1968L0151 — EN — 01.05.2004 — 003.001 — 1
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►B FIRST COUNCIL DIRECTIVE
of 9 March 1968
on co-ordination 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 ofArticle 58 of the Treaty, with a view to making such safeguards equivalent throughout the
Community
(68/151/EEC)
(OJ L 65, 14.3.1968, p. 8)
Amended by:
Official Journal
No page date
►M1 Directive 2003/58/EC of the European Parliament and of the Council of
15 July 2003L 221 13 4.9.2003
Amended by:
►A1 Act of Accession of Denmark, Ireland and the United Kingdom of Great
Britain and Northern IrelandL 73 14 27.3.1972
(adapted by Council Decision of 1 January 1973) L 2 1 1.1.1973
►A2 Act of Accession of Greece L 291 17 19.11.1979
►A3 Act of Accession of Spain and Portugal L 302 23 15.11.1985
►A4 Act of Accession of Austria, Sweden and Finland C 241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
►A5 Act concerning the conditions of accession of the Czech Republic, the
Republic of Estonia, the Republic of Cyprus, the Republic of Latvia,the Republic of Lithuania, the Republic of Hungary, the Republic ofMalta, the Republic of Poland, the Republic of Slovenia and the SlovakRepublic and the adjustments to the Treaties on which the EuropeanUnion is foundedL 236 33 23.9.2003
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FIRST COUNCIL DIRECTIVE
of 9 March 1968
on co-ordination of safeguards which, for the protection of the
interests of members and others, are required by Member Statesof companies within the meaning of the second paragraph ofArticle 58 of the Treaty, with a view to making such safeguards
equivalent throughout the Community
(68/151/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 54 (3) (g) thereof,
Having regard to the General Programme for the abolition of restric-
tions on freedom of establishment (1), and in particular Title VI thereof,
Having regard to the proposal from the Commission,
Having regard to the Opinion of the European Parliament (2),
Having regard to the Opinion of the Economic and Social
Committee (3),
Whereas the co-ordination provided for in Article 54 (3) (g) and in the
General Programme for the abolition of restrictions on freedom of
establishment is a matter of urgency, especially in regard to companies
limited by shares or otherwise having limited liability, since the activ-ities of such companies often extend beyond the frontiers of nationalterritories;
Whereas the co-ordination of national provisions concerning disclosure,
the validity of obligations entered into by, and the nullity of, suchcompanies is of special importance, particularly for the purpose ofprotecting the interests of third parties;
Whereas in these matters Community provisions must be adopted in
respect of such companies simultaneously, since the only safeguardsthey offer to third parties are their assets;
Whereas the basic documents of the company should be disclosed in
order that third parties may be able to ascertain their contents and otherinformation concerning the company, especially particulars of thepersons who are authorised to bind the company;
Whereas the protection of third parties must be ensured by provisions
which restrict to the greatest possible extent the grounds on which obli-gations entered into in the name of the company are not valid;
Whereas it is necessary, in order to ensure certainty in the law as
regards relations between the company and third parties, and alsobetween members, to limit the cases in which nullity can arise and theretroactive effect of a declaration of nullity, and to fix a short timelimit within which third parties may enter objection to any suchdeclaration,1968L0151 — EN — 01.05.2004 — 003.001 — 2
(1) OJ No 2, 15. 1. 1962, p. 36/62.
(2) OJ No 96, 28. 5. 1966, p. 1519/66.
(3) OJ No 194, 27. 11. 1964, p. 3248/64.
