The purpose of this questionnaire is to collect information, which would help the Directorate General for Internal Market and Services to assess the functioning of the existing EU legal framework for cross-border operations of companies and any potential need for changes in the current rules. The questions focus on the improvement of the existing framework for cross-border mergers and a possible framework for cross-border divisions of companies. The questions do not reflect any official position of the European Commission and in no way prejudge its future decisions, if any, on the improvement of the framework for cross-border operations of companies.

The Action Plan on Company Law and Corporate Governance stressed that Directive 2005/56/EC (CBMD - Cross-Border Merger Directive) was a big step forward for cross-border mobility of companies in the EU and, at the same time, acknowledged that it might need to be adjusted to meet the changing needs of the single market. The study on the application of this directive identified a number of problems/difficulties related to its implementation and functioning in practice. For instance, the study identified procedural rules as being a source of uncertainty and complexity, in particular, rules on creditors’ protection, minority shareholders’ protection and the valuation of assets.

As regards divisions, the relevant rules have been harmonised at national level for a number of years by Directive 82/891/EEC. However, to date, there is no EU level framework for cross-border divisions and companies wishing to undertake a cross-border division have to perform several operations, such as a national division and a cross-border merger or the creation of a subsidiary and a subsequent transfer of assets.

Therefore, the 2012 Action Plan mentioned that the Commission would consider an initiative to provide a framework for cross-border divisions, possibly through an amendment of the cross-border mergers Directive, as the latter would be well known to stakeholders and would provide a tested framework for cross-border restructurings.

The outcome of the 2012 consultation on the future of European company law showed that the majority of stakeholders would be interested in further harmonisation in the field of cross-border mergers and divisions.

The purpose of the current consultation is to gather more in-depth information on the following issues:

1. a) existing barriers in cross-border operations b) what changes stakeholders believe are needed to the existing legal framework, and
2. c) costs that could be saved thanks to action at EU level.

The responses will be taken into account in assessing the need for EU action in this field.

Responses to this consultation should be concise, focused specifically on the questions raised and sent no later than 01/12/2014. The answers to the questionnaire should be given on-line and, if there is a need for attachments, the file should be uploaded at the end of the questionnaire in Section IV. If you have any specific questions on the consultation or would like to provide feedback, please send those to markt-f2@ec.europa.eu. The Commission would like to thank all interested parties for taking part in this consultation and reserves the right to contact respondents if further information or clarifications are necessary.

See specific privacy statement.

SOMMARIO:

I. Information - II. Cross-border mergers - III. Cross-border divisions - IV. General comments

I. Information

Country of respondent      ™  a)  EU country      ™  b)  Non EU country Please specify your country:      ™  Austria      ™  Belgium      ™  Bulgaria      ™  Croatia      ™  Cyprus      ™  Czech Republic      ™  Denmark      ™  Estonia      ™  Finland      ™  France      ™  Germany      ™  Greece      ™  Hungary      ™  Ireland      ™  Italy      ™  Latvia      ™  Lithuania      ™  Luxembourg      ™  Malta      ™  Poland      ™  Portugal      ™  Romania      ™  Slovakia      ™  Slovenia      ™  Spain      ™  Sweden      ™  The Netherlands      ™  United Kingdom Please specify:      ™  EEA country      ™  Third country Please specify your country:      ™  Iceland      ™  Liechtenstein      ™  Norway Please indicate your country:     Please provide your name and address:     Please indicate if you are responding on behalf of:      ™  a) Public authority (including government)      ™  b)  University/Research Institute/Think Tank or similar      ™  c)  Lawyer/notary      ™  d)  Business Federation/ Business Organisation/Chamber of Commerce, Consumer association, other federation, association or organisation      [continua ..]

II. Cross-border mergers

The Cross-Border Merger Directive (CBMD) contains a harmonised framework of rules for mergers between companies from different Member States. In the 2012 consultation the majority of stakeholders expressed the view that the existing EU rules for cross-border mergers should be adjusted to meet the changing needs of the single market. Furthermore, the study on the application of the CBMD from 2013 put forward a number of concrete suggestions to improve the existing legal framework. The questions below build on the above-mentioned research and concern concrete actions that could be taken at EU level. Should the CBMD apply to cross-border mergers of companies that have not been formed in the EU/EEA but have converted into an EU/EEA form?      ™  a) Yes      ™  b) No      ™  c) I do not know Should cross-border mergers be possible between different company types in general, e.g. a merger between a private limited liability company and a public limited liability company?      ™  a) Yes      ™  b) No      ™  c) I do not know Should the rights of creditors in case of a cross-border merger be harmonised?      ™  a) Yes      ™  b) No      ™  c) I do not know 3.1. What approach should this harmonisation take?      ™  a)  Full harmonisation of rights of creditors in all Member States      ™  b)  Two option approach - Member States could implement one of the two sets of rights for creditors provided for by EU law      ™  c)  Open-menu approach - Member States could, but would not be obliged to, avail themselves of one of the two proposed sets of rights for creditors provided for by EU law      ™  d)  I do not know 3.2. The creditors should have the right to: [multiple choice question]      ™  a) Block the merger      ™  b) Request a company to provide a guarantee or security to the creditor      ™  c) Ask the court to require that a company provides a guarantee or security      ™  d) Other [continua ..]

III. Cross-border divisions

Divisions at national level are currently harmonised by Directive 82/891/EEC, but EU company law has no rules on cross-border divisions. The 2012 consultation on the future of EU company law showed that there is a need for a clear European legal framework specifying the conditions under which cross-border divisions could be made. Why would a company want to carry out a cross-border division? [multiple choice question] £  a) Realise new Internal Market opportunities £  b) Change/simplify its organisational structure £  c) Adapt to changing market conditions £  d) Other (please specify) £  e) I do not know Please specify:     How could harmonisation at the EU level of legal requirements concerning cross-border divisions help enterprises and facilitate the increase of cross-border activities of companies within the EU? [multiple choice question] £  a)  Reduction of regulatory costs (fees) £  b)  Reduction of the costs directly related with the cross-border division (e.g. cost of translation, advice, etc.) £  c)  Reduction of the operating costs of the company or group of companies £  d)  Other (please specify) £  e)  I do not know Please specify:     What, if any, are the obstacles to the execution of cross-border divisions when compared to national divisions? [multiple choice question] £  a)  Costs of a cross-border division effected via a national division and then a cross-border £  b)  Difficulty of financing cross-border divisions £  c)  Legal uncertainty because of a lack of European rules £  d)  Duration and complexity of the current procedures necessary to execute a cross-border division £ e)  Tax issues £ f)   Any other obstacles than mentioned above? (please specify) £ g)  I do not know Please specify:     3.1. Please identify which costs you consider as major. [multiple choice question] £  a)  Translations £  b)  Registration requirements/fees £  c)  Costs of different rules on the valuation of assets when doing a cross-border division £  d)  Costs of advice related to a cross-border division £  e)  Costs related [continua ..]

IV. General comments