Decree No. 293 / 2005 Coll.
Order on documents to be submitted to the notary for certification when the registered office of a European company is transferred and when the European company is established by a merger
Valid
Order
Effective from 21.07.2005
Text versions:
21.07.2005
293
DECLARATION
of 12 July 2005
on documents to be submitted to the notary for certification when the registered office of a European company is transferred and when the European company is established by mergers
The Ministry of Justice provides, pursuant to Section 65 of Act No. 627 / 2004 Coll., on European Society, hereinafter referred to as "the Act":
General provisions
This decree regulates, following the directly applicable regulation of the European Communities (1), the range of documents evidencing the implementation of the prescribed acts and formalities which the notary is obliged to submit
(a) a European company registered in the territory of the Czech Republic, governed by Czech law, to issue a certificate when the registered registered office is transferred to another Member State of the European Union or to other States forming the European Economic Area (hereinafter referred to as "the Member State") (Paragraph 14 (3) of the Act); and
(b) an interested company based in the territory of the Czech Republic governed by Czech law to issue a certificate on the establishment of a European merger company (§ 16 (2) of the Act).
(1) In order to properly assess compliance with the certification requirements of Council Regulation No 2157 / 20011 (hereinafter referred to as the "Council Regulation") and national law, the notary may request, in addition to the documents referred to in this Order, the submission of further documents.
(2) Where this decree refers to the Board of Directors of a public limited company, this is understood to be the case in a European company which has a monistic structure, as appropriate, by the Chairman of the Management Board, which is the Director-General, or by the Director-General or, where appropriate, by the delegate Director-General. Where this decree refers to the Supervisory Board of a public limited company, this is understood in a European company which has a monistic structure, its Management Board.
Documents for the transfer of registered office of a European company
(1) A European company intending to transfer registered office from the Czech Republic to another Member State is required to submit to the notary before issuing a certificate pursuant to Article 8 (8) of the Council Regulation
(a) the current extract from the Commercial Register and the current version of the Statutes;
(b) proof of the deposit of the proposal for the transfer of the registered office into the collection of documents of the commercial register and its publication;
(c) a copy of the notarial record of the decision of the general meeting approving the transfer of the registered office;
(d) an affidavit by the members of the board of European society that they do not know that an application has been made for annulment of a resolution of the General Assembly approving the transfer of registered office or proof that the procedure for such a proposal has been definitively terminated, or that the application has been definitively rejected, or that all the persons entitled have waived the right to file an application for annulment of that resolution of the General Assembly;
(e) proof of registration of the transfer of registered office in the Commercial Register (Section 11 of the Act);
(f) proof of publication of a public contract for the purchase of shares by shareholders who have voted against the transfer of registered office; and
(g) a document or, where appropriate, an affidavit from the board of directors of the European company that the European company has fulfilled its obligations under the public contract for the purchase of shares made to shareholders who voted against the transfer of registered office (Section 12 of the Act);
(h) a document and, where appropriate, an affidavit from the board of directors of the European company that:
1. the European company has no creditors within the meaning of Article 13 of the Act;
2. All creditors within the meaning of Article 13 of the Act, before the expiry of a period of three months after the publication of the draft transfer of registered office referred to in point (b), have requested to secure their claims and all of their claims applied for have been secured or satisfied,
3. All creditors within the meaning of Article 13 of the Act have waived the right to collateral; or
4. the European company has provided sufficient security to creditors within the meaning of Article 13 of the Act or satisfied their claims;
(i) a report explaining and justifying the legal and economic aspects of the transfer and indicating the consequences of the transfer for shareholders, creditors and employees; and
(j) an affidavit by the members of the board of directors of a European company that proceedings concerning the annulment, liquidation or bankruptcy of a European company have not been initiated.
(2) A document or an affidavit as referred to in paragraph 1 (b) shall be used for the purposes of this Article. (h) they must also include a list of the names of the creditors who have requested the provision of a sufficient security and a description of the manner in which their claims have been adequately secured and, where appropriate, the reason for which the applicants have been excluded from the list of persons authorised to require the provision of sufficient security.
