In the commercial register of provincial court Innsbruck registered G * P * GmbH, based in F * is the sole shareholder in the Commercial Register of Barcelona registered X * SL Research, based in Barcelona. Based on one of the chief executives of the companies in Notariatsaktsform merger plan is to create the English SL are merged across borders on the Austrian sole shareholder.
The shareholders of the acquiring G * P * GmbH have in the General Assembly on 09.22.2010, the cross-border merger on the basis of the approved merger plan, the final balance sheet of the company as of 31.12.2009 unanimously. In this General Assembly, the members have inter alia under § 232 para 2 AktG on compliance with all the preparation and implementation of the General Assembly in § 221a para 1 - 3 AktG waived certain formalities.
In this post I am dealing with some aspect of cross-border merger, namely the filing of merger in the commercial register and the relevant notice published in the Wiener Zeitung.
The draft terms of merger was filed on 16.07.2010 in the commercial register of provincial court Innsbruck. In the Official Journal of the Wiener Zeitung, the reference to the submission date of 21/07/2010 has been published This publication contains the following:
regard to the submission of merger with LG Innsbruck under § 8 (2) EU VerschG
first
the type, name and domicile of the company
legal form: limited liability
Company: X * Research SL
seat: R * 216, 08008 Barcelona
the type, name and domicile of the company
legal form: limited liability
Company : G * P *
GmbH Address: B *- Street 13, F **
second
register where the in Art 3 (2) of Directive ... mentioned documents of each of the merging Company are filed and the number of entry in the register
register and registration number of the company
Register: Registro Barcelona, Division 8
Registration number: Sheet ***
CIF: B ***
register and registration number of the acquiring company
Register: Commercial Register of the Provincial Court of Innsbruck, 6020 Innsbruck
registration number: FN ***
third
Specifying the procedures for the exercise of creditor rights is omitted as it is an import merger.
Under § 8 EU VerschG also have the director of a GmbH to the merger plan at least one month before the General Assembly on the merger decision to the competent court for the GmbH and to publish a notice of this filing notice in the leaves have. The minimum content of this publication must contain ( Wenger in Frotz / Kaufmann , Practice Commentary, § 8 EU VerschG para 7):
- the type, name and seat
- registration and registration number
- indication of the arrangements for the exercise of creditor rights (§ 13)
- indication of the arrangements for the exercise of the rights of minority shareholders
- indication of the Address, may be obtained free of charge at the full particulars of the arrangements.
The submission of the merger plan and the publication are also mandatory in the cross-border merger pursuant to § 8 para 4 EU VerschG a waiver option as to § 232 para 2 AktG does not exist. The reason given is that the rules also serve to protect and inform the creditor ( Wenger supra, § 8 EU VerschG para 10).
Is the above reference publication reproduced in the context of § 8 EU VerschG? can
According merchant at Import a merger pursuant to § 225 para 1 No 7 of the AktG, the submission of the disclosure statement for the acquiring Austrian society be omitted, if all the shareholders of the Austrian company at the relevant meeting of shareholders were present and have raised no objection. In his view, the legislature had intended to leave such domestic merger Entfallsmöglichkeit on purpose, because it raises the need for protection of creditors in the import merger obviously much lower estimate. This can already be seen from the fact that after the period provided for in § 8 Abs 2 Z 3 Note to the rights of creditors § 13 applies only to the export merger. Likewise, only with an export merger was applicable to § 8 Abs third The inclusion in the publication notice for the minority shareholders was not necessary to - for lack of cash compensation offer - at an import merger ( merchant in Frotz / Kaufmann , § 15 EU VerschG para 12a).
Eckert writes that the creditors were of Austrian society on the procedures for exercising their rights under § 13 to point. The necessary information are in different export and import in the merger. The merger would export to the freezing claim under § 13 and the Special emphasis must be ex-ante information claim under paragraph 3, in the import merging to the right according to § 226 AktG and the rights specified in paragraph third Where the provisions of § 13 of the notice was required that the creditors of the risk certificate (for export kapitalentsperrenden mergers: without such a certificate) can be made in writing pursuant to § 13 within two months after publication, a freezing desire. The import duty grab merger, additional information according to § 3 para 2 EU VerschG conjunction with § 226 para 1 last sentence of the AktG ( Eckert in Kalss , fusion-fission-transformation, § 8 EU VerschG Para 12).
My opinion
preliminary point is that the inclusion of references to the shareholders of Austrian GmbH in this case has therefore can be omitted because they have waived pursuant to § § 232 para 2, 221 para 1 AktG it.
is further undisputed that the notice requirement for creditors only to the creditors of the Austrian society and not to the creditors of the foreign company which is involved (Eckert supra, § 8 EU VerschG para 12).
is clear also that the creditor protection provisions of § 13 EU VerschG exclusively on the export merger ENVISAGES why in import mergers - as in domestic mergers - meaning only the downstream creditor protection is § 226 AktG in conjunction with § 3 para 2 EU VerschG ( merchant supra, § 13 EU VerschG para 2).
For this to be assessed import merger is therefore important to note that there are no creditors within the meaning of § 13 EU VerschG and not a minority shareholder of the merging companies. Relevant information pursuant to § 8 Abs 2 Z 3 EU VerschG therefore can not be made and will not therefore be included in a reference publication as well.
The issue raised by Eckert information obligation according to § 3 para 2 EU VerschG conjunction with § 226 AktG, para 1 last sentence is relevant only to the registration of the cross-border merger in the commercial register and is therefore not part of upstream information requirements and the relevant evidence.
The above illustrated publication of the notice of the filing of merger in the Official Journal of the Wiener Zeitung is therefore completely defined by § 8 paragraph 1 subparagraph 2, paragraph 2, number 1 and 2 of the EU VerschG.
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