Eddy Wymeersch

The transfer of the company’s seat in European company law

WP 2003-03

After the Centros case in 1999, the Europe Court of Justice has again, delivered a significant judgment dealing with the legal situation of cross-border establishment in the EU by companies establishing themselves in other Member States. In the Überseering case of November 5, 2002, the Court basically holds that Member States should allow 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.The case constitutes another landmark on the road towards the more free circulation of companies in Europe. Whether it introduces the incorporation theory as the European rule, is open to doubt, as the Court has exclusively relied on the Treaty rules on free establishment. It seems that the Court has rather developed a new approach that could allow to bridge the differences between incorporation and real seat techniques. The paper deals with three items; a short overview of the existing opinions on the seat transfer in several of the European jurisdictions, an analysis of the Überseering case and its implications, an analysis of the rules, in the Regulation on the Statute for a European Company, of the rules on the transfer of the seat and the effect of the Überseering ruling on these provisions.