Grensoverschrijdende juridische splitsing van kapitaalvennootschappen

Abstract

Cross-border division of companies with limited liability Cross-border division of companies with limited liability is the legal act pursuant to which a company, governed by the law of a state, divides – by legal division – as a consequence of which: (i) assets and liabilities of the dividing company transfer under universal title of succession by operation of law to one or more acquiring companies, that is (or are) governed by the law of another state; and (ii) the shareholders of the dividing company become shareholders of the acquiring company or companies. The acquiring company or companies may already exist prior to the division or can be newly formed in the framework of the cross-border division. The dividing company ceases to exist in the framework of the cross-border division (a “full division”) or continues to exist (a “partial division”). The law of the EU, as it stands, does not explicitly provide for written legislation on cross-border division. Only a few Member States of the EU drew up legislation on cross-border divisions. However, cross-border division is possible on the basis of the freedom of establishment (section 49 and section 54 Treaty on the Functioning of the EU (“TFEU”)). The Court of Justice of the EC/EU confirmed that company transformation operations constitute particular methods of exercising the freedom of establishment. Also cross-border division falls within that scope. The freedom of establishment has a wide scope: it is applicable to all kind of companies that fall within the scope of section 54 TFEU and is applicable to all kind of corporate restructuring methods that are allowed under the national laws of the Member States of the EU. Although the scope of the freedom of establishment is wide, the freedom of establishment cannot “introduce” the possibility of cross-border division for companies that cannot be involved in a national division under the laws of a Member State of the EU. As to the conflict of laws with respect to cross-border division, a “distinctive cumulative approach” should be followed: the laws applicable to the companies involved in the cross-border division will both be applied, but a distinction has to be made between certain parts of the cross-border division and the procedure upon cross-border division. Applying this “distinctive cumulative approach” results in a balanced application of the law applicable to the dividing company on the one hand and the law applicable to the acquiring company on the other hand: if the application of the law of one Member State is sufficient, only the rules of the law of that Member State will be applied, but if the application of the laws of both Member States involved is necessary, then the laws of both Member States must be applied. Although cross-border division is already possible, the EU legislator should draw up legislation on cross-border division. That will help companies to benefit from the internal market of the EU and will also improve the proper functioning of the internal market of the EU.