Directive 2005/56/EC of the European Parliament and of the Council of  26 October 2005  on cross-border mergers of limited liability companies   (Text with EEA relevance)
Date: 2005-10-26
Institutions: Council of the European Union, European Parliament
Subjects: company with share capital, cross-border cooperation, merger, merger control, multinational enterprise, registration of a company, worker participation

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I

(Acts whose publication is obligatory)

DIRECTIVE 2005/56/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 26 October 2005

on cross-border mergers of limited liability companies

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(3)

Having regard to the Treaty establishing the European
Community, and in particular Article 44 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Acting in accordance with the procedure laid down in
Article 251 of the Treaty (2),

Whereas:

as

regards

(1) There is a need for cooperation and consolidation
from different
between limited liability companies
Member States. However,
cross-border
mergers of limited liability companies, they encounter
many legislative and administrative difficulties in the
Community. It is therefore necessary, with a view to the
completion and functioning of the single market, to lay
down Community provisions to facilitate the carrying-
out of cross-border mergers between various types of
limited liability company governed by the laws of
different Member States.

(2) This Directive facilitates the cross-border merger of
limited liability companies as defined herein. The laws of
the Member States are to allow the cross-border merger
limited liability company with a limited
of a national
the
liability company from another Member State if
national
the relevant Member States permits
mergers between such types of company.

law of

(1) OJ C 117, 30.4.2004, p. 43.
(2) Opinion of the European Parliament of 10 May 2005 (not yet
Journal) and Council Decision of

published in the Official
19 September 2005.

In order to facilitate cross-border merger operations, it
should be laid down that, unless this Directive provides
otherwise, each company taking part in a cross-border
merger, and each third party concerned, remains subject
to the provisions and formalities of the national
law
which would be applicable in the case of a national
the provisions and formalities of
merger. None of
national law, to which reference is made in this Directive,
should introduce restrictions on freedom of establish-
ment or on the free movement of capital save where
these can be justified in accordance with the case-law of
the Court of Justice and in particular by requirements of
interest and are both necessary for, and
the general
proportionate to,
the attainment of such overriding
requirements.

(4) The common draft terms of the cross-border merger are
to be drawn up in the same terms for each of the
companies concerned in the various Member States. The
minimum content of such common draft terms should
therefore be specified, while leaving the companies free
to agree on other items.

(5)

In order to protect the interests of members and others,
both the common draft terms of cross-border mergers
and the completion of the cross-border merger are to be
publicised for each merging company via an entry in the
appropriate public register.

(6) The laws of all the Member States should provide for the
drawing-up at national level of a report on the common
draft terms of the cross-border merger by one or more
experts on behalf of each of the companies that are
merging. In order to limit experts’ costs connected with
cross-border mergers, provision should be made for the
possibility of drawing up a single report intended for all
members of companies taking part in a cross-border
merger operation. The common draft terms of the cross-
border merger are to be approved by the general meeting
of each of those companies.

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(7)

each of

In order to facilitate cross-border merger operations, it
should be provided that monitoring of the completion
and legality of
the decision-making process in each
merging company should be carried out by the national
authority having jurisdiction over
those
companies, whereas monitoring of the completion and
legality of the cross-border merger should be carried out
by the national authority having jurisdiction over the
company resulting from the cross-border merger. The
national authority in question may be a court, a notary
or any other competent authority appointed by the
Member State concerned. The national law determining
the date on which the cross-border merger takes effect,
this being the law to which the company resulting from
is subject, should also be
the cross-border merger
specified.

(12) Employees’ rights other

Council

redundancies (2),

than rights of participation
should remain subject to the national provisions referred
to in Council Directive 98/59/EC of 20 July 1998 on
Directive
collective
2001/23/EC of 12 March 2001 on the safeguarding of
employees’ rights in the event of transfers of under-
takings, businesses or parts of undertakings or busi-
nesses (3), Directive 2002/14/EC of
the European
the Council of 11 March 2002
Parliament and of
establishing a general
framework for informing and
consulting employees in the European Community (4)
and
Directive
94/45/EC of 22 September 1994 on the establishment
of a European Works Council or a procedure in
Community-scale undertakings and Community-scale
groups of undertakings for the purposes of informing
and consulting employees (5).

Council

(13)

(8)

In order to protect the interests of members and others,
the legal effects of the cross-border merger, distinguish-
ing as to whether the company resulting from the cross-
border merger is an acquiring company or a new
company, should be specified. In the interests of legal
certainty, it should no longer be possible, after the date
on which a cross-border merger takes effect, to declare
the merger null and void.

