What changed, Directive (EU) 2019/2121

+ ### Article 1 — Amendments to Directive (EU) 2017/1132
− ### art_1
− Article 1
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+ (1) in Article 1, the sixth indent is replaced by the following: ‘– cross-border conversions, cross-border mergers and cross-border divisions of limited liability companies,’;
− | (1) | in Article 1, the sixth indent is replaced by the following:‘–cross-border conversions, cross-border mergers and cross-border divisions of limited liability companies,’; |
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− | ‘– | cross-border conversions, cross-border mergers and cross-border divisions of limited liability companies,’; |
+ (2) in Article 18(3), the following point is inserted: ‘(aa) the documents and information referred to in Articles 86g, 86n, 86p, 123, 127a, 130, 160g, 160n and 160p;’;
− | (2) | in Article 18(3), the following point is inserted:‘(aa)the documents and information referred to in Articles 86g, 86n, 86p, 123, 127a, 130, 160g, 160n and 160p;’; |
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− | ‘(aa) | the documents and information referred to in Articles 86g, 86n, 86p, 123, 127a, 130, 160g, 160n and 160p;’; |
+ (3) Article 24 is amended as follows: (a) point (e) is replaced by the following: ‘(e) the detailed list of data to be transmitted for the purpose of exchanging information between registers, as referred to in Articles 20, 28a, 28c, 30a and 34;’; (b) the following point is inserted: ‘(ea) the detail…
− | (3) | Article 24 is amended as follows:(a)point (e) is replaced by the following:‘(e)the detailed list of data to be transmitted for the purpose of exchanging information between registers, as referred to in Articles 20, 28a, 28c, 30a and 34;’;(b)the following point is inserted:‘(ea)the detailed l…
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− | (a) | point (e) is replaced by the following:‘(e)the detailed list of data to be transmitted for the purpose of exchanging information between registers, as referred to in Articles 20, 28a, 28c, 30a and 34;’; |
− | ‘(e) | the detailed list of data to be transmitted for the purpose of exchanging information between registers, as referred to in Articles 20, 28a, 28c, 30a and 34;’; |
− | (b) | the following point is inserted:‘(ea)the detailed list of data to be transmitted for the purpose of exchanging information between registers and for the purposes of disclosure, as referred to in Articles 86g, 86n, 86p, 123, 127a, 130, 160g, 160n and 160p;’; |
− | ‘(ea) | the detailed list of data to be transmitted for the purpose of exchanging information between registers and for the purposes of disclosure, as referred to in Articles 86g, 86n, 86p, 123, 127a, 130, 160g, 160n and 160p;’; |
− | (c) | in the third paragraph, the following sentence is added: ‘The Commission shall adopt the implementing acts referred to in point (ea) by 2 July 2020.’; |
+ (4) the title of Title II is replaced by the following: ‘**CONVERSIONS, MERGERS AND DIVISIONS OF LIMITED LIABILITY COMPANIES**’;
− | (4) | the title of Title II is replaced by the following: ‘ CONVERSIONS, MERGERS AND DIVISIONS OF LIMITED LIABILITY COMPANIES ’; |
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+ (5) in Title II, the following Chapter is inserted before Chapter I: ‘*CHAPTER -I* ***Cross-border conversions*** Article 86a Scope **1.** This Chapter shall apply to conversions of limited liability companies formed in accordance with the law of a Member State and having their registered office, ce…
− | (5) | in Title II, the following Chapter is inserted before Chapter I: ‘ CHAPTER -ICross-border conversionsArticle 86aScope1. This Chapter shall apply to conversions of limited liability companies formed in accordance with the law of a Member State and having their registered office, central admin…
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− | (a) | the company is in liquidation and has begun to distribute assets to its members; |
− | (b) | the company is subject to resolution tools, powers and mechanisms provided for in Title IV of Directive 2014/59/EU. |
− | (a) | the subject of insolvency proceedings or subject to preventive restructuring frameworks; |
− | (b) | the subject of liquidation proceedings other than those referred to in point (a) of paragraph 3, or |
− | (c) | the subject of crisis prevention measures as defined in point (101) of Article 2(1) of Directive 2014/59/EU. |
− | (1) | “company” means a limited liability company of a type listed in Annex II that carries out a cross-border conversion; |
− | (2) | “cross-border conversion” means an operation whereby a company, without being dissolved or wound up or going into liquidation, converts the legal form under which it is registered in a departure Member State into a legal form of the destination Member State, as listed in Annex II, and transf…
− | (3) | “departure Member State” means a Member State in which a company is registered prior to a cross-border conversion; |
− | (4) | “destination Member State” means a Member State in which a converted company is registered as a result of a cross-border conversion; |
− | (5) | “converted company” means a company formed in a destination Member State as a result of a cross-border conversion. |
− | (a) | the legal form and name of the company in the departure Member State and the location of its registered office in that Member State; |
− | (b) | the legal form and name proposed for the converted company in the destination Member State and the proposed location of its registered office in that Member State; |
− | (c) | the instrument of constitution of the company in the destination Member State, where applicable, and the statutes if they are contained in a separate instrument; |
− | (d) | the proposed indicative timetable for the cross-border conversion; |
− | (e) | the rights conferred by the converted company on members enjoying special rights or on holders of securities other than shares representing the company capital, or the measures proposed concerning them; |
− | (f) | any safeguards offered to creditors, such as guarantees or pledges; |
− | (g) | any special advantages granted to members of the administrative, management, supervisory or controlling bodies of the company; |
− | (h) | whether any incentives or subsidies were received by the company in the departure Member State in the preceding five years; |
− | (i) | details of the offer of cash compensation for members in accordance with Article 86i; |
− | (j) | the likely repercussions of the cross-border conversion on employment; |
− | (k) | where appropriate, information on the procedures by which arrangements for the involvement of employees in the definition of their rights to participation in the converted company are determined pursuant to Article 86l. |
− | (a) | the cash compensation and the method used to determine the cash compensation; |
− | (b) | the implications of the cross-border conversion for members; |
− | (c) | the rights and remedies available to members in accordance with Article 86i. |
− | (a) | the implications of the cross-border conversion for employment relationships, as well as, where applicable, any measures for safeguarding those relationships; |
− | (b) | any material changes to the applicable conditions of employment or to the location of the company’s places of business; |
− | (c) | how the factors set out in points (a) and (b) affect any subsidiaries of the company. |
