Explanatory Memorandum to COM(2018)239 - Amendment of Directive (EU) 2017/1132 as regards the use of digital tools and processes in company law - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2018)239 - Amendment of Directive (EU) 2017/1132 as regards the use of digital tools and processes in company law. |
|---|---|
| source | COM(2018)239  |
| date | 25-04-2018 |
1. CONTEXTOFTHEPROPOSAL
Reasons for and objectives of the proposal
The EU economy needs healthy and flourishing companies which can easily operate in the Single Market. Such companies play a crucial role in promoting economic growth, creating jobs and attracting investment in the European Union. They help to deliver greater economic as well as social value for society at large. To achieve this end, companies need to operate in a legal and administrative environment which is both conducive to growth and adapted to face the new economic and social challenges of a globalised and digital world, while pursuing also other legitimate public interests such as the protection of employees, creditors and minority shareholders and providing authorities with all necessary safeguards to combat fraud or abuse.
It is with this objective that the Commission is putting forward this proposal, together with the Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions - a comprehensive set of measures for fair, enabling and modern company law rules in the EU.
There are around 24 million companies in the EU, out of which approximately 80% are limited liability companies. Around 98-99% of limited liability companies are SMEs.
Companies increasingly use digital tools in their business and they also need to interact with public authorities, but this is not always possible through online means. In the EU there are significant differences between Member States when it comes to the availability of online tools for companies in their contacts with public authorities in the area of company law. Member States provide e-government services at variable degrees: some are very advanced and provide easy-to-use, fully online solutions, while others do not offer at all online solutions for critical steps in a company's lifecycle such as the registration of the company as a legal entity.
Achieving a deeper and fairer internal market is one of the 10 key priorities of the Commission, together with the development of the Digital Single Market. The 2015 Digital Single Market Strategy1 and the 2016 e-Government Action Plan2 stressed the role of public administrations in helping businesses to easily start business, operate online and expand across borders. The e-Government Action Plan specifically recognised the importance of improving the use of digital tools when complying with company law related requirements. The proposal for a Regulation on the Single Digital Gateway3 emphasises the importance of digital tools and processes to help businesses to take full advantage of the Single Market and requires the full digitalisation of the most important administrative procedures for crossborder users.
COM(2015) 192 final.
COM(2016) 179 final.
Proposal for a Regulation of the European Parliament and of the Council on establishing a single digital
gateway to provide information, procedures, assistance and problem solving services and amending
Regulation (EU) No 1024/2012 - COM(2017)256.
The European Parliament, in its 2017 resolution on the e-Government Action Plan4, called on the Commission to consider further ways to promote digital solutions for formalities throughout a company's lifecycle and underlined the importance of work on the interconnection of business registers.
The Council also encouraged the Commission in its 2015 Conclusions5 on the Single Market Policy to address the online registration of companies through the use of the Digital Single Market Package. Against this background, the Commission 2017 Work Programme included a company law initiative to facilitate the use of digital technologies throughout a company's lifecycle (equally confirmed in the Digital Single Market Mid-term Review6). Furthermore, most recently in the Tallinn declaration on e-Government7 the Member States made a strong call to step up efforts for provision of efficient, user-centric electronic procedures in the EU. The Commission included an initiative on company law as part of its Work Programme
2017.8
Currently the EU company law9
the EU company law includes certain elements of digitalisation such as the obligation for Member States to make available online information about limited liability companies registered in central, commercial and companies registers (herein 'registers'). However, these requirements are limited and lack precision, leading to a very diverse implementation at national level.
In addition, certain digital processes, for instance online company registration, are not covered at all by EU law and only a number of Member States address them at national level. Some Member States only allow for face-to-face procedure for company registration and filing of changes, while others allow both face-to-face and online procedure or only online. The situation is similar for the online registration of branches. Although branches do not have a legal personality, they still need to be registered in the business register10. The registration of a branch largely follows the same requirements as company registration.
Current EU rules also provide for the publication of all or part of the registered information on companies in the national gazette. It is only by publication in the national gazette (or equally effective means) that the disclosed information becomes legally effective. Such requirement dates back to the early days of EU company law when the publication in the official gazette was the only way of ensuring certainty and transparency of business information. Member States can keep the national gazette in electronic form, but possible multiple submission of information requirements in Member States (i.e. both to the business register and the national gazette) still exist. In addition, companies having a branch in another
10
European Parliament resolution of 16 May 2017 on the EU eGovernment Action Plan 2016-2020; (2016/2273(INI)).
