Description
Book SynopsisThis book responds to the current intriguing questions concerning the impact of the choice of law rules on the free movement of companies by analysing the most recent ECJ decisions, EU legislature and doctrine. It addresses vigorous discussions and a multitude of legal issues concerning European company law, comparative law and private international law in way that is useful both for the legal practitioners and academics. The author studies in great detail the ECJ's attitude towards the different connecting factors in private international law. This analysis is developed through a functional presentation of the case law concerning the distinction between the transfer of the real seat on the one hand and the registered office on the other. This method emphasises the consistent approach of the ECJ as well as ensures a clear functional analysis of both immigration and emigration of companies. In view of this background, the existing harmonisation measures as well as the planned directives and regulations (the company law directives and supranational company forms like the European Company and the planned European Private Company) are also outlined. The author furthermore advocates an active harmonisation process. Apart from the European level, the legal doctrines from several Member States are discussed as well. All this provides a wide and up-to-date picture of current European company law and how it is shaped by private international law. About the book 'Ms Myszke's book rests upon a close analysis of pertinent sources and sheds light on the many issues concerning the relationship between a company's right of establishment and conflict of laws. The thesis developed by Ms Myszke will certainly inspire and convince readers, thanks to her systematic approach, the detailed examination of cases, legislation and doctrine and the elaboration of sound and creative points of view.' Prof. dr. Johan Meeusen, Full Professor of European Union Law and Private International Law, University of Antwerp (Belgium)
Trade Review'Ms Myszke's book rests upon a close analysis of pertinent sources and sheds light on the many issues concerning the relationship between a company's right of establishment and conflict of laws. The thesis developed by Ms Myszke will certainly inspire and convince readers, thanks to her systematic approach, the detailed examination of cases, legislation and doctrine and the elaboration of sound and creative points of view.' Prof. dr. Johan Meeusen, Full Professor of European Union Law and Private International Law, University of Antwerp (Belgium)
Table of ContentsPreface Chapter I. Introduction: "United in Diversity" Chapter II. Freedom of Establishment as a Fundamental Freedom 1. The concept of the internal market 2. Legal basis of freedom of establishment 2.1. Balance of interests 2.2. Direct effect 3. The scope of freedom of establishment 3.1. Broad interpretation of freedom of establishment 3.2. Cross-border element 3.3. The issue of regularity, periodicity and continuity 4. Beneficiaries - Legal persons and companies 4.1. Definition of a company 4.2. Nationality of a company 4.3. Nationality versus registered office, central administration and principal place of business 4.4. Real and continuous link with the economy of a Member State 4.5. Economic objective 5. Types of establishment 5.1. Primary establishment 5.2. Secondary establishment 5.2.1. 'Agency', 'Branch' or 'Subsidiary' 5.2.2. Non-exhaustive indication in article 49 of the TFEU 5.2.3. The Segers case - Is the 'continuous link ' still required? 6. Definition of restrictions 6.1. Discriminatory measures 6.2. Non-discriminatory measures 7. Justifications of restrictions 7.1. Discriminatory measures 7.2. Non-discriminatory measures 8. Conclusions Chapter III. Impact of the Internal Market on National Choice of Law Rules 1. Private international law and European integration 1.1. Private international law versus European Union law 1.2. Sources of private international law in the EU legal system 1.2.1. EU instruments and international treaties: Treaty of Rome, Brussels and Rome Conventions (Brussels I, Rome I and Rome II). 1.2.2. Brussels I Regulation and the Treaty of Amsterdam 1.2.3. Private International Law in the TFEU 1.2.4. The decisions of the European Court of Justice 2. Choice and interpretation of a relevant connecting factor 2.1. Definition of a connecting factor 2.2. The real seat principle 2.2.1. Comparative law remarks 2.2.2. Different variants of the real seat theory 2.2.2.1. The main place of establishment 2.2.2.2. The place where the management of a company is located 2.2.2.3. 