293/2005 Sb.
DECREE
of 12 October. July 2005
about the documents to be submitted to a notary to issue the certificate in the
relocation of the registered office of a European company, and for establishing the European
company mergers
The Ministry of Justice shall determine pursuant to section 65 of Act No. 631/2004 Coll., on
the European company, (hereinafter referred to as the "Act"):
General provisions
§ 1
This Decree regulates the following a directly applicable regulation
Of the European Communities ^ 1) document attesting to the circuit design
prescribed by the acts and formalities which are required to submit a notary
and the European company is registered) located on the territory of the Czech Republic, which
shall be governed by Czech law, to issue the certificate on the transfer of the registered
of the registered office to another Member State of the European Union or other States
that make up the European economic area (hereinafter referred to as "Member State") (§ 14
paragraph. 3 of the Act), and
(b)) the company established in the territory of the Czech Republic, which
governed by Czech law, to issue the certificate when establishing the European
company mergers (article 16, paragraph 2, of the Act).
§ 2
(1) for the proper assessment of the fulfilment of the conditions for the issue of the certificate, which
of Council Regulation No 2157/2001 ^ 1) (hereinafter ' the Council regulation '), and of the
national law, a notary may request outside of the documents referred to in this
the decree and to submit additional documents.
(2) where in this Ordinance is talking about joint-stock companies, the Board of Directors
This means in European society, which has a monistic structure
under the circumstances, the Chairman of the Board, who is the Director General,
or, where appropriate, the delegated Director-General the Director-General. Where
in this Decree talks of the Supervisory Board of joint stock companies, this means
in European society, which has a monistic structure, its administrative
the Council.
Documents to the relocation of the registered office of a European company
§ 3
(1) the European company that intends to transfer registered offices from the United
Republic to another Member State, it shall submit a notary before
issuance of the certificates referred to in article. 8 (2). 8 Council regulation
and) current extract from the commercial register, and the current text of the articles of Association,
(b) save the design of) evidence of relocation of the registered office to a collection of documents
commercial register and its publication,
c) copy of the notarial acts decision of the General Assembly for approval
relocation of the registered office,
d) affidavit of members of the European company
that they are not known to have been made a proposal to declare invalid the resolution
the general meeting approving the relocation of the registered office, or the
the fact that the procedure for this proposal, it was finally stopped, where appropriate, that
the proposal was finally rejected, or that all authorized persons
renounced the rights to the submission of the proposal to declare invalid the resolution
the General Assembly,
(e) proof of registration of the transfer), registered in the commercial register of the seat of
(section 11 of the Act),
(f) proof of publication) a public contract for the purchase of shares made
shareholders who voted against the relocation of the registered office, and
g) document or affidavit of members of the European
the company that the European company has fulfilled the obligations arising from the
public draft contracts for the purchase of shares by the shareholders, who
voted against the relocation of the registered office (section 12 of the Act),
h) proof, or affirmation of members of the European
the company that
1. the European company does not have any of the creditor within the meaning of section 13 of the Act,
2. all the creditors within the meaning of section 13 of the Act before the expiry of
three months from the publication of the transfer proposal, registered office pursuant to
subparagraph (b)) requested to ensure their claims and all their
claims are secured or satisfied
3. all the creditors within the meaning of section 13 of the Act is given up rights to ensure
or
4. the European company provided adequate assurance to the creditors within the meaning of
section 13 of the Act, or to satisfy their claims,
I) a report explaining and justifying the legal and economic aspects
transfer and explaining the implications of the transfer for shareholders, creditors and
employees, and
j) affidavit of members of the European company
It was not initiated proceedings relating to the winding up, liquidation or bankruptcy
European society.
(2) a document or declaration referred to in paragraph 1 (b). h) must also
contain a list of the names of the creditors, who have applied for the grant of
sufficient certainty, and a description of the manner in which their claims have been
sufficiently secured, where appropriate, the reason for which applicants
excluded from the circle of persons entitled to require the provision of adequate
certainty.
