Abstract
The intra-EU transfer of a company's seat is impacted by the freedom of establishment. In that domain, Art.49 TFEU equates companies with natural persons, who enjoy cross-border mobility rights. Still, this
equivalence risked remaining a mere declaration of intent since the meaning of freedom of establishment was unclear.
Besides, cautious national lawmakers took recourse to the real seat theory and/or to substantive corporate law rules
able to discourage cross-border seat transfer. As a result, it was often impossible for companies to move their seat
abroad with continuity of the legal person and without too many practical problems.
Directive 2019/2121, aimed at overcoming these issues, is the last outcome of the interaction in this field between
the EU legislature, which is cautious as regards private international law (PIL), and a dynamic but not always consistent
EU Court of Justice.
Eureka? Is this the end of the 30-year cross-border corporate mobility debate?
Despite enthusiastic comments, the Directive requires a critical evaluation from an EU and PIL perspective. In fact, the
Directive will manifest its effect in a context where, even if many instruments at EU level have been adopted, the
corporate laws of the Member States are not fully harmonized and where these still are competent to determine the
lex societatis and the recognition of the legal personality of companies. The Directive doesn't explicitly provide uniform
PIL criteria but rather introduces harmonized procedures regarding some of the operations through which a company
can transfer the seat abroad and introduces harmonized substantial provisions for the protection of third parties.
Hence, on one side it is not granted that the Directive's solutions will deter States from adopting protectionist norms
inhibiting transfers nor, on the other side, that the procedures of the Directive will not cause further problems.
The main research questions of the project are whether and how the Directive will guarantee the transfer of the legal
or administrative seat abroad without excessive obstacles in practice and if and how, in doing so, it affects PIL rules currently in force and which role remains for the latter after the adoption of the Directive. To do so, the project will
respond to the following questions:
1) What provisions of EU Treaties are relevant regarding corporate mobility and why?
2) What interests and policy concerns of the Member States have impeded corporate mobility?
3) With what kind of norms and in which fields of law States have adopted legislation on corporate mobility?
4) What role has the CJEU assumed in this field? What are the outcomes of its case-law?
5) What role has the EU legislature assumed? What are the outcomes of its interventions?
6) What are the novelties and the gaps of the Directive in light of the freedom of establishment as interpreted
by the CJEU?
7) What is the impact of the Directive on domestic PIL provisions on the lex societatis?
8) What is the relation of the Directive with other PIL instruments that use the seat as criterion for the applicable
law or jurisdiction?
9) In light of the answer to the previous questions, does the Directive guarantee corporate mobility and a proper
exercise of the freedom of establishment while balancing it correctly with the other interests at stake?
10) If not, what are the options to resolve this issue?
11) Is this, in light of the options available and the effects of the Directive, still the case and is it practically possible
and desirable to introduce a EU criterion concerning the lex societatis? How, of what content and to what
extent?
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