CONVERSION OF A FOREIGN COMPANY INTO A NATIONAL COMPANY IN LIGHT OF THE COURT OF JUSTICE OF THE EUROPEAN UNION’S DECISION IN THE VALE CASE

Abstract

The CJEU’s decision of 12 July 2012 in C-378 10 (VALE Építési Kft) case is of a precedent nature and concerns the scope of exercising the right to transform a company, which is one of the main rights under the principle of the freedom of establishment. A different treatment of companies depending on whether the conversion is of a national or a cross-border character constitutes a restriction of the freedom of establishment within the meaning of articles 49 and 54 TfEU). In the absence of secondary European law to regulate cross border conversions of companies, national legislation of both states: that of the company’s origin and that of the host state to which the company is moved should be applied cumulatively, with a particular attention to the provisions governing the formation of a national company. National regulations that are taken into account when a cross-border conversion takes place must not unjustifiably infringe upon the prohibition to restrict freedom of establishment or the principle of equivalence and effectiveness. The CJEU’s position on directive 14 was articulated expressis verbis as the Court has emphasised that the EU provisions on harmonisation of laws ‘have been certainly useful for facilitating crossborder conversions.’ However, the ruling in Vale case still leaves open the question whether the subject of directive 14 was intended to be limited to the harmonisation of provisions governing a crossborder transfer of the company’s seat only or whether it was to include the transfer of its actual residence as well.