'The criterion of control' ('critere du controle') 2.2.2.4. Place of general meetings of shareholders or board of directors 2.2.2.5. Real seat (centre of administration) 2.2.3. Determination of the real seat 2.2.3.1. Divided management 2.2.3.2. Auxiliary connecting factors 2.2.4. The advantages of the real seat doctrine. 2.2.5. The disadvantages of the real seat doctrine 2.2.5.1. Multiple or no company's seat 2.2.5.2. Restrictive character as to the freedom of establishment 2.3. The incorporation principle 2.3.1. Comparative law remarks 2.3.2. Statutory seat 2.3.3. Pros and cons of the incorporation theory 2.3.3.1. The advantages of the incorporation theory 2.3.3.2. The disadvantages of the incorporation theory 2.3.4. To reconcile - Modified versions of the incorporation theory 2.3.4.1. 'Differentiation theory' (Diff erenzierungslehre) 2.3.4.2. 'Limited theory of incorporation' (eingeschrankte Grundungstheorie) Intersentia 2.3.4.3. 'Theory of the overlapping statutes' (Uberlagerungs-theorie) 2.3.4.4. 'Combined theory' (Kombinationslehre) 3. Conclusions Chapter IV. The Analysis of the European Court of Justice's Approach Towards the Two Choice of Law Theories 1. Transfer of the real seat 1.1. Introduction 1.2. Judgments of the European Court of Justice 1.2.1. The Daily Mail judgment 1.2.1.1. Facts 1.2.1.2. Private international law 1.2.1.3. Any impact on the relation between the real seat and incorporation theories? 1.2.2. The Centros judgement 1.2.2.1. Facts 1.2.2.2. Private international law 1.2.2.3. Reference to recognition? 1.2.2.4. Measures aiming to prohibit the circumvention of national rules 1.2.3. The Uberseering judgement 1.2.3.1. Facts 1.2.3.2. Private international law 1.2.3.3. Substantive law versus choice of law 1.2.3.4. The answer to the second question - Open gates for the incorporation theory? 1.2.4. The Inspire Art judgment 1.2.4.1. Facts 1.2.4.2. Private international law 1.2.4.3. Justification of restrictions? 1.2.4.4. No twofold application of the choice of law rules 1.2.5. The Cartesio judgement. 1.2.5.1. Facts 1.2.5.2. Private international law 1.2.5.3. Conclusions 1.2.6. The National Grid Indus judgement 1.2.6.1. Facts 1.2.6.2. Private international law 1.2.6.3. Conclusions 2. Transfer of the registered office 2.1. Benefits and disadvantages of the transfer of the registered office 2.2. Judgments of the European Court of Justice 2.2.1. The Segers judgment 2.2.1.1. Private international law 2.2.1.2. Definition of a connecting factor 2.2.2. The Vale judgment 2.2.2.1. Facts 2.2.2.2. Private international law 2.2.2.3. Conclusions 2.2.3. The Sevic judgement 2.2.3.1. Facts 2.2.3.2. Private international law 2.2.3.3. Status quo maintained 3. Principle of diversity 3.1. No preference for a particular choice of law rule 3.2. Diversity of company laws 3.3. Diversity of legal paradigms 4. Mutual recognition principle 4.1. The concept of mutual recognition of foreign companies 4.2. Mutual recognition and case law 4.3. Limits on change of applicable law 5. Possible outcome of the transfer of seat 5.1. Choice of law rules and substantive law of the home Member State. 5.2. Choice of law rules and substantive law of the host Member State 5.3. Inconsistencies 5.4. Conditions for transfer of seat 5.5. No voluntary change of applicable law 6. Conclusions Chapter V. Harmonisation. 1. Concept of harmonisation 2. Existing legislation 2.1. Company Law Directives 2.2. Capital regulation and the ECJ case law 2.3. Cross-border mergers 2.3.1. Introduction 2.3.2. The need for cross-border mergers 2.3.3. Mergers and transfers of registered seats 2.3.4. Private international law xii Intersentia 2.4. The European Company (SE) 2.4.1. Introduction 2.4.2. Transfer of seat 3. Planned legislation 3.1. Transfer of seat 3.1.1. Objectives 3.1.2. Does the Community have the right to act? 3.1.3. The Fourteenth Directive on Transfer of Seat 3.1.3.1. Introduction 3.1.3.2. Background 3.1.3.3. Current framework 3.1.3.4. Conclusions 3.2. The European Private Company 3.2.1. Introduction 3.2.2. History 3.2.3. EPC with a truly European nature 3.2.4. Pros and cons 3.2.5. A genuine European Company? 3.2.6. Transfer of the registered office 3.2.7. Summary 4. Conclusions Chapter VI. Conclusions Common application of the incorporation principle Bibliography 1. Literature 2. Case Law 3. Legislation 4. Other
