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TEÓRIA SPOLOČNOSTI V TRIÁDE ROZHODNUTÍ DAILY MAIL, CARTESIO A VALE – SPOLOČNOSŤ AKO FIKCIA, NEXUS KONTRAKTOV ALEBO REÁLNA OSOBA?

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Patakyová M., Czokolyová B.

Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)

2015

vol. 98

issue 1

3 – 21

Search for an answer to a basic question „What is a corporation?“ is still alive. It is highly questionable whether it is even possible to formulate a clear answer to this question as the role of corporations in society changes. Aim of this article was to provide the reader with a debate on the nature of the corporation in connection with the cross-border transfer of a company’s seat. The jurisprudence of the Court of Justice of the European Union in the cases Daily Mail, Cartesio and VALE was analysed through lances of the three main theories of the corporations – fiction theory, contractual theory and realist theory. Wording of the Court of Justice of the European Union in the case Daily Mail can be claimed to favour the fiction theory as the Court of Justice describes corporations as “creatures of national law” which goes in line with the classic definition of corporation as persona ficta by John Marshall. The same approach of the Court of Justice of the European Union was repeated in the case Cartesio. However, in this case new line of debate about the nature of corporations was opened. If the corporation decides to change its seat and at the same time the applicable law, the home state cannot require dissolution and liquidation of this company. In this situation corporation is transferring some “aura”, which is independent from the regulation of the home state under which the corporation was created. Such perception of corporation will fit into the realist theory of corporation as company will be considered to be a separate entity. Similar view on the nature of corporation can be detected in the case VALE. When the company VALE Építési kft required to be recorded into the Hungarian commercial register in time when VALE Costruzioni Srl, as predecessor of VALE Építési kft, was already deleted from the Italian commercial register. Thus by de lege lata analyses it could be claimed that company VALE Costruzioni Srl does not exist anymore. The Court of Justice however does not follow such argumentation and considers VALE Costruzioni Srl enough alive to be able to transfer to Hungary. From such approach we can claim that Court of Justice of the European Union follows realist theory of corporation in this judgement as it considers the existence of VALE to be independent from the home state regulation and its shareholders.

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1 Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)

1 Czokolyová B.

1 Patakyová M.

1 2015

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TEÓRIA SPOLOČNOSTI V TRIÁDE ROZHODNUTÍ DAILY MAIL, CARTESIO A VALE – SPOLOČNOSŤ AKO FIKCIA, NEXUS KONTRAKTOV ALEBO REÁLNA OSOBA?