Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European Company (SE)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 12 June 2018 |
| Neutral Citation | [2018] EWHC 1445 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: CR-2018-004563 |
| Date | 12 June 2018 |
[2018] EWHC 1445 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMPANIES COURT (ChD)
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Mr Justice Morgan
Case No: CR-2018-004563
and
and
Mr Andrew Thornton (instructed by DLA Piper LLP) for the Applicant Companies
Hearing date: 8 June 2018
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 8 June 2018, I heard an application pursuant to Article 26 of Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European Company (SE) (“the Regulation”). At the end of the hearing, I indicated the order which I would make and following the hearing I was provided with a draft order in accordance with that indication and I made an order accordingly.
This judgment now deals with a number of points which arose in the course of the hearing and also deals with the form of order which it is appropriate to make where the court is satisfied of the matters required by Article 26.
I need only refer briefly to the facts of this case. Liberty Mutual Insurance Europe plc (“the Company”) is registered in England and Wales. It was incorporated on 21 December 1972 and has changed its name on a number of occasions over the years. It was re-registered as a public limited company on 1 March 2018. It underwrites insurance and re-insurance business from its registered office in London and its branches across Europe. It is currently planning for the consequences of the United Kingdom leaving the European Union on 29 March 2019. As part of that planning, it wishes to become a Societas Europaea (an SE) in accordance with the Regulation.
In order for the Company to become an SE, another company has been incorporated in Luxembourg. The new company is LSM Luxembourg plc SA (“LSM Lux”). LSM Lux was incorporated on 29 December 2017. It has not traded and has limited assets and liabilities. Its present value consists in its initial share capital of €30,000. The intention is that the Company will merge with LSM Lux. The terms of the merger provide for the Company to acquire all of the assets and liabilities of LSM Lux and to become an SE with the name Liberty Mutual Insurance Europe SE. LSM Lux will then cease to exist by operation of law in accordance with the Regulation.
The provisions of the Regulation which are of particular relevance in this case are:
i) Article 1 providing for the setting up of an SE;
ii) Article 2(1) providing for the formation of an SE by merger;
iii) Articles 15 and 16 providing for the applicable law and for an SE to have legal personality;
iv) Article 17 providing for the formation of an SE by means of a merger in accordance with Article 2(1);
v) Articles 20 to 24 which deal with some of the steps to be taken in connection with such a merger;
vi) Article 25(1) which provides for the legality of a merger to be scrutinised “as regards that part of the procedure concerning each merging company, in accordance with the law on mergers of public limited-liability companies of the Member State to which the merger company is subject”;
vii) Article 25(2) which provides for the relevant authority (in this jurisdiction it is the court) to certify conclusively attesting to the completion of the pre-merger acts and formalities;
viii) Article 26 which is in these terms:
“1. The legality of a merger shall be scrutinised, as regards the part of the procedure concerning the completion of the merger and the formation of the SE, by the court, notary or other authority competent in the Member State of the proposed registered office of the SE to scrutinise that aspect of the legality of mergers of public limited-liability companies.
2. To that end each merging company shall submit to the competent authority the certificate referred to in Article 25(2) within six...
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...P to produce the intended result under the SE Regulation, this was not an abuse of law. (Re Liberty Mutual Insurance Europe Plc [2018] EWHC 1445 (Ch)) Key Follows approach of case law on cross-border mergers: In line with the approach in Re Easynet Global Services Ltd [2018] EWCA Civ 10,......