Explanatory Memorandum to COM(2002)279 - Amendment of Council Directive 68/151/EEC, as regards disclosure requirements in respect of certain types of companies - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2002)279 - Amendment of Council Directive 68/151/EEC, as regards disclosure requirements in respect of certain types of companies. |
|---|---|
| source | COM(2002)279  |
| date | 03-06-2002 |
The First Company Law Directive i was adopted in 1968 with a view to co-ordinate, for the protection of the interests of members and third parties, the national provisions applicable to limited liability companies in three areas : compulsory disclosure by companies of their documents and particulars, validity of the obligations entered into by companies, and nullity of companies.
With regard to the disclosure by companies of their documents and particulars, the main requirements of the First Directive are as follows : - compulsory disclosure by companies must cover at least the documents and particulars mentioned in Article 2; - these documents and particulars must be filed and kept in a register, and subsequently published in a national gazette; a copy of these documents and particulars must be obtainable from the register; - letters and order forms used by companies must state the particulars mentioned in Article 4; - Member States must determine by which persons the disclosure formalities are to be carried out and provide for appropriate penalties in defined cases.
In December 1997, the European Commission organised a Conference on Company Law and the Single Market. This Conference i was devoted to three important themes, among which was the impact of modern methods of communication on company law. One of the conclusions of the Conference was that the compulsory disclosure system organised by the First Directive might benefit significantly from the introduction of modern technology, which could help to meet the important objective of making company information more easily and rapidly accessible.
In the context of the fourth phase of the Simplification of the Legislation on the Internal Market process (SLIM) launched by the Commission in October 1998, a Company Law Working Group issued in September 1999 a Report on the simplification of the First and Second Company Law Directives i. This report contained detailed recommendations on the areas in which a simplification could be achieved. The main recommendations relating to the First Directive consisted on the one hand of the need to accelerate the filing and disclosure of company documents and particulars by the use of modern technology, and on the other hand of the need to improve the cross-border access to company information by allowing voluntary registration of company documents and particulars in additional languages.
In its Report to the European Parliament and the Council i, the Commission stated that it supported the overall objective of the main recommendations relating to the First Directive and that it would examine further how best to amend the First Directive accordingly. The SLIM Group recommendations and their practical implications have been subsequently discussed with Member States company law experts in three meetings (June 2000, March 2001 and June 2001).
From these discussions, it appeared that the main recommendations relating to the First Directive were widely supported. It was felt that the modernisation of the First Directive along the lines set out in these recommendations would not only help to meet the important objective of making company information more easily and rapidly accessible by interested parties, but would also simplify significantly the disclosure formalities imposed upon companies. It was also decided to seize this opportunity to update the First Directive where necessary, namely with regard to the types of companies covered and the references to the Accounting Directives.
Contents
- 2. Timing and date of application
- 3. Outline of the contents of this proposal
- 3.1. Article 1
- 3.1.1. Paragraph 1
- 3.1.2. Paragraph 2
- 3.1.3. Paragraph 3
- Article 3 - Paragraph 1
- Article 3 - Paragraph 2
- Article 3 - Paragraph 3
- Article 3 - Paragraph 4
- Article 3 - Paragraphs 5 and 6
- Article 3 - Paragraph 7
- Article 3 - Paragraph 8
- 3.1.4. Paragraph 4
- 3.1.5. Paragraph 5
- 3.1.6. Paragraph 6
- 3.2. Articles 2 to 4 - Final Provisions
The proposal uses the date of 1 January 2005 as the deadline for implementation by Member States of the laws, regulations and administrative provisions necessary to comply with this Directive. This date should be regarded as reasonable, in view of the fact that most Member States are already engaged, in some cases for many years, in reforms which aim at introducing modern technology in the filing and disclosure systems applicable to company information.
Further to the objectives set out above, Article 1 makes those changes necessary to the First Council Directive of 9 March 1968.
This paragraph updates the types of companies to which the First Directive applies, by adding those types of companies which have been introduced at national level since the adoption of the First Directive (the 'société par actions simplifiée' in France, and the 'besloten vennootschap met beperkte aansprakelijkheid' in the Netherlands) or after the accession of the Member State (the 'anpartsselskab' in Denmark).
This paragraph updates Article 2 of the First Directive, which enumerates the documents and particulars of which disclosure is compulsory, to reflect the subsequent adoption of a series of Directives relating to the accounting documents which must be prepared by companies ("the Accounting Directives").
