EN Official Journal of the European Union CE 87/5

Tuesday 10 March 2009

Cross-border transfers of companies’ registered offices

P6_TA(2009)0086

European Parliament resolution of 10 March 2009 with recommendations to the Commission on the cross-border transfer of the registered office of a company (2008/2196(INI))

2010/C 87 E/02

The European Parliament,

having regard to Article 192, second paragraph, of the EC Treaty,

having regard to Articles 43 and 48 of the EC Treaty,

having regard to the Commission communication of 21 May 2003 entitled ‘Modernising Company Law and Enhancing Corporate Governance in the European Union – A Plan to Move Forward’ (COM(2003)0284),

having regard to its resolution of 21 April 2004 on the communication from the Commission to the Council and the European Parliament: Modernising company law and enhancing corporate governance in the European Union – A plan to move forward (1),

having regard to its resolution of 4 July 2006 on recent developments and prospects in relation to company law (2),

having regard to its resolution of 25 October 2007 on the European Private Company and the Fourteenth Company Law Directive on the transfer of the company seat (3),

having regard to the judgments of the Court of Justice in Daily Mail and General Trust (4) , Centros (5), Überseering (6), Inspire Art (7), SEVIC Systems (8) and Cadbury Schweppes (9),

having regard to Rules 39 and 45 of its Rules of Procedure,

having regard to the report of the Committee on Legal Affairs and the opinion of the Committee on Economic and Monetary Affairs (A6-0040/2009),

A. whereas companies should enjoy freedom of establishment within the internal market as enshrined in the EC Treaty and interpreted by the Court of Justice,

B. whereas cross-border company migration is one of the crucial elements in the completion of the internal market,

C. whereas a cross-border transfer of the registered office of a company should not give rise to its winding-up or any other interruption or loss of legal personality,

D. whereas a cross-border transfer of the registered office should not circumvent legal, social and fiscal conditions,

E. whereas the rights of other stakeholders concerned by the transfer, such as minority shareholders, employees and creditors, etc, should be safeguarded,

F. whereas the relevant acquis communautaire providing for cross-border information, consultation and participation rights of employees as well as safeguarding pre-existing employee participation rights (Directives 94/45/EC (10) and 2005/56/EC (11)) should be fully preserved, and whereas, consequently, the transfer of a registered office should not result in the loss of those existing rights,

G. whereas a rule requiring a company to maintain its head office and its registered office in the same Member State would run counter to the case-law of the Court of Justice on freedom of establishment and would therefore infringe EC law,

1. Requests the Commission to submit to Parliament by 31 March 2009, on the basis of Article 44 of the EC Treaty, a legislative proposal for a directive laying down measures for coordinating Member States’ national legislation in order to facilitate the cross-border transfer within the Community of the registered office of a company formed in accordance with the legislation of a Member State (‘14th Company Law Directive’), and requests that the proposal in question be drawn up within the framework of inter-institutional deliberations and following the detailed recommendations set out below;

2. Notes that undertakings can currently transfer their seat only either by dissolution and the establishment of a new legal entity in the Member State of destination, or by establishing a new legal entity in the Member State of destination and then merging both undertakings; further notes that this procedure involves administrative obstacles, costs and social consequences and offers no legal certainty;

3. Draws attention to the freedom of establishment that is guaranteed for undertakings under Article 48 of the EC Treaty, as interpreted by the Court of Justice (12);

4. Notes that a transfer of a company seat implies a transfer of supervision; points out that, in the context of the drafting of the 14th Company Law Directive on the cross-border transfer of registered offices, the maintenance of the existing rights of shareholders, creditors and workers must be guaranteed and the existing equilibrium in the management of the company (‘corporate governance’) must be preserved;

5. Proposes that reference be made in the new directive to Directive 94/45/EC and Directive 2005/56/EC, in order to guarantee the coherence and substantive nature of employee participation procedures in the application of EU company law directives;

6. Takes the view that a transfer of a company's seat must be preceded by the issuing of a transfer plan and a report explaining and justifying the legal and economic aspects and any consequences of the transfer for shareholders and employees; points out that the transfer plan and the report must be made available in good time to all those involved;

7. Emphasises the positive effects of tax competition on economic growth in the context of the Lisbon Strategy;

8. Notes that a transfer of a company seat should be tax-neutral;

9. Suggests that the exchange of information and mutual assistance between tax authorities be improved;

10. Calls for transparency in the application of the new directive in the Member States and therefore proposes a reporting requirement for Member States vis-à-vis the Commission whereby undertakings transferring their registered office under the directive must be entered in a European companies register; points out that, in the interests of better law-making, excessive information (‘overkill’) must be avoided when the reporting requirement is transposed into national law, provided that sufficient information is guaranteed;

11. Confirms that the recommendations respect the principle of subsidiarity and the fundamental rights of citizens;

12. Considers that the requested proposal does not have any financial implications;

13. Instructs its President to forward this resolution and the accompanying detailed recommendations to the Commission and the Council and to the parliaments and governments of the Member States.

(1) OJ C 104 E, 30.4.2004, p. 714.

(2) OJ C 303 E, 13.12.2006, p. 114.

(3) OJ C 263 E, 16.10.2008, p. 671.

(4) Case 81/87 Daily Mail and General Trust [1988] ECR 5483.

(5) Case C-212/97 Centros [1999] ECR I-1459.

(6) Case C-208/00 Überseering [2002] ECR I-9919.

(7) Case C-167/01 Inspire Art [2003] ECR I-10155.

(8) Case C-411/03 SEVIC Systems [2005] ECR I-10805.

(9) Case C-196/04 Cadbury Schweppes [2006] ECR I-7995.

(10) Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (OJ L 254, 30.9.1994, p. 64).

(11) Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies (OJ L 310, 25.11.2005, p. 1).

(12) Judgment in Centros, cited above.