Legal provisions of COM(2011)79 - Amendment of Directives 89/666/EEC, 2005/56/EC and 2009/101/EC as regards the interconnection of central, commercial and companies registers - Main contents
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| dossier | COM(2011)79 - Amendment of Directives 89/666/EEC, 2005/56/EC and 2009/101/EC as regards the interconnection of central, commercial and ... |
|---|---|
| document | COM(2011)79  |
| date | June 13, 2012 |
Contents
Article 1 - Amendments to Directive 89/666/EEC
| (1) | In Article 1, the following paragraphs are added: ‘3. The documents and particulars referred to in Article 2(1) shall be made publicly available through the system of interconnection of central, commercial and companies registers established in accordance with Article 4a(2) 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 54 of the Treaty, with a view to making such safeguards equivalent (14) (“the system of interconnection of registers”). Article 3b and Article 3c(1) of that Directive shall apply mutatis mutandis. 4. Member States shall ensure that branches have a unique identifier allowing them to be unequivocally identified in communication between registers through the system of interconnection of registers. That unique identifier shall comprise, at least, elements making it possible to identify the Member State of the register, the domestic register of origin and the branch number in that register, and, where appropriate, features to avoid identification errors. |
| (2) | The following Article is inserted: ‘Article 5a 1. The register of the company shall, through the system of interconnection of registers, make available, without delay, the information on the opening and termination of any winding-up or insolvency proceedings of the company and on the striking-off of the company from the register, if this entails legal consequences in the Member State of the register of the company. 2. The register of the branch shall, through the system of interconnection of registers, ensure the receipt, without delay, of the information referred to in paragraph 1. 3. The exchange of information referred to in paragraphs 1 and 2 shall be free of charge for the registers. 4. Member States shall determine the procedure to be followed upon receipt of the information referred to in paragraphs 1 and 2. Such procedure shall ensure that, where a company has been dissolved or otherwise struck off the register, its branches are likewise struck off the register without undue delay. 5. The second sentence of paragraph 4 shall not apply to branches of companies that have been struck off the register as a consequence of any change in the legal form of the company concerned, a merger or division, or a cross-border transfer of its registered office.’. |
| (3) | The following Section is inserted: ‘SECTION IIIA DATA PROTECTION Article 11a The processing of personal data carried out in the context of this Directive shall be subject to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (15). |
Article 2 - Amendments to Directive 2005/56/EC
| (1) | Article 13 is replaced by the following: ‘Article 13 Registration The law of each of the Member States to whose jurisdiction the merging companies were subject shall determine, with respect to the territory of that State, the arrangements, in accordance with Article 3 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 54 of the Treaty, with a view to making such safeguards equivalent (16), for publicising the completion of the cross-border merger in the public register in which each of the companies is required to file documents. The registry for the registration of the company resulting from the cross-border merger shall notify, through the system of interconnection of central, commercial and companies registers established in accordance with Article 4a(2) of Directive 2009/101/EC and without delay, the registry in which each of the companies was required to file documents that the cross-border merger has taken effect. Deletion of the old registration, if applicable, shall be effected on receipt of that notification, but not before. |
| (2) | The following Article is inserted: ‘Article 17a Data protection The processing of personal data carried out in the context of this Directive shall be subject to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (17). |
Article 3 - Amendments to Directive 2009/101/EC
| (1) | The following Article is inserted: ‘Article 2a 1. Member States shall take the measures required to ensure that any changes in the documents and particulars referred to in Article 2 are entered in the competent register referred to in the first subparagraph of Article 3(1) and are disclosed, in accordance with Article 3(3) and (5), normally within 21 days from receipt of the complete documentation regarding those changes including, if applicable, the legality check as required under national law for entry in the file. 2. Paragraph 1 shall not apply to the accounting documents referred to in Article 2(f).’. |
| (2) | In Article 3(1), the following subparagraph is added: ‘Member States shall ensure that companies have a unique identifier allowing them to be unequivocally identified in communication between registers through the system of interconnection of central, commercial and companies registers established in accordance with Article 4a(2) (“the system of interconnection of registers”). That unique identifier shall comprise, at least, elements making it possible to identify the Member State of the register, the domestic register of origin and the company number in that register and, where appropriate, features to avoid identification errors.’. |
| (3) | The following Articles are inserted: ‘Article 3a 1. Member States shall ensure that up-to-date information is made available explaining the provisions of national law according to which third parties can rely on particulars and each type of document referred to in Article 2, in accordance with Article 3(5), (6) and (7). 2. Member States shall provide the information required for publication on the European e-Justice portal (“the portal”) in accordance with the portal’s rules and technical requirements. 3. The Commission shall publish that information on the portal in all the official languages of the Union. Article 3b 1. Electronic copies of the documents and particulars referred to in Article 2 shall also be made publicly available through the system of interconnection of registers.2. Member States shall ensure that the documents and particulars referred to in Article 2 are available through the system of interconnection of registers in a standard message format and accessible by electronic means. Member States shall also ensure that minimum standards for the security of data transmission are respected. 3. The Commission shall provide a search service in all the official languages of the Union in respect of companies registered in the Member States, in order to make available through the portal:
