Andra Rubene made a presentation at the Conference “Current commercial law issues in the European Union”

On 18 May 2011 Andra Rubene participated in the conference of law scientists and practitioners on the commercial law in the European Union organised by the Ministry of Justice in cooperation with the Riga Graduate School of Law.

Andra Rubene provided an overview on the types of moving the registered address within the scope of the EU law.

The attorney at law analysed the respective EU case law – cases Daily Mail and General Trust, Centros, Überseering, Inspire Art, SEVIC Systems and Cartesio. Andra Rubene stated in the aforementioned cases the ECJ had concluded that due to the fact that the EU law does not provided for a unified definition on the joining factor prescribing the law applicable to companies, such factor is determined by the laws applicable in the member states. In order to determine unified principles for cross-border movement of the registered address within the EU, a directive or a convention of the member states would be necessary for harmonisation of the laws of the member states. However, since such laws and regulations have not yet been developed, there are differences in the legal regulations among the member states. Due to such differences and due to lack of the necessary laws and regulations harmonising the differences the articles of the Treaty on the European Community do not contain prohibition of the laws of the member states denying the rights of the companies moving their head office to another country concurrently maintaining its registration in accordance with the laws of the country of registration.

The attorney at law concurrently pointed at the interruption in the work at the EU legislation initiative with respect to the cross-border movement of the registered address of a company.

Andra Rubene has concluded that until development of a special regulatory enactment on the cross-border movement of the registered address of a company:

  • The companies subject to the laws of the member states may in principle move their head office, while the movement of the registered address is not possible → Article 49 of the Treaty on the Functioning of the European Union (Article 43 of the EC Treaty) and Article 54 of the Treaty on the Functioning of the European Union (Article 48of the EC Treaty) do not fully resolve that situation;
  • Companies – EEG (European Economic Interest Grouping), SE (Societas Europaea) and SCE (Societas Cooperativa Europaea), subject to the EU regulations may move their registered address in accordance with the respective regulations;
  • Companies – SPE (Societas Privata Europaea), which are intended to be subjected to the EU regulation, will be able to move their registered address in accordance with the respective regulation;
  • (implicitly) Companies of other types may be moved by liquidating the current company and establishing a new one;
  • (implicitly) SIA, AS and others may be moved in principle by establishing a new company in the host country, which will be merged with the existing company by way of cross-border merger;
  • (implicitly) AS, which has had a daughter company in another member state for a period of at least 2 years and has a share capital adequate for SE, as well as which has complied also with other requirements, may be moved by transforming the company into SE, which will thereafter move the registered address abroad.

Please see the presentation here (available in Latvian language).

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Fladgate advises Esporta on £77m sale to Virgin Active Health

Fladgate LLP has advised on the property aspects of the disposal of the Esporta Health Clubs’ (Esporta) business to Virgin Active Health (Virgin Active) for £77.6m.  The sale is subject to the approval of the Office of Fair Trading.  Following completion of the deal Esporta may seek to sell the freehold racket club sites, which Virgin Active is leasing for £13.1m a year, and which are expected to be worth about £200m.

Fladgate previously advised on Esporta’s disposals to Virgin Active in 2004 and 2005.

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TARK GRUNTE SUTKIENE Tallinn office advised Webmedia on acquisition of Finnish software company CCC

Estonia’s largest software developer Webmedia purchased a 97 per cent stake in the Finnish software company CCC Corporation. CCC is a medium-sized Finnish company founded in 1985. The last year’s turnover of CCC amounted to 22 million euros and the company employs nearly 200 professionals. The consolidated company is the biggest IT firm in the Baltics and among the 25 largest in the Scandinavian countries. Webmedia will continue its operations in Finland under the name CCC, and the acquisition also means an expansion in the firm’s activities in Russia. Webmedia has been active on the Russian market since last spring and, by the end of this year, its turnover in Russia is expected to reach 2 to 4 million euros.

The transaction was partly financed by equity and partly by a bank loan. TARK GRUNTE SUTKIENE partner Risto Vahimets and senior associate Andres Siigur assisted Webmedia with both conducting the purchase transaction and arranging a loan for the transaction.

Please read Webmedia’s press release HERE.


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Social media and the workplace: don’t get caught in the web!

