Considerations Regarding The Right To Withdraw Of The Stakeholders In The Case Of Fusion Of Societies. Comparative Presentation

AuthorSilvia Lucia Cristea, Viorel Banulescu
Pages107-112
CONSIDERATIONS REGARDING THE RIGHT TO WITHDRAW OF THE
STAKEHOLDERS IN THE CASE OF FUSION OF SOCIETIES.
COMPARATIVE PRESENTATION
Professor Silvia Lucia CRISTEA1
PhD. student Viorel BĂNULESCU2
Abstract
The right to withdraw is a measure of protecting the associate/shareholder of the societies, regulated by Law
no. 31/1990, which ceases to ex ist a s a result o f the fusion. Th e present article analyses the exertion of the right to
withdraw from the Romanian Law, but also in comparative law. Regarding the Romanian regulation of th e matt er, it
presents in parallel the case of capital societies and those of persons, emphasizing th e differences between them, from
the point of view of the effects of the right to withdraw.
Keywords: the right to withdraw, fusion, associate/shareholder, exertion of the right to withdraw .
JEL Classification: K22, K30
1. Preliminary considerations
The protection of shareholders, in the vision of the European Union legislation, is oriented
around two axes: on one hand, the informing and participation of the shareholders in taking decisions
regarding the fusion, and on the other hand, the responsibility of certain factors involved in the
process of fusion in the case of production of errors.
The operation of modifying the social capital subsequent to the fusion can affect the rights of
the associates (shareholders) of the participant company, such that the insurance of an adequate
protection for these is indispensable3. The concern for the protection of the shareholders against the
possible negative effects that the merger might have on them has materialized through the Directive
75/855/E.E.C. regarding the merger of joint stock companies, from October 9th 1978, also known as
„the third directive”, and, afterwards, through the Directive 2011/35/E.U.
The purpose of these directives was to provide a unitary means of monitoring the merger of
companies’ subject to the law of a Member State and, at the same time, to harmonize the provisions
relating to this operation at European level so as to ensure an equivalent level of protection for the
shareholders, creditors and employees of the merging companies. The main risk for associates of the
companies involved in the merger is the reduction of their patrimonial and non-patrimonial rights as
a result of the decrease in their shareholdings in the capital of the company. In order to ensure the
protection of these rights, the value of the shares allocated to the company's shareholders in the
acquiring company should be equal to that of the shares they held in the dissolved company before
the merger took place. The merger will affect the rights of the acquiring company's shareholders if
the shares of the absorbed company are over-rated or those of the acquiring company are
underestimated.
2. The right to withdraw of the associate/shareholder. General characteristics
When major decisions are taken in the life of the company, the associates or shareholders who
have voted against have the right to withdraw from it. And one of the most important decisions is the
merger of society. Thus, if the General Meeting decides to merge the company, the main mechanism
of protection of the shareholders is to identify the conditions for exercising the right of withdrawal.
1 Silvia Lucia Cristea Department of Law, Bucharest University of Economic Studies, Romania, silvia_drept@yahoo.com.
2 Viorel Bănulescu - Doctoral School, Bucharest University of Economic Studies, Romania, viorel_banulescu@yahoo.co.uk.
3 Bejan F., Fuziunea și divizarea societăților comerciale, PhD. thesis, Bucharest, 2013, p. 43.

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