7 The need for legislation on cross-border division

In this Ph.D. research, I have concluded that cross-border divisions have several advantages in comparison with other cross-border corporate restructurings and that cross-border divisions are possible on the basis of the national legislation of some of the Member States of the EU or the freedom of establishment as laid down in sections 49 and 54 TFEU.

The situation regarding conflict of laws with respect to cross-border divisions is not entirely clear, as there is no statutory legal framework at EU level and only a few Member States have legislation on cross-border division. When implementing a cross-border division on the basis of the freedom of establishment, the companies involved in the cross-border division, their advisors and the competent authorities in the Member States should pay special attention to the procedure on cross-border division and the protection of the interests of stakeholders, such as creditors, minority shareholders and employees with employee participation rights.

To make cross-border division an attractive method of cross-border corporate restructurings – which also improves the proper functioning of the internal market of the EU – and to provide for a clear statutory legal framework for cross-border division, the European legislature should draw up a European directive on crossborder division. Such a directive on cross-border division should be based on the Sixth directive and on the principles of the Tenth directive.