Volume 49 (2012) / Issue 2
Over the last decade, the case law of the ECJ on the freedom of establishment for companies has led to a high degree of corporate mobility within the EU. As a result of that case law it is nowadays common sense among academics that companies which have been founded under the law of a Member State may transfer their real seat to another Member State with no change of legal form as far as the Member State of incorporation allows for such an operation. However, it remains to be clarified whether EU law also grants - besides said right of physical establishment - a right of legal establishment by allowing companies to convert into a legal form of another Member State. In the first part of the article, there is an analysis of whether companies may invoke primary law, notably the right of establishment, in order to conduct such an operation. In this context, two forms of cross-border con-version are addressed separately: cross-border-conversion with an attendant transfer of real seat and, far more problematic, isolated cross-border conversion. The second part of the article contains an outlook on a possible secondary measure enabling and regulating the cross-border conversion of EU companies. Although the Commission has stopped working on a 14th directive on the transfer of registered seat, it will be demonstrated that there is actually a strong need for such a measure. Special focus will also be on the question whether the EU has competence to take any steps in that direction, a problem which is often overlooked, particularly with regard to isolated cross-border conversion.
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