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Collection Highlights

Online Hate and Harmful Content Cross National

Perspectives Teo Keipi

The Law Applicable to Cross-border Contracts involving

Weaker Parties in EU Private International Law María Campo
Comba

The Border Dispute Between Croatia and Slovenia: The

Stages of a Protracted Conflict and Its Implications for
EU Enlargement Thomas Bickl

Exit and Voice The Paradox of Cross Border Politics in

Mexico Lauren Duquette-Rury
Borderology Cross disciplinary Insights from the Border
Zone Along the Green Belt Jan Selmer Methi

EU Regional and Urban Policy Innovations and Experiences

from the 2014 2020 Programming Period Valeria Fedeli

Smart Governance for Cities: Perspectives and Experiences

Nuno Vasco Moreira Lopes

Public Health at the Border of Zimbabwe and Mozambique,

1890–1940: African Experiences in a Contested Space
Francis Dube

Cross-Disciplinary Perspectives on Regional and Global

Security Pawe■ Frankowski
Studies in European Economic Law and Regulation 17

Thomas Papadopoulos Editor

Cross-Border
Mergers
EU Perspectives
and National Experiences
Studies in European Economic Law
and Regulation

Volume 17

Series Editors
Kai Purnhagen
Law and Governance Group, Wageningen University
Wageningen, The Netherlands
Josephine van Zeben
Worcester College, University of Oxford
Oxford, United Kingdom

Editorial Board Members

Alberto Alemanno, HEC Paris, Paris, France
Mads Andenaes, University of Oslo, Oslo, Norway
Stefania Baroncelli, University of Bozen, Bozen, Italy
Franziska Boehm, Karlsruhe Institute of Technology, Karlsruhe, Germany
Anu Bradford, Columbia Law School, New York, USA
Jan Dalhuisen, King’s College London, London, UK
Michael Faure, Maastricht University, Maastricht, The Netherlands
Jens-Uwe Franck, Mannheim University, Mannheim, Germany
Geneviève Helleringer, University of Oxford, Oxford, UK
Christopher Hodges, University of Oxford, Oxford, UK
Lars Hornuf, University of Bremen, Bremen, Germany
Moritz Jesse, Leiden University, Leiden, The Netherlands
Marco Loos, University of Amsterdam, Amsterdam, The Netherlands
Petros Mavroidis, Columbia Law School, New York, USA
Hans Micklitz, European University Institute, Florence, Italy
Giorgio Monti, European University Institute, Florence, Italy
Florian Möslein, Philipps-University of Marburg, Marburg, Germany
Dennis Patterson, Rutgers University, Camden, USA
Wolf-Georg Ringe, University of Hamburg, Hamburg, Germany
Jules Stuyck, Katholieke Universiteit Leuven, Leuven, Belgium
Bart van Vooren, University of Copenhagen, Copenhagen, Denmark
This series is devoted to the analysis of European Economic Law. The series’ scope
covers a broad range of topics within economics law including, but not limited to,
the relationship between EU law and WTO law; free movement under EU law and
its impact on fundamental rights; antitrust law; trade law; unfair competition law;
financial market law; consumer law; food law; and health law. These subjects are
approached both from doctrinal and interdisciplinary perspectives.
The series accepts monographs focusing on a specific topic, as well as edited
collections of articles covering a specific theme or collections of articles. All
contributions are subject to rigorous double-blind peer-review.

More information about this series at http://www.springer.com/series/11710

Thomas Papadopoulos
Editor

Cross-Border Mergers
EU Perspectives and National Experiences
Editor
Thomas Papadopoulos
Department of Law
University of Cyprus
Nicosia, Cyprus

ISSN 2214-2037 ISSN 2214-2045 (electronic)

Studies in European Economic Law and Regulation
ISBN 978-3-030-22752-4 ISBN 978-3-030-22753-1 (eBook)
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For my parents, Grigorios and Evdokia, and
my brother, Grigorios-Zois.
It will now be much easier for Europe’s
companies to cooperate and restructure
themselves across borders. This will make
Europe more competitive and enable
businesses further to reap the benefits of the
Single Market.
The Cross-border Mergers Directive opens
new ground. It is a major step in favour of EU
businesses, which have been calling for the
adoption of this text for many years. This is
true, in particular, of those mid-sized
businesses which are active in more than one
Member State, yet too small to form European
Companies. With this Directive, companies
will be able to organise themselves and
develop efficiencies on a cross-border basis,
and further reap the benefits of the Single
Market.
Statements of Charlie McCreevy, European
Commissioner for Internal Market and
Services (2004–2010), about the adoption of
the Cross-Border Mergers Directive. Brussels,
29 November 2005 and 10 May 2005 (Press
releases, IP/05/1487 and IP/05/551).
Foreword

The 10th EU Directive on Cross-Border Mergers (“CBM Directive”) has been in

effect for more than 10 years now. When it first entered into force, back in 2007, it
inspired the Centre for European Company Law (CECL), where I am the Coordi-
nating Director, to devote a conference to this matter in Utrecht, the Netherlands.1 In
2016, my good friend Dr. Thomas Papadopoulos conceived the brilliant idea of
hosting a conference to celebrate the second lustrum of the CBM Directive and to see
where we currently stand as regards cross-border mobility of companies in Europe.
That conference was organized by the Department of Law of the University
of Cyprus and took place in that University’s impressive new Amphitheatre on
7 October 2017. I had the honour of delivering the keynote address to the
conference.2
The conference was attended by numerous students, practicing lawyers and
academics from different countries and generated a lively debate on the various
aspects—advantages and disadvantages, benefits as well as shortcomings—of the
CBM Directive in its current form. The debate was driven by speakers from several
different EU Member States, who highlighted the different ways in which the
Directive has been transposed and implemented in their respective home countries.
Their lectures have now been elaborated, updated and transformed into contributions
that make up the greater part of this book: the reader will find contributions from
Austria (Georg Gutfleisch), Cyprus (Thomas Papadopoulos), Denmark (Hanne
Søndergaard Birkmose), France (Bénédicte François), Germany (Sebastian Mock),
Greece (Thomas Papadopoulos), Italy (Sergio Gilotta), Luxembourg (Isabelle
Corbisier), the Netherlands (Maarten A. Verbrugh), Poland (Arkadiusz Radwan

