L_2011110EN.01000101.xml
| 29.4.2011 | EN | Official Journal of the European Union | L 110/1 |
DIRECTIVE 2011/35/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 5 April 2011
concerning mergers of public limited liability companies
(codification)
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 50(2)(g) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee (1),
Acting in accordance with the ordinary legislative procedure (2),
Whereas:
| (1) | Third Council Directive 78/855/EEC of 9 October 1978 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies (3) has been substantially amended several times (4). In the interests of clarity and rationality the said Directive should be codified. |
| (2) | The coordination provided for in Article 50(2)(g) of the Treaty and in the general programme for the abolition of restrictions on freedom of establishment (5) was begun with First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (6). |
| (3) | That coordination was continued, as regards the formation of public limited liability companies and the maintenance and alteration of their capital, with Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (7), and, as regards the annual accounts of certain types of companies, with Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (8). |
| (4) | The protection of the interests of members and third parties requires that the laws of the Member States relating to mergers of public limited liability companies be coordinated and that provision for mergers should be made in the laws of all the Member States. |
| (5) | In the context of such coordination it is particularly important that the shareholders of merging companies be kept adequately informed in as objective a manner as possible and that their rights be suitably protected. However, there is no reason to require an examination of the draft terms of a merger by an independent expert for the shareholders if all the shareholders agree that it may be dispensed with. |
| (6) | The protection of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses is at present regulated by Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (9). |
| (7) | Creditors, including debenture holders, and persons having other claims on the merging companies should be protected so that the merger does not adversely affect their interests. |
| (8) | The disclosure requirements of Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent (10) should be extended to include mergers so that third parties are kept adequately informed. |
| (9) | The safeguards afforded to members and third parties in connection with mergers should be extended to cover certain legal practices which in important respects are similar to merger, so that the obligation to provide such protection cannot be evaded. |
| (10) | To ensure certainty in the law as regards relations between the companies concerned, between them and third parties, and between the members, it is necessary to limit the cases in which nullity can arise by providing that defects be remedied wherever that is possible and by restricting the period within which nullification proceedings may be commenced. |
| (11) | This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives set out in Annex I, Part B, |
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
SCOPE
Article 1
1. The coordination measures laid down by this Directive shall apply to the laws, regulations and administrative provisions of the Member States relating to the following types of company:
| — | Belgium:
| — | la société anonyme/de naamloze vennootschap, | |
| — | Germany:
| — | die Aktiengesellschaft, | |
| — | Ireland:
| — | public companies limited by shares, and public companies limited by guarantee having a share capital, | |
| — | Cyprus:
| — | Δημόσιες εταιρείες περιορισμένης ευθύνης με μετοχές, δημόσιες εταιρείες περιορισμένης ευθύνης με εγγύηση που διαθέτουν μετοχικό κεφάλαιο, | |
| — | Malta:
| — | kumpannija pubblika/public limited liability company, kumpannija privata/private limited liability company, | |
| — | the Netherlands:
| — | de naamloze vennootschap, | |
| — | Austria:
| — | die Aktiengesellschaft, | |
| — | Finland:
| — | julkinen osakeyhtiö/publikt aktiebolag, | |
| — | the United Kingdom:
| — | public companies limited by shares, and public companies limited by guarantee having a share capital. | |
2. The Member States need not apply this Directive to cooperatives incorporated as one of the types of company listed in paragraph 1. In so far as the laws of the Member States make use of this option, they shall require such companies to include the word ‘cooperative’ in all the documents referred to in Article 5 of Directive 2009/101/EC.
3. The Member States need not apply this Directive in cases where the company or companies which are being acquired or will cease to exist are the subject of bankruptcy proceedings, proceedings relating to the winding-up of insolvent companies, judicial arrangements, compositions and analogous proceedings.
CHAPTER II
REGULATION OF MERGER BY THE ACQUISITION OF ONE OR MORE COMPANIES BY ANOTHER COMPANY AND OF MERGER BY THE FORMATION OF A NEW COMPANY
Article 2
The Member States shall, as regards companies governed by their national laws, make provision for rules governing merger by the acquisition of one or more companies by another company and merger by the formation of a new company.
Article 3
1. For the purposes of this Directive, ‘merger by acquisition’ shall mean the operation whereby one or more companies are wound up without going into liquidation and transfer to another all their assets and liabilities in exchange for the issue to the shareholders of the company or companies being acquired of shares in the acquiring company and a cash payment, if any, not exceeding 10 % of the nominal value of the shares so issued or, where they have no nominal value, of their accounting par value.
2. A Member State’s laws may provide that merger by acquisition may also be effected where one or more of the companies being acquired is in liquidation, provided that this option is restricted to companies which have not yet begun to distribute their assets to their shareholders.
Article 4
1. For the purposes of this Directive, ‘merger by the formation of a new company’ shall mean the operation whereby several companies are wound up without going into liquidation and transfer to a company that they set up all their assets and liabilities in exchange for the issue to their shareholders of shares in the new company and a cash payment, if any, not exceeding 10 % of the nominal value of the shares so issued or, where they have no nominal value, of their accounting par value.
2. A Member State’s laws may provide that merger by the formation of a new company may also be effected where one or more of the companies which are ceasing to...
