Proposal for a Directive of the European Parliament and of the Council concerning mergers of public limited liability companies (Codified version)
Date: 2008-01-29
Institutions: European Commission
Subjects: EU Member State, codification of EU law, company law, disclosure of information, merger, merger control, protection of shareholders, public limited company

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.1.2008 
COM(2008) 26 final 

2008/0009 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

concerning mergers of public limited liability companies 

(Codified version) 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

In  the  context  of  a  people’s  Europe,  the  Commission  attaches  great  importance  to 
simplifying  and  clarifying  Community  law  so  as  to  make  it  clearer  and  more 
accessible to the ordinary citizen, thus giving him new opportunities and the chance 
to make use of the specific rights it gives him. 

This aim cannot be achieved so long as numerous provisions that have been amended 
several times, often quite substantially, remain scattered, so that they must be sought 
partly  in  the  original  instrument  and  partly  in  later  amending  ones.  Considerable 
research work, comparing many different instruments, is thus needed to identify the 
current rules. 

For  this  reason  a  codification  of  rules  that  have  frequently  been  amended  is  also 
essential if Community law is to be clear and transparent. 

On  1  April  1987  the  Commission  therefore  decided1  to  instruct  its  staff  that  all 
legislative acts should be codified after no more than ten amendments, stressing that 
this  is  a  minimum  requirement  and  that  departments  should  endeavour  to  codify  at 
even  shorter  intervals  the  texts  for  which  they  are  responsible,  to  ensure  that  the 
Community rules are clear and readily understandable. 

The  Conclusions  of 
the  Edinburgh  European  Council 
(December 1992) confirmed this2, stressing the importance of codification as it offers 
certainty as to the law applicable to a given matter at a given time. 

the  Presidency  of 

Codification  must  be  undertaken  in  full  compliance  with  the  normal  Community 
legislative procedure. 

Given  that  no  changes  of  substance  may  be  made  to  the  instruments  affected  by 
codification, the European Parliament, the Council and the Commission have agreed, 
by  an  interinstitutional  agreement  dated  20  December  1994,  that  an  accelerated 
procedure may be used for the fast-track adoption of codification instruments. 

The  purpose  of  this  proposal  is  to  undertake  a  codification  of  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  companies3.  The  new  Directive  will 
supersede  the  various  acts  incorporated  in  it4;  this  proposal  fully  preserves  the 
content of the acts being codified and hence does no more than bring them together 
with only such formal amendments as are required by the codification exercise itself. 

COM(87) 868 PV. 
See Annex 3 to Part A of the Conclusions. 
Carried out pursuant to the Communication from the Commission to the European Parliament and the 
Council – Codification of the Acquis communautaire, COM(2001) 645 final. 
Annex I, Part A of this proposal. 

1. 

2. 

3. 

4. 

1 
2 
3 

4 

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2 

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5. 

The codification proposal was drawn up on the basis of a preliminary consolidation, 
in  all  official  languages,  of  Directive  78/855/EEC  and  the  instrument  amending  it, 
carried out by the Office for Official Publications of the European Communities, by 
means  of  a  data-processing  system.  Where  the  Articles  have  been  given  new 
numbers,  the  correlation  between  the  old and  the  new  numbers  is  shown  in  a  table 
contained in Annex II to the codified Directive. 

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(cid:208) 78/855/EEC (adapted) 

2008/0009 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

concerning mergers of public limited liability companies 

(Text with EEA relevance) 

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, 

Having regard to the opinion of the European Economic and Social Committee1, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty2, 

Whereas: 

(1) 

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  companies3  has  been 
substantially amended several times4. In the interests of clarity and rationality the said 
Directive should be codified. 

(cid:208)  

1 
2 
3 

4 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ  L  295,  20.10.1978,  p.  36.  Directive  as  last  amended  by  Directive  2007/63/EC  of  the  European 
Parliament and of the Council (OJ L 300, 17.11.2007, p. 47). 
See Annex I, Part A. 

