THE TRANSFER OF A COMPANY SEAT TO A DIFFERENT MEMBER STATE IN THE LIGHT OF THE RECENT „POLBUD“ DECISION

Abstract

This paper observes the transfer of a company seat to a different Member State as an expression of the EU freedom of establishment. The reason for such analysis is the recent and somewhat controversial “Polbud” decision. The Court decided that a company enjoys the freedom of establishment to transfer its registered seat to another Member State despite the fact that it will not perform any economic activity there. In addition, the Court held that the mandatory liquidation of a company goes beyond what is necessary to protect the legitimate interests of minority shareholders, creditors, and employees. The paper scrutinizes both findings. A special attention is devoted to the role of an actual economic activity for the notion of the freedom of establishment. The paper arrives to the conclusion that, along with the freedom to actually perform economic activity, the freedom of establishment includes the freedom to use all national legal forms suitable for performing of an economic activity. As to the second finding, although it is possible that the mandatory liquidation indeed goes beyond necessary, the Court failed to demonstrate that this was the case.