, based 
essentially on the internal legislation, does not comply either with the requirements 
imposed by the creation of the Sole Market. 
Certainly the tourism market is a market in which the trading companies should 
have the possibility of performing their specific activity on the territory of another 
state but that of the state wherein it was established, based on the establishment right 
and without national formalities that could excessively restrict or prevent the actual 
exercise of the establishment right.   
The preoccupations with the adjustment of the  European and national legal 
framework  to  the  principles  and  objectives  of  the  Sole  Market  were  revealed 
particularly in the action Plan initiated in 2003 by the European Commission in the 
                                                 
* LuminiŃa Tulea că is Assistant Professor of Law at the Romanian American University in Bucharest. 
E mail: luminita.tuleasca@profesor.rau.ro Romanian Economic and Business Review – Vol. 5, No. 2  191 
field of trading company law: “Modernization of the trading company law and consolidation of 
the  government  of  the  enterprises  in  the  European  Union.  A  plan  to  advance”
1,  document 
wherein  the  mobility  of  the  companies  represents  one  of  the  six  main 
preoccupations.  
However, for a long period of time, in the absence of an express European 
regulation, the European Union and European economic area member states were 
either retained as to the interpretation mode of the establishment right recognized by 
art. 43 in the European Communities Institution Treaty (hereinafter referred to as 
the EC Treaty) or imposed restrictions intended to render the establishment right 
innocous.  
The  basic  principle  of  the  mobility  of  the  trading  companies  may  not  be 
restricted only to the possibility of extension of their activity on the territory of other 
European  Union  member  states  by  the  establishment  of  branches,  subsidiaries, 
representative offices or agencies. 
It also includes, by its nature, the right of the company to shift its registered 
office from a member state to another, as required by the business opportunities. 
This aspect of the mobility principle of the companies is contemplated by this 
study, analyzed from the perspective of the European legislation, taking into account 
its  importance,  the  new  practice  of  the  Court  of  Justice  of  the  European 
Communities (hereinafter referred to as CEJ) and the current stage of the Romanian 
legislation.      
 
II.  Current base of the mobility of the trading companies existing in the 
tourism field    
 
a).    Creation  of  the  communitarian  law,  the  European  Company  (Societas 
Europaea) introduced by the (CEE)  Regulation no. 2157/2001
2 and the European 
Group of Economic  Interest (hereinafter referred to as GEIE) constituted within 
the meaning of Regulations no. 2137/85 and 2157/2001,  benefit from the right – in 
principle, unrestricted – of transferring their registered office to another member 
state social, without their prior dissolution and liquidation being required. 
These communitarian entities, to be automatically found in the Romanian law as 
well, meet, to a large extent, the requirements of the mobility principle. 
                                                 
1 For details, see: Communication of the European Commission to the Council and the Parliament as 
of May 21st, 2003, entitled: “Modernization of the trading company law and consolidation of the 
government of the enterprises in the European Union. A plan to advance”, www.eur lex.europa.eu. 
2 Council Regulation  no. 2157/2001 as  of October 8th, 2001 enforced in 2004, Published in the 
Official  Journal  L    294/1  as  of  October  10th,  200,  Regulation  supplemented  by  Directive  no. 
2001/86/CE and of the Council as of October 8th, 2001, supplementing the SE Statute as regards the 
involvement of the workers, published in the Official Journal L 294/22 as of October 10th, 2001; with 
the subsequent amendments, latest amendment performed by Regulation no. 1791/2006 (adopted 
following Romania’s and Bulgaria’s accession to the EU in January 1st, 2007), published in the Official 
Journal L 363/December 20th, 2006. Mobility of the trading companies operating in the tourism industry  192 
In this respect, we exemplify herein below with one of the two entities: the 
European  Company,  regulated  in  our  country  by  the  Emergency  Governmental 
Ordinance no. 52/April 21
st, 2008
3 and by the European Regulation no. 2157/2001 
on the European Company Statute. 
The  big  advantage  of  the  establishment  of  such  a  European  company  is 
represented  by  the  simplification  of  the  structure of  enterprises  performing  their 
activity  throughout  Europe,  without  constituting  countless  subsidiaries  subject  to 
different national regulations
4. 
According to the (CEE) Regulation no. 2157/2001, the communitarian enterprise 
form,  regulated  thereby  may  transfer  its  registered  office  to  another  member  state 
without its prior liquidation, having thus access to all the manifestation forms of the 
mobility principle of the companies. 
Nevertheless, the amendments of the European and national legal frameworks 
introduced by the European Company Statute, do not result and cannot result, at his 
moment, in a revolution in the field of the mobility of the trading companies existing 
in the European area, considering the fact that the European Company does not benefit 
from the advantage of the European nationality
5 and the principle of its mobility is affected by the 
opposition right available to the public authorities in the host member state, opposition based on 
public interest grounds 
6, in case of intention of shifting the registered office to another member state. 
 
