7.4.6.5 Opposition by creditors

Within one month following the announcement in the national newspaper, a creditor of a merging company may oppose the draft terms of the cross-border merger. Opposition must occur by filing a request to that effect with the competent District Court on the ground that the creditor has requested but has not received security for the payment of his claim against the merging company concerned from any merging company.1 No security needs to be granted if the creditor already holds sufficient security or if the financial position of the acquiring company after the merger does not provide less security for the payment of his claim than is the case before the merger.

Further to the appraisal right, the indemnification of shareholders may have a major influence on the estate of the disappearing company, taking into consideration that at maximum one third of the shareholders of the BV may qualify for the appraisal right. The indemnification may be a considerable drain on the resources of the disappearing BV. However, at this stage of the cross-border merger process, it will not be clear whether and how many shareholders of the disappearing BV will oppose the proposal for merger. For creditors it will be very difficult to predict the impact of the appraisal right beforehand. As said, the exchange ratio does not have to be related to the amount of indemnification and the auditor 's certificate only assumes a bandwidth. The actual amount of indemnification could even fall outside this bandwidth. Therefore, creditors may have sound reasons to oppose the merger.2

The merger can only take place if during the period of one month no such opposition has been filed or of any such opposition has been withdrawn by the creditor or has been lifted by the competent District Court. If this is not the case, the civil-law notary is not allowed to issue the pre-merger certificate.