Study on the Law Applicable to Companies

June 2016

Study on the Law Applicable to Companies

While the case law of the Court of Justice has been supportive of foreign incorporations and cross-border corporate mobility in Europe, many problems still persist in practice. This report analyses these practical problems and the relevant domestic rules, followed by normative recommendations.

First, the statistical analysis revealed that corporate mobility is only a partial reality in the EU. Second, an empirical survey of lawyers from all Member States found, inter alia, that there is considerable legal uncertainty regarding the subject matter of this report in many of the Member States and that respondents support a possible harmonisation of conflict of laws rules. Third, the comparative part of the report provides a thorough analysis of the conflict of laws rules applicable to companies in all 28 Member States, based upon reports drafted by national correspondents from each Member State. Fourth, in the normative analysis, we recommend harmonisation of the relevant conflict of laws rules in a new ‘Rome V Regulation’. This should generally be based on the incorporation theory, but it should also provide tools to protect the public interests of host Member States.

The study also provides suggestions for a possible directive on seat transfers.

Client: European Commission - DG for Justice and Consumers

Authors: Carsten Gerner-Beuerle, Federico M. Mucciarelli, Edmund-Philipp Schuster & Mathias M. Siems

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