− | (a) | indicate the method or methods used to determine the cash compensation proposed; |
− | (b) | state whether the method or methods used are adequate for the assessment of the cash compensation, indicate the value arrived at using such methods and give an opinion on the relative importance attributed to those methods in arriving at the value decided on; and |
− | (c) | describe any special valuation difficulties which have arisen. |
− | (a) | the draft terms of the cross-border conversion; and |
− | (b) | a notice informing the members, creditors and representatives of the employees of the company, or, where there are no such representatives, the employees themselves, that they may submit to the company, at the latest five working days before the date of the general meeting, comments concerni…
− | (a) | the legal form and name of the company and the location of its registered office in the departure Member State and the legal form and name proposed for the converted company in the destination Member State and the proposed location of its registered office in that Member State; |
− | (b) | the register in which the documents referred to in Article 14 are filed in respect of the company and its registration number in that register; |
− | (c) | an indication of the arrangements made for the exercise of the rights of creditors, employees and members; and |
− | (d) | details of the website from which the draft terms of the cross-border conversion, the notice referred to in paragraph 1, the independent expert report and complete information on the arrangements referred to in point (c) of this paragraph may be obtained online and free of charge. |
− | (a) | the cash compensation referred to in point (i) of Article 86d has been inadequately set; or |
− | (b) | the information given with regard to the cash compensation referred to in point (a) did not comply with the legal requirements. |
− | (a) | provide for at least the same level of employee participation as operated in the company prior to the cross-border conversion, measured by reference to the proportion of employee representatives among the members of the administrative or supervisory body or their committees or of the managem…
− | (b) | provide for employees of establishments of the converted company that are situated in other Member States the same entitlement to exercise participation rights as is enjoyed by those employees employed in the destination Member State. |
− | (a) | Article 3(1), points (a)(i) and (b) of Article 3(2), Article 3(3), the first two sentences of Article 3(4), and Article 3(5) and (7); |
− | (b) | Article 4(1), points (a), (g) and (h) of Article 4(2), and Article 4(3) and (4); |
− | (c) | Article 5; |
− | (d) | Article 6; |
− | (e) | Article 7(1), with the exception of the second indent of point (b); |
− | (f) | Articles 8, 10, 11 and 12; and |
− | (g) | point (a) of Part 3 of the Annex. |
− | (a) | shall confer on the special negotiating body the right to decide, by a majority of two thirds of its members representing at least two thirds of the employees, not to open negotiations or to terminate negotiations already opened and to rely on the rules on participation in force in the desti…
− | (b) | may, in the case where, following prior negotiations, standard rules for participation apply and notwithstanding such rules, decide to limit the proportion of employee representatives in the administrative body of the converted company. However, if, in the company, employee representatives c…
− | (c) | shall ensure that the rules on employee participation that applied prior to the cross-border conversion continue to apply until the date of application of any subsequently agreed rules or, in the absence of agreed rules, until the application of standard rules in accordance with point (a) of…
− | (a) | the draft terms of the cross-border conversion; |
− | (b) | the report and the appended opinion, if any, referred to in Article 86e, as well as the report referred to in Article 86f, where they are available; |
− | (c) | any comments submitted in accordance with Article 86g(1); and |
− | (d) | information on the approval by the general meeting referred to in Article 86h. |
− | (a) | the number of employees at the time of the drawing up of the draft terms of the cross-border conversion; |
− | (b) | the existence of subsidiaries and their respective geographical location; |
− | (c) | information regarding the satisfaction of obligations due to public bodies by the company. |
− | (a) | all documents and information submitted to the competent authority in accordance with paragraphs 2 and 3; |
− | (b) | an indication by the company that the procedure referred to in Article 86l(3) and (4) has started, where relevant. |
− | (a) | where it is determined that the cross-border conversion complies with all the relevant conditions and that all necessary procedures and formalities have been completed, the competent authority shall issue the pre-conversion certificate; |
− | (b) | where it is determined that the cross-border conversion does not comply with all the relevant conditions or that not all necessary procedures and formalities have been completed, the competent authority shall not issue the pre‐conversion certificate and shall inform the company of the reason…
− | (a) | in the register of the destination Member State, that the registration of the converted company is the result of a cross-border conversion; |
− | (b) | in the register of the destination Member State, the date of registration of the converted company; |
− | (c) | in the register of the departure Member State, that the striking off or removal of the company from the register is the result of a cross-border conversion; |
− | (d) | in the register of the departure Member State, the date of striking off or removal of the company from the register; |
− | (e) | in the registers of the departure Member State and of the destination Member State, respectively, the registration number, name and legal form of the company and the registration number, name and legal form of the converted company. |
− | (a) | all the assets and liabilities of the company, including all contracts, credits, rights and obligations, shall be those of the converted company; |
− | (b) | the members of the company shall continue to be members of the converted company, unless they have disposed of their shares as referred to in Article 86i(1); |
− | (c) | the rights and obligations of the company arising from contracts of employment or from employment relationships and existing at the date on which the cross-border conversion takes effect shall be those of the converted company. |
− | (a) | the expert, or the legal person on whose behalf the expert is operating, is independent from and has no conflict of interest with the company applying for the pre-conversion certificate; and |
− | (b) | the expert’s opinion is impartial and objective, and is given with a view to providing assistance to the competent authority in accordance with the independence and impartiality requirements under the law and professional standards to which the expert is subject. |
+ (6) in Article 119, point (2) is amended as follows: (a) at the end of point (c) ‘; or’ is added; (b) the following point is added: ‘(d) one or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to another existing company, the acquiring comp…
