25.1.85 Official Journal of the European Communities No C 23/11 
Proposal for a Tenth Council Directive based on Article 54 (3) (g) of the Treaty 
concerning cross-border mergers of public limited companies 
COM(84) 727final 
(Submitted by the Commission to the Council on 14 January 1985) 
(85/C 23/08) 
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 Par­
liament, 
Having regard to the opinion of the Economic and 
Social Committee, 
Whereas, although mergers between public limited 
liability companies have been coordinated by Council 
Directive 78/855/EEC ('), such coordination extends 
only to mergers involving companies which are 
governed by the law of the same Member State; 
whereas, in the interests of the common market, 
provision should be made particularly of mergers 
involving companies which are governed by the laws 
of different Member States; 
Whereas Article 220 of the Treaty which provides for 
Member States, where necessary, to enter into 
negotiations with each other with a view to ensuring 
that cross-frontier mergers are possible, does not 
prevent the matter from being harmonized by 
directive; 
Whereas that approach offers the advantage that in 
the numerous cases where the arrangements 
governing national and cross-border mergers 
coincide, reference can be made in the present 
Directive to the corresponding provisions of Directive 
78/855/EEC, thereby ensuring at the same time a 
more uniform implementation and interpretation of 
both sets of rules than would be possible with two 
completely separate legal instruments; 
Whereas this Directive is therefore limited to 
additional requirements or to those aspects of cross-
border mergers which differ from national mergers; Whereas the scope of this Directive is essentially the 
same as that of Directive 78/855/EEC; whereas, 
however, a Member State should also be empowered 
not to apply this Directive to companies which, under 
its law, are governed by provisions concerning 
employee participation in the composition of the 
organs of those companies; whereas this exception 
appears necessary at any rate until the Council has 
decided on the Commission's amended proposal for a 
Fifth Directive based on Article 54 (3) (g) of the 
Treaty concerning the structure of public limited 
companies and the powers and obligations of their 
organs (2); whereas in other respects the protection of 
employees in the event of either cross-border or 
national mergers is guaranteed by Council Directive 
77/187/EEC(3); 
Whereas, for the purpose of defining cross-border 
mergers, reference may be made to the definition of 
national mergers in Directive 78/855/EEC, with the 
sole exception that two or more of the companies 
involved must be governed by the laws of different 
Member States; 
Whereas, although Directive 78/855/EEC permits 
Member States to choose whether or not to apply 
certain provisions of that Directive in the case of 
national mergers, they may exercise those options in 
the case of cross-border mergers only for those 
companies involved in the operation which are 
governed by their law; 
Whereas although Directive 78/855/EEC permits 
certain exceptions for operations treated as mergers, 
Member States may make use of those exceptions in 
the case of cross-border mergers only if the other 
Member States whose law governs the other 
companies involved have also done so; 
Whereas although Directive 78/855/EEC provides in 
the case of national mergers that it is sufficient for 
the draft terms of a merger to be drawn up in writing, 
0) OJ No L 295, 20. 10. 1978, p. 36. O OJ No C 240, 9. 9. 1983, p. 2. 
C) OJ No L 61, 5. 3. 1977, p. 26. 
No C 23/12 Official Journal of the European Communities 25.1.85 
the draft terms of a cross-border merger need to be 
drawn up and certified in due legal form if the law of 
a Member State governing one of the companies 
involved so provides; 
Whereas, following their filing in the register, the 
draft terms of a national merger may be published in 
the national gazette in accordance with Council 
Directive 68/151/EEC (x) simply by means of 
reference to their filing in the register; whereas, in the 
case of cross-border mergers, additional details 
appear necessary in order to provide third parties, 
and particularly creditors of companies being 
acquired, with better information on their rights; 
Whereas stricter requirements should not be imposed 
in respect of a general meeting's decision concerning 
a cross-border merger than in respect of a general 
meeting's decision concerning a national merger; 
Whereas the creditors of companies involved in a 
cross-border merger should benefit from the same 
system of protection as creditors in the case of a 
national merger; 
Whereas in the case of cross-border mergers the 
judicial or administrative preventive supervision or, 
where appropriate, the drawing up and certification 
of documents in due legal form, must be 
synchronized for all the companies involved; 
Whereas a cross-border merger may not take effect 
until the necessary supervision or formalities have 
been completed for all the companies involved; 
Whereas the publication of a cross-border merger 
must take place for the acquired company before it 
takes place for the acquiring company; 
Whereas the grounds of nullity of cross-border 
mergers should be limited as far as possible, 
HAS ADOPTED THIS DIRECTIVE: 
Article 1 
1. The coordination measures laid down by this 
Directive shall apply to the laws, regulations and 
administrative provisions of the Member States 
relating to the following types of company: 
(a) Germany: 
Aktiengesellschaft; (b) Belgium: 
societe anonyme / naamloze vennootschap; 
(c) Denmark: 
aktieselskaber; 
(d) France: 
societe anonyme; 
(e) Greece: 
av(bvt)HT| ETcapta; 
(f) Ireland: 
public companies limited by shares or by 
guarantee; 
(g) Italy: 
societa per azioni; 
(h) Luxembourg: 
socidte anonyme; 
(i) The Netherlands: 
naamloze vennootschap; 
(j) United Kingdom: 
public companies limited by shares or by 
guarantee. 