Article 2 of the First Directive is therefore modified as follows : - the reference to 'the balance sheet and the profit and loss account' is replaced with a reference to 'the accounting documents' (i.e. annual accounts - annual report - audit opinion / consolidated accounts - consolidated annual report - audit opinion) which are required to be published in accordance with the Accounting Directives adopted after 1968; - the transitory provision postponing the application of Article 2 i (f) until the date of implementation of a future Directive to be adopted in the accounting area is removed; - the provision contained in Article 2 i, which is directly linked to the transitory provision contained in Article 2 i (f), is removed.
In the discussions that followed the SLIM Group Report, the suggestion was made to add a series of items (e.g. the website address, the e-mail address...) to the documents and particulars listed in Article 2 of the First Directive. The proposal does not follow this suggestion, which is not deemed to be consistent with the simplification objective. However, it should be observed that the First Directive does not prevent Member States from requiring or allowing the disclosure of other documents and particulars than those listed in Article 2.
This paragraph amends Article 3 of the First Directive, which contains the basic rules applicable to the registration and disclosure of company documents and particulars, with a view to making the use of modern technology possible in the fulfilment of its requirements.
Paragraph 1 of Article 3 remains unchanged. It should be noted that the Directive leaves it to Member States to decide whether they organise the registration system on a centralised or decentralised basis. The introduction of modern technology does not require an amendment to the Directive in that respect.
Paragraph 2 of Article 3 is modified by the addition of a second subparagraph, whereby Member States are required to make the filing of company documents and particulars by electronic means possible as from 1 January 2005. As from that date, companies must in principle be able to choose between a filing by paper means and a filing by electronic means. Member States may impose filing by electronic means upon all - or certain categories of - companies in respect of all - or certain types of - documents and particulars. It is understood that Member States will restrict such an obligation to situations in which it does not create an unreasonable burden for companies.
Where filing takes place by paper means after 1 January 2005, Member States will have to ensure that documents and particulars filed are systematically converted by the register to electronic form in order to be kept in the file or entered in the register, as is foreseen in the new third subparagraph of paragraph 2.
The new fourth subparagraph of paragraph 2 contains provisions related to documents and particulars filed by paper means up to 31 December 2004. Member States are required to ensure that registers will convert such documents and particulars to electronic form at least on application by interested parties (which leaves Member States free to decide to convert all or part of them anyway). This does not prevent Member States that so wish to require that all - or certain categories of - companies provide all - or certain types of - such documents and particulars in electronic form.
It should be observed that the introduction of a requirement for Member States to make possible as from 1 January 2005 the filing of company documents by electronic means does not affect in any way the freedom for Member States to decide 1) by which persons the disclosure formalities are to be carried out, 2) which controls (on the form and/or content of the disclosures) should be performed, 3) which technical standards should be followed (e.g. use of specific softwares), and 4) which fees should be charged to companies for paper and/or electronic filing.
Paragraph 3, which organises the delivery of copies of documents and particulars, is amended in such a way that applicants can choose between paper means and electronic means, with regard to both the application submitted and the copy obtained.
The first subparagraph of paragraph 3 is amended in such a way that applications can be submitted by paper means or by electronic means.
The new second subparagraph of paragraph 3 is amended in a such a way that copies can be obtained by paper means or by electronic means. Member States may however decide for practical reasons that documents and particulars filed up to 31 December 2004 will not be obtainable by electronic means if they have been filed by paper means more than 10 years before the date of the application.
The new third subparagraph of paragraph 3 reproduces the current provision contained in Article 3 (copies must be obtainable at a price not exceeding the administrative cost thereof), and extends it to electronic copies.
The new fourth subparagraph of paragraph 3 reproduces the current provision contained in Article 3 (paper copies are normally certified as 'true copies'), and does not require electronic copies to be systematically certified because such a provision might lead to high costs whereas electronic copies are requested most of the time for information purposes only.
The new fifth subparagraph of paragraph 3 ensures that certification of electronic copies will be based on the use of an advanced electronic signature, as defined in Article 2 i of Directive 1999/93/EC i. An advanced electronic signature is indeed necessary to achieve the objectives set to the certification of electronic copies (to guarantee both the authenticity of their origin and the integrity of their contents). This does not prevent Member States from providing that advanced electronic signatures used must have additional characteristics (e.g. be based on a qualified certificate and be created by a secure-signature-creation device, within the meaning of Article 2 of Directive 1999/93/EC), if they wish to ensure that such signatures will have the legal effects foreseen in Article 5 of Directive 1999/93/EC.
