CORPORATE MOBILITY IN THE NEW EUROPEAN CONTEXT

This is the first time that Romania has presided over the Council of the European Union, and regardless of its internal difficulties, the fact is that it is doing so in a context of enormous territorial, constitutional and legislative challenges. The latter add evident pressure to the semester, insofar as the upcoming end of the legislature will force the paralysis or withdrawal of proposals underway that are not approved - in general terms - before April. Just over 300 dossiers. Hence, the activity in the current trialogues is developing at a very fast pace. magnis itineribus. In the area of private law and in relation to the formation of Competitiveness The latest dossier to initiate the trilogue between the three institutions: Commission and Council, which have already adopted a general agreement, and Parliament, is the directive on cross-border structural changes. While the digitisation directive, which is also part of the so-called Company Law packageWhile this much more complex dossier is practically closed, it is encountering major difficulties in moving forward. The obstacles are increased by the need to unify the three forms of mobility as far as possible: transformation, - the need to make it as simple as possibleconversion- which assumes the concept of transfer of domicile; merger and division, the latter, as is well known, being a new concept in European law. Essentially, the variable geometry between the Member States, which would entail an unequal degree of harmonisation, has generated a major reaction. Since the Commission's initial proposal, the procedure common to the different forms of mobility has been regulated in the transformation, although it has been decided to reproduce it, with special features, in each type of structural modification. It is therefore essentially the transformation procedure that is the focus of the negotiations with Parliament, with the other possible structural changes once again taking second place. The main difficulties between Parliament's position and the Council's mandate lie in their different approach to the rights of involvement of employees and in the scope of the anti-fraud clause or the prohibition on artificial arrangements. Both aspects are essential, in the way paved by the Court of Justice in the judgement Polbudof 25 October 2017 on the mobility of companies between Member States. The debate now focuses on how to avoid the Delaware effect (forum shopping) if this means violating mandatory rules and which of these can be accepted as a common denominator in European law. In order to reach a general agreement between the Commission and the Council, an opt-in system was established, by virtue of which the Member States would have the possibility of limiting the anti-fraud clause in the transposition of the rule. This position clashes head-on with the Parliament, which prefers to unify the level of harmonisation and thus increase the liability of administrators, experts and authorities on a list of issues. All of them should be analysed in the pre-transformation certificate to be issued by the home country authority, including labour and environmental law, tax law, public law or fundamental rights law. In addition to these essential questions, other important issues remain unresolved. These include the very scope of application of the directive, both with regard to the companies concerned and the material operations regulated. With regard to the first issue, it should be recalled that the legislative technique used consists of amending Directive 2017/1131 (on codification), to Annex II of which reference should be made with regard to the type of companies concerned. It will therefore apply to capital companies (public limited companies, limited liability companies and limited joint-stock companies) and, in a broad sense, in the terms accepted by the Court's case law, provided that they have their registered office, central administration or principal place of business in a Member State. Now that the possibility of including cooperatives in the subjective scope has been excluded, the extension to companies in pre-insolvency or insolvency is still open. This is a subject that the Council mandate allows Member States to articulate, provided that the distribution of company assets has not been initiated. Furthermore, from an objective point of view, the structural operations included have been extended compared with the Commission's initial proposal. In addition to transformation or conversion in the Member State of destination into any of the companies listed in Annex II to the Codification Directive, merger or division operations are now included in broader terms than those envisaged in the initial proposal. These are mergers by absorption, by formation of a new company or by transfer to a holding company; and divisions in the event of a total division of the company, partial division or division by separation, in which part of the assets and liabilities are transferred to one or more companies, the latter case (division and joint merger) being called for by several delegations because of its practical use. The protection of shareholders and creditors also leaves important points open. For the former, with regard to the scope and design of the exercise of the right of separation and its guarantees. For the latter, an exception will certainly be made to Article 4 of Regulation 1215/2012 (Brussels I Recast), already provided for in Article 67 of the same text, which allows for the regulation of jurisdiction in special cases. By virtue of this, the most likely wording will be that which allows the court to be maintained for two years, for all types of claims in the country of origin, in order to favour the exercise of credit rights. The protection of claims will be particularly complicated in the case of partial divisions where the liability of each company for what was done previously will have to be clarified. The turning point for determining when an obligation is outstanding or a legal action initiated will be the registration of the draft terms of conversion, merger or division prior to their formalisation in accordance with national rules. Otherwise, the complex iter The planned company statute will have to be verified in the country of origin and to a lesser extent in the country of destination, before a court, notary or other authority - in Spain the commercial registrar - reproducing the wording of the Regulation on the European Company Statute, which can be taken as a reference. The transposition and the functions of the authority, however, will be considerably more complex. Provided, of course, that it is adopted and does not go the way of the European private company proposal.