Proposal for a Directive of the European Parliament and of the Council amending Council Directive 68/151/EEC, as regards disclosure requirements in respect of certain types of companies
Date: 2002-06-03
Institutions: European Commission
Subjects: access to information, company law, dissemination of information, information technology, new technology, private limited company, publication of accounts

24.9.2002

EN

Official Journal of the European Communities

C 227 E/377

Proposal for a Directive of the European Parliament and of the Council amending Council
Directive 68/151/EEC, as regards disclosure requirements in respect of certain types of companies

(2002/C 227 E/15)

COM(2002) 279 final — 2002/0122(COD)

(Submitted by the Commission on 3 June 2002)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

companies created at national level since the Directive's
adoption.

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 Economic and Social
Committee,

Acting in accordance with the procedure referred to in Article
251 of the Treaty,

Whereas:

(1) The 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
the
Community (1) sets out the requirements in respect of
compulsory disclosure of a series of documents and
particulars by limited liability companies.

throughout

(2) In the context of the fourth phase of the Simplification of
the Legislation on the Internal Market process (SLIM),
launched by the Commission in October 1998, a
Company Law Working Group issued in September
1999 a Report on the simplification of the First and
Law Directives which contained
Second Company
certain recommendations (2).

(3) The modernisation of Directive 68/151/EEC along the
lines set out in those recommendations should not only
help to meet the important objective of making company
information more
accessible by
interested parties, but should also simplify significantly
the disclosure formalities imposed upon companies.

and rapidly

easily

(4) The list of companies covered by Directive 68/151/EEC
should be extended to take account of the new types of

(1) OJ L 65, 14.3.1968, p. 8, as last amended by the Act of Accession

of Austria, Finland and Sweden.

(2) See the Report from the Commission to the European Parliament
and the Council — Results of the fourth phase of SLIM, 4 February
2000 (COM(2000) 56 final).

the

namely

(5) Several Directives have been adopted since 1968 with the
aim of harmonising the requirements applicable to the
accounting documents which must be prepared by
companies,
Fourth Council Directive
78/660/EEC of 25 July 1978 based on Article 54(3)(g)
of the Treaty on the annual accounts of certain types of
companies (3), the Seventh Council Directive 83/349/EEC
of 13 June 1983 based on Article 54(3)(g) of the Treaty
accounts (4),
Directive
on
86/635/EEC of 8 December 1986 on the
annual
accounts and consolidated accounts of banks and other
financial institutions (5) and Council Directive 91/674/EEC
of 19 December 1991 on the annual accounts and
consolidated accounts of insurance undertakings (6). The
references in Directive 68/151/EEC to the accounting
required to be published in
documents which are
accordance with those Directives
should be updated
accordingly.

consolidated

Council

(6) In the context of the pursued modernisation, companies
should be able to choose to file their compulsory
documents and particulars by paper means or by elec-
tronic means. Interested parties should be able to obtain
from the
such documents and
particulars by paper means as well as by electronic means.

register a copy of

(7) Member States should be able to decide to keep the
national gazette, appointed for publication of compulsory
documents and particulars,
in paper form or electronic
form, or to provide for disclosure by equally effective
means.

(8) Cross-border access to company information should be
improved by allowing,
in addition to the mandatory
disclosure made in one of the languages permitted in
the company's Member State, voluntary registration of
documents and particulars in additional languages. Third
parties acting in good faith should be able to rely on these
translations.

(3) OJ L 222, 14.8.1978, p. 11; as last amended by European
and Council Directive 2001/65/EC (OJ L 283,

Parliament
27.10.2001, p. 28).

(4) OJ L 193, 18.7.1983, p. 1; as

last amended by Directive

2001/65/EC.

(5) OJ L 372, 31.12.1986, p. 1; as amended by Directive 2001/65/EC.
(6) OJ L 374, 31.12.1991, p. 7.

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Official Journal of the European Communities

24.9.2002

(9) It

the statement of

is appropriate to clarify that

the
compulsory particulars in accordance with Article 4 of
Directive 68/151/EEC should be made in all letters and
order forms, whether they are in paper form or use any
other medium. In the light of technological developments,
it is also appropriate to provide that these statements be
made on any company website.

