Cross-border transfer of company’s seat and exit taxation in the European Union

Company's cross-border transfer of seat represents a controversial issue in the EU because of the differences in Member States’ national legislation on conflict-of-laws and substantive issues. Therefore, the ECJ has dealt with the problem of company's cross- border transfer of real seat in its judgments. ECJ’s case law distinguishes cases of immigration from the cases of companies’ emigration. EU secondary legislation regulates cross-border transfer of registered seat of supranational companies and cross-border mergers of companies. Further obstacle to corporate mobility originates from the application of exit taxes in some Member States, which induces significant costs for cross-border mobility of companies. While exit taxation is regarded as a tool for protection of fiscal sovereignty of home Member States, a question arises as to whether exit taxes are compatible with the freedom of establishment in EU internal market. The ECJ dealt with this problem in the famous National Grid Indus case (C-371/10). It held that the imposition of the exit tax was justified by the overriding reasons of public policy (preservation of the allocation of taxing powers between Member States). On the other hand, it also held that a Member State should offer corporate taxpayers a choice between immediate taxation and tax deferral, whereby it is necessary to take into account subsequent decreases in value. Main aim of this paper is to analyse the limitations that primary and secondary EU legislation place upon Member States’ domestic provisions regulating cross-border transfer of seat, including relevant tax provisions. Particular attention is also given to the legal framework in the Republic of Croatia, newest EU Member State