(9) This Directive is without prejudice to the application of
the legislation on the control of concentrations between
undertakings, both at Community level, by Regulation
(EC) No 139/2004 (1), and at the level of Member States.

(10) This Directive does not affect Community legislation
financial
regulating credit
undertakings and national rules made or introduced
pursuant to such Community legislation.

intermediaries and other

If employees have participation rights in one of the
merging companies under the circumstances set out in
this Directive and, if the national law of the Member
State in which the company resulting from the cross-
border merger has its registered office does not provide
for the same level of participation as operated in the
relevant merging companies, including in committees of
the supervisory board that have decision-making powers,
or does not provide for the same entitlement to exercise
rights for employees of establishments resulting from the
cross-border merger, the participation of employees in
the company resulting from the cross-border merger and
their involvement in the definition of such rights are to
be regulated. To that end, the principles and procedures
provided for in Council Regulation (EC) No 2157/2001
of 8 October 2001 on the Statute for a European
company (SE) (6) and in Council Directive 2001/86/EC of
8 October 2001 supplementing the Statute for a
European company with regard to the involvement of
employees (7), are to be taken as a basis, subject, however,
to modifications that are deemed necessary because the
resulting company will be subject to the national laws of
the Member State where it has its registered office. A
prompt start to negotiations under Article 16 of this
Directive, with a view to not unnecessarily delaying
mergers, may be
in
accordance with Article 3(2)(b) of Directive 2001/86/EC.

ensured by Member States

(11) This Directive is without prejudice to a Member State’s
legislation demanding information on the place of
central administration or the principal place of business
proposed for the company resulting from the cross-
border merger.

(1)

Council Regulation (EC) No 139/2004 of 20 January 2004 on
the control of concentrations between undertakings (the EC
Merger Regulation) (OJ L 24, 29.1.2004, p. 1).

(14) For the purpose of determining the level of employee
participation operated in the relevant merging compa-
nies, account should also be taken of the proportion of

(2) OJ L 225, 12.8.1998, p. 16.
(3) OJ L 82, 22.3.2001, p. 16.
(4) OJ L 80, 23.3.2002, p. 29.
(5) OJ L 254, 30.9.1994, p. 64. Directive as amended by Directive

97/74/EC (OJ L 10, 16.1.1998, p. 22).

(6) OJ L 294, 10.11.2001, p. 1. Regulation as amended by
Regulation (EC) No 885/2004 (OJ L 168, 1.5.2004, p. 1).

(7) OJ L 294, 10.11.2001, p. 22.

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employee representatives amongst the members of the
management group, which covers the profit units of the
companies, subject to employee participation.

Article 2

Definitions

(15) Since the objective of the proposed action, namely laying
down rules with common features applicable at transna-
tional
level, cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale
and impact of the proposed action, be better achieved at
Community level, the Community may adopt measures
in accordance with the principle of subsidiarity as set out
in Article 5 of
In accordance with the
principle of proportionality as set out in that Article, this
Directive does not go beyond what
is necessary to
achieve that objective.

the Treaty.

(16)

In accordance with paragraph 34 of the Interinstitutional
Agreement on better law-making (1), Member States
should be encouraged to draw up, for themselves and in
the interest of the Community, their own tables which
will, as far as possible, illustrate the correlation between
this Directive and the transposition measures and to
make them public,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Scope

limited liability
This Directive shall apply to mergers of
companies formed in accordance with the law of a Member
State and having their registered office, central administration
or principal place of business within the Community,
provided at least two of them are governed by the laws of
different Member States (hereinafter referred to as cross-
border mergers).

(1) OJ C 321, 31.12.2003, p. 1.

For the purposes of this Directive:

1)

‘limited liability company’, hereinafter referred to as
‘company’, means:

(a)

a company as referred to in Article 1 of Directive
68/151/EEC (2), or

(b)

a company with share capital and having legal
personality, possessing separate assets which alone
serve to cover its debts and subject under the
national law governing it to conditions concerning
guarantees such as are provided for by Directive
68/151/EEC for the protection of the interests of
members and others;

2.