Documents for the establishment of a European company mergers
§ 4
The basic range of documents
Company interested in establishing a European company mergers (hereinafter referred to as
"participating company") is required to submit a notary before the release
certificate referred to in article 14(2). to in article 25(2). 2 Council regulation documents evidencing that the
and the participating company is) governed by Czech law (§ 5),
(b)) the General Assembly, the sole shareholder or, as the Board of Directors of the participating
the company duly approved the draft terms of merger (§ 6),
(c)) the General Assembly of a participating company duly approved the involvement
employees in the Affairs of European society, which is to be a merger
based, if such approval has set aside the general meeting which
approved the draft terms of merger (section 7),
(d)) was a respected the rules of publicity of merger and the other data (§
8),
(e)) the participating company has made and fulfilled the measures imposed to protect
creditors (§ 9),
(f) the company concerned has made and) fulfilled the measures to protect the
minority shareholders (§ 10), and
(g) other prerequisites are met) for issue of a certificate (section 11).
§ 5
Check that the participating company governed by Czech law
The participating company is required to submit a current listing of notaries public
commercial register, and the current text of the articles of Association.
§ 6
Review of the lawfulness of resolutions of the general meeting which approved the project
Fusion
(1) the company is required to submit to the notary
and a copy of the notarial acts) a resolution of the general meeting, which
approved the draft terms of merger, and
b) affidavit of members of the participating company
that they are not known to have been made a proposal to declare invalid the resolution
the general meeting which approved the draft terms of merger, or proof that the
the procedure for this proposal, it was finally stopped, where appropriate, that the proposal was
been rejected, or that all the beneficiaries give up the right
on submission of the proposal to declare invalid the decision of the General
meeting.
(2) if the European company being formed by merger pursuant to article. 31 para. 1
a Council regulation is the participating company instead of the documents referred to in
paragraph 1 shall submit a notary
and a copy of the notarial acts) of the decision of the sole shareholder or
the general meeting of the company approving the project involved mergers and Honorable
statement by concerned members of society that they
It is not known that a proposal to declare invalid the decision of the
the sole shareholder or the general meeting to approve the merger, or
proof that the procedure for this proposal, it was finally stopped,
where appropriate, that the proposal was finally rejected, or that all
beneficiaries give up the right to bring an action for annulment
This decision of the sole shareholder, or
(b) a decision of the Board) of a participating company for approval
the project of the merger and the affidavit of Board members participating
companies that legitimate shareholder did not ask for the convening of the
meeting, or that he gave up this right and that they are not known to have been made
the proposal to declare invalid the decision of the Board of approval
merger, or proof that the procedure for this proposal was
finally stopped, where appropriate, that the proposal was finally rejected, or
all eligible persons who have renounced the rights to the submission of the proposal on
annulment of the decision of the Board.
§ 7
Review of the lawfulness of resolutions of the general meeting which approved the involvement
employees in the Affairs of European society
(1) if the general meeting of the companies involved, which was approved by the
the project of the merger, has set aside pursuant to article. 23 para. 2 Council regulation law
the additional approval of the involvement of employees in the Affairs of the European
the company is required to submit to the participating company notaries
the documents referred to in section 6 (1). 1, relating to the general meeting, which
approved the involvement of employees in the Affairs of European society, and
further
and a written agreement on how) and the extent of involvement of employees in
matters of European society, concluded between the authorities of the participating
companies and negotiating body (section 54 of the Act),
(b) of the resolution) the minutes of the Negotiating Committee,
c) affidavit of members of the participating company
the vain expiry of the period for the conclusion of the agreement referred to in subparagraph (a)), or
adoption of a resolution referred to in subparagraph (b)), without being within this period this
agreement or this resolution has been taken, or
d) affidavit of members of the participating company
the provisions on the involvement of employees in the Affairs of the European
the company, taken to the law of the State in which the European
the company registered offices, of the Council Directive 2001/86/EC ^ 2) (hereinafter referred to as
"Council Directive"), the creation of a European company mergers
does not apply, including a description of the reasons for this conclusion.
