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Cross-border mergers are attractive, particularly to multinationals with several corporate entities spread across Europe. By creating a single entity with several branches, businesses can potentially simplify legal and administrative structures, minimise levels of risk, free up cash and cut costs.

Cross-border mergers benefit from the EU Directive on Cross-Border Mergers and the national transformation legislation. Such legislation offers a less cumbersome, common legal framework to facilitate mergers across EU Member States. However, many aspects of a cross-border merger are still subject to 
non-harmonised national legislation and vary between European countries. Experience has shown that it is crucial for the success of a cross-border merger 
to synchronise particularly the often broadly varying procedural and timing requirements in the relevant jurisdictions early in the process. Despite these practical complexities, the harmonised framework has proven to be highly attractive for shareholders, as cross-border mergers governed by the Directive almost tripled between the years 2008 to 2012 despite the challenging overall economic environment (increase by 173 %)1.

This second edition of the CMS Guide to Cross-Border Mergers offers 
a comprehensive overview of the legal and fiscal requirements and consequences of cross-border mergers in 19 European countries. It covers relevant aspects of corporate, labour and tax law. It is an excellent planning tool for project teams involved in cross-border mergers, in particular in-house counsels, for implementing a successful cross-border merger transaction, including the following:
  • the types of company that can participate in a cross-border merger;
  • the documents to be prepared, their material content and formal requirements;
  • internal responsibilities, competent authorities and other external parties 
  • essential timing and publication requirements;
  • major tax consequences;
  • implementation of the applicable scheme of employee representation 
on supervisory boards, as well as other notification and consultation requirements vis-à-vis employee representation bodies.
To help with your planning, each country overview contains a simplified timeline, highlighting the milestones required in each jurisdiction. To make this process easier still, we also provide online versions of all timelines which can be tailored to the needs of a specific project with regard to certain milestones.

If you consider a cross-border merger in Europe, this Guide, together with its Online Planner, will prove to be invaluable in helping you map out a plan and will give you detailed understanding of how long such a project is likely to take and whom to involve.

Dr Thomas Meyding & Dr Claus Peter Fabian
1. Cross-border mergers in Europe and their significance for the organisation and governance of multinational companies
The first proposal for a European directive providing a common legal framework for mergers of companies situated in different Member States of the EEC dates back to 1984. It was not until 2005, when Directive 2005/56/EC on Cross-Border Mergers of Limited Liability Companies (the “Cross-Border Merger Directive”) entered into law, creating a framework for harmonised regulations in EU Member States on the procedures and legal effects of mergers between companies situated in different Member States.

The Cross-Border Merger Directive is applicable in all EU Member States and the countries of the European Economic Area (Norway, Iceland and Liechtenstein), and the Cross-Border Merger Directive has since been transposed into national law in all EU Member States.

Transposition of the Cross-Border Merger Directive into national law provides 
for a harmonisation of important procedural and substantial requirements and consequences of cross-border mergers. The following steps for implementing 
a cross-border merger are particularly regulated by the Cross-Border Merger Directive and therefore harmonised within the EU:
  • the management or administrative organ of the merging companies shall draw up common draft terms for the merger, the content of which is regulated by the Cross-Border Merger Directive;
  • the common draft terms of the merger shall be published;
  • the management or administrative organs of the merging companies shall prepare a management report explaining the legal and economic aspects of the merger and the implications for members, creditors and employees. The report shall be made available to members and to employee representatives or the employees themselves;
  • an independent expert report has to be drawn up and made available 
to members. An independent expert report is not required in case of an upstream merger. Members may also waive the requirement of an independent expert report by unanimous consent;
  • the general meetings of the companies involved decide on the approval 
of the common draft terms of merger. However, approval by the general meeting of the transferring company is not required in an upstream merger;
  • each Member State shall issue a pre-merger certificate confirming the proper completion of the pre-merger acts and formalities as regards that part of the procedure which concerns each merging company subject to its national law;
  • a public authority of the Member State shall scrutinise the legality of the merger regarding completion of the merger following submission of 
the approved common draft terms of the merger and pre-merger certificates;
  • as a general rule, the company resulting from the merger shall be subject to the rules in force concerning employee participation in the Member State where it has its registered office. For the protection of employees, exceptions apply to this principle, in which case the directive sets out specific regulations with regard to the determination of the employee participation.

