Cross-Border Mergers: The Danish Experience

Traditionally, Danish company law has been open to international relations and cross-border activities. However, cross-border mergers were not possible prior to the development at EU level initiated by the CJEU (C-411/03) and the adoption in 2004 of the 10th Company Law Directive on Cross-border Mergers (2005/56/EC). The Danish implementation of the Directive includes Danish public limited companies (A/S) as well as private limited companies (ApS). Following a brief presentation of the state of Danish law prior to implementation, the chapter discusses the implementation of the Directive into the Danish companies and the Danish experience in relation to both types of companies. The discussion opens with some remarks on the regulatory design of the Directive’s implementing provisions and the scope of the Danish rules. The following discussion on the substantial rules focuses mainly on the Danish rules that provide protection for creditors and minority shareholders in the non-surviving limited company. The Danish provisions on cross-border mergers make up the basis for the Danish provision on transfer of the seat, and consequently the chapter closes with a short presentation of the Danish rules on cross-border relocation of the registered office and their links with the Directive. In the concluding remarks it is mentioned that cross-border mergers—as well as transfer of the seat—seem to play a relatively small role in cross-border restructuring in Denmark despite a seemingly favorable regulatory framework.