1977L0091 — EN — 01.05.2004 — 002.001 — 1
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►B SECOND COUNCIL DIRECTIVE
of 13 December 1976
on coordination of safeguards which, for the protection of the interests of members and others,
are required by Member States of companies within the meaning of the second paragraph ofArticle 58 of the Treaty, in respect of the formation of public limited liability companies and the
maintenance and alteration of their capital, with a view to making such safeguards equivalent
(77/91/EEC)
(OJ L 26, 31.1.1977, p. 1)
Amended by:
Official Journal
No page date
►M1Council Directive 92/101/EEC of 23 November 1992 L 347 64 28.11.1992
Amended by:
►A1Act of Accession of Greece L 291 17 19.11.1979
►A2Act of Accession of Spain and Portugal L 302 23 15.11.1985
►A3Act of Accession of Austria, Sweden and Finland C241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
►A4Act 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 of
Malta, 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
NB: This consolidated version contains references to the European unit of account and/or the ecu, which from 1 January 1999
should be understood as references to the euro — Council Regulation (EEC) No 3308/80 (OJ L 345, 20.12.1980, p. 1) andCouncil Regulation (EC) No 1103/97 (OJ L 162, 19.6.1997, p. 1).
▼B
SECOND COUNCIL DIRECTIVE
of 13 December 1976
on coordination of safeguards which, for the protection of the inter-
ests of members and others, are required by Member States ofcompanies within the meaning of the second paragraph of Article58 of the Treaty, in respect of the formation of public limited liabi-
lity companies and the maintenance and alteration of their capital,
with a view to making such safeguards equivalent
(77/91/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 proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
Having regard to the opinion of the Economic and Social
Committee (2),
Whereas the coordination provided for in Article 54 (3) (g) and in the
General Programme for the abolition of restrictions on freedom ofestablishment, which was begun by Directive 68/151/EEC (
3), is espe-
cially important in relation to public limited liability companies,
because their activities predominate in the economy of the MemberStates and frequently extend beyond their national boundaries;
Whereas in order to ensure minimum equivalent protection for both
shareholders and creditors of public limited liability companies, thecoordination of national provisions relating to their formation and tothe maintenance, increase or reduction of their capital is particularlyimportant;
Whereas in the territory of the Community, the statutes or instrument
of incorporation of a public limited liability company must make itpossible for any interested person to acquaint himself with the basicparticulars of the company, including the exact composition of its
capital;
Whereas Community provisions should be adopted for maintaining the
capital, which constitutes the creditors' security, in particular by prohi-biting any reduction thereof by distribution to shareholders where the
latter are not entitled to it and by imposing limits on the company's
right to acquire its own shares;
Whereas it is necessary, having regard to the objectives of Article 54
(3) (g), that the Member States' laws relating to the increase or reduc-
tion of capital ensure that the principles of equal treatment ofshareholders in the same position and of protection of creditors whoseclaims exist prior to the decision on reduction are observed and harmo-nized,
HAS ADOPTED THIS DIRECTIVE:
Article 1
1. The coordination measures prescribed by this Directive shall
apply to the provisions laid down by law, regulation or administrativeaction in Member States relating to the following types of company:
—in Belgium:
la société anonyme — de naamloze vennootschap;
—in Denmark:1977L0091 — EN — 01.05.2004 — 002.001 — 2
(1) OJ No C 114, 11. 11. 1971, p. 18.
(2) OJ No C 88, 6. 9. 1971, p. 1.
(3) OJ No L 65, 14. 3. 1968, p. 8.
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aktieselskabet;
—in France:
la société anonyme;
—in Germany:
die Aktiengesellschaft;
—in Ireland:
the public company limited by shares,the public company limited by guarantee and having a share
capital;
—in Italy:
la società per azioni;
—in Luxembourg:
la société anonyme;
—in the Netherlands:
de naamloze vennootschap;
—in the United Kingdom:
the public company limited by shares,
the public company limited by guarantee and having a share
capital;
—in Grece
η ανώνυµη εταιρία;
—in Spain:
la sociedad anónima;
—in Portugal:
a sociedade anonima de responsabilidade limitada;
—in Austria
die Aktiengesellschaft;
—in Finland:
osakeyhtiö — aktiebolag;
—in Sverige:
aktiebolag;
—in the Czech Republic:
akciová spole čnost;
—in Estonia:
aktsiaselts;
—in Cyprus:
∆ηµόσιες εταιρείες περιορισµένης ευθύνης µε µετοχές,
δηµόσιες εταιρείες περιορισµένης ευθύνης µε εγγύηση πουδιαθέτουν µετοχικό κεφάλαιο;
—in Latvia:
akciju sabiedr ība;
—in Lithuania:
akcinėbendrov ė;
—in Hungary:
részvénytársaság;
—in Malta:
kumpanija pubblika — public limited liability company;
—in Poland:
spółka akcyjna;
—in Slovenia:
delniška družba;1977L0091 — EN — 01.05.2004 — 002.001 — 3
▼A1
▼A2
▼A3
▼A4
▼A4
—in Slovakia:
akciová spolo čnosť.
The name for any company of the above types shall comprise or be
accompanied by a description which is distinct from the description
required of other types of companies.
