Post by account_disabled on Mar 9, 2024 4:10:43 GMT -5
the third and last session of the cycle dedicated to the new regime of structural modifications of commercial companies. The session was titled: “international, intra- and extra-european aspects of structural modifications.” after the first dedicated to the principales common aspects, and a second focused on the special aspects, with references to transformation, merger and split operations, it seemed necessary to hold an additional session that directly dealt with the international element in structural modifications. The speaker was francisco jose garcimartin alferez, professor of private international law at the autonomous university of madrid, linklaters consultant and academic advisor of fide. Moderated the session enrique pinel lopez, permanent member of the general codification commission, assigned to the commercial section and vice president of the financial law section of the royal academy of jurisprudence and legislation. First of all, the speaker highlighted that the royal decree-law of june 28, 2023 (hereinafter, “new lme") goes beyond what is strictly necessary imposed by directive (eu) 2019/2121 (hereinafter, "directive") in the following points: regulated operations. The directive only deals with the transformations, fusions and cross-border divisions in favor of newly created companies, not existing ones.
As explained in recital 8, these operations require the intervention of the competent authorities of several member states and entail additional risks of circumvention of union and national rules in relation, for example, to labor and participation aspects of the workers. The new lme, however, also contemplates splits with already existing beneficiary companies, which can be seen in its art. 112, and uk phone number global assignments. Territorial aspects. The scope of application of the directive only covers operations within the european economic area, while art. 121 new lme also includes extra-european structural modifications. Continuing with more news worthy of mention, the speaker pointed out that the new lme has modified the capital companies law (hereinafter, “lsc") in relation to the european joint stock company (hereinafter, "sae"). Thus, the third final provision, in its 5th section, modifies art. 461 lsc for replace references to the right of separation that shareholders have who vote against the agreement to change the domicile of the sae by the right of alienation that regulates the new lme.
other references that are replaced are those related to the right of opposition of the creditors carried out by art. 462 lsc for the request for guarantees which now contains the new lme. However, other precepts have been maintained such as art. 468 and art. 473 lsc, which continue to refer respectively to the right of separation of shareholders who vote against merger agreements that imply the constitution of an sae domiciled in another member state, as well as to the protection of creditors in casos of constitution by holding, respectively. Although the names are maintained, it could be resolved the mismatch through interpretation. On the other hand the art. 82 new lme contains the distributive application principle. When a cross-border structural modification occurs intra or extra-european, by definition there are at least two laws involved: that of origin and that of host. The rule contained in art. 82 new lme determines that the respective corporate laws must be taken into account and each one applied to what corresponds. Thus, if it were a merger by absorption, the law of the absorbing company would govern for everything related to said company and for the protection of its partners and creditors, and the law of the absorbed company with regard to its members. . This is reiterated, for example, in art.
As explained in recital 8, these operations require the intervention of the competent authorities of several member states and entail additional risks of circumvention of union and national rules in relation, for example, to labor and participation aspects of the workers. The new lme, however, also contemplates splits with already existing beneficiary companies, which can be seen in its art. 112, and uk phone number global assignments. Territorial aspects. The scope of application of the directive only covers operations within the european economic area, while art. 121 new lme also includes extra-european structural modifications. Continuing with more news worthy of mention, the speaker pointed out that the new lme has modified the capital companies law (hereinafter, “lsc") in relation to the european joint stock company (hereinafter, "sae"). Thus, the third final provision, in its 5th section, modifies art. 461 lsc for replace references to the right of separation that shareholders have who vote against the agreement to change the domicile of the sae by the right of alienation that regulates the new lme.
other references that are replaced are those related to the right of opposition of the creditors carried out by art. 462 lsc for the request for guarantees which now contains the new lme. However, other precepts have been maintained such as art. 468 and art. 473 lsc, which continue to refer respectively to the right of separation of shareholders who vote against merger agreements that imply the constitution of an sae domiciled in another member state, as well as to the protection of creditors in casos of constitution by holding, respectively. Although the names are maintained, it could be resolved the mismatch through interpretation. On the other hand the art. 82 new lme contains the distributive application principle. When a cross-border structural modification occurs intra or extra-european, by definition there are at least two laws involved: that of origin and that of host. The rule contained in art. 82 new lme determines that the respective corporate laws must be taken into account and each one applied to what corresponds. Thus, if it were a merger by absorption, the law of the absorbing company would govern for everything related to said company and for the protection of its partners and creditors, and the law of the absorbed company with regard to its members. . This is reiterated, for example, in art.