By Benedikt Pirker
Last week, the Court handed down a decision on the provisions of the Agreement on the Free Movement of Persons (AFMP) between Switzerland and the EU. It denied that a French national who had moved to Switzerland and who wanted to rely on the AFMP’s freedom of establishment provisions to challenge a French legal mechanism of exit taxation on unrealised capital gains could do so. The case is of interest for those following Swiss-EU relations, as the ECJ had (and missed) the opportunity to say more on the rather specific version of freedom of establishment enshrined in the Agreement. At the same time, there are also certain lessons to be learned for the interpretation of future agreements of the EU with third countries dealing with access to the internal market and the free movement of persons (looking at you, Brexit). Arguably, there is a certain meandering in the reasoning of the Court on the AFMP, and this latest case seems to demonstrate a return to the early days of a more restrictive interpretation, based to a substantial degree on the fact that Switzerland has said no to the internal market. Below, I will briefly explain the facts of Picart and the decision of the Court. Then, I will examine in more depth the above claim on the Court’s shift in interpretive methodology and the alternative approaches to the interpretation of the AFMP that could have been taken. Continue reading
On 12 July 2012 the European Court of Justice (ECJ) ruled in the VALE case (C-378/10) that
“Articles 49 TFEU and 54 TFEU are to be interpreted as precluding national legislation which enables companies established under national law to convert, but does not allow, in a general manner, companies governed by the law of another Member State to convert to companies governed by national law by incorporating such a company.”
The case concerned a cross-border conversion of a company established under Italian law, VALE Construzioni Srl, into a company incorporated under Hungarian law, VALE Építési kft. Under Italian law it is possible for a company to convert into a company established under foreign law. Under Hungarian law only companies incorporated under the law of Hungary are allowed to convert. The VALE case is the ‘mirror image’ of the Cartesio case (C-210/06) which concerns a transfer of a registered office of a company under Hungarian law to Italy without a conversion. In the Vale case the Court stated that a Member State may restrict a company governed by its law to retain the status of the company established under the law of that Member State if the company intends to move its seat to another Member State, thereby breaking the connecting factor required under the national law of the Member State of incorporation. However, the Member State of origin of that company cannot prevent a company from converting itself into a company governed by the law of the other Member State, to the extent that it is permitted under that law to do so.
In its Cartesio judgment (C-210/06) the Court ruled that “as Community law now stands, Articles 43 EC and 48 EC are to be interpreted as not precluding legislation of a Member State under which a company incorporated under the law of that Member State may not transfer its seat to another Member State whilst retaining its status as a company governed by the law of the Member State of incorporation.”
The Court also stated that a Member State has the power to define the connecting factors to determine whether a company is incorporated under the law of that Member State. However this power “enjoys any form of immunity from the rules of the EC Treaty on freedom of establishment, cannot, in particular, justify the Member State of incorporation, by requiring the winding-up or liquidation of the company, in preventing that company from converting itself into a company governed by the law of the other Member State, to the extent that it is permitted under that law to do so”.
This judgment confirms the necessity of harmonizing the regimes of cross border transfer of company seat within the European Union, but it does not provide any clarification.
Considering the developments in the case law of the Court as well as the Stockholm Programme and its implementation, the European Parliament (EP) adopted a resolution on cross border transfer of company seat within the European Union on 2 February 2012. In the resolution, the EP requests the European Commission to swiftly submit a proposal for a directive on cross border transfer of company seat.