(10) Directive 68/151/EEC should be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 68/151/EEC is hereby amended as follows:

1. Article 1 is amended as follows:

(a) the third indent is replaced by the following:

‘— In France:

la société anonyme,
actions,
par actions simplifiée;’

la société à responsabilité limitée,

la société en commandite par
la société

(b) the sixth indent is replaced by the following:

‘— In the Netherlands:

de naamloze vennootschap, de commanditaire vennoot-
schap op aandelen, de besloten vennootschap met be-
perkte aansprakelijkheid;’

(c) the ninth indent is replaced by the following:

‘— In Denmark:

aktieselskab, kommanditaktieselskab, anpartsselskab;’.

2. Article 2 is amended as follows:

(a) Point (f) of paragraph 1 is replaced by the following:

‘(f) The accounting documents for each financial year,
which are required to be published in accordance
78/660/EEC (*),
with
Directives
Council
83/349/EEC (**),
and
91/674/EEC (****).

86/635/EEC (***)

___________

(*) OJ L 222, 14.8.1978, p. 11.
(**) OJ L 193, 18.7.1983, p. 1.
(***) OJ L 372, 31.12.1986, p. 1.
(****) OJ L 374, 31.12.1991, p. 7.’

(b) Paragraph 2 is deleted.

3. Article 3 is replaced by the following:

‘Article 3

In each Member State, a file shall be opened in a
1.
central register, commercial register or companies register,
for each of the companies registered therein.

All documents

and particulars which must be
2.
disclosed in pursuance of Article 2 shall be kept in the
file, or entered in the register; the subject matter of the
entries in the register must in every case appear in the file.

Member States shall ensure that the filing by companies of
all documents and particulars which must be disclosed in
pursuance of Article 2 shall be possible by electronic means
as from 1 January 2005. In addition, Member States may
impose upon all — or certain categories of — companies
the filing by electronic means of all — or certain types of —
such documents and particulars as from 1 January 2005.

All documents and particulars referred to in Article 2 which
are filed as from 1 January 2005, whether by paper means
or by electronic means, must be kept in the file, or entered
in electronic form. To this end, Member
in the register,
States shall ensure that all such documents and particulars
which are filed by paper means as from 1 January 2005 are
converted by the register to electronic form.

The documents and particulars referred to in Article 2 that
have been filed by paper means up to 31 December 2004
do not have to be converted automatically to electronic
form by the register. Member States shall nevertheless
ensure that they are converted to electronic form by the
register on application submitted in accordance with the
rules adopted pursuant to paragraph 3.

3.
A copy of the whole or any part of the documents or
particulars referred to in Article 2 must be obtainable on
application. As from 1 January 2005, applications may be
submitted to the register by paper means or by electronic
means as the applicant chooses.

As from 1 January 2005, copies as referred to in the first
subparagraph must be obtainable from the register by paper
means or by electronic means as the applicant chooses,
whether
the documents or particulars have been filed
before or after 1 January 2005. However, Member States
may decide that all — or certain types of — the documents
and particulars that have been filed by paper means up to
31 December 2004 shall not be obtainable from the register
by electronic means, if they have been filed before a stated
period preceding the date of the application submitted to
the register. Such stated period may not be less than 10
years.

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The price of obtaining a copy of the whole or any part of
the documents or particulars referred to in Article 2,
whether by paper means or by electronic means, shall not
exceed the administrative cost thereof.

Paper copies supplied shall be certified as “true copies”,
unless the applicant dispenses with such certification. Elec-
tronic copies supplied shall not be certified as “true copies”,
unless the applicant explicitly requests such a certification.

disclosure formalities have not yet been completed, save
where non-disclosure causes them not to have effect.

