1Budapest, June 14, 2010

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Cross border communication among registers -

Practical aspects

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Yves GonnerManaging director

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Trade and Companies Register Luxembourg

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Outline

Reminder of existing problems in the registration of cross border operations ECRF working group Notification proposals

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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

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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

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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

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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

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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

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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.

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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 registered company seats

Agreement on standardized notification messages concerning cases 1 to 3

Case study 4 concerning the cross border transfer of registered company seats is still under discussion

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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

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ECRF working group proposals

Proposal of a bilateral ‘Memorandum of Understanding’ (MoU) concerning the cooperation in cross border communication among registers

Consists of cooperation agreement and 3 annexes flexible approach intended to be signed between two registers / competent authorities allows taking into consideration specific provisions in cooperation

agreement among EU and non EU registers is intended to allow standardized communication sets among registers on

Paper basis E-mail (pdf format or registered email or digitally signed document)

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Should be implemented on an electronic platform with the aim to facilitate communication procedures among registers (EBR)

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Memorandum of Understanding

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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]

 

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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

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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]

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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]

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What’s next ?

Approval by the ECRF General Assembly of MoU Notification proposals

ECRF members could start using the proposed notification sets on a voluntary basis

Continuation of the working group on the last case study concerning the cross border transfer of the registered company seat

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Any questions ?

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Thank you for your attention

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