In our blog of December 15th 2022, you read that the Bill on Implementation of the Cross-Border Conversions, Mergers and Demergers Directive had been submitted to the House of Representatives on December 5th 2022. This bill serves to implement Directive 2019/2121/EU, through which the European Commission aims to improve the mobility of capital companies and promote freedom of establishment within the EU. On June 1st, the House of Representatives adopted the proposal.
Delayed implementation of the directive
The directive required member states to implement its provisions in national legislation by January 31st 2023. The Netherlands failed to meet this deadline. The Lower House Committee for Justice and Security only presented its report regarding the bill on January 26th. Minister of Legal Protection Weerwind responded in a note on April 24th 2023, after which the bill was adopted by the House of Representatives on June 1st. It is now up to the Senate to consider the proposal.
Role of notaries
Notaries will be the ones allowed to issue the pre-attestation and the closing attestation after the introduction of the law. In the pre-attestation, the notary from the country where a company is leaving declares that the merger took place lawfully. In doing so, the notary has to perform a fraud test, in line with his gatekeeper function. If during this test it is found that the cross-border conversion, merger or demerger, has unlawful, fraudulent or criminal purposes, it is up to the notary to refuse his service and not issue the pre-attestation. If the fraud test is met, however, the notary from the destination country then certifies that all merger requirements have been met.