The Intra-European Transfer of the Registered Office and the Protection of Members and Creditors: Analysis of Directive (EU) 2019/2121

Abstract

The intra-European transfer of the registered office allows companies to pick and choose, after their incorporation, the legal form that best suits their needs. For decades, this operation was governed solely by the provisions of the EU primary law and the case law from the EU Court of Justice. The lack of secondary legislation harmonizing the exercise of the freedom of establishment and the divergence between the national laws of the Member States have led to various disputes in which the Court of Justice has had the opportunity to define the scope and the limits of state powers to modulate cross-border mobility of companies. The maximalist jurisprudence of the European judges regarding the transfer of intra-community registered office has awakened the interest of the European legislator to regulate the matter. Directive (EU) 2019/2121, while limiting the fraudulent use of community freedom to circumvent national regulations, balances the right to cross-border transformation with the protection of the interests of those affected by the operation: members, creditors and employees.