This Commission staff working document concerns the impact assessment on the impact assessment on the Directive on the cross-border transfer of registered office.

As the law stands in most Member States, moving a registered office would typically imply the winding-up of the company in Member State A and its re-incorporation in Member State B. Given the high costs involved, the time involved and the related administrative burden, with sometimes more than 35 procedural steps to overcome, this hardly ever occurs and European companies are, in practice, deprived of the possibility of moving their place of registration within the EU.

Some Community measures, in particular the European Company Statute and the European Cooperative Society, already grant the right of transfer of registered office, however, this possibility is available only to companies established as Societas Europea (SE) or a European Cooperative Society. The practice to date has shown that not many companies decide to transfer their registered office on the basis of the SE Statute.

This impact assessment reviews the nature and scope of the problems raised by the absence of cross-border transfers of companies' registered offices within the EU and identifies policy options to address the situation at EU level.

The twin objectives of any initiative on this matter should be to improve the efficiency and competitive position of European companies by providing them with the possibility of transferring their registered office more easily and, hence, choose a legal environment that best suits their business needs, while at the same time guaranteeing the effective protection of the interests of the main stakeholders in respect of the transfer.

The report looks at different options which could further the achievement of these objectives. Firstly, the 'no action' option is examined. In particular, the possible impact of existing legislation and legislation about to enter into force, notably Directive 2005/56/EC on cross-border mergers which will enter into force on 16 December 2007 and the possible European Private Company Statute, is assessed. The impact assessment focuses on whether the time, costs and procedures required to complete the transfer of registered office would be substantially different from those required to carry out such transfer through a cross-border merger operation under the existing cross-border merger directive. Possible developments in the Community case law are also examined, in particular the currently pending case which concerns a transfer of registered office and whose outcome might affect the scope and content of a possible EU measure.

‘No action’ option would involve proposing Community action to facilitate the transfer of the registered office.

As for the nature of the instrument, the assessment considers four main options which are also compared with the 'no action' option.

Option 1 considers action by the Member States, i.e. signature of the convention on mutual recognition of companies. Option 2 : envisages a nonbinding and flexible instrument, i.e. a recommendation. The last two options concern the adoption of a binding Community instrument, a directive ( option 3 ) or a regulation ( option 4 ).

From the comparison of the different possible options the assessment concludes that 'no action' option or a directive would be suitable to achieve of the policy objectives. However, when the proportionality test is applied, it is not clear that adopting a directive would represent the least onerous way of achieving the objectives set. Since the practical effect of the existing legislation on cross-border mobility (i.e. the cross-border merger directive) is not yet known and that the issue of the transfer of the registered office might be clarified by the Court of Justice in the near future, the assessment concludes that it might be more appropriate to wait until the impacts of those developments can be fully assessed and the need and scope for any EU action better defined.

SEC(2007)1707
EUR-Lex

PURPOSE : to lay down provisions to facilitate cross-border mergers between various types of company with share capital governed by the laws of different Member States.

LEGISLATIVE ACT : Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies

CONTENT : This Directive on cross-border mergers of companies with share capital is aimed at facilitating the carrying-out of cross-border mergers between various types of limited liability companies governed by the laws of different Member States. The Directive was adopted at first reading, with the Italian delegation voting against.

The directive will facilitate the cooperation and consolidation between companies from different Member States by reducing the difficulties encountered, at the legislative and administrative levels, by cross-border mergers of companies in the Community. It is expected to reduce costs of such operations, while guaranteeing the requisite legal certainty and enabling as many companies as possible to benefit. This Directive constitutes an important step towards the EU's efforts in taking forward the Lisbon strategy.

The key features are as follows:

-The directive will apply to mergers of limited liability companies, as defined in this Directive, formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community, provided at least two of them are governed by the laws of different Member States.

-It provides for the possibility for Member States to apply certain provisions and formalities applying to domestic mergers to transnational mergers in a manner which takes into account the cross-border nature of such mergers. In addition, Member States will have the possibility to adopt specific provisions regarding the protection of minority members of a merging company, who have opposed the cross-border merger.

-The establishment of a minimum content of the common draft terms of cross-border merger for each of the companies concerned in the various Member States while leaving the companies free to agree on other items.

-The principle that the common draft terms of cross-border merger must be approved by the general meeting of each of those companies.

-The monitoring of the completion and legality of the decision-making process in each merging company must be carried out by the national authority having jurisdiction over each of those companies, whereas monitoring of the completion and legality of the cross-border merger should be carried out by the national authority having jurisdiction over the company resulting from the cross-border merger.

-On the key issue of employee participation rights, the general principle is that the national law governing the company resulting from the cross-border merger will apply. As an exception to this general principle, the principles and procedures concerning employee participation laid down in the European company (SE) Regulation and Directive should apply if at least one of the merging companies has an average number of employees in the six months before the publication of the draft terms of the cross-border merger that exceeds 500 and is operating under an employee participation system, or where the national law applicable to the company resulting from the crossborder merger does not either:

– provide for at least the same level of participation as operated in the relevant merging companies, measured by reference to the proportion of members of the administrative or of the supervisory organ or their committees or of the management group, which covers the profit units of the company, subject to employee representation, or

– provide for employees of establishments of the company resulting from the cross-border merger and situated in other Member States the same entitlement to exercise participation rights as is enjoyed by those employees employed in the Member State where the registered office of the company resulting from the cross-border merger is situated.

