Explanatory Memorandum to COM(2010)391 - Mergers of public limited liability companies - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)391 - Mergers of public limited liability companies. |
|---|---|
| source | COM(2010)391  |
| date | 30-08-2010 |
2. In its opinion of 27 February 2008 the Consultative Working Party of the legal services set up under the Interinstitutional Agreement of 20 December 1994 on an accelerated working method for official codification of legislative texts i stated that the proposal referred to in point 1 does indeed confine itself to straightforward codification, without any substantive changes to the acts covered by it.
3. Having regard to the amendments adopted i in respect of the proposal referred to in point 1 and in view of the work already carried out in the course of the legislative procedure, the Commission has decided to present – in accordance with Article 293 i of the TFEU – an amended proposal for codification of the Directive in question.
This amended proposal also takes account of the purely formal or editorial changes proposed by the Consultative Working Party of the legal services, where these are considered justified i.
4. The changes made in this amended proposal, compared with the proposal referred to in point 1, are the following:
In recital 2, the reference to 'Article 44(2)(g) of the Treaty' is replaced by a reference to 'Article 50(2)(g) of the Treaty', and that to 'Directive 68/151/EEC' is replaced by a reference to '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'.
In recital 8, the wording "Directive [.../.../...] of the European Parliament and of the Council of […]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 48 of the Treaty, with a view to making such safeguards equivalent throughout the Community" is replaced by the wording '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'.
In Article 1 i, the indent relating to Finland is replaced by the following:
"Finland: julkinen osakeyhtiö/publikt aktiebolag".
In Article 1 i, in Article 6, in Article 18 i, in Article 22(1)(e) and (f), and in the first subparagraph of Article 23 i, the reference to " Directive […/…/…]" is replaced by 'Directive 2009/101/EC'.
In Article 6, the following paragraphs are added:
"Any of the merging companies shall be exempt from the publication requirement laid down in Article 3 of Directive 2009/101/EC if, for a continuous period beginning at least one month before the day fixed for the general meeting which is to decide on the draft terms of merger and ending not earlier than the conclusion of that meeting, it makes the draft terms of such merger available on its website free of charge for the public. Member States shall not subject that exemption to any requirements or constraints other than those which are necessary in order to ensure the security of the website and the authenticity of the documents, and may impose such requirements or constraints only to the extent that they are proportionate in order to achieve those objectives.
By way of derogation from the second paragraph, Member States may require that publication be effected via the central electronic platform referred to in Article 3 i of Directive 2009/101/EC. Member States may alternatively require that such publication be made on any other website designated by them for that purpose. Where Member States avail themselves of one of those possibilities, they shall ensure that companies are not charged a specific fee for such publication.
Where a website other than the central electronic platform is used, a reference giving access to that website shall be published on the central electronic platform at least one month before the day fixed for the general meeting. That reference shall include the date of publication of the draft terms of merger on the website and shall be accessible to the public free of charge. Companies shall not be charged a specific fee for such publication.
The prohibition precluding the charging to companies of a specific fee for publication, laid down in the third and fourth paragraphs, shall not affect the ability of Member States to pass on to companies the costs in respect of the central electronic platform.
Member States may require companies to maintain the information for a specific period after the general meeting on their website or, where applicable, on the central electronic platform or the other website designated by the Member State concerned. Member States may determine the consequences of temporary disruption of access to the website or to the central electronic platform, caused by technical or other factors.".
In Article 7 i, the words 'referred to in paragraph 2' are deleted.[EP/Council want to go back to original wording]
In Article 8, the following paragraph is added:
"For the purposes of point (b) of the first paragraph, Article 11 i, i and i shall apply.".
The wording of Article 9 is replaced by the following wording:
"1. The administrative or management bodies of each of the merging companies shall draw up a detailed written report explaining the draft terms of merger and setting out the legal and economic grounds for them, in particular the share exchange ratio.
That report shall also describe any special valuation difficulties which have arisen.
2. The administrative or management bodies of each of the companies involved shall inform the general meeting of their company and the administrative or management bodies of the other companies involved so that the latter may inform their respective general meetings of any material change in the assets and liabilities between the date of preparation of the draft terms of merger and the date of the general meetings which are to decide on the draft terms of merger.
3. Member States may provide that the report referred to in paragraph 1 and/or the information referred to in paragraph 2 shall not be required if all the shareholders and the holders of other securities conferring the right to vote of each of the companies involved in the merger have so agreed.".
The wording of Article 11(1)(c) and (d) is replaced by the following wording:
"(c) where applicable, an accounting statement drawn up as at a date which must not be earlier than the first day of the third month preceding the date of the draft terms of merger, if the latest annual accounts relate to a financial year which ended more than six months before that date;
(d) where applicable, the reports of the administrative or management bodies of the merging companies provided for in Article 9;".
In Article 11 i, the following subparagraph is added:
"For the purposes of point (c) of the first subparagraph, an accounting statement shall not be required if the company publishes a half-yearly financial report in accordance with Article 5 of Directive 2004/109/EC of the European Parliament and of the Council and makes it available to shareholders in accordance with this paragraph. Furthermore, Member States may provide that an accounting statement shall not be required if all the shareholders and the holders of other securities conferring the right to vote of each of the companies involved in the merger have so agreed.". As a consequence, the reference to 'paragraph 1(c)' in Article 11 i is replaced by a reference to 'point (c) of the first subparagraph of paragraph 1'.
