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Cross-border conversions, mergers and demergers: new legislation encourages mobility of businesses

Cross-border conversions, mergers and demergers: new legislation encourages mobility of businesses
Assonime, with Circular No. 16/2023, published June 7, analyzes the new rules on cross-border conversions, mergers and demergers, introduced in our legal framework by Legislative Decree No. 19/2023, implementing Directive (EU) 2019/2121. These provisions will take effect as of July 3, 2023, and will apply with reference to extraordinary corporate transactions for which none of the companies involved has published the project before that date.

The new legislation covers cross-border extraordinary transactions involving more than one European jurisdiction, balancing the principle of freedom of establishment of companies with the protection of the interests of the parties involved.

The legislative decree, however, goes beyond the mere implementation of the directive, also regulating extraordinary transactions involving companies regulated by non-European jurisdictions and introducing a new form of domestic demerger (“demerger by spin off”).

As pointed out by Assonime, the European directive and the related national legislation represent a significant step toward a more advanced regulatory framework to support corporate reorganization and business mobility in the European (and international) scenario. 

The European Directive on Cross-Border extraordinary transactions redefines the principles relating to freedom of establishment, in light of the case law of the Court of Justice, particularly with regard to cross-border transformation, which allows the application of the law of another member state through the transfer of the company’s registered office. Through the introduction of the specific rules on the subject, it will be possible to change the company type of the Member State of origin into one of the types of the Member State of destination, without the country of origin being able to impose the prior liquidation and dissolution of the company itself with reconstitution in the country of destination. This framework of new rules strengthens competition among European legal systems and must be considered in relation to national rules.

Assonime points out, however, that with these new rules, the transfer of the registered office abroad, through the conversion procedure, will always require a change of applicable law. This, unlike in the past where the transfer abroad without a change of applicable law did not face any obstacles in the Italian legal system, being allowed by case law and the practice of the Companies Registry offices.

Our professionals continue to closely follow the latest regulatory, case law and administrative practice developments to provide highly specialized advice and efficient solutions to our clients’ needs also from a crossborder perspective.

  • Luigi Belluzzo
  • Ivan Mastrototaro
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