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HAS ADOPTED THIS DIRECTIVE:
Article 1
The co-ordination measures prescribed by this Directive shall apply to
the laws, regulations and administrative provisions of the Member
States relating to the following types of company:
—In Germany:
die Aktiengesellschaft, die Kommanditgesellschaft auf Aktien, die
Gesellschaft mit beschränkter Haftung;
—In Belgium:
de naamloze vennootschap, la société anonyme,
de commanditaire vennootschap
op aandelen,la société en commandite par
actions,
de personenvennootschap met
beperkte aansprakelijkheid;la société de personnes à
responsabilité limitée;
—In France:
la société anonyme, la société en commandite par actions, la société
à responsabilité limitée, la société par actions simplifiée;
—In Italy:
società per azioni, società in accomandita per azioni, società a
responsabilità limitata;
—In Luxembourg:
la société anonyme, la société en commandite par actions, la société
à responsabilité limitée;
—In the Netherlands:
de naamloze vennootschap, de besloten vennootschap met beperkte
aansprakelijkheid;
—In the United Kingdom:
Companies incorporated with limited liability;
—In Ireland:
Companies incorporated with limited liability;
—In Denmark:
aktieselskab, kommanditaktieselskab, anpartsselskab;
—In Greece:
ανώνυµη εταιρία, εταιρία περιωρισµένης ευθύνης, ετερόρ-
ρυθµη κατά µετοχές εταιρία;
—In Spain:
la sociedad anónima, la sociedad comanditaria por acciones, la soci-
edad de responsabilidad limitada;
—In Portugal:
a sociedade anónima de responsabilidade limitada, a sociedade em
comandita por acções, a sociedade por quotas de responsabilidade
limitada;
—In Austria:
die Aktiengesellschaft, die Gesellschaft mit beschränkter Haftung;
—In Finland:
yksityinen osakeyhtiö — privat aktiebolag, julkinen osakeyhtiö —
publikt aktiebolag;1968L0151 — EN — 01.05.2004 — 003.001 — 3
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—In Sweden:
aktiebolag;
—In the Czech Republic:
spole čnost s ru čením omezeným, akciová spole čnost;
—In Estonia:
aktsiaselts, osaühing;
—In Cyprus:
∆ηµόσιες εταιρείες περιορισµένης ευθύνης µε µετοχές ή µε
εγγύηση, ιδιωτικές εταιρείες περιορισµένης ευθύνης µε
µετοχές ή µε εγγύηση ;
—In Latvia:
akciju sabiedr ība, sabiedr ība ar ierobežotu atbild ību, komanditsa-
biedr ība;
—In Lithuania:
akcin ėbendrov ė, uždaroji akcin ėbendrov ė;
—In Hungary:
részvénytársaság, korlátolt felel ősségűtársaság;
—In Malta:
kumpanija pubblika — public limited liability company, kumpanija
privata — private limited liability company;
—In Poland:
spółka z ograniczon ąodpowiedzialno ścią, spółka komandytowo-
akcyjna, spółka akcyjna;
—In Slovenia:
delniška družba, družba z omejeno odgovornostjo, komaditna
delniška družba;
—In Slovakia:
akciová spolo čnosť, spolo čnosťsr učením obmedzeným.
SECTION I
Disclosure
Article 2
1. Member States shall take the measures required to ensure
compulsory disclosure by companies of at least the following docu-ments and particulars:
(a) The instrument of constitution, and the statutes if they are
contained in a separate instrument;
(b) Any amendments to the instruments mentioned in (a), including
any extension of the duration of the company;
(c) After every amendment of the instrument of constitution or of the
statutes, the complete text of the instrument or statutes as amendedto date;
(d) The appointment, termination of office and particulars of the
persons who either as a body constituted pursuant to law or asmembers of any such body:
(i) are authorised to represent the company in dealings with third
parties and in legal proceedings;
(ii) take part in the administration, supervision or control of the
company.
It must appear from the disclosure whether the persons authorised
to represent the company may do so alone or must act jointly;
(e) At least once a year, the amount of the capital subscribed, where
the instrument of constitution or the statutes mention an authorisedcapital, unless any increase in the capital subscribed necessitates anamendment of the statutes;1968L0151 — EN — 01.05.2004 — 003.001 — 4
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(f) The accounting documents for each financial year, which are
required to be published in accordance with Council Directives78/660/EEC (
1), 83/349/EEC (2), 86/635/EEC (3) and 91/674/
EEC (4);
(g) Any transfer of the seat of the company;
(h) The winding up of the company;
(i) Any declaration of nullity of the company by the courts;(j) The appointment of liquidators, particulars concerning them, and
their respective powers, unless such powers are expressly andexclusively derived from law or from the statutes of the company;
(k) The termination of the liquidation and, in Member States where
striking off the register entails legal consequences, the fact of anysuch striking off.
