No C 105/6 Official Journal of the European Communities 21. 4. 88 
II 
(Preparatory Acts) 
COMMISSION 
Amended Proposal for an Eleventh Council Directive on company law concerning disclosure 
requirements in respect of branches opened in a Member State by certain types of companies 
governed by the law of another State (') 
COM(88) 153 final 
(Submitted by the Commission to the Council on 5 April 1988 on the basis of Article 149 (3) of the 
EEC Treaty) 
(88/C 105/08) 
(') OJ No C 203, 12. 8. 1986, p. 12. 
INITIAL PROPOSAL AMENDED PROPOSAL 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, Unchanged 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Article 54 
thereof, 
Having regard to the proposal from the Commission, 
In cooperation with the European Parliament, 
Having regard to the opinion of the Economic and 
Social Committee, 
Whereas in order to facilitate the exercise of the freedom 
of establishment in respect of companies covered by 
Article 58 of the Treaty, Article 54 (3) (g) and the 
general programme on the suppression of restrictions on 
the freedom of establishment require coordination of the 
safeguards required of companies and firms in the 
Member States for the protection of the interests of 
members and others; 
Whereas hitherto this coordination has been effected in 
respect of disclosure by the adoption of the First Council 
Directive 68/151/EEC ('), covering limited liability 
companies and continued in the field of accounting by 
the Fourth Council Directive 78/660/EEC (2) on annual 
accounts of certain types of companies, the Seventh 
Council Directive 83/349/EEC (3) on consolidated 
accounts and by the Eighth Council Directive 
84/253/EEC (4) on the approval of persons performing 
the statutory audits of accounting documents; 
0) OJ No L 65, 14. 3. 1968, p. 9. 
O OJ No L 222, 14. 8. 1978, p. 11. 
O OJ No L 193, 18. 7. 1983, p. 1. 
O OJ No L 126, 12. 5. 1984, p. 20. 
21. 4. 88 Official Journal of the European Communities No C 105/7 
INITIAL PROPOSAL AMENDED PROPOSAL 
Whereas these Directives apply to companies as such but 
do not cover their branches; whereas, the opening of a 
branch, as well as the creation of a subsidiary company, 
is one of the possibilities currently open to companies in 
exercising their rights of establishment in another 
Member State; 
Whereas in respect of branches the lack, of coordination, 
in particular concerning disclosure, gives rise to disparity 
in respect of protection of shareholders and third parties 
between companies which operate in other Member 
States by opening branches and those which operate by 
creating subsidiary companies and it is appropriate to 
eliminate such disparities in order to ensure an equiv­
alent level of protection for those concerned; 
Whereas in this field the divergence among the laws of 
the Member States interferes with the exercise of the 
right of establishment and it is therefore necessary to 
eliminate such divergence to guarantee the exercise of 
the said right; 
Whereas to ensure the protection of persons who deal 
with companies by way of a branch, measures in respect 
of disclosure are required in the Member State in which 
the branch is situated, and to effect such disclosure it is 
necessary to make use of the procedure already 
instituted for limited liability companies within the 
Community; Whereas to ensure the protection of persons who deal 
with companies by way of a branch, measures in respect 
of disclosure are required in the Member State in which 
the branch is situated; whereas the economic and social 
influence of a branch may be comparable to that of a 
subsidiary company, so that to that extent the public 
interest in disclosure is comparable; whereas to effect 
such disclosure it is necessary to make use of the 
procedure already instituted for limited liability 
companies within the Community; 
Whereas the said disclosure with an exception in respect 
of those having powers of representation may be 
confined to information concerning the branch itself 
together with a reference to the register of the company 
of which the branch is part, given that, pursuant to 
Community rules, all information covering the company 
as such is available on that register; Whereas the said disclosure with an exception in respect 
of those having powers of representation and the 
winding-up of the company may be confined to infor­
mation concerning the branch itself together with a 
reference to the register of the company of which the 
branch is part, given that, pursuant to Community rules, 
all information covering the company as such is available 
on that register; 
Whereas national provisions in respect of disclosure of 
accounting documents relating to the branch can no 
longer be justified following the coordination of national 
law in respect of the drawing up, statutory audit and 
disclosure of the accounting documents of the company; 
whereas in consequence it is sufficient to disclose, on the 
register of the branch, the annual accounts of the 
company and, in default of those, the consolidated 
accounts in which the company is included; Unchanged 
No C 105/8 Official Journal of the European Communities 21. 4. 88 
INITIAL PROPOSAL AMENDED PROPOSAL 
Whereas to avoid any discrimination arising out of the 
country of origin of the company, the Directive should 
also cover branches created by companies governed by 
the law of third countries and based on legal forms 
comparable with limited liability companies, whereas for 
these branches it is necessary to apply certain provisions 
different from those applying to branches of companies 
governed by the law of other Member States given that 
the Directives set out above do not apply to companies 
of third countries, Unchanged 
HAS ADOPTED THIS DIRECTIVE: Unchanged 
Branches of companies from other Member States Unchanged 
Article 1 
Documents and particulars relating to a branch set up in 
a Member State by a company which is subject to the 
law of another Member State and to which Directive 
68/151/EEC applies shall be disclosed according to the 
law of the Member State of the branch in compliance 
with Article 3 of the said Directive. Article 1 
Unchanged 
Article 2 
1. The compulsory disclosure provided for in Article 1 
shall cover the following documents and particulars: Article 2 
1. Unchanged 
(a) the address of the branch; 
(aa) the object of the activities of the branch; 
(b) the register in which the company file mentioned in 
Article 3 of Directive 68/151/EEC is kept, together 
with the registration number in that register; Unchanged 
(ba) the existence of other branches in the same Member 
State, together with the particulars referred to in (a) 
and (b); 
(c) the name of the branch if that is different from the 
name of the company; 
(d) the appointment, termination of office and 
particulars of the persons who, either as a body 
constituted pursuant to law or as members of any 
such body and those who as permanent represen­
tatives of the company for the activities of the 
branch, are authorized to represent the company in 
dealings with third parties and in legal proceedings. 