− | (6) | in Article 119, point (2) is amended as follows:(a)at the end of point (c) ‘; or’ is added;(b)the following point is added:‘(d)one or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to another existing company, the acquiring compan…
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− | (a) | at the end of point (c) ‘; or’ is added; |
− | (b) | the following point is added:‘(d)one or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to another existing company, the acquiring company, without the issue of any new shares by the acquiring company, provided that one person hold…
− | ‘(d) | one or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to another existing company, the acquiring company, without the issue of any new shares by the acquiring company, provided that one person holds directly or indirectly all the…
+ (7) Article 120 is amended as follows: (a) paragraph 4 is replaced by the following: **‘4.** Member States shall ensure that this Chapter does not apply to companies in either of the following circumstances:(a) the company is in liquidation and has begun to distribute assets to its members;(b) the c…
− | (7) | Article 120 is amended as follows:(a)paragraph 4 is replaced by the following:‘4. Member States shall ensure that this Chapter does not apply to companies in either of the following circumstances:(a)the company is in liquidation and has begun to distribute assets to its members;(b)the compan…
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− | (a) | paragraph 4 is replaced by the following:‘4. Member States shall ensure that this Chapter does not apply to companies in either of the following circumstances:(a)the company is in liquidation and has begun to distribute assets to its members;(b)the company is subject to resolution tools, pow…
− | (a) | the company is in liquidation and has begun to distribute assets to its members; |
− | (b) | the company is subject to resolution tools, powers and mechanisms provided for in Title IV of Directive 2014/59/EU.’; |
− | (b) | the following paragraph is added:‘5. Member States may decide not to apply this Chapter to companies which are:(a)the subject of insolvency proceedings or subject to preventive restructuring frameworks;(b)the subject of liquidation proceedings other than those referred to in point (a) of par…
− | (a) | the subject of insolvency proceedings or subject to preventive restructuring frameworks; |
− | (b) | the subject of liquidation proceedings other than those referred to in point (a) of paragraph 4, or |
− | (c) | the subject of crisis prevention measures as defined in point (101) of Article 2(1) of Directive 2014/59/EU.’; |
+ (8) Article 121 is amended as follows: (a) in paragraph 1, point (a) is deleted; (b) paragraph 2 is replaced by the following: **‘2.** The provisions and formalities referred to in point (b) of paragraph 1 of this Article shall, in particular, include those concerning the decision-making process rel…
− | (8) | Article 121 is amended as follows:(a)in paragraph 1, point (a) is deleted;(b)paragraph 2 is replaced by the following:‘2. The provisions and formalities referred to in point (b) of paragraph 1 of this Article shall, in particular, include those concerning the decision-making process relating…
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− | (a) | in paragraph 1, point (a) is deleted; |
− | (b) | paragraph 2 is replaced by the following:‘2. The provisions and formalities referred to in point (b) of paragraph 1 of this Article shall, in particular, include those concerning the decision-making process relating to the merger and the protection of employees as regards rights other than t…
+ (9) Article 122 is amended as follows: (a) points (a) and (b) are replaced by the following: ‘(a) for each of the merging companies, its legal form and name, and the location of its registered office, and the legal form and name proposed for the company resulting from the cross-border merger and the…
− | (9) | Article 122 is amended as follows:(a)points (a) and (b) are replaced by the following:‘(a)for each of the merging companies, its legal form and name, and the location of its registered office, and the legal form and name proposed for the company resulting from the cross-border merger and the…
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− | (a) | points (a) and (b) are replaced by the following:‘(a)for each of the merging companies, its legal form and name, and the location of its registered office, and the legal form and name proposed for the company resulting from the cross-border merger and the proposed location of its registered …
− | ‘(a) | for each of the merging companies, its legal form and name, and the location of its registered office, and the legal form and name proposed for the company resulting from the cross-border merger and the proposed location of its registered office; |
− | (b) | the ratio applicable to the exchange of securities or shares representing the company capital and the amount of any cash payment, where appropriate;’; |
− | (b) | points (h) and (i) are replaced by the following:‘(h)any special advantages granted to members of the administrative, management, supervisory or controlling bodies of the merging companies;(i)the instrument of constitution of the company resulting from the cross-border merger, where applicab…
− | ‘(h) | any special advantages granted to members of the administrative, management, supervisory or controlling bodies of the merging companies; |
− | (i) | the instrument of constitution of the company resulting from the cross-border merger, where applicable, and the statutes if they are contained in a separate instrument;’; |
− | (c) | the following points are added:‘(m)details of the offer of cash compensation for members in accordance with Article 126a;(n)any safeguards offered to creditors, such as guarantees or pledges.’; |
− | ‘(m) | details of the offer of cash compensation for members in accordance with Article 126a; |
− | (n) | any safeguards offered to creditors, such as guarantees or pledges.’; |
+ (10) Articles 123 and 124 are replaced by the following: ‘Article 123 Disclosure **1.** Member States shall ensure that the following documents are disclosed by the company and made publicly available in the register of the Member State of each of the merging companies, at least one month before the…
− | (10) | Articles 123 and 124 are replaced by the following:‘Article 123Disclosure1. Member States shall ensure that the following documents are disclosed by the company and made publicly available in the register of the Member State of each of the merging companies, at least one month before the da…
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− | (a) | the common draft terms of the cross-border merger; and |
− | (b) | a notice informing the members, creditors and representatives of the employees of the merging company, or, where there are no such representatives, the employees themselves, that they may submit to their respective company, at the latest five working days before the date of the general meeti…
− | (a) | for each of the merging companies its legal form and name and the location of its registered office and the legal form and name proposed for any newly created company and the proposed location of its registered office; |
− | (b) | the register in which the documents referred to in Article 14 are filed in respect of each of the merging companies, and the registration number of the respective company in that register; |
