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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> House-Clean Ltd & Anor, Re Companies (Cross-Border Mergers) Regulations 2007 [2013] EWHC 2337 (Ch) (03 May 2013) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2013/2337.html Cite as: [2013] Bus LR 1145, [2013] BUS LR 1145, [2013] EWHC 2337 (Ch) |
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CHANCERY DIVISION
COMPANIES COURT
London WC2A 2LL |
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B e f o r e :
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In the Matter of the Companies (Cross-Border Mergers) Regulations 2007 | ||
And in the Matter of HOUSE-CLEAN LIMITED | ||
On the Application of: | ||
(1) HOUSE-CLEAN LIMITED | ||
(2) HOUSE-CLEAN VERWALTUNGS GMBH (a company with limited liability incorporated in Germany) Applicants |
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165 Fleet Street, London, EC4A 2DY
Tel No: 020 7421 4036 Fax No: 020 7404 1424
Web: www.merrillcorp.com/mls Email: [email protected]
(Official Shorthand Writers to the Court)
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Crown Copyright ©
MR JUSTICE ROTH:
"(1) A UK merging company may apply to the court for an order certifying for the purposes of Article 10.2 of the Directive (issue of a pre-merger certificate) that the company has completed properly the pre-merger acts and formalities for the cross-border merger."
That is the first of the two stages involved under the scheme of the Regulations.
"The court may, on the joint of application of all the merging companies, make an order approving the completion of the cross-border merger for the purposes of Article 11 of the Directive (scrutiny of completion of mergers) if..." [My emphasis]
Then various conditions necessary for that approval are set out.
"The court must not make such an order (that is to say issue of pre-merger certificate) unless the requirements of regulations 7 to 10 and 12 to 15 (pre-merger requirements) have been complied with."
Although expressed in a negative formulation, in my judgment it is clear that regulation 6 does not give or seek to give the court the discretion provided for the different stage of the procedure under regulation 16. In my view, as Mr Jack submits, the approach set out in Re Diamond Resorts (Europe) Ltd therefore does not apply when dealing with the stage 1 approval of the pre-merger requirements. It follows that, in my judgment, the task of the court at stage 1 under Part 2 of the Regulations is limited to ascertainment whether the requirements of the various regulations have been complied with, subject only to this: that regulation 11 does give the court a discretion to order a meeting of creditors and also, in my view, of members in the case of a merger by absorption of a wholly-owned subsidiary. I say that because in the other two types of merger a meeting of members is mandatory under regulation 13. The question of the court's exercise of such a discretion was considered briefly by David Richards J in Re Oceanrose Investments Ltd [2008] EWHC 3475 (Ch) at paragraph 29.