Case Notes
| DOI | 10.1177/1023263X1101800309 |
| Date | 01 September 2011 |
| Published date | 01 September 2011 |
| Subject Matter | Case Notes |
18 MJ 3 (2011) 353
CASE NOTES
Case C-378/10 VALE Építési K., pendi ng, lodged on July 28, 2010
Freedom of establishment: cross-border tran sfer of company ‘seat’
§1. INTRODUCTION
Optional f unctioning of the single Europea n market presupposes the right to freedom
of establishment for companies and rms under Articles 49 and 54 TFEU (ex Articles 43
and 48 EC). Once duly esta blished, these busi ness vehicles may w ish to open bra nches
in various Member States, or perhaps even to relocate the company’s centre of busines s
by transferri ng company headquarters from one Member State to another. Finally, they
may contemplate transferri ng the company’s registration oce to another Member State,
thus adopting another proper law of the company.
From 1999 onwards , four cases related to cross-border company mig ration were
adjudicated by the CJEU.1 As w ill be se en below (§3), one cannot however speak of an
unrestricted f reedom for companies and rms to migrate throug hout ‘Europe’.
While awaiting t he Opinion of the Advocate General, notice is given to the reference
for a preliminar y ruling concerning the cross-border transfer of a compa ny’s registered
oce: VALE Építési K. Proceedings in national courts and the reference for preliminar y
rulings are followed by a brief overview on t he range of cross-border company seat
transfer moda lities, as well as the varying mot ives underlying such tra nsfer operations.
Subsequently, the core elements and an outlook of the Va le case are rendered.
§2. PROCEEDINGS IN NATIONAL COURTS AND REFERENCE
FOR A PRELIMINARY RULING
In 2006, the private limited liability company Vale Srl, duly established and incorporated
in the year 2000 in Rome, Italy, planned to transfer its ‘seat’ to Hungary. is request was
denied by both the Hungarian cour t of rst instance and the reg ional court of Budapest,
as alleged ly Hungarian law does not deem it possible to register a company moving in,
whilst converting it self from an Italian into a Hungaria n limited liability company.
1 Cases C-212/97 Centros [1999] ECR I-1459; C-208/00 Übersee ring [2002] ECR I-9919; C-167/01 Inspire
Art Ltd. [2003] ECR I-10155 and C-210/06 Cartesio [2008] ECR I-09641.
Case Notes
354 18 MJ 3 (2011)
On July 28, 2010, the Hungarian Supreme Cour t (Magyar Köztársaság Legfelsőbb
Bírósága) lodged the following preli minary questions:2
Must the ho st Member State pay due regard to Articles 43 and 48 EC3 when a company
established in anot her Member State (the Member State of origin) transfers its seat to that
host Member State and, at the s ame time and for this purpose , deletes the entr y regarding it
in the com mercial register in the Member State of orig in, and the company ’s owners adopt a
new inst rument of cons titution under the laws of the host Member State, and the company
applies for registrat ion in the commercial regist er of the host Member State under the laws of
the host Member State?
If the answer to the rst question is yes , must Ar ticles 43 a nd 48 EC be interpreted in such
a case as mea ning that they preclude legislation or practices of such a (host) Member State
which prohibit a company est ablished lawfully in any other Member State (the Member State
of origin) from transferri ng its seat to the host Member State and continuing to operate under
the laws of that State?
With rega rd to the response to the second question, is the basis on which the host Member
State prohibits the company f rom registration of any relevance , specically:
– if, in its instrument of constitution adopted in the host Member State, the c ompany
designates as its predeces sor the company established a nd deleted from the commercia l
register in the Member State of origi n, and applies for the predecessor to be regist ered as
its own predecessor in t he commercial register of the hos t Member State?
– in t he event of internationa l conversion within t he Communit y, when dec iding on the
company’s application for registration, must the host Member State take into consideration
the instrument recording the fact of the transfer of compa ny seat in the commercial
register of the Member St ate of origin, and, if so, to what ex tent?
Is the host Member State entitled to decide on the application for company registrat ion lodged
in the host Member St ate by the company carr ying out inter national conversion within the
Community in accordance with the rules of company law of t he host Member State as t hey
relate to the conversion of domestic companies, and to re quire the compa ny to ful l all the
conditions (e.g. d rawing up lists of assets and liabilities a nd property inventories) la id down
by the company law of the host Member State in respect of domest ic conversion, or is the host
Member State obliged und er Articles 43 and 48 EC to disting uish internationa l conversion
within t he Community from domestic conversion a nd, if so, to what extent?
2 [2010] OJ C 317/13.
3 ese provisions on f reedom of establishment a re commensurate wit h Articles 49 and 54 T FEU, SR.
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