The Mobility of Companies in Europe and the Organizational Freedom of Company Founders

Schön Wolfgang
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Schön Wolfgang: Director, Max-Planck-Institute for Intellectual Property, Competition and Tax Law, Munich; Honorary Professor, Ludwig Maximilian University, Munich.

European Company and Financial Law Review, 2006, vol. 3, issue 2, 122-146

Abstract: Prologue: the mobility of a company law professorKlaus Hopt's disciples have asked me to give a presentation in his honour on the topic of “mobility of companies in Europe”. To be honest, I would have preferred another subject which focuses much more on the person at the centre of this event. The topic would read: “The mobility of a company law professor in Europe”. There exist more than enough articles on the future of the “real seat theory” and the “incorporation theory” regarding the legal framework for enterprises after the famous ECJ decisions in Centros, Überseering and Inspire Art. Nobody seems to care about individuals. Yet in the case of Klaus Hopt we should have second thoughts: Is he a legal person? Of course he is – there is hardly another writer who has acquired so much practical and scientific experience in law and affiliated research areas. Does he have a registered office? I think so – it should be at the Max Planck Institute for Foreign and International Private Law in Hamburg. Can we attribute a siège réel to him? This is hard to say. Starting his academic career in Tübingen, he has moved his chair to Florence, to Berne, to Munich and to Hamburg. If he were a company, he would have been liquidated on this itinerary at least three times. Currently he teaches in Paris, in New York and in many other places. He travels around the world, giving university lectures, attending committee meetings and organising conferences. Is it possible to say – as the European Court of Justice put it in Daily Mail – that he owes his existence to the domestic legal order of only one specific Member State of the European Union? Or should we qualify him as a supranational entity, the human role model for the “European Company”, who is able to move from country to country without losing his identity, being able to communicate in many different languages, feeling at home in many different legal orders?

Date: 2006
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DOI: 10.1515/ECFR.2006.006

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