1
The report on the conference can be downloaded from www.cecl.eu.
2
The speech can be seen and heard at https://www.youtube.com/watch?v¼6mYvabn1itw and was
published in ECL, December 2017, Volume 14, Issue 6, p. 214–217, under the title 10 Years Cross-
Border Mergers Directive: Some Observations About EU Border Protection and Minority Exit
Rights.

vii
viii Foreword

and Ariel Mucha), Spain (Alfonso Martinez-Echevarria) and the UK (Jonathan

Mukwiri).
The conference also dealt with some specific, not country-related, aspects of the
CBM Directive, however, which are of course reflected in this bundle’s content. This
part adopts an EU and comparative perspective. Thomas Papadopoulos gives an EU
and comparative law overview of the CBM Directive’s transposition, with a critical
evaluation. The study by Thomas Biermeyer and Marcus Meyer presents an impor-
tant source of empirical data concerning cross-border mergers for the years 2013
through 2017, as a follow-up to the “Bech-Bruun Report” from 2013. Federico
Mucciarelli evaluates the various reasons companies may have for re-registering in
another country (either within the EU or elsewhere) and the methods that are
currently at their disposal for giving shape to such plans. Alexandros Seretakis
takes a closer look at minority shareholders involved in cross-border mergers,
comparing the appraisal rights available under EU and US corporate law. Georgios
Zouridakis advocates the EU-wide introduction of a US-style instrument of deriva-
tive suits against corporate directors following harmful cross-border mergers.
Last but not least, the book contains internal comparative law exposés relating to
the CBM Directive, in the context of various areas of law, by Marco Corradi and
Julian Nowag (competition law), Ewan McGaughey (labour law and the position of
the unions), Georgios Matsos (tax law), Michalis Kyriakides and Fryni Fournari
(procedural law), Vassilios Tountopoulos (capital markets law and inside informa-
tion) and Matteo Gargantini (capital markets law and takeovers).
The various exposés in this book are interesting not only for academics but also
for practicing lawyers confronted with the different national and international law
aspects of a commercial cross-border transaction: this book will certainly sharpen
their “antennas” for determining what is relevant to their client’s position and
whether or not they need to engage outside expertise, either local or foreign.
As a final remark, I would like to note that a cross-border merger implies a
fundamental change in legal environment for the shareholders. This not only applies
to corporate governance but also extends to legal disputes and corporate litigation,
relationships with workers’ unions and other employee representatives where appli-
cable, the rules for challenging corporate resolutions, the role of notaries and other
officials in corporate relationships, etc. However, the current CBM Directive does
not prescribe exit compensation as a mandatory provision to protect minority
shareholders (Article 4(2)).3 As a consequence, some Member States provide for
such a shareholder safeguard, while others do not.
I am pleased to see that the European legislature has recognized the legal
uncertainty that this brings as a major obstacle to cross-border mergers. The recent
proposal for a Directive on cross-border conversions, mergers and divisions contains
an exit right for minority shareholders in the form of a cash payment ultimately
determined by a court-appointed independent expert.4 The same protection is

3
Cf. Marieke Wyckaert & Koen Geens, Cross-Border Mergers and Minority Protection: an Open-
Ended harmonization, ECL December 2008, Volume 5, Issue 6, p. 295.
4
COM(2018) 239 final, Article 126a.
Foreword ix

prescribed if and when another form of corporate restructuring or transformation

applies, such as a cross-border conversion or a cross-border division. Hopefully,
at least that particular element of this rather ambitious proposal will soon come
into force. For further reading about this proposal, I gladly refer to Thomas
Papadopoulos’s EU and comparative law chapter in this book.

Leiden University, Law Faculty, Leiden, Steef M. Bartman

The Netherlands
Preface

The aim of this edited book is to analyse various aspects of the Cross-Border
Mergers Directive (hereinafter, “CBMD”). The general objective is to scrutinize
this harmonized area of EU company law. More specifically, this edited book aims at
providing a comprehensive analysis of the CBMD. The goal is to critically evaluate
cross-border mergers as a method of corporate restructuring (i.e. mergers and
acquisitions (M&As)). The analysis takes place in the context of European, com-
parative and national company law, while other areas of law are also considered
carefully. Special emphasis is given on the implications on the internal market.
Furthermore, some national company laws implementing the CBMD are analysed.
With this approach, this edited book fills an important gap in the research of
European company law. It covers EU harmonization of cross-border mergers in a
comprehensive and practical way, and links it with the discussion of corporate
restructuring in general, while also taking the implementation of the directive into
account.
This edited book examines the CBMD and its impact on EU corporate
restructuring. It analyses the effects of the CBMD on the internal market and on
national company laws. This approach assists us in identifying the advantages and
disadvantages of these regulations and in proposing possible amendments. After
reviewing the CBMD, the contributions identify the advantages and the disadvan-
tages of this directive. Deficiencies, gaps and inconsistencies are recognized. After a
careful analysis of these deficiencies, certain suggestions for possible amendment
and amelioration of the CBMD and national laws implementing it are provided.
The Research Promotion Foundation of the Republic of Cyprus financed a
research project on the regulation of takeovers and mergers at EU and national
level (Research Project: “Takeovers and Mergers in European, Cypriot and Greek
Company Law” KOULTOURA//ΒΡ-ΝΕ/0514/18, July 2015–December 2017). I
was the project coordinator of this research project. The host organization was the
University of Cyprus. This research project accompanied the “Cyprus Research
Award – Young Researcher (2014)” of the Research Promotion Foundation of the
Republic of Cyprus (category of “Social Sciences and Humanities”), which I
was awarded in December 2014. This distinction was awarded on the basis of
xi
xii Preface

