11 Colum. J. Eur. L. 167 (2004)
Mathias M Siems. Associate Professor, Riga Graduate School of Law, Latvia; Privatdozent, Heinrich-Heine-University Dusseldorf, Germany, 2004; LL.M., University of Edinburgh, UK, 2001; PhD, Ludwig-Maximilians-University Munich, Germany, 2000.
Mergers are becoming topical again. In the first quarter of 2004 the value of mergers and acquisitions rose by 22% in Europe and by 79% world wide.Increasingly, these mergers are cross-border mergers. Yet, in many legal systems cross-border mergers are not explicitly regulated. For the European Union this will soon change. The European Commission proposed a draft Directive on cross-border mergers in November 2003, and since its controversial aspects, which have hindered previous drafts for three decades, have now been resolved, it is expected that the European Parliament and the European Council will also approve it. Although the freedom of establishment (Art. 43, 48 of the EC Treaty) is the basis of the directive, this directive is not only interesting for European lawyers. The directive addresses general problems of cross-border mergers and could therefore also become an international model for the regulation of mergers.
The first part of this article outlines possible solutions for the conflict of laws that can arise in the context of mergers. The second part deals with the existing law on cross-border mergers in the Member States of the European. Union, which, in many situations, can make cross-border mergers difficult or even impossible. As the new European directive is therefore necessary, its history, its applicability, its basic regulatory approach and its compromise on employee co-determination are discussed in the third part. The fourth part addresses the likely impact of the directive, in particular its effect on regulatory competition. Moreover, possible alternatives and obstacles to the new directive are examined. Finally, I will return to the question of how far and in what ways the new European law could be viewed as an international model.