2. The Member States may decide not to apply this Directive to
investment companies withvariable capital and to cooperatives incor-porated as one of the types of company listed in paragraph 1. In sofar as the laws of the Member States make use of this option, they shallrequire suchcompanies to include th e words ‘investment company withvariable capital’ or ‘cooperative’ in all documents indicated in Article
4 of Directive 68/151/EEC.
The expression ‘investment company with variable capital’, within the
meaning of this Directive, means only those companies:
— the exclusive object of which is to invest their funds in various
stocks and shares, land or other assets with the sole aim of
spreading investment risks and giving their shareholders the benefitof the results of the management of their assets,
— which offer their own shares for subscription by the public, and
— the statutes of which provide that, within the limits of a minimum
and maximum capital, they may at any time issue, redeem or resell
their shares.
Article 2
The statutes or the instrument of incorporation of the company shall
always give at least the following information:
(a) the type and name of the company;
(b) the objects of the company;
(c) — when the company has no authorized capital, the amount of the
subscribed capital,
— when the company has an authorized capital, the amount
thereof and also the amount of the capital subscribed at thetime the company is incorporated or is authorized to commencebusiness, and at the time of any change in the authorizedcapital, without prejudice to Article 2 (1) (e) of Directive 68/
151/EEC;
(d) in so far as they are not legally determined, the rules governing the
number of and the procedure for appointing members of the bodiesresponsible for representing the company with regard to thirdparties, administration, management, supervision or control of thecompany and the allocation of powers among those bodies;
(e) the duration of the company, except where this is indefinite.
Article 3
The following information at least must appear in either the statutes or
the instrument of incorporation or a separate document published in
accordance with the procedure laid down in the laws of each Member
State in accordance withArticle 3 of Directive 68/151/EEC:
(a) the registered office;
(b) the nominal value of the shares subscribed and, at least once a
year, the number thereof;
(c) the number of shares subscribed without stating the nominal value,
where such shares may be issued under national law;
(d) the special conditions if any limiting the transfer of shares;
(e) where there are several classes of shares, the information under (b),
(c) and (d) for each class and the rights attaching to the shares ofeachclass;1977L0091 — EN — 01.05.2004 — 002.001 — 4
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(f) whether the shares are registered or bearer, where national law
provides for bothtypes, and any provisions relating to th e conver-sion of such shares unless the procedure is laid down by law;
(g) the amount of the subscribed capital paid up at the time the
company is incorporated or is authorized to commence business;
(h) the nominal value of the shares or, where there is not nominal
value, the number of shares issued for a consideration other thanin cash, together with the nature of the consideration and the
name of the person providing this consideration;
(i) the identity of the natural or legal persons or companies or firms by
whom or in whose name the statutes or the instrument of incor-poration, or where the company was not formed at the same time,the drafts of these documents, have been signed;
(j) the total amount, or at least an estimate, of all the costs payable by
the company or chargeable to it by reason of its formation and,where appropriate, before the company is authorized to commencebusiness;
(k) any special advantage granted, at the time the company is formed
or up to the time it receives authorization to commence business, to
anyone who has taken part in the formation of the company or in
transactions leading to the grant of such authorization.
Article 4
1. Where the laws of a Member State prescribe that a company may
not commence business without authorization, they shall also make
provision for responsibility for liabilities incurred by or on behalf of
the company during the period before such authorization is granted orrefused.
2. Paragraph1 sh all not apply to liabilities under contracts
concluded by the company conditionally upon its being granted author-ization to commence business.
Article 5
1. Where the laws of a Member State require a company to be
formed by more than one member, the fact that all the shares are heldby one person or that the number of members has fallen below thelegal minimum after incorporation of the company shall not lead tothe automatic dissolution of the company.
2. If in the cases referred to in paragraph 1, the laws of a Member
State permit the company to be wound up by order of the court, the
judge having jurisdiction must be able to give the company sufficient
time to regularize its position.
3. Where such a winding up order is made the company shall enter
into liquidation.
Article 6
1. The laws of the Member States shall require that, in order that a
company may be incorporated or obtain authorization to commence
business, a minimum capital shall be subscribed the amount of which
shall be not less than 25 000 ►
A3ecus◄.
The►A3ecus◄shall be that defined by Commission Decision
No 3289/75/ECSC (1). The equivalent in national currency shall be
calculated initially at the rate applicable on the date of adoption ofthis Directive.
2. If the equivalent of the ►
A3ecus◄in national currency is
altered so that the value of the minimum capital in national currencyremains less than 22500 ►
A3ecus◄for a period of one year, the
Commission shall inform the Member State concerned that it must1977L0091 — EN — 01.05.2004 — 002.001 — 5
(1) OJ No L 327, 19. 12. 1975, p. 4.
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amend its legislation to comply with paragraph 1 within 12 months
following the expiry of that period. However, the Member State mayprovide that the amended legislation shall not apply to companies
already in existence until 18 months after its entry into force.
3. Every five years the Council, acting on a proposal from the
Commission, shall examine and, if need be, revise the amounts
expressed in this Article in ►
A3ecus◄in the light of economic
and monetary trends in the Community and of the tendency towardsallowing only large and medium-sized undertakings to opt for the typesof company listed in Article 1 (
1).
Article 7
The subscribed capital may be formed only of assets capable of
economic assessment. However, an undertaking to perform work or
supply services may not form part of these assets.
Article 8
1. Shares may not be issued at a price lower than their nominal
value, or, where there is no nominal value, their accountable par.
2. However, Member States may allow those who undertake to place
shares in the exercise of their profession to pay less than the total priceof the shares for which they subscribe in the course of this transaction.
