From Daily Mail to Cartesio a case for the

From Daily Mail to Cartesio a case for the consistency of the ECJ? By Kay Kimkana 1. INTRODUCTION On 16 December 2008, the European Court of Justice delivered its judgment in Cartesio 1 where it ruled that national rules that prevented a company from transferring its seat to another EU Member Statedid not violate the rights under the freedom of establishment set out in Arts. 43 and 48 of the EC Treaty. This was an eagerly awaited outcome due to the following reasons elaborated below 2, although the decision itself did not necessarily conform to popular expectations (including the Advocate General s Opinion in this case) that the court would review and perhaps overturn its judgment in Daily Mail: 1 Cartesio Oktato es Szolgaltato bt, Case C 210/06 [2009] ECR I 0000. The literature on this case remains limited at the time of writing: Member State of Incorporation Can Prevent Company Transferring its Seat, Comp. Law, 30(4), 105 106 (2009); Home State May Prevent Move but not a Conversion of Form, EU Focus, 246, 19 20 (2009); Stevenson, D., Cartesio Ruling has Implications for EU Exit Taxes, International Tax Review, February 2009; Deak, D., Outbound Establishment Revisited in Cartesio, EC Tax Review, no.6, p. 250 258 (2008); Szydeo, M., Emigration of Companies under the EC Treaty: Some Thoughts on the Opinion of the Advocate General in the Cartesio Case, EC Tax Review, European Review of Private Law no.6, pp. 973 994 (2008). 2 O Shea, T., News Analysis: Hungarian Tax Rule Violates EC Treaty, Advocate General Says, Tax Notes International, vol. 51, no. 5, p.1, (2008).

the fact pattern of Daily Mail was somewhat similar to the case on hand (See Section 3 for the facts of the Daily Mail case), the ruling in Cartesio would signal if Daily Mail still represented good law 20 years on. As the decision reached was consistent with the reasoning and principles set out in Daily Mail, could this therefore demonstrate the consistency of the ECJ s approach?; secondly, if companies could freely move their operational headquarters and retain legal personality in their state of incorporation, this would trigger problems in terms of monitoring the functioning and continued registration of the entities from a company law perspective, but also in the area of exit taxes, as demonstrated in Daily Mail; 3 and lastly, the European Commission had been exploring the adoption of the 14 th Company Law Directive on the cross border transfers of registered offices, which had been suspended pending the decision in Cartesio. 4 The outcome and future of the directive would thus depend on the outcome of Cartesio. 3 Ibid. 4 Ibid.

This paper begins with an analysis of the judgment of the ECJ in Cartesio(Section 2). Section 3 discusses the main case referred to in the Cartesio judgment, namely Daily Mail 5, and Sections 4 and 5 are devoted to the other two cases which were noteworthy in providing the reasoning for the ECJ in its judgment Uberseering 6 and SEVIC 7. Section 6 contains an overall analysis of the cases with the primary purpose of i) drawing a conclusion if the ECJ has been consistent in its approach in cases involving the transfer of central management and control or the seat of a company from the Member State of incorporation to a host Member State and ii) if after two decades, Daily Mail represents good or dead law. It should be noted that this paper is not intended to be comprehensive in its coverage of all cases cited by the ECJ in the Cartesio judgment, and as such does not include an analysis of Centros and Inspire Art. 2. CARTESIO Cartesioinvolves a Hungarian limited liability partnership, which wished to transfer its seat from Hungary to Italy while continuing to be subject to 5 Case C 81/87, The Queen v H.M. Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust plc [1988] ECR 5483. 6 Case C 208/00, Uberseering BV v Nordic Construction Company Baumanagement GmbH (NCC) [2002] ECR I 9199. 7 Case C 411/03, SEVIC Systems AG [2005] ECR I 10805.

