1 Budapest, June 14, 2010

2 Cross border communication among registers - Practical aspects - Yves Gonner Managing 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

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 9

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

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 12

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 13

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  (pdf format or registered or digitally signed document) 14

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

Memorandum of Understanding 16

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] 17

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 18

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] 19

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] 20

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 21

Any questions ? 22

Thank you for your attention 23