Documents to establish a European merger company
Basic heading of documents
The company involved in the establishment of a European merger company ("the participating company ') shall submit to the notary before issuing the certificate referred to in Article 25 (2) of the Council Regulation documents proving that:
(a) the company concerned is governed by Czech law (§ 5);
(b) the general meeting, the sole shareholder or the board of directors of the company concerned have duly approved the draft terms of merger (Section 6);
(c) the general meeting of the company concerned has duly approved the involvement of employees in the matters of the European company to be set up by the merger, where such approval has been reserved for the general meeting which approved the draft terms of merger (Section 7);
(d) the rules on the publicity of the draft terms of merger and other data have been complied with (§ 8);
(e) the company concerned has taken and complied with the measures imposed to protect creditors (§ 9);
(f) the company concerned has taken and complied with measures to protect minority shareholders (Section 10); and
(g) the other conditions for certification are fulfilled (§ 11).
Check that the participating company is governed by Czech law
The company concerned shall submit to the notary an up-to-date extract from the Commercial Register and the current version of the Statutes.
Control of the legality of the general meeting's resolutions approving the merger project
(1) The participating company must submit to the notary:
(a) a copy of the notarial record of the resolution of the general meeting which approved the draft terms of merger; and
(b) an affidavit by the members of the board of directors of the company concerned that they are not aware that an application for annulment of the resolutions of the General Assembly which approved the draft terms of merger has been made, or proof that the proceedings for such a proposal have been definitively terminated, or that the application has been definitively rejected, or that all the persons entitled have waived the right to file an application for annulment of the general meeting.
(2) Where a European company is established by a merger pursuant to Article 31 (1) of the Council Regulation, the company concerned shall, instead of the documents referred to in paragraph 1, submit to the notary:
(a) a copy of the notarial record of the decision of a single shareholder or a general meeting of the company concerned on the approval of the draft terms of merger and a statement by the members of the board of directors of the company concerned that they are not aware of the fact that the application for annulment of a decision of a single shareholder or a general meeting of approval of the draft terms of merger has been filed, or that the application has been definitively rejected, or that all the beneficiaries have waived the right to make an application for annulment of that decision by a single shareholder; or
(b) a record of the decision of the board of directors of the company concerned to approve the draft terms of merger and a statement by the members of the board of directors of the company concerned that the authorised shareholder has not applied for or waived the general meeting and that they are not aware that the application for annulment of the decision of the Board of Directors to approve the draft terms of merger has been filed, or that the procedure for such a proposal has been definitively terminated, or that all the beneficiaries have waived the right to file an application for annulment of that decision of the Board of Directors.
Control of the legality of the General Assembly resolution, which approved the involvement of employees in European society matters
(1) If, pursuant to Article 23 (2) of the Council Regulation, the general meeting of the participating company which approved the draft terms of merger reserves the right to further approve the involvement of employees in European company matters, the company concerned shall submit to the notary the documents referred to in Article 6 (1) concerning the general meeting which approved the involvement of employees in European company matters, and
(a) a written agreement on the manner and extent of the involvement of employees in European company matters concluded between the authorities of the participating company and the negotiating committee (Section 54 of the Act);
(b) the minutes of the order of the negotiating committee,
(c) an affidavit by the members of the board of directors of the company concerned that the deadline for the conclusion of the agreement referred to in (a) or the adoption of the resolution referred to in (b) has expired in vain, without the adoption of that agreement or resolution within that period; or
(d) a statement by the members of the board of directors of the company concerned that the provisions on the involvement of employees in European company matters taken into the law of the State where the European company is to have its registered office in Council Directive 2001 / 86 / EC2 (hereinafter referred to as the "Council Directive") shall not apply to such the creation of a European company by merger, including a description of the reasons for that conclusion.
(2) If a European company is to have its registered office in the territory of a Member State other than the Czech Republic, the company concerned shall submit to the notary:
(a) in the cases referred to in paragraph 1 (a) to (b), also a declaration of honour by the members of the board of directors of the company concerned that the written agreement or, where appropriate, the resolution of the negotiating committee is in accordance with the law of the State in which the European company is to have its registered office;
(b) in the case referred to in paragraph 1 (c), also a declaration by the members of the board of directors of the company concerned of the rules governing the involvement of employees in European company matters under the law of the State in which the European company is to have its registered office; or
(c) in the case referred to in paragraph 1 (d), also a declaration by the members of the board of directors of the company concerned that, for the reasons set out above, the provisions on the involvement of employees in the matters of the European company are not applicable under the law of the State in which the European company is to have its registered office, taken into account in that law by the Council Directive.
