On December 5 2022, the Bill Implementing the Directive on cross-border conversions, mergers and demergers (hereinafter: Bill) was submitted by the House of Representatives. The Bill must ensure the transformation of the Directive (EU) 2019/2121 (hereinafter: Directive) into Dutch legislation. By this Directive, the European Commission wants to simplify the cross-border conversion, merger and demerger of capital companies (N.V. and B.V.) and promote the freedom of establishment within the EU. This requires some changes in Book 2 of the Dutch Civil Code and the Financial Supervision Act (Wft).

The Directive prescribes the conditions that must be met before a cross-border operation can take place and contains procedural rules. The Directive also provides harmonized rules for the protection of shareholders, creditors and employees. See our earlier blog for more information about the Direction.

Role of the notary; the fraud test
The Directive provides for a regime in which a competent authority supervises the cross-border operation and checks on illegality. In the Netherlands, the Bill appoints the notary as competent authority to supervise the process and carry out a fraud test.

This fraud test means that the notary issues a statement approving the decision-making of the operation and submits a closing statement to formally complete the operation. The notary will not issue the statement when he finds out that the cross-border operation has been set up for abusive or fraudulent purposes leading to the evasion or circumvention of Union or national law, or for criminal purposes.

According to the explanatory notes to the Bill, the fraud test is in line with the current role of the notary as gatekeeper.

The Bill does not explicitly state that the fraud test may involve a fiscal aspect, while this was referred in the preamble to the Directive. It is conceivable that the parties involved may find a cross-border operation desirable precisely for tax reasons. Therefore it is important to investigate to what extent and in what way a Dutch authority (Such as the tax authority) also tests on tax fraud.

On December 21 2022, the treatment of this Bill will be discussed in the procedural meeting of the Committee for Justice and Security of the House of Representatives. The latest date by which the Directive must be transformed into Dutch law is January 31 2023. Of course we will keep you informed about the developments through our blog.