Council Conclusions on Single Market Policy, 6197/15, 2-3 March 2015.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Mid-Term Review on the implementation of the Digital Single Market Strategy - A Connected Digital Single Market for All (COM/2017/0228 final).
The Tallinn Declaration on eGovernment was signed at the ministerial meeting during Estonian Presidency of the Council of the EU on 6 October 2017. COM(2016) 710 final.
Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law (OJ L 169, 30.6.2017, p. 46).
EU company law refers to business registers as 'central, commercial or companies registers' (see Article 16 of Directive (EU) 2017/1132).
4
EU country need to file their annual accounts both to the register where the company is registered and to the register in the Member State where the branch is registered.
Third parties (investors, citizens, other companies) need to access company information in the registers. The EU law sets a minimum set of data which must always be provided for free, however, this remains limited11. For the other company information most Member States charge fees for all or some of that information. Thus, access to information varies across the EU, with more information being available free of charge in some Member States than in others which creates an unbalanced situation in the EU.
The lack of rules for online registration, filing and publication or the divergence of such rules in the Member States create unnecessary costs and burdens to entrepreneurs who wish to set up a new business or to expand their business by registering subsidiaries or branches or fulfil specific requirements online. This in turn may lead to missed business opportunities due to delay in registering the business or in a worst case to the decision not to set up a business at all.
The processes in Member States that have put in place solutions for online registration are generally cheaper and quicker to process than those where the applications are made in person and on paper.12 Companies that do not have the option to register online incur higher costs than those that can complete the procedure fully online. The time needed to complete the procedure also adds up to the costs incurred by companies and when procedures require the physical presence in front of a competent authority the time for completing the registration is longer than when procedures are done fully online. The relevant competent authorities in the Member States – namely the business registers – are also affected by their own slow take-up of digital solutions. This is mainly proven by counter-examples from those that have already made progress in digitalising their processes over the past few years. Registers that are not yet offering streamlined online procedures for companies are missing out on the efficiencies that these solutions could bring to their own organisations.
The use of digital solutions in company law, in particular for the registration of companies, should be done in such way as to avoid the possibility of fraud or abuse. The phenomenon of letterbox companies has been a concern flagged by some stakeholders. This proposal does not aim to specifically address the issue of letterbox companies as it does not harmonise substantive requirements for setting up companies or doing business. It is without prejudice to rules laid down in certain areas, such as posting of workers13, coordination of social security systems14 and road transport15, to ensure that undertakings do not improperly or fraudulently
14
company registration number.
For example in Ireland online registration takes 5 days instead of 10-15 days on paper and costs half of
the paper registration. Similarly, online registration in Finland, UK and Estonia is much faster and costs
less.
enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the
provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation
through the Internal Market Information System (‘the IMI Regulation’) (OJ L 159, 28.5.2014, p. 11).
Regulation (EC) No 883/2004 on the coordination of social security systems and regulation (EC) No
final).
12
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take advantage of Treaty freedoms through letter-box companies not genuinely performing substantial activities. Substantive requirements of incorporation of companies as well as connecting factors are dealt with under the national laws of the Member States. However, within its scope, and to address concerns highlighted by some stakeholders in the public consultation, the proposal sets safeguards against fraud and abuse such as mandatory identification control, rules on disqualified directors and a possibility for Member States to require the involvement of a person or body in the process, such as notaries or lawyers. There are also other measures taken by the Commission outside the scope of this proposal to avoid using companies for criminal activities16. The Council has adopted a number of measures to counteract corporate tax avoidance in recent years: Council Directive 2015/237617, Council Directive 2016/88118 and Council Directive (EU) 2016/116419. Political agreement within the Council was reached on 13 March 2018 on the Commission proposal20 for a Directive on mandatory disclosure by intermediaries for tax planning schemes, which should be adopted shortly.
The digitalisation of registration of companies is widely considered as very important. According to the results of a public consultation in 2016 the registration of business activity including registration of a company was seen as the most important online procedure for businesses that should be available online. Responding to this feedback, the Commission proposal on a Single Digital Gateway which provides certain general rules for online procedures, covers the general registration of business activity via online means except for the constitution of companies within the meaning of Article 54 TFEU. This exception was made to allow for a dedicated, comprehensive approach for the registration of companies and all other procedural events within their life cycle to be addressed in the company law acquis. When adopting the Single Digital Gateway proposal, the Commission committed to propose specific rules for this area without delay.
