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NEWSLETTER 2013
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if a commercial company controls another commercial company
contractually or by any other means, then the first company is the parent
company and the second is the subsidiary.
Where control is attained via one or more affiliated companies this
shall constitute indirect control.
Art. 195 also provides a legal presumption as to the existence of
control, which may be proved false. According to said provision, the
possession of the majority of a company’s shares or an amount enabling
the adoption of resolutions that implement the management of such
company shall indicate control. There are no specifications as to what
such resolutions which implement the management of a company may
be.
Group of Companies
A group of companies consists of one commercial company and at
least two commercial companies that are directly or indirectly controlled
by it. Art. 195 TCC is not clear as to whether one parent company
and one subsidiary company would be sufficient to constitute a group
of companies. However, this is expressly regulated under TRR, which
determines that a group of companies must contain one parent company
and at least two other subsidiaries.
It must be noted that, pursuant to Art. 195 TCC and Art. 107 TRR, an
enterprise which is not a commercial company with two or more direct
or indirect subsidiaries shall also form a group of companies in which the
parent shall be the enterprise.
Obligation of Notification and Registration
The TCC stipulates certain obligations in order to preserve the
independence of the subsidiary vis-à-vis the parent company. One of
these obligations is found in Art. 198 TCC which concerns obligations of
notification and registration which arise in case of share transfers.
According to Art. 198 TCC, share transfers, which directly or
indirectly result in the shares possessed in the capital of a company to
exceed or drop below 5%, 10%, 20%, 25%, 33%, 50%, 67% and 100%,