Grensoverschrijdende fusies na Sevic en de Tiende Richtlijn
This paper deals with cross border mergers between EU companies after the landmark Sevic judgment of the European Court of Justice and the adoption of the Tenth directive on cross border mergers. I draw attention to the very broad interpretation of the concept of "establishment" theCourt has embraced in Sevic. One of the major conclusions from Sevic is that member states may not subject cross border mergers (within the EU) to more stringent conditions than "domestic" mergers. Although the facts which gave rise to Sevic related to a company absorbing a foreign one, I argue that, contrary to what a number of German commentators of the case have argued, Sevic can also be invoked by a company that wants to be absorbed through merger by a foreign company. Whereas the Tenth Directive essentially only applies to limited liability companies Sevic is also applicable to partnerships (in the sense of companies with unlimited liability). Furthermore, Sevic lends support to the thesis that split ups of companies also fall within the ambit of freedom of establishment as guaranteed by articles 43 and 48 of the EC Treaty. On the other hand, companies that cannot take part in a domestic legal merger, cannot derive a right from the Treaty to take part in a crossborder merger. After a brief description of the actual content of the Tenth directive I argue that, again contrary to what some German authors (e.g. Kallmeyer/Kappes) have written, member states may add procedural rules for cross border mergers to the rules provided for in the Tenth directive, as long as these rules are compatible with freedom of establishment and do not make a cross border merger procedurally more difficult than a domestic merger. Indeed, such rules may be necessary to answer the many procedural questions the Directive hasn’t answered. I conclude by arguing that, in spite of Daily Mail, companies derive a right to cross borders transfers of their seats (reincorporation abroad without interruption of legal personality) directly from art. 48 of the Treaty.