An Essay on the Cross-border Transfer of a Company’s Real Seat

The paper addresses the issue of the admissibility of the cross-border transfer of a real seat of a Slovenian company. It argues that laconic statutory provisions governing the seat of a company do not require that a company’s statutory seat and real seat coincide, i.e. that the principle of coincidence between the statutory seat and the real seat is not applicable to domestic companies. This paper offers an original interpretation of the existing rules and case law that points to a conclusion that the cross-border transfer of the real seat of a Slovenian company is (already) admissible and does not lead to the loss of legal personality of the company. Such prohibition should be explicitly provided by the Companies Act. Reaching such a conclusion on the basis of the laconic statutory provisions governing the seat of a company, in my opinion, exceeds the limits of a teleological interpretation. However, companies that are established in Member States which in practice accept the real seat theory still need to consider the alternative options for cross-border mobility. This could be seen as an opportunity for the development of national laws to attract companies’ (re)incorporations, and thus also for regulatory competition between company laws. The latter will be especially relevant in case of ‘Brexit’ (the United Kingdom leaving the EU), which has been upheld by the referendum in June 2016. Arguably, a number of companies established in the UK would sought alternative legal systems for their (re)incorporation.