England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		14 June 2011

Tuesday, 14 June, 2011

MR JUSTICE ROTH:

1. This is an application pursuant to regulation 16 of The Companies (Cross-Border Mergers) Regulations 2007 for the court's approval of a cross-border merger by absorption. The transferee is Wood DIY Limited, an English company. The transferor is Olivero Franco SARL, an Italian company.
2. Mr Barden of counsel, appearing for the joint applicants, has helpfully taken me through the requirements of regulation 16, and I have read the witness statements of Mrs Caterina Iodice filed on behalf of the applicants. On the basis of the evidence there set out, I am satisfied that the requirements under regulation 16(1), insofar as they apply, are satisfied. (I say insofar as they apply, because sub-regulation 16(1)(f) does not apply, as these companies have no employees.) In particular, the relevant orders were made by the English Companies Court on 20 May 2011, and by the Italian Notary Public, being the appropriate competent authority of Italy, on 11 May 2011.
3. There is, under regulation 16(1), a residual discretion in the court as to whether to grant approval. There is no clear authority as to the basis on which that discretion should be exercised, but it is generally considered that it is appropriate to apply the test adopted for a scheme of arrangement, as expressed in In re National Bank [1966] 1 WLR 819 at 829 (approving a statement in Buckley on the Companies Acts):

"…the arrangement is such as an intelligent and honest man, a member of the class concerned and acting in respect of his interest, might reasonably approve."

4. The commercial reasons for this transfer are set out in the evidence of Mrs Iodice. The merger has been approved by the shareholders. There is no objection by the creditors of the Italian company, and I am satisfied that this is a case in which the court, applying the above test, should exercise its discretion to approve the merger. I shall therefore make an order in the terms sought, which include, pursuant to regulation 16(2), fixing the date when the consequences of the cross-border merger shall have effect as 15 July 2011.
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