Directive (EU) 2019/2121, amending Directive (EU) 2017/1132 as regards cross-border transformations, mergers and divisions, is part of the so-called Company Law Package. This is a reaction to the Polbud ruling (25 October 2017). In this judgment, the Court of Justice of the EU considers it irrelevant, in the case of the transfer of a company's registered office from Poland to Luxembourg, that its actual seat is not changed, giving precedence to the right of establishment over a competitive advantage, without specifying the liquidation of the company. The directive, which was negotiated very quickly at the end of the previous EU legislature, is not relevant to the transfer of a company's registered office from Poland to Luxembourg., provides for three forms of European cross-border mobility of companies: transformation, whereby a company, without being dissolved, wound up or liquidated, converts the legal form in which it is registered in a home Member State into a legal form of the Member State of destination listed in Annex II (capital companies) and transfers at least its registered office to the Member State of destination. while retaining its legal personalityThe merger, already coined, and the new figure of the demerger, which is of great economic and patrimonial interest.

The key to the system is the articulation of a complex procedure comprising the following stages. In the country of departure, a preliminary or documentary phase; the shareholders' meeting; the precautionary measures for the protection of shareholders, employees and creditors; and essentially the issuing of a certificate by a national authority, to be designated by the Member States, in the country of origin, declaring that the requirements established therein have been met.  Ex postThe authorities of the State of destination, sharing the certificate by means of the system of interconnection of commercial registers, shall confine themselves to the control of the social type; questions of public law in the receiving State and the protection of workers. The relevant date after registration and, where appropriate, publicity shall be determined by the latter State.

The fundamental weight of the system is therefore control. ex ante. The competent authority of the Member State of origin must carry out a control of the legality of the cross-border conversion, with respect to the law applicable in the Member State of origin to which the Directive is transposed, and issue the certificate prior to the conversion, certifying its conformity with all the relevant conditions and the proper completion of the procedures and formalities in the Member State of departure. In an uncertain timeframe - three months, extendable to six months or without determination. and with uncertain remedies, as the mention of the court has disappeared in the trialogues - the essential element of the issuance of the certificate by the Authority is the completion of the procedures and formalities in the Member State of origin. of anti-fraud control.  If the competent authority, in its analysis, has serious doubts that the cross-border processing is prepared with abusive or fraudulent purposes, (replacing the controversial artificial arrangement) with the purpose of leading to the evasion or avoidance of national or EU legislation, or for criminal purposes, a certificate shall not be issued. The assessment must be carried out on a case-by-case basis, using a procedure regulated by national law. The participation of the Autonomous Communities shall be reasonably articulated, taking into account the public appropriations.

Among all the elements of the Directive, the mechanism for the protection of shareholders stands out, as its essential corporate nature cannot be overlooked, and is implemented through two actions: the right to dispose of their shares and claim for inadequate payment.

Rather than a right of separation, the traditional mechanism, a restrictive right of exit is envisaged. This adds flexibility to the partner's right of exit scheme in relation to cash compensation, through modalities that may be defined by Member States (Opt-in): They will then have the right of exit, to dispose of their stocks or sharesIt will be the choice of the Member State to add other shareholders, such as holders of non-voting shares, or those who abstained from voting. The provision for a high attendance quorum limits the application of the member's right of exit. The Member State, in transposing the rule, may lay down documentary requirements for the exercise and even anticipate the announcement of the intention to exit. Once the exercise of the right has been notified by the shareholder, payment must be made within a period of no more than two months from the effective date of the transformation. In Spanish law, an in-depth revision of the right of separation will undoubtedly be necessary to make the system consistent. For example, along the lines of the amendment by Law 11/2018 of Article 348 bis of the Capital Companies Act.

If the shareholder considers that the cash compensation offered by the company has not been adequately fixed, Member States should provide that the shareholder has the right to claim additional cash compensation from the competent authority or body empowered under national law.

The exhaustive information prior to the general meeting - in which material requirements are introduced - must prevent mobility leading to the decapitalisation of the company.

The practical usefulness of the Directive for European companies will be seen, bearing in mind that the Court of Justice will no longer act as a negative legislator but as an interpreter of a complicated rule.