my research on takeovers and mergers and was accompanied by funding for this
research project. In the context of this research project, I organized an international
conference on the CBMD with the title “Cross-Border Mergers Directive: EU
Perspectives and National Experiences”. This conference aimed at scrutinizing
the structure, the function and the implementation of the 10th Company Law
Directive on Cross-Border Mergers (Directive 2005/56/EC-CBMD), a relatively
underexplored topic of European Company Law. The speakers from all over Europe
discussed various aspects of the regulation of cross-border mergers. Notably, this
conference’s goal was to critically evaluate the contribution of this harmonizing
instrument to corporate restructuring in the context of M&As. Apart from some
company law papers discussing the general aspects of the CBMD, there were also
papers discussing the relationship of the CBMD with other areas of law, such as
tax law, employment law, competition law, civil procedure, private international
law, financial law and capital markets law. There were also papers discussing the
implementation of the directive in national company laws of some Member States.
The conference took place on Saturday, 7 October 2017, at the premises of the
University of Cyprus. The conference was financed by the Republic of Cyprus
through the Research Promotion Foundation in the context of the research project
mentioned above.
The final conference programme is available at the research programme’s
website: http://www.ucy.ac.cy/takeovers-mergers/conference. The Keynote Speaker
of this international conference was Professor Steef Bartman, Professor of Company
Law at the University of Leiden in the Netherlands; Attorney-at-Law at Bartman
Company Law in the Netherlands; Co-managing Director of the Centre for European
Company Law (CECL) and Editor-in-Chief of the European Company Law (ECL)
journal, published by Kluwer. All presentations scrutinized specific angles of the
CBMD in the light of European, comparative and national company law, while
the CBMD was put in context of other areas of law. I would like to congratulate all
the speakers on their excellent, original and well-founded presentations. Their pre-
sentations shed light on various intricacies deriving from the CBMD. The attendance
of this conference was impressive. More than 180 persons attended the conference.
Numerous persons with various backgrounds (academics, lawyers, practitioners,
economists, accountants, government officials and policy-makers, officers of super-
visory authorities, social partners, doctoral researchers, postgraduate and undergrad-
uate students, etc.) from Cyprus and from all over Europe attended this conference.
Some of them came to Cyprus only for this conference (from Germany,
the Netherlands, Italy, UK, Ukraine, Greece, etc.).
The enriched conference proceedings are published in this edited book. This book
does not include only the conference papers, but it is enriched with additional
contributions from other academics, who did not participate in the conference. The
title of this edited book is: Cross-Border Mergers: EU Perspectives and National
Experiences. This edited book is part of Springer’s book series “Studies in European
Economic Law and Regulation”. The Series Editors are Prof. Kai Purnhagen and
Dr. Josephine van Zeben.
Preface xiii

This edited book is divided into three parts. The various contributions allocated
among these three pillars provide a comprehensive analysis of a specific piece of
secondary EU law, the CBMD. The first pillar focuses on EU and comparative
perspectives on the CBMD, the second pillar examines the CBMD in the context of
various areas of law, and the third pillar scrutinizes national experiences from the
implementation of the directive in some Member States.
The first part scrutinizes the various provisions, as well as the impact of the
CBMD. More specifically, it reviews the structure and the functioning of the CBMD
in the internal market. Various aspects of the CBMD, such as a critical review of its
implementation, empirical findings, reincorporations, comparison of appraisal rights
between the US and the EU and shareholders’ derivative suits, are scrutinized. All
these chapters evaluate critically the main features of the CBMD and the experience
so far from its performance in the internal market. The advantages and the disad-
vantages of this directive are scrutinized, and proposals for reform are submitted.
The “Study on the Application of the Cross-Border Mergers Directive” prepared by
Bech-Bruun and Lexidale for the European Commission and other studies scruti-
nizing the implementation of the CBMD are examined. National and CJEU’s case
law is also taken into account. The first part of this edited book provides a wider
understanding of the impact of the CBMD on European and national company law.
The second part of this book is dedicated to an analysis in the context of various
areas of law, such as capital markets law, financial law, competition law, employ-
ment law, tax law and procedural law. The approach of the second part would assist
us in understanding better the business environment for cross-border mergers and
their interaction with various other areas of law. This volume adopts a wider
approach towards cross-border mergers by examining this company law directive
in the framework of other areas of law. This combined approach provides a better
comprehension of cross-border mergers. The dynamics of cross-border mergers go
beyond company law and fall within the scope of other areas of law. Cross-border
mergers are instruments with wide repercussions on various areas of law. The second
part of the edited book proves that an overarching approach to all areas of law
regulating cross-border mergers is essential for the complete understanding of the
cross-border mergers mechanism. The CBMD seeks to establish a pan-European
market for M&As by adopting harmonized company law rules for cross-border
mergers. However, the European legislature considers cross-border mergers not
only in the light of company law but also in the light of other areas of law. As a
result, a good grasp of the regulation of cross-border mergers by other areas of law is
also essential.
Finally, the third part of this edited book focuses on the transposition of the
CBMD in various Member States. The implementation of this directive in national
company laws is analysed in various chapters. The reader has the chance to get
acquainted with some aspects of the transposition of the CBMD in certain Member
States. Through the findings of these chapters, it is highlighted how well and
successfully these harmonized rules apply to various Member States. The analysis
of national laws transposing the CBMD and a commentary on the relevant national
case law also take place. The multi-level regulatory system of the CBMD requires an
xiv Preface

