Companies' Emigration and EC Freedom of Establishment

Abstract

After the ECJ's decisions in the cases Centros, Uberseering and Inspire Art, a regulatory competition for corporate law can take place within the EU at the early stage of the incorporation of new companies. In the case Daily Mail, the ECJ considered a tax law restriction against the transfer abroad of the administrative seat as compatible with the freedom of establishment. For years, this decision has been considered as applicable to whatever restriction placed by the country of incorporation, even to the forced liquidation. This paper will address the issue at to whether freedom of establishment really allows Member States to place whatever limit to the emigration of nationally registered companies. I will argue that the freedom of establishment covers the transfer abroad of the administrative seat as well as of the registered office and that the country of incorporation can neither liquidate the company, nor consider the seat transfer as ineffective. Nonetheless, a Directive on identity preserving company law changes appears to be necessary, at least to avoid legal uncertainty and to protect interests which may be affected by the moving out of national companies.