WRITTEN QUESTION E-1629/02

by Paul Rübig (PPE-DE) to the Commission

(10 June 2002)

Subject: Required publication of balance sheets by SMEs

Pursuant to Article 47(1) of Directive 78/660/EEC(1), annual accounts must be published as laid down by the laws of each Member State in accordance with Article 3 of Directive 68/151/EEC(2). This article requires particulars and documents to be disclosed in a national gazette appointed for that purpose by the Member State.

This legislation, which requires small limited liability companies (GmbH) to publish a notification of submission of their balance sheet, needs to be reviewed as a matter of urgency in the interests of SMEs.

At all events, anyone who is interested in the balance sheet of a particular company must inspect it in person at the company accounts court (Firmenbuchgericht). Such persons may also find out there whether the balance sheet has already been submitted or not, which means that the publication of a notification of submission in a national gazette is pointless.

Although the submission of balance sheets is undoubtedly a sensible transparency measure, placing a notification of this submission in a national gazette is inappropriate and is, in addition, an annually recurring financial burden, particularly for small limited liability companies.

How does the Commission justify the requirement of publication of a notification of submission of balance sheets and the associated costs for SMEs?

(1) OJ L 222, 14.8.1978, p. 11.

(2) OJ L 65, 14.3.1968, p. 8.

Answer given by Mr Bolkestein on behalf of the Commission

(24 July 2002)

The requirements in respect of compulsory filing and disclosure of a series of documents and particulars by limited liability companies are set out in the First Council Directive 68/151/EEC of 9 March 1968 (the First Company Law Directive)(1).

Article 3 of this Directive 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.

The requirement for such a publication is justified by the need 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, for all companies in which they are interested, with the aim of checking whether modifications have arisen. This would be extremely burdensome and costly in practice, particularly in Member States where registration of documents and particulars is organised on a decentralised basis.

The Commission nevertheless shares the view, expressed in a Report presented in September 1999 by a Working Group set up in the context of the SLIM process (Simplification of the Legislation on the Internal Market), that several requirements contained in the First Company Law Directive can be simplified by the use of modern technology. To this end, the Commission has adopted on 3 June 2002 a Proposal for a Directive amending the First Company Law Directive(2). The proposed modernisation of the First Directive will not only help to meet the important objective of making company information more easily and rapidly accessible to interested parties, but will also simplify significantly the disclosure formalities imposed upon companies.

More particularly, with respect to the requirement for a publication in a national gazette, Member States will be able to decide to keep this national gazette in electronic form or to replace this publication 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).

(1) 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 C 241, 29.8.1994).

(2) COM(2002) 279 final.