Cross-Border Mobility in European Company Law

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Presentation transcript:

Cross-Border Mobility in European Company Law Prof. Dr. Christoph Teichmann Julius-Maximilians-Universität Würzburg

Making use of national company law Ltd. (1) Choice of applicable company law: foundation of a company abroad (3) Result: Application of English company law for activity in Germany (2) Freedom of establishment: establishing headquarter in home country 2

Making use of national company law AG GmbH Application of German company law for activity abroad, if Home country agrees to continuing application of its company law and Host state accepts application of foreign company law. 3

(1) Based on 10th European company law directive Cross-border merger Ltd. GmbH (1) Based on 10th European company law directive (2) Assets of the transfering company will be taken over by the absorbing company (3) Result: Change into a national company of another jurisdiction. 4

The European Company SE-Regulation (directly applicable in every member state) Formation of the SE: merger, holding SE, subsidiary SE, conversion of public company Choice between one-tier and two-tier system Procedure for the transfer of the registered office Many References to national law SE-Directive: supplementing the Regulation Information, consultation and participation of employees shall be defined by an agreement. Negotiations take place between organs of the participating companies and special negotiating body

The reality of the common market

80 employees (in Germany) Surface treatment technology: metal cleaning, electroplating 1993 – Unilever spin-off (management by-out) Headquarter in Southern Germany 2009 – 80 employees (in Germany) 42 % of turnover outside Germany 23 subsidiaries in other countries

United Kingdom Denmark Poland Netherlands Czech Republic France Slovakia Romania Spain Italy Austria Slovenia Portugal Greece 9

The European Private Company  as complete as possible European Regulation + Articles of Association Contractual freedom for the internal affairs Only few references to national law. The European Private Company (or: Societas Privata Europaea – SPE)

SPE SPE SPE SPE SPE SPE SPE SPE SPE SPE SPE SPE SPE SPE 11

The European Private Company Proposal by European Commission (2008) Compromise proposal by Swedish presidency (Dec. 2009) Remaining issues: Minimum capital (8,000 €) ? Negotiations with employees (if more than 500)? Separation of registered office and headquarter in different member states?

Conclusion SPE