Introduction

The mobility of companies has increased significantly over the last decade but, after the Daily Mail decision of the European Court of Justice in 1988, the method of company mobility has not been via the transfer of seat. Moreover, recently, Mr McCreevy said ‘no to the 14th Company Law directive’ on the transfer of registered seat from a Member State to another Member State. In fact, the mobility became a reality in Europe after the revolution realized by the ECJ in the field of the European conflict of corporate laws. Referring to Articles 43 and 48 of the EC Treaty, the ECJ emphasized in its Centros, Überseering, Inspire Art and Sevic decisions the freedom of companies to create establishments and to implement cross-border mergers within the EU. These ECJ decisions in favour of the incorporation theory, raise the question about the future of the real seat theory in Europe. Is it the end of this theory?

As is well known, where the incorporation theory ‘recognizes all foreign legal entities according to the rule applicable in the State of origin’, the real seat theory in private international law considers the location of the central administration (or effective centre of management) of the company which cannot be dissociated from the location of its registered office. In that case, according to the real seat theory, the company should be no longer recognized as a legal person under the law of the state of its central administration.