1980L0723 — EN — 01.10.1993 — 001.001 — 1
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►B COMMISSION DIRECTIVE
of 25June 1980
on the transparency of financial relations between Member States and public undertakings
(80/723/EEC)
(OJ L 195, 29.7.1980, p. 35)
Amended by:
OfficialJournal
No page date
►M1 Commission Directive 85/413/EEC of 24 July 1985 L 229 20 28.8.1985
►M2 Commission Directive 93/84/EEC of 30 September 1993 L 254 16 12.10.1993
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) andCouncilRegul ation (EC) No 1103/97 (OJ L 162, 19.6.1997, p. 1).
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▼B
COMMISSION DIRECTIVE
of 25June 1980
on the transparency of financial relations between Member States
and public undertakings
(80/723/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 90 (3) thereof,
Whereas public undertakings play a substantial role in the national
economy of the Member States;
Whereas the Treaty in no way prejudices the rules governing the system
of property ownership in Member States and equaltreatment of privateand public undertakings must therefore be ensured;
Whereas the Treaty requires the Commission to ensure that Member
States do not grant undertakings, public or private, aids incompatiblewith the common market;
Whereas, however, the complexity of the financial relations between
national public authorities and public undertakings tends to hinder theperformance of this duty;
Whereas a fair and effective application of the aid rules in the Treaty to
both public and private undertakings will be possible only if thesefinancialrel ations are made transparent;
Whereas such transparency applied to public undertakings should
enable a clear distinction to be made between the role of the State aspublic authority and its role as proprietor;
Whereas Article 90 (1) confers certain obligations on the Member
States in respect of public undertakings; whereas Article 90 (3) requiresthe Commission to ensure that these obligations are respected, andprovides it with the requisite means to this end; whereas this entailsdefining the conditions for achieving transparency;
Whereas it should be made clear what is to be understood by the terms
‘public authorities' and ‘public undertakings';
Whereas public authorities may exercise a dominant influence on the
behaviour of public undertakings not only where they are the proprietoror have a majority participation but also by virtue of powers they holdin management or supervisory bodies as a result either of the rulesgoverning the undertaking or of the manner in which the shareholdingsare distributed;
Whereas the provision of public funds to public undertakings may take
place either directly or indirectly; whereas transparency must beachieved irrespective of the manner in which such provision of publicfunds is made; whereas it may also be necessary to ensure that adequateinformation is made available as regards the reasons for such provisionof public funds and their actual use;
Whereas Member States may through their public undertakings seek
ends other than commercialones; whereas in some cases publ ic under-takings are compensated by the State for financialburdens assumed bythem as a result; whereas transparency should also be ensured in thecase of such compensation;
Whereas certain undertakings should be excluded from the application
of this Directive by virtue either of the nature of their activities or of thesize of their turnover; whereas this applies to certain activities whichstand outside the sphere of competition or which are already covered byspecific Community measures which ensure adequate transparency, topublic undertakings belonging to sectors of activity for which distinctprovision should be made, and to those whose business is not conducted
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▼B
on such a scale as to justify the administration burden of ensuring
transparency;
Whereas this Directive is without prejudice to other provisions of the
Treaty, notably Articles 90 (2), 93 and 223;
Whereas, the undertakings in question being in competition with other
undertakings, information acquired should be covered by the obligationof professionalsecrecy;
Whereas this Directive must be applied in close cooperation with the
Member States, and where necessary be revised in the light of experi-ence,
HAS ADOPTED THIS DIRECTIVE:
Article 1
The Member States shall ensure that financial relations between public
authorities and public undertakings are transparent as provided in thisDirective, so that the following emerge clearly:
(a) public funds made available directly by public authorities to the
public undertakings concerned;
(b) public funds made available by public authorities through the inter-
mediary of public undertakings or financial institutions;
(c) the use to which these public funds are actually put.
Article 2
For the purpose of this Directive:
— ‘public authorities' means:
the State and regionalor l ocalauthorities,
— ‘public undertakings' means:
any undertaking over which the public authorities may exercise
directly or indirectly a dominant influence by virtue of their owner-ship of it, their financialparticipation therein, or the rul es whichgovern it.
▼
M2
— ‘public undertakings operating in the manufacturing sector' means:
al lundertakings whose principalarea of activity, defined as being at
l east 50 % of totalannualturnover, is in manufacturing. Theseundertakings are those whose operations fall to be included inSectio n D — Manufacturing (being subsection DA up to and
including subsection DN) of the NACE (Rev. 1) classification (
1).
▼B
A dominant influence on the part of the public authorities shall be
presumed when these authorities, directly or indirectly in relation to anundertaking:
(a) hold the major part of the undertaking’s subscribed capital; or
(b) controlthe majority of the votes attaching to shares issued by the
undertakings; or
(c) can appoint more than half of the members of the undertaking’s
administrative, managerialor supervisory body.
Article 3
The transparency referred to in Article 1 shall apply in particular to the
following aspects of financial relations between public authorities andpublic undertakings:
(1) OJ No L 83, 3. 4. 1993, p. 1.
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(a) the setting-off of operating losses;
(b) the provision of capital;
(c) non-refundable grants, or loans on privileged terms;
(d) the granting of financialadvantages by forgoing profits or the
recovery of sums due;
(e) the forgoing of a normalreturn on publ ic funds used;
(f) compensation for financialburdens imposed by the publ ic authori-
ties.
