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Budapest, June 14, 2010

Budapest, June 14, 2010. Cross border communication among registers - Practical aspects - Yves Gonner Managing director - Trade and Companies Register Luxembourg. Outline. Reminder of existing problems in the registration of cross border operations ECRF working group Notification proposals.

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Budapest, June 14, 2010

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  1. Budapest, June 14, 2010

  2. Cross border communication among registers -Practical aspects-Yves GonnerManaging director- Trade and Companies Register Luxembourg

  3. Outline • Reminder of existing problems in the registration of cross border operations • ECRF working group • Notification proposals

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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

  9. 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

  10. 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.

  11. 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

  12. 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

  13. 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

  14. 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)

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

  16. Memorandum of Understanding

  17. 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]

  18. 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

  19. 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]

  20. 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]

  21. 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

  22. Any questions ?

  23. Thank you for your attention

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