Siedziba rzeczywista spółki jako łącznik unijnego prawa prywatnego międzynarodowego

The real seat is a recognised, although expressed in different terms, connecting factor of the EU international private law, relating to companies in they different legal relations. Under the regulations unifying particular areas of this law, relevant form the point of view of cross-border operations of companies, the real seat is the connecting factor determining the applicable law in the field of contractual and non-contractual obligations, and the company’s bankruptcy. Furthermore, it deretmines the jurusdiction for insolvency proceedings against the company, and i salso a jurisdictional connecting factor for general civil and commercial matters. The real seat connecting factor may also constitute a connecting factor determining the law applicable to company, accectable under the EU freedom of establishement.

EU Freedom Of Establishment And The Theories Of Incorporation In The Context Of Free Movement Of MNEs

The creation of a single market with no internal borders where free mobility is guaranteed is one of the main goals of the European Union. Accordingly, along with certain fundamental freedoms, Treaty on the Functioning of the European Union (TFEU) provides the right of establishment for nationals as well as companies in a territory of another Member State. Accordingly, a decentralized nature of multinational enterprises (MNEs) involves various cross-border operations. The aim of this paper is to explore to what extent these transnational objectives of MNEs can be achieved under the freedom of establishment principle of EU law and incorporation theories of Member States. Firstly, it analyzes different scenarios of company mobility such as transfer of registered office or real seat and transnational mergers. Secondly, it examines the freedom of companies to choose legal forms of their cross-border establishment. Finally, it evaluates the most recent judgment in Polbud case in the light of decisions made in previous cases.

La crisis de identidad del Derecho societario de la Unión Europea. Comentario al asunto Polbud y a cuestiones derivadas = The identity crisis of the European Union’s Corporate Law. A review on the Polbud case and derivated matters

Resumen: La regulación de la vida y muerte de las sociedades es una cuestión que corresponde a cada uno de los Estados miembros de la UE. Ante un quizás interesado desinterés armonizador, ha sido el TJUE el encargado de solventar en la medida de lo posible los problemas que, a la luz de la libertad de establecimiento, ha suscitado la mencionada falta de interés. En este trabajo se comenta de manera crítica la jurisprudencia del mencionado Tribunal y los problemas que evidencia. Tales problemas son, en esencia, las contradicciones entre las regulaciones societarias laxas y estrictas de los diferentes Estados miembros y la gran contradicción: las dos teorías contrapuestas para la determinación de la lex societatis que conviven en territorio europeo.Palabras clave: domicilio social, traslado, sede real, incorporación, empresa, compañía.Abstract: The regulation of life and death of companies is a competence of each EU member states. Due to a lack of interest in harmonizing, the CJEU has been in charge of solving the conflict between the freedom of establishment and the mentioned lack of interest. This paper contains a critical commentary of the case law of the CJEU and the problems that it shows. Such problems are basically the contradictions between the lax and strict corporate regulations of the different Member States and, also, the great contradiction: the two opposed theories for the regulation of the lex societatis that coexist in European territory.Keywords: registered office, transfer, real seat, incorporation, enterprise, company.

The Illusion of Motion: Corporate (Im)Mobility and the Failed Promise of Centros

The European Court of Justice’s landmark decision in Centros was heralded as creating the preconditions for a vibrant market for incorporations in the EU. In practice, however, today’s corporate landscape in Europe differs little from that of the late 1990s. Very few large companies have made use of their ability to subject themselves to the company law of a Member State in which they are not also headquartered, and there are few signs suggesting that a ‘European Delaware’ will emerge in the near future. To the extent that Member States have engaged in competitive law-making, this has largely been confined to minimum capital requirements and rules affecting the ease of the incorporation process—areas concerning primarily micro-companies. We argue that the modest effect of Centros is not only a function of limited economic incentives to engage in regulatory competition and regulatory arbitrage, but also of the fact that the applicability of large sections of relevant laws governing corporate behaviour is determined by real seat-like connecting factors which render regulatory arbitrage more difficult. We analyse the boundaries between the lex societatis and neighbouring legal areas, notably insolvency and tort law, and find that the body of rules regulating a company’s outward-facing activities, as opposed to its internal affairs, is largely removed from regulatory arbitrage. It therefore seems likely that the potential benefits of selecting the applicable company law, while remaining subject to a cocktail of other, equally relevant rules, are sufficiently small to be regularly outweighed by the costs of a complex and non-standard corporate structure that is necessary to exercise free movement rights.

Reincorporations: a comparison between Greek and Cyprus law

Purpose This paper aims to analyse the legal framework of reincorporations and subsequent change of applicable law in Greece and Cyprus. A comparison between Greek Law and Cyprus Law is drawn. This paper highlights possible required reforms. Cyprus has a quite detailed legal framework of voluntary inbound and outbound reincorporations. While Greece has certain provisions on outbound reincorporations, it does not have any provisions on inbound reincorporations. The compatibility of these national provisions with internal market rules, as interpreted by the case law of the Court of Justice of the EU (CJEU), is discussed. Design/methodology/approach This paper follows a comparative approach. After a careful analysis of each national legal framework, a comparison between Greek law and Cyprus law follows. This paper also follows an EU law approach. Findings These two jurisdictions present some differences. Cyprus adopting the incorporation theory has a detailed, sophisticated and flexible legal framework of reincorporations. Although Greece adopting the real seat theory has some special provisions for outbound reincorporations, there are no specific provisions for inbound reincorporations. Inbound reincorporations are possible under Greek law, but the absence of detailed provisions is against legal certainty. Cyprus law on reincorporations could be used as an example for Greek legislature. However, possible EU harmonisation of seat transfers is expected to have an immense impact on national provisions for reincorporations. Practical implications Reincorporations constitute a significant corporate restructuring technique with important practical implications on the economy. Apart from academics, this paper attracts the interest of lawyers, managers, accountants, officers of supervisory and regulatory bodies and policymakers engaged with reincorporations. Originality/value This is one of the few academic papers comparing Greek and Cyprus company law and private international law. It is the first paper that compares the Greek and Cyprus legal framework of reincorporations.

The transfer of the company’s registered office

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).

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

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.

Le rôle de l'État dans l'élaboration des choix énergétiques et le rôle plus spécifique des différentes institutions publiques en France

This paper surveys the role of the key governmental institutions in the making of energy policy in France. It shows that in spite of fairly extensive debate of the issues in both chambers of the French National Assembly since the mid-1970s, members of parliament have so far failed to make a significant impact on decision-making in the field of energy. Part of this is due to the strength of the Cabinet's influence over the National Assembly, and to its constitutional position as policy-maker. Moreover, in spite of a vast array of departmental branches and associated agencies directly under ministerial authority, the government's power may have been more formal than real. Much of the actual decision-making is made by experts employed by the large State or privately-owned corporations. This extensive network of closely connected energy-producing corporations appears to have been, and to remain, the real seat of power, in spite of recurrent hopes for, and attempts at, democratization.