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(2) 

The  co-ordination  provided  for  in  Article  ⌦ 44 ⌫  (2)(g)  of  the  Treaty  and  in  the 
general programme for the abolition of restrictions on freedom of establishment5 was 
begun with Council Directive 68/151/EEC6. 

(cid:208) 78/855/EEC Recital 1 (adapted) 

(cid:208) 78/855/EEC Recital 2 (adapted) 

(3) 

This co-ordination was continued, as regards the formation of public limited liability 
companies  and  the  maintenance  and  alteration  of  their  capital,  with  ⌦ the  Second 
Council  Directive  77/91/EEC  of  13  December  1976  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, in respect of the formation of public limited liability companies and the 
maintenance  and  alteration  of  their  capital,  with  a  view  to  making  such  safeguards 
equivalent ⌫7,  and,  as  regards  the  annual  accounts  of  certain  types  of  companies, 
with  ⌦ the  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 ⌫8. 

(4) 

The protection of the interests of members and third parties requires that the laws of 
the  Member  States  relating  to  mergers  of  public  limited  liability  companies  be  co-
ordinated and that provision for mergers should be made in the laws of all the Member 
States. 

(cid:208) 78/855/EEC Recital 3 

(cid:208) 78/855/EEC  Recital  4  and 
2007/63/EC Recital 4 (adapted) 

(5) 

In the context of such co-ordination it is particularly important that the shareholders of 
merging companies be kept adequately informed in as objective a manner as possible 
and that their rights be suitably protected. ⌦ However, there is no reason to require 
an  examination  of  the  draft  terms  of  merger  by  an  independent  expert  for  the 
shareholders if all the shareholders agree that it may be dispensed with. ⌫ 

5 
6 

7 
8 

OJ 2, 15.1.1962, p. 36/62. 
OJ L 65, 14.3.1968, p. 8. Directive repealed by Directive […/…/EC] of the European Parliament and of 
the Council. 
OJ L 26, 31.1.1977, p. 1. Directive as last amended by Directive 2006/99/EC. 
OJ  L  222,  14.8.1978,  p.  11.  Directive  as  last  amended  by  Directive  2006/46/EC  of  the  European 
Parliament and of the Council (OJ L 224, 16.8.2006, p. 1). 

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(cid:208) 78/855/EEC Recital 5 (adapted) 

(6) 

The  protection  of  employees'  rights  in  the  event  of  transfers  of  undertakings, 
businesses  or  parts  of  ⌦ undertakings  or ⌫  businesses  is  at  present  regulated  by 
⌦ Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws 
of the Member States relating to the safeguarding of employees' rights in the event of 
transfers of undertakings, businesses or parts of undertakings or businesses ⌫9. 

(7) 

Creditors,  including  debenture  holders,  and  persons  having  other  claims  on  the 
merging companies ⌦ should ⌫ be protected so that the merger does not adversely 
affect their interests. 

(cid:208) 78/855/EEC Recital 6 (adapted) 

(cid:208) 78/855/EEC Recital 7 (adapted) 

(8) 

The disclosure requirements of Directive ⌦ [.../.../...] of the European Parliament and 
of the Council of […] 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  48  of  the  Treaty,  with  a  view  to 
making such safeguards equivalent throughout the Community10 ⌫ ⌦ should ⌫ be 
extended to include mergers so that third parties are kept adequately informed. 

(9) 

The  safeguards  afforded  to  members  and  third  parties  in  connection  with  mergers 
⌦ should ⌫ be extended to cover certain legal practices which in important respects 
are  similar  to  merger,  so  that  the  obligation  to  provide  such  protection  cannot  be 
evaded. 

(cid:208) 78/855/EEC Recital 8 (adapted) 

(cid:208) 78/855/EEC Recital 9 

(10)  To ensure certainty in the law as regards relations between the companies concerned, 
between them and third parties, and between the members, it is necessary to limit the 
cases in which nullity can arise by providing that defects be remedied wherever that is 
possible  and  by  restricting  the  period  within  which  nullification  proceedings  may  be 
commenced. 

9 
10 

OJ ⌦ L 82, 22.3.2001, p. 16. ⌫  
OJ L […], […], p. […]. 