A company participating in a cross-border merger remains subject to various provisions and formalities of the autonomous national law which have not yet been harmonised. The following aspects are subject to purely national regulations which differ to some extent:
  • formalities concerning the decision-making process relating to the merger, 
i.e. formalities on the convention of shareholder meetings such as periods, formal and publication requirements;
  • protection of creditors of the merging companies, of debenture holders, 
of holders of securities or shares, and of employees other than by way 
of employee participation on supervisory boards;
  • formal requirements for the execution and registration of documents required for a cross-border merger;
  • deadlines for the execution, notification, publication and registration 
of measures to be taken while implementing a cross-border merger.

As regards the legal form of companies which benefit from the legal harmonisation, the Cross-Border Merger Directive only covers mergers 
between limited liability companies. The possibility of cross-border mergers 
with partnerships acting as transferring or receiving companies is therefore 
not governed by the Cross-Border Merger Directive, and in principle is subject 
to autonomous national legislation. In its “SEVIC” decision, however, 
the European Court of Justice stated that national legislation prohibiting cross-border mergers anticipated by and between companies in the legal form 
of partnerships was in breach of the EC Treaty. Although cross-border mergers 
by and between partnerships should in principle be possible in Member States, therefore, there is still considerable legal uncertainty over the possibility and procedural requirements of cross-border mergers by and between partnerships 
in many Member States, which may make mergers of partnerships difficult to implement.
The major consequences of a cross-border merger governed by the Cross-Border Merger Directive are as follows:
  • all assets and liabilities of the transferring companies, including all contractual relationships such as employment agreements, are transferred to the company resulting from the cross-border merger by way of a universal transfer of title and without the need for individual asset transfer agreements or the approval of contracting parties;
  • the transferring companies are dissolved and cease to exist without liquidation;
  • shareholders in the transferring companies become shareholders in the receiving company. However, there will be no exchange of shares held by the receiving company in the transferring company (in the case of an upstream merger) or of shares held by the transferring company in itself.

These consequences and particularly the homogeneous regulation of these legal consequences throughout Europe have made cross-border mergers increasingly popular in Europe. Based on these consequences the following arguments have been discussed in public or may motivate companies to evaluate a cross-border merger transaction.
Reorganisation of corporate structure in relation to legal form, shareholders or supervisory board structure
  • Transfer of minority shareholders from a group company to the receiving company;
  • possibility of reducing the total number of members of the supervisory board, irrespective of national co-determination legislation stipulating 
a specific number of supervisory board members;
  • possibility of freezing the proportion of employee representatives on the supervisory board, irrespective of a potential future headcount increase, normally resulting in a higher proportion of employee representation under national co-determination legislation;
  • possibility of changing the legal form and applicable corporate governance principles between European jurisdictions.

Optimising the equity structure and allocation of liquidity
  • Pooling equity in one legal entity enables the group to fulfil equity requirements with less tied-up capital, particularly in the financial services and insurance sectors;
  • simplification of allocation of liquidity within the corporate group; alternative to cash-pooling, in particular in the case of a shortfall of liquidity of the holding company.

Minimisation of risk
  • Reduction of risk of insolvency through elimination of inter-company liabilities;
  • diversification of risk, particularly with respect to geographical and territorial scope and scope of business, in the insurance sector.

Optimising administration
  • Optimising and simplifying structures to reduce costs, i.e.:
    • reduction of intra-group expenses associated with administration 
of separate entities;
    • reduction of expenses for accounting, reporting and auditing annual accounts;
    • ease of entry into foreign markets.

Optimising the regulatory environment
  • Facilitation of licensing procedure with single licence and regulatory duties towards only one jurisdiction on the basis of EU passporting provisions in the financial services and insurance industries instead of ongoing regulatory duties in all countries where subsidiaries are based;
  • forum shopping in order to benefit from fewer regulatory constraints 
or more favourable regulatory rules applicable in the jurisdiction of the receiving entity, in particular in the financial services and insurance industries.

Facilitating takeovers
  • Possibility of restructuring a group of target companies prior to the closing of an M&A transaction to procure depreciation in the value of the target company.

A recent study published for the European Union proves that the reorganisation of the corporate structure of a group is one of the key drivers for implementing 
a cross-border merger2. Based on these arguments, a cross-border merger therefore is clearly an interesting tool for companies with subsidiaries in different countries in Europe aiming to restructure and facilitate their organisation and administration. This is even more valid for major multinationals seeking to use one headquarters for the entire European region. Groups from specific sectors such 
as financial services or insurance will increasingly evaluate this legal instrument in order to benefit from the advantages of functioning as a single legal entity subject to just one favourable regulatory framework.
Based on our experience of advising a substantial amount of cross-border merger transactions in recent years, we want to draw attention to the following practical issues that must be taken into account when structuring a cross-border merger process.

