Trade Holding Pl-UK Ltd, Re [2019] EWHC 2234 (Ch) (16 August 2019)

Trade Holding Pl-UK Ltd, Re [2019] EWHC 2234 (Ch) (16 August 2019)

The court cannot waive the jurisdictional requirement that the pre-merger certificate from the EEA company be dated within six months of the application for sanction. However, as a fresh pre-merger certificate was obtained from the Polish court dated 14 August 2019, the requirements of Regulation 16(1)(d) are satisfied and the court has jurisdiction to sanction the merger.

Citation
[2019] EWHC 2234 (Ch)
Parties
Applicant / Transferee: Trade Holding PL-UK Ltd; Applicant / Transferor: Centrum Handlowe HIT S. A.
Jurisdiction
England and Wales
Judgment Date
16 August 2019
Procedural Posture
Application for Sanction of Cross Border Merger / Judgment on Application for Sanction Under Regulation 16(1) of the Companies (cross Border Merger) Regulations 2007
Outcome
Application granted; cross-border merger sanctioned.
Legal Topics
Cross Border Mergers, Jurisdictional Requirements, Pre Merger Certificates, Implementation of EU Directive 2005/56/ec
Company Law Insolvency Law European Union Law Cross Border Mergers Jurisdictional Requirements Pre Merger Certificates Implementation of EU Directive 2005/56/ec

Case Brief

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Parties

Trade Holding PL-UK Ltd

Applicant / Transferee

Centrum Handlowe HIT S. A.

Applicant / Transferor

Procedural Posture

Application for Sanction of Cross Border Merger / Judgment on Application for Sanction Under Regulation 16(1) of the Companies (cross Border Merger) Regulations 2007

Legal Issues

  1. 1 Whether the court can sanction a cross-border merger where the pre-merger certificate from the EEA company is more than six months old
  2. 2 Whether the court has discretion to waive the six-month requirement for the pre-merger certificate under Regulation 16(1)(d)
  3. 3 Whether Polish law prevents the issuance of a further pre-merger certificate due to res judicata

Ratio Decidendi

The court cannot waive the jurisdictional requirement that the pre-merger certificate from the EEA company be dated within six months of the application for sanction. However, as a fresh pre-merger certificate was obtained from the Polish court dated 14 August 2019, the requirements of Regulation 16(1)(d) are satisfied and the court has jurisdiction to sanction the merger.

Court Disposition

Application granted; cross-border merger sanctioned.

Orders

  • Sanction of the cross-border merger between Trade Holding PL-UK Ltd and Centrum Handlowe HIT S. A. pursuant to Regulation 16(1) of the Companies (Cross-Border Merger) Regulations 2007.