Hungarian company law. This case involved an origin state rule as the application to transfer was rejected on the grounds that under Hungarian law, a company incorporated in Hungary may not transfer its seat abroad while retaining its status as a Hungarian company. The Court of Appeal in Hungary then referred the case to the ECJ for a preliminary ruling on whether national rules or practices which prevented a Hungarian company from transferring its seat to another EU Member State was incompatible with Community Law 8 (freedom of establishment). The ECJ began its reasoning by observing from the judgment in Daily Mail that companies are creatures of national law and exist only by virtue of the national legislation which determines the incorporation and functioning. 9 Furthermore, the legislation of Member States varied widely with regard to the connecting factor of a company to the national territory, and whether the company incorporated under the laws of a Member State may subsequently modify that connecting factor for example, the legislation of some states permit companies to transfer their central administration to a foreign country but certain of them make that right subject to 8 See Cartesio, para. 40.1.d. 9 See Cartesio, para. 104, and Daily Mail, para. 19.

certain restrictions. 10 Consistent with its reasoning in Daily Mail in 1998 and Uberseering in 2002, 11 the ECJ thus noted thatthe transfer of the registered office or head office from one Member State to another are problems not resolved by the rules concerning the right of establishment but which must be dealt with by future legislation. 12 In line with that, Member States therefore can prohibit companies governed by its law from moving its seat to another Member State which is tantamount to breaking the connecting factor required under the national law of the Member State of incorporation, as it has the power to define the connecting factor required for a company to enjoy the right of establishment, as well as the connecting factor required for the company to subsequently maintain that status. 13 As such, it can be said that the Court applied a similar reasoning and came to a similar conclusion as that of Daily Mail two decades ago. However, there is a key aspect of the Cartesiodecision that can be seen as expandingdaily Mail where the court held that there was a difference between the transfer of the seat a company with no change in the company law governing the company 10 See Cartesio, para. 105, and Daily Mail, para. 20. 11 See Daily Mail, para. 23 and Uberseering para. 69. 12 See Cartesio, para. 108. 13 See Cartesio, para. 110.

andthe situation where the Member Statein which the company has moved to allows that company to convert into to a company in accordance with its applicable national laws. 14 In such situations, the Member State of incorporation cannot have legislation requiring the winding up or liquidation of the company to prevent the conversion of a company in the other Member State, as this would constitute a restriction on the freedom of establishment unless it can be justified by overriding requirements of public interest. 15 In addressing a point put forth by the Commission, the ECJ maintained that although several regulations such as the European Economic Interest Grouping (EEIG) regulation, the Societas Europaea (SE) regulation and the Statute for a European Cooperative Society (SCE) laid down rules which made it possible for new legal entities to transfer their registered office and real seat to another Member State without the compulsory winding up to create a new entity, such a transfer entailed a change to the national law applicable to the entity. 16 The Court pointed out that these regulations were not applicable to Cartesioas the company wished to transfer its real seat from Hungary to Italy while remaining a company governed 14 See Cartesio, para. 111. 15 See Cartesio, para. 112. 16 See Cartesio, para. 117.

by Hungarian law, without any change as to the national law applicable. 17 In its concluding remarks, the ECJ clarified that the case of SEVIC Systems did not relate to the same problem and cannot be said to have qualified the scope of Daily Mail or Uberseering. 18 SEVIC Systems concerned the recognition, in the MS of incorporation of a company, of an establishment operation carried out by that company in another MS by means of a cross border merger, 19 which is a situation fundamentally different from Daily Mail, but similar to Centros, Uberseering and Inspire Art. 20 In the following sections of this paper, the similarities between Cartesio and Daily Mail are analysed in addition to the contrast between the cases of Cartesio and Daily Mail andsevic Systems and Uberseering. 3. DAILY MAIL 17 See Cartesio, para. 119. 18 See Cartesio, para. 121. 19 It is the view of the author that the statement is open to dispute the issue in SEVIC Systems did not concern the recognition of a company in its member state of origin following a cross border merger, but rather the recognition in the host Member State as the rules there (Germany) did not recognise cross border mergers but recognised mergers between domestic companies. 20 See Cartesio, para. 122.

It is undeniable that Daily Mail was an important feature in the judgment of the Court a case which, like Cartesio also concerned the freedom of establishment relating to an origin state rule. Daily Mail wasa UK company which wanted to transfer its central management and control to the Netherlands without losing legal personality or ceasing to be a company incorporated in the UK. Such transfers required the consent of the Treasury. 21 In addition, it was clearly established that the transfer wasundertaken for tax purposes following the proposed transfer of central management and control, non permanent assets would be sold and the proceeds of that sale would be used to buy its own shares, without having to pay UK tax. In the Netherlands, only capital gains accrued after the transfer of residence would have been taxed. 22 The company was of the opinion that Arts. 43 and 48 of the EC Treaty gave it the right to transfer its central management and control to another Member State, and the UK rules which required the obtaining of prior consent from the Treasury infringed upon its freedom of establishment. 21 See Daily Mail, para. 5. 22 See Daily Mail, para. 7.

