Cross-border Transfer and Change of Lex Societatis After Polbud, C-106/16: Old Companies Do Not Die .... They Simply Fade Away to Another Country

The article analyses the Polbud-case C-106/16 and shows how this case adds an important new piece to the jigsaw puzzle of understanding the concept of freedom of establishment in EU-law. Polbud introduces new answers to questions about the cross-border conversion of companies, but it also reaffirms and clarifies well-known principles attached to the concept of freedom of establishment in EU-law. It must be concluded, that a brass plate in the host member state is still enough in some respects, and so in the Polbud case, but not in others. The case clearly gives some seal of approval to the concept of forum shopping. Trans-ferring a registered office, and thereby obtaining the nationality and legal identity of that host member state, in order to benefit from a more favourable legal regime, is an activity worthy of protection within the EU freedom of establishment. However, only companies within the group of countries, where the “connecting factor” is registered office/place of incorporation, will be invited to this “competition”, where gaining depends on transferring the registered office to places with a competitive legislation, while at the same time maintaining offices and plants, employees, and customers (economic activities) where business opportunities may seem to be the better.