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(11)  This  Directive  should  be  without  prejudice  to  the  obligations  of  the  Member  States 
relating to the time-limits for transposition into national law of the Directives set out in 
Annex I, Part B, 

(cid:208) 

HAVE ADOPTED THIS DIRECTIVE: 

(cid:208) 78/855/EEC 

CHAPTER I 

Scope 

Article 1 

1. The co-ordination measures laid down by this Directive shall apply to the laws, regulations 
and  administrative  provisions  of  the  Member  States  relating  to  the  following  types  of 
company: 

– 

Belgium: 

la société anonyme / de naamloze vennootschap; 

– 

Bulgaria: 

акционерно дружество; 

– 

the Czech Republic: 

akciová společnost; 

– 

Denmark: 

(cid:208) 2006/99/EC  Art.  1  and  Annex, 
Section A. 3. 

(cid:208) 2003  Act  of  Accession  Art.  20 
and Annex II, p. 339 

(cid:208) 78/855/EEC 

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aktieselskaber; 

– 

Germany: 

die Aktiengesellschaft; 

– 

Estonia: 

aktsiaselts; 

– 

Ireland: 

(cid:208) 2003  Act  of  Accession  Art.  20 
and Annex II, p. 339 

(cid:208) 78/855/EEC 

public  companies  limited  by  shares,  and  public  companies  limited  by  guarantee 
having a share capital; 

– 

Greece: 

ανώνυμη εταιρία; 

– 

Spain: 

la sociedad anónima; 

(cid:208) 1979  Act  of  Accession  Art.  21 
and Annex I, p. 89 

(cid:208) 1985  Act  of  Accession  Art.  26 
and Annex I, p. 157 

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(cid:208) 78/855/EEC 

– 

– 

France: 

la société anonyme; 

Italy: 

la società per azioni; 

(cid:208) 2003  Act  of  Accession  Art.  20 
and Annex II, p. 339 

– 

Cyprus: 

Δημόσιες εταιρείες περιορισμένης ευθύνης με μετοχές, δημόσιες εταιρείες 

περιορισμένης ευθύνης με εγγύηση που διαθέτουν μετοχικό κεφάλαιο; 

– 

– 

Latvia: 

akciju sabiedrība; 

Lithuania: 

akcinė bendrovė; 

– 

Luxembourg: 

la société anonyme; 

– 

– 

Hungary: 

részvénytársaság; 

Malta: 

(cid:208) 78/855/EEC 

(cid:208) 2003  Act  of  Accession  Art.  20 
and Annex II, p. 339 

kumpanija pubblika/public limited liability company, kumpanija 

privata/private limited liability company; 

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– 

the Netherlands: 

de naamloze vennootschap; 

(cid:208) 78/855/EEC 

– 

Austria: 

die Aktiengesellschaft; 

– 

Poland: 

spółka akcyjna; 

(cid:208) 1994  Act  of  Accession  Art.  29 
and Annex I, p. 194 

(cid:208) 2003  Act  of  Accession  Art.  20 
and Annex II, p. 339 

(cid:208) 1985  Act  of  Accession  Art.  26 
and Annex I, p. 157 

– 

Portugal: 

a sociedade anónima de responsabilidade limitada; 

(cid:208) 2006/99/EC  Art.  1  and  Annex, 
section A. 3. 

(cid:208) 2003  Act  of  Accession  Art.  20 
and Annex II, p. 339 

– 

Romania: 

societate pe acţiuni; 

– 

– 

Slovenia: 

delniška družba; 

Slovakia: 

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akciová spoločnosť; 

– 

– 

Finland: 

osakeyhtiö/aktiebolag; 

Sweden: 

aktiebolag; 

(cid:208) 1994  Act  of  Accession  Art.  29 
and Annex I, p. 194. 

– 

the United Kingdom: 

(cid:208) 78/855/EEC 

public  companies  limited  by  shares,  and  public  companies  limited  by  guarantee 
having a share capital. 