‘merger’ means an operation whereby:

(a)

(b)

in exchange for

one or more companies, on being dissolved without
going into liquidation, transfer all their assets and
liabilities to another existing company, the acquiring
company,
the issue to their
members of securities or shares representing the
capital of that other company and, if applicable, a
cash payment not exceeding 10 % of the nominal
value, or, in the absence of a nominal value, of the
accounting par value of those securities or shares;
or

in exchange for

two or more companies, on being dissolved without
going into liquidation, transfer all their assets and
liabilities to a company that they form, the new
company,
the issue to their
members of securities or shares representing the
capital of that new company and, if applicable, a
cash payment not exceeding 10 % of the nominal
value, or in the absence of a nominal value, of the
accounting par value of those securities or shares;
or

(c)

a company, on being dissolved without going into
liquidation, transfers all its assets and liabilities to
the company holding all the securities or shares
representing its capital.

(2)

First Council Directive 68/151/EEC of 9 March 1968 on
coordination of safeguards which, for the protection of the
interests of members and others, are required by Member States
of companies within the meaning of the second paragraph of
Article 58 of the Treaty, with a view to making such safeguards
equivalent throughout the Community (OJ L 65, 14.3.1968,
p. 8). Directive as last amended by the 2003 Act of Accession.

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Article 3

cross-border merger and governed by its law, adopt provisions
designed to ensure appropriate protection for minority
members who have opposed the cross-border merger.

Further provisions concerning the scope

1. Notwithstanding Article 2(2), this Directive shall also
apply to cross-border mergers where the law of at least one of
the Member States concerned allows the cash payment
referred to in points (a) and (b) of Article 2(2) to exceed
10 % of the nominal value, or, in the absence of a nominal
value, of the accounting par value of the securities or shares
representing the capital of the company resulting from the
cross-border merger.

2. Member States may decide not to apply this Directive to
cross-border mergers involving a cooperative society even in
the cases where the latter would fall within the definition of
‘limited liability company’ as laid down in Article 2(1).

3. This Directive shall not apply to cross-border mergers
involving a company the object of which is the collective
investment of capital provided by the public, which operates
on the principle of risk-spreading and the units of which are,
at the holders’ request, repurchased or redeemed, directly or
indirectly, out of the assets of that company. Action taken by
such a company to ensure that the stock exchange value of its
units does not vary significantly from its net asset value shall
be regarded as equivalent to such repurchase or redemption.

Article 4

Conditions relating to cross-border mergers

1.

Save as otherwise provided in this Directive,

(a)

(b)

cross-border mergers shall only be possible between
types of companies which may merge under the national
law of the relevant Member States, and

a company taking part in a cross-border merger shall
comply with the provisions and formalities of
the
national law to which it is subject. The laws of a Member
State enabling its national authorities to oppose a given
internal merger on grounds of public interest shall also
be applicable to a cross-border merger where at least one
of the merging companies is subject to the law of that
Member State. This provision shall not apply to the
extent that Article 21 of Regulation (EC) No 139/2004 is
applicable.

Article 5

Common draft terms of cross-border mergers

The management or administrative organ of each of
the
merging companies shall draw up the common draft terms of
cross-border merger. The common draft terms of cross-border
merger shall include at least the following particulars:

(a)

(b)

(c)

the form, name and registered office of the merging
companies and those proposed for
company
resulting from the cross-border merger;

the

the ratio applicable to the exchange of securities or shares
representing the company capital and the amount of any
cash payment;

the terms for
the allotment of securities or shares
representing the capital of the company resulting from
the cross-border merger;

(d)

the likely repercussions of the cross-border merger on
employment;

(e)

(f)

(g)

(h)

the date from which the holding of such securities or
shares representing the company capital will entitle the
holders to share in profits and any special conditions
affecting that entitlement;

the date from which the transactions of the merging
companies will be treated for accounting purposes as
being those of the company resulting from the cross-
border merger;

the rights conferred by the company resulting from the
cross-border merger on members enjoying special rights
or on holders of securities other than shares representing
the
the measures proposed
concerning them;

company capital, or

any special advantages granted to the experts who
examine the draft terms of the cross-border merger or to
members of
the administrative, management, super-
visory or controlling organs of the merging companies;

2. The provisions and formalities referred to in paragraph 1
(b) shall, in particular, include those concerning the decision-
making process relating to the merger and,
taking into
account the cross-border nature of the merger, the protection
of creditors of the merging companies, debenture holders and
the holders of securities or shares, as well as of employees as
regards rights other than those governed by Article 16. A
Member State may, in the case of companies participating in a

(i)

the statutes of the company resulting from the cross-
border merger;

(j) where appropriate,

information on the procedures by
which arrangements for the involvement of employees in
the definition of
their rights to participation in the
company resulting from the cross-border merger are
determined pursuant to Article 16;

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(k)

information on the evaluation of the assets and liabilities
which are transferred to the company resulting from the
cross-border merger;

representatives, to the employees themselves, not less than
one month before the date of the general meeting referred to
in Article 9.

