The Transfer of the Company's Seat in European Company Law

Abstract

After the Centros case in 1999, the Europe Court of Justice has again delivered a significant case dealing with the legal situation of EU companies establishing themselves in other Member States. In the Uberseering case of November 5, 2002, the Court considered incompatible with the Treaty freedoms, the German rule, based on the real seat doctrine, whereby foreign companies with a seat on the German territory were refused to appear in German courts unless they proceeded to re-incorporation. This was considered an outright negation of the freedom of establishment. Member states should allow companies that have been incorporated in other Member states to freely enter their territory, according to the rules under which they have been formed in their state of origin. The case constitutes another landmark on the road towards the more free circulation of companies in Europe. Whether it introduces the incorporation theory as the European rule, is open to doubt, as the Court has exclusively relied on the Treaty rules on free establishment. It seems that the Court has rather developed a new approach that could allow to bridge the differences between incorporation and real seat techniques.

Keywords: European Company Statute, Seat Transfer, Incorporation theory, Real Seat theory, Uberseering case, "General Good" Clause, EC Company Law

JEL Classification: F02, F20, K22, L5