Member States' ambassadors to the EU (Coreper) are expected to reach political agreement in principle ('general approach') on Friday 25 January on the 'mobility' part of the company law legislative package.
As a reminder, the package of measures aims to modernise European company law, including a proposal for a Directive laying down harmonised procedures for crossborder divisions and transfers and a targeted review for mergers (see EUROPE 12009).
The key element of the proposal was that the Member State from which the company originated would be required to block the transaction if it considered that it was an "artificial arrangement aimed at obtaining undue tax benefits or infringing the legal or contractual rights of employees, creditors or shareholders”.
The last compromise text, dated 15 January and discussed in the working group on 18 January, contains several changes compared to the initial proposal.
In particular, it deletes the article providing that, if the competent authority of the Member State of departure has serious doubts as to whether the cross-border conversion constitutes an artificial arrangement, it should carry out a thorough assessment.
The provision has been moved to a recital and the text only provides for the possibility for Member States to give their competent authorities the power to carry out such an assessment, while stressing that "it should be left to Member States how to best tackle this risk”.
While the European Parliament's position (see EUROPE 12154) focused on strengthening the information, consultation and participation of employee representatives throughout the process, the Council's position seems to be more focused on strengthening the rights of shareholders and members.
For cross-border conversions, the text provides, for example, that any shareholder who has declared that he wishes to exercise his right to dispose of his shares, but who considers that the compensation offered by the company has not been adequately fixed, is entitled to demand additional cash compensation before the competent authorities. Member States may also provide that the final decision shall be valid for all members who have declared that they have taken the decision to exercise their right of exit.
Member States have also maintained the review by an independent expert of the cross-border conversion project. However, the text provides that such an examination is not required if all the shareholders of the company agree on this point, and gives Member States the possibility to exempt single-member companies from this provision.
The compromise text also modifies the time limits for the reports that the management body must provide to shareholders and employees to explain the legal and economic consequences of cross-border conversion. The deadline has been extended to one month before the date on which the general meeting must approve the cross-border conversion project, compared to two months proposed by the European Commission.
Member States consider that this report should also provide an explanation of the method of calculating the cash compensation offered to members who wish to withdraw from the company.
The dates for interinstitutional negotiations with the European Parliament have already been set. Four 'trilogues' have so far been planned, between 28 January and 5 March. (Original version in French by Marion Fontana)