The cross-border transfer of seat of commercial companies has been the subject of massive legal doctrine and ECJ case-law over the last decades. The studies on this topic have been mostly, however regrettably, limited to the validity as a principle of inbound or outbound cross-border transfers (cf. real seat / incorporation doctrines’ controversy), whilst the procedure to carry out such transactions has only been marginally scrutinized.
This observation most likely owes to the absence of any European or national legislative initiative in this respect. Indeed, until today, procedure for cross-border transfers has not yet been implemented in the Belgian Companies’ Code or the Luxembourg Law of 10 August 1915 on commercial companies. Moreover, the 14th Company Law Directive on the cross-border transfers is still to be issued.
Consequently, the procedure to perform a cross-border transfer in a safe and predictable way is still in infancy. This results in fragmented and, to some extent, disappointing approaches, paving the way to some kind of DIY rather than to a sound legal methodology.
A kind of DIY: cross-border transfer of seat and auditor’s report, in course of publication in JurisNews Sociétés review, is a comparative study led in common by two Belgian and Luxembourg practitioners on the Luxembourg and Belgian legal framework, practice and doctrine. This paper aims at clarifying the legal formalities which should be complied with in the context of inbound cross-border transfers to Luxembourg, respectively Belgium, and, in particular, whether the intervention of an external auditor is required in such circumstance.