The Judicial Control of a Cross-Border Merger approved by means of an abusive resolution

2021 ◽  
Vol 18 (5) ◽  
pp. 773-793
Author(s):  
Andrés Recalde-Castells ◽  
Antonio Roncero-Sánchez
Keyword(s):  
Company Law ◽  
European Court Of Justice ◽  
Freedom Of Establishment ◽  
Judicial Control ◽  
Applicable Law ◽  
Appeal Court ◽  
Judicial Decisions ◽  
Cross Border ◽  
Court Of Justice ◽  
European Court

The fight for the control of the Mediaset group has given rise to several judicial decisions issued in various national jurisdictions and even by the European Court of Justice. Three orders of Spanish Courts have been of particular interest. Two of them were issued by a Commercial Court in Madrid and the third one was issued on appeal by the Provincial Appeal Court Madrid. They instructed the suspension of the shareholders meeting resolutions of the Spanish Mediaset company approving a cross-border merger. The content of this resolution was to approve the acquisition of the Spanish company by another company domiciled in the Netherlands thus changing the applicable law. The resolution approving the merger was presumed (provisionally) to be abusive and, eventually, null and void. The decisions of the Spanish Court were grounded on the fact that the articles of association of the resulting Dutch company would be detrimental to the minority in the Spanish company. This limits the freedom of establishment (Art. 49 TFEU) and is based on a multilevel scrutiny, resulting from the national laws applicable to each company that participates in the merger. Those judicial decisions handled with other issues of interest in company law, such as the conclusive effect of the registration of a cross-border merger, the legitimation of the minority to challenge shareholders resolutions, or the effects of a shareholders meeting resolution replacing a previous merger resolution that has been challenged before the courts.

European Court of Justice Jurisprudence in the Field of Avoidance Actions with International Elements for Filling the Insolvency Estate

2020 ◽  
Vol 26 (2) ◽  
pp. 205-210
Author(s):  
Yordanka Noneva-Zlatkova
Keyword(s):  
National Level ◽  
European Court Of Justice ◽  
Border Effect ◽  
Applicable Law ◽  
Cross Border ◽  
Court Of Justice ◽  
European Court ◽  
The Subject ◽  
Insolvency Proceedings

AbstractWith the development of the internal market, the need to establish rules ensuring the protection of creditors in insolvency proceedings with a cross-border effect is increasing. Mechanisms at national level are difficult to provide the desired protection for foreign creditors. Since 26.06.2017 EU has a new Regulation 848/2015 which repeals the current Regulation 1346/2000. Despite the radical changes, it is attempting to implement this legislative act, the main objective of insolvency proceedings remains unchanged, namely, to achieve fair satisfaction of creditors. One of the mechanisms for the realisation of this objective are avoidance actions with international element for filling the insolvency estate. In view of the specifics of the procedure, the standard civil law mechanisms such as the Actio Pauliana are not impossible but are extremely inadequate and difficult to prove. In the practice of the Member States, many issues arise concerning the determination of jurisdiction and applicable law, creation of preconditions for the abuse in searching the most favourable legal system (forum shopping), there are differences in the so-called ‘suspicious periods’ and transactions concluded with affiliates. On this basis a fundamental jurisprudence of the CJEU has been enacted, the achievement of which will be the subject of this paper.

scholarly journals Steigimosi laisvė po Cartesio bylos: ES inkorporavimo doktrinos trūkumas ir to padariniai

Teisė ◽  
2010 ◽  
Vol 75 ◽  
pp. 143-158
Author(s):  
Robertas Čiočys
Keyword(s):  
International Law ◽  
Case Law ◽  
European Court Of Justice ◽  
Private International Law ◽  
Freedom Of Establishment ◽  
Cross Border ◽  
Court Of Justice ◽  
European Court ◽  
Real Seat

