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10 ECFR 1 (2013)

handle is hein.journals/ecomflr10 and id is 1 raw text is: The Vale Decision and the Court's Case Law on the Nationality of Companies by JESPER LAU HANSEN* In its decision in Vale, the Court offustice takes another step forward, while still respecting its two-pronged case law on the nationality of companies. Analysing this case law shows a considerable move towards a genuine freedom of establishment for companies and paints a more nuancedpicture than is normally acknowledged. However, the necessary legal certainty so paramount for business in these matters still requires actual legislation. In this respect, the question of establishment and the freedom of companies to choose their nationality remain unfinished business. Table of Contents ECFR 2013, 1-17 I. Introduction . ........................................ 1 II. The problem ......................................... 2 III. The first strand: Connecting factor .......................... 4 IV. The second strand: Recognition of foreign companies .............. 7 V. The Vale decision . ...................................... 8 VI. Consequences: The real seat theory ......................... . 11 VII. Consequences: Abuse of EU law............................... 12 VIII. Consequences: Co-determination ......................... .. 13 IX. The need for a directive.................................. 15 X. Conclusion .. .......................................... 16 I. Introduction The decision of 12 July 2012 by the European Court of Justice in case C-378/ 10, Vale, is the latest decision in a much noted case law that touches upon some of the most fundamental issues of company law, notably what constitutes a The author was a member of the Reflection Group on the Future of EU Company Law, where he chaired the subcommittee on Cross-border Mobility. The paper is based on a lecture given on the ECFR Symposium in Luxembourg on 28 September 2012.

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