It must be stated whether the persons authorized to 
represent the company may do so alone or must act 
jointly; 
21. 4. 88 Official Journal of the European Communities No C 105/9 
INITIAL PROPOSAL AMENDED PROPOSAL 
(da) the winding-up of the company and the 
appointment of liquidators, particulars concerning 
them and their powers in accordance with Article 2 
(1) (j) of Directive 68/151/EEC; 
(e) the accounting documents covered by Article 3; 
(f) the closure of the branch. Unchanged 
(f) the closure of the branch and transfers of its 
location. 
2. The Member State of the place of the branch may 
require the deposit in the register of the branch of the 
certified signature of the persons referred to in 
paragraph 1 (d). Unchanged 
Article 3 
1. The compulsory disclosure of accounting 
documents provided for by Article 2 (1) (e) shall be 
limited to the annual accounts and annual report of the 
company. These documents must have been drawn up 
and audited in accordance with the law of the Member 
State by which the company is governed in compliance 
with Directives 78/660/EEC and 84/253/EEC. Article 3 
1. Unchanged 
2. Paragraph 1 shall not apply where, pursuant to 
Article 57 of Directive 78/660/EEC, the provisions 
thereof concerning the content, auditing and publication 
of the annual accounts do not apply to a company which 
is a subsidiary company within the meaning of Directive 
83/349/EEC. In this event the compulsory disclosure 
provided for in Article 1 shall cover the consolidated 
accounts and the consolidated annual report of the 
parent undertaking of the company. Those documents 
must have been drawn up and audited in accordance 
with the law of the Member State by which the parent 
undertaking is governed in compliance with Council 
Directives 83/349/EEC and 84/253/EEC. 2. Unchanged 
3. The Member State in which the branch was created 
may stipulate that the documents and particulars referred 
to in paragraphs 1 and 2 must be published in its official 
language and their translation must be certified. 
Article 4 
Member States shall prescribe that letters and order 
forms used by the branch shall state, in addition to the 
information prescribed by Article 4 of Directive 
68/151/EEC, the register in which the file in respect of 
the branch is kept together with the number of the 
branch in that register. Article 4 
Unchanged 
No C 105/10 Official Journal of the European Communities 21. 4. 88 
INITIAL PROPOSAL AMENDED PROPOSAL 
II 
Branches of companies from third countries II 
Unchanged 
Article 5 
Documents and particulars concerning a branch set up in 
a Member State by a company which is not governed by 
the law of a Member State but which is of a legal form 
comparable with the types of company to which 
Directive 68/151/EEC applies shall be published 
according to the law of the Member State of the branch 
in accordance with Article 3 of the said Directive. Article 5 
Unchanged 
Article 6 
1. The compulsory disclosure provided for in Article 5 
shall cover at- least the following documents and 
particulars: 
(a) the address of the branch; 
(b) the law of the State by which the company is 
governed; 
(c) where the said law so provides, the register in which 
the company is recorded and the registration number 
of the company in that register; 
(d) the instruments of constitution, and memorandum 
and articles of association if they are contained in a 
separate instrument with all amendments to these 
documents;' 
(e) the legal form of the company, its seat, its name and 
its object and the amount of subscribed capital if 
these matters are not shown in the documents 
covered by subparagraph (d); 
(f) the name of the branch if that is different from the 
name of the company; 
(g) the appointment, termination of office and 
particulars of the persons who either as a body 
constituted pursuant to law or as members of any 
such body and those who as permanent represen­
tatives of the company for the activities of the branch 
are authorized to represent the company in dealings 
with third parties and in legal proceedings. It must 
be stated whether the persons authorized to 
represent the company may do so alone or must act 
jointly; Article 6 
Unchanged 
(aa) the object of the activities of the branch; 
(ca) the existence of other branches in the same Member 
State, together with the particulars referred to in 
(a), (aa) and (c); 
Unchanged 
(ga) the winding-up of the company and the 
appointment of liquidators, particulars concerning 
them and their powers; 
(h) the accounting documents referred to in Article 7; 
21. 4. 88 Official Journal of the European Communities No C 105/11 
INITIAL PROPOSAL AMENDED PROPOSAL 
(i) the closure of the branch. (i) the closure of the branch and transfers of its 
location. 