(2) if it is to have a European company registered office on the territory of another
Member State other than the United States, the participating company is required to
submit a notary
and, in the cases referred to in) paragraph 1 (b). and (b))) also, the Honorable
statement by the Board of Directors of a participating company that
a written agreement, or the resolution of the Negotiating Committee are in
accordance with the law of the State in which it has to have a European company registered
registered office,
(b)) in the case referred to in paragraph 1 (b). (c)) also affidavit
members of the Board of Directors of the companies concerned about the rules
the involvement of employees in the Affairs of European companies arise under
law of the State in which it has to have a European company registered offices, from the
the matters referred to in paragraph 1 (b). (c)), or
c) in the case referred to in paragraph 1 (b). (d)) also affidavit
members of the Board of Directors of the companies concerned about the fact that on the basis of
the reasons given are according to the law of the State in which the European
the company registered office, the provisions on the involvement of employees
in the Affairs of European society, taken that right from the
Council directive.
§ 8
Publicity of merger control and other data
(1) the company is required to submit to the notary
and the draft terms of merger)
(b) proof of publication of the notice) imposing a merger into collections
the register of deeds and warning for shareholders and creditors to
their rights,
(c)) the accounts of all the participating companies for the last three years,
If the participating company during this period lasts, or such
the financial statements, the legal predecessor to the participating company
the legal predecessor, and the auditor's report on verification, where appropriate,
affidavit of Board members of a participating company that
the law of the State applicable to the companies involved control messages
Auditor not required
(d)) of the final accounts of all companies involved, the opening
the balance sheet of the acquiring company and the auditor's report on verification,
where applicable, the affidavit of members of participating companies
about the fact that according to the law of the State, which is governed by the companies involved, the
Auditor's report do not require,
e) interim financial statements and the auditor's report on its verification, if it was
the final accounts drawn up from information on the date, from which, at the date
copy of the draft terms of merger more than 6 months have elapsed,
(f) report of the Board of all) the participating companies or joint
the message boards of the participating companies, which are governed by Czech
law, where applicable, the affidavit of Board members participating
the company that according to the law of the State governing interested
the company, the Board of Directors reports do not require,
(g) report of the Supervisory Board) of all participating companies about the review
a merger or a joint report of the supervisory boards of the companies involved,
which shall be governed by Czech law, to review the merger or honorary
statement by the Board of Directors of the company concerned about the fact that according to the
rights of the State, which is governed by the companies concerned, the supervisory
the Council on the review of the merger do not require,
(h) report of the expert on the merger) processed
1. an expert appointed by the Court in accordance with section of 220 c of the commercial code,
2. for all interested companies registered in the territory of the United
the Republic together two experts appointed by the Court in accordance with section of 220 c
the commercial code, or
3. for all the companies involved, no matter how the law is
control by one or more experts designated by the competent authority in the
the State of the seat of some of the participating companies or of the future
registered office of a European company in article 42(2). 22 of regulation
The Council,
even) an expert pursuant to § 69 para. 6 of the commercial code, unless
part of the expert reports of the merger, and if required,
j) affidavit of members of the participating company
that the documents referred to in points (a) and (c)))) to (i) are properly available for inspection
at the headquarters of the companies involved for each shareholder at least one
a month before the fixed date of the general meeting, which decided to
approval of the merger, and
k) sworn statement members of the participating company
in accordance with article 7(2). 21 (a). (c)), and (d)) of the Council regulation, any
information on the measures taken under article 6(1). 24 Council regulation for free
provided after the desired time on the sites published in Business
journal in the notice referred to in subparagraph (b)).
(2) Establishing the European company mergers, according to the article. 31 para. 1
a Council regulation is a participating company shall submit a notary
and the draft terms of merger)
(b) proof of publication of the notice) imposing a merger into collections
the register of deeds and warning for shareholders and creditors to
their rights,
(c)) the accounts of all the participating companies for the last three years,
If the participating company during this period lasts, or such
the financial statements, the legal predecessor to the participating company
the legal predecessor, and the auditor's report on verification, where appropriate,
affidavit of Board members of a participating company that
the law of the State applicable to the companies involved control messages
Auditor not required
(d)) of the final accounts of all companies involved, the opening
the balance sheet of the acquiring company and the auditor's report on verification,
where applicable, the affidavit of members of participating companies
about the fact that according to the law of the State, which is governed by the companies involved, the
Auditor's report do not require,
e) interim financial statements and the auditor's report on its verification, if it was
the final accounts drawn up from information on the date, from which, at the date
copy of the draft terms of merger more than six months,
(f)) an expert pursuant to § 69 para. 6 of the commercial code, if required
is,
g) affidavit of members of the participating company
that the documents referred to in points (a) and (c))) to (f)) are properly available for inspection
at the headquarters of the companies involved for shareholders in the statutory
the time limits, and
h) affirmation of members of the participating company
in accordance with article 7(2). 21 (a). (c)), and (d)) of the Council regulation, any
information on the measures taken under article 6(1). 24 Council regulation for free
provided after the desired time on the sites published in Business
journal in the notice referred to in subparagraph (b)).
