The Legal Mechanisms for Protection of Minority Shareholders in Cross-border Mergers under European Union Law
DOI:
https://doi.org/10.48614/jlaw.2.2020.69-89Keywords:
Minority Shareholders, Cross-border Merger, Legal Mechanism for Protection, Ensuring Appropriate Protection, Adequate Cash Compensation.Abstract
Minority shareholders protection in cross-border mergers is one of the EU's major concerns, which its leaders are trying to solve gradually and in stages. The evolutionary development of the regulation on cross-border merger transactions at the EU level shows that ensuring appropriate protection for minority shareholders laid on Member States’ shoulders at first in 2005, while the EU has already undertaken a commitment to assure adequate and proportionate safeguard of minority shareholders since 2019 and regulates through a directive main specific mechanism for protection of minority shareholders in cross-border mergers directly at the EU level.
The article deals with the legal mechanisms for the protection of minority shareholders in the process of implementing cross-border mergers, which are provided by EU law for the protection of minority shareholders. The article also discusses and analyses the traditional mechanisms for the protection of minority shareholders, along with adequate cash compensation as the principal specific mechanism for the protection of minority shareholders, which the minority shareholders can use to protect their interests in the process of cross-border merger.
To better understand the functioning of legal mechanisms for the protection of minority shareholders, the legal nature of cross-border merger transaction has been observed, which has been determined by examining issues such as the essence of cross-border merger, its parties, methods of merger, and process of making the deal and only then the article discusses the legal mechanisms for the protection of minority shareholders.
References
Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part, 27/06/2014.
Commission of the European Communities, Proposal for a Directive of the European Parliament and of the Council on Cross-border Mergers of Companies with Share Capital, COM(2003) 703 final 2003/0277 (COD) Brussels, 18.11.2003, 3.
Commission of the European Communities, Proposal for Tenth Council Directive based on Article 54 (3) (g) of the EEC Treaty concerning Cross-border Mergers of Public Limited Companies, Bulletin of the European Communities Supplement 3/85, 1985, 1-23.
Directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019 amending Directive (EU) 2017/1132 as regards Cross-border Conversions, Mergers and Divisions (Text with EEA relevance), O J L 321, 12.12.2019, 1-44.
Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to Certain Aspects of Company Law (Codification), (Text with EEA relevance) OJ L 169, 30.6.2017, 46-127.
Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on Cross-border Mergers of Limited Liability Companies, (Text with EEA relevance), OJ L 310, 25.11.2005, 1-9.
Draft of the Convention on International Merger of Sociétés Anonymes and Report on the draft Convention on the International Merger of Sociétés Anonymes, Submitted to the Council by the Commission on 29 June 1973, The Bulletin of the European Communities, 7/8, Vol. 6, 1973, Supplement 13/73, 2-123.
Proposal for a Directive of the European Parliament and of the Council Amending Directive (EU) 2017/1132 as regards Cross-border Conversions, Mergers and Divisions, COM/2018/241 final, 2018/0114 (COD), Brussels, 25.4.2018, 2.
Vertrag zur Gründung der Europäischen Wirtschaftsgemeinschaft, Rom, den 25. März 1957, EUR-Lex Document (CELEX number) 11957E/TXT, Art. 220.
Alavi H., Khamichonak T., Protection of dissenting shareholders in the EU Cross-border Mergers Framework: A Call for further Harmonization?, Trames Journal of the Humanities and Social Sciences Vol. 21, Iss. 3, 2017, 215-232.
Alavi H., Khamichonak T., To Be or not to Be; the EU Cross-border Mergers Framework and Harmonization of Dissenting Shareholder’s Rights, Hungarian Journal of Legal Studies, Vol. 58, Iss. 3, 2017, 314.
Gerven D., Community Rules Applicable to Cross-border Mergers, In Book: Gerven D. (ed.), Cross-border Mergers in Europe, Vol. 1, Cambridge Univ. Press, New York, 2010, 4, 6, 15, 16-17.
Grundmann S., European Company Law: Organization, Finance and Capital Markets, 2nd ed., Intersentia, Antwerpen, 2012, 476, 487-488.
Knapp V., Cross Border Mobility: What do We Need in Practice?, ERA Forum: Journal of the Academy of European Law, Vol. 19, Iss. 1, 2018, 68.
Lazíková J., Belková L., lková Z., Ďurkovičová J., Cross-border Mergers – the Concept and its Implementation into the Legal Order of the Slovak Republic, EU Agrarian Law, Vol. 2, Iss. 2, 2013, 55.
Papadopoulos Th., Reviewing the Implementation of the Cross-Border Mergers Directive, In Book: Papadopoulos Th. (ed.), Cross-Border Mergers: EU Perspectives and National Experiences, Studies in European Economic Law and Regulation, Vol. 17, Springer, Cham, 2019, 7-8, 13, 14.
Seretakis A., Appraisal Rights in the US and the EU In Book: Papadopoulos Th. (ed.), Cross-Border Mergers: EU Perspectives and National Experiences, Studies in European Economic Law and Regulation, Vol. 17, Springer, Cham, 2019, 70-71.
Siems M. M., The European Directive on Cross-Border Mergers: An International Model?, Colum. J. Eur. L., Vol. 11, 2005, 169.
Ventoruzzo M., Cross-border Mergers, Change of Applicable Corporate Laws and Protection of Dissenting Shareholders: Withdrawal Rights under Italian Law, European Company and Financial L. Rev., 2007, Vol. 4, Iss. 1, 47-75.
Vermeylen J., The Cross-Border Merger Directive, In Book: Vermeylen J., Velde I. V. (eds.), European Cross-Border Mergers and Reorganisations, Oxford Univ. Press, New York, 2012, 1.01.
Wyckaert M., Geens K., Cross-border Mergers and Minority Protection: An Open-Ended Harmonization, Utrecht L. Rev., Vol. 4, Iss. 1, 2008, 45, 49-50.
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