Libertatea de stabilire a societăților și transformarea transfrontalieră. Polbud
Freedom of establishment of companies and cross-border transformation. Polbud

Summary/Abstract: In the Polbud judgment, the Court of Justice of the European Union reaffirms its liberal view of protecting the freedom cealaltă establish companies in a context different from that known in the previous case-law, i.e. the cross-border transformation. In fact, one Polish company decided to transfer its registered office to Luxembourg without indicating a transfer of the central management of the Polbud business or of the place where the company's economic activity would actually take place. Following the transfer of the company's registered office to Luxembourg, without lossing its incorporation, the liquidation proceedings decided by the company were rejected by the court in charge of keeping the trade register records. By its preliminary questions, the Polish court wishes to know, inter alia, whether the freedom of establishment is oposed to a regulation of a Member State that prohibits a company established under the law of a Member State from being converted into a company subject to the legal order of another Member State. Confirming its flexible interpretations regarding the freedom of establishment, the Court finds that in this case there is an unjustified restriction on the freedom of establishment and retains that «articles 49 and 54 TFEU must be interpreted as meaning that freedom of establishment is applicable to the transfer of the registered office of a company formed in accordance with the law of one Member State to the territory of another Member State, for the purposes of its conversion, in accordance with the conditions imposed by the legislation of the other Member State, into a company incorporated under the law of the latter Member State, when there is no change in the location of the real head office of that company». At the same time, the freedom of establishment is opposed to the «legislation of a Member State which provides that the transfer of the registered office of a company incorporated under the law of one Member State to the territory of another Member State, for the purposes of its conversion into a company incorporated under the law of the latter Member State, in accordance with the conditions imposed by the legislation of that Member State, is subject to the liquidation of the first company».

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