examination of the implementation of the CBMD in various Member States. CBMD

provides procedural rules for carrying out a cross-border merger. However, the
harmonization of this procedure is not comprehensive, as reference is made to
national company law for several aspects of the procedure. Certain procedural
aspects of cross-border mergers are not harmonized by the CBMD, and the relevant
national rules apply and cover this gap. This results in a multi-level regulatory
regime, where certain procedural aspects of cross-border mergers are regulated by
the CBMD and other by the national company law. The applicable national company
law includes also the transposed provisions of the Third Company Law Directive on
Domestic Mergers. Although this multi-level regulatory regime adjusts the CBMD
to the requirements of the national company law, it leads to legal diversity and results
in lack of legal certainty.
The edited book Cross-Border Mergers: EU Perspectives and National Experi-
ences focuses on specific but crucially important structural measures fostering
corporate change, namely, cross-border mergers. Such cross-border transactions
play an important role in business reality, in economic theory and in corporate and
capital markets law. After the adoption of the CBMD, cross-border mergers are
regulated by specific legal provisions in EU Member States, which facilitate this
corporate restructuring mechanism by seeking to establish a pan-European market
for cross-border mergers. It is therefore necessary to examine the legal framework of
such transactions in order to generate valuable insights about their fundamental
mechanisms. Likewise, this approach reveals new challenges not only for traditional
company law but also for other areas of law, such as capital markets law, financial
law, competition law, employment law, procedural law and tax law. The findings of
this edited book become of greater importance in the light of the future revision of
this directive. This collection of papers reveals the advantages and disadvantages of
the CBMD as an instrument of corporate restructuring. Some very useful conclu-
sions are inferred from the various book chapters. Undoubtedly, this collection of
papers contributes to the relevant debate and opens the floor for further discussion
and research on these topics.
EU company law is a very interesting area of law for academics, practitioners,
officers and researchers. Company law has been at the centre of interest in EU law
since the early stages of European integration. The internal market required among
other things the harmonization of the rules relating to company law, as well as to
accounting, auditing and securities regulation. EU company law is an area of law,
which does not concern only lawyers; economists, accountants, financial controllers,
bankers, officers of stock exchanges and employees of consulting and investment
companies are also interested in this area of law. Apart from EU company law, this
edited book is also related to capital markets law, financial law, competition law,
employment law, tax law, procedural law and internal market law.
This edited book would be beneficial for the relevant EU and domestic institu-
tions and actors. By getting hold of the results, a better and more thorough under-
standing of this directive is offered. This edited book would be particularly
interesting for academics and lawyers from various Member States who could
analyse the regulatory directions that their Member States had followed and could
Preface xv

discuss how these national decisions interact with the internal market. Interested
parties would not specialize only in EU law and company law. Academics and
practitioners specializing in EU law, company law, corporate finance, capital mar-
kets law, financial law, tax law, employment law, contract law, procedural law, com-
petition law and European economic law, managers and investors in European
undertakings as well as EU\national regulators and officers would be interested in
these aspects of the CBMD. This edited book would be interesting for all Member
States of the European Union, as well as for the EFTA Member States, which
comply with the EU harmonization of company law (Switzerland, Norway, Liech-
tenstein, Iceland). This edited book would also be a valuable reference for lawyers
from non-EU countries who want to find answers to their questions on EU company
law matters related to the regulation of cross-border mergers.

Nicosia, Cyprus Thomas Papadopoulos

June 2018
Acknowledgements

I would like to thank various persons who provided valuable support, assistance and
encouragement for the preparation and publication of this edited book and for the
organization and realization of the conference. I would like to thank the Research
Promotion Foundation of the Republic of Cyprus, who sponsored very generously
this academic event, in the context of the research project: “Takeovers and Mergers
in European, Cypriot and Greek Company Law” (KOULTOURA//ΒΡ-ΝΕ/0514/18).
I am indebted to all persons who accepted to contribute to the edited volume. I would
like to thank them for their hard work and to acknowledge their continuous support
to this publishing effort, without which, the completion of this edited book would be
impossible. I appreciate their devotion to the success of this project. I would also like
to express my gratitude to my colleagues at the Law Department of the University of
Cyprus for their continuous support and trust from the first day I joined the
University of Cyprus. A special word of thanks to the Keynote Speaker of this
international conference, Professor Steef Bartman, who also accepted to write the
foreword of this edited book. I would like to thank the Rector of the University of
Cyprus; the Registrar of Companies of the Republic of Cyprus; the Law Depart-
ment’s Secretary, Chryso Karakosta; the Head of the Communication Office of the
University of Cyprus, Katerina Nikolaidou; and my current and former volunteer
students, whose help for the organization of the conference was invaluable. Further-
more, I would like to thank the four research assistants who were employed and
worked at the research project as special scientists in order to assist me in my
research (Louiza Kofina, Kallistheni Kountouri, Juliana Georgallidou and Athina
Patera). I would also like to express my gratitude to all those persons who attended
the conference and expressed their interest in this research. I am also grateful to my
colleagues from the Centre for European Company Law (CECL) and from the
European Company Law (ECL) journal, of which I am one of its editorial secretar-
ies. Additionally, I would like to thank the Series Editors of “Studies in European
Economic Law and Regulation”, Prof. Kai Purnhagen and Dr. Josephine van Zeben,
who accepted to include this book in this book series. Moreover, I would like to
thank the employees of Springer, and especially Dr. Anja Trautmann LL.M. (Edi-
tor), for their excellent cooperation during the publishing process of this book.
xvii
xviii Acknowledgements

