Comparative legal analysis of processes of merger and accession of economic organizations in national and foreign legislation (EU, UK, USA)

Abstract

Taking into account Provisions of the Association Agreement between Ukraine and the EU in the field of legislation on companies and corporate governance, which leads to the regulation of the activities of corporations, in particular the regulation of the processes of reorganization of economic organizations at the national level to the requirements of international standards and a gradual rapprochement with the rules and recommendations of the EU, a comparative legal research of the process of merger and accession of economic organizations today seems necessary and actual. It is distinguished, general and distinctive qualifying signs of merger and accession of economic organizations, which will be used to improve the concepts provided to these processes. It is substantiated that mergers and accessions are independent forms of reorganization of economic organizations. The comparative legal analysis of legislation of Ukraine with the legislation of the EU, the Member States of the EU (Belgium, Germany, France), Great Britain and the USA on the issues of reorganization in the form of merger and accession is provided and the following main conclusions are made: in the legislation of the EU and in the legislation of the EU Member States there are two ways of merging: (1) “merger by acquisition”/ “merger to an existing company” and (2) “merger by the formation of a new company”/ “merger to a new company”, which in its essence corresponds to such domestic forms of reorganization as “accession” and “merger”, accordingly; in the legislation of the EU, Great Britain, as well as EU member states, such a category as “accession” is not allocated as an independent legal form of reorganization of the company, but is considered as a kind of “merger” category; in US Law, merger processes of two or more corporations are indicated by terms such as “merger” and “consolidation”; US Tax Law applies the concept of “corporate reorganization”, which has 7 types of reorganizations (A-G), among which there are one of the types – a type A “statutory merger or consolidation”, which in its essence corresponds to the processes of merger and accession, which is inherent in domestic legislation; in the legislation of foreign countries, the concepts of “merger”, “consolidation”, “amalgamation”, “acquisition”, “takeover” are similar to each other; in economic essence relate to the forms of business consolidation; act as an instrument to increase the competitiveness of the company; from a legal point of view differ from each other – according to the procedure; in the legislation and practice of foreign countries, the variety of processes such as “merger”, “consolidation”, “amalgamation”, “acquisition”, “takeover” is covered by a single economic and legal phenomenon, as “Merger and Acquisition” or M&A, which by the legal nature of the concluded agreements is much wider than such domestic forms of reorganization of economic organizations as “merger” and “accession” and is not always accompanied by the implementation of reorganization process