Article 9
1. Shares issued for a consideration must be paid up at the time the
company is incorporated or is authorized to commence business at not
less than 25 % of their nominal value or, in the absence of a nominal
value, their accountable par.
2. However, where shares are issued for a consideration other than
in cash at the time the company is incorporated or is authorized to
commence business, the consideration must be transferred in full withinfive years of that time.
Article 10
1. A report on any consideration other than in cash shall be drawn
up before the company is incorporated or is authorized to commencebusiness, by one or more independent experts appointed or approved
by an administrative or judicial authority. Such experts may be natural
persons as well as legal persons and companies or firms under the lawsof eachMember State.
2. The experts' report shall contain at least a description of each of
the assets comprising the consideration as well as of the methods ofvaluation used and shall state whether the values arrived at by theapplication of these methods correspond at least to the number andnominal value or, where there is no nominal value, to the accountable
par and, where appropriate, to the premium on the shares to be issued
for them.
3. The expert's (SIC! experts') report shall be published in the
manner laid down by the laws of each Member State, in accordance
withArticle 3 of Directive 68/151/EEC.
4. Member States may decide not to apply this Article where 90 %
of the nominal value, or where there is no nominal value, of the
accountable par, of all the shares is issued to one or more companiesfor a consideration other than in cash, and where the following require-ments are met:
(a) with regard to the company in receipt of such consideration, the
persons referred to in Article 3 (i) have agreed to dispense withthe expert's (SIC! experts') report;
(b) such agreement has been published as provided for in paragraph 3;
(c) the companies furnishing such consideration have reserves which
may not be distributed under the law or the statutes and which are1977L0091 — EN — 01.05.2004 — 002.001 — 6
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at least equal to the nominal value or, where there is no nominal
value, the accountable par of the shares issued for considerationother than in cash;
(d) the companies furnishing such consideration guarantee, up to an
amount equal to that indicated in paragraph (c), the debts of the
recipient company arising between the time the shares are issued
for a consideration other than in cash and one year after the publi-cation of that company's annual accounts for the financial yearduring which such consideration was furnished. Any transfer ofthese shares is prohibited within this period;
(e) the guarantee referred to in (d) has been published as provided for
in paragraph3;
(f) the companies furnishing such consideration shall place a sum
equal to that indicated in (c) into a reserve which may not bedistributed until three years after publication of the annual accountsof the recipient company for the financial year during which such
consideration was furnished or, if necessary, until such later date as
all claims relating to the guarantee referred to in (d) which aresubmitted during this period have been settled.
Article 11
1. If, before the expiry of a time limit laid down by national law of
at least two years from the time the company is incorporated or is
authorized to commence business, the company acquires any assetbelonging to a person or company or firm referred to in Article 3 (i)for a consideration of not less than one-tenth of the subscribed capital,the acquisition shall be examined and details of it published in themanner provided for in Article 10 and it shall be submitted for the
approval of the general meeting.
Member States may also require these provisions to be applied when
the assets belong to a shareholder or to any other person.
2. Paragraph 1 shall not apply to acquisitions effected in the normal
course of the company's business, to acquisitions effected at the
instance or under the supervision of an administrative or judicialauthority, or to stock exchange acquisitions.
Article 12
Subject to the provisions relating to the reduction of subscribed capital,
the shareholders may not be released from the obligation to pay up
their contributions.
Article 13
Pending coordination of national laws at a subsequent date, Member
States shall adopt the measures necessary to require provision of at
least the same safeguards as are laid down in Articles 2 to 12 in the
event of the conversion of another type of company into a publiclimited liability company.
Article 14
Articles 2 to 13 shall not prejudice the provisions of Member States on
competence and procedure relating to the modification of the statutesor of the instrument of incorporation.
Article 15
1. (a) Except for cases of reductions of subscribed capital, no distribu-
tion to shareholders may be made when on the closing date of
the last financial year the net assets as set out in the company'sannual accounts are, or following sucha distribution wouldbecome, lower than the amount of the subscribed capital plusthose reserves which may not be distributed under the law orthe statutes.1977L0091 — EN — 01.05.2004 — 002.001 — 7
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(b) Where the uncalled part of the subscribed capital is not included
in the assets shown in the balance sheet, this amount shall bededucted from the amount of subscribed capital referred to in
paragraph(a).
(c) The amount of a distribution to shareholders may not exceed the
amount of the profits at the end of the last financial year plusany profits brought forward and sums drawn from reservesavailable for this purpose, less any losses brought forward and
sums placed to reserve in accordance with the law or the
statutes.
(d) The expression ‘distribution’ used in subparagraphs (a) and (c)
includes in particular the payment of dividends and of interestrelating to shares.
2. When the laws of a Member State allow the payment of interim
dividends, the following conditions at least shall apply:
(a) interim accounts shall be drawn up showing that the funds avail-
able for distribution are sufficient,
(b) the amount to be distributed may not exceed the total profits made
since the end of the last financial year for which the annualaccounts have been drawn up, plus any profits brought forward
and sums drawn from reserves available for this purpose, less
losses brought forward and sums to be placed to reserve pursuantto the requirements of the law or the statutes.
3. Paragraphs 1 and 2 shall not affect the provisions of the Member
States as regards increases in subscribed capital by capitalization ofreserves.