(3) Establishing the European company mergers, according to the article. 31 para. 2
Council regulation and draft terms of merger includes the commitment of European companies
purchase in accordance with § 220 para. 4 of the commercial code shares, which have been
exchanged for the other shares of the companies involved, the participating
the company shall be obliged to submit to the notary
and the draft terms of merger)
(b) proof of publication of the notice) imposing a merger into collections
the register of deeds and warning for shareholders and creditors to
their rights,
(c)) of the final accounts of all companies involved, the opening
the balance sheet of the acquiring company and the auditor's report on verification,
where applicable, the affidavit of members of participating companies
about the fact that according to the law of the State, which is governed by the companies involved, the
Auditor's report do not require,
d) interim financial statements and the auditor's report on its verification, if it was
the final accounts drawn up from information on the date, from which, at the date
copy of the draft terms of merger more than six months,
(e)) an expert pursuant to § 69 para. 6 of the commercial code, if required
is,
f) affidavit of members of the participating company
that the documents referred to in points (a) and (c))) to e) are properly available for inspection
at the headquarters of the companies involved for shareholders in the statutory
the time limits, and
g) affidavit of members of the participating company
in accordance with article 7(2). 21 (a). (c)), and (d)) of the Council regulation, any
information on the measures taken under article 6(1). 24 Council regulation for free
provided after the desired time on the sites published in Business
journal in the notice referred to in subparagraph (b)).
§ 9
Control measures for the protection of creditors
(1) if the European company registered office on the territory of the United
the Republic is a participating company shall submit a notary document,
where applicable, the affidavit of Board members that
and) the company has no creditors within the meaning of § 220j
commercial code,
(b)) to the creditors within the meaning of § 220j commercial code, who have applied for
ensure their claims either before the issue of the certificate,
was given sufficient security, or their claims were
met, or
(c)) all the creditors within the meaning of § 220j commercial code have given up
the right to security.
(2) where the European company registered office outside the territory of the United
the Republic is a participating company shall submit a notary document,
where applicable, the affidavit of Board members that
and) the company has no creditors within the meaning of § 17 para. 4
the law,
(b)) all the creditors within the meaning of § 17 para. 4 of the law before the end of
the periods of three months from the publication of the notification of the deposit of the merger to
collection of documents requested to ensure their claims and all their
claims are secured or satisfied
(c)) to all creditors within the meaning of § 17 para. 4 of the law, who have asked for in a timely manner
to ensure their non-receivable, was given sufficient
security or their claims have been satisfied, or
(d)) all the creditors within the meaning of § 17 para. 4 of law have given up the right to
collateral.
(3) a document or declaration referred to in paragraph 1 or 2 shall further
contain a list of the names of the creditors, who have applied for the grant of
sufficient certainty, and a description of the manner in which their claims have been
sufficiently secured, where appropriate, the reason for which applicants
excluded from the circle of persons entitled to require the provision of adequate
certainty.
(4) the company is also required to submit an affidavit
the Board of Directors that the company concerned has not issued
bonds. If a participating company has issued bonds, is required to
instead of this Declaration to submit a notary
and emission conditions)
(b) proof of sound) the calling of meetings of owners
(c) a copy of a notarial deed) certifying the owners meeting,
(d) a copy of the document of the publication) of notarial certifying
a meeting of the owners,
e) sworn statement the Board of Directors of the company concerned about
the company satisfy the claims of the holders of bonds, who have applied for
their early repayment
1. within 30 days of the publication of a copy of a notarial deed of meeting
the owners, if a meeting of the owners agreed to the merger, the owners of the
bonds on the date decisive meeting, however, voted against the decision or
the meetings of owners did not vote, or
2. up to the time of submission of the application for the issue of the certificate, provided the meeting
the owners adopted a decision pursuant to § 23 para. 5 of the law on
^ 3 bonds).
