Transfer of seat within European Union. The latest developments on cross-border conversions, mergers and divisions of companies

Abstract

Abstract Transfer of seat of companies remains one of the debated issues at European Union level as more and more cross border transactions are taking place and the shareholders try to take advantage of the rights of free movement provided by the treaties. The recent caselaw brought the European Union in a difficult position, having to accept the existing lacks in the treaty’s provisions and come with specific legislation to cover the consequences raised after Polbud case. The caselaw on transfer of seat of companies from one member state to another was not very complex and numerous at the beginning, but became incisive with the development of the internal market and increase of cross-border transactions, becoming more open towards the acceptance of the freedom of establishment in most cases of transfer, forcing the national company law, especially the rules on conflict of law, to encounter a new challenge in the harmonisation of the provisions related to incorporation, functioning, merger/division/conversion or the creation of secondary establishments. This article wants to be an overview on the reaction of the European Union, especially through the latest Directive in the field, Directive on cross-border conversions, mergers and divisions was adopted by the European Parliament and the Council (Directive (EU) 2019/2121), but taking into account the caselaw in the field and trying to project future evolution of the new provisions.