2.1 Corporate aspects
Technical inconsistencies

Although the rules governing cross-border mergers between EU Member States have been harmonised by the Cross-Border Merger Directive, this directive only determines the major principles to be complied with, and the implementing provisions of EU Member States sometimes differ regarding technical issues. It is therefore essential, when preparing an EU cross-border merger, to identify such differences and inconsistencies early on in the process, and to find ways to solve them, taking into account the fact that a cross-border merger by definition involves cooperation between persons of different nationalities, sometimes operating within different legal cultures (e.g. common law versus civil law).

Particular attention should be drawn to possible inconsistencies in the following areas:
  • The date for the beginning of periods for creditor protection and their duration may deviate between jurisdictions, therefore delaying the process 
as multiple creditor protection periods have to be observed. Such a delay might even conflict with long stop dates to be observed in order to achieve retroactivity for accounting purposes.
  • Several jurisdictions provide for veto rights in favour of creditors under specific circumstances which may considerably delay the process.
  • In many cases, shareholders anticipate implementing the merger with retroactive tax and accounting effect as of the day of the latest annual accounts of the companies involved. The possibility of and requirements 
for tax and accounting retroactivity of a cross-border merger can deviate between jurisdictions involved.
  • Public authorities involved in the process, e.g. commercial registers, may require varying periods for measures in their responsibility, such as publication of 
the common draft terms of merger, issuance of the pre-merger certificates 
or registration of the merger.
  • Deviations in other milestones such as periods and measures to be observed in relation to the convention of the general meetings, publication of the common draft terms of merger and the provision of the management report to shareholders, can lead to certain complexities and delays in the process.
Practical issues to take into accountA number of the documents referring to the national and foreign companies involved have to be filed with national registries (e.g. the common draft terms 
of merger) or disclosed to shareholders (e.g. the annual reports of the companies involved). It is therefore important to structure the process for the implementation of the cross-border merger diligently and to decide early on in the process on practical issues such as:
  • whether documents are to be prepared in the national language, a foreign language or in bi- or multi-lingual form;
  • requirements for the translation of balance sheets, annual accounts and articles of association;
  • formal requirements for documents, including requirements for notarisation of the same documents in different countries;
  • the due dates for filing or disclosure of relevant documents, particularly the due date for making available the latest financial statements to shareholders.

In themselves, these practical questions can be solved. However, experience has shown that the extra work associated with these practical issues should not be underestimated, and needs to be taken into account for cost and timing purposes.
2.2 Tax aspects
From our practical experience in several cross-border merger transactions, the following general tax aspects in particular need to be considered and carefully reviewed before the merger is implemented:

Tax-neutral regime
It was one of the main objectives of the Directive 90/434/EEC, dated 23 July 1990 (now replaced by Directive 2009/133/EC, dated 19 October 2009 and amended by Directive 2013/13/EU dated 13 May 2013), to establish a European-wide principle of tax neutrality (for corporate income tax purposes in particular) for mergers involving different EU Member States. This objective has in general been implemented in all European Member States. However, the application of this principle may in practice be subject to certain requirements, such as the allocation of the merged assets to a permanent establishment in the relevant country. In some Member States, such allocation may be questioned for certain assets (e.g. shares in subsidiaries, IP rights, goodwill, etc.).

Tax retroactivity
Tax authorities in some EU Member States recognise the concept of tax and accounting retroactivity, whereby the profits (if any) made by the transferring company between the opening date of the financial year and the completion date of the merger are deemed to have been made by the receiving company, and therefore taxed at its own level. Just as with tax neutrality, however, the possibility of such tax retroactivity should be reviewed on a case-by-case basis.

Tax losses
There are no harmonised principles for the transfer, utilisation and/or forfeiture 
of tax losses carried forward. The consequences of a cross-border merger for such losses therefore need to be examined on the basis of the local tax laws of
the individual Member States.

Tax rulings; notifications; applications
In some jurisdictions it is either required or at least recommendable to apply for 
a ruling of the national tax authorities regarding certain consequences of the merger (e.g. tax neutrality, tax retroactivity or preservation of existing tax losses). In addition, there are certain notification/application requirements in some Member States before or after the merger (e.g. for the tax neutrality).

