Corporate Migration and its Implications for the Protection of Creditors - Recent Developments in the Case Law of the European Court of Justice
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 Uberseering 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 establishes that the case law of the European Court of Justice regarding corporate migration has various implications for the protection of creditors. Yet, some of them are found to have a lesser effect than anticipated. 
A higher degree of harmonisation would be desirable, so that consumers and other small creditors are enabled to comprehend the system and to take their decisions consciously.
The European Company Statute in the Context of Freedom of Establishment
One of the key features of the new Europe-wide legal form “European Company” (“Societas Europaea” or “SE”) is the possibility of transferring the company's seat from one Member State to another without having to be wound up or to re-register. As this possibility does not exist for companies formed under national law, the formation of an SE will often present the only possibility for companies to transfer their incorporation and corporate headquarters between Member States. This is a big advantage and a milestone towards the European Internal Market. However, some doubts remain as to the practicability of the system. The mandatory linkage of the head office to the registered office within the same Member State according to Article 7 of the SE Regulation is very problematic and, in light of recent ECJ decisions such as Centros, Überseering and Inspire Art, may violate EC primary legislation. Why should companies that are formed under national law be allowed to have the head office in a Member State different from their registration state, while an SE—as an instrument of Community law and a symbol of the Internal Market—is not? Furthermore, the detailed procedural rules laid down in the Regulation are sometimes overprotective and may significantly reduce the attractiveness of the SE's mobility. It is argued that Article 7 of the SE Regulation is secondary law that itself is inconsistent with the (primary) EC Treaty. Furthermore, the Member States also tend to be overprotective when enacting safeguard measures for the benefit of creditors, minority shareholders and employees. Here again, freedom of establishment does not allow protectionist measures that contravene the gist of the SE's mobility.
Council Regulation No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
The European parliament and the Council of the European Union, Європейський парламент і Рада Європейського Союзу, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 67(4) and points (a), (c) and (e) of Article 81(2) thereof, Беручи до уваги Договір про функціонування Європейського Союзу (ДФЄС) та, зокрема, статтю 67(4) та пункти (a), (c) та (e) статті 81(2),