Procedures Guide

The Procedures guide allows entrepreneurs and decision-makers to have a reliable, precise and up to date overview of legal procedures and measures concerning commercial formalities to be undertaken. It is broken down into 6 sections in which you can find information and documentation required for formalities with Registry Offices at the Commercial Courts.

Cross-border merger (absorbing public limited company)

The completed file allowing for the modifying formality of the Trade and Companies Register (RCS) linked to the cross-border merger (the case of the absorbing public limited company) must be filed during the month following this event (Article R. 123-66 of the Commercial Code) with:

  • either at the competent Commercial Formality Centre (CFE);
  • directly at the registry office of the Commercial courtin application of Article R. 123-5 of the Commercial Code (procedure known as "Article 3" of Decree No. 96-650 of 19 July 1996).

Steps preliminary to the filing of the formality

Convene the management or administrative board, as the case may be, in order to establish a joint text of the cross-border merger: a report explaining and justifying the legal and economic aspects of the cross-border merger and explaining the consequences of said merger for the partners, creditors and employees (opinion of the works council or, by default, that of the employee delegates is annexed to said report).

File the joint text of the cross-border merger with the registry office of the Commercial court.

File the minutes of the deliberations of the management or administrative board relating to the order of the joint text of the cross-border merger.

Publish the opinion relating to the joint text of the cross-border merger with a journal authorised to receive legal announcements.

Publish the opinion relating to the joint text of the cross-border merger in the Official Bulletin of Civil and Commercial Notices (BODACC).

Also see our synopsis: opinion relating to the joint text of the cross-border merger (publicised)

Establish and file with the registry office of the commercial court a declaration of conformity relating to all legal instruments and formalities undertaken prior to the realisation of the merger.

Obtain from the clerk of the court of the Commercial court a certification of compliance of the legal instruments and formalities prior to the merger.

Convene an extraordinary general meeting to approve the merger transaction under terms consistent with those of the other companies involved in the transaction.

Obtain from the clerk of the court of the Commercial court or from the notary a certificate of legality of the realisation of the merger.

Record the minutes of this general meeting with the tax authorities.

Publish the definitive realisation of the merger and the dissolution without liquidation of the company in a journal of legal announcements.

Establish a declaration of conformity relating to all legal instruments undertaken with a view towards operation of the merger and affirmation by the companies participating in the merger that the operation was undertaken in conformance with law and regulations.

N.B. : filing with the clerk of the court as well as publication in a journal of legal announcements and in the BODACC of the joint text of the cross-border merger are made at least one month before the date of the general meeting called to decide on the operation.

LEGAL INSTRUMENTS TO FILE BY ANNEX AT THE RCS TOWARDS FOR THE OBTAINING OF A CERFITICATION OF CONFORMITY ISSUED BY THE CLERK OF THE COURT

A copy of the joint text of cross-border merger, dated and signed by the parties.

A copy of the minutes of the deliberations of the administrative or management board, as the case may be, relating to the order of the text of the joint text of cross-border merger, dated and certified as complying by the legal representative.

A copy of the declaration of conformity relating to all legal instruments and formalities prior to the realisation of the merger, dated and signed by the parties. In this declaration, the participating companies affirm that the legal instruments and the formalities preliminary to the merger were undertaken in compliance with law and regulations.

ISSUANCE OF THE CERTIFICATION OF CONFORMITY OF THE LEGAL INSTRUMENTS AND FORMALITIES PRELIMINARY TO THE CROSS-BORDER MERGER

After verification of the declaration of conformity, the clerk of the court issues the certification of conformity of legal instruments preliminary to the merger, in compliance with Article L. 236-29 of the Commercial Code.

This certification specifies if a procedure of analysis and of modification of the report of exchange of title or of compensation of minority partners is in process.

The clerk of the court has eight days from the filing of the declaration of conformity to deliver the certification of conformity.

INSPECTION OF THE LEGALITY OF THE CROSS-BORDER MERGER

Each company participating in the cross-border merged company is to provide to the clerk of the court or to the notary responsible for inspection of legality a file containing the following documents:

  • the joint text of the cross-border merger;
  • the articles of association of the company resulting from the cross-border merger ;
  • the certification of conformity issued by the clerk of the court dated within the prior six months;
  • a copy of the certification of publication in a journal of legal announcements of the joint text of the cross-border merger;
  • a copy of the BODACC notice relating to the joint text of the cross-border merger;
  • a document certifying that the merging companies have approved the joint text of merger under the same terms and that the terms and conditions relating to the participation of employees were established in compliance with Title VII of Book VII of the second part of the Labour Code.