In this case, the ECJ was faced with an origin state rule which hindered the transfer of central management and control to another Member State. Similarly, the Cartesio case also involved an origin state rule which prohibited the transfer of the real seat of a company to another Member State. In Daily Mail, the court observed that provisions are directed mainly to ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation The rights guaranteed by Art. 43 23 et seq. would be rendered meaningless if the Member State of origin could prohibit undertakings from leaving in order to establish themselves in another Member State. 24 Furthermore, the ECJ stated that the right of establishment is generally exercised by the setting up of agencies, branches or subsidiaries or by taking part in the incorporation of a company in another Member State. 25 In relation to the above, the provisions of the UK law at issue did not impose any restrictions on such 23 At the time of the Daily Mail case, this was Art. 52 of the EC Treaty. 24 See Daily Mail, para. 16. 25 See Daily Mail, para. 17.

establishments and neither did it stand in the way of a partial or total transfer of the activities of a company incorporated in the UK to a company newlyincorporated in another Member State, after winding up and the settlement of the tax position of the UK company. Treasury consent was only required for companies seeking to transfer its central management and control out of the UK while maintaining its legal personality and status as a UK company. 26 The Court stated that unlike natural persons, companies are creatures of the law and existed only by virtue of the varying national legislation which determined their incorporation and functioning, 27 and this varied widely depending on the connecting factor to a national territory, and the subsequent modification of such a connecting factor. 28 Although some countries did allow the transfer of the central administration to a foreign company, this was subject to certain restrictions in the UK particularly in regard to taxation. 29 Art. 48 of the Treaty placed the following connecting factors on the same footing the registered office, central 26 See Daily Mail, para. 18. 27 See Daily Mail, para. 19. This reasoning was subsequently used in Cartesio, see para. 104. 28 See Daily Mail, para. 20. This paragraph was subsequently cited in its entirety in para. 105 of the Cartesio judgment. 29 Ibid.

administration and principal place of business. 30 The court decided that the right of establishment did not resolve the differences in the transfer of a company from one Member State to another Member State and these were problems which had to be dealt with by future legislations or conventions. 31 The Court thus concluded that the freedom of establishment did not confer any rights to a company incorporated under the legislation of a Member State which had its registered office there to transfer its central management and control to another Member State while maintaining its status as a company in the first Member State. 4. UBERSEERING Uberseering was a company incorporated in the Netherlands which purchased a piece of land in Dusseldorf, Germany. It had engaged a German company, NCC for some building workbutuberseering thereafter claimed that the paintwork was defective. The shares of Uberseering was subsequently acquired by 2 German nationals. The claim for compensation for the defective work from UCCwas 30 See Daily Mail, para. 21. 31 See Daily Mail, para. 23. This reasoning was also used in Cartesio (see para. 108) and Uberseering (see para. 69).

unsuccessfulbecause according to the Higher Regional Court in Germany,Uberseering had transferred its actual centre of administration to Dusseldorf upon the acquisition of the shares by German nationals. Therefore, as Uberseeringwas incorporated under Netherlands law, it did not have legal capacity in Germany and could not bring legal proceedings there. Germany follows the real seat theory the legal capacity of a company was determined by reference to the law where the actual centre of administration was established, and not the incorporation principle where the legal capacity of a company was determined by reference to where company was incorporated. This was a host state case a company that had been validly incorporated in another state which transferred its actual centre of administration to Germany was not recognized as a legal person in Germany, unless it was reincorporated in Germany. The case was referred to the ECJ to ascertain if German rules thatdid not recognise as a legal person in Germany a validly incorporated company under the laws of a Member State (and therefore cannot bring legal proceedings to enforce its rights under a contract) was compatible with the freedom of establishment.

In its findings, the Court rejected the defense of Art. 293 32 of the EC Treaty put forth by several governments that there are currently no directives regarding the transfer of a company s seat and no multilateral convention has been adopted in that regard pursuant to Art 293 as Community Law now stands, the application in Germany of the actual or real centre of administration principle and the implications thereof as regards recognition of a company s legal proceedings are compatible with Community Law. 33 Agreeing with a point put for the by the Advocate General in his Opinion, 34 the Court confirmed that Art. 293 did not constitute a reserve of legislative competence vested in the Member States and the opportunity to enter into negotiations to facilitate the resolution of problems arising from the discrepancies between the various laws relating to the mutual recognition of companies and the retention of legal personality in the event of a transfer of their seat was granted to Member States in so far as is necessary if the provisions of the Treaty do not enable its objectives to be attained. 35 More importantly, the exercise of the freedom cannot depend upon the adoption 32 Art.293 provides that Member States shall so far as is necessary, enter into negotiations with each other to secure the mutual recognition of companies the retention of legal personality in the event of the transfer of their seat from one country to another. 33 See Uberseering, para. 26. 34 Advocate General Colomer s Opinion in Uberseering, para. 42. 35 See Uberseering, para. 54.