− | (c) | an indication, for each of the merging companies, of the arrangements made for the exercise of the rights of creditors, employees and members; and |
− | (d) | details of the website from which the common draft terms of the cross-border merger, the notice referred to in paragraph 1, the independent expert report and complete information on the arrangements referred to in point (c) of this paragraph may be obtained online and free of charge. |
− | (a) | the cash compensation and the method used to determine the cash compensation; |
− | (b) | the share exchange ratio and the method or methods used to arrive at the share exchange ratio, where applicable; |
− | (c) | the implications of the cross-border merger for members; |
− | (d) | the rights and remedies available to members in accordance with Article 126a. |
− | (a) | the implications of the cross-border merger for employment relationships, as well as, where applicable, any measures for safeguarding those relationships; |
− | (b) | any material changes to the applicable conditions of employment or to the location of the company’s places of business; |
− | (c) | how the factors set out in points (a) and (b) affect any subsidiaries of the company. |
+ (11) Article 125 is amended as follows: (a) in paragraph 1, the following subparagraph is added: ‘However, where the approval of the merger is not required by the general meeting of the acquiring company in accordance with Article 126(3), the report shall be made available at least one month before …
− | (11) | Article 125 is amended as follows:(a)in paragraph 1, the following subparagraph is added: ‘However, where the approval of the merger is not required by the general meeting of the acquiring company in accordance with Article 126(3), the report shall be made available at least one month befor…
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− | (a) | in paragraph 1, the following subparagraph is added: ‘However, where the approval of the merger is not required by the general meeting of the acquiring company in accordance with Article 126(3), the report shall be made available at least one month before the date of the general meeting of t…
− | (b) | paragraph 3 is replaced by the following:‘3. The report referred to in paragraph 1 shall in any case include the expert’s opinion as to whether the cash compensation and the share exchange ratio are adequate. When assessing the cash compensation, the expert shall consider any market price of…
− | (a) | indicate the method or methods used to determine the cash compensation proposed; |
− | (b) | indicate the method or methods used to arrive at the share exchange ratio proposed; |
− | (c) | state whether the method or methods used are adequate for the assessment of the cash compensation and the share exchange ratio, indicate the value arrived at using such methods and give an opinion on the relative importance attributed to those methods in arriving at the value decided on, and…
− | (d) | describe any special valuation difficulties which have arisen. |
− | (c) | in paragraph 4, the following subparagraph is added: ‘Member States may exclude single-member companies from the application of this Article.’; |
+ (12) Article 126 is amended as follows: (a) paragraph 1 is replaced by the following: **‘1.** After taking note of the reports referred to in Articles 124 and 125, where applicable, employees’ opinions submitted in accordance with Article 124 and comments submitted in accordance with Article 123, th…
− | (12) | Article 126 is amended as follows:(a)paragraph 1 is replaced by the following:‘1. After taking note of the reports referred to in Articles 124 and 125, where applicable, employees’ opinions submitted in accordance with Article 124 and comments submitted in accordance with Article 123, the g…
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− | (a) | paragraph 1 is replaced by the following:‘1. After taking note of the reports referred to in Articles 124 and 125, where applicable, employees’ opinions submitted in accordance with Article 124 and comments submitted in accordance with Article 123, the general meeting of each of the merging …
− | (b) | the following paragraph is added:‘4. Member States shall ensure that the approval of the cross-border merger by the general meeting cannot be challenged solely on the following grounds:(a)the share exchange ratio referred to in point (b) of Article 122 has been inadequately set;(b)the cash c…
− | (a) | the share exchange ratio referred to in point (b) of Article 122 has been inadequately set; |
− | (b) | the cash compensation referred to in point (m) of Article 122 has been inadequately set; or |
− | (c) | the information given with regard to the share exchange ratio referred to in point (a) or the cash compensation referred to in point (b) did not comply with the legal requirements.’; |
+ (13) the following Articles are inserted: ‘Article 126a Protection of members **1.** Member States shall ensure that at least the members of the merging companies who voted against the approval of the common draft-terms of the cross-border merger have the right to dispose of their shares for adequat…
− | (13) | the following Articles are inserted:‘Article 126aProtection of members1. Member States shall ensure that at least the members of the merging companies who voted against the approval of the common draft-terms of the cross-border merger have the right to dispose of their shares for adequate c…
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+ (14) Article 127 is replaced by the following: ‘Article 127 Pre-merger certificate **1.** Member States shall designate the court, notary or other authority or authorities competent to scrutinise the legality of cross-border mergers as regards those parts of the procedure which are governed by the l…
− | (14) | Article 127 is replaced by the following:‘Article 127Pre-merger certificate1. Member States shall designate the court, notary or other authority or authorities competent to scrutinise the legality of cross-border mergers as regards those parts of the procedure which are governed by the law …
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− | (a) | the common draft terms of the cross-border merger; |
− | (b) | the report and the appended opinion, if any, referred to in Article 124, as well as the report referred to in Article 125, where they are available; |
− | (c) | any comments submitted in accordance with Article 123(1); and |
− | (d) | information on the approval by the general meeting referred to in Article 126. |
− | (a) | the number of employees at the time of the drawing up of the common draft terms of the cross-border merger; |
− | (b) | the existence of subsidiaries and their respective geographical location; |
− | (c) | information regarding the satisfaction of obligations due to public bodies by the merging company. |
− | (a) | all documents and information submitted to the competent authority in accordance with paragraphs 2 and 3; |
− | (b) | an indication by the merging companies that the procedure referred to in Article 133(3) and (4) has started, where relevant. |
− | (a) | where it is determined that the cross-border merger complies with all the relevant conditions and that all necessary procedures and formalities have been completed, the competent authority shall issue the pre-merger certificate; |