I would like to acknowledge the gratitude that I owe to my family, who helped
and supported me during the editing of this book and the preparation of the
conference. I would like to thank my father, Grigorios; my mother, Evdokia; my
grandmother, Vivi; my grandmother, Zoi; my brother, Zois; and the rest of my
family, without whose love, encouragement, respect and support, this edited volume
would not have been possible.
Contents

Part I Cross-Border Mergers: EU and Comparative Perspectives

Reviewing the Implementation of the Cross-Border
Mergers Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Thomas Papadopoulos
An Empirical Research on Cross-Border Mergers at EU Level . . . . . . . 35
Thomas Biermeyer and Marcus Meyer
Cross-Border Mergers and Reincorporations in the EU: An Essay
on the Uncertain Features of Companies’ Mobility . . . . . . . . . . . . . . . . . 53
Federico M. Mucciarelli
Appraisal Rights in the US and the EU . . . . . . . . . . . . . . . . . . . . . . . . . 65
Alexandros Seretakis
Shareholders’ Derivative Suits Against Corporate Directors, Following
Cross-Border Mergers: A Functioning Remedy Within the EU? . . . . . . 81
Georgios Zouridakis

Part II Cross-Border Mergers in European Company Law: Analysis

in the Context of Various Areas of Law
Disclosure of Inside Information in Cross-Border Mergers . . . . . . . . . . . 103
Vassilios D. Tountopoulos
Cross-Border Mergers and Cross-Border Takeovers Compared . . . . . . 131
Matteo Gargantini
The Relationship Between Article 4(1)(b) of the Cross-Border
Merger Directive and the European Merger Regulation . . . . . . . . . . . . . 159
Marco Corradi and Julian Nowag

xix
xx Contents

Unions’ Freedom to Establish and Provide Services . . . . . . . . . . . . . . . . 175

Ewan McGaughey
Tax Mergers Directive: Basic Conceptualisation . . . . . . . . . . . . . . . . . . . 193
Georgios Matsos
Procedural Harmonisation in Cross-Border Mergers . . . . . . . . . . . . . . . 209
Michael Kyriakides and Fryni Fournari

Part III National Experiences from the Implementation of the

Cross-Border Mergers Directive in Some Member States
Experiences from the Implementation of the Cross-Border Mergers
Directive in Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Georg Gutfleisch
Experiences from the Implementation of the Cross-Border Mergers
Directive in Cyprus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
Thomas Papadopoulos
Cross-Border Mergers: The Danish Experience . . . . . . . . . . . . . . . . . . . 275
Hanne S. Birkmose
Cross-Border Mergers in France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
Bénédicte François
The Implementation of the Cross-Border Mergers Directive
(2005/56/EC) in Germany: A Story of Insufficiencies and (Better)
Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
Sebastian Mock
Experiences from the Implementation of the Cross-Border Mergers
Directive in Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
Thomas Papadopoulos
The Implementation of the Cross-Border Mergers Directive in Italy:
An Overview with a Critical Assessment of Dissenting Shareholders’
Appraisal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
Sergio Gilotta
The Implementation of the Cross-Border Mergers Directive
in Luxembourg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Isabelle Corbisier
Implementation of the Cross-Border Merger Directive
in the Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
M. A. Verbrugh
Cross-Border Mergers: Experiences from Poland . . . . . . . . . . . . . . . . . . 425
Ariel Mucha and Arkadiusz Radwan
Contents xxi

The Mutual Influence Between Cross-Border Merger and Common

Merger Regimes in Spanish Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443
Alfonso Martínez-Echevarría
Cross-Border Mergers Directive and Its Impact in the UK . . . . . . . . . . . 477
Jonathan Mukwiri
Editor and Contributors

About the Editor

Thomas Papadopoulos is an Assistant Professor of Business Law at the Depart-

ment of Law of the University of Cyprus. He received a degree of DPhil in Law
(2010), a degree of MPhil in Law (2007) and a degree of Magister Juris-MJur (2006)
from the Faculty of Law, University of Oxford, UK. He also received his LLB with
Distinction (ranked 1st) from the Department of Law, Aristotle University of
Thessaloniki, Greece (2005). Previously, he was a visiting researcher at Harvard
Law School (2009–2010). He is also a Visiting Professor at International Hellenic
University and an Attorney at law (Greece). Moreover, he is an Editorial Secretary of
European Company Law (ECL) Journal. He was awarded the “Cyprus Research
Award-Young Researcher (2014)” of the Research Promotion Foundation of the
Republic of Cyprus (category of ‘Social Sciences & Humanities’). This distinction
was awarded on the basis of his research on Takeovers and Mergers and was
accompanied by a research grant. He is the Project Coordinator of the Research
Project “Takeovers and Mergers in European, Cypriot and Greek Company Law”,
which is financed by the Research Promotion Foundation of the Republic of Cyprus.
His articles were published in many top international law journals.