The threshold for the application of the European Company standard rules will be 33.3% of the total number of employees in all merging companies that must have operated under some kind of employee system.

Another important provision aims at protecting employees' rights in subsequent domestic mergers for a period of three years after the cross-border merger has taken effect.

ENTRY INTO FORCE : 15 December 2005

DATE OF TRANSPOSION : 15 December 2007

Directive 2005/56
OJ L 310 25.11.2005, p. 0001-0009

03632/5/2005

SP(2005)2482/2

By approving a report by Klaus-Heiner LEHNE (EPP-ED, DE), Parliament agreed on the general principle of the application of national law for mergers between companies of different Member States.

MEPs backed, with a number of amendments, a Commission proposal to facilitate cross-border mergers between EU companies with share capital. (Please refer to the summary dated 31/03/2005).

T6-0166/2005
OJ C 092 20.04.2006, p. 0020-0080 E

Results of vote in Parliament

By approving a report by Klaus-Heiner LEHNE (EPP-ED, DE), Parliament agreed on the general principle of the application of national law for mergers between companies of different Member States.

MEPs backed, with a number of amendments, a Commission proposal to facilitate cross-border mergers between EU companies with share capital. (Please refer to the summary dated 31/03/2005).

T6-0166/2005

A6-0089/2005

A6-0089/2005

The committee adopted the report by Klaus-Heiner LEHNE ( EPP-ED , DE ) amending the proposal under the 1st reading of the codecision procedure. Many of the key amendments were based on the agreement reached within the Council in November 2004:

- Article 1 was amended to provide a clearer definition of cross-border mergers. MEPs added that the directive shall also apply to such mergers where the law of at least one of the Member States concerned allows a cash payment in excess of 10% of the nominal value. Member States should be able to exempt cooperative societies from the scope of the directive. Furthermore, the directive should not apply to undertakings for collective investments in transferable securities (UCITS);

- Article 2 was amended to clarify the principle that each undertaking involved in a merger remains subject to its national merger laws insofar as the directive does not provide otherwise. Moreover, Member States should be specifically allowed to adopt provisions to protect minority members who have opposed the cross-border merger;

- Article 3 : the committee introduced additional requirements for information which must be contained in the common draft terms of cross-border mergers, such as the effects of the merger on employment, the opinions expressed by the employees concerned or their representatives, etc. Moreover, the management or administrative organ of each of the merging companies should be specifically required to draw up a report - to be made available to the members, the employees and their representatives - explaining the implications of the merger for members, creditors and employees;

- Article 14 was substantially amended as follows: although in principle a company created by a cross-border merger is subject to the employee participation regime of the state in which the new company is based, this principle shall not apply where the national law concerned fails to provide for at least the same level of participation as operated in the relevant merging companies or does not provide for employees of establishments of the new company situated in other Member States the same entitlement to exercise participation rights as employees in the state in which the company is based. This principle shall also not apply where at least one of the merging companies has more than 500 employees. A special Negotiating Body will be set up to determine a model for employee participation in the above cases. If no agreement is reached, the standard rules shall apply, under which the most far-reaching participation model of the merging companies is introduced in the new company, providing at least a third of employees in total enjoy participation prior to the merger. Member States may, in cases where standard rules apply, limit the proportion of employee representatives in the administrative organ of the new company to one-third. The participation rights of employees in the new company shall be protected in cases of subsequent domestic mergers within three years of the cross-border merger;

- the Commission shall review the directive within 5 years.

PE350.206

Pending the European Parliament's opinion at first reading, the Council agreed by a large majority on a general approach on a Directive on cross-border mergers of limited liability companies. The Italian delegation voted against. The Danish and the French delegations entered a parliamentary scrutiny reservation.

The agreement was reached on the basis of an amended Presidency compromise package. The key features of the agreed text as modified by the Council are:

- The Directive will apply to limited liability companies, encompassing the types of companies falling within the scope of the Council Directive 68/151/EEC, as well as those types of companies which meet the criteria of a definition very similar to the one contained in the Commission proposal. Member States agreed to exclude from the scope of the Directive undertakings for collective investment in transferable securities within the meaning of Article 1 of Directive 85/611/EEC (UCITS Directive) and on a provision allowing Member States to decide whether or not to apply this Directive to cross-border mergers involving a cooperative society even in the cases where the latter fall within the definition of limited liability company. The agreement also includes a provision making clear that the possibility for two or more companies to carry out a cross-border merger shall depend upon whether such companies are allowed to merge under the national law of all Member States involved.

- The text agreed provides for the possibility for Member States to apply certain provisions and formalities applying to domestic mergers to transnational mergers in a manner which takes into account the cross-border nature of such mergers. In addition, Member States will have the possibility to adopt specific provisions regarding the protection of minority members of a merging company, who have opposed the cross-border merger.

- The establishment of a minimum content of the common draft terms of cross-border merger for each of the companies concerned in the various Member States while leaving the companies free to agree on other items.

2624

CES0664/2004
OJ C 117 30.04.2004, p. 0043-0048

COM(2003)0703
EUR-Lex

COM(2003)0703
EUR-Lex