− | (b) | where it is determined that the cross-border merger does not comply with all the relevant conditions or that not all necessary procedures and formalities have been completed, the competent authority shall not issue the pre-merger certificate and shall inform the company of the reasons for it…
+ (15) the following article is inserted: ‘Article 127a Transmission of the pre-merger certificate **1.** Member States shall ensure that the pre-merger certificate is shared with the authorities referred to in Article 128(1) through the system of interconnection of registers. Member States shall also…
− | (15) | the following article is inserted:‘Article 127aTransmission of the pre-merger certificate1. Member States shall ensure that the pre-merger certificate is shared with the authorities referred to in Article 128(1) through the system of interconnection of registers.Member States shall also ens…
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+ (16) Article 128 is amended as follows: (a) paragraph 2 is replaced by the following: **‘2.** For the purposes of paragraph 1 of this Article, each merging company shall submit to the authority referred to in paragraph 1 of this Article the common draft terms of the cross-border merger approved by t…
− | (16) | Article 128 is amended as follows:(a)paragraph 2 is replaced by the following:‘2. For the purposes of paragraph 1 of this Article, each merging company shall submit to the authority referred to in paragraph 1 of this Article the common draft terms of the cross-border merger approved by the …
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− | (a) | paragraph 2 is replaced by the following:‘2. For the purposes of paragraph 1 of this Article, each merging company shall submit to the authority referred to in paragraph 1 of this Article the common draft terms of the cross-border merger approved by the general meeting referred to in Article…
− | (b) | the following paragraphs are added:‘3. Each Member State shall ensure that any application for the purposes of paragraph 1, by any of the merging companies, including the submission of any information and documents, may be completed fully online without the necessity for the applicants to ap…
+ (17) Article 130 is replaced by the following: ‘Article 130 Registration **1.** The laws of the Member States of the merging companies and of the company resulting from the merger shall determine, with regard to their respective territories, the arrangements, in accordance with Article 16, for discl…
− | (17) | Article 130 is replaced by the following:‘Article 130Registration1. The laws of the Member States of the merging companies and of the company resulting from the merger shall determine, with regard to their respective territories, the arrangements, in accordance with Article 16, for disclosi…
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− | (a) | in the register of the Member State of the company resulting from the merger, that the registration of the company resulting from the merger is the result of a cross-border merger; |
− | (b) | in the register of the Member State of the company resulting from the merger, the date of registration of the company resulting from the merger; |
− | (c) | in the register of the Member State of each merging company, that the striking off or removal of the merging company from the register is the result of a cross-border merger; |
− | (d) | in the register of the Member State of each merging company, the date of striking off or removal of the merging company from the register; |
− | (e) | in the registers of the Member States of each merging company and of the Member State of the company resulting from the merger, respectively, the registration number, name and legal form of each merging company and of the company resulting from the merger. |
+ (18) Article 131 is amended as follows: (a) paragraph 1 is replaced by the following: **‘1.** A cross-border merger carried out as laid down in subpoints (a), (c) and (d) of point (2) of Article 119 shall, from the date referred to in Article 129, have the following consequences:(a) all the assets a…
− | (18) | Article 131 is amended as follows:(a)paragraph 1 is replaced by the following:‘1. A cross-border merger carried out as laid down in subpoints (a), (c) and (d) of point (2) of Article 119 shall, from the date referred to in Article 129, have the following consequences:(a)all the assets and l…
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− | (a) | paragraph 1 is replaced by the following:‘1. A cross-border merger carried out as laid down in subpoints (a), (c) and (d) of point (2) of Article 119 shall, from the date referred to in Article 129, have the following consequences:(a)all the assets and liabilities of the company being acquir…
− | (a) | all the assets and liabilities of the company being acquired, including all contracts, credits, rights and obligations, shall be transferred to the acquiring company; |
− | (b) | the members of the company being acquired shall become members of the acquiring company, unless they have disposed of their shares as referred to in Article 126a(1); |
− | (c) | the company being acquired shall cease to exist.’; |
− | (b) | in paragraph 2, points (a) and (b) are replaced by the following:‘(a)all the assets and liabilities of the merging companies, including all contracts, credits, rights and obligations, shall be transferred to the new company;(b)the members of the merging companies shall become members of the …
− | ‘(a) | all the assets and liabilities of the merging companies, including all contracts, credits, rights and obligations, shall be transferred to the new company; |
− | (b) | the members of the merging companies shall become members of the new company, unless they have disposed of their shares as referred to in Article 126a(1);’; |
+ (19) Article 132 is amended as follows: (a) paragraph 1 is replaced by the following: **‘1.** Where a cross-border merger by acquisition is carried out either by a company which holds all the shares and other securities conferring the right to vote at general meetings of the company or companies bei…
− | (19) | Article 132 is amended as follows:(a)paragraph 1 is replaced by the following:‘1. Where a cross-border merger by acquisition is carried out either by a company which holds all the shares and other securities conferring the right to vote at general meetings of the company or companies being …
− | --- | --- |
− | (a) | paragraph 1 is replaced by the following:‘1. Where a cross-border merger by acquisition is carried out either by a company which holds all the shares and other securities conferring the right to vote at general meetings of the company or companies being acquired or by a person who holds dire…
− | — | points (b), (c), (e) and (m) of Article 122, Article 125, and point (b) of Article 131(1) shall not apply; |
− | — | Article 124 and Article 126(1) shall not apply to the company or companies being acquired.’; |
− | (b) | the following paragraph is added:‘3. Where the laws of the Member States of all of the merging companies provide for the exemption from the approval by the general meeting in accordance with Article 126(3) and paragraph 1 of this Article, the common draft terms of cross-border merger or the …
+ (20) Article 133 is amended as follows: (a) in paragraph 2, the introductory part is replaced by the following: **‘2.** However, the rules in force concerning employee participation, if any, in the Member State where the company resulting from the cross-border merger has its registered office shall …
