The European Company (SE) : a proposal for reform of cross-border mobility of SEs from a socio-legal and legal-economic perspective in the context of EU company law, insolvency law and tax law harmonization
(2025)
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- Authors
- Supervisors
- Traversa, Edoardo
- Abstract
- My PhD thesis in law examines the impact of European harmonization of cross-border mobility of national Plcs on the vertical competitiveness of the European Company (Societas Europaea (SE)) in the European Union (EU). The legal research question is how increasing harmonization of mobility of national Plcs, specifically in the fields of company law, insolvency law and tax law, has affected SE mobility to determine whether the SE real seat arrangement is still competitive. Based on an interdisciplinary methodological approach, I initially determine the compatibility of the real seat arrangement and its sanctions with the CJEU’s jurisprudence on the freedom of establishment of companies until Polbud from doctrinal and normative angles. This assessment builds on a detailed survey and explanation of Member States’ private international law connecting factors of companies (registered office, real seat or a variation thereof) and other real seat-like connecting factors, namely the COMI in insolvency/restructuring law and the POEM in direct tax law. Secondly, I assess the disadvantages of the real seat arrangement from the SE’s choice-of-law perspective on socio-legal grounds. My meso-level, quantitative empirical analysis of the incorporation and migration patterns of over 3300 SEs from 2004 until 2021 identifies their opportunity losses in terms of (lack of) choice of company and insolvency law, as compared to the broader freedom of movement of national companies, provided abuse is rigorously prevented. Thirdly, I reveal the shortcomings of the real seat arrangement in terms of anti-abuse and stakeholder protection from doctrinal and legal-economic perspectives. My comparison of the SE conversion procedure with the new procedure of harmonized cross-border conversions of Directive (EU) 2017/1132 for national companies shows that the former protects stakeholders less effectively and less efficiently against a loss of rights and abuse than the latter. Fourthly, I challenge the SE real seat arrangement as an anti-tax avoidance device from a doctrinal viewpoint. I argue that it would be more effective to apply the EU Anti-Tax Avoidance Directive (ATAD I and ATAD II) and the general anti-abuse rules (GAARs) of the direct tax directives, among other measures, to dual resident SEs to prevent tax avoidance and aggressive tax planning practices, such as conduit company schemes, domestic capital gains tax avoidance and dual loss utilization. Based on this comprehensive interdisciplinary analysis, I propose a far-reaching legal reform of the SE real seat arrangement, subject to rigorous anti-abuse safeguards in European company, insolvency and tax law. This conclusion is significant in the understudied legal research field of vertical regulatory competition, because it determines the optimal level of European (mobility) regulation of SEs compared to national companies and Plcs. My legal reform proposal strengthens the freedom of establishment of SEs, subject to additional protection of stakeholder rights and against abuse and fraud, which prevents a deregulatory race to the bottom among company forms in the EU. Restoring a regulatory level playing field is vital for the SE legal form, whose reorganization objective and popularity are mainly based on mobility in the EU.
- Affiliations
Citations
Goetz, E. M. (2025). The European Company (SE) : a proposal for reform of cross-border mobility of SEs from a socio-legal and legal-economic perspective in the context of EU company law, insolvency law and tax law harmonization. https://hdl.handle.net/2078.5/241944