For practical reasons, not only the income tax but also the VAT consequences 
of cross-border mergers should be examined and considered in advance. In order 
to continue the ongoing business operations (e.g. issuing invoices; placing orders; filing VAT returns, etc.), it can be required or recommendable for the absorbing entity to establish and register a permanent establishment in the country of the transferring entity (and to apply for a VAT number) before the merger becomes legally effective.
2.3 Labour law aspects
One of the main labour law issues surrounding EU cross-border mergers is the question of the scope of employee participation within the management bodies of the receiving company. The general principle applied by the Cross-Border Merger Directive is that employees’ rights of participation are governed by the national laws of the receiving company. There are exceptions to this principle, however. If the employees of a merged entity enjoy participation rights, and the national law governing the receiving company does not provide for the same level of participation in bodies with decision-making power, or does not provide for the same entitlement for employees of branches of the receiving company, the principle is that the participation of employees of the receiving company should remain at least the same. The process of negotiation of the level of participation of the employees is dealt with by the “special negotiating body”, and can be time-consuming.

Experience has shown us that the process of implementing a cross-border 
merger must be planned diligently in order to meet the timing requirements, 
to fulfil the formal requirements of the registration authorities in the various countries, and to fulfil the legal requirements for the merger to become effective.
When structuring a cross-border merger transaction, certain milestones have crystallised which need to be taken into account.
3.1 Milestones in a cross-border merger governed by the Cross-Border Merger Directive
Accounting review

Closing of the latest annual accounts of the receiving and transferring companies, and auditing by the statutory auditors (if required under national law).

Preparatory stage
  • Analysis of the legal (corporate, regulatory and labour), tax and accounting aspects of the cross-border merger being contemplated;
  • drafting of the merger documents, including documents for the general meetings of the companies involved;
  • scrutinisation of whether the establishment of a branch by the receiving company in the jurisdiction of the transferring company is required 
or recommended (tax issues).
Consultations and approvals
  • Consultation of works council, if applicable;
  • obtaining any prior authorisation or approval, if applicable; in particular, 
14 countries of the European Economic Area provide for veto rights in favour of creditors under specific circumstances3. In the UK, creditors may apply for a creditors’ meeting approving the merger by a majority in number, representing 75% in value, of the creditors.

First decision-making stage
Meetings of the boards of directors, if applicable.

Execution of the common draft terms of merger, management reports and independent expert reports, if applicable.

Filing/publication of the common draft terms of merger
At least one month prior to the shareholders’ general meeting (filing at least 
two months prior to the shareholders’ meeting in the UK).

Disclosure of documents
Making merger documents available to the shareholders, employee representatives (or employees) and works council (if applicable) of the transferring and receiving company. These documents include the common draft terms 
of merger, the management report, the independent expert report if applicable and, in Switzerland only, the interim balance sheet.

Convening the shareholders’ extraordinary general meeting.

Second decision-making stage
Approval of the terms and conditions of the cross-border merger by the extraordinary shareholders’ general meetings.

Issuance of the pre-merger certificate at the level of each company
Issuance of the pre-merger certificate for the companies involved by a court, public notary or commercial register.

Scrutiny of the legality of the cross-border merger
Review of the pre-merger certificates by the competent authority for the receiving company.

Completion of cross-border merger
3.2 Key periods for developing a joint timeline of a cross-border merger
The following periods particularly have to be taken into account when developing a joint timeline for the jurisdictions involved in a cross-border merger:
  • periods during which documents are to be made available to the shareholders;
  • creditor protection periods, if applicable;
  • periods for convening the general meeting approving the common draft term of merger;
  • long stop dates to be observed in order to effect tax and accounting retroactivity, if applicable.

4.1 Cross-border conversions
The EU Cross-Border Merger Directive only relates to the merger of limited liability companies. Other possible forms of transformation of companies, such 
as cross-border conversions or cross-border demergers, are not subject to EU-wide harmonisation, causing legal uncertainty in the past as to the realisation of such measures. With its “Cartesio” and “VALE” decisions, the European Court of Justice established a further milestone regarding cross-border mobility of companies by clearing the way for cross-border conversions of companies within the European Union.

In its “Cartesio” decision, the European Court of Justice declared that a Member State cannot prevent a company incorporated under its law from converting itself – without liquidation or winding-up of the company – into a company governed by the law of another Member State to which the company moves, as far as this is permitted under the law of the receiving Member State. According to the “VALE” decision of the European Court of Justice, national legislation which allows for the conversion of companies established under its national law, but which – in a general manner – does not permit companies governed by the law of another Member State to convert into a company governed by the national law of the receiving Member State, violates the freedom of establishment.

