Möjlighet till flyttning av juridiska personers säte inom EU : Finns det behov av ytterligare harmonisering?

Sammanfattning: The freedom of establishment is a fundamental right on the internal market which enables companies to take up and pursue activity in other member states, “host states”, in a non discriminatory way. In situations where a company wishes to use the right to establish in a host state, complications will be discovered since the member states are applying different principles for deciding the nationality of a company. Since the Treaty of the Function of the European Union recognize both principles, and both of the legal areas company law and European international private law lack harmonization regarding companies wishing to perform such a transaction, the situation today brings the possibility that such a company could be covered by the legal system of several member states, or maybe no legal system at all. The Court of Justice of the European Union has through case law contributed to make the scope of the freedom of establishment a little bit clearer but there are still difficulties regarding situations when a company wishes to transfer its seat to another member state with a change of nationality. Today’s measures, for example the SE-company, is not enough to satisfy the companies wishing to transfer their seat to another member state. According to the writer, the Cartesio judgment brought an even greater need for a 14th Company Law Directive. The proposal for a 14th Company Law Directive enables companies to cease to be a company according to the legislation in the home state and then become a company according to the legislation in the host state without ever losing its legal personality. The conclusion is therefore that such a directive is crucial in order to make it possible for companies to fully enjoy and exploit the internal market.