In December 2015, the CJEU decided on two questions that were laid before them by the German Supreme Court (BGH) almost exactly one year before, in December 2014.
The first question was: Is § 64(2) GmbHG (§ 64 GmbHG in today’s Code) to be classified as insolvency law under art.4 EIR? (classification issue)
The second question was: Would the application of that provision to UK companies infringe their freedom of establishment?
(freedoms issue) In a very short and apodictic judgement, the Court answered
the first question in the affirmative and the second question in the negativ e, thus paving the way for the application of § 64 GmbHG to foreign companies
having their CoMI in Germany.
The concise approach taken by the Court does not do justice to the role of the judgement as a cornerstone or presumably even a final point on the mobility
of companies within the EU that was sparked by the decisions in Centros,
Überseering and Inspire Art.
These judgements, and in particular the last one, have given rise to a rich academic debate on whether , and if so, how protective rules of the incoming
state may be superimposed on the migrant company.