This article defines private international law doctrines of incorporation and real seat and then turns to the analysis of freedom of establishment guaranteed by the EC Treaty. The article analyses judgments of the European Court of Justice, interpreting the freedom of establishment in cases where companies tried to transfer their seats across frontiers, especially in light of the newest judgment in this area in the Cartesio case. The analysis of case law shows the link between the freedom of establishment and private international law doctrines. The article is concluded by a discussion of opportunities that free­dom of establishment provides for companies, alternatives for cross-border business restructurings and implications of rising number of these activities. Straipsnyje apibūdinamos tarptautinės privatinės teisės taikomos inkorporavimo ir buveinės doktri­nos ir tada analizuojama EB steigimo sutarties garantuojama steigimosi laisvė. Aptariama Europos Tei­singumo Teismo praktika interpretuojant steigimosi laisvę bylose, kai bendrovės bandė perkelti buveinę už valstybės ribų. Atsižvelgiant į tai, kaip supratimą keičia naujausia byla šioje srityje − Cartesio. Teis­mo praktikos analizė parodo steigimosi laisvės ir tarptautinės privatinės teisės doktrinų ryšį. Straipsnis baigiamas aptariant galimybes, kurias bendrovėms suteikia steigimosi laisvė, ir alternatyvas, kuriomis jos gali pasinaudoti, siekdamos pertvarkyti verslą, kai tai apima kelias valstybes, bei šio reiškinio dažnė­jimo padarinius.

The End of the Real Seat Theory (Sitztheorie): the European Court of Justice Decision inUeberseeringof 5 November 2002 and its Impact on German and European Company Law

2002 ◽  
Vol 3 (12) ◽  
Author(s):  
Kilian Baelz ◽  
Teresa Baldwin
Keyword(s):  
Member State ◽  
Central Place ◽  
Company Law ◽  
European Court Of Justice ◽  
Legal Capacity ◽  
Freedom Of Establishment ◽  
Court Of Justice ◽  
European Court ◽  
Real Seat ◽  
A Company

In a long awaited judgement delivered on 5 November 2002, the European Court of Justice (ECJ) has ruled that it isincompatiblewith the freedom of establishment guaranteed in Arts. 43 and 48 EC for a member state to deny a company formed in a member state which moves its central place of administration to another member states, legal capacity (and standing to sue or be sued in courts). Against the expectations of many German legal commentators and the recommendation of the Advocate General, the ECJ also held that where a company incorporated in another member state exercises its freedom of establishment in another member state, that other member state isrequired to recognisethe company's legal capacity (and capacity to be a party to legal proceedings) which it enjoys under the laws of its state of incorporation.

scholarly journals THE MYSTERIES OF FREEDOM OF ESTABLISHMENT AFTER CARTESIO

2010 ◽  
Vol 59 (2) ◽  
pp. 303-323 ◽  
Author(s):  
Carsten Gerner-Beuerle ◽  
Michael Schillig
Keyword(s):  
European Union ◽  
Company Law ◽  
European Court Of Justice ◽  
Coherent System ◽  
Private International Law ◽  
The European Union ◽  
Freedom Of Establishment ◽  
Court Of Justice ◽  
European Court ◽  
The Right

AbstractThe judgment of the European Court of Justice in Cartesio was eagerly awaited as a clarification of the questions concerning the scope of the right of establishment (articles 49, 54 Treaty on the Functioning of the European Union (TFEU), (ex-articles 43, 48 EC) that remained after previous landmark decisions such as Centros, Überseering, and Inspire Art. This article analyses the implications of Cartesio in light of different scenarios of transfer of the registered and the real seat within the European Union. It assesses the interrelations of right of establishment and private international law rules for the determination of the law applicable to companies and concludes that the case law of the European Court of Justice after Cartesio, rather than providing for a coherent system of European company law, leads to arbitrary distinctions and significantly impedes the free movement of companies.

scholarly journals Analysis of ECJ case law on discriminatory treatment of cross-border inheritance tax

2017 ◽  
Vol 1 (1) ◽  
pp. 15-28
Author(s):  
Gracia Luchena
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Free Movement ◽  
Freedom Of Establishment ◽  
Member States ◽  
Cross Border ◽  
Inheritance Tax ◽  
Court Of Justice ◽  
European Court ◽  
Free Movement Of Capital

