CYIL vol. 12 (2021)

tomáš křivka CYIL 12 (2021) primary freedom of establishment, whilst the companies founded in a legal order of other states cannot make use of this basic freedom. 36 This means that the CJEU acting in this case refused to foster “further judicial harmonisation” of national law, but it “returned the ball” back to the side of the Member States, whose different positions in the Council were preventing, on a long-term basis, the harmonisation directive on cross-border transfers of the The facts of the VALE case are mirror-inverted in comparison to the state of the facts in the Cartesio case. In this case, the matter concerned a situation, when the Italy-based company “VALE” wanted to transfer its seat to Hungary, and therefore at first it filed a motion for deletion from the Italian Commercial Register, which was satisfied, and then it filed a motion for registration in the Hungarian Commercial Register. This operation was to involve cessation of the original Italy-based company of the Srl type and incorporation of a new company of the kft type pursuant to the Hungarian legal order, however, with the maintaining of legal personality, i.e. the new company was to become the legal successor of the original Italy-based company. Nevertheless, the Hungarian court refused to register the new company as the legal successor of the original Italy-based company, with justification that the required change in the legal form is only possible for domestic companies pursuant to Hungarian law, but not in case of a change in the legal form from a foreign “Srl” to Hungarian “kft”. This means that the matter concerned assessment of the so-called incoming situation, i.e. compatibility with the principle of freedom of establishment of the legal order of the state to which the company wanted to transfer its seat. While acting in this matter, the CJEU referred, quite logically, to its conclusions in the previous decision (SEVIC) regarding application of freedom of establishment also to cross- border transformations of companies and confirmed also its previous case law in such cases as Centros, Inspire Art or Überseering in relation to “incoming companies”. That is why the CJEU decided that the Hungarian rule establishes a discrimination approach towards foreign companies in comparison to domestic companies, and therefore it is in contradiction with the principle of freedom of establishment, because the prohibition of the maintaining of legal personality on a cross-border change in the seat (or on a change in the legal form of the original foreign entity to a Hungary-based company) cannot be excused by any serious public interest. The Court therefore differentiated between its conclusions from the Daily Mail or Cartesio decisions, according to which the company is a “national law creature”, which exists just thanks to national law and cannot get released unilaterally from the rules determined by this legal order, and on the other hand between the situation, when national law enables domestic companies to make certain legal acts (such as transformation to another legal form), but such a procedure is already forbidden for foreign companies with their seat in other EU Member States. A fact is that the last-mentioned situation establishes prohibited discrimination by nationality, which is not justified by any essential public interest, and therefore such provisions are in contradiction withe the freedom of establishment. It is 36 SZYDLO, M.: Emigration of Companies under the EC Treaty: Some Thoughts on the Opinion of the Advocate General in the Cartesio Case. In: Wolters Kluwer, European Review of Private Law , 2008, 16/6, p. 973–994. Available online from: http://www.kluwerlawonline.com/abstract.php?id=ERPL2008072 [cit. 30.06.2020]. 37 Judgement of the Court of Justice of 15 December 2011. VALE Építési kft . Case C-378/10. seat from being adopted. Case C-378/10: VALE 37

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