WRITTEN QUESTION E-0662/03

by Paul Rübig (PPE-DE) to the Commission

(6 March 2003)

Subject: Obligation on SMUs to publish their accounts

Information published in the Official Journal about the accounts of small companies not listed on the Stock Exchange saves persons interested therein from having to check the daily trade register but not from making a daily check in the Official Journal to see whether a particular company has already published its accounts in the commercial register. Accordingly, if we genuinely wish to simplify internal market legislation (fourth SLIM Phase), the bulk of small companies not listed on the Stock Exchange should continue to be able to submit their accounts as usual on paper. Commercial register courts should be required to record them in electronic form, to store them and to make them available on request. Every interested party should have the opportunity of directly accessing the commercial register to ensure that the accounts had actually been deposited. If that were to be done, there would no longer be any need for the accounts to be published in the Official Journal, costs would be cut, and nobody could be accused of raising obstacles to persons seeking information. That would constitute a massive simplification of the relevant legislation and would make life much easier for some 100 000 small businesses in Austria alone.

Is it true that, essentially, creditors, inquiry agencies, credit protection associations and similar organisations and/or undertakings or competitors are interested as a matter of course in seeking information about published accounts and that, under normal circumstances, they may do so by calling up commercial register data on line, thus having available the recorded decision of the commercial register court about the most recent accounts published? If that is the case, what is then the advantage for small companies not listed on the Stock Exchange of the obligation to publish in the Official Journal proof that such documents have been deposited if, from 2005 onwards, all commercial register courts will have to convert accounts submitted on paper into electronic data so that they may be accessed on line? Could not a further simplification of commercial legislation also be carried out at the same time which would exempt most small businesses from this legal obligation and cut their costs without adversely affecting transparency as a result?

Answer given by Mr Bolkestein on behalf of the Commission

(30 April 2003)

The Commission would point out that this question is essentially the same as the Honourable Member's Written Question E-1629/02(1).

The Commission would, therefore, refer the Honourable Member to the answer it has given to that question, whose elements remain perfectly valid. However, in order to avoid any misunderstanding, the Commission is pleased to provide the following clarifications.

The written question of the Honourable Member relates to the requirement contained in Article 3 of the First Council Directive 68/151/EEC of 9 March 1968 (the First Company Law Directive)(2), which provides that all documents and particulars shall be kept in the file or entered in the register, and that disclosure of these documents and particulars shall be effected by publication in the national gazette appointed for that purpose by the Member State, either of the full or partial text, or by means of a reference to the document which has been deposited in the file or entered in the register.

With respect to the justification of the requirement for such a publication, the Commission confirms that it is necessary to make sure that third parties will be duly informed of the fact that new documents or particulars have been deposited in the file or entered in the register. Without such a publication, third parties would have to consult registers every day with the aim of checking whether modifications have arisen. The Commission agrees with the Honourable Member that third parties are not saved from making a daily check in the relevant national gazette. The Commission nevertheless observes that, under the system currently organised by the First Directive, a daily consultation of the national gazette is considerably less burdensome and costly than a daily consultation of the register(s) for the following reasons:

(a) in Member States where registration of documents and particulars is organised on a decentralised basis, a series of registers would have to be consulted every day, whereas the national gazette offers a central source of information; and (b) in all Member States, a daily consultation of the register(s) would have to be made for all companies which are of interest to a third party, whereas the national gazette offers the advantage of drawing the attention explicitly to only those companies for which new documents or particulars have been filed.

With respect to the costs faced by small businesses because of such a publication, the Commission would first like to stress that Article 3 of the First Directive does not require publication in the national gazette of the full text of the documents filed. Member States are free to provide that only a reference to the documents filed must be published in the national gazette, with a view to limiting the publication costs faced by companies.

Secondly, the Commission would like to refer to its Proposal for a Directive amending the First Company Law Directive, adopted on 3 June 2002(3). With respect to the publication in a national gazette, Member States will first be able to keep this national gazette in electronic form: the Commission expects that the decision to use modern technologies for publication of the national gazette will lead to a decrease in the publication costs charged to companies.

Finally, under the same Proposal, Member States will also be able to replace the publication in the national gazette with equally effective means (subject to the provision of a central and chronological access to company information, which is the main function performed by a national gazette). The Proposal requires Member States to make company documents and particulars accessible to third parties by electronic means, which does not necessarily mean that registers have to set up a website where all documents and particulars would be available on line as suggested by the Honourable Member: electronic means indeed cover a series of different technologies, including e.g. e-mail. The Commission nevertheless observes that the provision of information through a website is the option preferred by many Member States, and that the Proposal allows Member States to make decisions aiming at reducing the publication costs for companies in such a situation: if the register website offers a central and chronological access to company information, no further publication in the national gazette would indeed be required.

(1) OJ C 52 E, 6.3.2003, p. 82.

(2) First Council Directive 68/151/EEC of 9 March 1968 on co-ordination 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, as last amended by the 1994 Act of Accession, OJ L 65, 14.3.1968.

(3) OJ C 227 E, 24.9.2002. The Parliament adopted the Report of Mr Lehne in its plenary meeting on 12 March 2003.