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Andra Rubene made a presentation at the Conference “Current commercial law issues in the European Union”

20.05.2011

On 18 May 2011 Andra Rubene participated in the conference of law scientists and practitioners on the commercial law in the European Union organised by the Ministry of Justice in cooperation with the Riga Graduate School of Law.

Andra Rubene provided an overview on the types of moving the registered address within the scope of the EU law.

The attorney at law analysed the respective EU case law – cases Daily Mail and General Trust, Centros, Überseering, Inspire Art, SEVIC Systems and Cartesio. Andra Rubene stated in the aforementioned cases the ECJ had concluded that due to the fact that the EU law does not provided for a unified definition on the joining factor prescribing the law applicable to companies, such factor is determined by the laws applicable in the member states. In order to determine unified principles for cross-border movement of the registered address within the EU, a directive or a convention of the member states would be necessary for harmonisation of the laws of the member states. However, since such laws and regulations have not yet been developed, there are differences in the legal regulations among the member states. Due to such differences and due to lack of the necessary laws and regulations harmonising the differences the articles of the Treaty on the European Community do not contain prohibition of the laws of the member states denying the rights of the companies moving their head office to another country concurrently maintaining its registration in accordance with the laws of the country of registration.

The attorney at law concurrently pointed at the interruption in the work at the EU legislation initiative with respect to the cross-border movement of the registered address of a company.

Andra Rubene has concluded that until development of a special regulatory enactment on the cross-border movement of the registered address of a company:

• The companies subject to the laws of the member states may in principle move their head office, while the movement of the registered address is not possible → Article 49 of the Treaty on the Functioning of the European Union (Article 43 of the EC Treaty) and Article 54 of the Treaty on the Functioning of the European Union (Article 48of the EC Treaty) do not fully resolve that situation;
• Companies – EEG (European Economic Interest Grouping), SE (Societas Europaea) and SCE (Societas Cooperativa Europaea), subject to the EU regulations may move their registered address in accordance with the respective regulations;
• Companies – SPE (Societas Privata Europaea), which are intended to be subjected to the EU regulation, will be able to move their registered address in accordance with the respective regulation;
• (implicitly) Companies of other types may be moved by liquidating the current company and establishing a new one;
• (implicitly) SIA, AS and others may be moved in principle by establishing a new company in the host country, which will be merged with the existing company by way of cross-border merger;
• (implicitly) AS, which has had a daughter company in another member state for a period of at least 2 years and has a share capital adequate for SE, as well as which has complied also with other requirements, may be moved by transforming the company into SE, which will thereafter move the registered address abroad.

Please see the presentation here (available in Latvian language).

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