Contributors

Thomas Biermeyer Maastricht University, Faculty of Law, Maastricht,

The Netherlands
Hanne S. Birkmose Aarhus University, Aarhus BSS, Department of Law, Aarhus,
Denmark
Isabelle Corbisier University of Luxembourg, Esch-sur-Alzette, Luxembourg

xxiii
xxiv Editor and Contributors

Marco Corradi Stockholm Centre for Commercial Law and Stockholm Univer-
sity, Stockholm, Sweden
Oxford University Institute for European and Comparative Law, Oxford, UK
Fryni Fournari Corporate Law Department, Harris Kyriakides LLC, Larnaca,
Cyprus
Bénédicte François Paris Est Créteil University (Paris 12), Faculty of Law, Paris,
France
Matteo Gargantini University of Utrecht, Utrecht, The Netherlands
Sergio Gilotta University of Bologna, Department of Legal Studies, Bologna, Italy
Georg Gutfleisch Brandl & Talos Rechtsanwälte GmbH, Vienna, Austria
Michael Kyriakides Corporate Law Department, Harris Kyriakides LLC, Larnaca,
Cyprus
Alfonso Martínez-Echevarría University CEU San Pablo, Madrid, Spain
Georgios Matsos International Hellenic University, School of Economics, Busi-
ness Administration and Legal Studies, Thessaloniki, Greece
Matsos & Associates Law Office, Thessaloniki, Greece
Ewan McGaughey King’s College London, London, UK
Marcus Meyer Maastricht University, Faculty of Law, Maastricht, The
Netherlands
Sebastian Mock Vienna University of Economics and Business, Vienna, Austria
Federico M. Mucciarelli University of Modena and Reggio Emilia, Modena, Italy
SOAS, University of London, London, UK
Ariel Mucha Jagiellonian University, Law and Administration Faculty, Kraków,
Poland
Jonathan Mukwiri Durham Law School, Durham University, Durham, UK
Julian Nowag Lund University, Lund, Sweden
Oxford University Centre for Competition Law and Policy, Oxford, UK
Thomas Papadopoulos University of Cyprus, Department of Law, Nicosia,
Cyprus
Arkadiusz Radwan Polish Academy of Sciences - Scientific Centre in Vienna,
Vienna, Austria
Vytautas Magnus University, Kaunas, Lithuania
Allerhand Institute, Kraków, Poland
University of Social Sciences, Łódź, Poland
Editor and Contributors xxv

Alexandros Seretakis Trinity College Dublin, School of Law, Dublin, Ireland

Vassilios D. Tountopoulos University of the Aegean, Chios, Greece
M. A. Verbrugh Erasmus University Rotterdam, Rotterdam, The Netherlands
Georgios Zouridakis Athens Institute for Education and Research, Athens, Greece
 Part I
Cross-Border Mergers: EU and
Comparative Perspectives
Reviewing the Implementation of the
Cross-Border Mergers Directive

Thomas Papadopoulos

1 Introduction

This chapter aims at reviewing the implementation of the Cross-border Mergers

Directive, the 10th Company Law Directive (hereinafter, “CBMD”).1 It examines
the experiences so far from the application of the CBMD in the context of the
internal market. It focuses on specific findings and arguments arising from the
implementation of the CBMD by Member States. This chapter scrutinizes the
most important parts of the “Study on the Application of the Cross-Border Mergers
Directive” (hereinafter the “Study”) prepared by Bech-Bruun and Lexidale for the
Directorate General for the internal market and services of the European Commis-
sion (MARKT/2012/031/F). This Study assists us in identifying the strengths and
the weaknesses of the CBMD. This chapter provides a critical overview of the main
findings of this Study, which constitutes the cornerstone of this chapter. Two other
reports scrutinizing the implementation of the CBMD are also considered carefully:
(1) “Cross-Border Mergers and Divisions, Transfers of Seat: Is there a Need to

1
Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-
border mergers of limited liability companies. [2005] OJ L 310/1–9 (Cross-border Mergers
Directive). This Directive was repealed and codified by EU Directive 2017/1132 of the European
Parliament and of the Council of 14 June 2017 relating to certain aspects of company law. [2017] OJ
L 169/46–127. This codification took place in the interests of clarity and rationality, because
Directives 82/891/EEC and 89/666/EEC and Directives 2005/56/EC, 2009/101/EC, 2011/35/EU
and 2012/30/EU have been substantially amended several times (Recital 1 of the Preamble).
However, this chapter would refer exclusively to the Cross-border Mergers Directive (hereinafter,
“CBMD”), because the various studies, reports and papers refer to this specific directive. Only part
“9) Proposal for amendments to the CBMD.” would refer to Directive 2017/1132, because the
relevant proposal refers to this directive.

T. Papadopoulos (*)
University of Cyprus, Department of Law, Nicosia, Cyprus
e-mail: [email protected]

© Springer Nature Switzerland AG 2019 3

T. Papadopoulos (ed.), Cross-Border Mergers, Studies in European Economic Law
and Regulation 17, https://doi.org/10.1007/978-3-030-22753-1_1
4 T. Papadopoulos

Legislate?” prepared by Prof. J. Schmidt as a Study for the Directorate General for
Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs
of the European Parliament in 2016, (2) “Ex-post analysis of the EU framework in
the area of cross-border mergers and divisions” (European Implementation Assess-
ment) prepared by Prof. E. Truli as a Study for the Directorate-General for Parlia-
mentary Research Services of the Secretariat of the European Parliament in 2016.
More specifically, this chapter comments on various findings of the Study and the
rest of the reports revealing the advantages and the disadvantages of the CBMD. The
focus of this chapter is on company law matters of cross-border mergers, while only
a brief reference to the most important aspects of employee participation and
taxation is made.
Member States had to implement the CBMD by 15 December 2007. More than
10 years had passed since that date. This provides a safe point for evaluating the
implementation of the CBMD. This chapter seeks to demonstrate that the CBMD is a
revolutionary piece of secondary EU law, which facilitates significantly cross-border
mergers activity at EU level. Apart from the advantages, this chapter scrutinizes the
various important disadvantages of the CBMD. On the one hand, the CBMD
constitutes the backbone of the EU M&As market by allowing a very important
cross-border corporate restructuring technique, which was not available before its
adoption at EU level. On the other hand, the harmonized regime on cross-border
mergers suffers by many important problems, which restrict the efficiency of this
directive. Although the CBMD is characterized by many disadvantages, most of
these disadvantages are procedural and could be overcome by further harmonization.
Nevertheless, some of these procedural problems raise difficult policy issues, such as
creditor protection and protection of minority shareholders, which are inherent to the
legal diversity among national company laws. The proposals seeking to address
these deficiencies are also discussed.