Article 3c 1. The fees charged for obtaining the documents and particulars referred to in Article 2 through the system of interconnection of registers shall not exceed the administrative costs thereof.2. Member States shall ensure that the following particulars are available free of charge through the system of interconnection of registers:
In addition to those particulars, Member States may choose to make further documents and particulars available free of charge. Article 3d 1. The register of the company shall, through the system of interconnection of registers, make available, without delay, the information on the opening and termination of any winding-up or insolvency proceedings of the company and on the striking-off of the company from the register, if this entails legal consequences in the Member State of the register of the company.2. The register of the branch shall, through the system of interconnection of registers, ensure receipt, without delay, of the information referred to in paragraph 1. 3. The exchange of information referred to in paragraphs 1 and 2 shall be free of charge for the registers.’. |
| (4) | The following Articles are inserted: ‘Article 4a 1. A European central platform (“the platform”) shall be established. 2. The system of interconnection of registers shall be composed of:
3. The Member States shall ensure the interoperability of their registers within the system of interconnection of registers via the platform. 4. Member States may establish optional access points to the system of interconnection of registers. They shall notify the Commission without undue delay of the establishment of such access points and of any significant changes to their operation. 5. Access to information from the system of interconnection of registers shall be ensured through the portal and through the optional access points established by the Member States. 6. The establishment of the system of interconnection of registers shall not affect existing bilateral agreements concluded between Member States concerning the exchange of information on companies. Article 4bShould the Commission decide to develop and/or operate the platform through a third party, the choice of the third party and the enforcement by the Commission of the agreement concluded with that third party shall be done in accordance with Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (18). 2. Should the Commission decide to develop the platform through a third party, it shall, by means of implementing acts, establish the technical specifications for the purpose of the public procurement procedure and the duration of the agreement to be concluded with that third party. 3. Should the Commission decide to operate the platform through a third party, it shall, by means of implementing acts, adopt detailed rules on the operational management of the platform. The operational management of the platform shall include, in particular:
The supervision of the functioning of the platform shall be carried out by the Commission. 4. The implementing acts referred to in paragraphs 2 and 3 shall be adopted in accordance with the examination procedure referred to in Article 4e(2). Article 4c By means of implementing acts, the Commission shall adopt the following:
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 4e(2). The Commission shall adopt those implementing acts by 7 July 2015. Article 4d 1. The establishment and future development of the platform and the adjustments to the portal resulting from this Directive shall be financed from the general budget of the Union.2. The maintenance and functioning of the platform shall be financed from the general budget of the Union and may be co-financed by fees for access to the system of interconnection of registers charged to its individual users. Nothing in this paragraph shall affect fees at the national level. 3. By means of delegated acts and in accordance with Article 13a, the Commission may adopt rules on whether to co-finance the platform by charging fees, and, in that case, the amount of the fees charged to individual users in accordance with paragraph 2. 4. Any fees imposed in accordance with paragraph 2 shall be without prejudice to the fees, if any, charged by Member States for obtaining documents and particulars as referred to in Article 3c(1). 5. Any fees imposed in accordance with paragraph 2 shall not be charged for obtaining the particulars referred to in points (a), (b) and (c) of Article 3c(2). 6. Each Member State shall bear the costs of adjusting its domestic registers, as well as their maintenance and functioning costs resulting from this Directive. Article 4e 1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (21).2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply. |
| (5) | The following Article is inserted: ‘Article 7a The processing of personal data carried out in the context of this Directive shall be subject to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (22). |
| (6) | The following Chapter is inserted: ‘CHAPTER 4A DELEGATED ACTS Article 13a 1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.2. The power to adopt delegated acts referred to in Article 4d(3) shall be conferred on the Commission for an indeterminate period of time. 3. The delegation of power referred to in Article 4d(3) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 5. A delegated act adopted pursuant to Article 4d(3) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council.’. |
Article 4 - Report and regular dialogue
1. The Commission shall, not later than five years after the final date for application of the provisions referred to in Article 5(2), publish a report concerning the functioning of the system of interconnection of registers, in particular examining its technical operation and its financial aspects.2. That report shall be accompanied, if appropriate, by proposals for amending this Directive.
3. The Commission and the representatives of the Member States shall regularly convene to discuss the matters covered by this Directive in any appropriate forum.
Article 5 - Transposition
2. Notwithstanding paragraph 1, Member States shall, not later than two years after the adoption of the implementing acts referred to in Article 4c of Directive 2009/101/EC, adopt, publish and apply the provisions necessary to comply with:
| — | Article 1(3) and (4) and Article 5a of Directive 89/666/EEC, |
| — | Article 13 of Directive 2005/56/EC, |
| — | Article 3(1), second subparagraph, Article 3b, Article 3c, Article 3d and Article 4a(3) to (5) of Directive 2009/101/EC. |
Upon the adoption of those implementing acts, the Commission shall publish in the Official Journal of the European Union the final date for application of the provisions referred to in this paragraph.
3. When Member States adopt the measures referred to in paragraph 1, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
4. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.