Cross-border restructuring: What does the procedure entail and what are the points to consider?
25-09-2025
Cross-border restructurings (mergers (fusies), demergers (splitsingen) and conversions (omzettingen)) are extensive procedures that not only require intensive coordination with foreign counsels, but also raise many questions about the possibilities and interpretation of Dutch law.
In this second blog in the series on cross-border restructuring, you can read more about what the procedure entails and the points to consider when drafting the documents, such as the language requirement.
Do you need to work with a foreign counsel when restructuring across borders?
As noted in the previous blog, it is important to work closely with a foreign counsel throughout the entire cross-border restructuring process. This is because the cross-border restructuring procedure must also comply with the requirements of foreign law. Even though most EEA member states have also implemented the EU Mobility Directive in their legislation, these requirements differ from those in the Netherlands. For example, the steps to be taken and the timeframes vary slightly from country to country, and in some countries, someone other than a notary (as in the Netherlands) – often in collaboration with the relevant commercial register – is authorised to supervise the cross-border merger.
Wat does the cross-border restructuring procedure entail?
The cross-border restructuring procedure (mergers (fusies), demergers (splitsingen) and conversions (omzettingen)) can be divided into three different phases: the preparatory phase, the decision-making phase and the implementation phase. For the sake of clarity, we will focus in this blog on the cross-border merger procedure.
Below, we provide a brief overview of the various phases under Dutch law.
What do you need to do in the preparatory phase of a cross-border merger?
The preparatory phase is the most extensive phase. During the preparatory phase, the merger proposal is drawn up. The merger proposal must comply with both the requirements of Dutch law and the requirements of the law of the country of the foreign company. Some countries have many other and additional requirements that the merger proposal must meet. Therefore, this requires the necessary coordination and is a time-consuming task.
Also, a written explanation to the merger proposal will be drawn up as well as a notification for the attention of the shareholder(s), the works council (or employees if there is no works council) and creditors. In certain cases (such as a simplified parent-subsidiary merger), the requirement to draw up a written explanation can be waived.
After signing by all directors of the companies involved, the merger proposal with the accompanying appendices, notification and required annual accounts is filed with the commercial register of the Chamber of Commerce. The same documents and the explanatory notes must be made available for inspection at the address of the companies concerned. An advertisement is then placed in the Dutch State Gazette with a reference to the aforementioned filings, which marks the start of the three-month period during which creditors may oppose to the merger. Similar – but nevertheless different – disclosure requirements and periods during which creditors may oppose to the merger apply abroad. Placing an advertisement in the equivalent of the Dutch State Gazette is also not required everywhere.
What are the language requirements for cross-border mergers?
It is very important to note that the merger proposal must always be drawn up in Dutch. In addition, the proposal is often drawn up in the language of the country with which the merger is taking place (if required) and in English, so that the merger proposal can be read by everyone in a uniform language.
The articles of association of the acquiring company, which must be attached to the merger proposal, must also be in Dutch. If the articles of association are only available in another language, they must be translated into Dutch by a sworn translator.
A slightly different language requirement applies to the annual accounts that must be filed with the Chamber of Commerce and at the addresses of the companies together with the merger proposal. In this case, they may be filed in English, French or German in addition to Dutch.
What should you do during the decision-making phase of a cross-border merger?
During the decision-making phase, after the objection period has expired, the decision to merge is taken by the general meeting (or, in certain circumstances, by the board) of the companies involved. Dutch law stipulates that the minutes of the general meeting in which it will be resolved to merge must be drawn up by notarial deed. In practice, this means that the general meeting of the company or companies concerned is often held based on a power of attorney in front of a Dutch notary. In case of an inbound merger, this usually takes place shortly before the execution of the merger deed. In some countries, it is not always necessary to take a resolution, or the shareholder(s) and director(s) must be present – either physically or electronically – at a general meeting. Therefore, also in this phase the necessary arrangements must be made.
What do you need to do in the implementation phase of a cross-border merger?
The implementation phase involves different steps depending on the type of merger. In case of an inbound merger (where a Dutch company is the acquiring company), the Dutch notary draws up and signs the notarial deed, after which the merger will become effective (one day after the deed is executed). In the case of an outbound merger (when a company disappears from the Netherlands), the Dutch notary draws up a certificate on behalf of the Dutch company. This certificate confirms that all formal requirements for the transaction in question have been complied with in the Netherlands. This is necessary in order to effect the restructuring in the foreign Member State.
In addition to all the legal requirements, such a merger procedure takes time for the company itself to reorganise and integrate.
Conclusion
The cross-border restructuring procedure consists of three different phases, of which the preparatory phase is the most extensive. As different countries have slightly different requirements, intensive coordination with foreign counsels is required. Seek sound advice from your Dutch notary regarding specific requirements.
