5.11 Shares as a Means of Payment 253rective 2001/86/EC.^584 For other limited-liability companies, the before-after pro-
visions are based on the Directive on cross-border mergers.^585
In cross-border mergers, the competent authorities will scuritise even the legal-
ity of the arrangements for employee participation.^586
Filings, filing of completion of the merger. A merger will trigger many filing
duties. Filings are necessary in all mergers for two reasons. First, many steps of
the merger require action taken by the competent authority and therefore also the
filing of documents. Second, a merger must be made public.^587 Filings and disclo-
sures are a means to protect the interests of shareholders, creditors, and employ-
ees.
The completion of the merger must be filed and made public by publishing it in
the national gazette. The modalities of filing and publication depend on the gov-
erning law or laws.^588
Listed companies must comply with the general disclosure regime that applies
to listed companies (section 5.9). The Directive on takeover bids lays down further
disclosure obligations. Those obligations apply both to the offeror and the offeree.
Effective date of merger. The date on which a domestic merger takes effect de-
pends on the governing law. It is determined by Member States’ laws.^589
If the merger is a cross-border merger, it takes effect when the completion of
the merger is registered after all formalities have been completed. For example,
those formalities include the scrutiny of the legality of the merger.^590 The forma-
tion of a new SE takes effect on the date on which the new SE is registered.^591
Company Law Aspects of Cross-border Mergers
Mergers are constrained by provisions of company law protecting shareholders
and creditors, and by detailed rules on the modalities of the transaction. In addi-
tion, European merger laws typically protect employees. In domestic mergers,
merger laws address those aspects in all participating companies in a coordinated
way. A cross-border merger would involve the application of two or more coun-
tries’ laws in a single legal operation and make it difficult to determine the appli-
cable rules.
(^584) See, in particular, Articles 4 and 7.
(^585) Article 16 of Directive 2005/56/EC (Directive on cross-border mergers).
(^586) Article 11 of Directive 2005/56/EC (Directive on cross-border mergers).
(^587) Article 18 of Directive 78/855/EEC (Third Company Law Directive); Article 6 of Direc-
tive 2005/56/EC (Directive on cross-border mergers); Articles 13, 15(2), 21 and 28 of
Regulation 2157/2001 (SE Regulation).
(^588) Article 18(1) of Directive 78/855/EEC (Third Company Law Directive); Article 13 of
Directive 2005/56/EC (Directive on cross-border mergers); Article 28 of Regulation
2157/2001 (SE Regulation); Article 32 of Regulation 1435/2003 (SCE Regulation).
(^589) Article 17 of Directive 78/855/EEC (Third Company Law Directive).
(^590) Article 12 of Directive 2005/56/EC (Directive on cross-border mergers); Article 27 of
Regulation 2157/2001 (SE Regulation); Article 31 of Regulation 1435/2003 (SCE Regu-
lation).
(^591) Article 12, 16 and 27 of Regulation 2157/2001 (SE Regulation).