Directive 2012/17 - Amendment of Council Directive 89/666/EEC and Directives 2005/56/EC and 2009/101/EC of the European Parliament and of the Council as regards the interconnection of central, commercial and companies registers - Main contents

EN

Official Journal of the European Union

L 156/1

Businesses are increasingly expanding beyond national borders, using the opportunities offered by the internal market. Cross-border groups, as well as many restructuring operations, such as mergers and divisions, involve companies from different Member States. Consequently, there is an increasing demand for access to information on companies in a cross-border context. However, official information on companies is not always readily available on a cross-border basis.

Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State (3) establishes the list of documents and particulars that companies have to disclose in the register of their branch. However, there is no legal obligation on the registers to exchange data concerning foreign branches. This leads to legal uncertainty for third parties as, despite the striking-off of the company from the register, its branch may continue to operate.

Operations such as cross-border mergers have made day-to-day cooperation between business registers a necessity. Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies (4) requires the registers to cooperate across borders. There are, however, no established channels of communication that could accelerate procedures, help overcome language problems, and enhance legal certainty.

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 (5) ensures, inter alia, that documents and particulars stored in the register can be accessed by paper means or by electronic means. However, citizens and companies still need to search the register on a country-by-country basis, in particular because the current voluntary cooperation between registers has not proved to be sufficient.

The Commission Communication on the Single Market Act identified the interconnection of central, commercial and companies registers as a measure required to create a more business-friendly legal and fiscal environment. The interconnection should contribute to fostering the competitiveness of European business by reducing administrative burdens and increasing legal certainty and thus contributing to an exit from the global economic and financial crisis, which is one of the priorities of the agenda Europe 2020. It should also improve cross-border communication between registers by using innovations in information and communication technology.

The Council Conclusions of 25 May 2010 on the interconnection of business registers confirmed that improving access to up-to-date and trustworthy information on companies could encourage greater confidence in the market, help recovery, and increase the competitiveness of European business.

The European Parliament in its resolution of 7 September 2010 on the interconnection of business registers (6) emphasised that the usefulness of the project for the further integration of the European Economic Area can only be exploited if all Member States take part in the network.

The Multi-annual European e-Justice action plan 2009-2013 (7) provides for the development of a European e-Justice portal (‘the portal’) as the single European electronic access point for legal information, judicial and administrative institutions, registers, databases and other services and considers the interconnection of central, commercial and companies registers to be important.

Cross-border access to business information on companies and their branches opened in other Member States can only be improved if all Member States engage in enabling electronic communication to take place between registers and transmitting information to individual users in a standardised way, by means of identical content and interoperable technologies, throughout the Union. This interoperability of registers should be ensured by the registers of Member States (‘domestic registers’) providing services, which should constitute interfaces to the European central platform (‘the platform’). The platform should be a centralised set of information technology tools integrating services and should form a common interface. That interface should be used by all domestic registers. The platform should also provide services constituting an interface to the portal serving as the European electronic access point, and to the optional access points established by Member States. The platform should be conceived only as an instrument for the interconnection of registers and not as a distinct entity possessing legal personality. On the basis of unique identifiers, the platform should be capable of distributing information from each of the Member States’ registers to the competent registers of other Member States in a standard message format (an electronic form of messages exchanged between information technology systems, such as, for example, xml) and in the relevant language version.

This Directive is not aimed at establishing any centralised registers database storing substantive information about companies. At the stage of implementation of the system of interconnection of central, commercial and companies registers (‘the system of interconnection of registers’), only the set of data necessary for the correct functioning of the platform should be defined. The scope of those data should include, in particular, operational data, dictionaries and glossaries. It should be determined taking also into account the need to ensure the efficient operation of the system of interconnection of registers. Those data should be used for the purpose of enabling the platform to perform its functions and should never be made publicly available in a direct form. Moreover, the platform should modify neither the content of the data on companies stored in domestic registers nor the information about companies transmitted through the system of interconnection of registers.

Since the objective of this Directive is not to harmonise national systems of central, commercial and companies registers, there is no obligation on the Member States to change their internal systems of registers, in particular as regards the management and storage of data, fees, and the use and disclosure of information for national purposes.

Within the framework of this Directive, the portal will deal, through the use of the platform, with queries submitted by individual users concerning the information on companies and their branches opened in other Member States which is stored in the domestic registers. That will enable the search results to be presented on the portal, including the explanatory labels in all the official languages of the Union, listing the information provided. In addition, in order to improve the protection of third parties in other Member States, basic information on the legal value of documents and particulars disclosed pursuant to the laws of Member States adopted in accordance with Directive 2009/101/EC should be available on the portal.

Member States should be able to establish one or more optional access points, which may have an impact on the use and operation of the platform. Therefore, the Commission should be notified of their establishment and of any significant changes to their operation, in particular of their closure. Such notification should not in any way restrict the powers of Member States as to the establishment and operation of the optional access points.

Companies and their branches opened in other Member States should have a unique identifier allowing them to be unequivocally identified within the Union. The identifier is intended to be used for communication between registers through the system of interconnection of registers. Therefore, companies and branches should not be obliged to include the unique identifier in the company letters or order forms mentioned in Directives 89/666/EEC and 2009/101/EC. They should continue to use their domestic registration number for their own communication purposes.

