By Niovi Vavoula
Diego Acosta Arcarazo and Cian C Murphy (eds.) EU Security and Justice Law after Lisbon and Stockholm, Hart Publishing 2014, 211 pages, ISBN: 978-1-84946-422-2
Myriads of pages have been written about the impact of the Lisbon Treaty and the Stockholm Programme in the development of an EU ‘Area of Freedom, Security and Justice’ (AFSJ). This volume, edited by Diego Acosta Arcarazo and Cian Murphy and including a foreword by Sir Francis Jacobs, aims at adding to the existing literature. In particular, it takes stock of the legal developments in the field after Lisbon and Stockholm and provides an evaluation on what has been achieved and where there are still shortcomings. The publication of the volume comes at an interesting time; it coincides with the end of the transitional period, signifying that the Court of Justice of the EU (CJEU) and the Commission will assume their full powers over the former third pillar and the pick-and-choose relationship of the United Kingdom with the field will reach a crossroads. Besides, a new multi-annual Programme (named after Rome or any other Italian city) will be adopted by the European Council.
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.