Control of the publicity of the merger project and other data
(1) The participating company must submit to the notary:
(a) the draft terms of merger;
(b) proof of publication of the notice of deposit of the draft terms of merger in the collection of commercial register documents and notice to shareholders and creditors of their rights;
(c) the accounts of all the participating companies over the last three years, if the participating company persists during that period, or, where appropriate, such accounts of the legal predecessor, if the participating company had a legal predecessor, and the auditor's reports on their verification and, where appropriate, a declaration by the members of the participating company's board of directors that, under the law of the State to which the participating companies are governed, the audit reports are not required;
(d) the final accounts of all the participating companies, the opening balance sheet of the acquiring company and the auditor's report on their verification and, where appropriate, a statement by the board of directors of the participating company that, under the law of the State governing the participating companies, the audit reports are not required;
(e) the interim accounts and the auditor's report on its verification, if the final accounts were drawn up on the date on which more than 6 months had elapsed on the date of completion of the draft terms of merger;
(f) reports by the Board of Directors of all participating companies or joint reports by the Board of Directors of participating companies governed by Czech law and, where appropriate, by a declaration by the members of the Board of Directors of the participating company that, under the law of the State governing the participating companies, the reports of the Board of Directors are not required,
(g) the reports of the Supervisory Board of all participating companies on the review of the merger or the joint report of the Supervisory Board of the participating companies governed by Czech law on the review of the merger or, where appropriate, the affidavit of the members of the board of directors of the participating company that, under the law of the State governing the participating companies, the reports of the Supervisory Board on the review of the merger are not required;
(h) an expert report on the merger
1. by an expert appointed by a court in accordance with § 220c of the Commercial Code,
2. for all participating companies located in the Czech Republic together with two experts appointed by the court in accordance with § 220c of the Commercial Code; or
3. for all participating companies, irrespective of the law they are governed by, one or more experts appointed by the competent authority in the State of the registered office of one of the participating companies or, where appropriate, the future registered registered registered office of the European company in accordance with the procedure laid down in Article 22 of the Council Regulation,
(i) the expert's opinion under Paragraph 69a (6) of the Commercial Code, unless it is part of the merger report and required;
(j) an affidavit by the members of the board of directors of the participating company that the documents referred to in points (a) and (c) to (i) have been duly consulted at the registered office of the participating company for each shareholder at least one month before the date of the general meeting decided to approve the draft terms of merger; and
(k) an affidavit by the members of the board of directors of the company concerned that, in accordance with Article 21 (c) and (d) of the Council Regulation, all information on the measures taken under Article 24 of the Council Regulation has been provided free of charge at the places published in the Commercial Journal in the notification referred to in point (b).
(2) If a European company is founded by a merger pursuant to Article 31 (1) of the Council Regulation, the company concerned shall submit to the notary:
(a) the draft terms of merger;
(b) proof of publication of the notice of deposit of the draft terms of merger in the collection of commercial register documents and notice to shareholders and creditors of their rights;
(c) the accounts of all the participating companies over the last three years, if the participating company persists during that period, or, where appropriate, such accounts of the legal predecessor, if the participating company had a legal predecessor, and the auditor's reports on their verification and, where appropriate, a declaration by the members of the participating company's board of directors that, under the law of the State to which the participating companies are governed, the audit reports are not required;
(d) the final accounts of all the participating companies, the opening balance sheet of the acquiring company and the auditor's report on their verification and, where appropriate, a statement by the board of directors of the participating company that, under the law of the State governing the participating companies, the audit reports are not required;
(e) the interim accounts and the auditor's report on its verification, provided that the final accounts were drawn up on the date on which more than six months had elapsed on the date of completion of the merger project;
(f) the expert's opinion under Paragraph 69a (6) of the Commercial Code, if required;
(g) a statement by the members of the board of directors of the company concerned that the documents referred to in points (a) and (c) to (f) have been duly consulted at the registered office of the shareholder company concerned within the statutory time limits; and
(h) an affidavit by the members of the board of directors of the company concerned that, in accordance with Article 21 (c) and (d) of the Council Regulation, all information on the measures taken pursuant to Article 24 of the Council Regulation has been provided free of charge at the places published in the Commercial Journal in the notification referred to in point (b).