(cid:208) 78/855/EEC (adapted) 

2. The Member States need not apply this Directive to co-operatives incorporated as one of 
the types of company listed in paragraph 1. In so far as the laws of the Member States make 
use of this option, they shall require such companies to include the word ‘co-operative’ in all 
the documents referred to in Article 5 of Directive ⌦ [../…/..] ⌫. 

3. The Member States need not apply this Directive in cases where the company or companies 
which  are  being  acquired  or  will  cease  to  exist  are  the  subject  of  bankruptcy  proceedings, 
proceedings  relating  to  the  winding-up  of  insolvent  companies,  judicial  arrangements, 
compositions and analogous proceedings. 

CHAPTER II 

Regulation of merger by the acquisition of one or more companies 
by another ⌦ company ⌫ and of merger by the formation of a 
new company 

Article 2 

The  Member  States  shall,  as  regards  companies  governed  by  their  national  laws,  make 
provision for rules governing merger by the acquisition of one or more companies by another 
⌦ company ⌫ and merger by the formation of a new company. 

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(cid:208) 78/855/EEC 

Article 3 

1.  For  the  purposes  of  this  Directive,  ‘merger  by  acquisition’  shall  mean  the  operation 
whereby one or more companies are wound up without going into liquidation and transfer to 
another  all  their  assets  and  liabilities  in  exchange  for  the  issue  to  the  shareholders  of  the 
company  or  companies  being  acquired  of  shares  in  the  acquiring  company  and  a  cash 
payment,  if  any,  not  exceeding  10%  of  the  nominal  value  of  the  shares  so  issued  or,  where 
they have no nominal value, of their accounting par value. 

2. A Member State's laws may provide that merger by acquisition may also be effected where 
one  or  more  of  the  companies  being  acquired  is  in  liquidation,  provided  that  this  option  is 
restricted  to  companies  which  have  not  yet  begun  to  distribute  their  assets  to  their 
shareholders. 

Article 4 

1. For the purposes of this Directive, ‘merger by the formation of a new company’ shall mean 
the  operation  whereby  several  companies  are  wound  up  without  going  into  liquidation  and 
transfer to a company that they set up all their assets and liabilities in exchange for the issue 
to their shareholders of shares in the new company and a cash payment, if any, not exceeding 
10% of the nominal value of the shares so issued or, where they have no nominal value, of 
their accounting par value. 

2. A Member State's laws may provide that merger by the formation of a new company may 
also  be  effected  where  one  or  more  of  the  companies  which  are  ceasing  to  exist  is  in 
liquidation, provided that this option is restricted to companies which have not yet begun to 
distribute their assets to their shareholders. 

CHAPTER III 

Merger by acquisition 

Article 5 

1.  The  administrative  or  management  bodies  of  the  merging  companies  shall  draw  up  draft 
terms of merger in writing. 

2. Draft terms of merger shall specify at least: 

(a) 

(b) 

(c) 

EN 

the type, name and registered office of each of the merging companies; 

the share exchange ratio and the amount of any cash payment; 

the terms relating to the allotment of shares in the acquiring company; 

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(d) 

(e) 

(f) 

(g) 

the date from which the holding of such shares entitles the holders to participate in 
profits and any special conditions affecting that entitlement; 

the date from which the transactions of the company being acquired shall be treated 
for accounting purposes as being those of the acquiring company; 

the  rights  conferred  by  the  acquiring  company  on  the  holders  of  shares  to  which 
special  rights  are  attached  and  the  holders  of  securities  other  than  shares,  or  the 
measures proposed concerning them; 

any special advantage granted to the experts referred to in Article 10(1) and members 
of  the  merging  companies'  administrative,  management,  supervisory  or  controlling 
bodies. 

Article 6 

Draft  terms  of  merger  must  be  published  in  the  manner  prescribed  by  the  laws  of  each 
Member  State  in  accordance  with  Article 3  of  Directive  ⌦ [../…/..] ⌫  ,  for  each  of  the 
merging companies, at least one month before the date fixed for the general meeting which is 
to decide thereon. 

