No C 7/4 Official Journal of the European Communities 11. 1. 91 
II 
(Preparatory Acts) 
COMMISSION 
Second Amendment to the proposal for a Fifth Council Directive based on Article 54 of the 
EEC Treaty concerning the structure of public limited companies and the powers and obli­
gations of their organs 
COM(90) 629 final — SYN 3 
(Submitted by the Commission pursuant to Article 149(3) of the EEC Treaty on 20 December 
1990) 
(91/C 7/05) 
FIRST AMENDED PROPOSAL SECOND PROPOSAL 
Amended proposal for a Fifth Directive founded on 
Article 54 (3) (g) of the EEC Treaty concerning the 
structure of public limited companies and the powers and 
obligations of their organs 
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 (2), 
Having regard to the opinion of the Economic and 
Social Committee (J), Amendment to the proposal for a Fifth Directive based 
on Article 54 of the EEC Treaty concerning the structure 
of public limited companies and the powers and obli­
gations of their organs 
Unchanged. 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Article 54 
thereof, 
Having regard to the amended proposal from the 
Commission ('), 
In cooperation with the European Parliament, 
Unchanged. 
A new recital is inserted between the twelfth and thir­
teenth, as follows 
Whereas the position of shareholders regarding the 
exercise of their voting rights should be strengthened in 
order to ensure a wide measure of participation in the 
life of the company; whereas voting rights should 
accordingly be proportionate to the shareholder's stake 
in the company capital, and limits should be imposed First to twelfth recitals unchanged 
O OJ No C 131, 13. 12. 1972, p. 49. 
O OJ No C 149, 14. 6. 1982, p. 17. 
(3) OJ No C 109, 19. 9. 1974, p. 9. (l) OJ No C 240, 9. 9. 1983, p. 2. 
11. 1.91 Official Journal of the European Communities No C 7/5 
FIRST AMENDED PROPOSAL SECOND PROPOSAL 
on the issue of preference shares without voting rights; 
whereas the freedom of the general meeting to appoint 
members of the organs of the company should not be 
reduced by giving particular categories of shareholders 
an exclusive right to put forward nominations; whereas 
the majority required for such resolutions on the part of 
the general meeting should be no greater than the 
absolute majority; 
Fourteenth and fifteenth recitals unchanged 
HAS ADOPTED THIS DIRECTIVE: Unchanged 
Articles 1 to 3 unchanged 
Article 4 Article 4 
Paragraphs 1 to 4 unchanged 
A new paragraph 5 is inserted, as follows 
5. The memorandum or articles of association may 
not confer on the holders of a particular category of 
shares an exclusive right to put forward nominations for 
a majority of those members of the supervisory organ 
whose appointment is a matter for the general meeting. 
Articles 4a to 21a unchanged 
Article 21b Article 21b 
Paragraphs 1 to 4 unchanged 
A new paragraph 5 is inserted, as follows 
5. The memorandum or articles of association may 
not confer on the holders of a particular category of 
shares an exclusive right to put forward nominations for 
a majority of those members of the administrative organ 
whose appointment is a matter for the general meeting. 
Articles 21c to 32 unchanged 
Article 33 Article 33 
1. The shareholder's right to vote shall be 1. Unchanged, 
proportionate to the fraction of the subscribed capital 
which the shares represent. 
No C 7/6 Official Journal of the European Communities 11. 1.91 
FIRST AMENDED PROPOSAL 
2. Notwithstanding paragraph 1, the laws of the 
Member States may authorize the memorandum and the 
articles of association to allow: 
(a) restriction or exclusion of the right to vote in respect 
of shares which carry special advantages; 
(b) restriction of votes in respect of shares allotted to the 
same shareholder, provided the restriction applies at 
least to all shareholders of the same class. 
3. Any shareholder who, at the date of the general 
meeting, has not paid up calls made by the company at 
least one month earlier may not exercise his right to 
vote. 
Articles 34 and 
Article 36 
1. Resolutions of the general meeting shall be passed 
by absolute majority of votes cast by all the shareholders 
present or represented, unless a greater majority or other 
additional requirements are prescribed by the law or the 
memorandum or articles of assocation. 
2. Paragraph 1 shall not apply to the appointment of 
members of the company organs or of the persons 
responsible for auditing the accounts of the company. 
Articles 37 to 6 
Article 64 
Paragraphs 1 to SECOND PROPOSAL 
2. Notwithstanding paragraph 1, the laws of the 
Member States may authorize the memorandum and the 
articles of association to allow restriction or exclusion of 
the right to vote in respect of shares which carry special 
pecuniary advantages. Such shares may not be issued for 
an amount exceeding 50 % of the subscribed capital. 
Where the company has not fulfilled the obligations 
arising in respect of such shares for a period which may 
not exceed three consecutive accounting years, the 
holders of those shares shall acquire voting rights in 
proportion to the fraction of the subscribed capital which 
those shares represent, and the voting rights thus 
acquired shall be equivalent to those of the other share­
holders. 
3. Unchanged. 
5 unchanged 
Article 36 
1. Unchanged. 
2. Unchanged. 
3. For resolutions appointing or dismissing members 
of the administrative, management or supervisory organ, 
neither the law nor the memorandum or articles of 
association may require a majority greater than the 
absolute majority of votes cast by all the shareholders 
present or represented. 
d unchanged 
Article 64 
3 unchanged 
A new paragraph 4 is inserted 
4. When Member States adopt these measures, they 
shall contain a reference to this Directive or shall be 
accompanied by such reference on the occasion of their 
official publication. The methods of making such a 
reference shall be laid down by the Member States. 
Article 65 unchanged