Professor Johan Meeusen of the University of Antwerp wrote an interesting contribution on corporate mobility and the internal market in Europa als Rechts- und Lebensraum, Liber amicorum für Christian Kohler zum 75. Geburtstag am 18. Juni 2018 (Bielefeld, Gieseking, 2018). A quote:
“The Polbud case raises many interesting questions on freedom of establishment and corporate mobility in the internal market, including the private international law aspects involved. AG Kokott’s nuanced Opinion, which proposed the ECJ to recognize only a qualified right to cross-border conversion through the sole transfer of the registered office, was in our view very convincing, but was rejected by the Court. The Court’s liberal approach, based upon a strict reading of Articles 49 and 54 TFEU, recognizes cross-border transfer of a company’s registered office as a right under the freedom of establishment. Hence, the ECJ gives a strong impulse to cross-border conversion but as well to party autonomy and regulatory competition; it also sheds doubts on the viability of the real seat theory.
Even if one disagrees with the Court’s position, one must admit that the clarification brought by the Polbud judgment comes at the right moment, as new EU legislation on corporate mobility and the determination of the lex societatis appears at the horizon. The adoption of Union legislation on the determination of the lex societatis and corporate mobility including seat transfer and (other aspects of) cross-border conversion, is to be welcomed. As far as the applicable law is concerned, the new legislation should confirm the incorporation theory in a way that sufficiently integrates the real seat concerns. That is, however, easier said than done, as the issues involved are most sensitive and strongly affect Member State interests.”