As a consequence, the transfer of the registered seat of a company to another Member State by simultaneous conversion into a company governed by the national law of the receiving Member State must be permitted if the receiving Member State recognises a national conversion, subject to the precondition 
of actual pursuit of an economic activity of the company in the receiving Member State through an actual establishment.

While cross-border mergers benefit from the European Cross-Border Merger Directive based on which the legislation for the execution of cross-border mergers is harmonised across the EU Member States, cross-border conversions still lack such a common legal framework. The European Court of Justice in its “VALE” decision held that the receiving Member State is entitled to apply the provisions of its national law governing the conversion of companies also 
to cross-border conversions. It is evident that the successive application of the non-harmonised legal provisions of two Member States will give rise to practical difficulties.
However, as cross-border conversions may offer various advantages over possible alternatives, in particular with regard to property transfer tax, the demand for cross-border conversions is increasing. It is to date unclear whether a European directive providing a common legal framework for cross-border conversions of companies situated in Member States will be passed into law in the near future. Until then, the execution of cross-border conversions will require a detailed analysis and accurate application of the legal provisions of both Member States involved as well as close coordination with the affected commercial registers in both Member States.
4.2 Cross-border divisions and demergers
Cross-border divisions and demergers are neither harmonised on an EU/EEA 
level. As a consequence, the possibility of implementing cross-border divisions and demergers is in principle subject to the national law of the jurisdictions involved. According to a recent study published for the European Union4, almost half of the Member States of the European Economic Area provide for the possibility of cross-border divisions. Furthermore, there is an argument that on the basis of the decisions of the European Court of Justice in relation to cross-border conversions, cross-border divisions and demergers fall within the scope 
of the freedom of establishment and therefore might in principle be possible even though national legislation does not provide for an explicit possibility for 
the implementation of cross-border divisions and demergers.
This CMS Guide to Cross-Border Mergers provides information designed to help you decide whether a cross-border merger is possible and sensible. If you decide a cross-border merger is the right course, the Guide provides vital information to help you structure the process, including:
  • general timing;
  • the type and content of documents which have to be prepared including 
the requirements for their language and the need for translations;
  • the formal requirements;
  • key internal and external individuals and authorities, including management board members, supervisory board members, shareholders, notaries, registers and interpreters, who have to approve the process and documents involved.

5.1 Identical templates with key information for 19 jurisdictions
The Guide features identically structured templates for 19 jurisdictions, with information relating to:
  • the consequences of a cross-border merger;
  • the types of company that can participate in a cross-border merger;
  • the documents to be prepared, including essential content, responsibility and possibilities for simplifications;
  • formal requirements and language;
  • publication and timing;
  • the responsible public authorities;
  • employee participation, both by virtue of agreement and under statutory law;
  • notification and consultation requirements relating to works councils and employees;
  • tax aspects such as retroactivity, tax loss carryforward, disclosure of hidden reserves, taxation at the level of shareholders and lock-in periods.

The templates for the jurisdictions involved in the planned cross-border merger can easily be extracted and compared.
5.2 Timelines
Each chapter includes a simplified timeline charting the major steps to be taken 
in each of the jurisdictions when implementing a cross-border merger transaction. It includes an overview of typical timing issues and deadlines in the relevant jurisdiction(s), taking into account both statutory requirements and practical experiences in different countries.

Unless indicated otherwise in the individual national timeline, national timelines are based on the following assumptions:
  • both the transferring and the receiving companies are governed by the laws 
of a Member State of the EU (two distinct States by definition), and the cross-border merger is governed by the Cross-Border Merger Directive;
  • the latest financial years of both the transferring and receiving company match the calendar year;
  • the latest financial statements have been approved prior to execution of the common draft terms of merger;
  • the shareholders of both companies decide not to involve an independent expert;
  • all shareholders consent to the merger.

5.3 Cross-border merger online planner
The timelines of all 19 jurisdictions of the CMS Guide are accessible via the Internet at

Upon entering the website you may select the jurisdictions involved in the cross-border merger project which are then jointly visualised on the screen, printable or distributable to team members. You may also harmonise the selected timelines with regard to certain milestones in order to develop an adjusted project plan for the jurisdictions involved.

This Guide reflects the legal situation as of 31 July 2013. The information contained in the Guide is for general information purposes only, and is not intended to substitute legal or other professional advice. The information should not be relied upon without seeking professional legal advice and taking into account particular circumstances which may not be covered by this Guide


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