b).   The access to all the manifestation forms of the trading companies, related 
in  the  case  of  the  European  Company,  is  not  to  be  found  in  the  case  of  the 
“classical”  and  majority  trading  company  too,  regulated  by  the  national  and 
European laws so that  their only legal grounds their registered office to  another 
member state is set out by art.43 and art.48 in the EC Treaty.    
According  to  the  provisions  of  art.  43  in  the  EC  Treaty,  the  restrictions 
concerning the establishment freedom of the nationals of a member state on the 
territory of another member state.  This interdiction envisages as well the restrictions 
concerning the establishment of agencies, branches or subsidiaries by the national of 
a member state on the territory of another member state. 
                                                 
3  Emergency  Governmental  Ordinance  no.  52/21.04.2008  amending  and  supplementing  Law  no. 
31/1990 on trading companies and supplementing Law no. 26/1990 on the Trade Register, published 
in the Official Journal Part I no.33 as of April 30th, 2008. 
4 F.Blanquet, “Pourquoi creer une societe europeenne?”,  in: La societe europeenne, Dalloz, Paris,  2003, p.5;  
Jacques Beguin, Michel Menjucq – G.Bourdeaux, A.Couret, B.Le Bars, D.Mainguy, H.Ruiz Fabri, J. 
M.Sorel, C.Seraglini, Droit du commerce international, Litec, LexisNexis, Paris, 2005, p.200 p.214. 
 5 V.J.Beguin, “Le rattachement de la societe europeenne”, in: La societe europeenne, Dalloz, Paris, 2003, p.31 
and the following. 
 6 The grounds of the opposition right was criticized being considered much to general and generator 
of legal insecurity; in this respect; Report: “Societas Europaea pour une citoyennete europeenne de 
l’entreprise” as of March 19th,2007, presented by Noelle Lenoir and collectively elaborated by Ronan 
Guerlot, Mirko Hayat, Erwan le Meur, Marii Laure Combet, Marc Guillaume, Reinhard Dammann, 
Nichel Menjucq, published on the website of the Ministry of Justice in France: www.justice.gouv.fr. Romanian Economic and Business Review – Vol. 5, No. 2  193 
On  the  other  hand,  the  freedom  of  establishment  supposes  the  access  to 
independent  activities  and  to  their  exercise,  as well  as  the  establishment  and  the 
management of the enterprises, in general and in particular of the companies within 
the meaning of article 48 in the EC Treaty 
7, within the terms defined for its own 
nationals by the legislation of the country of establishment. 
In the current stage of the communitarian law, there is not uniform definition 
given to the trading company law that may benefit from the establishment right in 
reference  to  the  criterion  of  a  sole  connection  determining  the  national  law 
applicable to a trading company. 
But,  in  the  majority  of  the  European  Union  and  European  Economic Area 
member states, the registered office of a trading company is the connection point 
sufficiently  characteristic  to  determine  affiliation  thereof  to  a  certain  state,  its 
nationality. 
In  this  issue,  the  EC  Treaty  placed  on  the  same  position,  as  a  specific 
connection,  the  registered  office,  central  administration  and  the  main  place  of 
performance of the activity of a company.  
                                                                                                                                                          
c).    As  a  manifestation  form  of  the  principle  of  mobility  of  the  trading 
companies,  the  possibility  of  transfer  of  the  registered  office  of  a  company  to a 
member state different from the state wherein it was established, within the meaning 
of the establishment right, was contemplated by a recent Resolution of the European 
Court of Justice: Resolution of CEJ as of December 16
th, 2008, Case  C 210/06, OJC  
 165/July 15
thm 2006 –Cartesio case. 
The  resolution  of  CEJ  was  passed  following  the  petition  of  issuance  of  a 
preliminary resolution concerning the interpretation of art. 43 and art. 48 in the EC 
Treaty,  petition  formulated  within  an  action  /appeal  filed  by  Cartesio  Oktati  es 
Szolgaltato  bt  trading  company  (hereinafter  referred  to  as  “Cartesio”),  company 
seated in Baja (Hungary) against the resolution of rejection of its application  of 
recording in the company register of the note concerning the transfer of its registered 
office in Italy. 
The  petition  formulated  by  Cartesio  before  the  relevant  District  Court  in 
Hungary had two distinct requests: registration of the transfer of the registered office 
to Italy and the maintenance of the Hungarian nationality of the company also after 
the transfer of the registered office to Italy. 
This petition was rejected by the Hungarian Lower Court, on the grounds that the 
Hungarian  law  does  not  allow  to  a  company  established  in  Hungary  to  transfer  its 
registered office abroad, continuing at  the  same  time to  be  subject  to  the  Hungarian 
                                                 