(cid:208) 78/855/EEC (adapted) 

Article 7 

1. A merger shall require at least the approval of the general meeting of each of the merging 
companies.  The  laws  of  the  Member  States  shall  provide  that  this  decision  shall  require  a 
majority of not less than two thirds of the votes ⌦ attached ⌫ either to the shares or to the 
subscribed capital represented. 

The  laws  of  a  Member  State  may,  however,  provide  that  a  simple  majority  of  the  votes 
specified  in  the  first  subparagraph  shall  be  sufficient  when  at  least  half  of  the  subscribed 
capital  is  represented.  Moreover,  where  appropriate,  the  rules  governing  alterations  to  the 
memorandum and articles of association shall apply. 

2.  Where  there  is  more  than  one  class  of  shares,  the  decision  concerning  a  merger  shall  be 
subject to a separate vote by at least each class of shareholders whose rights are affected by 
the transaction. 

3.  The  decision ⌦ referred  to  in  paragraph  2 ⌫  shall  cover  both  the  approval  of  the  draft 
terms  of  merger  and  any  alterations  to  the  memorandum  and  articles  of  association 
necessitated by the merger. 

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Article 8 

(cid:208) 78/855/EEC 

The laws of a Member State need not require approval of the merger by the general meeting 
of the acquiring company if the following conditions are fulfilled: 

(a) 

(b) 

(c) 

the publication provided for in Article 6 must be effected, for the acquiring company, 
at least one month before the date fixed for the general meeting of the company or 
companies being acquired which is are to decide on the draft terms of merger; 

at  least  one  month  before  the  date  specified  in  point  (a),  all  shareholders  of  the 
acquiring  company  must  be  entitled  to  inspect  the  documents  specified  in 
Article 11(1) at the registered office of the acquiring company; 

one or more shareholders of the acquiring company holding a minimum percentage 
of  the  subscribed  capital  must  be  entitled  to  require  that  a  general  meeting  of  the 
acquiring company be called to decide whether to approve the merger; this minimum 
percentage  may  not  be  fixed  at  more  than  5%;  the  Member  States  may,  however, 
provide for the exclusion of non-voting shares from this calculation. 

Article 9 

The administrative or management bodies of each of the merging companies shall draw up a 
detailed  written  report  explaining  the  draft  terms  of  merger  and  setting  out  the  legal  and 
economic grounds for them, in particular the share exchange ratio. 

The report shall also describe any special valuation difficulties which have arisen. 

Article 10 

1. One or more experts, acting on behalf of each of the merging companies but independent of 
them, appointed or approved by a judicial or administrative authority, shall examine the draft 
terms  of  merger  and  draw  up  a  written  report  to  the  shareholders.  However,  the  laws  of  a 
Member State may provide for the appointment of one or more independent experts for all the 
merging companies, if such appointment is made by a judicial or administrative authority at 
the  joint  request  of  those  companies.  Such  experts  may,  depending  on  the  laws  of  each 
Member State, be natural or legal persons or companies or firms. 

2. In the report mentioned in paragraph 1 the experts must in any case state whether in their 
opinion the share exchange ratio is fair and reasonable. Their statement must at least: 

(a) 

(b) 

indicate the method or methods used to arrive at the share exchange ratio proposed; 

state whether such method or methods are adequate in the case in question, indicate 
the  values  arrived  at  using  each  such  method  and  give  an  opinion  on  the  relative 
importance attributed to such methods in arriving at the value decided on. 

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The report shall also describe any special valuation difficulties which have arisen. 

3. Each expert shall be entitled to obtain from the merging companies all relevant information 
and documents and to carry out all necessary investigations. 

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. 

(cid:208) 2007/63/EC Art. 2(1) 

(cid:208) 78/855/EEC 

Article 11 

1.  All  shareholders  shall  be  entitled  to  inspect  at  least  the  following  documents  at  the 
registered office at least one month before the date fixed for the general meeting which is to 
decide on the draft terms of merger: 

(a) 

(b) 

(c) 

the draft terms of merger; 

the annual accounts and annual reports of the merging companies for the preceding 
three financial years; 

an accounting statement drawn up as at a date which must not be earlier than the first 
day of the third month preceding the date of the draft terms of merger, if the latest 
annual accounts relate to a financial year which ended more than six months before 
that date; 

(d) 

the  reports  of  the  administrative  or  management  bodies  of  the  merging  companies 
⌦ referred to ⌫ in Article 9; 

(cid:208) 78/855/EEC (adapted) 

(e) 

where applicable, the report ⌦ referred to ⌫ in Article 10 ⌦ (1) ⌫. 