4. The laws of a Member State may provide for derogations from
paragraph1 (a) in th e case of investment companies withfixed capital.
The expression ‘investment company with fixed capital’, within the
meaning of this paragraph (SIC! paragraph,) means only those compa-nies:
— the exclusive object of which is to invest their funds in various
stocks and shares, land or other assets with the sole aim ofspreading investment risks and giving their shareholders the benefitof the results of the management of their assets, and
— which offer their own shares for subscription by the public.
In so far as the laws of Member States make use of this option they
shall:
(a) require suchcompanies to include th e expression ‘investment
company’ in all documents indicated in Article 4 of Directive 68/
151/EEC;
(b) not permit any such company whose net assets fall below the
amount specified in paragraph1 (a) to make a distribution to sh are-holders when on the closing date of the last financial year thecompany's total assets as set out in the annual accounts are, or
following suchdistribution would become, less th an one-and-a-
half times the amount of the company's total liabilities to creditorsas set out in the annual accounts;
(c) require any such company which makes a distribution when its net
assets fall below the amount specified in paragraph 1 (a) to includein its annual accounts a note to that effect.
Article 16
Any distribution made contrary to Article 15 must be returned by
shareholders who have received it if the company proves that theseshareholders knew of the irregularity of the distributions made tothem, or could not in view of the circumstances have been unaware ofit.1977L0091 — EN — 01.05.2004 — 002.001 — 8
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Article 17
1. In the case of a serious loss of the subscribed capital, a general
meeting of shareholders must be called within the period laid downby the laws of the Member States, to consider whether the companyshould be wound up or any other measures taken.
2. The amount of a loss deemed to be serious within the meaning of
paragraph1 may not be set by th e laws of Member States at a figurehigher than half the subscribed capital.
Article 18
1. The shares of a company may not be subscribed for by the
company itself.
2. If the shares of a company have been subscribed for by a person
acting in his own name, but on behalf of the company, the subscriber
shall be deemed to have subscribed for them for his own account.
3. The persons or companies or firms referred to in Article 3 (i) or,
in cases of an increase in subscribed capital, the members of the
administrative or management body shall be liable to pay for shares
subscribed in contravention of this Article.
However, the laws of a Member State may provide that any such
person may be released from his obligation if he proves that no faultis attributable to him personally.
Article 19
1. Where the laws of a Member State permit a company to acquire
its own shares, either itself or through a person acting in his own namebut on the company's behalf, they shall make such acquisitions subject
to at least the following conditions:
(a) authorization shall be given by the general meeting, which shall
determine the terms and conditions of such acquisitions, and in
particular the maximum number of shares to be acquired, the dura-
tion of the period for which the authorization is given and whichmay not exceed 18 months, and, in the case of acquisition forvalue, the maximum and minimum consideration. Members of theadministrative or management body shall be required to satisfythemselves that at the time when each authorized acquisition is
effected the conditions referred to in subparagraphs (b), (c) and
(d) are respected;
(b) the nominal value or, in the absence thereof, the accountable par of
the acquired shares, including shares previously acquired by thecompany and held by it, and shares acquired by a person acting inhis own name but on the company's behalf, may not exceed 10 %
of the subscribed capital;
(c) the acquisitions may not have the effect of reducing the net assets
below the amount mentioned in Article 15 (1) (a);
(d) only fully paid-up shares may be included in the transaction.
2. The laws of a Member State may provide for derogations from
the first sentence of paragraph 1 (a) where the acquisition of a
company's own shares is necessary to prevent serious and imminentharm to the company. In such a case, the next general meeting mustbe informed by the administrative or management body of the reasonsfor and nature of the acquisitions effected, of the number and nominal
value or, in the absence of a nominal value, the accountable par, of the
shares acquired, of the proportion of the subscribed capital which theyrepresent, and of the consideration for these shares.
3. Member States may decide not to apply the first sentence of para-
graph 1 (a) to shares acquired by either the company itself or by aperson acting in his own name but on the company's behalf, for distri-bution to that company's employees or to the employees of an associatecompany. Such shares must be distributed within 12 months of theiracquisition.1977L0091 — EN — 01.05.2004 — 002.001 — 9
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Article 20
1. Member States may decide not to apply Article 19 to:
(a) shares acquired in carrying out a decision to reduce capital, or in
the circumstances referred to in Article 39;
(b) shares acquired as a result of a universal transfer of assets;
(c) fully paid-up shares acquired free of charge or by banks and other
financial institutions as purchasing commission;
(d) shares acquired by virtue of a legal obligation or resulting from a
court ruling for the protection of minority shareholders in the event,
particularly, of a merger, a change in the company's object or form,transfer abroad of the registered office, or the introduction ofrestrictions on the transfer of shares;
(e) shares acquired from a shareholder in the event of failure to pay
them up;
(f) shares acquired in order to indemnify minority shareholders in
associated companies;
(g) fully paid-up shares acquired under a sale enforced by a court order
for the payment of a debt owed to the company by the owner of the
shares;
(h) fully paid-up shares issued by an investment company with fixed
capital, as defined in the second subparagraph of Article 15 (4),and acquired at the investor's request by that company or by anassociate company. Article 15 (4) (a) shall apply. These acquisi-tions may not have the effect of reducing the net assets below the
amount of the subscribed capital plus any reserves the distribution
of which is forbidden by law.
