Perspectives of European Company Law (Prospettive Del Diritto Societario Europeo) (Italian)
Rivista di diritto societario, 2010, n. 4, GIAPPICHELLI, parte I, p. 770
Posted: 14 Dec 2012
Date Written: December 1, 2010
The Freedom of establishment for companies introduced by the Treaty of Rome left member States the freedom to define the criteria that identify the company seat and the modalities to transfer its seat. This article describes the various solutions that have been tried in the last 50 years to allow full freedom of establishment, from the initiatives adopted at the beginning of the European Communities to the current legislative and non-legislative proposals.
At first a convention was signed among the then six Member States to coordinate national legislations on conflicts of laws and international private law, that is those national provisions which disciplined the exit from and entrance in their legal systems of a company. The convention allowed companies to move their seat from one Member State to another on condition to apply the relevant provisions of both national legislations. The convention was never ratified by The Netherlands because it did not allow to move the company seat subject only to the provisions of the host Member State. At that time (1968) The Netherlands were convinced to have the most flexible company legislation and saw itself as a potential beneficiary of the migration of companies’ seat from other Member States.
Since it was clear that fear of forum shopping was as an obstacle to full freedom of establishment, the European Commission then adopted an action plan aimed at harmonizing the company legislations of the Member States to reduce opportunities for forum shopping in the first place. Such a choice produced important results, leading to the adoption of several company law directives. However, the harmonization process stopped in the mid-1980s because of the fundamental differences among the Member States, in the first place in terms of the mandatory participation of employees to companies’ management and groups of companies. This is the main reason why only some of the legislative directives and regulations instrumental to full freedom of establishment have been adopted (European Company statute and directive Cross-Border Mergers) accompanied by restrictions to the regime of the seat and by mandatory requirements on employees’ participation to company management, while the 14th directive on seat transfer has not been adopted.
In the last few years the European Court of Justice has adopted a series of rulings which pave an alternative way towards freedom of establishment based on mutual recognition of the national seat regimes. Finally, with the proposal for a European private company statute the European Commission has chosen to circumvent the differences among national company law provisions by allowing wide recourse to freedom of contract in the drafting of company statutes.
Another obstacle to freedom of establishment is represented by the absence of a European company tax regime sufficiently harmonized to prevent that company mobility be a vehicle for fiscal forum shopping and that Member States adopt restrictive taxation provisions.
The experience of company mobility in the United States indicates that full freedom of establishment is possible only in a context characterized by the absence of strong differences in the company law and taxation provisions at State level. Company mobility is accepted because it is linked to the different efficiency of the State Courts and legal systems in general and to moderate differences in company law provisions at State level. On the other hand, in the European Union the potential efficiency gains in terms of lower cost of capital that could be brought through full freedom of establishment are probably higher than in the United States because of the greater differences in the efficiency of the Courts and of the legal systems among the Member States.
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