(l)

dates of
establish the conditions of the cross-border merger.

the merging companies’ accounts used to

Where the management or administrative organ of any of the
merging companies receives, in good time, an opinion from
the representatives of their employees, as provided for under
national law, that opinion shall be appended to the report.

Article 6

Publication

1. The common draft terms of the cross-border merger shall
be published in the manner prescribed by the laws of each
Member State in accordance with Article 3 of Directive
68/151/EEC for each of the merging companies at least one
month before the date of the general meeting which is to
decide thereon.

2.
For each of the merging companies and subject to the
additional requirements imposed by the Member State to
which the company concerned is subject,
the following
particulars shall be published in the national gazette of that
Member State:

(a)

the type, name and registered office of every merging
company;

(b)

(c)

the register in which the documents referred to in
Article 3(2) of Directive 68/151/EEC are filed in respect
of each merging company, and the number of the entry
in that register;

an indication, for each of the merging companies, of the
arrangements made for the exercise of the rights of
creditors and of any minority members of the merging
companies and the address at which complete informa-
tion on those arrangements may be obtained free of
charge.

Article 8

Independent expert report

1. An independent expert report intended for members and
made available not less than one month before the date of the
general meeting referred to in Article 9 shall be drawn up for
each merging company. Depending on the law of each
Member State, such experts may be natural persons or legal
persons.

that purpose at

2. As an alternative to experts operating on behalf of each of
the merging companies, one or more independent experts,
appointed for
the
companies by a judicial or administrative authority in the
Member State of one of the merging companies or of the
company resulting from the cross-border merger or approved
by such an authority, may examine the common draft terms
of cross-border merger and draw up a single written report to
all the members.

the joint request of

3. The expert report shall include at least the particulars
provided for by Article 10(2) of Council Directive 78/855/EEC
of 9 October 1978 concerning mergers of public limited
liability companies (1). The experts shall be entitled to secure
from each of the merging companies all
information they
consider necessary for the discharge of their duties.

4. Neither an examination of the common draft terms of
cross-border merger by independent experts nor an expert
report shall be required if all the members of each of the
companies involved in the cross-border merger have so
agreed.

Article 7

Article 9

Report of the management or administrative organ

Approval by the general meeting

The management or administrative organ of each of
the
merging companies shall draw up a report intended for the
members explaining and justifying the legal and economic
the cross-border merger and explaining the
aspects of
implications of
for members,
creditors and employees.

the cross-border merger

1. After taking note of the reports referred to in Articles 7
and 8, the general meeting of each of the merging companies
shall decide on the approval of the common draft terms of
cross-border merger.

The report shall be made available to the members and to the
representatives of the employees or, where there are no such

(1) OJ L 295, 20.10.1978, p. 36. Directive as last amended by the

2003 Act of Accession.

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2. The general meeting of each of the merging companies
may reserve the right to make implementation of the cross-
border merger conditional on express ratification by it of the
arrangements decided on with respect to the participation of
employees in the company resulting from the cross-border
merger.

3. The laws of a Member State need not require approval of
the merger by the general meeting of the acquiring company if
the conditions laid down in Article 8 of Directive 78/855/EEC
are fulfilled.

Article 10

Pre-merger certificate

1.
Each Member State shall designate the court, notary or
other authority competent to scrutinise the legality of the
cross-border merger as regards that part of the procedure
which concerns each merging company subject to its national
law.

In each Member State concerned the authority referred to
2.
issue, without delay to each merging
in paragraph 1 shall
company subject to that State’s national
law, a certificate
conclusively attesting to the proper completion of the pre-
merger acts and formalities.

3.
If the law of a Member State to which a merging company
is subject provides for a procedure to scrutinise and amend the
ratio applicable to the exchange of securities or shares, or a
procedure to compensate minority members, without pre-
venting the registration of
the cross-border merger, such
procedure shall only apply if the other merging companies
situated in Member States which do not provide for such
procedure explicitly accept, when approving the draft terms of
the cross-border merger in accordance with Article 9(1), the
possibility for the members of that merging company to have
recourse to such procedure, to be initiated before the court
having jurisdiction over that merging company. In such cases,
the authority referred to in paragraph 1 may issue the
certificate referred to in paragraph 2 even if such procedure
has commenced. The certificate must, however, indicate that
the procedure is pending. The decision in the procedure shall
be binding on the company resulting from the cross-border
merger and all its members.

which concerns the completion of the cross-border merger
and, where appropriate, the formation of a new company
resulting from the cross-border merger where the company
created by the cross-border merger is subject to its national
law. The said authority shall
in particular ensure that the
merging companies have approved the common draft terms
of cross-border merger
in the same terms and, where
appropriate, that arrangements for employee participation
have been determined in accordance with Article 16.