2. Shares acquired in the cases listed in paragraph 1 (b) to (g) above
must, however, be disposed of within not more than three years of their
acquisition unless the nominal value or, in the absence of a nominalvalue, the accountable par of the shares acquired, including shareswhich the company may have acquired through a person acting in hisown name but on the company's behalf, does not exceed 10 % of thesubscribed capital.
3. If the shares are not disposed of within the period laid down in
paragraph 2, they must be cancelled. The laws of a Member Statemay make this cancellation subject to a corresponding reduction in the
subscribed capital. Such a reduction must be prescribed where the
acquisition of shares to be cancelled results in the net assets havingfallen below the amount specified in Article 15 (1) (a).
Article 21
Shares acquired in contravention of Articles 19 and 20 shall be
disposed of within one year of their acquisition. Should they not bedisposed of within that period, Article 20 (3) shall apply.
Article 22
1. Where the laws of a Member State permit a company to acquire
its own shares, either itself or through a person acting in his own name
but on the company's behalf, they shall make the holding of these
shares at all times subject to at least the following conditions:
(a) among the rights attaching to the shares, the right to vote attaching
to the company's own shares shall in any event be suspended;
(b) if the shares are included among the assets shown in the balance
sheet, a reserve of the same amount, unavailable for distribution,
shall be included among the liabilities.
2. Where the laws of a Member State permit a company to acquire
its own shares, either itself or through a person acting in his own name
but on the company's behalf, they shall require the annual report to
state at least:
(a) the reasons for acquisitions made during the financial year;1977L0091 — EN — 01.05.2004 — 002.001 — 10
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(b) the number and nominal value or, in the absence of a nominal
value, the accountable par of the shares acquired and disposed ofduring the financial year and the proportion of the subscribed
capital which they represent;
(c) in the case of acquisition or disposal for a value, the consideration
for the shares;
(d) the number and nominal value or, in the absence of a nominal
value, the accountable par of all the shares acquired and held by
the company and the proportion of the subscribed capital whichthey represent.
Article 23
1. A company may not advance funds, nor make loans, nor provide
security, with a view to the acquisition of its shares by a third party.
2. Paragraph1 sh all not apply to transactions concluded by banks
and other financial institutions in the normal course of business, nor
to transactions effected with a view to the acquisition of shares by or
for the company's employees or the employees of an associatecompany. However, these transactions may not have the effect of redu-cing the net assets below the amount specified in Article 15 (1) (a).
3. Paragraph1 sh all not apply to transactions effected witha view to
acquisition of shares as described in Article 20 (1) (h).
Article 24
1. The acceptance of the company's own shares as security, either by
the company itself or through a person acting in his own name but on
the company's behalf, shall be treated as an acquisition for the purposesof Articles 19, 20 (1), 22 and 23.
2. The Member States may decide not to apply paragraph 1 to trans-
actions concluded by banks and other financial institutions in the
normal course of business.
Article 24a
1. (a) The subscription, acquisition or holding of shares in a public
limited-liability company by another company within themeaning of Article 1 of Directive 68/151/EEC in which thepublic limited-liability company directly or indirectly holds a
majority of the voting rights or on which it can directly or indir-
ectly exercise a dominant influence shall be regarded as havingbeen effected by the public limited-liability company itself;
(b) subparagraph (a) shall also apply where the other company is
governed by the law of a third country and has a legal formcomparable to those listed in Article 1 of Directive 68/151/EEC.
2. However, where the public limited-liability company holds a
majority of the voting rights indirectly or can exercise a dominantinfluence indirectly, Member States need not apply paragraph1 ifthey provide for the suspension of the voting rights attached to theshares in the public limited-liability company held by the othercompany.
3. In the absence of coordination of national legislation on groups of
companies, Member States may:
(a) define the cases in which a public limited-liability company shall
be regarded as being able to exercise a dominant influence on
another company; if a Member State exercises this option, itsnational law must in any event provide that a dominant influencecan be exercised if a public limited-liability company:
— has the right to appoint or dismiss a majority of the members of
the administrative organ, of the management organ or of thesupervisory organ, and is at the same time a shareholder ormember of the other company or1977L0091 — EN — 01.05.2004 — 002.001 — 11
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— is a shareholder or member of the other company and has sole
control of a majority of the voting rights of its shareholders ormembers under an agreement concluded with other shareholders
or members of that company.
Member States shall not be obliged to make provision for any cases
other than those referred to in the first and second indents;
(b) define the cases in which a public limited-liability company shall
be regarded as indirectly holding voting rights or as able indirectly
to exercise a dominant influence;
(c) specify the circumstances in which a public limited-liability
company shall be regarded as holding voting rights.
4. (a) Member States need not apply paragraph 1 where the subscrip-
tion, acquisition or holding is effected on behalf of a personother than the person subscribing, acquiring or holding theshares, who is neither the public limited-liability companyreferred to in paragraph 1 nor another company in which the
public limited-liability company directly or indirectly holds a
majority of the voting rights or on which it can directly or indir-ectly exercise a dominant influence.
(b) Member States need not apply paragraph 1 where the subscrip-
tion, acquisition or holding is effected by the other company inits capacity and in the context of its activities as a professionaldealer in securities, provided that it is a member of a stockexchange situated or operating within a Member State, or is
approved or supervised by an authority of a Member State
competent to supervise professional dealers in securities which,within the meaning of this Directive, may include credit institu-tions.