Two recent employment tribunal decisions highlight the importance and usefulness of a business having a properly drafted policy on the use of social media by their employees.
In Preece v JD Wetherspoons plc ET2104806/10, the tribunal found that a pub manager was fairly dismissed for gross misconduct after she made inappropriate comments on Facebook about two of her customers, who had verbally abused and threatened her. The manager was found to be in breach of the employer’s e-mail and internet policy, which specifically referred to employees’ use of social media (including Facebook) while at work.
In Gosden v Lifeline Project Ltd ET/2802731/2009, the tribunal held that an employee was dismissed fairly for sending an offensive e-mail from his home computer to his colleague’s home computer. No privacy attached to the e-mail as it was a chain e-mail asking recipients to pass it on. The employer was entitled to treat his actions as gross misconduct justifying the dismissal.
With the ever increasing use and awareness of social media it is important for businesses to adopt a social media policy clearly setting out the standards expected of employees when using such sites, whether for personal or business reasons. Our employment team have now prepared a style social media policy which will assist employers in monitoring and responding to the use employees make of social media which will help to ensure that there are no implications for, or risks created to, an organisation’s business interests.
If you would like any further information on this matter, or are interested in obtaining our social media policy, please contact Stephen Connolly on 0141 227 6090.
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Going for broke

Adjudication can help companies’ cashflow, but what happens in cases of insolvency when there is no cash to flow?

There’s no point winning an adjudication if the other party can’t be made to comply with the decision. The robust approach taken by the Technology and Construction Court to enforcing adjudicators’ decisions has made it a powerful tool to help companies protect their cashflow – but only if they are still solvent. Although adjudication is a quick, “rough and ready” procedure, the court has enforced adjudicators’ decisions by granting summary judgment. Judges have felt able to do this because although adjudicators’ decisions are binding, they are not final, so a losing party can begin proceedings for final determination of the dispute.

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Presentation to FAST Programme, National Franchise Centre at Limerick Institute of Technology (17.5.2011)

We were delighted that Keith Burke a solicitor and trademark agent in our Business Department was invited to make presentations to the Franchise Acceleration Start Up Training (FAST) Programme, National Franchise Centre at Limerick Institute of Technology, O’Connell Street Campus on 11th and 16th May 2010.

Keith presented on a number of issues including consumer law and key issues arising in franchise agreements.

The National Franchise Centre is Europe’s first centre of excellence for franchise development. Six month training programmes are provided on franchise opportunities in Ireland and elsewhere by the National Franchise Centre. The FAST Programme was launched by Limerick Institute of Technology in partnership with Limerick Chamber of Commerce.

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TARK GRUNTE SUTKIENE Tallinn office advised Norwegian MollerGruppen in acquisition of local Volkswagen dealer Saksa Auto Group

TARK GRUNTE SUTKIENE Tallinn office advised Norwegian MollerGruppen, the largest Norwegian car dealership, in acquisition of Estonian car dealership Saksa Auto. The acquisition between Eesti Talleks AS and Møller Auto Baltic AS was closed in the beginning of May, following the approval of transaction by Estonian Competition Board. Saksa Auto AS is the local Volkswagen dealer, the turnover of Saksa Auto Group in 2010 was EUR 32 million and the group employs 200 people The team, led by senior associate Kuldar-Jaan Torkoff advised on all stages of the acquisition, from carrying out the legal due diligence to signing and closing of the transaction.


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Employment law seminar- an invitation!

As highlighted in a previous blog, on 6th April 2011 the government introduced legislation which saw the abolition of the default retirement age and the related stautory retirement procedure. This means that employers can no longer automatically or lawfully retire employees simply on the basis that they have reached 65 years of age.
On Friday 20th May, we will be hosting a seminar to discuss the full implications of these changes for employers when dealing with the retirement of employees and succession planning in the workplace. The seminar will focus on:
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The three little words that every lawyer wants to hear

No, we don’t expect our clients to tell us they love us!  But we do love it when clients use “subject to contract” in their negotiations.

A recent case in the UK Court of Appeal, Immingham Storage Co Ltd v Clear plc, highlights the court’s willingness to enforce a contract where all essential terms have been agreed, and where the negotiations leading up to the contract were not made under the “subject to contract” banner.

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Fladgate advises Indian conglomerate on London hotel acquisition

Fladgate LLP has advised Indian based Bird Group, a conglomerate of independent companies in the travel and technological arenas, on the acquisition and refinancing of The Royal Park Hotel.

The Royal Park Hotel is a boutique hotel located on Westbourne Terrace, comprising three carefully restored, mid 19th-century Grade II listed townhouses. US-based Interstate Hotels and Resorts deal with the overall management, operations, sales and distribution for the hotel.

Fladgate corporate partner and head of the firm’s India Desk, Sunil Sheth, led the cross departmental team which included corporate associate Mythily Katsaris, property partner Diane Haworth, planning partner Mark Harnett, employment solicitor Naomi Oppenheim and tax solicitor John Forde.

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