EU regulatory approaches to cross-border mergers: Exercising the right of establishment

Abstract

This article discusses Union regulatory approaches to cross-border mergers in the light of the fundamental freedom of establishment (art.49 TFEU). Its aim is to explore the dynamics and the impact on the internal market of the multi-faceted interaction between secondary Community legislation and the ECJ's case law on cross-border mergers. It is argued that only a thorough understanding of this interaction could reveal the benefits of the internal market at the area of cross-border mergers. The conduct of a cross-border merger falls within the protective scope of the freedom of establishment (SEVIC ruling). Moreover, cross-border mergers are regulated by the Cross-Border Mergers Directive and by the European Company Statute (SE Statute). Emphasis will be given to the relationship between the ECJ's case law and these Community regulatory measures. The relationship between the SE Statute and the Cross-Border Mergers Directive will also be analysed. The importance of the Cross-Border Mergers Directive lies in the procedural rules which were established. In this way, companies will be truly facilitated as regards exercising their right of establishment.