5. Member States need not apply paragraph 1 where shares in a
public limited-liability company held by another company were
acquired before the relationship between the two companies corre-sponded to the criteria laid down in paragraph 1.
However, the voting rights attached to those shares shall be suspended
and the shares shall be taken into account when it is determined
whether the condition laid down in Article 19 (1) (b) is fulfilled.
6. Member States need not apply Article 20 (2) or (3) or Article 21
where shares in a public limited-liability company are acquired byanother company on condition that they provide for:
(a) the suspension of the voting rights attached to the shares in the
public limited-liability company held by the other company, and
(b) the members of the administrative or the management organ of the
public limited-liability company to be obliged to buy back from the
other company the shares referred to in Article 20 (2) and (3) andArticle 21 at the price at which the other company acquired them;this sanction shall be inapplicable only where the members of theadministrative or the management organ of the public limited-liabi-lity company prove that that company played no part whatsoever in
the subscription for or acquisition of the shares in question.
Article 25
1. Any increase in capital must be decided upon by the general
meeting. Both this decision and the increase in the subscribed capitalshall be published in the manner laid down by the laws of eachMember State, in accordance withArticle 3 of Directive 68/151/EEC.
2. Nevertheless, the statutes or instrument of incorporation or the
general meeting, the decision of which must be published in accor-
dance with the rules referred to in paragraph 1, may authorize anincrease in the subscribed capital up to a maximum amount whichthey shall fix with due regard for any maximum amount provided forby law. Where appropriate, the increase in the subscribed capital shallbe decided on within the limits of the amount fixed, (SIC! fixed) by the1977L0091 — EN — 01.05.2004 — 002.001 — 12
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company body empowered to do so. The power of such body in this
respect shall be for a maximum period of five years and may berenewed one or more times by the general meeting, each time for a
period not exceeding five years.
3. Where there are several classes of shares, the decision by the
general meeting concerning the increase in capital referred to in para-graph 1 or the authorization to increase the capital referred to in
paragraph2, sh all be subject to a separate vote at least for eachclass
of shareholder whose rights are affected by the transaction.
4. This Article shall apply to the issue of all securities which are
convertible into shares or which carry the right to subscribe for shares,
but not to the conversion of such securities, nor to the exercise of the
right to subscribe.
Article 26
Shares issued for a consideration, in the course of an increase in
subscribed capital, must be paid up to at least 25 % of their nominal
value or, in the absence of a nominal value, of their accountable par.Where provision is made for an issue premium, it must be paid in full.
Article 27
1. Where shares are issued for a consideration other than in cash in
the course of an increase in the subscribed capital the considerationmust be transferred in full within a period of five years from the deci-sion to increase the subscribed capital.
2. The consideration referred to in paragraph 1 shall be the subject
of a report drawn up before the increase in capital is made by one or
more experts who are independent of the company and appointed orapproved by an administrative or judicial authority. Such experts maybe natural persons as well as legal persons and companies and firmsunder the laws of each Member State.
Article 10 (2) and (3) shall apply.
3. Member States may decide not to apply paragraph2 in th e event
of an increase in subscribed capital made in order to give effect to a
merger or a public offer for the purchase or exchange of shares and to
pay the shareholders of the company which is being absorbed or whichis the object of the public offer for the purchase or exchange of shares.
4. Member States may decide not to apply paragraph2 if all th e
shares issued in the course of an increase in subscribed capital are
issued for a consideration other than in cash to one or more companies,
on condition that all the shareholders in the company which receive theconsideration have agreed not to have an experts' report drawn up andthat the requirements of Article 10 (4) (b) to (f) are met.
Article 28
Where an increase in capital is not fully subscribed, the capital will be
increased by the amount of the subscriptions received only if the condi-tions of the issue so provide.
Article 29
1. Whenever the capital is increased by consideration in cash, the
shares must be offered on a pre-emptive basis to shareholders inproportion to the capital represented by their shares.
2. The laws of a Member State:
(a) need not apply paragraph 1 above to shares which carry a limited
right to participate in distributions within the meaning of Article 15and/or in the company's assets in the event of liquidation; or
(b) may permit, where the subscribed capital of a company having
several classes of shares carrying different rights with regard tovoting, or participation in distributions within the meaning of1977L0091 — EN — 01.05.2004 — 002.001 — 13
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Article 15 or in assets in the event of liquidation, is increased by
issuing new shares in only one of these classes, the right of pre-emption of shareholders of the other classes to be exercised only
after the exercise of this right by the shareholders of the class in
which the new shares are being issued.
3. Any offer of subscription on a pre-emptive basis and the period
within which this right must be exercised shall be published in thenational gazette appointed in accordance withDirective 68/151/EEC.However, the laws of a Member State need not provide for such publi-
cation where all a company's shares are registered. In such case, all the
company's shareholders must be informed in writing. The right of pre-emption must be exercised within a period which shall not be less than14 days from the date of publication of the offer or from the date ofdispatch of the letters to the shareholders.
4. The right of pre-emption may not be restricted or withdrawn by
the statutes or instrument of incorporation. This may, however, be
done by decision of the general meeting. The administrative or
management body shall be required to present to such a meeting awritten report indicating the reasons for restriction or withdrawal ofthe right of pre-emption, and justifying the proposed issue price. Thegeneral meeting shall act in accordance with the rules for a quorumand a majority laid down in Article 40. Its decision shall be published
in the manner laid down by the laws of each Member State, in accor-
dance withArticle 3 of Directive 68/151/EEC.