(3) If a European company is founded by a merger pursuant to Article 31 (2) of the Council Regulation and the draft terms of merger include a commitment by the European company to buy back shares that have been exchanged for the other shares of the company concerned in accordance with § 220m (4) of the Commercial Code, the company concerned shall submit to the notary
(a) the draft terms of merger;
(b) proof of publication of the notice of deposit of the draft terms of merger in the collection of commercial register documents and notice to shareholders and creditors of their rights;
(c) the final accounts of all the participating companies, the opening balance sheet of the acquiring company and the auditor's report on their verification and, where appropriate, a statement by the members of the board of directors of the participating company that, under the law of the State governing the participating companies, the audit reports are not required;
(d) the interim accounts and the auditor's report on its verification if the final accounts were drawn up on the date on which more than six months had elapsed on the date of completion of the draft terms of merger;
(e) the expert's opinion pursuant to § 69a (6) of the Commercial Code, if required;
(f) a statement by the members of the board of directors of the company concerned that the documents referred to in points (a) and (c) to (e) have been duly consulted at the registered office of the shareholder company concerned within the statutory time limits; and
(g) an affidavit by the members of the board of directors of the company concerned that, in accordance with Article 21 (c) and (d) of the Council Regulation, all information on the measures taken pursuant to Article 24 of the Council Regulation has been provided free of charge at the places published in the Commercial Journal in the notification referred to in point (b).
Control of creditor protection measures
(1) If a European company has its registered office in the Czech Republic, the company concerned is obliged to submit to the notary a document or, where appropriate, an affidavit from the board of directors that:
(a) the company concerned has no creditors within the meaning of § 220j of the Commercial Code;
(b) the creditors within the meaning of Article 220j of the Commercial Code who have applied to secure their outstanding claims prior to the issue of the certificate have been provided with sufficient security or their claims have been satisfied; or
(c) all creditors within the meaning of § 220j of the Commercial Code waive the right to collateral.
(2) If a European company has its registered office outside the Czech Republic, the company concerned is required to submit to the notary a document or, where appropriate, an affidavit from the board of directors that:
(a) the company concerned has no creditors within the meaning of Article 17 (4) of the Act;
(b) all creditors within the meaning of Article 17 (4) of the Act have requested, before the expiry of a period of three months from the date of publication of the notice of the deposit of the draft terms of merger in the instrument collection, to secure their claims and all their claims applied for have been secured or satisfied;
(c) a sufficient security has been provided to all creditors within the meaning of Article 17 (4) of the Act who have applied in due time to secure their outstanding claims or their claims have been satisfied; or
(d) all creditors within the meaning of Article 17 (4) of the Act waive their right to collateral.
(3) Furthermore, the document or declaration of honour referred to in paragraph 1 or 2 shall include a list of the creditors who have requested the provision of a sufficient security and a description of the manner in which their claims have been adequately secured and, where appropriate, the ground for which the applicants have been excluded from the list of persons authorised to require the provision of a sufficient security.
(4) Furthermore, the participating company is required to submit an honest statement by the board of directors that the participating company did not issue bonds. If the company concerned has issued bonds, it shall instead submit to the notary:
(a) emission conditions;
(b) proof of proper assembly of the owners' meetings;
(c) a copy of the notarial record certifying the meeting of owners;
(d) proof of publication of a copy of the notarial registration certifying the meeting of owners;
(e) an affidavit by the members of the board of directors of the company concerned that the company has satisfied the claims of the bondholders who have applied for their early repayment
1. within 30 days of the publication of a copy of the notarial record of the owners' meeting if the meeting of the owners has agreed to the merger, but the bondholders have voted against the decision or have not participated in the meeting of the owners, or
2. until the time when the application for certification was submitted, where the meeting of owners took a decision pursuant to Article 23 (5) of the Bonds Act (3)).
(5) Where a meeting of owners has not taken place for reasons on the part of the bondholders, even if it has been duly convened, the company concerned shall submit to the notary instead of the documents referred to in paragraph 4 (b). (c) to (e) an affidavit of the members of the board of directors of the company concerned, including a description of the reasons for which the meeting of owners did not take place.
