The Merger of Trading Companies
The merger of trading companies is a manifestation of the general movement of economic forces concentration typical of the expansive modern economy. The merger can be understood from the economic or legal point of view. From the economic point of view, the merger seems to be considered as joining together or mix the wealth of two or more companies to make up a single common patrimony, whose owner will be one of the companies taking part in the merger or a new one which arises from the merge of them.
The merger, from the economic point of view, the Federal Law of economic competition refers to when talking about mergers.
From the legal point of view, the merger is distinguished by the integration of several legal entities into one. It is the joining of several societies that make up to form a legal single entity, which replaces the societies personality.
When the merger affects only patrimonies and not the partners, strictly speaking, there is no merger. (Garrigues)
Thus, for example, the merger is different from these similar figures:
- The fact that the merger extinguishes one or more companies, distinguishes it from phenomena such as the cartel (joining of entrepreneurs, not companies), unions (syndicated banks for a credit), communities of interests, holding companies.
- The act by which a company acquires all the shares of another is not a merger since a legal entity does not disappear.
- There is also no true merger in the block transfer of all the assets of a company, as there is no regrouping of both companies’ partners.
The merger of companies rests on three assumptions (Uria):
- The extinction without liquidation of all or some of the merging companies.
- Transfer in a block of the companies’ assets that extinguish, to the new company or the absorbing subsisting company.
- The partners that comprised the extinguished companies transfer to the new company or to the absorbing subsisting company.
The merger does not imply the dissolution of the company, but the extinction of its legal personality, through its integration or incorporation to another. The purpose of the dissolution agreement is different from that of the merger. The dissolution, as indicated by its name, has the purpose of disintegrating, dissolving or disjoint the various elements of a company and, in particular, the disassociation of a corporation’s partners which they are a part of and, that each one gets the return of their contributions.
On the other hand, in the merger, the purpose is not disjoining the partners, but on the contrary, unite them with others; and the return of the contributions is not desired, on the contrary, the substitution of their respective shares or partnership interests, for shares or partnership interests of a greater company. (Sánchez Domínguez)