This proposal aims to address the above-described issues and answer the calls to provide more digital solutions for companies in the Single Market. It aims to provide more equal opportunities for companies in the EU while ensuring that Members States have the necessary flexibility to adjust their national systems to their needs and to maintain their legal traditions. Members States should enable and promote the use of digital tools and processes in company law.
Regulation (EC) No 1071/2009 and Regulation (EC) No 1072/2009 with a view to adapting them to
developments in the sector, COM(2017)281 final.
See for example the Communication from the Commission to the European Parliament, the Council and
the European Economic and Social Committee on the follow-up to the Action Plan on VAT Towards a
single EU VAT area - Time to act COM(2017) 566 final.
pricing arrangements between Member States, Council Directive (EU) 2015/2376 of 8 December 2015
amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field
of taxation (OJ L. 332, 18.12.2015, p.
1)..
multinational enterprises, Council Directive (EU) 2016/881 of 25 May 2016 amending Directive
2011/16/EU as regards mandatory automatic exchange of information in the field of taxation (OJ L.
146, 3.6.2016, p.
8).
It lays down rules against tax avoidance practices that directly affect the functioning of the internal
market, including provisions on exit tax to prevent companies from avoiding tax when re-locating
assets, Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance
practices that directly affect the functioning of the internal market (OJ L. 193, 19.7.2016, p.
1).
COM(2017) 335 final.
19
20
5
6
7
8
Consistency with existing policy provisions in the policy area
This proposal is aimed to complement the existing rules on EU company law that are codified in Directive (EU) 2017/1132. The initiative is fully coherent with and will build on existing digital elements of EU company law, in particular on the Business Registers Interconnection System (BRIS) which is based on legal obligations set out by Directive 2012/17/EU and the Commission Implementing Regulation (EU) 2015/884.
Consistency with other Union policies
This initiative will contribute to several Commission initiatives which aim to improve the functioning of the Single Market by making it deeper and fairer and to build a digital Europe21. It will enhance the digital interactions between administrations and citizens/businesses, and contribute to increased transparency. Furthermore, it will promote the implementation of the once-only principle which is largely supported in Commission initiatives such as the e-Government Action Plan and included in the proposed Single Digital Gateway Regulation, as well as in the recent Tallinn declaration on e-Government. While this proposal deals with specific cases of 'once-only' submission of company data in the context of company law, such cases contribute to the wider efforts of implementing the once-only principle at EU level.
In particular, this proposal will complement the Commission proposal for a Regulation on the establishment of a Single Digital Gateway which covers the general registration of business activity via online means except for the constitution of limited liability companies. This proposal has been aligned with the provisions of the Single Digital Gateway. It provides in particular more specific, substantial rules on the procedures for establishing and registering limited liability companies and branches and constitutes a 'lex specialis' in relation to the Single Digital Gateway. It is important to ensure coherence between the Single Digital Gateway and this proposal in order to build consistent, long-term digital policy. Therefore, the information about procedures pursuant to this proposal is to be provided on the websites available through the Single Digital Gateway and should meet the same quality requirements, in particular as regards the need to be up-to-date, clear and user friendly. The proposal will also provide the necessary legal conditions for the use of digital tools and processes in order to enable companies to benefit from the use of electronic identification and trust services through the eIDAS Regulation22. Furthermore, it will introduce the once-only principle in the area of company law in line with the eGovernment Action Plan 2016 – 2020, supporting EU wide efforts to reduce the administrative burdens on citizens and businesses.
Finally, the online registration of companies will also benefit from the recent Public Document Regulation23 which will require Member States to accept a series of documents from citizens without further verification and translation by the end of 2018.
22
23
Economic and Social Committee and the Committee of the Regions: Upgrading the Single Market:
more opportunities for people and business - COM/2015/550 final. .
electronic identification and trust services for electronic transactions in the internal market and
repealing Directive 1999/93/EC.
Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting
the free movement of citizens by simplifying the requirements for presenting certain public documents
in the European Union and amending Regulation (EU) No 1024/2012.
21
Overall, the initiative will enhance the efficiency and legal certainty of cross-border operation procedures relating to cross-border mergers, divisions and conversions as part of a parallel initiative, which includes also targeted elements of digitalisation.
