Cross-border company migration in the EU: Transfer of registered office (conversion) – the last piece of the puzzle? Case C-106/16 Polbud, EU:C:2017:804
| DOI | 10.1177/1023263X18761335 |
| Date | 01 February 2018 |
| Author | Stephan Rammeloo |
| Published date | 01 February 2018 |
| Subject Matter | Case note |
Case note
Cross-border company
migration in the EU: Transfer
of registered office
(conversion) – the last piece
of the puzzle? Case C-106/16
Polbud, EU:C:2017:804
Stephan Rammeloo*
Abstract
On 25 October 2017 the Court of Justice of the European Union (CJEU) provided for a prelim-
inary ruling in its Polbud judgment concerning a cross-border company conversion. This conversion
had to be accomplished by transferring the company’s registered office from one EU Member State
to another. The Court’s ruling – first, that such a transfer, whether or not involving at the same
time the company’s headquarters or economic conduct, falls within the ambit of Articles 49 and 54
of the Treaty of the Functioning of the European Union (TFEU) on freedom of establishment, and,
second, that legislative measures imposed on the migrating company by the Member State of origin
entailing the winding-up of the company on the conclusion of a liquidation procedure are pre-
cluded – deserves approval. The Polbud judgment not only provides for clarity but also further
completes the options of cross-border migration operations for companies and firms. At the same
time, however, the Court’s ruling demonstrates the need to establish uniform legislative standards
at the EU level, safeguarding the interests of all company stakeholders under the reign of Article 52
subsection 2 litera (g) TFEU. Both the experience with Directive 2005/56/EC on cross-border
mergers and, from the late eighties of last century onwards, various initiatives having resulted in
consecutive ‘pre-drafts’ for a Cross-border Company Migration Directive, may serve as guideline
for further harmonisation in the field related. It is now for the Commission to take action, seeking a
proper balance between the potentially diverging interests of all company stakeholders.
* Associate professor in (European) Company Law, Private International Law and Comparative Law at Maastricht
University and visiting professor at China European Union Law School (CESL), Beiijng, China.
Corresponding author:
Stephan Rammeloo, Private International Law and Comparative Law, Maastricht University, Buillonstraat 1–3, Maastricht,
6200 MD, Netherlands.
Email: s.rammeloo@maastrichtuniversity.nl
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(1) 87–107
ªThe Author(s) 2018
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DOI: 10.1177/1023263X18761335
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Keywords
EU company law
1. Introduction
On 25 October 2017 the Court of Justice of the European Union (CJEU) provided for a preliminary
ruling in its judgment Polbud–Wykonawstwo sp. z o.o., in liquidation.
1
The case centred round the
topic of cross-border company migration, more in particular the cross-border transfer of a com-
pany’s registered office from one EU Member State to another, with the state of origin imposing
barriers on the company that was planning to leave that Member State with a view to
re-establishing in the purported host state.
The aim of this article is to explicate the Court’s ruling. First, the heart of the matter of the
dispute in the main proceedings, the main observations and preliminary questions lodged by the
Polish court will be briefly summarised. Thereafter the Opinion of Advocate General Kokott and
the CJEU’s ruling are analysed. This analysis will first depict the modalities and motives under-
lying various cross-border company seat transfers. Subsequently, the preliminary questions will be
explored in detail. Some time will be spent on the potential impact of the Polbud judgment on
inbound conversion operations and UK limited companies having headquarters on the continent in
the light of the upcoming Brexit. Pursuant to the findings, a plea is held for the harmonisation of
EU Member State laws having regard to a wide range of cross-border company migration mod-
alities not only within EU borders but in a globalising world.
2. CJEU Case C-106/16 Polbud
A. Main proceedings and preliminary questions
2
Polbud is a limited company established in Ła˛ck (Poland). On 30 September 2011, the general
meeting of Polbud decided, under Article 270, point 2, of the Polish Companies Code, to transfer
its registered office to Luxembourg. To that end, on 19 October 2011, Polbud requested that the
opening of a liquidation procedure be recorded by the court responsible for keeping the commer-
cial register (‘the registry court’). On 26 October 2011 the opening of the liquidation procedure
was recorded in that register and the liquidator was appointed.
On 28 May 2013 the meeting of shareholders of Consoil Geotechnik Sa`rl, whose registered
office is in Luxembourg, adopted a resolution inter alia, implementing the resolution of 30
September 2011 and transfering the registered office of Polbud to Luxembourg, with a view to
the application of Luxembourg law to it, without loss of its legal personality. According to the
resolution of 28 May 2013, the transfer was to take effect on that date. On 28 May 2013, therefore,
2. The following briefly renders the CJEU’s Observations 3-18 (emphasis, SR). For further details having regard to the
main proceedings, compare the Opinion of Advocate General Kokott in Case C-106/16 Polbud – Wykonawstwo sp. z
o.o., in liquidation, EU:C:2017:351, in particular para. 13,19.
88 Maastricht Journal of European and Comparative Law 25(1)
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