Directive 2007/63/EC of the European Parliament and of the Council of 13 November 2007 amending Council Directives 78/855/EEC and 82/891/EEC as regards the requirement of an independent expert’s report on the occasion of merger or division of public limited liability companies
Date: 2007-11-13
Institutions: Council of the European Union, European Parliament
Subjects: company law, consultancy, demerger, merger, public limited company, report

17.11.2007

EN

Official Journal of the European Union

L 300/47

DIRECTIVES

DIRECTIVE 2007/63/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 13 November 2007

amending Council Directives 78/855/EEC and 82/891/EEC as regards the requirement of an
independent expert’s report on the occasion of merger or division of public limited liability
companies

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

of the companies involved in the merger, if all the share-
holders agree that such a report is not needed.

Having regard to the Treaty
Community, and in particular Article 44(2)(g) thereof,

establishing the European

(3)

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Acting in accordance with the procedure laid down in Article
251 of the Treaty (2),

Whereas:

(1)

(2)

the Regions

in particular
Community policies on better regulation,
those set out
in the two Communications from the
Commission to the Council, the European Parliament,
the European Economic and Social Committee and the
entitled respectively ‘A
Committee of
strategic review of Better Regulation in the European
Union’, of 14 November 2006, and ‘Action Programme
for Reducing Administrative Burdens in the European
Union’, of 24 January 2007, stress the importance of
reducing the administrative burdens imposed on enter-
prises by existing legislation as a crucial element
for
improving the competitiveness of such enterprises and
for achieving the objectives of the Lisbon agenda.

Directive 2005/56/EC of the European Parliament and of
the Council of 26 October 2005 on cross-border
limited liability companies (3) provides for
mergers of
an exemption from the obligation to have the draft
terms of merger examined by independent experts and
a report drawn up by such experts for the shareholders

(1) OJ C 175, 27.7.2007, p. 33.
(2) Opinion of

published in the Official
October 2007.

(3) OJ L 310, 25.11.2005, p. 1.

the European Parliament of 11 July 2007 (not yet
Journal) and Council Decision of 22

Council Directive 78/855/EEC (4) concerning mergers of
public limited liability companies does not contain any
similar exemption in respect of the draft terms of merger,
while Council Directive 82/891/EEC (5) concerning the
division of public limited liability companies leaves it
to the Member States whether or not to provide for
such an exemption in respect of
terms of
division.

the draft

(4)

There is no reason to require such an examination by an
independent expert for the shareholders if all the share-
holders agree that it may be dispensed with. Any modi-
fication of Directives 78/855/EEC and 82/891/EEC
allowing such agreement by shareholders
should be
without prejudice to the systems of protection of the
interests of creditors of the companies involved, to be
established by Member States in accordance with those
Directives, as well as to any rules aimed at ensuring the
provision of
the
companies involved.

information to the employees of

(5)

Directives 78/855/EEC and 82/891/EEC should therefore
be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

this Directive

The purpose of
to amend Directives
78/855/EEC and 82/891/EEC as regards the requirement of
an independent expert’s report on the occasion of merger or
division of public limited liability companies.

is

(4) Third Council Directive 78/855/EEC of 9 October 1978 based on
Article 54(3)(g) of the Treaty concerning mergers of public limited
liability companies (OJ L 295, 20.10.1978, p. 36). Directive as last
amended by Directive 2006/99/EC (OJ L 363, 20.12.2006, p. 137).
(5) Sixth Council Directive 82/891/EEC of 17 December 1982 based on
Article 54(3)(g) of the Treaty, concerning the division of public
limited liability companies (OJ L 378, 31.12.1982, p. 47).

L 300/48

EN

Official Journal of the European Union

17.11.2007

Article 2

Directive 78/855/EEC is hereby amended as follows:

and the holders of other securities conferring the right to
vote of each of the companies involved in the division have
so agreed.’.

1.

in Article 10, the following paragraph shall be added:

Article 4

‘4.
Neither an examination of the draft terms of merger
nor an expert report shall be required if all the shareholders
and the holders of other securities conferring the right to
vote of each of the companies involved in the merger have
so agreed.’;

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 31 December 2008. They shall forthwith commu-
nicate to the Commission the text of these measures and a
correlation table between them and this Directive.

2.

in Article 11(1), point (e) shall be replaced by the following:

‘(e) where applicable, the reports provided for in Article 10.’.

Article 3

Directive 82/891/EEC is hereby amended as follows:

1.

in Article 9(1), point (e) shall be replaced by the following:

‘(e) where applicable, the reports provided for in Article 8.’;

2. Article 10 shall be replaced by the following:

‘Article 10

Neither an examination of the draft terms of division
1.
nor an expert report as provided for in Article 8(1) shall be
required if all the shareholders and the holders of other
securities conferring the right
the
companies involved in the division have so agreed.

to vote of each of

2. Member States may permit
the non-application of
Article 7 and Article 9(1)(c) and (d) if all the shareholders

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

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.

Article 5

This Directive shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.

Article 6

This Directive is addressed to the Member States.

Done at Strasbourg, 13 November 2007.

For the European Parliament
The President

For the Council
The President

H.-G. PÖTTERING

M. LOBO ANTUNES