Corporate Mobility and the Costs of Regulation

Marco BechtECARES, Université Libre de Bruxelles and ECGI

Colin MayerSaïd Business School, University of Oxford and

ECGI

Hannes Wagner Saïd Business School, University of Oxford

Motivation

• Rulings by European Court of Justice (ECJ) establish freedom of incorporation in EU

• Deregulation of access to company law

Situation Pre-ECJ Rulings

• Most Member States enjoyed “monopoly” in the production of company law

• Entrepreneur with a project forced to purchase corporate contract of country (countries) where real activity takes place (= real seat principle)

• Member States regulate new company formation (minimum capital, procedures)

• Member States set fees (registration, notary)

Situation Post-ECJ Rulings

• Entrepreneur with a project can freely choose from EU15 (EU25) corporate contracts irrespective of where real activity takes place (= incorporation principle)

• Entrepreneur can choose regulation of new company formation (minimum capital, procedures)

• Entrepreneur can seek lowest fee (registration, notary)

Limitations

• “Lock-in” : Transfer of seat often requires winding up “old” company– BRITE S.E. pilot– planned 14th Directive

• Branching can be difficult and costly– BRITE branching pilot– (possibly) reform of 11th Directive– Registration agents offer partial solutions

Results

• Substantial mobility post-Centros

• Only observed for private Ltd not public companies

• Reason is to avoid minimum capital and cost of incorporation

• Countries are responding by adopting U.K. standard

Outline

• Empirical Methodology

• Mobility Rates– Pre- and post Centros– EU to UK, rest of the world to UK

• Robustness : clustering and agents

• Drivers of mobility

• What next?

German GmbH vs. German Ltd

• German GmbH– Directors live in Germany (majority, all)– Real activities conducted from Germany– GmbH under German company law

• German Limited– Directors live in Germany (majority, all)– Real activities conducted from Germany– Private Ltd under U.K. company law

Examples

Aktivplus Limited

Aktivplus Ltd in Germany

German Trading Address

German CEO

Foreign Company Registration Number

Munich Company Register

German VAT Number

Aktivplus Ltd

UK Address of German

Go-Ahead Limited

formation agent8000+

German Ltd companies at this address

Aktivplus Ltd

Winterthaler Sonnenschutz und Rolladenbau Ltd

Winterthaler Sonnenschutz und Rolladenbau Ltd

UK Address of German

Limited24.deformation

agent

1200+ German Ltd

companies at this address

Winterthaler Sonnenschutz und Rolladenbau Ltd

Freebike Ltd

Freebike Ltd

UK Address of HJC.nl

formation agent

3600+ Dutch Ltd

companies at this address

Example 3 : Freebike Ltd

Example 4 : Aloft Ltd

Example 4 : Aloft Ltd

UK Trading Address of Hare Wilson AssociatesChartered

Accountants and Auditors

146+ companies at this

address

Example 4 : Aloft Ltd

Definition of Foreign Ltd

• Majority or all directors reside outside the United Kingdom– German Ltd (or Plc) : Majority or all

directors reside in Germany– Dutch Ltd (or Plc) : Majority or all directors

reside in the Netherlands

• All new firms with limited liability in the UK between 1997 and 2005

• Data from Companies House via FAME– 1.96 million new companies– 3.74 million directors

• Compile database with incorporation dates, company type, registered office addresses, identity of directors and company secretaries and their home addresses

Data

The ECJ Decisions

• Centros Ltd. : March 1999– Danish company register refuses to register

Danish Limited (branch of UK Ltd with real seat in Denmark)

• Überseering B.V. : November 2002– German court refuses to deal with German B.V.

(Dutch B.V. with real seat in Germany)

• Inspire Art Ltd. : September 2003– Dutch register seeks to impose foreign company

conditions on Dutch Limited company (branch of UK Ltd with real seat in the Netherlands)

Timeline

Pre-CentrosPeriod

InterimPeriod

Post-Überseering

Period

1997 1998 1999 2000 2001 2002 2003 2004 2005

Centros Überseering Inspire Art

New Private Limited Companies Sum EU25

0

5000

10000

15000

20000

25000

1997 1998 1999 2000 2001 2002 2003 2004 2005

SUM EU 25

New Private Limited Companies – Average EU25 countries

0

100

200

300

400

500

600

700

800

900

1997 1998 1999 2000 2001 2002 2003 2004 2005

Average EU25

New Private Limited Companies By Country – Ratio Post / Pre

3.65.5 5.6 6.5 6.9 7.2 7.8

10.814.8

29.4

0

5

10

15

20

25

30

35

Post/Pre

EU25 Average Poland Latvia Slovenia Lithuania

Hungary Denmark Austria Estonia Germany

New Private Limited Companies By Country – Sum Post

1861 1005 1059 1072 1084 1341 13492764

4277 4334

23595

0

5000

10000

15000

20000

25000

SUM Post

EU25 Average Austria Ireland Spain

Belgium Italy Denmark Cyprus

France Netherlands Germany

EU-Rest of the World

Formal Test

• “Differences-in-Differences”– Centros & EU : +92%

Why are companies incorporating in the UK?

• Minimum capital– capital constraints, risk aversion

• Time

• Number of Formalities

• Direct cost of incorporation

Robustness of Method

• Do we measure Aktivplus type mobility or more UK subsidiaries of EU firms?

• Robustness of Method : address clustering– Subsidiaries with real activities in U.K. have

physical U.K. address– Most Foreign Limited companies have a “virtual

address”

Percentage of EU Ltds registered by a known Agent

12.90%

22.30%

39.10%

51.30%

64.80%

11.70%

62.90%

41.40%

0.00%

10.00%

20.00%

30.00%

40.00%

50.00%

60.00%

70.00%

1997 1998 1999 2000 2001 2002 2003 2004 2005

Known Agent Excluding Go-Ahead

Branching Red-Tape

• Current branch registration requirements discourage use of Limited– official translation requirements etc.

• For large countries local agents are solving the problem– standard articles and standard translations

• No local agents for small countries– Market not large enough in small countries– De facto discrimination against small entrepreneurs

in small countries wanting to use the Limited

Example

Caveats

• No evidence (yet) on survival for foreign Limited companies (requires Companies House data)

• Cannot rule out some “fly by night” motivation, using cross-border loopholes or information asymmetries in some cases for some countries

Open Questions

• Temporary phenomenon or here to stay?

• Is there a “branching gap”?

• Is the U.K. the only “recipient” of such mobility?

Certain Conclusion

• Much work to do for Registers, EBR, BRITE, Member States and the European Commission