▼M1
Article 4
This Directive shall not apply to financial relations between the public
authorities and:
(a) public undertakings, as regard services the supply of which is not
liable to affect trade between Member States to an appreciableextent;
(b) centralbanks and the Institut Monétaire Luxembourgeois;
(c) public credit institutions, as regards deposits of public funds placed
with them by publ ic authorities on normalcommercialterms;
(d) public undertakings whose total turnover before tax over the period
of the two financialyears preceding that in which the funds referredto in Article 1 are made available or used has been less than 40million ECU. However, for public credit institutions the corre-sponding threshold shall be a balance sheet total of 800 millionECU.
▼
B
Article 5
1. Member States shall ensure that information concerning the finan-
cial relations referred to in Article 1 be kept at the disposal of theCommission for five years from the end of the financialyear in whichthe public funds were made available to the public undertakingsconcerned. However, where the same funds are used during a laterfinancial year, the five-year time limit shall run from the end of thatfinancialyear.
2. Member States shall, where the Commission considers it neces-
sary so to request, supply to it the information referred to in paragraph1, together with any necessary background information, notably theobjectives pursued.
▼
M2
Article 5a
1. Member States whose public undertakings operate in the manufac-
turing sector shall supply the financial information as set out in para-graph 2 to the Commission on an annualbasis within the timetabl econtained in paragraph 4.
2. The financialinformation required for each publ ic undertaking
operating in the manufacturing sector and in accordance with paragraph3 shall be as follows:
(i) the annualreport and annualaccounts, in accordance with the
definition of CouncilDirective 78/660/EEC (
1). The annual
accounts and annual report include the balance sheet and profit/loss account, explanatory notes, together with accounting policies,statements by directors, segmentaland activity reports. Moreover,notices of shareholders’ meetings and any other pertinent informa-tion shall be provided.
(1) OJ No L 222, 14. 8. 1978, p. 11.
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The following details, in so far as not disclosed in the annual report andannual accounts of each public undertaking, shall also be provided:
(ii) the provision of any share capitalor quasi-capitalfunds simil ar in
nature to equity, specifying the terms of its or their provision(whether ordinary, preference, deferred or convertible shares andinterest rates; the dividend or conversion rights attaching thereto);
(iii) non-refundable grants, or grants which are only refundable in
certain circumstances;
(iv) the award to the enterprise of any loans, including overdrafts and
advances on capitalinjections, with a specification of interest ratesand the terms of the loan and its security, if any, given to thelender by the enterprise receiving the loan;
(v) guarantees given to the enterprise by public authorities in respect
of loan finance (specifying terms and any charges paid by enter-prises for these guarantees);
(vi) dividends paid out and profits retained;
(vii) any other forms of State intervention, in particular, the forgiving
of sums due to the State by a public undertaking, including inter
aliathe repayment of loans, grants, payment of corporate or social
taxes or any similar charges.
3. The information required by paragraph 2 shall be provided for all
public undertakings whose turnover for the most recent financial yearwas more than ECU 250 million.
The information required above shall be supplied separately for each
public undertaking including those located in the Member States, andshall include, where appropriate, details of all intra and inter-grouptransactions between different public undertakings, as well as transac-tions conducted directly between public undertakings and the State. Theshare capital referred to in paragraph 2 (ii) shall include share capitalcontributed by the State directly and any share capital received contrib-uted by a public holding company or other public undertaking(including financial institutions), whether inside or outside the samegroup, to a given public undertaking. The relationship between theprovider of the finance and the recipient shall always be specified.Similarly, the reports required in paragraph 2 shall be provided for eachindividual public undertaking separately, as well as for the (sub-)holding company which consolidates several public undertakings in sofar as the consolidated sales of the (sub)-holding company lead to itsbeing classified as ‘manufacturing'.
Certain public enterprises split their activities into several legally
distinct undertakings. For such enterprises the Commission is willing toaccept one consolidated report. The consolidation should reflect theeconomic reality of a group of enterprises operating in the same orclosely related sectors. Consolidated reports from diverse, and purelyfinancial, holdings shall not be sufficient.
4. The information required under paragraph 2 shall be supplied to
the Commission on an annualbasis. The information in respect of thefinancialyear 1992 shal lbe forwarded to the Commission within twomonths of publication of this Directive.
For 1993 and subsequent years, the information shall be provided within
15 working days of the date of publication of the annual report of thepublic undertaking concerned. In any case, and specifically for under-takings which do not publish an annual report, the required informationshall be submitted not later than nine months following the end of theundertaking’s financialyear.
In order to assess the number of companies covered by this reporting
system, Member States shall supply to the Commission a list of thecompanies covered by this Article and their turnover, within twomonths of publication of this Directive. The list is to be updated by 31March of each year.
5. This Article is applicable to companies owned or controlled by the
Treuhandanstalt only from the expiry date of the special reportingsystem set up for Treuhandanstalt investments.
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6. Member States will furnish the Commission with any additionalinformation that it deems necessary in order to complete a thoroughappraisalof the data submitted.
▼
B
Article 6
1. The Commission shall not disclose such information supplied to it
pursuant to Article 5 (2) as is of a kind covered by the obligation ofprofessionalsecrecy.
2. Paragraph 1 shall not prevent publication of general information or
surveys which do not contain information relating to particular publicundertakings to which this Directive applies.
Article 7
The Commission shall regularly inform the Member States of the results
of the operation of this Directive.
Article 8
Member States shall take the measures necessary to comply with the
Directive by 31 December 1981. They shall inform the Commissionthereof.
Article 9
This Directive is addressed to the Member States.