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Transformarea transfrontalieră (I)
Cross-border transformation (I)

Author(s): Vasile Nemeş, Gabriela Fierbinţeanu
Subject(s): Law, Constitution, Jurisprudence, Civil Law
Published by: Universul Juridic
Keywords: freedom of establishment; cross border transformation; ex ante control; artificial arrangement;

Summary/Abstract: Freedom of establishment is a fundamental principle of the Union law. In compliance with art. 49 the second paragraph of the Treaty on the functioning of the European Union (TFEU), read in conjunction with art. 54 of TFEU, the freedom of establishment includes the incorporation and management of the companies regarding the legal framework in the Member State where the company shall be established. The Court of Justice of the European Union interpreted the freedom of establishment as including also the law as a company which is incorporated according to the law of a Member State to be changed into a company which shall be governed by the law of another Member State, the latter being free to establish, beside those formalities related to the registration, also the decisive liaison criterion for the connection between this company and its legal order. The fragmentation and the lack of harmonization of the national laws in the matter of cross border transformation, as well as the economic consequences of the practical difficulties in the performance of such an operation determined the emergence of an European legislative instrument intended to establish a legal framework which should eliminate those restrictions regarding the freedom of establishment, providing an adequate protection for the concerned parties (employees, creditors, minority shareholders). At the same time, the legislative proposal, since it does not overlook a possible abusive usage of the transformation procedure for the purpose of establishing artificial arrangements, also sets up the ex ante control of this operation by establishing material rules and rules of procedure determining the requirements of the actions which the national relevant authorities shall carry out in order to fight against abuse.

  • Issue Year: 2020
  • Issue No: 01
  • Page Range: 26-38
  • Page Count: 13
  • Language: Romanian