Brexit and EU rules on company law

A Notice to Stakeholders was recently published on the website of the European Commission, DG Justice and Consumers, regarding legal repercussions which need to considered (if and) when the United Kingdom becomes a third country.

As of the withdrawal date, UK incorporated companies will be(come) third country companies and therefore not automatically be recognised under Article 54 TFEU by the Member States. They may, however, be recognised in accordance with each Member State’s national law (private international law rules concerning companies and the subsequently applicable substantive company law), or international law treaties. Continue reading “Brexit and EU rules on company law”

Let’s get physical

Vananroye & Lindemans in Liber amicorum Braeckmans over vrije keuze en verandering van toepasselijk vennootschapsrecht

In het Liber amicorum Herman Braeckmans schrijven Vananroye & Lindemans over vrij keuze van vennootschapsrecht (“werkelijke zetel” vs “statutaire zetel) en over de verandering van dat toepasselijke vennootschapsrecht (“internationale zetelverplaatsing”.  Daarbij schenken ze ook aandacht aan de nood voor duidelijke bepalingen  omtrent grensoverschrijdende ‘fysieke’ herstructureringen: Continue reading “Let’s get physical”

Vis attractiva concursus and its limits

In its judgment of 9 November 2017, the Court of Justice has limited the principle of vis attractiva concursus, i.e. the principle that ancillary proceedings may be attracted to, and brought before, the forum concursus. The Court ruled that article 3(1) of the (old) Insolvency Regulation must be interpreted as meaning that an action for damages for unfair competition by which the assignee of part of the business acquired in the course of insolvency proceedings is accused of misrepresenting itself as being the exclusive distributor of articles manufactured by the debtor does not fall within the jurisdiction of the court which opened the insolvency proceedings. Continue reading “Vis attractiva concursus and its limits”

Free Choice of Company Law: Another Brick Out of the Wall

CJEU holds freedom of establishment does not require pursuit of genuine economic activity

In yesterday’s preliminary ruling in C-106/16 Polbud, the CJEU held that freedom of establishment is applicable to the transfer of the registered office of a company: (1) formed in accordance with the law of one Member State, (2) to the territory of another Member State, for the purposes of its conversion into a company incorporated under the law of the latter Member State, (3) even if there is no change in the location of the real head office of that company. Continue reading “Free Choice of Company Law: Another Brick Out of the Wall”

Polbud: ECJ further facilitates shopping for company law

The transfer of the registered office of a company, when there is no change in the location of its real head office, falls within the scope of the freedom of establishment

The ECJ issued today its judgment in the Polbud-case (C‑106/16). This case has previously been discussed here and here. The ECJ holds that the transfer of the registered office of a company (to be understood: with a change of applicable company law) falls within the scope of the freedom of establishment protected, even when there is no change in the location of its real head office. Member States may not impose mandatory liquidation on companies that wish to transfer their registered office to another Member State. Continue reading “Polbud: ECJ further facilitates shopping for company law”

Trust and freedom of establishment: some preliminary observations on the CJEU’s ruling in the Panayi Trust case

Trusts can be considered to be ‘entities’ which can come under the scope of the freedom of establishment

On September 14th 2017, the CJEU ruled on the Panayi Trust case (Case C-646/15), to which we have already referred in an earlier blog post. The CJEU’s ruling in the Panayi Trust case will provide ample opportunity for debate and reflection in the near future, especially with Brexit coming into view.

However, in this blog post we will restrict ourselves to a brief presentation of the case and some first observations regarding the question whether trusts can indeed come under the scope of the freedom of establishment. Continue reading “Trust and freedom of establishment: some preliminary observations on the CJEU’s ruling in the Panayi Trust case”

A uniform European regulation on the law applicable to the effectiveness of a cross-border assignment of a claim: no longer the elephant in the room?

A post by guest blogger Louis Coussée

The assignment of a claim is an important legal instrument for the financial market. It enables both simple transfers of claims from one person to another and complex financial operations used to finance the business activity of firms, such as financial collateral arrangements, factoring and securitization. Furthermore, it enables the availability of capital and credit across borders and allows small and medium enterprises (SMEs) to obtain credit at affordable rates. In a globalizing context, such cross-border transactions are a daily routine.

Substantively, there exists no harmonization in the field of the assignment of a claim on EU-level. The question which law is applicable to the assignment of a claim, therefore, can have a huge impact on the outcome of a dispute, when national jurisdictions apply different rules to make an assignment effective against third parties. The Rome-I Regulation contains a provision on the applicable law to the assignment of a claim. However, art. 14 of the Rome-I Regulation does not provide an answer to the most important question, i.e. which law governs the effectiveness of an assignment against third parties. This question is widely discussed and the topic of choice-of-law rules for the assignment of claims in financial services and markets is considered to be one of the most complicated, challenging and arcane. Continue reading “A uniform European regulation on the law applicable to the effectiveness of a cross-border assignment of a claim: no longer the elephant in the room?”