EN Official Journal of the European Union C 44/3

Judgment of the Court (Grand Chamber) of 16 December 2008 (reference for a preliminary ruling from the Szegedi Ítélőtábla (Republic of Hungary)) — In the proceedings in the case of Cartesio Oktató és Szolgáltató Bt

(Case C-210/06) (1)

(Transfer of a company seat to a Member State other than the Member State of incorporation - Application for amendment of the entry regarding the company seat in the commercial register - Refusal - Appeal against a decision of a court entrusted with keeping the commercial register - Article 234 EC - Reference for a preliminary ruling - Admissibility - Definition of ‘court or tribunal’ - Definition of ‘a court or tribunal against whose decisions there is no judicial remedy under national law’ - Appeal against a decision making a reference for a preliminary ruling - Jurisdiction of appellate courts to order revocation of such a decision - Freedom of establishment - Articles 43 EC and 48 EC)

(2009/C 44/04)

Language of the case: Hungarian

Referring court

Szegedi Ítélőtábla

Party to the main proceedings

Cartesio Oktató és Szolgáltató Bt

Re:

Reference for a preliminary ruling — Szegedi Ítélőtábla — Interpretation of Articles 43, 48 and 234 EC — No possibility to transfer the seat of a company constituted under the law of a Member State to another Member State without first going into liquidation in the Member State of origin.

Operative part of the judgment

1. A court such as the referring court, hearing an appeal against a decision of a lower court, responsible for maintaining the commercial register, rejecting an application for amendment of information entered in that register, must be classified as a court or tribunal which is entitled to make a reference for a preliminary ruling under Article 234 EC, regardless of the fact that neither the decision of the lower court nor the consideration of the appeal by the referring court takes place in the context of inter partes proceedings.

2. A court such as the referring court, whose decisions in disputes such as that in the main proceedings may be appealed on points of law, cannot be classified as a court or tribunal against whose decisions there is no judicial remedy under national law, within the meaning of the third paragraph of Article 234 EC.

3. Where rules of national law apply which relate to the right of appeal against a decision making a reference for a preliminary ruling, and under those rules the main proceedings remain pending before the referring court in their entirety, the order for reference alone being the subject of a limited appeal, the second paragraph of Article 234 EC is to be interpreted as meaning that the jurisdiction conferred on any national court or tribunal by that provision of the Treaty to make a reference to the Court for a preliminary ruling cannot be called into question by the application of those rules, where they permit the appellate court to vary the order for reference, to set aside the reference and to order the referring court to resume the domestic law proceedings.

4. As Community law now stands, Articles 43 EC and 48 EC are to be interpreted as not precluding legislation of a Member State under which a company incorporated under the law of that Member State may not transfer its seat to another Member State whilst retaining its status as a company governed by the law of the Member State of incorporation.

(1) OJ C 165, 15.7.2006.