2 The Main Benefits of the CBMD

The CBMD transformed completely the M&As landscape at EU level. Before the
adoption of the CBMD, the European Company Statute (Regulation 2157/2001) was
the only piece of secondary EU legislation offering the possibility of a cross-border
merger. It offered the possibility to form a European Company (Societas Europaea-
SE) through a cross-border merger.
There is now a consolidated set of harmonized rules, which facilitate cross-border
M&A activity in the internal market. Before the adoption of the CBMD, there was no
harmonized framework for cross-border mergers.2 The availability of cross-border
mergers depended on the choices of national legislatures. Quite often, cross-border

2
Before the adoption of the CBMD, companies from different Member States willing to proceed to
a cross-border merger had to choose alternatives, such as “dual company structures” (e.g. Royal
Reviewing the Implementation of the Cross-Border Mergers Directive 5

mergers were not allowed at all or were almost impossible due to insurmountable
barriers by certain Member States. The CBMD made available at EU level this very
important corporate restructuring technique.3 EU legislative intervention into cross-
border mergers was considered to be of paramount importance. Without a harmo-
nizing legal instrument, cross-border mergers would be impossible or prohibitively
expensive.4
J. C. Coates IV provides two succinct definitions for M&A and corporate
restructuring: “‘M&A’ is a deliberate transfer of control and ownership of a business
organized in one or more corporations.” and “‘restructuring’ is a deliberate, signif-
icant and unusual alteration in the organization and operations of a business,
commonly in times of financial or operational distress, typically accompanied by
changes in ownership or finance, as when a company merges two divisions, or sells
off a business unit.”5 The CBMD, as a regulatory instrument aiming at harmoniza-
tion, should be examined in the context of these two definitions. The transfer of
control and ownership and the alteration in the organization and operations of a
business are the sources of various conflicts and procedural issues, which the CBMD
is called to deal with. This situation is aggravated by the wide variety of methods
used to regulate these issues, which are adopted by various Member States.6 The
CBMD is called to draw some subtle lines and to take some careful decisions in
order to reach a balance in the harmonized standards. The CBMD regulates freedom
of establishment through conflict of law rules and some specific substantive law
rules. First, the CBMD adopts conflict of law and international procedural rules by
allocating competences to regulate and to supervise every specific aspect of the
cross-border merger. Secondly, the CBMD has substantive law rules specifically
designed for cross-border situations.7
The Study concluded some very interesting findings regarding the benefits of the
CBMD. The general benefits of the CBMD are the following: opening the internal
market, reducing organizational & operational costs, reducing regulatory costs,
lowering agency costs and procedural simplification.8 The specific main benefits
of the Directive, as identified by the Study, are the following: harmonization of
conflicting laws,9 overcoming stalemates caused by shareholder unanimity

Dutch/Shell (NL/UK), Fortis (NL/Be), Unilever (NL/UK) and Reed Elsevier (NL/UK)). Zaman
(2006), pp. 127–129.
3
For a critical overview of the provisions of the CBMD, see: Vermeylen (2012); Ugliano (2007),
pp. 585–617; van Gerven (2010), pp. 3–28; Wyckaert and Jenne (2010), pp. 302–305.
4
Grundmann (2012), p. 698; Rickford (2005), pp. 1393–1414. See, also: Truli (2016), p. 23.
5
Coates IV (2015), p. 3.
6
For an analysis of the variety of acquisition forms, see: Carney (2009), pp. 10–37; Cahn and
Donald (2010), pp. 623–636.
7
Grundmann (2012), p. 703.
8
Bech-Bruun and Lexidale Study (2013), pp. 6–9.
9
Truli (2016), p. 25.
6 T. Papadopoulos

requirements, enhancing protection for creditors and minority shareholders,10 sim-

plified procedure, efficiency gains through group reorganization,11 special advan-
tages for the banking sector, facilitating cross-border company seat transfers,12 new
tax-planning opportunities through the Directive and cutting through red tape.13 The
drivers of cross-border mergers are the following: synergies and business strategy,
reducing organizational costs,14 minimizing costs of regulatory compliance, tax
planning and business-friendly regulatory environment.15 Cross-border mergers
could also result in regulatory competition among different Member States, because
seat transfers could also take place through cross-border mergers.
It seems that the CBMD serves also certain objectives for the regulation of M&As
as set by law & economics. These goals are the following: elucidation of authority
and control over M&A by corporate decision makers16; reduction of transaction
costs and confronting collective action problems; restriction and improvement of
outcomes of conflict-of-interest transactions; protection and enhancement of power
of dispersed owners of public companies; discouragement or mitigation of looting,
asset-stripping and excessive M&A-related leverage; and tackling the side effects
and the negative impact of other regulations.17
All these benefits of a cross-border merger were assessed positively by market
participants and resulted in a satisfactory number of cross-border mergers at EU
level. According to empirical researches, for the period 2008–2012, 1227 cross-
border mergers took place18 and, for the period 2013–2017, 1163 cross-border
mergers took place.19 The significant increase of the cross-border merger activity
in Europe (more than 170%), since the introduction of the CBMD, underpins the
argument that the CBMD is considered as a very successful harmonizing legal
instrument despite its disadvantages discussed below.20