The first subparagraph of paragraph 4 is modified by the addition of a sentence which explicitly allows the national gazette to be kept in electronic form. The reference to a publication in the national gazette has not been removed from the Directive, because several Member States observed that their national provisions linked the legal value of company information to such a publication.
However, because this problem is not present in all Member States, a second subparagraph is added to paragraph 4 to allow Member States to replace the publication in the national gazette with equally effective means. This is subject to the provision of a central and chronological access to company information, which is the main function performed by a national gazette.
The amendments to paragraph 4 make it necessary to amend accordingly some expressions used in paragraphs 5 and 6. In paragraph 5, the words 'published' and 'publication' are replaced with the words 'disclosed' and 'disclosure'. In paragraph 6, the words 'by publication in the press' and 'published in the press' are replaced with the words 'in accordance with paragraph 4' and 'disclosed in accordance with paragraph 4'.
Paragraph 7 of Article 3 remains unchanged.
A new paragraph 8 is inserted in Article 3, with the aim of defining precisely the words 'by electronic means' introduced in the Directive. This definition is comparable to the definitions adopted in other Directives related to the information society (see Article 1 i of Directive 98/34/EC i, or Article 2 of Directive 2001/115/EC i).
Such a definition implies the use of a computer at both ends of the communication channel, and therefore does not include means like voice telephony, ordinary faxes and telexes. It should nevertheless be observed that Member States are not prevented from allowing the use of such means, by companies when they file their documents and particulars and/or by interested parties when they seek to obtain a copy, in addition to electronic means.
This paragraph inserts a new Article 3a in the First Directive, with the aim of improving the cross-border access to company information and making sure that translations provided may be relied on by third parties.
Paragraph 2 of the new Article 3a allows companies to disclose their documents and particulars, in addition to the mandatory disclosure made in one of the languages permitted in their Member State, in any official language(s) of the Community on a voluntary basis. Member States are required to ensure that, if companies choose to do so, electronic access in that/those language(s) is provided.
Paragraph 3 of the new Article 3a explicitly permits Member States to allow companies to voluntarily disclose their documents and particulars in any language(s) external to the Community.
Paragraph 4 of the new Article 3a makes sure that translations provided may be relied on by third parties. To this end, Member States shall take the necessary measures to avoid any discrepancy between the different language versions disclosed (as regards for example consistent provision of these language versions over time). In cases of discrepancy, third parties acting in good faith are duly protected.
This paragraph amends Article 4 of the First Directive, which lists the particulars which must be stated on the letters and order forms used by companies, so as to make clear that this provision applies to all letters and order forms whether they are in paper form or use any other medium (e.g. fax, e-mail, internet, ...).
The name of the register in which the file of the company is kept is one of the particulars listed in Article 4. The words 'the information necessary to identify' have been inserted before 'the register', with a view to allow alternative means of referring to the register than its name. This modification is considered desirable in view of the discussions currently being held between registers in Europe, which aim at agreeing on a common system of number identification for companies and registers.
Finally, a new subparagraph is added in Article 4, with the aim of extending to any company website the obligation to state the particulars listed. It does not seem desirable to oblige all companies to have a website, but existing websites should contain the same minimal information as the letters and order forms used by the company. Such a requirement appears necessary in spite of the E-commerce Directive of 8 June 2000 i, which does contain some provisions relating to the company information which must be present on company websites, for two reasons. On the one hand, the particulars listed in Article 5 of the E-commerce Directive do not include all the particulars listed in Article 4 of the First Directive. On the other hand, the scope of the E-commerce Directive is restricted to natural or legal persons providing an information society service; this notion, defined in Article 1 i of Directive 98/34/EC, assumes the presence of an economic activity (whether or not remunerated), so that not all company websites are necessarily covered.
This paragraph introduces in Article 6 of the First Directive some changes consequential to amendments presented above : - the reference to 'the balance sheet and profit and loss account' is replaced with a reference to 'the accounting documents'; - the provision applicable to commercial documents is extended to any company website.
The provisions in these Articles deal with the adoption and administration of the proposed Directive.