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Sundsvall, November 5, 2009 . Practical experiences in cross border operations registration - Yves Gonner Managing director - Trade and Companies Register Luxembourg. Outline. Trans border operations with existing EU legislative framework European company (SE) - Transfer of seat

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Presentation Transcript
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Practical experiences in cross border operations registration-Yves GonnerManaging director- Trade and Companies Register Luxembourg
outline
Outline
  • Trans border operations with existing EU legislative framework
    • European company (SE) - Transfer of seat
    • Cross border mergers
  • Trans border operations without existing EU legislative framework
    • Transfer of registered company seats
    • Cross border mergers involving non EU countries
  • ECRF working group
european company se
European Company (SE)
  • Overview : 2005-2009 filings concerning SEs
    • 24 registrations
      • 15 conversions of existing public limited–liability companies into SEs
      • 8 incoming SE’s through transfer of seat
    • 10 deletions – transfer of seat (outgoing)
        • 14 active SE’s registered as of to date
european company se transfer of seat problems arising 1 2
European Company (SE) - Transfer of seat – Problems arising (1/2 )
  • Notification
    • No standard formulation of the notification
    • Translation problems - Notifications received in different languages
  • Identification problems - Risks of errors
    • Identifying the correspondent register
      • Correct name of register – local national name or official translation ?
      • Postal address, name of correspondent, … of the register that has to be notified
      • Requires sometimes ‘research’ on the internet
    • Identifying the SE
      • Change of company name when entering jurisdiction – notification has to mention the new name and the old name
      • Unique identifier number is not available
    • Manual work – difficult or costly to automate under current circumstances as procedures are not standardized
european company se transfer of seat problems arising 2 2
European Company (SE) - Transfer of seat – Problems arising (2/2)
  • Article 14 of the Council Regulation (EC) N° 2157/2001 of 8 October 2001 on the Statute for a European company (SE):
    • Publication of a notice of the transfer of seat of the SE in the Official Journal of the European Communities (OJEC) within one month of the publication in the Member state
      • Who has to publish : The register of the new registration or the register of the old registration or both ?
  • The Register of the old registration has to wait for the notification of the new register before deleting the SE from its register
    • Problem arises if the new register does not notify within one month
    • The publication deadline in the OJCE may not be honoured by the Register of the old registration
suggestions
Suggestions
  • Registers could agree on an informal basis on a standardized notification (text message)
  • Registers could agree on a standardized procedure for transmission of notifications between registers
  • Introduction of a common numbering system for companies - Unique Identifier Number
  • Centralized directory of Registers with all required information for notification process
trans border mergers practical aspects
Trans border mergers - Practical aspects
  • 29 trans border mergers handled in 2009
    • 21 mergers by way of absorption of a foreign company by a Luxembourg registered company
  • Notification procedure
    • No standard for notification
    • Language and translation problems
    • Discussions concerning the formulation of the notification
  • Transmission procedure
    • Who do we have to notify ?
    • Delays in receiving notifications form other Registers
      • Problems for deleting the company off the Register
      • Not always easy to obtain information from other Registers
    • Manual work – under current circumstances not easy and costly to automate
trans border mergers practical aspects9
Trans border mergers - Practical aspects
  • Cross border mergers involving non EU countries
    • No notification procedure exists
transfer of registered company seats 1 3
Transfer of registered company seats (1/3)
  • ECRF 2009 Annual Survey :
    • 12 ECRF member countries accept the principle of the transfer of seat to any other jurisdiction
    • 4 other jurisdictions accept the principle of transfer of seat to specific jurisdictions
    • 9 ECRF member countries do not accept the transfer of seat
    • 11 members wait for communication from the register of the new registration before deleting the company from their own register
  • Problems experienced
    • Company deleted from the outgoing Register before company was registered with the incoming Register – company finds itself in a kind of ‘no man’s land’ status
    • Incoming Register asking for certificates that outgoing Register is not able to provide
transfer of registered company seats 2 3
Transfer of registered company seats (2/3)
  • No EU regulatory framework at present
    • (draft proposal of a 14th EU directive)
  • No precise list of jurisdictions which allow the transfer of seats to another jurisdiction
  • No precise list of the formalities that each register requires from another register when a company wants to transfer its seat between their two respective jurisdictions
  • Communication between registers is not structured or even not existing at all, left at the discretion of each jurisdiction
transfer of registered company seats 3 3 suggestions
Transfer of registered company seats (3/3)- Suggestions
  • Possible collaboration of registers on an informal basis
  • Identify countries that accept transfers of seats
  • Agree on a standardized transfer notification among registers - informal basis
  • Establish a standardized notification procedure similar to the one that could be applied to trans border merger operations or the SPE
    • (cf. Proposal for a Council Regulation on the Statute for a European private company – Annex III – Notification form concerning the registration of the transfer of the registered office)
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Example – Annex III of a Proposal for a Council Regulation SPE - Transfer of registered office - Notification form
european commerce registers forum ecrf working group
European Commerce Registers Forum (ECRF) working group
  • ECRF members decided in June 2009 to create a working group that should make proposals on facilitating communication between registers in trans border operations
    • The terms of reference of this working group has been suggested as follows:
    • Define the areas in trans border operations that include a communication between Registries,
    • Review the provisions and different situations that require a communication between Registers as foreseen by European company law, i.e. S.E., trans border mergers
    • Review the situations where a communication between Registers could be an advantage but that are not regulated by European company law (i.e. trans border transfer of seats)
    • Elaborate a set of common agreed communication principles.
european commerce registers forum ecrf working group15
European Commerce Registers Forum (ECRF) working group
  • Objective
    • Work out simple and practical recommendations in order to improve trans border communication between registers (i.e. standardized notification,…)
    • Implementation on an informal and voluntary basis among Registers
  • Discussions could involve CRF (Corporate Registers Forum) members
    • Cross border mergers or transfer of registered company seats involving non EU / ECRF members
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