of such conventions and there was no argument to justify that the full effects of Art. 43 and 48 are limited due to the fact that no convention has been adopted on the basis of Art. 293. The Court also referred to the Daily Mail (see Section 6 for more details) and the General Programme 36 before ruling that Uberseering was entitled under Arts. 43 and 48 to exercise its freedom of establishment in Germany as a company incorporated in the Netherlands. The transfer of the shares to German residents was of little significance as it did not cause Uberseering to cease to be a valid legal person in the Netherlands. 37 The requirement of reincorporation of the same company in Germany was found to be tantamount to an outright negation of freedom of establishment and thus, incompatible with Arts. 43 and 48. 38 It is interesting to note that in its Uberseering judgment some 14 years after Daily Mail, the Court 36 The General Programme for the Abolition of Restrictions on Freedom of Establishment, adopted on 18 December 1961 subordinates the benefit of the freedom of establishment to the requirement that there be a real and continuous link with the economy of a Member State. As it relates to cases where the company has nothing but a registered office within the Community, this does not apply in the case of Uberseering, which has it s registered office and centre of administration within the Community. The General Programme is refered to in paragraphs 74 and 75 of Uberseering. 37 See Uberseering, para. 80. 38 See Uberseering, para. 81 and 82.

implicitly approved Daily Mail in a host 39 state context, holding that where a company which is validly incorporated in one Member State ( A ) in which it has its registered office is deemed, under the law of a second Member State ( B ), to have moved its actual centre of administration to Member State B following the transfer of all its shares to nationals of that State residing there. 40 5. SEVIC SYSTEMS The last important case referred to in the Cartesio judgment was that of SEVIC Systems AG, 41 which involved a merger between the German company anda Luxembourg company, where the Luxembourg company was dissolved without liquidation and the whole of its assets was transferred to SEVIC. The merger was rejected as German law only provided for mergers between resident German companiesand cross border mergers were not recognized. The ECJ found that German rules where the registration of a merger between a German Luxembourg company was prohibited, whereas such a registration was possible 39 Uberseering relates to a host state rule as it involves the host state (Germany) refusing to recognise the legal capacity of a validly incorporated company in another Member State (the Netherlands) upon the transfer of its centre of administration to Germany but without being reincorporated there. 40 O Shea, T., Freedom of establishment tax jurisprudence: Avoir Fiscal re visited, EC Tax Review, no.6, p. 273 (2008). 41 See C 411/03, SEVIC Systems AG.

between a German German company, was contrary to the rights granted under the freedom of establishment. The Court first explained that the freedom of establishment includes the formation and management of those companies under the conditions defined by the legislation of the State of establishment for its own companies. 42 The freedom of establishment covers all measures which permit or even merely facilitate access to another Member State and the pursuit of an economic activity in that State by allowing the persons concerned to participate in the economic life of the country effectively and under the same condition as national operators. 43 The Court was of the opinion that cross border merger operations should be viewed as an exercise of the freedom of establishment 44 and a merger by dissolution without liquidation constituted an effective means for the transformation of companies as it made it possible, within the framework of a single operation, to pursue particular activities in new forms and without interruption, thereby reducing the complications, time 42 See SEVIC Systems, para. 17. 43 See SEVIC Systems, para. 18 and Advocate General Tizzano s Opinion in SEVIC Systems, para. 30. 44 See SEVIC Systems, para. 19.

and costs associated in the case involving the dissolution and liquidation of assets of a company and the subsequent formation of a new company and the transfer of the aforesaid assets to the new company. 45 The difference in the treatment accorded between internal and cross border mergers was therefore found to be a restriction on the freedom of establishment, and this required justification. The justifications put forth included the protection of the interests of creditors, minority shareholders and employees, effectiveness of fiscal supervision, fairness of commercial transactions. 46 These justifications however, were rejected by the court as the refusal to register all cross border mergers even in situations where such interests were not threatened went beyond what was necessary to protect the aforesaid interests. 47 6. ANALYSIS 6.1. Cartesio and Daily Mail consistency of the ECJ? In comparing the cases of Cartesio and Daily Mail, which in general terms involved the transfer of its real seat 45 See SEVIC Systems, para. 21. 46 See SEVIC Systems, para. 24. 47 See SEVIC Systems, para. 30.