2. LEGALBASIS, SUBSIDIARITYAND PROPORTIONALITY
Legal basis
The proposal is based on Article 50 (1) and (2) of the Treaty on the Functioning of the European Union (TFEU) which is the legal basis for the EU competence to act in the area of company law. In particular, Article 50(2) (f) provides for progressive abolition of restrictions on freedom of establishment and Article 50(2) (g) provides for coordination measures concerning the protection of interests of companies’ members and other stakeholders.
Subsidiarity (for non-exclusive competence)
The overall objective of this legislative proposal is to ensure the smooth functioning of the EU Single Market for the whole duration of a company's life-cycle when in contact with authorities concerning company and branch registration and filing of information. This is not limited to the territory of one Member State, but covers the entire territory of the EU. Registration, filing or access to company data should not entail significant additional regulatory burdens for the applicants when registering companies or branches in other Member States. Cross-border registration of companies and branches can be performed in a much more cost-effective way through online means. To ensure equal conditions in all Member States, and given the transnational nature of the Single Market and the necessity to address the current situation in a cross-border context, EU action will be most effective in reducing the costs for businesses when registering companies and branches, filing changes or accessing company data. Member States acting individually would continue to apply their own rules in this respect with little prospect that such rules would address the cross-border situations in a compatible manner.
It appears, therefore, that without any action at EU level only non-harmonised national solutions would be available and SMEs would continue to face barriers making effective exercise of the freedom of establishment more difficult and the resulting costs would in particular affect the companies. In this context, the targeted EU intervention complies with the principle of subsidiarity.
Proportionality
The measures introduced by this proposal are proportionate to its objective of providing digital solutions for companies in the Single Market throughout their complete life-cycle. The provisions require Member States to ensure the possibility to use online methods when registering companies or filing changes, but provides full flexibility to Member States to achieve this in line with their national laws and systems. The impact assessment accompanying this proposal explains the cost and benefits of every option for companies, stakeholders and Member States by taking into account all necessary elements including societal benefits and political feasibility. For example, online registration takes on average half of the time and can be up to 3 times cheaper than traditional paper-based formats and savings for online registration and filing, to be generated once this proposal comes into effect, are estimated to be EUR 42 – 84 million per year. Also based on efficiency analysis, the cost and benefits of every option for companies, stakeholders and Member States, it appears that the proposed actions do not go beyond what is necessary to achieve the aim and that positive impacts of the proposed measures exceed the possible negative impacts (Section 6.3 of the impact assessment). The initial investment costs related to the IT developments will be
compensated by savings by businesses and the national administration alike, in the longer term.
The proposal also respects national legal traditions, in particularly those with the notarial involvement in the process of registration of companies. Furthermore, the proposal has been prepared taking into account the current situation in Member States and by building on existing Member States solutions and practices. Many Member States already comply with a number of the proposed measures and will need to introduce only limited changes. This proposal does not entail any additional obligations for citizens and businesses, as the measures aim to simplify and streamline the procedures.
Choice of the instrument
The legal basis for company law operations is Article 50 TFEU which requires the European Parliament and the Council to act by means of directives. Directive (EU) 2017/1132 governs company law at EU level. For reasons of cohesion and consistency of EU company law, the present proposal will amend Directive (EU) 2017/1132.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
Contents
- CONSULTATIONS
- Proposal for a Regulation of the European Parliament and of the Council on establishing a single digital
- The common set of free of charge data covers company name, registered address, legal form and
- For example in Ireland online registration takes 5 days instead of 10-15 days on paper and costs half of
- See Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the
- Commission proposal for a Regulation of the European Parliament and of the Council amending
- 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004 (COM(2016)815
- Commission proposal for a Regulation of the European Parliament and of the Council amending
- See for example the Communication from the Commission to the European Parliament, the Council and
- It provides for mandatory automatic exchange of information on advance tax rulings and advance
- It provides for mandatory automatic exchange of information of country-by-country reporting by
- It lays down rules against tax avoidance practices that directly affect the functioning of the internal
- Communication from the Commission to the European Parliament, the Council, the European
- Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on
- Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting
- 24 25
- Study On Digitalisation Of Company Law, Everis 2017 and Assessment of the impacts of using digital
- Article 13c requires Member States to ensure that the rules on fees applicable to online registration and filing are transparent and are applied in a non-discriminatory manner. It
ANDIMPACTASSESSMENTS
Ex-post evaluations/fitness checks of existing legislation
The proposal principally aims at introducing new provisions, and to the extent necessary complementing existing ones to achieve the use of digital tools and processes throughout a company's lifecycle. Therefore, no evaluation took place.