10
Truli (2016), p. 25.
11
Truli (2016), p. 27.
12
Truli (2016), p. 27.
13
Bech-Bruun and Lexidale Study (2013), pp. 14–27. Cross-border mergers also increase regula-
tory competition between Member States, when bureaucratic processes are simplified or abolished
and when taxes are diminished. Truli (2016), p. 28.
14
Truli (2016), p. 28.
15
Bech-Bruun and Lexidale Study (2013), p. 9. For an analysis of the strategic and financial
motivation for M&As in US, see: Carney (2009), pp. 7–10.
16
H. Manne argues that “the control of corporations may constitute a valuable asset, that this asset
exists independent of any interest in either economics of scale or monopoly profits, that an active
market for corporate control exists, and that a great many mergers are probably the result of the
successful workings of this special market”. Manne (1965), pp. 110–120, 112. See, also: Carney
(1999), pp. 215–255; McChesney (1999), pp. 245–252.
17
Coates IV (2015), p. 3.
18
Bech-Bruun and Lexidale Study (2013), pp. 5–6.
19
Biermeyer and Meyer (2018), p. 5.
20
Truli (2016), p. 21.
Reviewing the Implementation of the Cross-Border Mergers Directive 7

3 Article-by-Article Analysis of the CBMD: Difficulties,

Disadvantages and Proposals for Possible Reforms

3.1 Introduction: Obstacles to Cross-Border Mergers

and Various Drawbacks of the CBMD

Although the CBMD was the legal instrument making for the first time cross-border
mergers possible and offering one additional possibility for corporate restructuring at
EU level, it is characterized by some disadvantages. We should not underestimate
the advantages that the CBMD offers. However, certain parts of the directive could
be ameliorated and further developed in order to offer a better corporate restructuring
technique.
The Study identified various categories of obstacles: under-harmonization of
rules, absence of clear standards on inter-agency communications, obstacles
pertaining to safeguards for stakeholders and a need for a fast track.21 In particular,
barriers include: complexities with creditor protection, commencement date of the
creditor protection, duration of the creditor protection, consequences of creditor
protection, different procedures for creditor protection and absence of “fast-track”
procedure.22 The Study also specified gaps and potential inconsistencies of the
directive and showed the way towards trends and developments.23
An article-by-article analysis of the Directive reveals certain problems and
deficiencies, which were reported from the experiences of its implementation.
Possible solutions to these problems are proposed, in case of a future amendment
of the CBMD. The basis of this article-by-article analysis is the Study, which
specified these problems. As mentioned above, various other studies, reports, papers
and researches are also considered. It is interesting to examine the problematic
provisions of the CBMD and the recommendations for reform, as identified by the
Study and the other reports.

3.2 Scope

Art. 1 regulates the scope of the CBMD. According to the Study, a practical
difficulty related to this provision is that companies have to fulfill cumulative
criteria: they must have been formed according to the law of a Member State and
must have the company’s registered office, central administration, or principal place
of business (a connecting factor) within the EU/EEA. A proposed amendment is that
the directive should also expand its scope to companies that have not been formed in

21
Bech-Bruun and Lexidale Study (2013), pp. 9–13.
22
Bech-Bruun and Lexidale Study (2013), pp. 31–36.
23
Bech-Bruun and Lexidale Study (2013), pp. 13–15.
8 T. Papadopoulos

the EU/EEA but have been converted into an EU/EEA company law form.24 The
requirement of Art. 1 that only limited liability companies25 formed in accordance
with the law of a Member State and having their registered office, central adminis-
tration or principal place of business within the EU could merge under the CBMD
limits the possibility of cross-border mergers through the CBMD. Hence, companies
formed in a non-EU jurisdiction and having transferred their seat to an EU Member
State are excluded from the scope of the CBMD and cannot benefit from this cross-
border corporate restructuring mechanism.26 As mentioned above, in a possible
reform of the CBMD, the scope of Art. 1 could be extended in order to include
companies, which have been formed in a non-EU State, but they have transferred
their seat to an EU Member State and have been converted into a company type of
this EU Member State.27 Hence, such companies could also enjoy the benefits of
the CBMD.
Generally, the limitation of the scope of the CBMD to limited liability companies,
according to Arts. 1 and 2(1), is considered as a significant disadvantage. In a
possible amendment, the scope of the CBMD could be extended to all legal persons
falling within the scope of Art. 54 TFEU.28 This proposal for reform is compatible
with the exercise of the EU freedom of establishment by these legal persons. In
SEVIC, the CJEU held that cross-border mergers constitute an exercise of the EU
freedom of establishment.29 Nevertheless, the current scope of Art. 2 containing
certain definitions is considered to be sufficient. The Study found that, in accordance
with case law of the CJEU (SEVIC,30 Cartesio,31 Vale32), some Member States have
expanded the type of companies that can benefit from the CBMD provisions.33

24
Bech-Bruun and Lexidale Study (2013), p. 29.
25
Storm (2010), pp. 72–73.
26
Truli (2016), p. 36. Bech-Bruun and Lexidale Study (2013), p. 85. According to Art. 3(3), this
Directive shall not apply to cross-border mergers of UCITS. Arts. 37–48 of the UCITS Directive
harmonize mergers of UCITS. Directive 2009/65/EC of the European Parliament and of the Council
of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to
undertakings for collective investment in transferable securities (UCITS) [2009] OJ L 302/32–96.
See, also Brasseur and Vermeylen (2012), pp. 61–79.
27
Truli (2016), pp. 36–37.
28
Schmidt (2016), p. 17. Truli (2016), pp. 35–36.
29
Case C-411/03 SEVIC Systems AG EU:C:2005:762, paragraph 19.
30
Case C-411/03 SEVIC Systems AG EU:C:2005:762.
31
Case C-210/06 Cartesio Oktató és Szolgáltató bt EU:C:2008:723.
32
Case C-378/10 VALE Építési kft EU:C:2012:440.
33
Bech-Bruun and Lexidale Study (2013), p. 29.
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