(5) If a meeting of owners was not carried out for reasons on the side of the owners
bonds, though it was properly convened, the participating company is required to
submit a notary instead of the documents referred to in paragraph 4 (b). (c)) to
e) sworn statement the Board of Directors of the company concerned about this
reality, including a description of the grounds on which meetings of owners
did not complete.
§ 10
Control measures for the protection of shareholders
(1) the company is required to submit to the notary
and write from) the general meeting at least one of the foreign participating
the company, whose law does not allow a procedure similar to the application of the law
to call according to the Czech legislation, from which it follows that the General
meeting approved by the shareholders of the companies involved to take advantage of
the procedure for exercising the right to call, or
b) affidavit of members of the participating company
that are not met the prerequisites for the creation of the right to call according to the article. 25
paragraph. 3 Council regulation.
(2) if the participating company to submit the notaries documents referred to
to in paragraph 1 are fulfilled, as for the creation of the right to
call according to art. to in article 25(2). 3 Council regulation, it is the participating company
required to submit a notary instead
and) affirmation of members of the participating company
that they are not known to have been brought on the determination of reasonable
share exchange ratio of shares, the amount of the supplement, where applicable, that the proceedings of such
timely filed the lawsuit was finally stopped, or that all
beneficiaries of the right to bring an action renounced or
(b)) a copy of the actions of a reasonable share exchange ratio of shares, or
the amount of the supplement, which were against the company within a specified period.
(3) if it is apparent from the terms of the merger, as a result of the emergence of European
the company changes the legal position of the shareholders of the companies involved
so, there is an exchange of shares for the shares of a different kind, to change rights
associated with a specific type of shares, to exchange shares admitted to
trading on a regulated market for the shares, which are not accepted,
or exchange of shares whose negotiability is not limited, for the shares with the
převoditelností limited, the company concerned shall submit to the notary
the document or affidavit of Board members
companies concerned about the fact that the company has sufficient cash
devices or liquid assets, which serves as security for the
eligible shareholders, the European company duly fulfills commitment to
the redemption of shares.
§ 11
Check the fulfilment of the other conditions for the granting of a certificate
The participating company is required to submit to the notary
a) final decisions of competent State authorities, where, under the
Czech law a condition of effectiveness of the merger, or affidavit
members of the Board of Directors of the companies involved that the condition
the effectiveness of the merger, the companies involved are not no such final
the decision,
(b)), or document a sworn statement of Directors participating
the company that funds needed for payment of arrears
to call under section 220a para. 5 of the commercial code were passed to the
the person responsible for the payment of arrears,
(c)), or document a sworn statement of Directors participating
companies that need to exchange the paper shares were passed to the
a person who procures this Exchange, if it is to have a successor company
paper shares, and
(d)), or document a sworn statement of Directors participating
the company that the person authorized to conduct the records of dematerialized
stocks have received a notification of the issue of shares needed to exchange for
the shareholders of the companies involved.
§ 12
The effectiveness of the
This Decree shall take effect on the date of its publication.
Minister:
JUDr. German in r.
1) Council Regulation (EC) No 2157/2001 of 8 March 2001. October 2001 on the Statute for a
European company (SE), as amended by Council Regulation (EC) No 885/2004 of
on 26 April. August 2004, by reason of the accession of the Czech Republic,
Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and
Slovakia govern the regulation of the European Parliament and of the Council (EC) No.
2003/2003, Council Regulation (EC) No 1334/2000, (EC) No 2157/2001, (EC) No.
152/2002, (EC) no 1499/2002, (EC) no 1500/2003 and (EC) No 1798/2003,
European Parliament and Council decision No 1719/1999/EC, no.
1720/1999/EC, no 253/2000/EC, no 508/2000/EC, no 1031/2000/EC, no.
163/2001/EC, no 2235/2002/EC, no 291/2003/EC and Council decision No.
1999/382/EC, 2000/821/EC, 2003/17/EC and 2003/893/EC in the field of
free movement of goods, company law, agriculture, taxation,
education and training, culture and audiovisual policy and
of external relations.
2) of Council Directive 2001/86/EC of 8 June 2004. October 2001 supplementing
Statute for a European company with regard to the involvement of employees.
3) Act No. 190/2004 Coll., on the bonds.
