Sundsvall, November 5, 2009

1. Sundsvall, November 5, 2009

2. Practical experiences in cross border operations registration-Yves GonnerManaging director- Trade and Companies Register Luxembourg

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. Trans border mergers - Practical aspects • Cross border mergers involving non EU countries • No notification procedure exists

10. 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

11. 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

12. 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)

13. Example – Annex III of a Proposal for a Council Regulation SPE - Transfer of registered office - Notification form

14. 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.

15. 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