2. The Member State of the place of the branch may 
require the deposit in the register of the branch of the 
certified signature of the persons referred to in 
paragraph 1 (g). Unchanged 
Article 7 
1. The compulsory disclosure of accounting 
documents provided for by Article 6 (1) (h) shall apply 
to at least the annual accounts and annual report of the 
company. Article 7 
1. Unchanged 
2. Where the company produces consolidated 
accounts and a consolidated annual report instead of 
annual accounts and an annual report the compulsory 
disclosure provided for in Article 5 shall cover such 
consolidated accounts and the consolidated annual 
report. 2. Unchanged 
3. The documents covered by paragraphs 1 and 2 
must have been drawn up and audited pursuant to the 
law which governs the company and in accordance with 
the relevant provisions of such legislation or, in default 
thereof, in accordance with the accounting principles 
generally accepted in the State in question. 3. The documents covered by paragraphs 1 and 2 
must have been drawn up in accordance with Directives 
78/660/EEC and 83/349/EEC respectively, or so as to 
be equivalent to annual accounts or consolidated 
accounts and an annual report or a consolidated annual 
report drawn up according to the Directive concerned; 
they must also have been audited pursuant to the law 
which governs the company. 
4. Article 3 (3) shall apply. 4. Unchanged 
Article 8 
Member States shall prescribe that letters and order 
forms used by the branch shall state the register in which 
the file in respect of the branch is kept together with the 
number of the branch in that register. Article 8 
Member States shall prescribe that letters and order 
forms used by the branch state the register in which the 
file in respect of the branch is kept together with the 
number of the branch in that register. If the law 
governing the company requires an entry in a register, 
that register and the number of the entry shall also be 
stated. 
Ha 
Disclosure of particulars in respect of branches in the 
register in which the company is recorded 
Article 8a 
The particulars of branches, irrespective of their 
location, opened by companies subject to the law of a 
Member State and to which Directive 68/151/EEC 
applies, shall be disclosed by those companies in 
accordance with Article 3 of the said Directive. 
No C 105/12 Official Journal of the European Communities 21. 4. 88 
INITIAL PROPOSAL 
III 
Transitional and final provisions 
Article 9 
Member States shall provide for appropriate penalties in 
the case of failure to disclose the matters set out in 
Articles 1, 2, 3, 5, 6 and 7 and of omission from 
commercial documents of the compulsory particulars 
provided for in Articles 4 and 8. 
Article 10 
Each Member State shall determine by which persons the 
disclosure formalities provided for in this Directive are to 
be carried out. 
Article 11 
Pending subsequent coordination, Member States need 
not apply the provisions of Articles 3 and 7 to the 
branches of banks, other financial institutions and 
insurance companies. 
Article 12 
1. Member States shall bring into force the laws, 
regulations and administrative provisions necessary for 
them to comply with this Directive by 1 January 1990. 
They shall forthwith inform the Commission thereof. 
2. Member States may stipulate that the provisions 
referred to in paragraph 1 shall not apply until 1 January 
1992. 
3. Member States shall communicate to the 
Commission the texts of the main provisions of national 
law which they adopt in the field covered by this 
Directive. 
Article 13 
The Contact Committee set up pursuant to Article 52 of 
Directive 78/660/EEC shall also: 
(a) facilitate, without prejudice to the provisions of 
Articles 169 and 170 of the Treaty, the harmonized 
application of this Directive, through regular 
meetings dealing, in particular, with practical 
problems arising in connection with its application; 
(b) advise the Commission, if necessary, on any 
necessary additions or amendments to this Directive. 
Article 14 
This Directive is addressed to the Member States. AMENDED PROPOSAL 
III 
Unchanged 
Article 9 
Unchanged 
Article 10 
Unchanged 
Article 11 
Unchanged 
Article 12 
1. Unchanged 
2. Member States shall stipulate that the provisions 
referred to in paragraph 1 apply from 1 January 1991. 
3. Member States shall communicate to the 
Commission the texts of the provisions of national law 
which they adopt in the field covered by this Directive. 
Article 13 
Unchanged 
Article 14 
Unchanged