(1) The court reviews within three months of the application for entry in the register in accordance with section 315 (1) and (2) whether the company being acquired meets the pre-requisites for the cross-border merger. The entry includes the designation of the merger proceedings and of the companies involved in it, as well as the attestation of compliance with all relevant conditions and completion of all procedures and formalities required. The entry is to include the note that the cross-border merger will take effect subject to the pre-requisites under the laws of the state by which the acquiring company or new company is governed. As regards the entry in the register, the court issues a merger certificate of its own motion.
(2) The entry in accordance with subsection (1) may not be made prior to the time limits stipulated in section 313 (3) sentence 1 and section 314 (3) having lapsed. If all holders of shares in the company being acquired have consented to the merger, then the entry may be made already prior to the time limit stipulated in section 313 (3) sentence 1 having lapsed. Where a claim to provision of security in accordance with section 314 (1) has been asserted in court, the entry in accordance with subsection (1) may not be effected
1. before the decision refusing the application has become final and binding,
2. the security established by the decision has been provided or
3. the decision refusing a part of the application has become final and binding and the security established by the decision has been provided.
Evidence is to be submitted to the satisfaction of the court that the security has been provided. Upon demand by the court, the members of the representative body are to give an assurance that the security established by the decision has been provided.
(3) In the proceedings defined in subsection (1), the court must review, should indicative factors be given, whether the cross-border merger is intended to be effected for abusive or fraudulent purposes leading to or aimed at the evasion or circumvention of Union or national law or for criminal purposes. If such purposes are given, then the court will refuse to make the entry in accordance with subsection (1). If it is necessary, in performing the review, to take account of further information or to pursue additional investigations, the time limit set out in subsection (1) sentence 1 may be extended by a maximum of three months. Indicative factors within the meaning of sentence 1 are given in particular if
1. a negotiation procedure to be implemented in accordance with Article 133 (2) to (4) of Directive (EU) 2017/1132 was initiated only upon this having been instructed by the court;
2. the number of employees corresponds, at a minimum, to four fifths of the threshold relevant for corporate co-determination; no value is created in the country of destination; and the seat of the administrative office remains in Germany;
3. as a consequence of the cross-border merger, a foreign company becomes the debtor of company pensions or accrued company pension rights and this company has no operative business otherwise.
(4) If, as an exception, the complexity of the proceedings means that it is impossible to perform the review within the time limits set out in subsection (1) sentence 1 or subsection (3) sentence 3, then the court is to inform the party filing the application for entry in the register of the reasons for the delay prior to such time limit ending.
(5) Upon the court receiving a notification from the register in which the acquiring company or new company has been entered, as to the cross-border merger having taken effect, the court having jurisdiction at the seat of the company being acquired is to note the date on which the cross-border merger has taken effect and is to transmit to said register the electronic documents it has kept on file.