PURPOSE: to reduce administrative burdens relating in
particular to publication and documentation obligations of public limited
liability companies within the Community.
LEGISLATIVE ACT: Directive 2009/109/EC of the European
Parliament and of the Council amending Council Directives 77/91/EEC,
78/855/EEC and 82/891/EEC, and Directive 2005/56/EC as regards reporting and
documentation requirements in the case of mergers and divisions.
CONTENT: the
Council adopted, by qualified majority, this Directive simplifying the rules
on reporting and documentation requirements in the event of mergers and
divisions of EU companies, following an agreement with the European
Parliament in first reading. The German and Austrian delegations voted
against.
The European Council agreed, at its meeting on 8 and 9
March 2007, that administrative burdens on companies should be reduced by 25
% by the year 2012 in order to enhance the competitiveness of companies in
the Community. Therefore, in this context, it is appropriate to review those
obligations and, where appropriate, to reduce the administrative burdens
weighing on companies within the Community to the minimum needed.
The Directive is aimed at reducing costs relating to
mergers or divisions by limiting detailed reporting requirements, as well
as by allowing companies to provide the necessary information to
shareholders or third parties by electronic means, instead of convening
general meetings. It modifies Directive 78/855/EEC on mergers (Third Company
Law Directive) and Directive 82/891/EEC on divisions of companies (Sixth
Company Law Directive).
It also introduces the necessary adjustments to Directive
2005/56/EC on cross-border mergers and Directive 77/91/EEC as regards
safeguards relating to the company’s capital, in line with the modifications
to the Third and Sixth Company Law Directives.
The main amendments are as follows:
- company
websites or other websites offer, in certain cases, an alternative to
publication via the companies registers. Under the new Directive, Member
States should be able to designate those other websites which companies
may use free of charge for such publication, such as websites of
business associations or chambers of commerce or the central electronic
platform referred to in First Council Directive 68/151/EEC on
coordination of safeguards which, for the protection of the interests of
members and others, are required by Member States of companies with a
view to making such safeguards equivalent throughout the Community. Where
the possibility exists of using company or other websites for
publication of draft terms of merger and/or division and of other
documents that have to be made available to shareholders and creditors
in the process, guarantees relating to the security of the website and
the authenticity of the documents should be met;
- disclosure
requirements concerning draft terms of merger in cross-border mergers
under Directive 2005/56/EC should be similar to those applicable to
domestic mergers and divisions under Directives 78/855/EEC and
82/891/EEC;
- Member
States must be able to provide that there is no need for the extensive
reporting or information requirements related to certain merger or
division of companies, if all the shareholders of the companies involved
in the merger or division agree that they may be dispensed with. Any
modification of Directives 78/855/EEC and 82/891/EEC allowing such
agreement by shareholders should be without prejudice to the systems of
protection of the interests of creditors of the companies involved as
well as to rules aimed at ensuring the provision of necessary
information to the employees of the companies involved and to public
authorities, such as tax authorities, controlling the merger or division
in accordance with existing Community legislation;
- an
independent expert’s report as provided for under Directive 77/91/EEC is
often not needed where an independent expert’s report protecting the
interests of shareholders or creditors also has to be drawn up in the context
of the merger or the division. Member States should therefore have the
possibility in such cases of dispensing companies from the reporting
requirement under Directive 77/91/EEC or of providing that both reports
may be drawn up by the same expert;
- mergers
between parent companies and their subsidiaries have a reduced economic
impact on shareholders and creditors where the holding of the parent
company amounts to 90 percent or more of the shares or other securities
conferring the right to vote of the subsidiary . The same applies to
certain divisions, in particular when companies are split in new
companies that are owned by the shareholders in the proportion to their
rights in the company being divided. In these cases, the reporting
requirements deriving from Directives 78/855/EEC and 82/891/EEC will
therefore be reduced.
Review:
five years after the date of transposition, the Commission shall review the
functioning of those provisions of Directives 77/91/EEC, 78/855/EEC,
82/891/EEC and 2005/56/EC which are amended or added by this Directive, and
in particular their effects on the reduction of administrative burdens on
companies, in the light of experience acquired in their application, and
shall present a report to the European Parliament and the Council, accompanied
if necessary by proposals for further amendments of those directives.
ENTRY INTO FORCE: 22/10/2009.
TRANSPOSITION:
30/06/2011.