(Cartesio) and central management and control (Daily Mail) to another Member State while retaining its status in the Member State of origin, the consistency in the ECJ s approach is clear. Parallels can be drawn from the operative part of the judgments in both cases indaily Mail, the ECJ ruled that Arts. 43 and 48of the Treaty, properly construed, confer no right on a company incorporated under the legislation of a Member State and having its registered office there to transfer its central management and control to another Member State. 48 The operative paragraph ofcartesio stated that Arts. 43 and 48 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. 49 The Cartesio case was seen as an opportunity for the ECJ to revisit, elaborate or otherwise overrule 50 its judgment in Daily Mail, and it is interesting to note that the ruling refers to other cases (almost) as often as 48 See Daily Mail, operative part of judgment, para. 1. 49 See Cartesio, operative part of judgment, para. 4. 50 The ECJ was invited to do so by Advocate General Maduro in his Opinion of Cartesio dated 22 May 2008.

Cartesio itself. 51 Not only did the court cite several paragraphs from its Daily Mail ruling from two decades ago, it clearly affirmed that the statement of law made in the operative paragraph of Daily Mail still represented good law. Furthermore, a theme for the consistency of the two decisions can be traced back to Advocate General Darmon s Opinion on the Daily Mail case. 52 In his Opinion, the Advocate General established an important distinction between primary and secondary establishments within the Community and explained that [t]he right of establishment can manifest itself in two different ways. On one hand, subsidiaries, branches or agencies may be set up. That is known as secondary establishment... Establishment may also take the form of the setting up of a new company or the transfer of the central management and control of the company, often regarded as its head office. That is called primary establishment. As the freedom of establishment rights granted under Art. 43 of the Treaty applies to the setting up of agencies, branches or subsidiaries, moving the operational headquarters or registered office of a company to another 51 Stevenson, D., Cartesio ruling has implications for EU exit taxes, International Tax Review, February 2009. 52 See Opinion of Advocate General Darmon in The Queen v H.M. Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust plc, C 81/87, para. 4.

may not fall within the scope of freedom of establishment. 53 There are of course, differences between Daily Mail and Cartesio and as stated above, Cartesio extends the judgment of Daily Mail in one key respect on establishment there was a difference between the transfer of the seat of the company with no change in the company law governing the company andthe situation where the Member Statein which the company has moved to allows that company to convert into to a company in accordance with its applicable national laws. 54 In such situations, the Member State of incorporation cannot have legislation requiring the winding up or liquidation of the company to prevent the conversion of a company in the other Member State, as this would constitute a restriction on the freedom of establishment unless it can be justified by overriding requirements of public interest. 6.2. Is Daily Mail good law or dead 55 law? 53 This was argued in O Shea, T., News Analysis: Hungarian Tax Rule Violates EC Treaty, Advocate General Says, Tax Notes International, vol.51, no.4 (2008). 54 See Cartesio, para. 111. 55 This term was used by Peter Cussons of PricewaterhouseCoopers LLP in his presentation ECJ and UK related cases since January 2008 at the 4 th Annual Avoir Fiscal EC Tax Conference on 30 January 2009.

There is an important question as to whether the barriers referred to in paragraph 113 of Cartesio refer solely to the requirement that a company wishing to move could only do so upon the prior winding up or liquidation in the Member State of incorporation or do the barriers include the levying of exit taxes by the said Member State? It is worth reiterating that in Cartesio, the Court discusses issues in relation to company law, and subsequently ruled that companies can move their real seat (in certain circumstances) to another Member State without having to liquidate or reincorporate. Thus the question now arises as to whether the Member State of origin can levy taxes on the company before it relocates to the host Member State? As the Court does not discuss exit taxes incartesio, reliance has to be sought from the Court s earlier jurisprudence and it can be concluded that the Member State of origin can protect their taxing powers. 56 From the case of N v Inspecteur van de Belastingdienst Oost/kantor Almelo 57 it is clear that companies cannot use the freedom 56 This is argued in O Shea, T. Cartesio: Moving a Company s Seat Now Easier in the EU, Tax Notes International, 23 March 2009 (forthcoming). 57 Case C 470/04, N Case [2006] ECR I 7409.

