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Cross-border divisions represent an efficient restructuring method allowing competent economic actors to suppress potential negative synergies within a conglomerate or to reinforce a company’s share price by correcting an asymmetry of information. Despite their protection by freedom of establishment and their partial harmonisation by the recent EU Directive 2019/2121, they remain largely unexplored and their effective implementation remains obscure. Furthermore, this kind of operation generates significant challenges in terms of stakeholder protection that need to be addressed in an adequate manner to avoid any leeway for abusive behaviors. The present research will propose a sophisticated solution to these challenges through a detailed analysis of the caselaw of the European Court of justice on freedom establishment and an extensive comparative exercise with (i) the existing EU regime applicable to cross-border divisions by incorporation and cross-border mergers, (ii) the cross-border division regimes existing under Belgian and Luxembourg company law and (iii) the German, Austrian and French domestic division regimes.

Cross-border divisions represent an efficient restructuring method allowing competent economic actors to suppress potential negative synergies within a conglomerate or to reinforce a company’s share price by correcting an asymmetry of information. Despite their protection by freedom of establishment and their partial harmonisation by the recent EU Directive 2019/2121, they remain largely unexplored and their effective implementation remains obscure. Furthermore, this kind of operation generates significant challenges in terms of stakeholder protection that need to be addressed in an adequate manner to avoid any leeway for abusive behaviors. The present research will propose a sophisticated solution to these challenges through a detailed analysis of the caselaw of the European Court of justice on freedom establishment and an extensive comparative exercise with (i) the existing EU regime applicable to cross-border divisions by incorporation and cross-border mergers, (ii) the cross-border division regimes existing under Belgian and Luxembourg company law and (iii) the German, Austrian and French domestic division regimes.

This thesis addresses the correlation between creditor protection and thecross-border seat transfer of companies in the light of the case law of the European Court of Justice concerning the freedom of establishment of undertakings. After the restrictive outcome of Daily Mail, the judgment of the European Court of Justice in Centros took the legal community by surprise. The following cases of Überseering and Inspire Art intensified the ensuing debate even further. The issues brought up as possible consequences of the free choice of applicable company law included, in particular, concerns regarding the circumvention of national provisions for protecting creditors as well as a potential "race to the bottom". The central theme of this thesis is to which extent the state of creditor protection resulting from these cases was modified by the subsequent cases of SEVIC Systems, Cartesio and VALE. In order to answer this question, the abovementioned cases are analysed with respect to their relevance for the protection of creditors. Subsequently, the current situation of creditor protection based on the case law is assessed, focussing on certain issues, which arose during the previous analysis. Regarding a minimum capital requirement, the result is reached that it may help to increase the degree of protection, but does not provide a cure-all solution. Furthermore, a distinction is drawn between the legislation for creditor protection and the area of responsibility of the creditor. The disclosure obligation imposed on the company in Inspire Art is found to miss the point. In this area, the Eleventh Council Directive provides a certain degree of harmonisation. Concerning the issue of "vanishing" companies as caused by Cartesio, the judgment in VALE could provide a solution, if the Court decides to follow the Advocate General’s opinion. Furthermore, the occurrence of a "race to the bottom" with respect to creditor protection is found to be unlikely. Accordingly, this thesis estab

This thesis addresses the correlation between creditor protection and thecross-border seat transfer of companies in the light of the case law of the European Court of Justice concerning the freedom of establishment of undertakings. After the restrictive outcome of Daily Mail, the judgment of the European Court of Justice in Centros took the legal community by surprise. The following cases of Überseering and Inspire Art intensified the ensuing debate even further. The issues brought up as possible consequences of the free choice of applicable company law included, in particular, concerns regarding the circumvention of national provisions for protecting creditors as well as a potential "race to the bottom". The central theme of this thesis is to which extent the state of creditor protection resulting from these cases was modified by the subsequent cases of SEVIC Systems, Cartesio and VALE. In order to answer this question, the abovementioned cases are analysed with respect to their relevance for the protection of creditors. Subsequently, the current situation of creditor protection based on the case law is assessed, focussing on certain issues, which arose during the previous analysis. Regarding a minimum capital requirement, the result is reached that it may help to increase the degree of protection, but does not provide a cure-all solution. Furthermore, a distinction is drawn between the legislation for creditor protection and the area of responsibility of the creditor. The disclosure obligation imposed on the company in Inspire Art is found to miss the point. In this area, the Eleventh Council Directive provides a certain degree of harmonisation. Concerning the issue of "vanishing" companies as caused by Cartesio, the judgment in VALE could provide a solution, if the Court decides to follow the Advocate General’s opinion. Furthermore, the occurrence of a "race to the bottom" with respect to creditor protection is found to be unlikely. Accordingly, this thesis estab

This publication is with permission of the rights owner freely accessible due to an Alliance licence and a national licence (funded by the DFG, German Research Foundation) respectively., The two constitutional principles of subsidiarity and integration in the European Union clearly force the system to be one of jurisdictional competition. The text books still do not start from the assumption that diversity, and the tools for making it compatible with integration, are just as important an element of European company law as harmonisation. This paper argues that they should. This would then lead them to discuss in which areas there should be such competition, to identify the conditions for functioning competition and to try to suggest where and how to enhance it. Diversity clearly requires information. Therefore, the second core element of the structure of European company law consists of disclosure rules. These rules are indeed clearly dominant in European company law, be it in accounting law, the law of capital markets or in traditional EU Company Law Directives. On this basis, other important features — pairs of concepts — can also be explained: (1) the fact that European company law focuses on limited liability companies and sometimes exclusively on PLCs; (2) the fact that European company law is so extroverted, that is to say, the regulation of the third-party relationship is so dominant, that shareholders’ rights are really regulated only insofar as the proportionate share is ‘constitutionally’ guaranteed; and (3) the fact that capital markets must clearly be seen as an integral part of European company law and may not be disregarded in any description., Peer Reviewed