In Article 11 i, the following subparagraph is added:
"Where a shareholder has consented to the use by the company of electronic means for conveying information, such copies may be provided by electronic mail.".
In Article 11, the following paragraph is added:
"4. A company shall be exempt from the requirement to make the documents referred to in paragraph 1 available at its registered office if, for a continuous period beginning at least one month before the day fixed for the general meeting which is to decide on the draft terms of merger and ending not earlier than the conclusion of that meeting, it makes them available on its website. Member States shall not subject that exemption to any requirements or constraints other than those which are necessary in order to ensure the security of the website and the authenticity of the documents and may impose such requirements or constraints only to the extent that they are proportionate in order to achieve those objectives.
Paragraph 3 shall not apply if the website gives shareholders the possibility, throughout the period referred to in the first subparagraph of this paragraph, of downloading and printing the documents referred to in paragraph 1. However, in that case Member States may provide that the company is to make those documents available at its registered office for consultation by the shareholders.
Member States may require companies to maintain the information on their website for a specific period after the general meeting. Member States may determine the consequences of temporary disruption of access to the website caused by technical or other factors.".
Article 13 i is replaced by the following:
"2. To that end, the laws of the Member States shall at least provide that such creditors shall be entitled to obtain adequate safeguards where the financial situation of the merging companies makes such protection necessary and where those creditors do not already have such safeguards.
Member States shall lay down the conditions for the protection provided for in paragraph 1 and in the first subparagraph of this paragraph. In any event, Member States shall ensure that the creditors are authorised to apply to the appropriate administrative or judicial authority for adequate safeguards provided that they can credibly demonstrate that due to the merger the satisfaction of their claims is at stake and that no adequate safeguards have been obtained from the company.".
In Article 19 i, the initial words 'Paragraph 1' are replaced by the words 'The foregoing'. [EP/Council want to go back to original wording] [see consolidated version in Eurlex]
Article 23 i is deleted.
The wording of Article 24 is replaced by the following wording:
"Member States shall make provision, in respect of companies governed by their laws, for the operation whereby one or more companies are wound up without going into liquidation and transfer all their assets and liabilities to another company which is the holder of all their shares and other securities conferring the right to vote at general meetings. Such operations shall be regulated by the provisions of Chapter II. However, Member States shall not impose the requirements set out in points (b), (c) and (d) of Article 5 i, Articles 9 and 10, Article 11(1)(d) and (e), Article 19(1)(b) and Articles 20 and 21.".
The wording of Article 25 is replaced by the following wording:
"Member States shall not apply Article 7 to the operations referred to in Article 24 if the following conditions are fulfilled:
(a) the publication provided for in Article 6 must be effected, as regards each company involved in the operation, at least one month before the operation takes effect;
(b) at least one month before the operation takes effect, all shareholders of the acquiring company must be entitled to inspect the documents referred to in Article 11(1)(a), (b) and (c) at the company's registered office;
(c) Article 8(c) must apply.
For the purposes of point (b) of the first paragraph, Article 11 i, i and i shall apply.".
The wording of Article 27 is replaced by the following wording:
"Where a merger by acquisition is carried out by a company which holds 90 % or more, but not all, of the shares and other securities conferring the right to vote at general meetings of the company or companies being acquired, Member States shall not require approval of the merger by the general meeting of the acquiring company if the following conditions are fulfilled:
(a) the publication provided for in Article 6 must be effected, as regards the acquiring company, at least one month before the date fixed for the general meeting of the company or companies being acquired which is to decide on the draft terms of merger;
(b) at least one month before the date specified in point (a), all shareholders of the acquiring company must be entitled to inspect the documents specified in points (a), (b) and, where applicable, (c), (d) and (e) of Article 11 i at the company's registered office;
(c) Article 8(c) must apply.
For the purposes of point (b) of the first paragraph, Article 11 i, i and i shall apply.".
The wording of Article 28 is replaced by the following wording:
"Member States shall not impose the requirements set out in Articles 9, 10 and 11 in the case of a merger within the meaning of Article 27 if the following conditions are fulfilled:
(a) the minority shareholders of the company being acquired must be entitled to have their shares acquired by the acquiring company;
(b) if they exercise that right, they must be entitled to receive consideration corresponding to the value of their shares;
(c) in the event of disagreement regarding such consideration, it must be possible for the value of the consideration to be determined by a court or by an administrative authority designated by the Member State for that purpose.
A Member State need not apply the first paragraph if the laws of that Member State entitle the acquiring company, without a previous public takeover offer, to require all the holders of the remaining securities of the company or companies to be acquired to sell those securities to it prior to the merger at a fair price.".
The wording of Article 33 is replaced by the following wording:
"This Directive shall enter into force on 1 July 2011.".
In Annex I, Part A, the following entry is added:
"Directive 2009/109/EC of the European Parliament and of the Council
(OJ L 259, 2.10.2009, p. 14) / Article 2 only".
In Annex I, Part B, the following entry is added:
"2009/109/EC / 30 June 2011".
In Annex II, the references to 'Chapter I', 'Chapters I to VI' and 'Chapters II to VII' are deleted.
5. To facilitate reading and examination, the full text of the amended proposal for codification is attached hereto.
78/855/EEC (adapted)