Article 3
1. In each Member State, a file shall be opened in a central register,
commercial register or companies register, for each of the companiesregistered therein.
2. All documents and particulars which must be disclosed pursuant
to Article 2 shall be kept in the file, or entered in the register; the
subject matter of the entries in the register must in every case appear
in the file.
Member States shall ensure that, by 1 January 2007, the filing by
companies, as well as by other persons and bodies required to makeor assist in making notifications, of all documents and particulars
which must be disclosed pursuant to Article 2 will be possible by elec-
tronic means. In addition, Member States may require all, or certaincategories of, companies to file all, or certain types of, such documentsand particulars by electronic means.
All documents and particulars referred to in Article 2 which are filed as
from 1 January 2007 at the latest, whether by paper means or by elec-
tronic means, must be kept in the file, or entered in the register, inelectronic form. To this end, Member States shall ensure that all suchdocuments and particulars which are filed by paper means as from 1January 2007 at the latest are converted by the register to electronicform.
The documents and particulars referred to in Article 2 that have been
filed by paper means up to 31 December 2006 shall not be requiredto be converted automatically into electronic form by the register.Member States shall nevertheless ensure that they are converted intoelectronic form by the register upon receipt of an application for
disclosure by electronic means submitted in accordance with the rules
adopted to give effect to paragraph 3.
3. A copy of the whole or any part of the documents or particulars
referred to in Article 2 must be obtainable on application. As from 1January 2007 at the latest, applications may be submitted to the register
by paper means or by electronic means as the applicant chooses.
As from a date to be chosen by each Member State, which shall be no
later than 1 January 2007, copies as referred to in the first subpara-graph must be obtainable from the register by paper means or byelectronic means as the applicant chooses. This shall apply in the case1968L0151 — EN — 01.05.2004 — 003.001 — 5
(1) OJ L 222, 14.8.1978, p. 11. Directive as last amended by Council Directive
2003/38/EC (OJ L 120, 15.5.2003, p. 22).
(2) OJ L 193, 18.7.1983, p. 1. Directive as last amended by Directive 2003/51/
EC (OJ L 178, 17.7.2003, p. 16).
(3) OJ L 372, 31.12.1986, p. 1. Directive as last amended by Directive 2003/51/
EC.
(4) OJ L 374, 31.12.1991, p. 7.▼B
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of all documents and particulars, irrespective of whether they were
filed before or after the chosen date. However, Member States maydecide that all, or certain types of, documents and particulars filed by
paper means on or before a date which may not be later than 31
December 2006 shall not be obtainable from the register by electronicmeans if a specified period has elapsed between the date of filing andthe date of the application submitted to the register. Such specifiedperiod may not be less than 10 years.
The price of obtaining a copy of the whole or any part of the docu-
ments or particulars referred to in Article 2, whether by paper meansor by electronic means, shall not exceed the administrative cost thereof.
Paper copies supplied shall be certified as ‘true copies’, unless the
applicant dispenses with such certification. Electronic copies suppliedshall not be certified as ‘true copies’, unless the applicant explicitlyrequests such a certification.
Member States shall take the necessary measures to ensure that certifi-
cation of electronic copies guarantees both the authenticity of theirorigin and the integrity of their contents, by means at least of anadvanced electronic signature within the meaning of Article 2(2) of
Directive 1999/93/EC of the European Parliament and of the Council
of 13 December 1999 on a Community framework for electronic signa-tures (*).
4. Disclosure of the documents and particulars referred to in para-
graph 2 shall be effected by publication in the national gazetteappointed for that purpose by the Member State, either of the full textor of a partial text, or by means of a reference to the document whichhas been deposited in the file or entered in the register. The nationalgazette appointed for that purpose may be kept in electronic form.