2. To that end each merging company shall submit to the
authority referred to in paragraph 1 the certificate referred to
in Article 10(2) within six months of its issue together with
the common draft terms of cross-border merger approved by
the general meeting referred to in Article 9.

Article 12

Entry into effect of the cross-border merger

The law of
the Member State to whose jurisdiction the
company resulting from the cross-border merger is subject
shall determine the date on which the cross-border merger
takes effect. That date must be after the scrutiny referred to in
Article 11 has been carried out.

Article 13

Registration

The law of each of the Member States to whose jurisdiction
the merging companies were subject shall determine, with
in
respect to the territory of that State, the arrangements,
accordance with Article 3 of Directive 68/151/EEC,
for
publicising completion of the cross-border merger in the
public register in which each of the companies is required to
file documents.

The registry for the registration of the company resulting from
the cross-border merger shall notify, without delay,
the
registry in which each of the companies was required to file
documents that the cross-border merger has taken effect.
Deletion of the old registration, if applicable, shall be effected
on receipt of that notification, but not before.

Article 14

Article 11

Consequences of the cross-border merger

Scrutiny of the legality of the cross-border merger

1. A cross-border merger carried out as laid down in points
(a) and (c) of Article 2(2) shall, from the date referred to in
Article 12, have the following consequences:

1.
Each Member State shall designate the court, notary or
other authority competent to scrutinise the legality of the
cross-border merger as regards that part of the procedure

(a)

the assets and liabilities of

the company being
all
acquired shall be transferred to the acquiring company;

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(b)

the members of
become members of the acquiring company;

the company being acquired shall

— Article 9(1) shall not apply to the company or companies

being acquired.

(c)

the company being acquired shall cease to exist.

2. A cross-border merger carried out as laid down in point
(b) of Article 2(2) shall, from the date referred to in Article 12,
have the following consequences:

(a)

all the assets and liabilities of the merging companies
shall be transferred to the new company;

2. Where a cross-border merger by acquisition is carried out
by a company which holds 90 % or more but not all of the
shares and other securities conferring the right to vote at
general meetings of
the company or companies being
acquired, reports by an independent expert or experts and
the documents necessary for scrutiny shall be required only to
the extent that the national law governing either the acquiring
company or the company being acquired so requires.

(b)

the members of the merging companies shall become
members of the new company;

Article 16

(c)

the merging companies shall cease to exist.

3. Where, in the case of a cross-border merger of companies
covered by this Directive, the laws of the Member States
require the completion of special
formalities before the
transfer of certain assets, rights and obligations by the
merging companies becomes effective against third parties,
those formalities shall be carried out by the company resulting
from the cross-border merger.

4. The rights and obligations of the merging companies
arising from contracts of employment or from employment
relationships and existing at the date on which the cross-
border merger takes effect shall, by reason of that cross-border
merger taking effect, be transferred to the company resulting
from the cross-border merger on the date on which the cross-
border merger takes effect.

5. No shares in the acquiring company shall be exchanged
for shares in the company being acquired held either:

(a)

by the acquiring company itself or through a person
acting in his or her own name but on its behalf;

Employee participation

1. Without prejudice to paragraph 2, the company resulting
from the cross-border merger shall be subject to the rules in
force concerning employee participation,
in the
Member State where it has its registered office.

if any,

the

rules

in force

2. However,
concerning employee
participation, if any, in the Member State where the company
resulting from the cross-border merger has its registered office
shall not apply, where at least one of the merging companies
has,
in the six months before the publication of the draft
terms of the cross-border merger as referred to in Article 6, an
average number of employees that exceeds 500 and is
operating under an employee participation system within
the meaning of Article 2(k) of Directive 2001/86/EC, or where
the national law applicable to the company resulting from the
cross-border merger does not

(b) by the company being acquired itself or through a person
acting in his or her own name but on its behalf.

