All of French Company Law: ordinary law of companies and specific regime for different types of companies

Company Law (en cours)

A cross-border spin-off involves at least two of the companies concerned by the operation being from different Member States. The regime for cross-border spin-offs, initially defined by reference to the provisions applicable to mergers, was reformed by Ordinance No 2023-393 of 24 May 2023  which dedicates a specific subsection to it in Articles L. 236-46 and L. 236-47 of the Commercial Code.
Artic …

Regime and procedure

A cross-border spin-off involves at least two of the companies concerned by the operation being from different Member States. The regime for cross-border spin-offs, initially defined by reference to the provisions applicable to mergers, was reformed by Ordinance No 2023-393 of 24 May 2023  which dedicates a specific subsection to it in Articles L. 236-46 and L. 236-47 of the Commercial Code.

Article L. 236-46 provides that a cross-border spin-off is the operation by which a joint stock company or a limited liability company with its registered office in France participates in a spin-off with one or more capital companies having one of the forms listed in Annex II of Directive No 2017/1132 of 14 June 2017 .

Cross-border spin-offs are subject to Articles L. 236-46 and L. 236-47, the provisions relating to cross-border mergers (Articles L. 236-31 to L. 236-45), as well as those relating to internal spin-offs (Articles L. 236-18 to L. 236-22) that are not contrary to them. In particular, the second paragraph of Article L. 236-22, which concerns the exemption from reports in the case of spin-offs benefiting new companies and compliance with the rule of proportionality, is not applicable to cross-border spin-offs.

Furthermore, Article L. 236-47 provides that the assets and liabilities not expressly allocated by the draft cross-border spin-off to one or the other of the companies participating in the operation must be distributed, when the interpretation of the draft spin-off does not allow for a decision on their allocation, in proportion to the net assets allocated to each of the beneficiary companies.

The procedure applicable to such operations begins in the same way as for internal spin-offs. The governing body of the spun-off company must first adopt a spin-off plan before preparing a report for the shareholders and employees, often supplemented by the auditor's report. Once the assembly decides on the adoption of the plan, the authority of the Member State of the spun-off company conducts a legality check of the spin-off before issuing a preliminary certificate, which is sent to the authorities of the Member States of the beneficiary companies. If the spin-off plan complies with their national law, they approve the spin-off, which takes effect after the required publicity formalities are completed. As with cross-border mergers, guarantees to protect creditors are put in place. Without challenging the validity of the operation, they can indeed bring a Paulian action to have it declared unenforceable and initiate enforceable or protective actions on the assets transferred to the newly formed company .

Ord. No 2023-393 of 24 May 2023, reforming the regime of mergers, spin-offs, partial asset contributions, and cross-border operations of commercial companies, JO 25 May 2023.

Dir. No 2017/1132 of 14 June 2017 on certain aspects of company law, OJ L 169 of 30 June 2017, 46.

CJEU, 30 January 2020, LawLex202200010810JBJ.

Company Law (en cours)

254. Regime and procedure

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254. Regime and procedure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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