(cid:208) 2007/63/EC Art. 2(2) (adapted) 

2. The accounting statement provided for in paragraph 1(c) shall be drawn up using the same 
methods and the same layout as the last annual balance sheet. 

(cid:208) 78/855/EEC (adapted) 

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However, the laws of a Member State may provide that: 

(a) 

(b) 

it is not necessary to take a fresh physical inventory; 

the valuations shown in the last balance sheet ⌦ are to be ⌫ altered only to reflect 
entries  in  the  books  of  account;  the  following  shall  nevertheless  be  taken  into 
account: 

– 

– 

interim depreciation and provisions, 

material changes in actual value not shown in the books. 

3.  Every  shareholder  shall  be  entitled  to  obtain,  on  request  and  free  of  charge,  full  or,  if  so 
desired, partial copies of the documents referred to in paragraph 1. 

Protection of the rights of the employees of each of the merging companies shall be regulated 
in accordance with Directive ⌦ 2001/23/EC ⌫ . 

Article 12 

(cid:208) 78/855/EEC 

Article 13 

1. The laws of the Member States must provide for an adequate system of protection of the 
interests of creditors of the merging companies whose claims antedate the publication of the 
draft terms of merger and have not fallen due at the time of such publication. 

2. To this end, the laws of the Member States shall at least provide that such creditors shall be 
entitled to obtain adequate safeguards where the financial situation of the merging companies 
makes  such  protection  necessary  and  where  those  creditors  do  not  already  have  such 
safeguards. 

3. Such protection may be different for the creditors of the acquiring company and for those 
of the company being acquired. 

Article 14 

Without prejudice to the rules governing the collective exercise of their rights, Article 13 shall 
apply to the debenture holders of the merging companies, except where the merger has been 
approved  by  a  meeting  of  the  debenture  holders,  if  such  a  meeting  is  provided  for  under 
national laws, or by the debenture holders individually. 

Holders  of  securities,  other  than  shares,  to  which  special  rights  are  attached,  must  be  given 
rights  in  the  acquiring  company  at  least  equivalent  to  those  they  possessed  in  the  company 

Article 15 

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being  acquired,  unless  the  alteration  of  those  rights  has  been  approved  by  a  meeting  of  the 
holders  of  such  securities,  if  such  a  meeting  is  provided  for  under  national  laws,  or  by  the 
holders  of  those  securities  individually,  or  unless  the  holders  are  entitled  to  have  their 
securities repurchased by the acquiring company. 

Article 16 

1. Where the laws of a Member State do not provide for judicial or administrative preventive 
supervision  of  the  legality  of  mergers,  or  where  such  supervision  does  not  extend  to  all  the 
legal  acts  required  for  a  merger,  the  minutes  of  the  general  meetings  which  decide  on  the 
merger and, where appropriate, the merger contract subsequent to such general meetings shall 
be drawn up and certified in due legal form. In cases where the merger need not be approved 
by  the  general  meetings  of  all  the  merging  companies,  the  draft  terms  of  merger  must  be 
drawn up and certified in due legal form. 

2.  The  notary  or  the  authority  competent  to  draw  up  and  certify  the  document  in  due  legal 
form  must  check  and  certify  the  existence  and  validity  of  the  legal  acts  and  formalities 
required of the company for which he or it is acting and of the draft terms of merger. 

The laws of the Member States shall determine the date on which a merger takes effect. 

Article 17 

Article 18 

(cid:208) 78/855/EEC (adapted) 

1. A merger must be publicised in the manner prescribed by the laws of each Member State, 
in accordance with Article 3 of Directive ⌦ [../…/..] ⌫ , in respect of each of the merging 
companies. 