5. The laws of a Member State may provide that the statutes, the
instrument of incorporation or the general meeting, acting in accor-dance withth e rules for a quorum, a majority and publication set outin paragraph 4, may give the power to restrict or withdraw the rightof pre-emption to the company body which is empowered to decide
on an increase in subscribed capital within the limit of the authorized
capital. This power may not be granted for a longer period than thepower for which provision is made in Article 25 (2).
6. Paragraphs 1 to 5 shall apply to the issue of all securities which
are convertible into shares or which carry the right to subscribe forshares, but not to the conversion of such securities, nor to the exerciseof the right to subscribe.
7. The right of pre-emption is not excluded for the purposes of para-
graphs 4 and 5 where, in accordance with the decision to increase the
subscribed capital, shares are issued to banks or other financial institu-tions with a view to their being offered to shareholders of the companyin accordance withparagraph s 1 and 3.
Article 30
Any reduction in the subscribed capital, except under a court order,
must be subject at least to a decision of the general meeting acting inaccordance withth e rules for a quorum and a majority laid down inArticle 40 without prejudice to Articles 36 and 37. Such decision shall
be published in the manner laid down by the laws of each Member
State in accordance withArticle 3 of Directive 68/151/EEC.
The notice convening the meeting must specify at least the purpose of
the reduction and the way in which it is to be carried out.
Article 31
Where there are several classes of shares, the decision by the general
meeting concerning a reduction in the subscribed capital shall besubject to a separate vote, at least for each class of shareholders whoserights are affected by the transaction.
Article 32
1. In the event of a reduction in the subscribed capital, at least the
creditors whose claims antedate the publication of the decision to makethe reduction shall be entitled at least to have the right to obtainsecurity for claims which have not fallen due by the date of that publi-1977L0091 — EN — 01.05.2004 — 002.001 — 14
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cation. The laws of a Member State shall lay down the conditions for
the exercise of this right. They may not set aside such right unless thecreditor has adequate safeguards, or unless the latter are not necessary
in view of the assets of the company.
2. The laws of the Member States shall also stipulate at least that the
reduction shall be void or that no payment may be made for the benefitof the shareholders, until the creditors have obtained satisfaction or acourt has decided that their application should not be acceded to.
3. This Article shall apply where the reduction in the subscribed
capital is brought about by the total or partial waiving of the paymentof the balance of the shareholders' contributions.
Article 33
1. Member States need not apply Article 32 to a reduction in the
subscribed capital whose purpose is to offset losses incurred or to
include sums of money in a reserve provided that, following this opera-
tion, the amount of such reserve is not more than 10 % of the reducedsubscribed capital. Except in the event of a reduction in the subscribedcapital, this reserve may not be distributed to shareholders; it may beused only for offsetting losses incurred or for increasing the subscribedcapital by the capitalization of such reserve, in so far as the Member
States permit suchan operation.
2. In the cases referred to in paragraph 1 the laws of the Member
States must at least provide for the measures necessary to ensure thatthe amounts deriving from the reduction of subscribed capital may notbe used for making payments or distributions to shareholders or
discharging shareholders from the obligation to make their contribu-
tions.
Article 34
The subscribed capital may not be reduced to an amount less than the
minimum capital laid down in accordance withArticle 6. However,Member States may permit such a reduction if they also provide thatthe decision to reduce the subscribed capital may take effect only
when the subscribed capital is increased to an amount at least equal to
the prescribed minimum.
Article 35
Where the laws of a Member State authorize total or partial redemption
of the subscribed capital without reduction of the latter, they shall atleast require that the following conditions are observed:
(a) where the statutes or instrument of incorporation provide for
redemption, the latter shall be decided on by the general meetingvoting at least under the usual conditions of quorum and majority.Where the statutes or instrument of incorporation do not providefor redemption, the latter shall be decided upon by the generalmeeting acting at least under the conditions of quorum and
majority laid down in Article 40. The decision must be published
in the manner prescribed by the laws of each Member State, inaccordance withArticle 3 of Directive 68/151/EEC;
(b) only sums which are available for distribution within the meaning
of Article 15 (1) may be used for redemption purposes;
(c) shareholders whose shares are redeemed shall retain their rights in
the company, with the exception of their rights to the repayment of
their investment and participation in the distribution of an initialdividend on unredeemed shares.
Article 36
1. Where the laws of a Member State may allow companies to
reduce their subscribed capital by compulsory withdrawal of shares,they shall require that at least the following conditions are observed:1977L0091 — EN — 01.05.2004 — 002.001 — 15
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(a) compulsory withdrawal must be prescribed or authorized by the
statutes or instrument of incorporation before subscription of theshares which are to be withdrawn are subscribed for;
(b) where the compulsory withdrawal is merely authorized by the
statutes or instrument of incorporation, it shall be decided upon bythe general meeting unless it has been unanimously approved bythe shareholders concerned;
(c) the company body deciding on the compulsory withdrawal shall fix
the terms and manner thereof, where they have not already beenfixed by the statutes or instrument of incorporation;
(d) Article 32 shall apply except in the case of fully paid-up shares
which are made available to the company free of charge or are
withdrawn using sums available for distribution in accordancewith Article 15 (1); in these cases, an amount equal to the nominalvalue or, in the absence thereof, to the accountable par of all thewithdrawn shares must be included in a reserve. Except in the
event of a reduction in the subscribed capital this reserve may not
be distributed to shareholders. It can be used only for offsettinglosses incurred or for increasing the subscribed capital by the capi-talization of suchreserve, in so far as Member States permit suchan operation;
(e) the decision on compulsory withdrawal shall be published in the
manner laid down by the laws of each Member State in accordance
withArticle 3 of Directive 68/151/EEC.
