230 likes | 246 Views
Explore existing problems in cross-border operations regarding the European Company, transfer of seat, cross-border mergers, and transfer of registered company seats. Learn about proposed solutions and suggestions to enhance communication among European Commerce Registers.
E N D
Cross border communication among registers -Practical aspects-Yves GonnerManaging director- Trade and Companies Register Luxembourg
Outline • Reminder of existing problems in the registration of cross border operations • ECRF working group • Notification proposals
Reminder of problems that arise in cross border operations 1 : European Company (SE) - Transfer of seat (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 • 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
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
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
2 : Cross border mergers • 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 • Cross border mergers involving non EU countries • No notification procedure exists
3 : Cross border transfer of registered company seats (1/2) • 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 p • No EU regulatory framework at present • 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
Cross border transfer of registered company seats (2/2) - 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
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 cross border operations • The terms of reference of this working group have been suggested as follows: • Define the areas in cross 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., cross 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.
European Commerce Registers Forum (ECRF) working group • Objective • Work out simple and practical recommendations in order to improve cross 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
ECRF working group proceedings • Identification of four ‘case studies’ • SE / SCE • EEIG • Cross border mergers • Cross border transfer of registeredcompanyseats • Agreement on standardized notification messages concerning cases 1 to 3 • Case study 4 concerning the cross border transfer of registeredcompanyseatsisstillunder discussion
ECRF working group proposals Notification proposals • Registration of the transfer of the registered office of a European company (SE) • Registration of the transfer of the official address of a European Economic Interest Grouping (EEIG) • Cross border merger operation • by way of absorption • by way of constitution
ECRF working group proposals • Proposal of a bilateral ‘Memorandum of Understanding’ (MoU) concerning the cooperation in cross border communication amongregisters • Consists of cooperation agreement and 3 annexes • flexible approach • intended to besignedbetweentworegisters / competentauthorities • allowstakingintoconsiderationspecific provisions in cooperation agreement among EU and non EU registers • isintended to allowstandardized communication sets amongregisters on • Paper basis • E-mail (pdf format or registered email or digitally signed document)
Should be implemented on an electronic platform with the aim to facilitate communication procedures among registers (EBR)
Annex 1 :NOTIFICATION concerning the registration of the transfer of the registered office of a European company (SE) [Name and address of the new register/competent authority] hereby informs [Name and address of the former register/competent authority] that the following transfer of the registered office of an SE has been registered: [Name of the SE ] [New registered office of the SE] [New REID number / national ID number] [Date of registration of the transfer] In accordance with Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE), article 8, the following SE is to be removed from its former register on receipt of this notification: [Name of the SE] [Former registered office of the SE] [Former REID/ national ID number number] Done at…, […] Signature [optional - depending on national provisions]
Annex 2 : NOTIFICATION concerning the registration of the transfer of the official address of a European Economic Interest Grouping (EEIG) [Name and address of the new register/competent authority] hereby informs [Name and address of the former register/competent authority] that the transfer of the official address of the following European Economic Interest Grouping has been registered: [Name of the EEIG ] [New official address of the EEIG] [New REID number / national ID number] [Date of registration of the transfer] In accordance with COUNCIL REGULATION (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG), article 14.2, the following EEIG may be removed from its former register on receipt of this notification: [Name of the EEIG] [Former official address of the EEIG] [Former REID/ national ID number number] Done at…, […] Signature [optional - depending on national provisions
Annex 3.1 : NOTIFICATION concerning a cross border merger operation by way of absorption [Name and address of the new register/competent authority] hereby notifies [Name and address of the former register/competent authority] that the cross-border merger between [Name of the absorbing company ] [Registered office of the absorbing company] [Number of registration in the register (REID/ national ID number) of the absorbing company] And [Name of the absorbed company ] [Registered office of the absorbed company] [Number of registration in the register (REID/ national ID number) of the absorbed company] Has taken effect on [Date of effect] in accordance with [national legislation] and article 13 of Directive 2005/56/EC of the European Parliament and of the council of 26 October 2005 on cross-border mergers of limited liability companies Done at…, [Date] Signature [optional - depending on national provisions]
Annex 3.2: NOTIFICATION concerning a cross border merger operation by way of constitution [Name and address of the new register/competent authority] hereby notifies [Name and address of the former registers/competent authorities] that the cross-border merger between [Name of the company ] [Registered office of the company] [Number of registration in the register (REID / national ID number) of the company] And [Name of the company ] [Registered office of the company] [Number of registration in the register (REID/ national ID number) of the absorbed company] That formed the new company [Name of the new company ] [Registered office of the new company] [Number of registration in the register (REID/ national ID number) of the company] Has taken effect on [Date of effect] in accordance with [national legislation] and article 13 of Directive 2005/56/EC of the European Parliament and of the council of 26 October 2005 on cross-border mergers of limited liability companies Done at…, [Date] Signature [optional - depending on national provisions]
What’s next ? • Approval by the ECRF General Assembly of • MoU • Notification proposals • ECRF memberscouldstartusing the proposed notification sets on a voluntary basis • Continuation of the working group on the last case studyconcerning the cross border transfer of the registeredcompanyseat