On December 12, the DOUE published Directive 2019/2121, which modifies the legal regime applicable to cross-border mergers and adds to that regime the possibility of carrying out transformations and splits of the same nature. The Directive has taken a long time to approve, considering that it integrated the so-called company law package together with the Digitalization Directive 2019/1151.
His recital (1), in this regard, states that:
(1) Directive (EU) 2017/1132 of the European Parliament and of the Council (3) regulates cross-border mergers of capital companies. The rules on cross-border mergers represent a milestone in improving the functioning of the internal market for companies and companies and their exercise of freedom of establishment. However, the evaluation of these standards shows that they need to be modified. In addition, it is appropriate to establish rules that regulate cross-border transformations and divisions, since Directive (EU) 2017/1132 contains only rules relating to national divisions of public limited companies.
In relation to the control at the origin of the legality of the operation and the issuance of the appropriate certificate, recitals (10) and (34)
(10) Given the complexity of cross-border transformations, mergers and divisions (referred to jointly, hereafter , “Cross-border operations”) and the multitude of interests at stake, it is appropriate, in order to provide legal certainty, to have control of the legality of cross-border operations before they take effect. To this end, the competent authorities of the Member States concerned must ensure that decisions on the approval of a cross-border operation are taken in a fair, objective and non-discriminatory manner, and on the basis of all relevant elements required by the Law of Union and national.
(34) In order to issue the certificate prior to the operation, the Member States of the company or the companies carrying out the cross-border operation must designate, under national law, one or more competent authorities to control the legality of the operation. Jurisdictional bodies, notaries or other authorities, a tax administration or an authority in the field of financial services may be the competent authority. If there is more than one competent authority, the company must be able to request the pre-operation certificate from a single authority, designated by the Member States, which must be coordinated with the other competent authorities. The competent authority must assess compliance with all relevant conditions and the correct completion of all procedures and procedures in that Member State, and decide whether to issue a certificate prior to the operation within three months of the request for the society, unless it has well-founded suspicions that the cross-border operation has been carried out for abusive or fraudulent purposes that have the effect or purpose of subtracting from Union or national law or avoiding it, or for criminal purposes, and the evaluation requires take additional information into consideration or conduct additional research activities.
For more information on the subject, Prof. Miquel illustrates the subject in his blog: https://merchantadventurer.wordpress.com/2019/12/12/directiva-2019-modifica-la-directiva-ue-2017- 1132-in-what-that-bind-to-transformations-mergers-and-cross-border divisions /