Directive 2003/58/EC of the European Parliament and of the Council of 15 July 2003 amending Council Directive 68/151/EEC, as regards disclosure requirements in respect of certain types of companies
Date: 2003-07-15
Institutions: Council of the European Union, European Parliament
Subjects: company law, organisation, publication of accounts

4.9.2003

EN

Official Journal of the European Union

L 221/13

DIRECTIVE 2003/58/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 15 July 2003

amending Council Directive 68/151/EEC, as regards disclosure requirements in respect of certain
types of companies

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 (1),

Having regard to the opinion of the European Economic and
Social Committee (2),

Acting in accordance with the procedure referred to in Article
251 of the Treaty (3),

Whereas:

(1)

(2)

(3)

(4)

(5)

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 equiva-
lent throughout the Community (4) governs compulsory
disclosure of a series of documents and particulars by
limited liability companies.

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
Second Company Law Directives which contained
certain recommendations.

The modernisation of Directive 68/151/EEC along the
lines set out in those recommendations should not only
help to meet
important objective of making
company information more easily and rapidly accessible
by interested parties, but should also simplify signifi-
cantly the disclosure formalities imposed upon compa-
nies.

the

The list of companies covered by Directive 68/151/EEC
should be updated to take account of the new types of
companies created or the types of companies abolished
at national level since the adoption of that Directive.

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, namely the Fourth Council Directive 78/
660/EEC of 25 July 1978 on the annual accounts of
certain types of companies (5),
the Seventh Council
Directive 83/349/EEC of 13 June 1983 on consolidated
accounts (6), Council Directive
86/635/EEC of 8
December 1986 on the annual accounts and consoli-
institu-
dated accounts of banks and other financial
tions (7) and Council Directive 91/674/EEC of 19
December 1991 on the annual accounts and consoli-
dated accounts of insurance undertakings (8). The refer-
ences in Directive 68/151/EEC to the accounting docu-
ments which are required to be published in accordance
with those Directives should be amended accordingly.

In the context of
the modernisation pursued, and
without prejudice to substantive requisites and formal-
ities established by the national
the Member
States, companies should be able to choose to file their
compulsory documents and particulars by paper means
or by electronic means.

law of

Interested parties should be able to obtain from the
register a copy of such documents and particulars by
paper means as well as by electronic means.

Member States should be allowed to decide to keep the
national gazette, appointed for publication of compul-
sory documents and particulars, in paper form or elec-
tronic form, or to provide for disclosure by equally effec-
tive means.

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 in addi-
tional languages of the required documents and particu-
lars. Third parties acting in good faith should be able to
rely on these translations.

(6)

(7)

(8)

(9)

(10)

It is appropriate to clarify that the statement of the
compulsory particulars set out in Article 4 of Directive
68/151/EEC should be included in all company letters
and order forms, whether they are in paper form or use
any other medium. In the light of technological develop-
ments, it is also appropriate to provide that these state-
ments be placed on any company website.

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

(1) OJ C 227 E, 24.9.2002, p. 377.
(2) OJ C 85, 8.4.2003, p. 13.
(3) Opinion of the European Parliament of 12 March 2003 (not yet
published in the Official Journal) and Council Decision of 11 June
2003.

(4) OJ L 65, 14.3.1968, p. 8. Directive as last amended by the 1994

Act of Accession.

(5) OJ L 222, 14.8.1978, p. 11. Directive as last amended by Council

Directive 2003/38/EC (OJ L 120, 15.5.2003, p. 22).

(6) OJ L 193, 18.7.1983, p. 1. Directive as last amended by Directive

2003/51/EC (OJ L 178, 17.7.2003, p. 16).

(7) OJ L 372, 31.12.1986, p. 1. Directive as last amended by Directive

2003/51/EC.

(8) OJ L 374, 31.12.1991, p. 7.

L 221/14

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Official Journal of the European Union

4.9.2003

HAVE ADOPTED THIS DIRECTIVE:

Article 1

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

1. Article 1 shall be amended as follows:

(a) the third indent shall be replaced by the following:

‘— in France:

la société anonyme,
la société en commandite par
actions, la société à responsabilité limitée, la société par
actions simplifiée;’

(b) the sixth indent shall be replaced by the following:

‘— in the Netherlands:

de naamloze vennootschap, de besloten vennootschap
met beperkte aansprakelijkheid;’

(c) the ninth indent shall be replaced by the following:

‘— in Denmark:

aktieselskab, kommanditaktieselskab, anpartsselskab;’

(d) the 14th indent shall be replaced by the following:

‘— in Finland:

osakeyhtiö/privat
yksityinen
osakeyhtiö/publikt aktiebolag;’

aktiebolag,

julkinen

2. Article 2:

(a) Article 2(1)(f) shall be replaced by the following:

‘(f) The accounting documents for each financial year,
which are required to be published in accordance
with Council Directives 78/660/EEC (*), 83/349/
EEC (**), 86/635/EEC (***) and 91/674/EEC (****).

(*) OJ L 222, 14.8.1978, p. 11. Directive as

last
amended by Council Directive 2003/38/EC (OJ L
120, 15.5.2003, p. 22).

(**) OJ L 193, 18.7.1983, p. 1. Directive as

last
amended by Directive 2003/51/EC (OJ L 178,
17.7.2003, p. 16).

