As noted elsewhere in this newsletter, the Action Plan recently adopted by the European Commission includes the further investigation of possible initiatives on the cross-border transfer of registered offices. This has been a topic of much debate over the past few years but has so far not resulted in any definitive action. However, in an effort to garner more evidence of the need for such an initiative, the Internal Market and Services Directorate General of the European Commission has published a consultation on the subject.
The purpose of the consultation is to get more in-depth information on the costs currently faced by companies transferring their registered offices abroad and on the range of benefits that could result from EU action on the subject.
The Directorate notes that, due to the complexity of the issues involved, the Commission has not yet taken any decision as to the need for and feasibility of a legislative instrument on the cross-border transfer of registered offices and that the Commission needs to analyse further whether or not the costs of such legislation would outweigh its benefits. The Directorate also comments that before the Commission makes its final decision it will need to be clear that a possible future initiative would bring a real added value to European companies, taking into account existing legislation (eg, in relation to SEs and cross-border mergers) and developments in ECJ case-law . The consultation, therefore, seeks to gather evidence in this respect.
The consultation takes the form of a questionnaire which asks (amongst other things) for details of:
- the methods that have been used previously to transfer a registered office (eg, winding-up and subsequent re-incorporation, use of a cross border merger, incorporation of an SE)
- the costs and administrative process (eg registration, notarisation etc) involved with any such transfer
- any other main obstacles involved, and
- whether or not the transfer of a company's headquarters should be compulsory on a transfer of its registered office.
The consultation can be accessed here. Responses must be submitted by 16 April 2013.