This master's thesis deals with the question of admissibility of limitations on cross-border transfer
of both real and registered company’s office in the light of freedom of establishment, which is
encompassed in Articles 49 and 54 of the Treaty on the Functioning of the European Union. The
field of cross-border transfer of seat has not been regulated at the European Union level for a long
time. Thus, in order to understand the applicable law on cross-border transfer of seat, this master's
thesis analyses the case law of the Court of Justice. Based on the said case law, conclusions are
drawn on the admissibility of cross-border transfers of company’s seat in European Union law
considering different situations depending on whether the company is transferring its registered or
real office and whether it is immigrating to the host Member State or emigrating from the home
Member State. Furthermore, the different situations are also analysed depending on whether a
Member State adheres to the theory of the legal seat or the real seat theory.
In this master's thesis I comment on the various conclusions of the Court of Justice of European
Union, developed on the issue of immigration and emigration of the registered and real office. In
the last part, the thesis also touches on the fourteenth Directive in the field of cross-border transfer
of seat, which introduced the right to cross-border transfer of a registered office, as developed by
the Court of Justice in its case law. Finally, the master's thesis also touches on the Slovenian
regulation and rules for the assessment of the applicable company law, as well as the irrationality
of insisting on the real seat theory.
|