Stakeholder consultations
The Commission has actively engaged with stakeholders and conducted comprehensive consultations throughout the impact assessment process. The consultation process consisted of an online public consultation, stakeholder meetings including discussions with Member State experts, several studies. The information gathered through all these means fed into the proposal.
The results of the public consultation in 2016 on the Single Digital Gateway showed that the registration of business activity including registration of a company was the most important online procedure for businesses that should be available online.
The online public consultation, entitled 'EU Company law upgraded: Rules on digital solutions and efficient cross-border operation', was launched on 10 May 2017 and ended on 6 August 2017. Its aim was to collect input from stakeholders on problems in company law, gather what evidence they may have on such problems and hear about possible solutions as to how to address the problems at EU level.
There were 209 responses submitted. The responses came from various stakeholder groups such as national public authorities, regional public authorities, business organisations, notaries, trade unions, private businesses, national business registers, legal academics as well as private individuals.
Facilitating the digital interactions between companies and Member States' authorities were considered as a priority by most Member State authorities. Business organisations were supportive of all of the legislative initiatives in this area (particularly fully online, electronic identification standards and the once-only principle) and deemed it to be a strong EU priority for fostering economic activity and removing undue barriers for companies wishing to operate
cross-borders. Academics and research institutions were also broadly in favour of a legislative initiative in this area with circa 68% deeming this question to be a priority issue. The majority of trade unions expressed moderate support for a legislative initiative in this area, mainly due to concerns that an online procedure would entail a higher risk of fraud. Notaries almost unanimously rejected the notion of the lack of legislation being problematic and strongly felt that the EU should not be addressing this issue at all24.
The views of stakeholders were collected during numerous meetings. The process of the consultation on the company law package within the Company Law Expert Group (CLEG) began in 2012. From 2012 – 2014, the CLEG meetings focussed on the 2012 Action Plan of Company Law and Corporate Governance while in 2015 and 2016 the meetings centred on elements of digitalisation. In 2017, three CLEG meetings took place where the relevant issues for the company law package, namely digitalisation, cross-border mergers, divisions and conversions were discussed in detail. The Commission presented to the experts its intentions and ideas in the relevant areas, asking the Member States experts their opinion as regards the specific issues. Generally the Member States' representatives showed support for the initiative.
In 2017, the Commission invited to the CLEG meetings not only Member States experts but also stakeholders' representatives. These stakeholders have been targeted and identified based on their participation in the 2013, 2015 and 2017 public consultations and based on their involvement in the areas regulated by EU Company Law. Stakeholders represented businesses, employees, legal professionals. The outcome of these meetings showed that most of the Member States have already extensive digital solutions for interactions between companies and Member States' authorities. They were in general supportive of digitalisation at EU level; differences in views remained as regards how to address specific elements of the proposal. Business representatives' position was that digitalisation was needed and would greatly help European companies. Notaries and some Member States were concerned about possible fraud in online registration.
Collection and use of
expertise
In order to assist the work of the Commission, the Informal Company Law Expert Group (ICLEG) was established in May 2014 on issues of company law. The members of the expert Group were highly qualified and experienced academics and legal practitioners of company law from numerous Member States. ICLEG members gave their recommendation to the future development of existing framework governing the use of digital tools in the company law25.
The Commission has also used the results of two studies of 201726 analysing specific questions of the digitalisation of company law and assessing the impacts of using digital tools in the context of cross-border company operations. Furthermore, the Commission collected expert feedback at several conferences including the Company Law in the Digital Age conference held in October 2015 in Brussels, the conference held in September 2017 in Tallinn, Estonia: The 21st European Company Law and Corporate Governance Conference:
26
For further details see Annex II: Stakeholder consultation in the Impact Assessment.
Informal Company law Expert Group, Report on digitalisation in company law, March 2016.
https://ec.europa.eu/info/sites/info/files/icleg-report-on-digitalisation-24-march-2016_en.pdf
Study On Digitalisation Of Company Law, Everis 2017 and Assessment of the impacts of using digital
tools in the context of cross-border company operations, Optimity Advisors and Tipik Legal, 2017.
