Grenzüberschreitender Formwechsel

2020 ◽  
Author(s):  
Mike Karl Schmidt
Keyword(s):  
Case Law ◽  
Company Law ◽  
Practical Implementation ◽  
Legal Certainty ◽  
Commercial Law ◽  
High Expectations ◽  
Applicable Law ◽  
Cross Border ◽  
The Cross ◽  
First Time

Can the long-awaited Company Law Package fulfill the high expectations and the need for legal certainty for the cross-border conversion? The aim of this dissertation is to examine the Company Law Package in detail by analyzing European and German case law and taking into account the (still) applicable law regarding the cross-border conversion. This analysis can be divided into two central facets: 1. The Digitalization Directive will be evaluated under commercial law publicity in order to determine whether the "bridging" between the registers of the country of departure and the country of immigration succeeds which is essential for the cross-border conversion. 2. The Mobility Directive provides a procedural regime for the first time that is being examined with regard to its current practical implementation.

scholarly journals The transfer of the company’s registered office

2016 ◽  
Vol 37 (1) ◽  
pp. 449-466 ◽  
Author(s):  
Saša Prelič ◽  
Jerneja Prostor
Keyword(s):  
Case Law ◽  
Company Law ◽  
Freedom Of Establishment ◽  
Legal Form ◽  
Cross Border ◽  
Court Of Justice ◽  
Registered Office ◽  
Real Seat ◽  
The Cross ◽  
The Eu

In the light of the relevant case law of The Court of Justice of the EU it is emphasized that the cross-border transfer of company’s registered office (and its real seat) must be permitted in accordance with the Treaty on the Functioning of the EU. Nevertheless, the Fourteenth Company law Directive should be adopted for the reasons of legal certainty and it should determine, whether the transfer of the registered office (without transfer of company’s real seat) to another Member State is admissible or not. Furthermore, the authors discuss the cross-border restructuring of the company, which in addition to relocation of the registered office also includes a change of its legal form. The Court of Justice of the EU has not yet decided on such cross-border restructuring, nevertheless it should be allowed based of the freedom of establishment (cross-border formal transformation).

scholarly journals Harmonization of EU law on cross-border movement of companies

2020 ◽  
Vol 58 (3) ◽  
pp. 81-116
Author(s):  
Tatjana Jevremović-Petrović
Keyword(s):  
Legal Framework ◽  
Business Environment ◽  
Company Law ◽  
Minority Shareholders ◽  
Applicable Law ◽  
Market Participants ◽  
Cross Border ◽  
European Court ◽  
And Control ◽  
First Time

In this paper the author presents an overview of the EU legal framework for cross-border company's mobility. It gives a historic background to various obstacles related to cross-border mobility and puts it into the context of the European Court of Justice decisions on the various issues of right of establishment. EU Company Law Directive on Cross-border Mobility regulates cross-border conversions (resulting in the change of applicable law and at least registered seat of the company) and cross-border divisions for the first time. It also improves already existing regime for cross-border mergers. Directive on CrossBorder Mobility gives an opportunity for various internal market participants, including economically strong as well as smaller business forms to use advantages of predictable, efficient legal procedure to perform cross-border operations. It includes various harmonization instruments in order to protect interests of (minority) shareholders, creditors and employees. Double control, including issuance of the pre-merger certificate in the country of origin and control of the procedure in the destination country before cross-border procedure has been registered and becomes effective provides for optimal co-ordination of national authorities, and offers safe business environment for various market participants.

scholarly journals Problematyka uchwał negatywnych i uchwał nieistniejących organów spółek kapitałowych

2018 ◽  
Vol 25 ◽  
pp. 27-40
Author(s):  
Tomasz Piotrowski
Keyword(s):  
Critical Analysis ◽  
Case Law ◽  
Company Law ◽  
Commercial Law ◽  
Legal Provisions ◽  
Legal Nature ◽  
Legal Structures

