(1) The court reviews within three months of the application for entry in the register in accordance with section 341 (1) and (2) whether the company meets the pre-requisites for the cross-border change of legal form. The entry includes the designation of the proceedings for the change of legal form and of the company changing its legal form, 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 change of legal form will take effect subject to the pre-requisites under the laws of the state to which the company is relocating its seat. As regards the entry in the register, the court issues a certificate as to the change of legal form of its own motion.
(2) The entry in accordance with subsection (1) may not be made prior to the time limits stipulated in section 340 (3) sentence 1 and in section 341 (1) read in conjunction with section 314 (3) having lapsed. If all holders of shares in the company have consented to the merger, then the entry may be made already prior to the time limit stipulated in section 340 (3) sentence 1 having lapsed. Where a claim to provision of security in accordance with section341 (1) read in conjunction 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 of the security having been provided is to be submitted to the court in suitable form. 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 change of legal form 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 86l (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 change of legal form, the company is the debtor of company pensions or accrued company pension rights and 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 company in its new legal form has been entered, as to the cross-border change of legal form having taken effect, the court having jurisdiction at the seat of the company changing its legal form is to note the date on which the cross-border change of legal form has taken effect.