The 2023 Mobility Regulations:  streamlining Cross Border Mergers

The European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (the “Mobility Regulations”) were enacted on 24 May 2023 transposing Directive 2019/2121/EU as regards cross-border conversions, mergers and divisions (the “Mobility Directive”) into Irish law.

The Mobility Regulations introduce updated procedures for cross-border mergers, reducing administrative costs for companies. The new procedures provide more efficiency and effectiveness, while also ensuring the protection of employees, creditors and minority shareholders. Companies will benefit from legal certainty, especially multinational groups who can now consider Ireland as an attractive jurisdiction for their cross-border restructuring in the EU. Limited liability companies incorporated in another EEA country can now relocate to Ireland with an Irish registered office and nationality.

Similarly, the process for Irish companies to relocate to another EEA country is also more streamlined. Previously companies had to rely on member state laws which were sometimes incompatible and gave rise to delays. The Mobility Regulations allow Irish companies for the first time to engage in a cross-border conversion, while retaining their legal personality and in principle without the company’s assets, liabilities or members being affected.

In January 2024 an Irish incorporated public limited company Zurich Insurance plc completed a Cross-Border Conversion into a German Stock Corporation following an application to the Irish High Court in late 2023.  We understand that this was the first Cross-Border Conversion application to be heard in the Irish High Court.

Key aspects of the Mobility Regulations

1. Cross-Border Mergers

A cross-border merger is a process by which two or more companies combine into a single company. At least one company must be an Irish company and one must be incorporated in another EEA country company.

There are three different types of cross-border merger:

• A merger by acquisition, whereby a company acquires all the assets and liabilities of another company that is dissolved without going into liquidation and in exchange, the members of the acquired company are issued with shares in the acquiring company.
• A merger by absorption, whereby a company, without going into liquidation, is dissolved and all its assets and liabilities are transferred to a company that is the holder of the shares in the company.
• A merger by formation of a new company, where one or more companies, without going into liquidation, are dissolved and all their assets and liabilities are transferred to a new company and the members of the merging companies are issued with shares in the new company.

The main effects of a cross-border merger include:

• The transferor company is dissolved.
• The assets of the transferor transfer to the transferee merged company.
• The members of the transferor become members of the merged company.
• All monies due and owing to the transferor transfer over to the merged company.
• The merged company is named as a party in all proceedings that are in the transferor’s name.
• The contracts of the transferor company transfer over to the merged company and the merged company becomes a party to all those contracts.

2. Cross-Border Conversions

A cross-border conversion is the relocation of a company to another EEA country by operation of law, while retaining its legal personality. It means that a limited liability company incorporated in Ireland (the converting company) can convert into the legal form of another EEA country (the converted company), such as a Société Anonym (an SA) under French law.

A major benefit of a cross-border conversion is that all the assets and liabilities of the converting company transfer over to the converted company and the members of the converting company become members of the converted company.  The main effects of a conversion include:

• All contracts in the converting company’s name become contracts of the converted company.
• Any monies due and owing to the converting company transfer over to the converted company.
• The converted company is named as a party in all legal proceedings in the converting company’s name.

3. Cross-Border Divisions

A cross-border division allows a company to separate or divide itself into two or more companies across the EEA. Under the Mobility Regulations, companies have the option of a full division, partial division or division by creation of new subsidiaries. There is no requirement for a company being divided to be dissolved for a cross-border division, which is the case for a division under domestic Irish law.

Conclusion

The implementation of the Mobility Regulations is a welcome development. It will afford new opportunities for non-Irish EEA companies to relocate to Ireland, while also providing increasing flexibility to Irish companies with a cross-border presence to restructure within the EEA.  However as the involvement of the Courts (being the High Court in Ireland) and/or regulators in two or more EEA jurisdictions is required it would be recommended to engage with legal advisers in both jurisdiction at an early stage.  Whitney Moore LLP has extensive experience in this area.

If you would like further information, please contact your usual adviser in Whitney Moore.

Authored by Brendan Ringrose, Corporate Partner (Brendan.Ringrose@whitneymoore.ie) and Erta Kalemi, Whitney Moore.