It should be made possible to establish a clear connection between the register of a company and the registers of its branches opened in other Member States, consisting in the exchange of 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. While Member States should be able to decide on the procedures they follow with respect to the branches registered in their territory, they should ensure, at least, that the branches of a dissolved company are struck off the register without undue delay and, if applicable, after liquidation proceedings of the branch concerned. This obligation should not apply to branches of companies that have been struck off the register but which have a legal successor, such as in the case of any change in the legal form of the company, a merger or division, or a cross-border transfer of its registered office.

This Directive should not apply to a branch opened in a Member State by a company which is not governed by the law of a Member State, as provided for in Article 7 of Directive 89/666/EEC.

Directive 2005/56/EC should be amended in order to ensure that communication between registers is carried out through the system of interconnection of registers.

Member States should ensure that, in the event of any changes to information entered in the registers concerning companies, the information is updated without undue delay. The update should be disclosed, normally, within 21 days from receipt of the complete documentation regarding those changes, including the legality check in accordance with national law. That time limit should be interpreted as requiring Member States to make reasonable efforts to meet the deadline laid down in this Directive. It should not be applicable as regards the accounting documents which companies are obliged to submit for each financial year. This exclusion is justified by the overload on the domestic registers during reporting periods. In accordance with general legal principles common to all Member States, the time limit of 21 days should be suspended in cases of force majeure.

Should the Commission decide to develop and/or operate the platform through a third party, this should 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 (8). An appropriate degree of Member States’ involvement in this process should be ensured by establishing the technical specifications for the purpose of the public procurement procedure by means of implementing acts adopted in accordance with the examination procedure referred to in Article 5 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 (9).

Should the Commission decide to operate the platform through a third party, the continuity of the provision of services by the system of interconnection of registers and a proper public supervision of the functioning of the platform should be ensured. Detailed rules on the operational management of the platform should be adopted by means of implementing acts adopted in accordance with the examination procedure referred to in Article 5 of Regulation (EU) No 182/2011. In any case, the involvement of Member States in the functioning of the whole system should be ensured by means of a regular dialogue between the Commission and the representatives of Member States on the issues concerning the operation of the system of interconnection of registers and its future development.

The interconnection of central, commercial and companies registers necessitates the coordination of national systems having varying technical characteristics. This entails the adoption of technical measures and specifications which need to take account of differences between registers. In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission to tackle these technical and operational issues. Those powers should be exercised in accordance with the examination procedure referred to in Article 5 of Regulation (EU) No 182/2011.

This Directive should not limit the right of Members States to charge fees for obtaining information on companies through the system of interconnection of registers, if such fees are required under national law. Therefore, technical measures and specifications for the system of interconnection of registers should allow for the establishment of payment modalities. In this respect, this Directive should not prejudge any specific technical solution as the payment modalities should be determined at the stage of adoption of the implementing acts, taking into account widely available online payment facilities.

It could be desirable for third countries to be able, in the future, to participate in the system of interconnection of registers.

An equitable solution regarding the funding of the system of interconnection of registers entails participation both by the Union and by its Member States in the financing of that system. The Member States should bear the financial burden of adjusting their domestic registers to that system, while the central elements — the platform and the portal serving as the European electronic access point — should be funded from an appropriate budget line in the general budget of the Union. In order to supplement non-essential elements of this Directive, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of the charging of fees for obtaining company information. This does not affect the possibility for the domestic registers to charge fees, but it may involve an additional fee in order to co-finance the maintenance and functioning of the platform. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

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 (10) and Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (11) govern the processing of personal data, including the electronic transmission of personal data within the Member States. Any processing of personal data by the registers of Member States, by the Commission and, if applicable, by any third party involved in operating the platform should take place in compliance with those acts. The implementing acts to be adopted in relation to the system of interconnection of registers should, where appropriate, ensure such compliance, in particular by establishing the relevant tasks and responsibilities of all the participants concerned and the organisational and technical rules applicable to them.

The system of interconnection of registers requires the Member States to make necessary adaptations consisting, in particular, in the development of an interface linking each register to the platform in order for that system to become operational. Therefore, this Directive should provide for a deferred time limit for the transposition and application by the Member States of the provisions regarding the technical operation of that system. This time limit should follow the adoption by the Commission of all the implementing acts concerning the technical measures and specifications for the system of interconnection of registers. The time limit for the transposition and application of the provisions of the Directive regarding the technical operation of the system of interconnection of registers should be sufficient to enable Member States to accomplish the legal and technical adaptations needed in order to make that system fully operational within a reasonable time-frame.

In accordance with the Joint Political Declaration of Member States and the Commission of 28 September 2011 on explanatory documents (12), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

This Directive respects fundamental rights and observes the principles enshrined in the Charter of Fundamental Rights of the European Union, in particular Article 8 thereof, which states that everyone has the right to the protection of personal data concerning him or her.

Since the objectives of this Directive, namely improving cross-border access to business information, ensuring that up-to-date information is stored in the register of branches and establishing clear channels of communication between registers in cross-border registration procedures, cannot be sufficiently achieved by the Member States and can therefore, by reason of their scale and effects, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

Directives 89/666/EEC, 2005/56/EC and 2009/101/EC should therefore be amended accordingly.

The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on 6 May 2011 (13),

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.

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.’.

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 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.

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).

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).’.

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.’.

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.’.

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 4b

• 1. 

  The Commission shall decide to develop and/or operate the platform either by its own means or through a third party.

Should 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.

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).

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 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.