Opinion of the European Economic and Social Committee on the "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" (COM(2002) 279 final — 2002/0122 (COD))
Date: 2002-12-11
Institutions: European Economic and Social Committee
Subjects: access to information, company law, dissemination of information, information technology, new technology, private limited company, publication of accounts

8.4.2003

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3.7. On insurance for ‘third parties’ (question 21)

Special rules on the liability of third parties seem inadvisable
as matters stand. In practice, it is common civil liability law
that is applicable. There is therefore a strong case for third

parties taking out civil liability insurance, either personally, or
through the body (legal person) that has appointed them.

This last point, which is essential, should be included in the
European code of conduct.

Brussels, 11 November 2002.

The President

of the European Economic and Social Committee

Roger BRIESCH

Opinion of the European Economic and Social Committee on the ‘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’

(COM(2002) 279 final — 2002/0122 (COD))

(2003/C 85/03)

On 16 September 2002, the Council decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 27 November 2002. The rapporteur was
Mrs Sánchez Miguel.

At its 395th plenary session of 11 and 12 December 2002 (meeting of 11 December), the European
Economic and Social Committee adopted the following opinion by 91 votes to one, with two abstentions.

1.

Introduction

1.1.
Directive 68/151/EEC was the first Community direc-
tive dealing with commercial companies. Its main aim was
to create, through legal disclosure requirements, a climate
favourable to the protection of the interests of members and
third parties in companies whose principal
feature is the
limited liability of members — i.e. companies limited by share
capital.

1.2.
Legal disclosure requirements derive from the obli-
gation on commercial companies to be entered on the register
of companies maintained by each country for that purpose.
The aim of such registers is to protect the interests of members
of commercial companies, and of third parties which have
contractual relations with them, by publishing information in
three areas, namely the instrument of constitution, liabilities
arising from the incorporation of the company and the effects
of a declaration of nullity of the instrument of constitution.

1.3.
In the past, businesspeople were required to disclose
information when registering with their
this type of legal
respective guilds or associations. Commercial companies must
now comply with this obligation in order to acquire legal
personality. The requirements with which registered compani-
es must comply include the minimum information to be
contained in the instrument of constitution and information
on persons or bodies empowered to bind the company legally
or financially.

1.4.
The directive came into force many years ago, and
legal and economic changes in the intervening years mean that
it must now be amended. The obligation to register has been
extended to new types of company (Article 1), and new
technologies have emerged for filing and publishing infor-
mation (Article 3) making it more widely available and
accessible, even beyond States’ national borders.

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The fourth phase of simplification (1) took place against
1.5.
this backdrop. The Company Law Working Group made a
series of recommendations in connection with the First and
Second Company Law Directives, including improved access
to the information contained in the various registers, the
possibility of using more than one language and a review of
the kind of companies obliged to register. It also recommended
that account be taken of the changes introduced by the
Accounting Directives concerning compulsory publication of
annual accounts in the companies register.

2. Gist of the proposal

The proposal to amend Directive 68/151/EEC takes
2.1.
account of
the need to introduce new technologies for
filing and publishing information and to adapt these new
instruments to the requirements of the law to ensure that they
comply with the principles of legality and legal certainty which
derive from public registration.

Firstly,

2.2.
directive to cover:

it is proposed to extend the content of the

cation of information — the following proposals are worthy
of note:

— Electronic filing system as from 2007

— Electronic certification of the documents registered

— Effects against third parties of documents published by

electronic means

— Registration and publication in more than one language

— Requirement for companies’ trading documents to show

their registration details.

All of these changes affect registers only formally, with
2.4.
the underlying principles remaining unchanged.
It is also
important to bear in mind that as Directive 1999/93/EC (7) on
electronic signatures is now in force, legal certainty is guaran-
teed in the use of electronic systems for certification of the
data contained in the registers.

3. General comments

— New kinds of company required to register

— Documents required to be published (accounting docu-

ments).

3.1.
The EESC welcomes those changes to the current
provisions which are in line with the proposals for simplifi-
cation of Community law, particularly those providing legal
safeguards for commercial transactions and ensuring that all
the parties to such transactions have access to accurate
information.