(***) OJ L 372, 31.12.1986, p. 1. Directive as last

amended by Directive 2003/51/EC.

(****) OJ L 374, 31.12.1991, p. 7.’;

(b) paragraph 2 shall be deleted.

3. Article 3 shall be replaced by the following:

‘Article 3

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

All documents

2.
and particulars which must be
disclosed pursuant to 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, by 1 January 2007, the
filing by companies, as well as by other persons and bodies
required to make or assist in making notifications, of all
and particulars which must be disclosed
documents
pursuant to Article 2 will be possible by electronic means.

In addition, Member States may require all, or certain cate-
gories of, companies to file all, or certain types of, such
documents and particulars by electronic means.

All documents and particulars referred to in Article 2 which
are filed as from 1 January 2007 at the latest, whether by
paper means or by electronic means, must be kept in the
file, or entered in the register, in electronic form. To this
end, Member States shall ensure that all such documents
and particulars which are filed by paper means as from 1
January 2007 at the latest 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 2006
shall not be required to be converted automatically into
electronic form by the register. Member States shall never-
theless ensure that they are converted into electronic form
by the register upon receipt of an application for disclosure
by electronic means submitted in accordance with the rules
adopted to give effect 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 2007 at the latest, applica-
tions may be submitted to the register by paper means or
by electronic means as the applicant chooses.

As from a date to be chosen by each Member State, which
shall be no later than 1 January 2007, copies as referred to
in the first subparagraph must be obtainable from the
register by paper means or by electronic means as the appli-
cant chooses. This shall apply in the case of all documents
and particulars,
irrespective of whether they were filed
before or after the chosen date. However, Member States
may decide that all, or certain types of, documents and
particulars filed by paper means on or before a date which
may not be later than 31 December 2006 shall not be
obtainable from the register by electronic means if a speci-
fied period has elapsed between the date of filing and the
date of the application submitted to the register. Such speci-
fied period may not be less than 10 years.

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.

their origin and the integrity of

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

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Disclosure of the documents and particulars referred
4.
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 text or of a partial text, or by means
of a reference to the document which has been deposited in
the file or entered in the register. The national gazette
appointed for that purpose may be kept in electronic form.

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

5.
The documents and particulars may be relied on by
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.

However, with regard to transactions taking place before the
16th day following the disclosure, the documents and parti-
culars shall not be relied on as against third parties who
prove that it was impossible for them to have had knowl-
edge thereof.

6. Member States shall take the necessary measures to
avoid any discrepancy between what is disclosed in accor-
dance 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 third parties; such third parties may nevertheless rely
thereon, unless the company proves that they had knowl-
edge of the texts deposited in the file or entered in the
register.

7.
Third parties may, moreover, always rely on any docu-
ments and particulars in respect of which the disclosure
formalities have not yet been completed, save where non-
disclosure causes them not to have effect.

For the purposes of this Article, “by electronic means”
8.
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 in a
manner to be determined by Member States by wire, by
radio, by optical means or by other electromagnetic means.

In addition to the mandatory disclosure referred to in
2.
Article 3, Member States shall allow documents and particu-
lars referred to in Article 2 to be disclosed voluntarily 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 facilitate
to the translations voluntarily
access by third parties
disclosed.

3.
In addition to the mandatory disclosure referred to in
Article 3, and to the voluntary disclosure provided for under
paragraph 2 of this Article, Member States may allow the
documents and particulars concerned to be disclosed,
in
accordance with Article 3, in any other language(s).

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

4.
In cases of discrepancy between the documents and
particulars disclosed in the official languages of the register
and the translation voluntarily disclosed, the latter may not
be relied upon as against third parties. Third parties may
nevertheless rely on the translations voluntarily disclosed,
unless the company proves that the third parties had knowl-
edge of the version which was the subject of the mandatory
disclosure.’

5. Article 4 shall be replaced by the following:

‘Article 4

Member States shall stipulate 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 the company, the location of its regis-
tered office and, where appropriate, the fact that the
company is being wound up.

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

Member States shall prescribe that company websites shall
contain at least the particulars mentioned in the first para-
the reference to the capital
graph and,
subscribed and paid up.’

if applicable,

(*) OJ L 13, 19.1.2000, p. 12.’

6. Article 6 shall be replaced by the following:

4. The following Article shall be inserted:

‘Article 6

‘Article 3a

1.
Documents and particulars which must be disclosed
pursuant to Article 2 shall be drawn up and filed in one of
the languages permitted by the language rules applicable in
the Member State in which the file referred to in Article
3(1) is opened.

Member States shall provide for appropriate penalties at
least in the case of:

(a) failure to disclose accounting documents as 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

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Article 2

Article 3

1. Member States shall bring into force before 31 December
2006 the laws, regulations and administrative provisions neces-
sary for them to comply with this Directive. They shall forth-
with inform the Commission thereof.

When Member States adopt these measures, 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 of 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.

3.
The Commission shall present to the European Parliament
and to the Council, by 1 January 2012, a report, together with
a proposal, if appropriate, for the amendment of this Directive
in the light of the experience acquired in applying it, of its aims
and of the technological developments observed at the time.

This Directive shall enter into force on the day of its publica-
tion in the Official Journal of the European Union.

Article 4

This Directive is addressed to the Member States.

Done at Brussels, 15 July 2003.

For the European Parliament

The President

P. COX

For the Council

The President

G. TREMONTI