Upon issuance of the inspection of the legality of the realisation of the merger, the clerk of the court or the notary will make available a certificate of legality. This inspection is accomplished within fifteen days from the date of receipt of all of the above-referenced documents.

Documents to be attached to the file

LEGAL INSTRUMENTS TO BE PRODUCED BY ANNEX TO THE RCS

A copy of the minutes of the extraordinary general meeting which approved the cross-border merger, certified the definitive realisation of the transaction, certified as complying by the legal representative and stamped and recorded by the tax authorities;

if applicable, a copy of the current by-laws, dated and certified by the legal representative;

a copy of the deliberations of the board of directors, the supervisory board or the executive board, as the case may be, naming new directors, certified as complying by the legal representative;

a copy of the declaration of conformity, setting forth all legal instruments and formalities in preparation for the merger, dated and signed by the parties;

a certified conforming copy of the power granted to the persons signing the declaration of conformity for the French company.

SUPPORTING DOCUMENTS

The duly completed and signed M2 printed forms.

An original power of attorney from the legal representative if he or she has not signed the M2 printed forms.

A certificate of the insertion of the notice in a journal of legal announcements.

An official Trade and Companies Register extract for all companies having participated in the merger transaction, in original, and of a date of less than three months, accompanied, if applicable, by a certified complying translation.

An original copy of the certification of conformity of the legal instruments and formalities preliminary to the merger, issued by the clerk of the court.

The certificate of legality of the realisation of the merger, in original, issued by the clerk of the court or notary.

IN THE EVENT OF DESIGNATION OF NEW DIRECTORS OR CERTIFIED PUBLIC ACCOUNTANTS:

FOR DIRECTORS, MEMBERS OF THE EXECUTIVE COMMITTEE AND MEMBERS OF THE SUPERVISORY COMMITTE, THE PRESIDENT AND VICE PRESIDENT OF THE EXECUTIVE COMMITTE, INDIVIDUALS, AS WELL AS FOR THE PRESIDENT OF THE BOARD OF DIRECTORS NOT ASSUMING MANAGEMENT OF THE COMPANY

A copy of a form of identification: copy of a passport or of a valid national identity card, or a copy of a valid, double-sided resident permit, as applicable. The status indicated on the residence permit must allow the holder to register with the Trade and Companies Register (RCS).

An original copy of a statement issued on honour relating to the absence of conviction dated and signed by the concerned party which will be verified by the Criminal records by the judge appointed to the Trade and Companies Register.

A certification of family relationship of the interests parties (name and first names of the parents), unless the family relationship is indicated in an already produced document.

FOR MANAGERS OF LEGAL ENTITES

An official Trade and Companies Register extract, in original and dating within the last three months if the legal entity is registered, or any other official document justifying its legal existence if not registered at the RCS (accompanied, if applicable, by a certified conforming translation).

For the permanent representative, production of the same elements as previously stated for individual managers.

Also see our practical synopsis: declaration to the RCS by the representative of the directing legal entity

FOR A PERSON ASSUMING GENERAL MANAGEMENT (DIRECTOR GENERAL), FOR THE EXECUTIVE MANAGER (AS APPLICABLE), THE SOLE DIRECTOR GENERAL AND THE PRESIDENT OF THE EXECUTIVE COMMITTEE

A copy of a form of identification: copy of a passport or of a valid national identity card, or a copy of a valid, double-sided resident permit, as applicable. The status indicated on the residence permit must allow the holder to register with the Trade and Companies Register (RCS).

An original copy of a sworn statement of non-conviction dated and signed by the interested party which will be verified by the judge appointed to the Trade and Companies Register.

A certificate of family relationship (full names of parents) unless the family relationship appears in a document already provided.

FOR THE AUDITORS

Provide the acceptance letter of their appointment. Provide a supporting document of their registration on the official list of auditors if it has not yet been published.

N.B. : NO DOCUMENTARY EVIDENCE IS REQUIRED IF THE PERSON IS ALREADY INDICATED IN THE OFFICIAL RCS OF THE ABSORBING COMPANY

Prices

ATTACH A CHEQUE FOR 205.50 EUROS

Cheques must be made payable to the relevant GREFFE DU TRIBUNAL DE COMMERCE, and attached to the application.

Cost breakdown for this formality

Registry office fees (including filing fees: €7.80

VAT

INPI

BODACC

€65.00

€13.00

€11.80

€115.70

Fees of the registry office: postage fees of extracts included. INPI: National institute of industrial property (paid by the registry office). BODACC: Bulletin Officiel des Annonces Civiles et Commerciales (Official Journal of Civil and Commercial Announcements) (paid by the registry office).