2. Articles 30 (1), 31, 33 and 40 shall not apply to the cases to
which paragraph 1 refers.
Article 37
1. In the case of a reduction in the subscribed capital by the with-
drawal of shares acquired by the company itself or by a person actingin his own name but on behalf of the company, the withdrawal mustalways be decided on by the general meeting.
2. Article 32 shall apply unless the shares are fully paid up and are
acquired free of charge or using sums available for distribution inaccordance with Article 15 (1); in these cases an amount equal to thenominal value or, in the absence thereof, to the accountable par of allthe shares withdrawn must be included in a reserve. Except in the event
of a reduction in the subscribed capital, this reserve may not be distrib-
uted to shareholders. It may be used only for offsetting losses incurredor for increasing the subscribed capital by the capitalization of suchreserve, in so far as the Member States permit such an operation.
3. Articles 31, 33 and 40 shall not apply to the cases to which para-
graph1 refers.
Article 38
In the cases covered by Articles 35, 36 (1) (b) and 37 (1), when there
are several classes of shares, the decision by the general meetingconcerning redemption of the subscribed capital or its reduction by
withdrawal of shares shall be subject to a separate vote, at least for
each class of shareholders whose rights are affected by the transaction.
Article 39
Where the laws of a Member State authorize companies to issue
redeemable shares, they shall require that the following conditions, atleast, are complied with for the redemption of such shares:
(a) redemption must be authorized by the company's statutes or instru-
ment of incorporation before the redeemable shares are subscribedfor;
(b) the shares must be fully paid up;
(c) the terms and the manner of redemption must be laid down in the
company's statutes or instrument of incorporation;1977L0091 — EN — 01.05.2004 — 002.001 — 16
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(d) redemption can be only effected by using sums available for distri-
bution in accordance withArticle 15 (1) or th e proceeds of a newissue made witha view to effecting suchredemption;
(e) an amount equal to the nominal value or, in the absence thereof, to
the accountable par of all the redeemed shares must be included in
a reserve which cannot be distributed to the shareholders, except inthe event of a reduction in the subscribed capital; it may be usedonly for the purpose of increasing the subscribed capital by thecapitalization of reserves;
(f) subparagraph (e) shall not apply to redemption using the proceeds
of a new issue made witha view to effecting suchredemption;
(g) where provision is made for the payment of a premium to share-
holders in consequence of a redemption, the premium may be paid
only from sums available for distribution in accordance withArticle 15 (1), or from a reserve other than that referred to in (e)which may not be distributed to shareholders except in the eventof a reduction in the subscribed capital; this reserve may be usedonly for the purposes of increasing the subscribed capital by the
capitalization of reserves or for covering the costs referred to in
Article 3 (j) or the cost of issuing shares or debentures or for thepayment of a premium to holders of redeemable shares or deben-tures;
(h) notification of redemption shall be published in the manner laid
down by the laws of each Member State in accordance with Article3 of Directive 68/151/EEC.
Article 40
1. The laws of the Member States shall provide that the decisions
referred to in Articles 29 (4) and (5), 30, 31, 35 and 38 must be taken
at least by a majority of not less than two-thirds of the votes attaching
to the securities or the subscribed capital represented.
2. The laws of the Member States may, however, lay down that a
simple majority of the votes specified in paragraph 1 is sufficient
when at least half the subscribed capital is represented.
Article 41
1. Member States may derogate from Article 9 (1), Article 19 (1)
(a), first sentence, and (b) and from Articles 25, 26 and 29 to the extentthat such derogations are necessary for the adoption or application ofprovisions designed to encourage the participation of employees, orother groups of persons defined by national law, in the capital ofundertakings.
2. Member States may decide not to apply Article 19 (1) (a), first
sentence, and Articles 30, 31, 36, 37, 38 and 39 to companies incorpo-rated under a special law which issue both capital shares and workers'
shares, the latter being issued to the company's employees as a body,
who are represented at general meetings of shareholders by delegateshaving the right to vote.
Article 42
For the purposes of the implementation of this Directive, the laws of
the Member States shall ensure equal treatment to all shareholderswho are in the same position.
Article 43
1. Member States shall bring into force the laws, regulations and
administrative provisions needed in order to comply withth is Directivewithin two years of its notification. They shall forthwith inform the
Commission thereof.
2. Member States may decide not to apply Article 3 (g), (i), (j) and
(k) to companies already in existence at the date of entry into force ofthe provisions referred to in paragraph 1.1977L0091 — EN — 01.05.2004 — 002.001 — 17
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They may provide that the other provisions of this Directive shall not
apply to such companies until 18 months after that date.
However, this time limit may be three years in the case of Articles 6
and 9 and five years in the case of unregistered companies in the
United Kingdom and Ireland.
3. Member States shall ensure that they communicate to the
Commission the text of the main provisions of national law whichthey adopt in the field covered by this Directive.
Article 44
This Directive is addressed to the Member States.1977L0091 — EN — 01.05.2004 — 002.001 — 18