of establishment as an excuse to move to another Member State and avoid the payment of tax. In this case, the Court says paying tax preserves the allocation of the power to tax between Member States is a legitimate objective recognized by the Court. 6.3. Uberseering As elaborated in Section 4 above, Uberseering is clearly a host state case whereas Daily Mail is the first origin State tax case. In Uberseering, the rule at issue was that at the host state (Germany) which did not recognise the legal capacity of a company incorporated in the Netherlands which was acquired by German nationals, therefore having its place of administration in Germany which applied the real seat theory. The Court in Cartesio also referred to the Uberseering case on whether a company formed in accordance with the legislation of one Member State can transfer its registered office or its actual centre of administration in another Member State without losing its legal personality are determined by the national law in accordance with which the company was incorporated. The Court concluded that a Member State is able to make the company s right to retain its legal personality under the law of the Member State subject to

restrictions on the transfer to a foreign country of the company s actual centre of administration. 58 Although the court in Uberseering pointed out several differences 59 between the Daily Mail case and Uberseering based on the facts of the cases, there is nothing in the Uberseering judgment to suggest that Daily Mail no longer represents good law. 60 6.4. SEVIC Systems SEVIC Systems is an important case in this context as it appears to extend the rights under the freedom of establishment to mergers. According to the court, mergers constituted an effective means for the transformation of companies as it made it possible, within the framework of a single operation, to pursue particular activities in new forms and without interruption, thereby reducing the 58 See Cartesio, para 107 and Uberseering, para. 70. 59 In para. 62 of Uberseering, the court observed that Daily Mail concerned the relations between a company and the Member State under whose laws it had been incorporated in a situation where the company wishes to transfer its actual centre of administration to another Member State whilst retaining its legal personality in the state of incorporation, and the present case concerns the recognition by one Member State of a company incorporated under the law of another Member State, such a company being denied all legal capacity in the host Member State where it takes the view that the company has moved its actual centre of administration to its territory, irrespective of whether in that regard the company actually intended to transfer its seat. 60 O Shea, T., News Analysis: Hungarian Tax Rule Violates EC Treaty, Advocate General Says, Tax Notes International, vol. 51, no.5 (2008).

complications, time and costs associated in the case involving the dissolution and liquidation of assets of a company and the subsequent formation of a new company and the transfer of the aforesaid assets to the new company. 61 It has to also be stressed that the right to merge is not a right generally conferred on by the freedom of establishment. Cross border mergers had to be granted in the case of SEVIC Systemsas German law clearly provided for German German mergers, and the dissimilar treatment accorded to non German mergers constituted a restriction in the freedom of establishment hence the need to ensure equal treatment. 6.5. 14 th Company Law Directive The analysis and conclusion will not be complete without a brief reference to the above. Following its suspension of the process for the adoption of the 14 th Company Law Directive pending the Cartesio decision, there have not been any further updates on this at the time of writing. 62 7. CONCLUSION 61 See SEVIC Systems, para 21. 62 See http://ec.europa.eu/internal_market/company/seattransfer/index_en.htm last visited on 11 March 2009.

When the Court started off with Daily Mail as its first origin state case in 1988, it ruled that the freedom of establishment provisions of the Treaty did not allow a company to transfer its central management and control to another Member State while retaining its status as a company in its Member State of incorporation. This was followed bysevic Systemsin 2003, which showed another perspective on the freedom of establishment as this related to a host state case. More importantly, SEVIC Systems also showed that the freedom of establishment extended beyond the right to establish a subsidiary, branch and agency. And most recently, the Court again extended the freedom of establishment where it allowed companies to move their real seat to a host Member State where it could be converted into a company recognized by the laws of the host. Accordingly, the Court has not in any way u turned on its Daily Mail decision, but rather, as demonstrated above, has somewhat extended the scope of the freedom of establishment in its later jurisprudence. This outcome has been noteworthy and it has created significant buzz in the tax world as the ECJ did not agree with Advocate General Maduro s Opinion that Arts. 43 and 48 precluded national rules which made it

impossible for a company constituted under the national law to transfer its operational headquarters to another Member State. On a concluding note, interestingly enough, the Court also did not agree with the reasoning put forth by the Governments of Hungary, Iceland, Poland, Slovenia and the UK that the present case fell outside the scope of EU Law.