Recently, the European Commission has launched a package which deals with issues of double taxation and discriminatory tax treatment in the area of inheritance and estate tax. In the paper the Commission discusses ten cases in which the European Court of Justice examined the inheritance tax rules of Member States. In eight out of the ten cases it concluded that the Member States in question breached EU rules on the free movement of capital and/or freedom of establishment. For example, on the 3rd of September 2014, the ECJ entered/made a judgment resolving that the Spanish Inheritance Tax should impose restrictions on the free movement of capital, one of the fundamental principles of the EU’s Single Market. Taking into consideration the merits of the case the Court of Justice finally concluded that the situations between resident and non-resident taxpayers or between goods located in Spain or abroad are comparable and that therefore the applicable tax treatment should be the same.

scholarly journals Transfer of Company's Seat - an Unfolding Story in Europe

2005 ◽  
Vol 36 (2) ◽  
pp. 359
Author(s):  
Carsten Frost
Keyword(s):  
Company Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Freedom Of Establishment ◽  
Member States ◽  
European Company ◽  
Court Of Justice ◽  
European Company Law ◽  
European Court ◽  
Controversial Area

The harmonisation of company law has long been a goal of the European Union. Questions concerning the freedom of establishment have always been both a central and controversial area of European law. The European Court of Justice has decided in favour of the freedom of establishment of EU companies establishing themselves in other Member States in several cases since Centros in 1999, resulting in a discernible and consistent line of authority. The Court has made clear that Member States have to 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. But the decisions have left other important questions open to doubt. The purpose of this article is to examine the consequences of these judgments, not only for European company law, but for related legal areas as well. The paper addresses this issue by giving a short overview on the freedom of establishment under the Treaty Establishing the European Community and on the existing European theories about the transfer of a company’s seat. It then analyses the European Court of Justice cases and their implications. The article argues that the pressure on national legislators that arises from the judgments helps to keep European company law attractive to investors. It concludes that an increased mobility of companies within Europe is necessary if Europe is to remain competitive on an international level, even if the price of this is the abolition of some traditional domestic legal principles.

The European Union’s Community Method: Foundations and Evolution

2018 ◽  
Author(s):  
Youri Devuyst
Keyword(s):  
European Court Of Justice ◽  
European Union Law ◽  
Judicial Control ◽  
Eu Legislation ◽  
Leading Role ◽  
Law And Policy ◽  
Court Of Justice ◽  
The People ◽  
European Court ◽  
Council Of Ministers

The objective of the Community method is to ensure that, in the making, implementing, and enforcing of European Union law and policy, (a) the general European interest is safeguarded by the independent European Commission, which is responsible for proposing new EU legislation; (b) democratic representation of the people and the Member States takes place at the level of the European Parliament and the Council of Ministers, which together form the EU’s legislature; and (c) judicial control is secured by the European Court of Justice. The article traces the historical origins and evolution of the Community method and assesses its continuing relevance against the background of alternative ways of decision making and coordination such as “intense transgovernmentalism” or “deliberative intergovernmentalism,” in which the European Council plays the leading role.

The ECJ's Inspire Art Decision of 30 September 2003 and its Effects on Practice

2003 ◽  
Vol 4 (12) ◽  
pp. 1277-1291 ◽  
Author(s):  
Christian Kersting ◽  
Clemens Philipp Schindler
Keyword(s):  
Company Law ◽  
Foreign Company ◽  
Freedom Of Establishment ◽  
Legal Proceedings ◽  
Host State ◽  
Foreign Companies ◽  
Court Of Justice ◽  
European Court ◽  
Inspire Art ◽  
The Right

In its most recent judicature the European Court of Justice (ECJ) continued its tendency of deciding in favor of the freedom of establishment by holding that rules submitting pseudo-foreign companies to the company law of the host state were inadmissible. It clarified that a foreign company is not only to be respected as a legal entity having the right to be a party to legal proceedings, but rather has to be respected as such, i.e. as a foreign company that is subject to the company law of its state of incorporation. Any adjustment to the company law of the host state is, hence, not compatible with European law. In addition to commenting on the decision and its effects, this article points out potential for corporate restructuring in the field of codetermination.

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