Crossing Borders, Digitally and the Annual Conference on European Company Law and Corporate Governance that took place in Trier, Germany in October 2017.
Impact assessment
The Impact Assessment Report, covering digitalisation, cross-border operations and conflict of law rules in company law, was examined by the Regulatory Scrutiny Board (RSB) on 11 October 2017. Following an initial negative opinion of the RSB, a revised version of the Impact Assessment was submitted to the Board for which a positive opinion with reservations was issued on 7 November 2017. The reservations expressed by the RSB mainly referred to other areas assessed by the report, and not to the issues related to the digitalisation of company law. In particular, the Board noted that the report improved substantially since its first submission. More data/evidence has been added and the sources and methodologies were better explained. It was also acknowledged that the report provided more information on the scale of the problems and the policy options were described more in detail. The initiative was built on existing safeguards for employees, creditors and minority shareholders, including acquired rights for employees' information, consultation and participation. The impact assessment looked at three main issues in relation to the use of digital tools in company law. Several policy options were considered for each issue and in each case an option was presented as preferred after comparison with the other options.
Concerning the online registration (creation of a company as legal entity) and filing of documents to the business register, three options were proposed and their impacts were assessed and compared. The preferred option would provide for rules on the online registration of company and branch and online filing of company documents in all Member States. Member States would need to ensure that such procedures can be completed online without the need for physical presence of the applicant (or its representative) in front of any authority or other persons or bodies involved in the process. In addition, this option allows Member States to exceptionally require physical presence, on a case-by-case basis, when there is a genuine suspicion of fraud. To ensure uniform implementation between the Member States, this option would also introduce safeguards for electronic identification laid down at EU level.
Concerning the multiple submission of the same information by companies, two options were proposed and their impacts were assessed and compared. The preferred option seeks simplification by introducing rules requiring Member States to ensure that, when the register receives certain data from the company (e.g. change of company name, change of registered office or latest annual accounts), it then sends it to the register in another Member State where the company has a branch (as opposed to the company doing that). Similarly, once the company information is filed with the register, it is the register that sends it electronically to the national gazette (as opposed to the company representative submitting the same documents twice). In addition, the preferred option would make the requirement for publication of company information in the national gazette optional. This option provides for several concrete cases of implementing the once-only principle at EU level.
Finally, concerning online access to company information held in business registers, two options were proposed and their impacts were assessed and compared. The preferred option proposes to expand the set of company data to be provided free of charge by all business registers, while Member States could still charge fees for other information. Currently only the following details are always free of charge: company name, registered office, registration number and legal form. It is proposed that the 'always free-of-charge' data could also include e.g. information on the legal status of the company; other names of the company (former
names or secondary/alternative names) if any; company website (if any); object of the company (if national law requires to have this information in the business register); and information on whether the company has any branches established in another Member State. In addition, the set of free data would also include the names of the company's legal representatives which are considered important to stakeholders and the Commission has had calls for promoting easy access to it.
Regulatory fitness and simplification
The proposal is expected to deliver considerable simplification benefits to businesses by facilitating digital interactions with Member States' authorities. The possibility of online registration will enable businesses to register companies and file changes without the need to be physically present. Savings from the introduction of online registration for new companies registered in the EU are estimated to be between €42-84 million, under the assumptions presented in the impact assessment. In addition, the proposed rules on disclosure of company data will be in line with the once-only principle. The extension of company data free of charge will also help businesses and stakeholders to collect and verify information that are important in business relations.
The cost reduction and simplifications brought about by the new rules will have a particularly positive impact on SMEs.
Fundamental rights
The proposed rules of this initiative ensure the full respect of the rights and principles set out in the Charter of Fundamental Rights of the European Union and contribute to implementation of several of those rights. In particular, the main objective of this initiative is to facilitate the rights of establishment in any Member State, as prescribed by Article 15(2) of the Charter. The initiative aims to reinforce the freedom to conduct a business in accordance with Union law and national laws and practices (Article 16). The protection of personal data shall also be ensured in line with Article 8 of the Charter.
4. BUDGETARYIMPLICATIONS
The proposal is expected to have certain budgetary implications at least on some of the Member States who may need to adapt their IT systems in order to support the new provisions. However, as explained in the impact assessment accompanying this proposal, those setting up costs would be recovered in the medium and long term through saving time and resources in Member States' administration. The extension of the set of data that is available free of charge from business registers is also expected to have an impact to the financial resources of some of the business registers. There is no impact on the EU budget.
