Structure and process, legal regulations and consents
How are acquisitions and disposals of businesses, businesses or private assets structured in your jurisdiction? What can a typical transaction process involve and how long does it typically take?
Acquisitions and disposals can be structured either as asset transactions or as equity transactions, depending on the interest of the potential buyer or the intention of the seller, as well as structuring issues. fiscal. A business transfer can also be carried out by means of a social transformation (merger, sale or demerger), which results in the universal succession of the company transferred by the automatic assignee.
The timing is generally dependent on due diligence and receipt of all necessary regulatory approvals. In the case of business transformations, certain legal deadlines must also be observed.
What laws govern private acquisitions and disposals in your jurisdiction? Should the acquisition of shares in a company, business or assets be governed by local law?
There is no special legislation on M&A activity in Greece; however, with regard to merger and acquisition transactions, the following laws generally apply:
- the relevant provisions of the Civil Code for all contractual matters, if the parties choose Greek law to govern the agreement;
- Law 4548/2018 on public limited companies, Law 4072/2012 on private companies and Law 3190/1955 on public limited companies for the social aspects of transactions;
- Competition Law 3959/2011 and EC Merger Regulation (Council Regulation (EC) No 139/2004), as well as all other implementing regulations and directives, for merger control matters;
- the law on business transformations 4601/2019 for business transformations;
- the Income Tax Code (Law 4172/2013), which provides for tax incentives in certain cases of mergers and acquisitions; and
- other specific provisions of civil, commercial, criminal and fiscal law.
In accordance with Article 3 of Regulation (EC) No 593/2008 on the law applicable to contractual obligations (the Rome I Regulation), the parties are free to choose the law applicable to their agreement. To the extent that the agreement refers to rights in rem in assets, including shares, which are considered to be located in Greece, these rights will be governed by Greek law.
What legal title to the shares of a company, business or asset does a buyer acquire? Is this legal title prescribed by law or can the level of assurance be negotiated by a buyer? Does legal title to shares in a company, business or assets automatically transfer? Is there a difference between legal title and beneficiary title?
There is no distinction in Greek law between legal title and beneficiary title. Merger and acquisition transactions in Greece refer to the acquisition of ownership over the shares or assets sold. In the event of a business transformation where the entity or business undergoing transformation is absorbed by the transferee, the transfer of the business and the underlying assets, including licenses, is carried out as of right.
With respect specifically to the acquisition or disposal of shares in a company, when there are multiple sellers, does everyone have to agree to sell in order for the buyer to acquire all of the shares? How else can minority sellers who refuse to sell be ousted or dragged away by a buyer?
In principle, each seller should agree to sell with the buyer to transfer his shares. In accordance with corporate law, drag rights may be included in the articles of the company, which may result in a forced sale by minority shareholders of their shares.
In addition, when the buyer acquires at least 95 percent of the capital of a limited liability company, the buyer has the right to evict the minority shareholders (by paying them fair compensation, the amount of which is determined by the court. ) within a period of five years from the date on which the buyer reaches the 95% threshold.
Exclusion of assets or liabilities
With regard to the specific acquisition or disposal of a business, are there any assets or liabilities that cannot be excluded from the transaction by agreement between the parties? Are there any consents generally required to be obtained or notifications to be made in order to effect the transfer of assets or liabilities as part of a business transfer?
In the case of a business transfer (that is to say the sale of a set of assets constituting a business) which is considered a “special succession” (under the Civil Code, by assigning each rights and by assuming each of the liabilities of a company), the transferee will automatically acquire all the obligations relating to the specific company in accordance with article 479 of the Civil Code.
Article 479 provides for the joint and several liability of the seller and the buyer for debts which relate to the specific business and which have been created up to the date of the transfer. The buyer’s liability is limited to the value of the transferred goods, while the seller’s liability is unlimited. The parties cannot contractually agree to limit this liability in advance. Assets may be excluded from transfer in business transfers by special inheritance.
In the event of a transfer of shares, the seller’s liability cannot be contractually limited qualitatively and quantitatively in accordance with the provisions of the Civil Code except for simple fault. Assets can be contractually excluded from the transferred activity.