− | (20) | Article 133 is amended as follows:(a)in paragraph 2, the introductory part is replaced by the following:‘2. However, the rules in force concerning employee participation, if any, in the Member State where the company resulting from the cross-border merger has its registered office shall not…
− | --- | --- |
− | (a) | in paragraph 2, the introductory part is replaced by the following:‘2. However, the rules in force concerning employee participation, if any, in the Member State where the company resulting from the cross-border merger has its registered office shall not apply where at least one of the mergi…
− | (b) | in paragraph 4, point (a) is replaced by the following:‘(a)shall confer on the relevant bodies of the merging companies, in the event that at least one of the merging companies is operating under an employee participation system within the meaning of point (k) of Article 2 of Directive 2001/…
− | ‘(a) | shall confer on the relevant bodies of the merging companies, in the event that at least one of the merging companies is operating under an employee participation system within the meaning of point (k) of Article 2 of Directive 2001/86/EC, the right to choose without any prior negotiation t…
− | (c) | paragraph 7 is replaced by the following:‘7. Where the company resulting from the cross-border merger is operating under an employee participation system, that company shall be obliged to take measures to ensure that employees' participation rights are protected in the event of any subsequen…
− | (d) | the following paragraph is added:‘8. A company shall communicate to its employees or their representatives whether it chooses to apply standard rules for participation referred to in point (h) of paragraph 3 or whether it enters into negotiations within the special negotiating body. In the l…
+ (21) the following Article is inserted: ‘Article 133a Independent experts **1.** Member States shall lay down rules governing at least the civil liability of the independent expert responsible for drawing up the report referred to in Article 125. **2.** Member States shall have rules in place to ens…
− | (21) | the following Article is inserted:‘Article 133aIndependent experts1. Member States shall lay down rules governing at least the civil liability of the independent expert responsible for drawing up the report referred to in Article 125.2. Member States shall have rules in place to ensure that…
− | --- | --- |
− | (a) | the expert, or the legal person on whose behalf the expert is operating, is independent from and has no conflict of interest with the company applying for the pre-merger certificate; and |
− | (b) | the expert’s opinion is impartial and objective, and is given with a view to providing assistance to the competent authority in accordance with the independence and impartiality requirements under the law and professional standards to which the expert is subject.’; |
+ (22) in Article 134, the following paragraph is added: ‘The first paragraph does not affect Member States' powers, inter alia, in relation to criminal law, the prevention and combatting of terrorist financing, social law, taxation and law enforcement, to impose measures and penalties, under national…
− | (22) | in Article 134, the following paragraph is added: ‘The first paragraph does not affect Member States' powers, inter alia, in relation to criminal law, the prevention and combatting of terrorist financing, social law, taxation and law enforcement, to impose measures and penalties, under nati…
− | --- | --- |
+ (23) in Title II, the following Chapter is added: ‘*CHAPTER IV* ***Cross-border divisions of limited liability companies*** Article 160a Scope **1.** This Chapter shall apply to cross-border divisions of limited liability companies formed in accordance with the law of a Member State and having their…
− | (23) | in Title II, the following Chapter is added: ‘ CHAPTER IVCross-border divisions of limited liability companiesArticle 160aScope1. This Chapter shall apply to cross-border divisions of limited liability companies formed in accordance with the law of a Member State and having their registered…
− | --- | --- |
− | (a) | the company is in liquidation and has begun to distribute assets to its members; |
− | (b) | the company is subject to resolution tools, powers and mechanisms provided for in Title IV of Directive 2014/59/EU. |
− | (a) | the subject of insolvency proceedings or subject to preventive restructuring frameworks; |
− | (b) | the subject of liquidation proceedings other than those referred to in point (a) of paragraph 4; or |
− | (c) | the subject of crisis prevention measures as defined in point (101) of Article 2(1) of Directive 2014/59/EU. |
− | (1) | “company” means a limited liability company of a type listed in Annex II; |
− | (2) | “company being divided” means a company which, in the process of a cross-border division, transfers all its assets and liabilities to two or more companies in the case of a full division, or transfers part of its assets and liabilities to one or more companies in the case of a partial divisi…
− | (3) | “recipient company” means a company newly formed in the course of a cross-border division; |
− | (4) | “division” means an operation whereby:(a)a company being divided, on being dissolved without going into liquidation, transfers all its assets and liabilities to two or more recipient companies, in exchange for the issue to the members of the company being divided of securities or shares in t…
− | (a) | a company being divided, on being dissolved without going into liquidation, transfers all its assets and liabilities to two or more recipient companies, in exchange for the issue to the members of the company being divided of securities or shares in the recipient companies and, if applicable…
− | (b) | a company being divided transfers part of its assets and liabilities to one or more recipient companies, in exchange for the issue to the members of the company being divided of securities or shares in the recipient companies, in the company being divided or in both the recipient companies a…
− | (c) | a company being divided transfers part of its assets and liabilities to one or more recipient companies, in exchange for the issue to the company being divided of securities or shares in the recipient companies (“division by separation”). |
− | (a) | the legal form and name of the company being divided and the location of its registered office, and the legal form and name proposed for the new company or companies resulting from the cross-border division and the proposed location of their registered offices; |
− | (b) | the ratio applicable to the exchange of securities or shares representing the companies’ capital and the amount of any cash payment, where appropriate; |
− | (c) | the terms for the allotment of securities or shares representing the capital of the recipient companies or of the company being divided; |
− | (d) | the proposed indicative timetable for the cross-border division; |
− | (e) | the likely repercussions of the cross-border division on employment; |
− | (f) | the date from which the holding of securities or shares representing the companies' capital will entitle the holders to share in profits, and any special conditions affecting that entitlement; |
− | (g) | the date or dates from which the transactions of the company being divided will be treated for accounting purposes as being those of the recipient companies; |