8.
For the purposes of this article, “by electronic means”
shall mean that the information is sent initially and received
at its destination by means of electronic equipment for the
processing (including digital compression) and storage of
data, and entirely transmitted, conveyed and received by
wire, by radio, by optical means or by other electromagnetic
means.

their origin and the integrity of

Member States shall take the necessary measures to ensure
that certification of electronic copies guarantees both the
their
authenticity of
contents, by means of an advanced electronic signature
within the meaning of Article 2(2) of Directive 1999/93/EC
of
the Council of 13
December 1999 on a Community framework for electronic
signatures (*).

the European Parliament and of

___________
(*) OJ L 13, 19.1.2000, p. 12.’

4. The following Article 3a is inserted:

‘Article 3a

4.
Disclosure of the documents and particulars referred
to in paragraph 2 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
register. The national gazette
appointed for that purpose may be kept in electronic form.

entered in the

Member States may decide to replace publication in the
national gazette with equally effective means, which shall
at least entail the use of a system whereby the information
disclosed can be accessed in chronological order through a
central electronic platform.

The documents and particulars may be relied on by
5.
the company as against third parties only after they have
been disclosed in accordance with paragraph 4, unless the
company proves that
the third parties had knowledge
thereof.

1.
Documents and particulars which must be disclosed
pursuant to Article 2 shall be drawn up in one of the
languages permitted by the language rules applicable in
the Member State in which the company has its registered
office.

In addition to the mandatory disclosure referred to in
2.
paragraph 1, Member States shall allow documents and
particulars referred to in Article 2 to be disclosed in
accordance with Article 3 in any official
language(s) of
the Community.

Member States may prescribe that the translation of such
documents and particulars be certified.

Member States shall take the necessary measures to ensure
that electronic access is provided in each of the official
languages of
the Community in which such documents
and particulars have been disclosed.

However, with regard to transactions taking place before the
sixteenth day following the disclosure, the documents and
particulars shall not be relied on as against third parties
who prove that it was impossible for them to have had
knowledge thereof.

3.
In addition to the mandatory disclosure as required
under paragraph 1, and to the disclosure allowed under
paragraph 2, Member States may allow documents and
particulars referred to in Article 2 to be disclosed in
accordance with Article 3 in any other language(s).

6. Member States shall take the necessary measures to
avoid any discrepancy between what
is disclosed in
accordance with paragraph 4 and what appears in the
register or file.

in cases of discrepancy,

However,
the text disclosed in
accordance with paragraph 4 may not be relied on as
against
rely
thereon, unless
they had
knowledge of the texts deposited in the file or entered in
the register.

the latter may nevertheless
company proves

third parties;
the

that

7.
documents

Third parties may, moreover, always rely on any
in respect of which the

and particulars

Member States may prescribe that the translation of such
documents and particulars be certified.

4. Member States shall take the necessary measures to
and
avoid any discrepancy between the documents
particulars disclosed pursuant to paragraph 1 and any trans-
lation disclosed pursuant to paragraph 2 or paragraph 3.

However, in cases of discrepancy, the translation disclosed
pursuant to paragraph 2 or paragraph 3 may not be relied
on as against third parties; the latter may nevertheless rely
thereon, unless
they had
knowledge of the version disclosed pursuant to paragraph
1.’

company proves

that

the

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Official Journal of the European Communities

24.9.2002

5. Article 4 is replaced by the following:

‘Article 4

Member States shall prescribe that letters and order forms,
whether they are in paper form or use any other medium,
shall state the following particulars:

(a) the information necessary to identify the register in
which the file mentioned in Article 3 is kept, together
with the number of the company in that register;

(b) the legal

form of

its
the company,
registered office and, where appropriate, the fact that
the company is being wound up.

the location of

Where, in these documents, mention is made of the capital
of
the reference shall be to the capital
the company,
subscribed and paid up.

Member States shall prescribe that company websites shall
the particulars mentioned in the first
contain at
if applicable, the reference to the capital
paragraph and,
subscribed and paid up.’

least

6. Article 6 is replaced by the following:

‘Article 6

(a)

failure to disclose the accounting documents required by
Article 2(1)(f);

(b) omission from commercial documents or from any
compulsory particulars

the

company website
provided for in Article 4.’.

of

Article 2

1. Member States shall bring into force by 31 December
2004 at
the latest the laws, regulations and administrative
provisions necessary for them to comply with this Directive.
They shall forthwith inform the Commission thereof.

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

2. 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 3

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

Member States shall provide for appropriate penalties in
case of:

Article 4

This Directive is addressed to the Member States.