Issues connected with negative resolutions and non-existent resolutions of bodies of capital companiesThis article is devoted to the issue of the admissibility of distinguishing negative resolutions and non-existent resolutions adopted by bodies in capital companies. The current legal provisions do not contain explicit regulations that allow or prohibit the existence of these legal structures. However, the fact whether it is possible to separate them is not only doctrinal, but also above all practical. This work considers the legal nature of the resolution as a legal act and also presents the most important problems regarding the admissibility of negative and non-existent resolutions. The aim of the article is to assess the admissibility of these structures on the basis of regulations and general principles of company law. The arguments adopted both by the representatives of the commercial law doctrine, as well as the analysis of the thesis from the case-law, which have the most significant impact on the solution to the problem, were presented. Critical analysis of the concept of non-applicable regulations and non-compliant with the rules of economic turnover were also made.

scholarly journals Der Kernbestandsschutz der Unionsbürgerschaft

2019 ◽  
Author(s):  
Christina Neier
Keyword(s):  
Traditional Approach ◽  
Case Law ◽  
Eu Law ◽  
Citizenship Rights ◽  
Cross Border ◽  
The Status ◽  
The Cross

Traditionally, the application of EU citizenship rights is conditioned on the existence of a cross-border element. In the two landmark decisions Rottmann and Ruiz Zambrano, the CJEU deviated from this traditional approach. According to this case law, EU citizens are protected by EU law in situations in which they lose their EU citizenship or are, in fact, forced to leave the territory of the Union even if they have not exercised their right to move. With this new doctrine, the step from the ”cross border paradigm” to the ”status paradigm” is taken. This study provides a doctrinal structure of the CJEU case law and explores the underlying general guarantee in order to clarify the scope and potential of this new concept in EU citizenship law. This book is therefore likely to be of interest to both practitioners and legal scholars.

scholarly journals Defamation on Social Media

2021 ◽  
Vol 5 (1) ◽  
pp. 121-134
Author(s):  
Sandra Sakolciová
Keyword(s):  
Social Media ◽  
International Law ◽  
Case Law ◽  
Legal Framework ◽  
Status Quo ◽  
Private International Law ◽  
Online Environment ◽  
Negative Effects ◽  
Applicable Law ◽  
Cross Border

There is no doubt that social media have become a very important part of many people’s everyday life. The consequences of their usage is an increased engagement in defamation, most likely due to the aspect of anonymity present in the online environment. Such cross-border (or more precisely border-less) defamation raises difficult challenges in terms of jurisdiction and applicable law. These challenges, which will be analysed in more detail in the article, remain unresolved up until today. Moreover, negative effects occur not only within private international law itself, but status quo significantly influences the exercise of basic human rights, too. Besides analysing the existing EU legal framework and applicable case-law, the article also looks into the possible alternatives.

32 Sweden

2018 ◽  
Author(s):  
Stambolovski Zoran
Keyword(s):  
Case Law ◽  
Applicable Law ◽  
Cross Border ◽  
Contractual Arrangements ◽  
The Law ◽  
The Right

This chapter discusses the law of set-off in Sweden. Set-off in Sweden has developed through case law and legal commentary although legislation has been considered necessary in certain areas such as bankruptcy. The legal landscape of set-off can be divided into two sets of principles, those applying outside bankruptcy and those applying in bankruptcy. The chapter first considers set-off between solvent parties, focusing on set-off after a transfer of the principal claim, contractual arrangements, and set-off as security interests. It then examines set-off against insolvent parties, with emphasis on restrictions regarding the right of set-off in bankruptcy, recovery of set-off effected before bankruptcy, and close-out netting. It also analyses cross-border issues with respect to applicable law for set-off outside bankruptcy, applicable law for set-off in bankruptcy, and the conditions for cross-border set-off under Swedish law.