− | (h) | any special advantages granted to members of the administrative, management, supervisory or controlling bodies of the company being divided; |
− | (i) | the rights conferred by the recipient companies on members of the company being divided enjoying special rights or on holders of securities other than shares representing the divided company capital, or the measures proposed concerning them; |
− | (j) | the instruments of constitution of the recipient companies, where applicable, and the statutes if they are contained in a separate instrument, and any changes to the instrument of constitution of the company being divided in the case of a partial division or a division by separation; |
− | (k) | where appropriate, information on the procedures by which arrangements for the involvement of employees in the definition of their rights to participation in the recipient companies are determined pursuant to Article 160l; |
− | (l) | a precise description of the assets and liabilities of the company being divided and a statement of how those assets and liabilities are to be allocated between the recipient companies, or are to be retained by the company being divided in the case of a partial division or a division by sepa…
− | (m) | information on the evaluation of the assets and liabilities which are to be allocated to each company involved in the cross-border division; |
− | (n) | the date of the accounts of the company being divided used to establish the conditions of the cross-border division; |
− | (o) | where appropriate, the allocation to the members of the company being divided of shares and securities in the recipient companies, in the company being divided or in both, and the criterion upon which such allocation is based; |
− | (p) | details of the offer of cash compensation for members in accordance with Article 160i; |
− | (q) | any safeguards offered to creditors, such as guarantees or pledges. |
− | (a) | the cash compensation and the method used to determine the cash compensation; |
− | (b) | the share exchange ratio and the method or methods used to arrive at the share exchange ratio, where applicable; |
− | (c) | the implications of the cross-border division for members; |
− | (d) | the rights and remedies available to members in accordance with Article 160i. |
− | (a) | the implications of the cross-border division for employment relationships, as well as, where applicable, any measures for safeguarding those relationships; |
− | (b) | any material changes to the applicable conditions of employment or to the location of the company’s places of business; |
− | (c) | how the factors set out in points (a) and (b) affect any subsidiaries of the company. |
− | (a) | indicate the method or methods used to determine the cash compensation proposed; |
− | (b) | indicate the method or methods used to arrive at the share exchange ratio proposed; |
− | (c) | state whether the method or methods are adequate for the assessment of the cash compensation and the share exchange ratio, indicate the value arrived at using such methods and give an opinion on the relative importance attributed to those methods in arriving at the value decided on; and |
− | (d) | describe any special valuation difficulties which have arisen. |
− | (a) | the draft terms of the cross-border division; and |
− | (b) | a notice informing the members, creditors and representatives of the employees of the company being divided, or, where there are no such representatives, the employees themselves, that they may submit to the company, at the latest five working days before the date of the general meeting, com…
− | (a) | the legal form and name of the company being divided and the location of its registered office and the legal form and name proposed for the newly created company or companies resulting from the cross-border division and the proposed location of their registered office; |
− | (b) | the register in which the documents referred to in Article 14 are filed in respect of the company being divided, and its registration number in that register; |
− | (c) | an indication of the arrangements made for the exercise of the rights of creditors, employees and members; and |
− | (d) | details of the website from which the draft terms of the cross-border division, the notice referred to in paragraph 1, the independent expert report and complete information on the arrangements referred to in point (c) of this paragraph may be obtained online and free of charge. |
− | (a) | the share exchange ratio referred to in point (b) of Article 160d has been inadequately set; |
− | (b) | the cash compensation referred to in point (p) of Article 160d has been inadequately set; or |
− | (c) | the information given with regard to the share exchange ratio referred to in point (a) or the cash compensation referred to in point (b) did not comply with the legal requirements. |
− | (a) | provide for at least the same level of employee participation as operated in the company being divided prior to its cross-border division, measured by reference to the proportion of employee representatives among the members of the administrative or supervisory body or their committees or of…
− | (b) | provide for employees of establishments of the recipient companies that are 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 recipient company has its registered office. |
− | (a) | Article 3(1), points (a)(i) and (b) of Article 3(2), Article 3(3), the first two sentences of Article 3(4), and Article 3(5) and (7); |
− | (b) | Article 4(1), points (a), (g) and (h) of Article 4(2), and Article 4(3) and (4); |
− | (c) | Article 5; |
− | (d) | Article 6; |
− | (e) | Article 7(1), with the exception of the second indent of point (b); |
− | (f) | Articles 8, 10, 11 and 12; and |
− | (g) | point (a) of Part 3 of the Annex. |
− | (a) | shall confer on the special negotiating body the right to decide, by a majority of two thirds of its members representing at least two thirds of the employees, not to open negotiations or to terminate negotiations already opened and to rely on the rules on participation in force in the Membe…
− | (b) | may, in the case where, following prior negotiations, standard rules for participation apply and notwithstanding such rules, decide to limit the proportion of employee representatives in the administrative body of the recipient companies. However, if, in the company being divided, employee r…
− | (c) | shall ensure that the rules on employee participation that applied prior to the cross-border division continue to apply until the date of application of any subsequently agreed rules or, in the absence of agreed rules, until the application of standard rules in accordance with point (a) of P…
− | (a) | the draft terms of the cross-border division; |
− | (b) | the report and the appended opinion, if any, referred to in Article 160e, as well as the report referred to in Article 160f, where they are available; |
− | (c) | any comments submitted in accordance with Article 160g(1); and |
− | (d) | information on the approval by the general meeting referred to in Article 160h. |
− | (a) | the number of employees at the time of the drawing up of the draft terms of the cross-border division; |
− | (b) | the existence of subsidiaries and their respective geographical location; |
− | (c) | information regarding the satisfaction of obligations due to public bodies by the company being divided. |
