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"Companies or firms" means companies or firms constituted under civil or
commercial law, including cooperative societies, and other legal persons governed by
public or private law, save for those which are non‐profit‐making.
Which consistency in EU PrIL instruments?
=
Article 23 Rome II Article 19 Rome I
ONLY the place of central administration
is important for the determination of the
≠ Art. 63 Brussels I Recast
Recital 39 of Rome I:
“For the sake of legal certainty there should be a clear definition of habitual
residence, in particular for companies and other bodies, corporate or
unincorporated.
A single criterion is imposed “otherwise, the parties would be unable to
foresee the law applicable to their situation.”
Need of certainty
Within the EU context, the interpretation of the notion has been particularly
significant in relation with insolvency cases (application of the Regulation on
Insolvency proceedings).
The ECJ has connected the notion of the “centre of a debtor’s main
interests” with the “place of company’s central administration” (see
Eurofood, Interedil, Mediasucre…).
Even if the context is quite particular for insolvency proceedings, two
elements should be taken into consideration:
• the need for a complex appreciation (for instance, the mere presence of
assets is not sufficient), and
• the fact that the situation must be ascertainable for third parties.
EU Member States’ case law
Young v Anglo American South Africa Ltd and Others (No 2) (2014)
That was the same thing as saying it was the place where the company, through
its relevant organs, conducted its entrepreneurial management; for that
management had to involve making decisions that were essential for the
company’s operations. The focus ought to be on the decisions of the company
itself, not on other companies in the group or the group as a whole”.
How to assess the “central administration” of complex
structured company? Holding?
Structure: tax oriented
D1 (…)
C1 United
But where is the “central
B1 (Guernsey) administration”?
Kingdom)
D2
A (Cayman
Island) Is there only one?
C’2
D’1
(Luxembourg)
B2
(Netherlands) What is the link with
C’3
(Switzerland) nationality, if any?
Thank you!