4 Utrecht L. Rev. 1 (2008)

handle is hein.journals/utrecht4 and id is 1 raw text is: U.trech ,,t Law Reve
Company mobility within the EU, fifty years on
From a non-issue to a hot topic
Marie-Louise Lennarts*
On 20th September 2007, fifty years (and six months) after the signing of the Treaty of Rome,
over 120 participants gathered in the Pieterskerk in Utrecht for a conference on Companies
Crossing Borders in Europe.! This special issue of the Utrecht Law Review contains a collection
of some of the lectures held at this conference, where the existing possibilities for companies to
move freely throughout the EU were discussed. The conference was not confined to a rendition
of the status quo on company mobility, however. Several speakers made valuable suggestions
for improvement.
The conference's opening speech was delivered by Philippe Pell, who is a deputy head
of unit at the DG Internal Market and Services with the European Commission. He illustrates that
from the birth of the EU in 1957, the European legislator's main concern in the area of company
law was to harmonize national company laws - especially with respect to the safeguards these
laws contain for stakeholders such as minority shareholders, creditors and employees. The EU
legislator's harmonization programme was driven by the desire to create a level playing field for
competing businesses from different Member States and to prevent Member States from
engaging in a 'race to the bottom' in order to attract investment. The actual facilitation of
corporate mobility was not a top priority for the European legislator at that time. This changed
when, finally, after a long and hard struggle, the European Company Statute was adopted in
200 i. This Regulation is the first piece of Community legislation enabling a cross-border merger
as well as the transfer of the company's seat to another Member State. The SE Statute was soon
followed by the Cross-border Merger Directive,4 which was adopted in 2005. This recent
legislative activity shows the Commission's shift in focus from harmonization of company laws
to facilitating cross-border mobility. The biggest boost for company mobility did not come from
the Commission, though, but from that other powerful EU institution, the European Court of
Justice. With its judgments in the cases Centros, Oberseering6 and Inspire Art,7 the ECJ forced
*  Professor of Company Law, Molengraaff Institute for Private Law, Utrecht University (the Netherlands).
1 This conference was organized by the MolengraaffInstitute for Private Law of Utrecht University under the aegis ofthe Centre for European
Company Law, an academic partnership between the universities of Leiden, Utrecht and Maastricht, which is connected with the Ius
Commune academic network.
2  See William W. Bratton, Joseph A. McCahery & Erik P.M. Vermeulen, How Does Corporate Mobility Affect Lawmaking? A Comparative
Analysis, Amsterdam Center for Law & Economics Working Paper no. 2008-0 1, p. 6, available online at www.ssrn.com
3  Council Regulation (EC) no. 2157/2001 on the Statute for a European Company (SE), OJ L-294, p. 1, and Council Directive 2001/86/EC
of 8 October 2001 supplementing the Statute for the European company with regard to the involvement of employees.
4 (Tenth) Council Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited
liability companies, OJL-3 10, p. 1.
5  ECJ 9 March 1999, Case C-212/97, Centros Ltd. v. Erhvervs-og Selskabsstyrelsen.
6  ECJ 5 November 2002, Case C-208/00, (berseering BVv. Nordic Construction Co Baumanagement GmbH.
7  ECJ 30 September 2003, Case C-167/01, Kamer van Koophandel en Fabrieken voor Amsterdam v. Inspire Art Ltd.

http.//Www. utrechtlawreview. ory,/ Volume 4, Issue ] (March) 2008

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