(a)

Article 15

Simplified formalities

least

provide for at
the same level of employee
participation as operated in the relevant merging
companies, measured by reference to the proportion of
employee representatives amongst the members of the
administrative or supervisory organ or their committees
or of the management group which covers the profit
units of the company, subject to employee representa-
tion, or

1. Where a cross-border merger by acquisition is carried out
by a company which holds all the shares and other securities
conferring the right
the
company or companies being acquired:

to vote at general meetings of

— Articles 5, points (b), (c) and (e), 8 and 14(1), point (b)

shall not apply,

(b) provide for employees of establishments of the company
resulting from the cross-border merger that are situated
in other Member States the same entitlement to exercise
participation rights as is enjoyed by those employees
employed in the Member State where the company
resulting from the cross-border merger has its registered
office.

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In the cases referred to in paragraph 2, the participation
3.
of employees in the company resulting from the cross-border
merger and their involvement in the definition of such rights
shall be regulated by the Member States, mutatis mutandis and
subject to paragraphs 4 to 7 below, in accordance with the
principles and procedures laid down in Article 12(2), (3) and
(4) of Regulation (EC) No 2157/2001 and the following
provisions of Directive 2001/86/EC:

(b)

least

two thirds of

two thirds of

shall confer on the special negotiating body the right to
its members
decide, by a majority of
representing at
the employees,
including the votes of members representing employees
in at least two different Member States, not to open
negotiations or to terminate negotiations already opened
and to rely on the rules on participation in force in the
Member State where the registered office of the company
resulting from the cross-border merger will be situated;

(a) Article 3(1),

(2) and (3),

(4) first subparagraph,

first

indent, and second subparagraph, (5) and (7);

(b) Article 4(1), (2), points (a), (g) and (h), and (3);

(c) Article 5;

(d) Article 6;

(e) Article 7(1), (2) first subparagraph, point (b), and second
subparagraph, and (3). However, for the purposes of this
Directive, the percentages required by Article 7(2), first
subparagraph, point (b) of Directive 2001/86/EC for the
application of the standard rules contained in part 3 of
the Annex to that Directive shall be raised from 25 to
33 1/3 %;

(f) Articles 8, 10 and 12;

(g) Article 13(4);

(h) part 3 of the Annex, point (b).

4. When regulating the principles and procedures referred to
in paragraph 3, Member States:

(a)

the right

the merging
shall confer on the relevant organs of
to choose without any prior
companies
negotiation to be directly subject to the standard rules
for participation referred to in paragraph 3(h), as laid
down by the legislation of the Member State in which the
company resulting from the cross-border merger is to
have its registered office, and to abide by those rules from
the date of registration;

(c) may,

in the case where, following prior negotiations,
standard rules for participation apply and notwithstand-
ing these rules, determine to limit the proportion of
employee representatives in the administrative organ of
the company resulting from the cross-border merger.
However, if in one of the merging companies employee
representatives constituted at
the
administrative or supervisory board, the limitation may
never
in a lower proportion of employee
representatives in the administrative organ than one
third.

least one third of

result

5. The extension of participation rights to employees of the
company resulting from the cross-border merger employed in
other Member States, referred to in paragraph 2(b), shall not
entail any obligation for Member States which choose to do so
to take those employees into account when calculating the
size of workforce thresholds giving rise to participation rights
under national law.

6. When at least one of the merging companies is operating
under an employee participation system and the company
resulting from the cross-border merger is to be governed by
such a system in accordance with the rules referred to in
paragraph 2, that company shall be obliged to take a legal
form allowing for the exercise of participation rights.

7. When the company resulting from the cross-border
merger is operating under an employee participation system,
that company shall be obliged to take measures to ensure that
employees’ participation rights are protected in the event of
subsequent domestic mergers for a period of three years after
the cross-border merger has taken effect, by applying mutatis
mutandis the rules laid down in this Article.

Article 17

Validity

A cross-border merger which has taken effect as provided for
in Article 12 may not be declared null and void.

25.11.2005

EN

Official Journal of the European Union

L 310/9

Article 18

Review

Five years after the date laid down in the first paragraph of
Article 19, the Commission shall review this Directive in the
light of the experience acquired in applying it and, if necessary,
propose its amendment.

Article 19

Transposition

Article 20

Entry into force

This Directive shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.

Article 21

Addressees

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
Directive by 15 December 2007.

When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by such
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
Member States.

This Directive is addressed to the Member States.

Done at Strasbourg, 26 October 2005.

For the European Parliament
The President
J. BORRELL FONTELLES

For the Council
The President
D. ALEXANDER