2. Where a Member State applies Article 1 (2) or 
(3) of Directive 78/855/EEC in respect of a company 
governed by its law which is involved tin a cross-
border merger, this Directive shall not apply. 
3. - Pending subsequent coordination, a Member 
State need not apply the provisions of this Directive 
to a cross-border merger where an undertaking, 
whether or not it was involved, would as a result no 
longer meet the conditions required for employee 
representation in that undertaking's organs. 
4. Protection of the rights of the employees of 
each of the companies involved in a cross-border 
merger shall be regulated in accordance with 
Directive 77/187/EEC. 
Article 2 
1. Except where this Directive provides otherwise, 
the Member States shall provide for cross-border 
mergers by the acquisition of one or more companies 
by another and for cross-border mergers by the 
creation of a new company in accordance with 
Directive 78/855/EEC in respect of companies 
governed by their law. 
0) OJ No L 65, 14. 3. 1968, p. 8. 2. Articles 17 and 22 (1) (b) of Directive 
78/855/EEC shall not apply. 
25.1. 85 Official Journal of the European Communities No C 23/13 
3. A Member State may apply Articles 3 (2), 4 (2), 
8, 11 (2) second subparagraph, 22 (1) and (2), 23 (4) 
and 25 to 29 of Directive 78/855/EEC only in 
respect of those companies involved in a cross-border 
merger which are governed by its law. 
4. A Member State may apply Articles 30 and 31 
of Directive 78/855/EEC to those companies 
involved in a cross-border merger which are governed 
by its law only if the Member States by whose law the 
other companies involved in the operation are 
governed have also done so. 
Article 3 
For the purposes of this Directive, 'cross-border 
merger by acquisition' means the operation referred 
to in Article 3 (1) of Directive 78/855/EEC, with the 
exception that two or more of the companies involved 
must be governed by the laws of different Member 
States. 
Article 4 
For the purposes of this Directive, 'cross-border 
merger by the formation of a new company' means 
the operation referred to in Article 4 (1) of Directive 
78/855/EEC, with the exception that two or more of 
the companies involved must be governed by the laws 
of different Member States. 
Article 5 
1. Article 5 of Directive 78/855/EEC shall apply 
to the drawing up of the draft terms of a cross-border 
merger. No further details than those listed in 
paragraph 2 of the abovementioned Article may be 
required. 
2. The draft terms of a cross-border merger shall 
be drawn up and certified in due legal form if this is 
prescribed by the law of a Member State by which 
one or more of the companies involved in the cross-
border merger is governed. 
3. The law of the Member State requiring that the 
draft terms be drawn up and certified in due legal 
form shall determine the person or authority 
competent so to do. Where the laws of several 
Member States by which companies involved in the 
cross-border merger are governed require that the 
draft terms be drawn up and certified in due legal 
form, this may be done by any person or authority 
competent under the law of one of those Member 
States. Article 6 
1. Article 6 of Directive 78/855/EEC and Article 3 
of Directive 68/151/EEC shall apply to the pub­
lication of the draft terms of a cross-border merger 
for each of the merging companies. 
2. However, when the draft terms referred to in 
paragraph 2 are disclosed as provided for in Article 3 
(4) of Directive 68/151/EEC for each of the merging 
companies the following information shall be 
specified: 
(a) the type, name and registered office of each of 
the merging companies; 
(b) the register in which a file as referred to in Article 
3 (2) of Directive 68/151/EEC has been opened 
for each of the merging companies and the 
number of the entry in that register; 
(c) the conditions which, in accordance with Article 
11, determine the date on which the cross-border 
merger takes effect. 
3. The disclosure shall also specify for the acquired 
company or companies the details of the exercise of 
the rights of the creditors of those companies in 
accordance with Articles 13, 14 and 15 of Directive 
78/855/EEC and Article 9 of this Directive. 
Article 7 
Article 7 of Directive 78/855/EEC relating to rules 
for approval by the general meeting shall apply to 
each of the merging companies. However the 
Member States may not require a larger majority than 
they require for a merger in which all the companies 
involved are governed by their law. 
Article 8 
1. Article 10 of Directive 78/855/EEC relating to 
the drawing up of the report of the expert or experts 
shall apply. 
2. The experts shall be appointed or approved by a 
judicial or administrative authority of the Member 
State whose law governs the company for whose 
shareholders the report is drawn up. 
3. Where all the laws of the Member States by 
which the companies involved in a cross-border 
merger are governed apply the second sentence of 
Article 10 (1) of Directive 78/855/EEC, the 
appointment of one or more experts for all the 
merging companies may be made at the joint request 
No C 23/14 Official Journal of the European Communities 25.1.85 
of those companies by a judicial or administrative 
authority of any of those Member States. In such 
cases, the content of the expert's report shall be 
determined by the law governing that judicial or 
administrative authority in accordance with Article 10 
(2) of Directive 78/855/EEC. 