The International Dimension: Cross-border Groups

2016 ◽  
Author(s):  
Michael Schillig
Keyword(s):  
Global Financial Crisis ◽  
Applicable Law ◽  
Cross Border ◽  
The Us ◽  
Key Issues ◽  
The Cross ◽  
Model Law ◽  
The Global Financial Crisis ◽  
Financial Groups ◽  
Group Law

The difficulties associated with the supervision and failure resolution of cross-border financial groups were among the key issues that came into renewed focus as a result of the global financial crisis. The cross-border dimension affects the recovery and resolution process in its entirety from the initial planning phase right through to liquidation. The chapter summarizes the elements of cross-border group law mentioned in previous chapters. It looks briefly at the US framework and the changes introduced through the Dodd–Frank Act. It discusses international jurisdiction of authorities and courts, the applicable law that governs proceedings, and the recognition and effects of foreign proceedings, in particular, in accordance with Directive 2001/24/EC on the reorganization and winding up of credit institutions and investment firms and the UNCITRAL Model Law on Cross-Border Insolvency. It also analyses the new European framework for co-operation in the cross-border group resolution context.

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.

scholarly journals Exit Taxation as an Obstacle to Corporate Emigration from the Spectre of EU Tax Law

2011 ◽  
Vol 13 ◽  
pp. 245-281
Author(s):  
Christiana Hji Panayi
Keyword(s):  
Case Law ◽  
Tax Law ◽  
Investment Strategies ◽  
Cross Border ◽  
Tax Legislation ◽  
The Cross ◽  
The Impact ◽  
Direct Tax ◽  
Cross Border Movement

AbstractIn this chapter I examine how the cross-border movement of companies may be affected by some tax rules and I consider the impact of EU law on such rules. The examination is in the context of the case law of the Court of Justice and the limited EU direct tax legislation. I assess how these affect the cross-border movement of companies as well as their investment strategies. I conclude by considering whether this is a satisfactory way of dealing with the issues. The contents of this chapter are based on materials available up to 1st March 2011.

scholarly journals Libertad de testar y libertad de elegir la ley aplicable a la sucesión = Freedom of testation and freedom of choice of the law applicable to the succession

2018 ◽  
Vol 10 (2) ◽  
pp. 376
Author(s):  
Josep María Fontanellas Morell
Keyword(s):  
Legal Certainty ◽  
Freedom Of Choice ◽  
Estate Planning ◽  
Choice Of Law ◽  
Applicable Law ◽  
Cross Border ◽  
Directorate General ◽  
The Law

 Resumen: De entre las aportaciones del Reglamento 650/2012, relativo a las sucesiones transfron­terizas, sobresale la introducción de la elección de la ley sucesoria por parte del causante. Para justificar la institución y su inclusión en el instrumento europeo es fácil imaginar una suerte de correlación natural entre la libertar de testar existente en Derecho civil y la posibilidad de designar la ley aplicable propia de las herencias internacionales. Con todo, la doctrina prefiere invocar la seguridad y previsibilidad que la professio iuris proporciona en la planificación de la sucesión. No es ésta, sin embargo, la línea que está siguiendo la jurisprudencia registral española, pues, en sus resoluciones, se ha basado más en la libertad de testar que en la seguridad jurídica.Palabras clave: sucesión mortis causa, libertad de testar, sucesiones internacionales, elección de la ley sucesoria, elección tácita, seguridad jurídica.Abstract: Among the features of Regulation 650/2012, on cross-border successions, the introduc­tion of the testator’s choice of the succession law stands out. In order to justify the institution and its inclusion in the European instrument, it is easy to imagine a kind of natural correlation between the free­dom of testation, granted by national law, and the possibility to select the applicable law which is charac­teristic of international inheritances. Nevertheless, scholars tend to invoke the security and predictability that professio juris provides in the estate planning. Yet resolutions stemming from Directorate General for Registries and Notary Affairs are based more on the freedom of testation than on legal certainty.Keywords: succession upon death, freedom of testation, cross-border successions, choice of law, tacit choice of law, legal certainty

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