Control of shareholder protection measures
(1) The participating company must submit to the notary:
(a) an entry from the order of the general meeting of at least one foreign participating company whose right does not allow a process similar to that of exercising the right of settlement under Czech law, which implies that the general meeting has not approved the shareholders of the participating company to be able to use the procedure to exercise the right of settlement; or
(b) an affidavit by the members of the board of directors of the company concerned that the conditions for the establishment of the right to a settlement under Article 25 (3) of the Council Regulation are not fulfilled.
(2) If the company concerned is unable to submit the documents referred to in paragraph 1 to the notary, as the conditions for establishing the right to a settlement provided for in Article 25 (3) of the Council Regulation are fulfilled, the company concerned shall instead submit to the notary:
(a) an affidavit by the members of the board of directors of the company concerned that they do not know that an action has been brought to determine an appropriate exchange ratio of shares or, where appropriate, the amount of the supplement, that the proceedings for such a timely action have been terminated definitively or that all the persons entitled have waived the right to bring the action; or
(b) a copy of the actions to determine the appropriate exchange rate of the shares and, where appropriate, the amount of the supplement brought against the company within the prescribed time limit.
(3) If the draft terms of merger result in the creation of a European company changing the legal status of the shareholders of the participating company by exchanging shares for shares of another type, changing the rights associated with a particular type of share, exchanging shares admitted to trading on a regulated market for shares that are not so accepted or exchanging shares whose transferability is not limited, as being limited to shares with limited transferability, the participating company must also submit to the notary and, where appropriate, a declaration by the board of directors of the participating company that the company has sufficient funds or liquid assets, which serve as a guarantee for the authorised shareholder, that the European company will properly fulfil its commitment to buy-back shares.
Control of compliance with other certification requirements
The participating company shall submit to the notary:
(a) a final decision by the competent authorities of the State if, under Czech law, such final decisions are a condition for the effectiveness of the merger or, where appropriate, for a declaration by the members of the board of directors of the company concerned that such final decisions are not a condition for the effectiveness of the merger of the company concerned;
(b) the document or, where appropriate, the affidavit of the members of the board of directors of the company concerned, that the funds needed to pay the top-up payments pursuant to Paragraph 220a (5) of the Commercial Code have been transferred to the person responsible for paying the top-ups;
(c) a document or, where appropriate, an affidavit by the members of the board of directors of the company concerned that the paper shares needed for the exchange have been transferred to the person responsible for the exchange, if the successor company has paper shares; and
(d) a document or, where appropriate, an affidavit by the members of the board of directors of the company concerned, stating that a notification of the issue of shares needed for the exchange of shares for the shareholders of the company concerned has been received by the person authorised to register the registered shares.
Efficacy
This decree shall take effect on the day of its publication.
Minister:
JUDr.
1) Council Regulation (EC) No 2157 / 2001 of 8 October 2001 on the Statute of the European Company (SE), as amended by Council Regulation (EC) No 885 / 2004 of 26 August 2004 amending, by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, Regulation (EC) No 2003 / 2003 of the European Parliament and of the Council, Council Regulations (EC) No 1334 / 2000, (EC) No 2157 / 2001, (EC) No 152 / 2002, (EC) No 253 / 2000 / EC, (EC) No 508 / 2000 / EC, (EC) No 1031 / 2000 / EC, (EC) No 163 / 2001 / EC, (EC) No 2235 / 2002 / EC and Council Decisions 1999 / 382 / 2001 / 2001 / EC, (EC) No 1720 / 1999 / 1999 / 1999 / 2000 / EC, (EC, (EC), (EC), (EC), (EC), (EC), (EC), (EC), (EC), (EC), (EC), (EC), (EC), (EC)
2) Council Directive 2001 / 86 / EC of 8 October 2001 supplementing the Statute for a European Company with regard to employee involvement.
3) Act No. 190 / 2004 Coll., on bonds.
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Regulation Information
| Citation | Decree No 293 / 2005 Coll., to be submitted to the notary for certification when the registered office of a European company is transferred and when the European company is established by a merger |
|---|---|
| Regulation Type | Order |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 21.07.2005 |
|---|---|
| Effective from | 21.07.2005 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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