CROSS-BORDER TRANSFER OF THE COMPANY SEAT： ONE STEP FORWARD, FEW STEPS BACKWARD

• 作者: Hana Horak Kosjenka Dumandic
• 来源期刊: 美中法律评论：英文版
• 学科: 政治法律
• 年，卷（期）: mzflplywb_2017,（10）
• 页码范围: 711-728
• 页数: 18页
• 分类号: D0

摘要

Cross-border transfer of the company seat for more than decade wasand still is hot and unresolved topic in EU Company Law. Freedom ofestablishment is indisputable cornerstone of EU company law and InternalMarket enshrined in Articles 49 and 54 of the Treaty on the Functioning ofthe European Union （TFEU） but still the company＇s cross border mobilityis unsolved. The company transfer of the seat is closely connected withdifferent Member States legal tradition in relation with the two different ＂seat theories＂ that apply. By the practice of the European Court of Justiceboth seat theories ＂the real seat theory＂ and ＂the incorporation theory＂are proclaimed as in line with the EU law. Nevertheless, the process ofcross border transfer of the seat occurs as compelling problem for thecross-border company mobility. In most Member States at the moment thecross border transfer of the company seat requires the winding-up of thecompany and establishing the new one in the other Member State. Thisprocedure leads to the loss of legal and business continuity and nationalapproaches to this issue differ.