Member States may decide to replace publication in the national
gazette with equally effective means, which shall entail at least theuse of a system whereby the information disclosed can be accessed in
chronological order through a central electronic platform.
5. The documents and particulars may be relied on by the company
as against third parties only after they have been disclosed in accor-dance with paragraph 4, unless the company proves that the third
parties had knowledge thereof.
However, with regard to transactions taking place before the 16th day
following the disclosure, the documents and particulars shall not be
relied on as against third parties who prove that it was impossible for
them to have had knowledge thereof.
6. Member States shall take the necessary measures to avoid any
discrepancy between what is disclosed in accordance with paragraph 4
and what appears in the register or file.
However, in cases of discrepancy, the text disclosed in accordance with
paragraph 4 may not be relied on as against third parties; such third
parties may nevertheless rely thereon, unless the company proves that
they had knowledge of the texts deposited in the file or entered in theregister.
7. Third parties may, moreover, always rely on any documents and
particulars in respect of which the disclosure formalities have not yet
been completed, save where non-disclosure causes them not to haveeffect.
8. For the purposes of this Article, ‘by electronic means’ shall mean
that the information is sent initially and received at its destination bymeans of electronic equipment for the processing (including digitalcompression) and storage of data, and entirely transmitted, conveyedand received in a manner to be determined by Member States bywire, by radio, by optical means or by other electromagnetic means.1968L0151 — EN — 01.05.2004 — 003.001 — 6
(*) OJ L 13, 19.1.2000, p. 12.
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Article 3a
1. Documents and particulars which must be disclosed pursuant to
Article 2 shall be drawn up and filed in one of the languages permittedby the language rules applicable in the Member State in which the filereferred to in Article 3(1) is opened.
2. In addition to the mandatory disclosure referred to in Article 3,
Member States shall allow documents and particulars referred to inArticle 2 to be disclosed voluntarily in accordance with Article 3 inany official language(s) of the Community.
Member States may prescribe that the translation of such documents
and particulars be certified.
Member States shall take the necessary measures to facilitate access by
third parties to the translations voluntarily disclosed.
3. In addition to the mandatory disclosure referred to in Article 3,
and to the voluntary disclosure provided for under paragraph 2 of this
Article, Member States may allow the documents and particularsconcerned to be disclosed, in accordance with Article 3, in any otherlanguage(s).
Member States may stipulate that the translation of such documents
and particulars be certified.
4. In cases of discrepancy between the documents and particulars
disclosed in the official languages of the register and the translation
voluntarily disclosed, the latter may not be relied upon as against thirdparties. Third parties may nevertheless rely on the translations volunta-rily disclosed, unless the company proves that the third parties hadknowledge of the version which was the subject of the mandatory
disclosure.
Article 4
Member States shall stipulate that letters and order forms, whether they
are in paper form or use any other medium, shall state the following
particulars:
(a) the information necessary to identify the register in which the file
mentioned in Article 3 is kept, together with the number of the
company in that register;
(b) the legal form of the company, the location of its registered office
and, where appropriate, the fact that the company is being woundup.
Where, in these documents, mention is made of the capital of the
company, the reference shall be to the capital subscribed and paid up.
Member States shall prescribe that company websites shall contain at
least the particulars mentioned in the first paragraph and, if applicable,
the reference to the capital subscribed and paid up.
Article 5
Each Member State shall determine by which persons the disclosure
formalities are to be carried out.
Article 6
Member States shall provide for appropriate penalties at least in the
case of:
(a) failure to disclose accounting documents as required by Article
2(1)(f);
(b) omission from commercial documents or from any company
website of the compulsory particulars provided for in Article 4.1968L0151 — EN — 01.05.2004 — 003.001 — 7
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SECTION II
Validity of obligations entered into by a company
Article 7
If, before a company being formed has acquired legal personality,
action has been carried out in its name and the company does notassume the obligations arising from such action, the persons who acted
shall, without limit, be jointly and severally liable therefor, unless
otherwise agreed.