5. OTHERELEMENTS
Implementation plans and monitoring, evaluation and reporting arrangements
The Commission will assist the Member States to transpose the proposed measures and will monitor the implementation. In this activity, the Commission will cooperate closely with national authorities e.g. the national company law experts in the Company Law Expert Group (CLEG). In that context, the Commission may provide assistance and guidance (e.g. by organising implementation workshops or providing advice on bilateral basis). As regards the implementation of the rules it has to be highlighted that many Member States already comply with some or many of the proposed rules since the proposal was designed taking into account
current solutions and best practices in the Member States. Building on the experiences gained through the implementation and evaluation, the Commission may consider a pilot project for the development of common templates for the instrument of constitution for one or more types of limited liability companies.
To help Member States in their efforts for implementation of practical questions such as the use of eIDAS for company law procedures, the Commission will use the existing framework of cooperation.
The extent to which the initiative has reached its goal of cutting unnecessary costs and burdens for companies will be assessed on the basis of various indicators such as monitoring costs of companies' operations within the scope of the initiative through collection of costs for online registration and filing. In order to gather the required data some reporting obligations for Member States will be needed. With a view to gathering the required stakeholder input, the Commission may organize targeted surveys. An evaluation will need to be carried out in order to assess the impact of the proposed measures and verify if the objectives have been achieved. It will be carried out by the Commission on the basis of the information gathered during the monitoring exercise and additional input collected from the relevant stakeholders, as necessary. An evaluation report could be issued 5 years after the end of the transposition period.
The provision of information for monitoring and evaluation should not impose any unnecessary administrative burden on the stakeholders concerned.
Explanatory documents (for directives)
The proposal is an amendment to the Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law. To ensure the proper implementation of this complex directive, the explanatory document, e.g. in the form of correlation tables would be necessary.
Detailed explanation of the specific provisions of the proposal
The proposal amends Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law. The present detailed explanation describes the proposed provisions accordingly and concentrates on the substantial elements of the proposal. Technical modifications are described only if it is necessary to understand the proposal better.
Article 1 of this Directive describes the amendments to Directive (EU) 2017/1132:
Article 13 lays down the scope of the directive which is limited to the company forms specified in the Annexes.
Article 13a contains the definitions.
Article 13b contains provisions on the identification means that are necessary for online company registration and filing. The identification of persons completing these procedures is crucial to ensure the reliability of business registers and to avoid identity fraud. The provision ensures the mandatory recognition of e-IDAS compliant electronic identification means of Union citizens issued in another Member State and allows at the same time Member States to recognise other identification means. As a safeguard to avoid fraud, the provision allows Member States to require the physical presence of relevant persons before a competent authority but only in case of genuine suspicion based on reasonable grounds.
Article 13c requires Member States to ensure that the rules on fees applicable to online registration and filing are transparent and are applied in a non-discriminatory manner. It
provides that fees charged by registers shall not exceed the administrative costs of providing the service.
Article 13d clarifies that if the completion of online procedures requires payments, they can be done cross-border by means of commonly accessible systems.
Article 13e aims to ensure that those that want to set-up and operate companies and branches cross-border have easy access to all relevant information about registration of and filing by companies and branches. It requires Member States to make available extensive information online on the relevant company law procedures, obligations and formalities. Member States are required to make such information available at least in an official Union language broadly understood by the largest possible number of cross-border users.
Article 13f requires Member States to introduce the possibility to register companies online. The crucial element of online registration is that it can be completed online in its entirety without the necessity for the applicant, or his representative, to appear in person before any competent authority or before any other person or body. Member States may opt-out from this obligation in relation to public limitied liability companies given the complexity of establishment and registration of such companies. The provision obliges Member States to lay down detailed rules for online registration and specifies a number of mandatory and optional elements of such rules. A general maximum time limit of five working days is established for the completion of the process for the registration of companies online.
Article 13g requires Member States to make available online templates of instruments of constitution that can be used for online registration of companies covered by Annex IIA. Member States may also make such templates available for companies covered by Annex II other than the types covered by Annex IIA. The content of the templates referred to in this Article and their verification is governed by national law. The provisions also require Member States to make such templates available at least in an official Union language broadly understood by the largest possible number of cross-border users. It is important to note that the 'due legal form' referred to in this article only concerns the constitution of a company; this does not set any precedent for other fields of law (e.g. property).
