“BREXIT Y DERECHO DE SOCIEDADES”, de Rafael Arenas García, publicado en el Anuario Español de Derecho Internacional Privado, 2017, vol. XVII, pp. 155-180.
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The UK has become a key state for understanding European company law. The possibility of incorporating a company in a European State, taking into account the quality of its company law, even in cases in which the company will have no economic activity in the incorporation State; has been used by European economic actors in order to create companies in the UK, but with their real seat in other EU Member States.
Brexit will impose the transformation of these companies. This transformation will be necessary to avoid the difficulties that would arise from the lack of recognition of such companies in the States following the “real seat” theory, once it will be no longer necessary to take into account the requirements derived from the freedom of establishment. There are specific problems related to the European corporate forms (SE, SCE and EEIG). It would be desirable that the agreement for the withdrawal of the EU from the EU should deal with the regime of these entities in those cases in which the entity’s registered office is located in the UK. This agreement should also regulate corporate transformation operations involving companies incorporated in the UK, which were initiated before the effective date of the exit from the EU but were not concluded at that time.
Finally, it does not seem possible at this moment to predict how the future partnership agreement between the EU and the UK will affect company law. The legal tools that now are in force and that are useful to project the freedom of establishment over British companies require also an agreement on free movement of persons that seemingly clash with the British negotiation goals.