CYIL vol. 12 (2021)

tomáš křivka CYIL 12 (2021) with the place of incorporation registered in the Commercial Register. The Company then does not have any possibility of moving its main administration to another state other than doing so at the cost of its cancellation and founding a new company in the other state. In the given case the Court was deciding whether Germany, supporting the seat principle, proceeded in accordance with primary law of the EU, when the German court decided about the fact that the Überseering company lost its legal personality pursuant to German law after it had transferred its main administration to the Netherlands. The CJEU expressly stated in this case that business companies founded in a valid manner according to legislation of one EU Member State can use all rights implying from the freedom of establishment in the other EU Member States without losing their legal or procedural personality. A consequence of this decision is the general rule stating that companies are authorised to transfer their actual seat (central administration) from one EU Member State to another one while maintaining their registered office in the original state of incorporation, regardless of the type of the company seat doctrine supported by the legal order of the domestic Member State. The decision was perceived as highly critical with regard to the seat principle and it seemed that on the basis of the approach selected by the CJEU the Member States recognising the seat principle within the framework of their national law would be forced to abandon this principle due to the contradiction with the freedom of establishment. It is essential to mention that in this case the matter concerned an outgoing situation when the assessment was focused on compatibility of legal regulations of the domestic state of the company, and in previous cases of a similar type the CJEU formerly tended to take the side of the Member State of the company’s incorporation. Case C-167/01 – Inspire Art 27 In this case the CJEU was dealing with the issue whether the destination Member State can impose special legal obligations on an organisational part of a company having its registered office in another (domestic) Member State of the EU. Exactly such a rule was contained in the Dutch legal order, and the competent Dutch court applied it in relation to the UK-based company “Inspire Art Ltd.” incorporated pursuant to English law in the United Kingdom, which wanted to establish its organisational part in the Netherlands. A Dutch legal act specially regulated the position of the so-called formally foreign companies which do not have an actual link to the state in which they were incorporated (as it was the case of the UK-based company “Inspire Art Ltd.” with a Dutch director having his permanent residence in the Netherlands), and imposed special requirements on these companies, such as e.g. the obligation to regularly publish annual financial statements and annual reports or the obligation to state a special appendix in the Commercial Register at its commercial name. Inspire Art Ltd. refused to state this appendix in its commercial name with reference to freedom of establishment and the matter arrived at the Registry Court which referred the case within the framework of the preliminary ruling procedure to the CJEU. In its decision, the Court referred to the Eleventh Directive, 28 which was already valid at that time and which harmonised the measures which can be imposed by the Member States on 27 Judgement of the Court of Justice of 30 September 2003. Kamer van Koophandel en Fabrieken voor Amsterdam v. Inspire Art Ltd . Case C-167/01. 28 Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State. At

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