Article 13h provides a legal framework for Member States to request information from other Member States concerning disqualified directors. The provisions allow Member States to check with other Member States if a person to be registered as a director of a company is disqualified from acting as a director in another Member State on the basis of the national law of that Member State. The provision obliges the other Member States to provide such information upon request. Member States may refuse the appointment of a person as a director of a company or branch who is currently disqualified from acting as a director in another Member State.
Article 13i requires Member States to ensure fully online solutions in case of submitting the necessary information to the register throughout the lifecycle of the company, similarly to the online registration of companies.
Article 16 and Article 16a replace Article 16 of Directive (EU) 2017/1132. The original Article 16 was split to simplify the text.
The definition of electronic means is deleted since the new proposed rules on online procedures make it superfluous.
The disclosure of information and documents is to be effected by entering them and making them publically available in the business register. This means that third parties can rely on the information in the register without it being necessary that any further step is carried out, in particular the same information being published in the national gazette. Nevertheless, Member
States can still maintain the publication of company information in the national gazette but in such a case the register should send the information to the national gazette (as opposed to the company doing that). This new provision aims to support the 'once-only' principle according to which companies should not have to provide the same information twice to different authorities.
This article also requires Member States to ensure that all information and documents provided to a competent authority as part of the registration or filing of a company or a branch shall be stored by the registers in a machine-readable and searchable format or as structured data. Member States will have a period of 5 years to ensure full compliance with this requirement. Keeping company information in structured formats will facilitate the way in which data can be searched for and exchanged with other systems.
Article 16a includes provisions on access to company information by third parties. The amendment introduces the obligation for Member States to ensure that an applicant can obtain electronic extracts authenticated by means of trust services from the registers.
Article 18 of Directive (EU) 2017/1132 is amended to allow Member States to make available, via the interconnection of registers, electronic copies of information and documents concerning types of companies other than those listed in Annex II of the codified directive.
Article 19 of Directive (EU) 2017/1132 is replaced. The new provision extends the scope of data which Member States shall make available free of charge. The extended list contains now, amongst others, former names of a company (if any), its website (if any), legal status and object (if available in the register under national law). The objective of this provision is to give free of charge access to more company data thus enhancing transparency and confidence in the Single Market.
Article 22 of Directive (EU) 2017/1132 is amended to allow for the development of the system of interconnection of registers and the related European central platform. To this aim, Article 22 i sets out that optional access points may be established not only by the Member States, but also by the Commission or other Union institutions, bodies, offices or agencies in order to allow them to perform their functions or to comply with provisions of EU law.
Article 24 of Directive (EU) 2017/1132 is amended by adapting the legal basis for the implementing acts concerning the business registers interconnection to the changes now proposed to the directive. The Commission shall also adopt implementing acts for technical specifications of certain exchanges of information under the directive.
Article 28a introduces online registration for branches, similarly to companies.
Article 28b introduces online filing for branches, similarly to companies.
Article 28c requires Member States to inform each other, via the system of interconnection of business registers, about closures of branches registered in a Member State other than the one where the company is registered.
Article 30a requires the Member State where the company is registered to inform the Member State where a branch of the company is registered, via the system of interconnection of registers, about changes in certain information of the companies, such as changes in the name or registered address of the company. This provision also aims to implement the 'once-only' principle in cross-border situations.
The proposal also includes some necessary technical adjustments in Directive (EU) 2017/1132.
The existing Article 43 is deleted. This article of the codified directive (originating from Article 17 of the Directive 89/666/EEC) refers to the Contact Committee set up pursuant to Article 52 of Council Directive 78/660/EEC. The latter Directive was replaced by Directive 2013/34/EU27. The new Directive 2013/34/EU includes no legal basis for this Committee, so the Committee no longer exists.
The amended Article 161 contains the updated reference to the applicable rules governing data protection: the Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) that repeals Directive 95/46/EC.
The amended Article 162a refers the powers to adopt delegated acts in order to keep the lists of company law forms in Member States up-to-date (Annexes I, II and IIA). The Commission will adopt, through a delegated act, an amendment to these annexes when it receives such information from Members States.
Finally, in Annexes I and II, the types of companies of Sweden have been updated to ensure more precise terminology.
Article 2 contains provisions on transposition.
Article 3 describes the reporting on and the review of the Directive after its application started.
Annex IIA has been inserted.
Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC Text with EEA relevance.
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