Article 8
Completion of the formalities of disclosure of the particulars
concerning the persons who, as an organ of the company, areauthorised to represent it shall constitute a bar to any irregularity in
their appointment being relied upon as against third parties unless the
company proves that such third parties had knowledge thereof.
Article 9
1. Acts done by the organs of the company shall be binding upon it
even if those acts are not within the objects of the company, unlesssuch acts exceed the powers that the law confers or allows to be
conferred on those organs.
However, Member States may provide that the company shall not be
bound where such acts are outside the objects of the company, if it
proves that the third party knew that the act was outside those objects
or could not in view of the circumstances have been unaware of it;disclosure of the statutes shall not of itself be sufficient proof thereof.
2. The limits on the powers of the organs of the company, arising
under the statutes or from a decision of the competent organs, maynever be relied on as against third parties, even if they have beendisclosed.
3. If the national law provides that authority to represent a company
may, in derogation from the legal rules governing the subject, beconferred by the statutes on a single person or on several persons
acting jointly, that law may provide that such a provision in the statutes
may be relied on as against third parties on condition that it relates tothe general power of representation; the question whether such a provi-sion in the statutes can be relied on as against third parties shall begoverned by Article 3.
SECTION III
Nullity of the company
Article 10
In all Member States whose laws do not provide for preventive control,
administrative or judicial, at the time of formation of a company, the
instrument of constitution, the company statutes and any amendments
to those documents shall be drawn up and certified in due legal form.
Article 11
The laws of the Member States may not provide for the nullity of
companies otherwise than in accordance with the following provisions:
1. Nullity must be ordered by decision of a court of law;
2. Nullity may be ordered only on the following grounds:
(a) that no instrument of constitution was executed or that the rules
of preventive control or the requisite legal formalities were notcomplied with;
(b) that the objects of the company are unlawful or contrary to
public policy;1968L0151 — EN — 01.05.2004 — 003.001 — 8
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(c) that the instrument of constitution or the statutes do not state the
name of the company, the amount of the individual subscriptionsof capital, the total amount of the capital subscribed or the
objects of the company;
(d) failure to comply with the provisions of the national law
concerning the minimum amount of capital to be paid up;
(e) the incapacity of all the founder members;
(f) that, contrary to the national law governing the company, the
number of founder members is less than two.
Apart from the foregoing grounds of nullity, a company shall not be
subject to any cause of nonexistence, nullity absolute, nullity rela-tive or declaration of nullity.
Article 12
1. The question whether a decision of nullity pronounced by a court
of law may be relied on as against third parties shall be governed byArticle 3. Where the national law entitles a third party to challengethe decision, he may do so only within six months of public notice of
the decision of the court being given.
2. Nullity shall entail the winding up of the company, as may disso-
lution.
3. Nullity shall not of itself affect the validity of any commitments
entered into by or with the company, without prejudice to the conse-quences of the company's being wound up.
4. The laws of each Member State may make provision for the
consequences of nullity as between members of the company.
5. Holders of shares in the capital shall remain obliged to pay up the
capital agreed to be subscribed by them but which has not been paid
up, to the extent that commitments entered into with creditors sorequire.
SECTION IV
General provisions
Article 13
Member States shall put into force, within eighteen months following
notification of this Directive, all amendments to their laws, regulationsor administrative provisions required in order to comply with provi-
sions of this Directive and shall forthwith inform the Commission
thereof.
The obligation of disclosure provided for in Article 2 (1) (f) shall not
enter into force until thirty months after notification of this Directive inrespect of naamloze vennootschappen under Netherlands law other than
those referred to in the present Article 42 (c) of the NetherlandsCommercial Code.
Member States may provide that initial disclosure of the full text of the
statutes as amended since the formation of the company shall not be
required until the statutes are next amended or until 31 December1970, whichever shall be the earlier.
Member States shall ensure that they communicate to the Commission
the text of the main provisions of national law which they adopt in thefield covered by this Directive.
Article 14
This Directive is addressed to the Member States.1968L0151 — EN — 01.05.2004 — 003.001 — 9