On Wednesday 30 January, the Member States' ambassadors to the EU (Coreper) reached political agreement in principle ('general approach') on the 'mobility' part of the company law legislative package (see EUROPE 12177).
As a reminder, the package of measures aims to modernise European company law, including a proposal for a Directive laying down harmonised procedures for cross-border divisions and transfers and a targeted review for mergers (see EUROPE 12009).
The final text contains several changes compared to the previous compromise text (see EUROPE 12176).
In particular, the Member States decided to extend the list of situations excluded from the framework. Thus, the rules shall not apply to cross-border conversions involving a company the object of which is the collective investment of capital provided by the public, which operates on the principle of risk-spreading, and the units of which are repurchased or redeemed, directly or indirectly, out of the assets of that company.
According to the Council's text, they also do not apply to companies in liquidation that have begun to distribute assets to their shareholders, or companies subject to resolution mechanisms.
In addition, Member States have been given the possibility not to apply these rules to companies subject to insolvency proceedings or preventive restructuring frameworks, or companies subject to other liquidation proceedings.
The text also adds further flexibility to the exit rights regime in respect of the cash compensation offered.
Member States are required to offer a “right of exit” from the company, and cash compensation at least to shareholders with voting rights who have voted against the approval of the cross-border transaction proposal. However, the text also gives them the possibility to decide to offer this right to other shareholders, in particular those who hold shares but do not have voting rights.
The Council has also introduced additional guarantees for creditors whose claims pre-date the disclosure of the cross-border transaction proposal and have not fallen due at the time of its disclosure.
The text provides that creditors who are not satisfied with the guarantees offered in the cross-border conversion proposal may, within three months of the disclosure of the said proposal, request adequate guarantees from the competent authority, provided that they can credibly demonstrate that the cross-border conversion puts payment of their claims at risk and that no adequate guarantee has been obtained from the company.
It is also specified that, despite the fact that the cross-border conversion has taken effect and the registered office of the company has been transferred to the Member State of destination, such creditors have a choice to file their claim in the jurisdiction in the Member State of departure (where the registered office was located before the conversion) within two years of the date on which the conversion took effect, or follow the rules on jurisdiction laid down in the Brussels Ia Regulation.
The issue of jurisdiction was debated by the Member States, which ultimately opted for the alternative solution following an opinion from the Council's Legal Service dated 24 January.
Interinstitutional negotiations with the European Parliament, which adopted its position in early December (see EUROPE 12154), are expected to start on 5 February. (Original version in French by Marion Fontana)