The first proposed change is a result of national law, namely
the creation of new types of company in the countries referred
to. The second proposed change is in line with the obligation
imposed by other Community provisions, namely Council
Directive 78/660/EEC of 20.7.1978 (2) as last amended by
Directive 2001/65/EC of the European Parliament and of the
Council (3); Council Directive 83/349/EEC of 13.6.1983 (4) as
last amended by Directive 2001/65/EC; Council Directive 86/
635/EEC of 8.12.1986 (5) as last amended by Directive 2001/
65/EC and Council Directive 91/674/EEC of 19.12.1991 (6),
currently the subject of a Commission proposal for amend-
ment.

2.3.
Regarding the most important change — the intro-
duction of new technologies for the registration and publi-

( 1) See the Commission’s report to the European Parliament and the
Council on the Results of the fourth phase of SLIM, 4.2.2000
(COM(2000) 56 final).
( 2) OJ L 222, 14.8.1978.
( 3) OJ L 283, 27.10.2001.
( 4) OJ L 193, 18.7.1983.
( 5) OJ L 372, 31.12.1986.
( 6) OJ L 374, 31.12.1991.

However,

3.2.
it should be pointed out that under no
circumstances may simplification alter the general principles
which are derived from the founding treaty, particularly
linguistic diversity, which must be recognised not only within
States, some of which have recognised regional languages, but
also between all States. The Commission proposal reflects this
requirement.

3.3.
The proposal states that a computerised system must
be in place by 2005 and that all documents registered in the
ten year period prior to this date must be made available in
electronic form. This proposal may create a degree of legal
uncertainty in cases where key documents, such as the
instrument of constitution, were registered before the deadline
and are not, therefore, covered by this requirement.

3.4.
To avoid such uncertainty, a distinction should be
made between documents subject to compulsory registration
(under Article 2) and those which may be registered on a
voluntary basis, almost always statutory in nature. The time
limits proposed would then apply only to the former and
computerisation of the latter could be postponed.

(7) OJ L 13, 19.1.2000.

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3.5.
The proposal relating to the effects of registered
documents against third parties (Article 3(5) of the original
directive) is also somewhat confused. Under the new wording
of Article 3(4), it is assumed that knowledge of the documents
concerned is acquired by one of two means: from the national
gazettes or by electronic means. In the latter case, it would be
more difficult to prove that information has been accessed,
and is therefore legally binding, in the absence of a recorded
access system.

The Committee agrees that the cost of copies of
3.6.
documents should not exceed the administrative cost. This
should not, however, include the cost of computerising the
information registered.

4. Specific comments

The aim of

4.1.
the proposed changes to the system
governing legal disclosure by registered companies is to extend
its impact across borders to cover the whole single market.
To this end, the proposal deals with both the linguistic
arrangements and the use of electronic systems for the
registration and disclosure of documents. However, the EESC
believes that in all cases it is important to preserve the legal
certainty of commercial relations, based on the principles of
transparency and the legality of actions.

Brussels, 11 December 2002.

4.2.
Since the proposal is intended to apply across the
board, any aspects which may have an effect contrary to that
intended must be resolved. The wording of Article 3a(1),
under which Member States may select one of the languages
permitted by the language rules applicable in that Member
State, is a case in point.

The EESC calls on the Commission to clarify the
4.3.
wording of this paragraph to stipulate that Member States
must require the documents referred to in Article 2 to be
registered in the official Community language of that State,
linguistic identity
while being able to maintain regional
through the use of other languages in accordance with
Article 3(2).

4.4. With regard to the electronic registration system, the
EESC wishes to point out that there is an inconsistency in
Article 3(5), since the original wording of Directive 68/151/
EEC, which specifies a period of sixteen days after which
documents and particulars registered may be relied on as
against third parties, remains unchanged. This is a very long
time span under the new disclosure system. The Member
States could shorten this as the use of new technologies
develops.

The EESC proposes that a new sentence be inserted
4.5.
into this paragraph to restrict its application to registers which
do not use the electronic system for the registration and
disclosure of documents. This would fulfil one of the intended
aims of the proposal by ensuring that the information subject
to legal disclosure may be accessed speedily and easily.

The President

of the European Economic and Social Committee

Roger BRIESCH