1968L0151 — EN — 01.01.1995 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B FIRSTCOUNCILDIRECTIVE
of9March1968
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
►A1Act 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
►A2Act of Accession of Greece L 291 17 19.11.1979
►A3Act of Accession of Spain and Portugal L 302 23 15.11.1985
►A4Act 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
▼B
FIRSTCOUNCILDIRECTIVE
of9March1968
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
equivalentthroughouttheCommunity
(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 companieslimited 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, such
companies is of special importance, particularly for the purpose of
protecting 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 also
between 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,
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 MemberStates relating to the following types of company:
—In Germany:1968L0151 — EN — 01.01.1995 — 001.001 — 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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die Aktiengesellschaft, die Kommanditgesellschaft auf Aktien, die
Gesellschaft mit beschränkter Haftung;
—In Belgium:
de naamloze vennootschap, la société anonyme,
de commanditaire vennootschap
opaandelen,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;
—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 commanditaire vennootschap op
aandelen;
—In the United Kingdom:
Companies incorporated with limited liability;
—In Ireland:
Companies incorporated with limited liability;
—In Denmark:
Aktieselskab; Kommandit-Aktieselskab;
—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 responsabilidadelimitada;
—In Austria:
die Aktiengesellschaft, die Gesellschaft mit beschränkter Haftung;
—In Finland:
osakeyhtiö — aktiebolag;
—In Sweden:
aktiebolag.
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;1968L0151 — EN — 01.01.1995 — 001.001 — 3
▼A1
▼A2
▼A3
▼A4
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(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 amended
to 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;
(f) The balance sheet and the profit and loss account for each financial
year. The document containing the balance sheet must give details
of the persons who are required by law to certify it. However, inrespect of the Gesellschaft mit beschränkter Haftung, société depersonnes à responsabilité limitée, personenvennootschap metbeperkte aansprakelijkheid, société à responsabilité limitée, εταιρία
περιωρισµένης ευθύνης società a responsabilità limitata and soci-
edade em comandita por acções under German, Belgian, French,Greek, Italian, Luxembourg or Portuguese law, referred to inArticle 1, the besloten naamloze vennootschapunder Netherlandslaw, the private company under the law of Ireland and the privatecompany under the law of Nothern Ireland, the compulsory appli-
cation of this provision shall be postponed until the date of
implementation of a Directive concerning coordination of thecontents of balance sheets and of profit and loss accounts andconcerning exemption of such of those companies whose balancesheet total is less than specified in the Directive from the obligationto make disclosure, in full or in part of the said documents. The
Council will adopt such a Directive within two years following
the adoption of the present Directive;
(g) Any transfer of the seat of the company;
(h) The winding upof the comp any;
(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 and
exclusively 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.
2. For purposes of paragraph 1 (f), companies which fulfil the
following conditions shall be considered as besloten naamloze
vennootschappen:
(a) They cannot issue bearer shares;
(b) No bearer certificate of registered shares within the meaning of
Article 42 (c) of the Netherlands Commercial Code can be issued
by any person whatsoever;
(c) Their shares cannot be quoted on a stock exchange;
(d) Their statutes contain a clause requiring approval by the company
before the transfer of shares to third parties, except in the case oftransfer in the event of death and, if the statutes so provide, in thecase of transfer to a spouse, forebears or issue; transfers shall not1968L0151 — EN — 01.01.1995 — 001.001 — 4
▼A3
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be in blank, but otherwise each transfer shall be in writing under
hand, signed by the transferor and transferee or by notarial act;
(e) Their statutes specify that the company is a besloten naamloze
vennootschap; the name of the company includes the words
‘Besloten Naamloze Vennootschap’ or the initials ‘BNV’.
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 companies
registered therein.
2. All documents and particulars which must be disclosed in pursu-
ance of 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 inthe file.
3. A copy of the whole or any part of the documents or particulars
referred to in Article 2 must be obtainable by application in writing ata price not exceeding the administrative cost thereof.
Copies supplied shall be certified as ‘true copies’, unless the applicant
dispenses with such certification.
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 orpartial text, or by means of a reference to the document which hasbeen deposited in the file or entered in the register.
5. The documents and particulars may be relied on by the company
as against third parties only after they have been published in accor-
dance with paragraph 4, unless the company proves that the third
parties had knowledge thereof. However, with regard to transactionstaking place before the sixteenth day following the publication, thedocuments and particulars shall not be relied on as against third partieswho 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 by publication in the press and
what appears in the register or file.
However, in cases of discrepancy, the text published in the press may
not be relied on as against third parties; the latter may nevertheless rely
thereon, unless the company proves that they had knowledge of thetexts deposited in the file or entered in the register.
7. Third parties may, moreover, always rely on any documents and
particulars in respect of which the disclosure formalities have not yetbeen completed, save where non-disclosure causes them not to haveeffect.
Article 4
Member States shall prescribe that letters and order forms shall state
the following particulars:
— the register in which the file mentioned in Article 3 is kept,
together with the number of the company in that register;
— the legal form of the company, the location of its seat and, where
appropriate, the fact that the company is being wound up.
Where in these documents mention is made of the capital of the
company, the reference shall be 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.1968L0151 — EN — 01.01.1995 — 001.001 — 5
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Article 6
Member States shall provide for appropriate penalties in case of:
— failure to disclose the balance sheet and profit and loss account as
required by Article 2 (1) (f);
— omission from commercial documents of the compulsory particulars
provided for in Article 4.
SECTION II
Validityofobligationsenteredintobyacompany
Article 7
If, before a company being formed has acquired legal personality,
action has been carried out in its name and the company does not
assume the obligations arising from such action, the persons who actedshall, without limit, be jointly and severally liable therefor, unlessotherwise 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 intheir 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, unless
such 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 itproves that the third party knew that the act was outside those objectsor 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, may
never 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 personsacting 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 to
the 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
Nullityofthecompany
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, theinstrument of constitution, the company statutes and any amendments
to those documents shall be drawn upand 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;1968L0151 — EN — 01.01.1995 — 001.001 — 6
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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 not
complied with;
(b) that the objects of the company are unlawful or contrary to
public policy;
(c) that the instrument of constitution or the statutes do not state the
name of the company, the amount of the individual subscriptions
of capital, the total amount of the capital subscribed or theobjects 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 upof the comp any, 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, regulations
or administrative provisions required in order to comply with provi-
sions of this Directive and shall forthwith inform the Commissionthereof.
The obligation of disclosure provided for in Article 2 (1) (f) shall not
enter into force until thirty months after notification of this Directive in
respect ofnaamlozevennootschappen 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 December
1970, 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.1968L0151 — EN — 01.01.1995 — 001.001 — 7
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Article 14
This Directive is addressed to the Member States.1968L0151 — EN — 01.01.1995 — 001.001 — 8