− | (a) | all documents and information submitted to the competent authority in accordance with paragraphs 2 and 3; |
− | (b) | an indication by the company being divided that the procedure referred to in Article 160l(3) and (4) has started, where relevant. |
− | (a) | where it is determined that the cross-border division complies with all the relevant conditions and that all necessary procedures and formalities have been completed, the competent authority shall issue the pre-division certificate; |
− | (b) | where it is determined that the cross-border division does not comply with all the relevant conditions or that not all necessary procedures and formalities have been completed, the competent authority shall not issue the pre-division certificate and shall inform the company of the reasons fo…
− | (a) | in the register of the Member States of the recipient companies, that the registration of the recipient company is the result of a cross-border division; |
− | (b) | in the register of the Member States of the recipient companies, the dates of registration of the recipient companies; |
− | (c) | in the register of the Member State of the company being divided in the event of a full division, that the striking off or removal of the company being divided from the register is the result of a cross-border division; |
− | (d) | in the register of the Member State of the company being divided in the event of a full division, the date of striking off or removal of the company being divided from the register; |
− | (e) | in the registers of the Member State of the company being divided and of the Member States of the recipient companies, respectively, the registration number, name and legal form of the company being divided and of the recipient companies. |
− | (a) | all the assets and liabilities of the company being divided, including all contracts, credits, rights and obligations, shall be transferred to the recipient companies in accordance with the allocation specified in the draft terms of the cross‐border division; |
− | (b) | the members of the company being divided shall become members of the recipient companies in accordance with the allocation of shares specified in the draft terms of the cross-border division, unless they have disposed of their shares as referred to in Article 160i(1); |
− | (c) | the rights and obligations of the company being divided arising from contracts of employment or from employment relationships and existing at the date on which the cross-border division takes effect shall be transferred to the recipient companies; |
− | (d) | the company being divided shall cease to exist. |
− | (a) | part of the assets and liabilities of the company being divided, including contracts, credits, rights and obligations, shall be transferred to the recipient company or companies, while the remaining part shall continue to be that of the company being divided in accordance with the allocation…
− | (b) | at least some of the members of the company being divided shall become members of the recipient company or companies and at least some of the members shall remain in the company being divided or shall become members of both in accordance with the allocation of shares specified in the draft t…
− | (c) | the rights and obligations of the company being divided arising from contracts of employment or from employment relationships and existing at the date on which the cross-border division takes effect, allocated to the recipient company or companies under the draft terms of the cross-border di…
− | (a) | part of the assets and liabilities of the company being divided, including contracts, credits, rights and obligations, shall be transferred to the recipient company or companies, while the remaining part shall continue to be that of the company being divided, in accordance with the allocatio…
− | (b) | the shares of the recipient company or companies shall be allocated to the company being divided; |
− | (c) | the rights and obligations of the company being divided arising from contracts of employment or from employment relationships and existing at the date on which the cross-border division takes effect, allocated to the recipient company or companies under the draft terms of the cross-border di…
− | (a) | the expert, or the legal person on whose behalf the expert is operating, is independent from and has no conflict of interest with the company applying for the pre-division certificate; and |
− | (b) | the expert’s opinion is impartial and objective, and is given with a view to providing assistance to the competent authority in accordance with the independence and impartiality requirements under the law and professional standards to which the expert is subject. |
+ (24) the title of Annex II is replaced by the following: ‘Types of companies referred to in Articles 7(1), 13, 29(1), 36(1), 67(1), points (1) and (2) of Article 86b, point (a) of Article 119(1), and point (1) of Article 160b’.
− | (24) | the title of Annex II is replaced by the following: ‘Types of companies referred to in Articles 7(1), 13, 29(1), 36(1), 67(1), points (1) and (2) of Article 86b, point (a) of Article 119(1), and point (1) of Article 160b’. |
− | --- | --- |
+ ### Article 2 — Penalties
− ### art_2
− Article 2
− 
+ ### Article 3 — Transposition
− ### art_3
+ **1.** Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 January 2023. They shall immediately inform the Commission thereof.
− Article 3
− 
− 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 January 2023. They shall immediately inform the Commission thereof.
+ **2.** Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.
− 2. Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.
+ ### Article 4 — Reporting and review
− ### art_4
+ **1.** The Commission shall, no later than 1 February 2027, carry out an evaluation of this Directive, including an evaluation of the implementation of the provisions on employee information, consultation and participation in the context of cross-border operations, including an assessment of the rul…
− Article 4
− 
− 1. The Commission shall, no later than 1 February 2027, carry out an evaluation of this Directive, including an evaluation of the implementation of the provisions on employee information, consultation and participation in the context of cross-border operations, including an assessment of the rules o…
+ **2.** The report shall in particular evaluate the procedures referred to in Chapters -I and IV of Title II of Directive (EU) 2017/1132, notably in terms of their duration and costs.
− 2. The report shall in particular evaluate the procedures referred to in Chapters -I and IV of Title II of Directive (EU) 2017/1132, notably in terms of their duration and costs.
+ **3.** The report shall include an assessment of the feasibility of providing rules for types of cross-border divisions which are not covered by this Directive, including in particular cross-border divisions by acquisition.
− 3. The report shall include an assessment of the feasibility of providing rules for types of cross-border divisions which are not covered by this Directive, including in particular cross-border divisions by acquisition.
+ ### Article 5 — Entry into force
− ### art_5
+ This Directive shall enter into force on the twentieth day following that of its publication in the *Official Journal of the European Union*.
− Article 5
+ ### Article 6 — Addressees
− This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
− 
− ### art_6
− 
− Article 6