Skip to main content

Research Repository

Advanced Search

Company ‘Emigration’ and EC Freedom of Establishment: Daily Mail Revisited

Mucciarelli, Federico

Company ‘Emigration’ and EC Freedom of Establishment: Daily Mail Revisited Thumbnail


Authors

Federico Mucciarelli



Abstract

Following the ECJ’s recent case law on EC freedom of establishment (the Centros, Überseering and Inspire Art cases), regulatory competition for corporate law within the European Union takes place at an early stage of the incorporation of new companies. In contrast, as regards the ‘moving out’ of companies from the country of incorporation, the ECJ once considered a tax law restriction against the transfer abroad of a company’s administrative seat as compatible with EC freedom of establishment (the Daily Mail case). For years, this decision has been regarded as applicable to all restrictions imposed by countries of incorporation, even the forced liquidation of the ‘emigrating’ company. This paper addresses the question whether EC freedom of establishment really allows Member States to place any limit on the ‘emigration’ of nationally registered companies. It argues that EC freedom of establishment covers the transfer of the administrative seat as well as the transfer of the registered office and, therefore, that the country of incorporation cannot liquidate ‘emigrating’ companies. In addition, it addresses the question whether a new Directive is needed to allow the transfer of a com- pany’s registered office and the identity-preserving company law changes. It argues that such a Directive is necessary to avoid legal uncertainty and to protect the interests of employees, creditors and minority shareholders, among others, who could be detrimentally affected by the ‘emigration’ of national companies.

Citation

Mucciarelli, F. (2008). Company ‘Emigration’ and EC Freedom of Establishment: Daily Mail Revisited. European Business Organization Law Review, 9, 267-303. https://doi.org/10.1017/S156675290800267X

Journal Article Type Article
Publication Date Jan 1, 2008
Deposit Date Oct 1, 2012
Publicly Available Date Mar 11, 2025
Journal European Business Organization Law Review
Print ISSN 1566-7529
Electronic ISSN 1741-6205
Publisher Springer
Peer Reviewed Peer Reviewed
Volume 9
Pages 267-303
DOI https://doi.org/10.1017/S156675290800267X
Keywords EC freedom of establishment , private international law , regulatory competition , transfer of the registered office, reincorporation , Daily Mail , restrictions to freedom of establishment
Publisher URL http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=1936688

Files






Downloadable Citations