The merger is the acquisition of the shares of the acquiring company in return for the assets of the transferred commercial company by the shareholders of the transferred company, without the need for another transaction. Company mergers operating in different countries are cross-border mergers.
Mergers are a way for companies that have economic problems and want to overcome the problems, as well as economically strong companies can prefer for reasons such as productivity, tax incentives, etc. The main benefit in mergers is one plus one makes three. Company mergers that provide many benefits such as collective purchasing opportunities, ease of organization, increase in production and reduction of costs provide great support in overcoming economic crises. It is possible to evaluate the merger of Lloyds TSB and HBOS in this regard.
Companies want to continue their activities in the foreign market in a world that is globalized and its borders are increasingly blurred. In this context, it is more reasonable to take over a company existing in that market instead of establishing a new company. Capital liberalization started in the 1980s and with globalization company mergers became an important external growth method. When internal growth processes do not give results or it is understood that they will take place in a very long time; Companies choose the path of external growth for reasons such as reducing costs, making more profits, minimizing risks, making technological transfers and many other reasons.
The basic principles regarding the law applicable to company mergers in Turkish Law are the determination of the foreign element and the nationality of the companies. However, there is no detailed regulation in our law. For the disputes arising from international company mergers and all kinds of legal transactions, MÖHUK Art. 9/4 is applied. The article provision is as follows. “The rights and capacity to acts of legal persons or real persons or groups of property are subject to the administrative center law in their status. Only if the actual center of administration is in Turkey, Turkish law can be applicable.”
Six directives written on this subject in EU law are gathered in the Directive 2017/1132 / EU. Cross-border mergers are also regulated in this directive. The directive contains detailed information on mergers. Swiss Law, on the other hand, regulates cross-border company mergers in detail. The merger provisions included in articles 150 and the following articles of the Swiss International Private Law Code include all types of partnerships and establishments of civil, commercial or public type, with or without legal personality. A detailed regulation is needed for cross-border company mergers in our country.
As one of the consequences of globalization, trade in the international arena leads all states that want to play an active role in the world market to shape their laws in line with this purpose. Cross-border company mergers are also one of the tools that create great effects in order to play an active role in the world market. Especially international companies that will operate in economically developing countries will benefit greatly for the economic development of the country and will pave the way to open up to the world market and play an active role in the market. The freedom of cross-border company mergers within the borders of the EU has been made possible and facilitated by ATAD decisions. Economically developing countries will also be able to take part in the international market by regulating their legislations in this direction and making them uniform and facilitating mergers