Article 9 
1. Articles 13 and 14 of Directive 78/855/EEC 
relating to the system of protection of the interests of 
creditors shall apply to cross-border mergers. 
2. The protective system shall not be different from 
that which applies to the creditors of merging 
companies which are all governed by the law of the 
Member States concerned. 
3. Article 15 of Directive 78/855/EEC shall apply 
to cross-border mergers subject to the proviso that: 
(a) the law governing the company being acquired 
shall determine whether a meeting of holders of 
the securities referred to may approve an 
alteration in their rights in that company; 
(b) the law governing the acquiring company shall 
determine whether the holders of the securities 
referred to are entitled to have them repurchased 
by the acquiring company. 
Article 10 
1. Where the law of a Member State governing 
one or more of the companies involved in a cross-
frontier merger provides for judicial or administrative 
preventive supervision of the legality of that merger, 
that law shall apply to those companies. 
2. Where the law of a Member State governing 
one or more of the companies involved in a cross-
frontier merger does not provide for judicial or 
administrative preventive supervision or where such 
supervision does not extend to all the legal acts 
required for the merger, Article 16 of Directive 
78/855/EEC shall apply to the company or 
companies concerned. Where that law provides for a 
merger contract to be concluded following the 
decisions of the general meetings held concerning the 
cross-border merger, that contract shall be concluded 
by all the companies involved in the operation. Article 
5 (3) shall apply. 
3. Where both the law governing the acquiring 
company and the law governing the company or companies being acquired provides for judicial or 
administrative preventive supervision of the legality of 
the cross-border merger, that supervision shall be 
carried out first in respect of the acquiring company. 
It may not be carried out in respect of a company 
being acquired until proof is furnished that it has 
already been carried out in respect of the acquiring 
company. 
4. Where the law governing one or more of the 
companies involved provides for judicial or 
administrative preventive supervision while the law 
governing one or more of the other companies 
involved does not, that supervision must be carried 
out simply on the basis of the documents drawn up 
and certified in due legal form referred to in Article 
16 of Directive 78/855/EEC. 
Article 11 
The law of the Member State governing the acquiring 
company shall determine the date on which a cross-
border merger takes effect. That date must be after 
the supervision has been carried out and, where 
appropriate, the documents certified in due legal form 
referred to in Article 10 have been drawn up for all 
the companies involved. 
Article 12 
Article 18 of Directive 78/855/EEC shall apply. 
However the publication of a cross-border merger 
must take place for the company or companies being 
acquired before publication for the acquiring 
company. 
Article 13 
Article 19 (3) of Directive 78/855/EEC shall apply 
subject to the proviso that the law of the Member 
State governing a company being acquired shall 
determine whether in order to be effective against 
third parties, the transfer of certain assets, rights and 
obligations by that company requires the completion 
of special formalities. 
Article 14 
The civil liability of the members of the administrative 
or management bodies and of the experts of an 
acquired company shall be determined, in accordance 
with Articles 20 and 21 of Directive 78/855/EEC, by 
the law of the Member State governing that company. 
25.1. 85 Official Journal of the European Communities No C 23/15 
However, in the case referred to in Article 8 (3), the 
civil liability of the experts shall be determined by the 
law of the Member State governing the judicial or 
administrative authority which appointed them. 
Article 15 
1. Article 22 (1) of Directive 78/855/EEC shall 
apply subject to the proviso in paragraph 1 (b) of the 
said Article that a cross-border merger which has 
taken effect pursuant to Article 11 of this Directive 
may be declared void only if there has been no 
judicial or administrative preventive supervision of its 
legality or if it has not been drawn up and certified in 
due legal form, where such supervision or certi­
fication is laid down by the law of the Member State 
governing the relevant company. However where the 
law governing the acquiring company does not 
provide for the nullity of the merger where there has 
been no judicial or administrative preventive 
supervision of its legality or where it has not been 
drawn up and certified in due legal form, it may not 
be declared void. 
2. The law of a Member State may not provide for 
grounds of nullity for cross-border mergers which it 
has not provided for mergers involving companies all 
of which are governed by that law. 3. Article 22 (1) (f) of Directive 78/855/EEC shall 
apply where the laws of a Member State where a 
judgment has declared a cross-border merger void 
permit a third party to challenge such a judgment. 
Article 16 
1. The Member States shall bring into force the 
laws, regulations and administrative provisions 
necessary to comply with this Directive before 
1 January 1988. They shall forthwith inform the 
Commission thereof. 
2. The Member States need not apply this 
Directive to cross-border mergers or to operations 
treated as cross-border mergers for the preparation or 
execution of which a prescribed act or formality has 
already been completed when the provisions referred 
to in paragraph 1 enter into force. 
3. The Member States shall communicate to the 
Commission the texts of the main provisions of 
national law which they adopt in the fields covered by 
this Directive. 
Article 17 
This Directive is addressed to the Member States.