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.