In the case of a business transfer carried out by universal succession, the acquiring company or the new company, as the case may be, will automatically acquire all the assets and liabilities relating to the specific company, in accordance with the relevant provisions of the Law. business transformation. Article 479 of the Civil Code does not apply.
With regard to the required consents, in the event of social transformations, if a public limited company or a European company is involved or created following the transformation that has taken place, the approval of the competent public authority for carrying out the social transformation is obligatory. All administrative licenses related to the underlying activity are automatically transferred as of right.
For the transformation of the company to be completed, the consent of an increased majority of all categories of shareholders is required as their rights are affected by the transformation. Creditors also have the right to object, but remedies may be offered in return for completing the transformation. Relevant regulatory approvals for the acquisition of control (for example, authorization for merger control if the relevant thresholds are triggered or, in the case of regulated entities, any relevant approvals) must also be obtained prior to the closing of the transaction. , to the extent applicable.
In the case of a business transfer by special inheritance, the consents must be requested by the creditors before assuming the obligations relating thereto, and notification must be made to the holders of the rights assigned by virtue thereof. In addition, new administrative licenses (to the extent applicable and necessary for the transferred business) should be obtained.
In a sale of shares, the issuance of new administrative authorizations is in principle not necessary; however, much of this depends on the specific characteristics of the given license and whether there are change of control provisions in the license. Relevant regulatory approvals for the acquisition or change of control (for example, authorization for merger control if the relevant thresholds are triggered or, in the case of regulated entities, any relevant approvals) must also be obtained prior to closing. of the transaction, insofar as in force.
Are there any legal, regulatory or governmental restrictions on the transfer of shares of a company, business or assets in your jurisdiction? Do transactions in particular sectors require the consent of specific regulators or a government agency? Are transactions generally subject to public or national interest considerations?
Prior authorization must be obtained to acquire stakes in:
- credit and financial institutions by the Bank of Greece or, in the case of one of the four Greek systemic banks, by the European Central Bank;
- insurance companies by the Bank of Greece;
- investment firms or other entities supervised by the Hellenic Capital Market Commission;
- gaming companies by the Hellenic Gaming Commission; and
- certain energy companies by the Energy Regulatory Authority.
In principle, there are no provisions or restrictions on foreign ownership in Greece. Cross-border mergers between limited liability companies governed by EU law are governed by Directive 2005/56 / EC of the European Parliament and of the Council, which was transposed into Greek law by Law 3777/2009.
In view of the absence of specific relevant provisions, mergers between a Greek legal person and an entity governed by the law of a non-EU member state will also be accepted, with application by analogy of article 45 of the Code. companies on minority shareholders’ right to ask the limited company to buy its shares. However, Article 25 (1) of Law 1892/1990 prohibits:
- any inter vivos transaction (that is to say between living persons) by which a natural or legal person of nationality or registered office outside the European Union or the European Free Trade Association is granted a real or personal right to real estate in border areas; and
- any transfer of shares or company shares or any change of shareholders or partners of any type of company that owns real estate in these areas.
Finally, certain sectors may be subject to foreign ownership restrictions (for example, the provisions governing the gas market applied to the privatization of Hellenic Gas Transmission System Operator SA as an independent Greek gas transmission operator).
Are other third party consents generally required?
No, unless there is a provision to this effect in the articles of association of the target company.
In the event of a transformation of companies, the approval by an increased majority of each category of shareholders of the partnerships limited by shares concerned is required insofar as their rights are affected by the transformation.
Do regulatory filings need to be made or do registration fees (or other official fees) need to be paid to acquire shares in a company, business, or assets in your jurisdiction?
Regulatory filings must be made insofar as certain thresholds are triggered (for example, in the case of a merger control authorization for the acquisition of control) or certain percentages of holdings are acquired (in the case of entities specific regulations) before completion. Fees may be paid to certain authorities, such as the Hellenic Competition Commission, for examining cases submitted to them.
Declaration date of the law
Indicate the date on which the above information is correct.
September 27, 2020.