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Cross-border Transfer of Registered Office

Andersson, Emanuela LU (2012) HARP40 20121
Department of Business Law
Abstract (Swedish)
The Court decision in Daily Mail has come as a result of the resolution of the Member States to endorse a plurality of national legal solutions in the field of tax and corporate laws. The free movement provisions must be understood against this background and keeping in mind that no matter which “interface program” is to be used the system as a whole, i.e. the
internal market, must be effective and coherent. The term “interface program” is used here as a metaphoric representation for the set of rules enshrined in national tax and corporate legislation that stipulate conditions for the entry and exit of companies.

Among the exit conditions, the liquidation or winding-up of companies as a prerequisite for the cross-border transfer is the... (More)
The Court decision in Daily Mail has come as a result of the resolution of the Member States to endorse a plurality of national legal solutions in the field of tax and corporate laws. The free movement provisions must be understood against this background and keeping in mind that no matter which “interface program” is to be used the system as a whole, i.e. the
internal market, must be effective and coherent. The term “interface program” is used here as a metaphoric representation for the set of rules enshrined in national tax and corporate legislation that stipulate conditions for the entry and exit of companies.

Among the exit conditions, the liquidation or winding-up of companies as a prerequisite for the cross-border transfer is the most radical one. It’s the main pursuit of this study to scrutinize the legality of liquidation in relation to cross-border movement of companies, operation which presupposes a change of the applicable law.

Once a company is lawfully established in the State of origin and its transformation into a company governed by a different national corporate law is allowed by the State of destination, the movement represents a matter falling within the scope the Article 49 TFEU. Implicitly any restrictions imposed on the movement will be subject to the Treaty provisions.

The present study makes the distinction between the conditions imposed by the State of destination, which concern rules on company transformations under the national laws and the ones imposed by the State of origin on an emigrating company. The first set of conditions falls within the State competence to determine the formal requirements necessary for the acquirement of legal status under the domestic laws, while the second set of conditions can only be applied in order to preserve the protection of rights originating before the transfer.

The liquidation belongs to the latter set of conditions and according to the findings of this study, even if it is not generally excluded, the application of such restriction in a specific case would be rarely, if ever, found to be proportionate and its lack of proportionality will render it illegal under the Union law. (Less)
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author
Andersson, Emanuela LU
supervisor
organization
alternative title
Moving beyond Forms
course
HARP40 20121
year
type
H2 - Master's Degree (Two Years)
subject
keywords
Freedom of establishment, Free movement of capital, exit taxation, corporate laws, SE Regulation, Cross-border Merger Directive, Cartesio, National Grid Indus, free movement of legal persons, EU law, proportionality principle
language
English
additional info
The source of inspiration for this study is not at all a usual one; the thesis has been construed partly on the facts of a fictive case, which is the creation of a resourceful mind. In view of that, my final thanks are addressed to Mr. René Repassi, Professor at the Heidelberg University and author of the ELMC Competition case this year.

In the same line of thoughts, I want to mention that I consider the Moot Court Competition to be the most educative part of my studies in law and for this precious experience I want to express my sincere gratitude to the initiator of this project at the Faculty of Law in Lund. Un très grand merci, à l'attention de mon directeur de thèse le Professeur Xavier Groussot.
id
2760012
date added to LUP
2012-06-28 15:05:55
date last changed
2012-12-31 06:09:47
@misc{2760012,
  abstract     = {The Court decision in Daily Mail has come as a result of the resolution of the Member States to endorse a plurality of national legal solutions in the field of tax and corporate laws. The free movement provisions must be understood against this background and keeping in mind that no matter which “interface program” is to be used the system as a whole, i.e. the
internal market, must be effective and coherent. The term “interface program” is used here as a metaphoric representation for the set of rules enshrined in national tax and corporate legislation that stipulate conditions for the entry and exit of companies.

Among the exit conditions, the liquidation or winding-up of companies as a prerequisite for the cross-border transfer is the most radical one. It’s the main pursuit of this study to scrutinize the legality of liquidation in relation to cross-border movement of companies, operation which presupposes a change of the applicable law.

Once a company is lawfully established in the State of origin and its transformation into a company governed by a different national corporate law is allowed by the State of destination, the movement represents a matter falling within the scope the Article 49 TFEU. Implicitly any restrictions imposed on the movement will be subject to the Treaty provisions.

The present study makes the distinction between the conditions imposed by the State of destination, which concern rules on company transformations under the national laws and the ones imposed by the State of origin on an emigrating company. The first set of conditions falls within the State competence to determine the formal requirements necessary for the acquirement of legal status under the domestic laws, while the second set of conditions can only be applied in order to preserve the protection of rights originating before the transfer.

The liquidation belongs to the latter set of conditions and according to the findings of this study, even if it is not generally excluded, the application of such restriction in a specific case would be rarely, if ever, found to be proportionate and its lack of proportionality will render it illegal under the Union law.},
  author       = {Andersson, Emanuela},
  keyword      = {Freedom of establishment,Free movement of capital,exit taxation,corporate laws,SE Regulation,Cross-border Merger Directive,Cartesio,National Grid Indus,free movement of legal persons,EU law,proportionality principle},
  language     = {eng},
  note         = {Student Paper},
  title        = {Cross-border Transfer of Registered Office},
  year         = {2012},
}