7 “The companies established in compliance with the legislation of a member state and having their registered office, 
central administration or main place of activity performance within the Community are assimilated, in the application of 
this subsection, to the  natural persons that are nationals of the member states.  Companies mean the  companies 
established in compliance with the provisions of the civil or commercial legislation, including the cooperative companies 
and other public or private law legal entities, except for the non profit ones.” – art. 48 EC Treaty. Mobility of the trading companies operating in the tourism industry  194 
legislation  in  terms  of  personal  law,  regulating  the  organic  statute  of  the  company 
(company establishment, operation, amendment, dissolution and liquidation). 
Cartesio  submitted  an  appeal  against  this  resolution,  invocating  the  breach  of  the 
provisions of art.43 and art.48 in the EC Treaty, requesting the formulation and sending to CEJ 
of a preliminary question on this aspect. 
 
And this whereas CEJ has previously passed the Resolution as of September 
27
th, 1988, Daily Mail and General Trust (81/87, Rec., p.5483) whereby it had been 
decided that the freedom of establishment set out in articles 43 and 48 in the EC 
Treaty does not suppose that a  company established within the meaning of the 
legislation of a member state and registered in that state should be entitled to transfer 
its central administration and, consequently, the main place of activity performance 
to another member state, maintaining at the same time the legal status and origin 
nationality, when the relevant authorities fail to recognize this right.   
In  other words,  according  to  this  resolution  of  CEJ,  a  company  established 
within the terms of a national legal order exists only within the terms of the national 
legislation determining the establishment and operation thereof. 
In the Cartesio case, CEJ established the imperative of the distinction between 
the issue of transfer of the registered office of the company to another member state 
without the amendment of the law governing its organic statute and the issue of the 
transfer of the registered office of the company established within the meaning of 
the law of a member state to another member state with the amendment of the law 
governing its organic statute. 
Consistent with its practice, CEJ reiterated the fact that, each member state is 
entitled not to allow to a company governed by its law to maintain this stature in the 
case  in  which  the  company  intends  to  transfer  its  registered  office  to  another 
member  state,  as  the  specific  connection  based  on  which  the  company  ha  been 
governed by its legislation disappears. 
On the other hand, the European Court of Justice establishes that, to the extent 
to which a member state to which a company wishes to transfer its registered office 
allows it, the forbiddance of its turning into a company subject to the national law of 
another member state and the imposition of the dissolution and liquidation of the 
company by the member state wherein the company was established, represents a 
restriction  on  the  freedom  of  establishment  of  a  company,  restriction  forbidden 
within the meaning of art.43 in the EC Treaty. 
Additionally, the European Court of Justice reckoned that, the principles and 
provisions applicable to GEIE and to the European Company may be applicable, 
mutatis  mutandis,  also  to  the  trans frontier  transfer  of  the  registered  office  of  the 
trading companies al constituted within the meaning of the national law of a member 
state. 
Thus, the resolution of the European Court of Justice in the Cartesio case, awaited 
with high interest by the European business community, dependents the jurisprudential 
grounds, the interpretative argument binding to the national Courts of Law, provided Romanian Economic and Business Review – Vol. 5, No. 2  195 
under art.43 and art.48 in the EC Treaty, in support of the non restricted mobility of the 
trading companies within European Community.  
 
III.  Conclusions 
                                                                                                                                                       
We  may  say  that,  I  the  current  stage  of  the  evolution  of  the  European 
jurisprudential doctrine, even in the absence of express legal regulations, any trading 
companies  established  within  the  meaning  of  the  legation  of  a  member  state, 
including the companies operating in the tourism field, may transfer its registered 
office to another member state, without its actual dissolution and liquidation being 
required, without loss of its legal status, if the legislation of the state to which the 
company intends to transfer its registered office allows it to turn into a national 
company. 
Consequently, the company loses the nationality of the member state wherein it 
was  established  and  will  receive  the  nationality  of  the  member  state  to  which  it 
transfers its registered office, state whose legislation becomes the law applicable to the 
organic statute of the trading company. 
And this because, by means of the Resolution passed by CEJ in Cartesio Case, 
the jurisprudential recognition of the most important form the materialization of the 
mobility of the trading companies is obtained, namely the possibility of transfer of 
their registered office from a member state to another, right consecrated by art.43 in 
the EC Treaty. 
Consequently, the trading companies operating in the tourism field having their 
registered office in Romania, will be able to transfer their registered office (without 
dissolution and liquidation) in any member state wherein its turning into a form of 
company regulated by the law of the member state to which the company is going to 
transfer its registered office. 
 
 

MOBILITY OF THE TRADING COMPANIES OPERATING IN THE TOURISM INDUSTRY

http://www.rebe.rau.ro/RePEc/rau/journl/SU10/REBE-SU10-A18.pdf

MOBILITY OF THE TRADING COMPANIES OPERATING IN THE TOURISM INDUSTRY

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