Thursday 6 November 2008 12:45 pm

Venue: Oxford Law Faculty SCR

Organised by Financial Law Discussion Group

Speaker: Professor Federico M. Mucciarelli (University of Modena and Reggio Emilia, Italy)

Federico M. Mucciarelli is associate professor of business law at the University of Modena and Reggio Emilia, Italy, faculty of economics, where he teaches general business law and advanced company law. He held a law degree from Bologna University (1996), an LL.M. from Heidelberg University (2001) and a PhD from Brescia University (2003). Bar exam: 2000. He worked for the Italian central bank and was assistant professor at Bologna University, faculty of economics. He wrote several articles, both in Italian and English on company law, takeover law (monographic work on defensive measures, 2004) and companies’ freedom of establishment). federicomaria.mucciarelli@unimore.it

Programme:

After the recent ECJ’s case-law on EC freedom of establishment (cases Centros, Überseering and Inspire Art), regulatory competition for corporate laws takes place within the EU at the early stage of the incorporation of new companies. On the contrary, as regarding the “moving-out” of companies from the country of incorporation, ECJ case-law appears not to be as coherent. The leading case for companies’ “moving-out” is considered to be the ECJ decision in case Daily Mail (1988), where a tax law restriction against the transfer abroad of the administrative seat was declared as compatible with EC freedom of establishment; other ECJ decisions, on the contrary, affirmed that EC freedom of establishment prohibits Member States of origin from hindering the establishment in another Member State of one of their companies (ICI 1998 and Marks & Spencer 2005). ECJ will probably clarify this issue in deciding on the case Cartesio, which was submitted during 2006 by an Hungarian court, but it is not clear whether this case is related to the transfer abroad of the registered office or the transfer of the administrative seat. However, it is still debated the question as to whether EC freedom of establishment covers also the transfer abroad of the registered office, since such transfer usually triggers a change of the applicable company law. Indeed, the registration in a public register plays a crucial role for public companies and limited liability companies, which cannot be created and exist without “their” register (as stated also by the first company directive); therefore, the register and the applicable law should necessary coincide and companies cannot transfer the registration without changing the applicable company law, providing that both the country of departure and the country arrival accept such transfer. Therefore, we can argue that the real issue at stake is not the transfer abroad of the statutory seat but the transfer of the registration. Many EU Member States still do not accept this transfer, independently from the conflict law theory they apply (ie: also in many countries following the incorporation theory, such as UK, a change of the applicable company law is not admitted), but many other accept that companies have a domicile of choice and a recent reform of German company law confirms this general trend towards free movement of companies throughout the EU.