Publication and translation obligations of certain types of companies ***I

P6_TA(2008)0547

European Parliament legislative resolution of 19 November 2008 on the proposal for a directive of the European Parliament and of the Council amending Council Directives 68/151/EEC and 89/666/EEC as regards publication and translation obligations of certain types of companies (COM(2008)0194 — C6-0171/2008 — 2008/0083(COD))

(2010/C 16 E/33)

(Codecision procedure: first reading)

The European Parliament,

having regard to Article 251(2) and Article 44(2)(g) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0171/2008),

having regard to the report of the Committee on Legal Affairs and the opinion of Committee on Economic and Monetary Affairs (A6-0400/2008),

1. Approves the Commission proposal as amended;

2. Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3. Instructs its President to forward its position to the Council and Commission.

P6_TC1-COD(2008)0083

Position of the European Parliament adopted at first reading on 19 November 2008 with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council amending Council Directives 68/151/EEC, 77/91/EEC and 89/666/EEC as regards publication and translation obligations of certain types of companies

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 44(2)(g) thereof,

Having regard to the proposal from the Commission ║,

Having regard to the opinion of the European Economic and Social Committee (1),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),

Whereas:

(1) The European Council agreed, at its meeting on 8 and 9 March 2007, that administrative burdens on companies should be reduced by 25 % by the year 2012 in order to enhance the competitiveness of companies in the Community.

(2) Company law has been identified as one area that contains a high number of information obligations for companies, some of which seem outdated or excessive.

(3) Those information obligations need to be reviewed in order to reduce the burdens weighing on companies within the Community to the minimum required to ensure the protection of the interests of other stakeholders.

(4) Under the First Council Directive 68/151/EEC of 9 March 1968 on coordination 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 of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (3), limited-liability companies need to disclose, by way of publication, certain information that has to be entered into the Member States' central register, commercial register or companies register. This publication, in many Member States, has to take place by using the national gazette and sometimes, in addition, through the national or regional newspapers.

(5) In most cases, the publication obligations entail additional costs for the companies concerned without providing real added value given that company registers make their information available online. Initiatives — such as the future European e-Justice portal — aimed at facilitating the Community-wide access to such registers further reduce the need to publish that information in a national gazette or in other print media.

(6) In order to allow for a cost-effective publication that provides users with easy access to the information, Member States should make mandatory the use of a central electronic platform. This platform should either contain all the information that is required to be disclosed or give access to that information in the company's electronic file in the Member States' registers. Member States should, furthermore, ensure that any costs charged to companies for such publication are included in a single fee, together with those, if any, that are charged for entries in the register. Any existing publication obligations in Member States should not lead to any additional specific fees. This should not, however, prejudice the freedom of Member States to pass on to companies the costs connected with the setting-up and operation of the platform, including the formatting of documents, either by including those costs in registration fees or by demanding a mandatory periodical contribution from companies .

(7) In line with the principle of subsidiarity, Member States may continue all other existing national forms of publication, provided that they are well defined and based on objective conditions, particularly in the interests of legal certainty and information security and having regard to the availability of access to the Internet and national practices. Member States should cover the costs of such supplementary publication obligations within the single fee.

(8) Consistently with the use of a central electronic platform, the Second Council Directive 77/91/EEC of 13 December 1976 on coordination 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 of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (4) should be amended.

(9) The Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State (5) requires certain information concerning the company ║ to be disclosed. The Member State in which the branch is situated, hereinafter ‘the host Member State’, is currently ║ able to require that a limited number of documents in that context ║ be translated into another official language of the Community.

(10) That possibility should be maintained as well as the possibility, for the host Member State, of requiring in some limited cases that the translation be certified, as the interests of third parties may make it necessary to ensure, through such certification, that the translation is sufficiently reliable.

(11) A translation may, however, ║ be deemed sufficiently reliable if it has been certified by a translator who has been officially appointed and sworn in another Member State or by any other person authorised in that Member State to certify translations into the language required. It should not, in this case, be open to the host Member State ║ to require any additional certification under its own rules.

(12) The same applies where a document required for the registration of the branch can be produced, by the register where the company's file is held, in the official language of the Community required by the host Member State. In this case too, an additional certification does not seem justified.

(13) Furthermore, Member States ║ should not be able to impose any formality relating to the language of the document that goes beyond the certification. In particular, requirements for notarisation of an already certified translation exceed what is required to guarantee a sufficient degree of reliability.

(14) Since the objective of this Directive, namely reducing administrative burdens relating to publication and translation obligations of certain types of companies within the Community, cannot be sufficiently achieved by Member States and can therefore, by reason of the scale and effects, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(15) Directives 68/151/EEC, 77/91/EEC and 89/666/EEC should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendment of Directive 68/151/EEC

Article 3(4) of Directive 68/151/EEC is replaced by the following:

‘4. Disclosure of the documents and particulars referred to in Article 2 shall be effected by publication through a central electronic platform that allows access to the information disclosed in chronological order. Member States shall ensure that companies are not charged a specific fee in respect of a publication on the central electronic platform or in respect of any additional publication obligation imposed by Member States relating to those documents and particulars. This provision shall not affect the ability of Member States to pass on to companies the costs in respect of the central electronic platform .’

Article 2

Amendment of Directive 77/91/EEC

Article 29(3) of Directive 77/91/EEC is replaced by the following:

‘ 3. Any offer of subscription on a pre-emptive basis and the period within which the right of pre-emption is to be exercised shall be published in the national gazette. However, the laws of a Member State need not provide for such publication where all a company's shares are registered. In such case, all the company's shareholders must be informed in writing. The period within which the right of pre-emption is to be exercised shall not be less than 14 days from the date of publication of the offer or from the date of dispatch of the letters to the shareholders .’

Article 3

Amendment of Directive 89/666/EEC

Article 4 of Directive 89/666/EEC is replaced by the following:

‘Article 4 1. The Member State in which the branch has been opened may stipulate that the documents referred to in point (b) ▐ of Article 2(2) and in Article 3 must be disclosed in an official language of the Community other than the official language of the register referred to in point (c) of Article 2(1), and that the translation of such documents must be certified. Where a Member State requires certification, the translation shall be ▐ certified by a person duly qualified in any ▐ Member State. 2. Paragraph 1 shall apply mutatis mutandis to the attestation referred to in point (c) of Article 2(2), unless the attestation has been issued from the register referred to in point (c) of Article 2(1) in the official language required by the Member State in which the branch has been opened . 3. Member States shall not impose any additional formal requirement relating to the translation of the documents ▐ other than those referred to in paragraphs 1 and 2.’

Article 4

Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 May 2010 ║. Member States may continue all other existing national forms of publication, provided that they are well defined and based on objective conditions, particularly in the interests of legal certainty and information security and having regard to the availability of access to the Internet and national practices. Member States shall cover the costs of such supplementary publication obligations within the single fee . They shall forthwith communicate to the Commission the text of such laws, regulations and administrative provisions, together with a table showing the correlation between them and this Directive.

When they are adopted by Member States, these measures, shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 5

Entry into force

This Directive shall enter into force on the twentieth day following ║ its publication in the Official Journal of the European Union.

Article 6

Addressees

This Directive is addressed to the Member States.

Done at …, on … For the European Parliament The President For the Council The President

(1) OJ C.

(2) Position of the European Parliament of 19 November 2008 (not yet published in the Official Journal) and Council Decision of …

(3) OJ L 65, 14.3.1968, p. 8. ║.

(4) OJ L 26, 31.1.1977, p. 1.

(5) OJ L 395, 30.12.1989, p. 36.