2.  The  acquiring  company  may  itself  carry  out  the  publication  formalities  relating  to  the 
company or companies being acquired. 

Article 19 

1. A merger shall have the following consequences ipso jure and simultaneously: 

(a) 

(b) 

the transfer, both as between the company being acquired and the acquiring company 
and as regards third parties, to the acquiring company of all the assets and liabilities 
of the company being acquired; 

the  shareholders  of  the  company  being  acquired  become  shareholders  of  the 
acquiring company; 

(c) 

the company being acquired ceases to exist. 

EN 

17 

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2. No shares in the acquiring company shall be exchanged for shares in the company being 
acquired held either: 

(a) 

(b) 

by the acquiring company itself or through a person acting in his own name but on its 
behalf; or 

by the company being acquired itself or through a person acting in his own name but 
on its behalf. 

3.  ⌦ Paragraph  1 ⌫  shall  not  affect  the  laws  of  Member  States  which  require  the 
completion  of  special  formalities  for  the  transfer  of  certain  assets,  rights  and  obligations  by 
the  acquired  company  to  be  effective  as  against  third  parties.  The  acquiring  company  may 
carry  out  these  formalities  itself;  however,  the  laws  of  the  Member  States  may  permit  the 
company being acquired to continue to carry out these formalities for a limited period which 
cannot, save in exceptional cases, be fixed at more than six months from the date on which 
the merger takes effect. 

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(cid:208) 78/855/EEC 

Article 20 

The  laws  of  the  Member  States  shall  at  least  lay  down  rules  governing  the  civil  liability 
towards the shareholders of the company being acquired of the members of the administrative 
or management bodies of that company in respect of misconduct on the part of members of 
those bodies in preparing and implementing the merger. 

Article 21 

The  laws  of  the  Member  States  shall  at  least  lay  down  rules  governing  the  civil  liability 
towards  the  shareholders  of  the  company  being  acquired  of  the  experts  responsible  for 
drawing  up  on  behalf  of  that  company  the  report  referred  to  in  Article  10(1)  in  respect  of 
misconduct on the part of those experts in the performance of their duties. 

1. The laws of the Member States may lay down nullity rules for mergers in accordance with 
the following conditions only: 

Article 22 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

nullity must be ordered in a court judgement; 

mergers which have taken effect pursuant to Article 17 may be declared void only if 
there has been no judicial or administrative preventive supervision of their legality, 
or if they have not been drawn up and certified in due legal form, or if it is shown 
that the decision of the general meeting is void or voidable under national law; 

nullification proceedings may not be initiated more than six months after the date on 
which  the  merger  becomes  effective  as  against  the  person  alleging  nullity  or  if  the 
situation has been rectified; 

where it is possible to remedy a defect liable to render a merger void, the competent 
court shall grant the companies involved a period of time within which to rectify the 
situation; 

(cid:208) 78/855/EEC (adapted) 

a judgement declaring a merger void shall be published in the manner prescribed by 
accordance  with  Article 3  of 
the 
Directive ⌦ [../…/..] ⌫ ; 

each  Member  State 

laws  of 

in 

where  the  laws  of  a  Member  State  permit  a  third  party  to  challenge  such  a 
judgement, he may do so only within six months of publication of the judgement in 
the manner prescribed by Directive ⌦ [../…/..] ⌫ ; 

EN 

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(g) 

(h) 

a  judgement  declaring  a  merger  void  shall  not  of  itself  affect  the  validity  of 
obligations owed by or in relation to the acquiring company which arose before the 
judgement was published and after the date ⌦ on which the merger takes effect ⌫ ; 

companies which have been parties to a merger shall be jointly and severally liable in 
respect of the obligations of the acquiring company referred to in point (g). 

2. By way of derogation from paragraph 1(a), the laws of a Member State may also provide 
for  the  nullity  of  a  merger  to  be  ordered  by  an administrative authority if  an appeal against 
such a decision lies to a court. Point (b), and points (d) to (h) shall apply by analogy to the 
administrative  authority.  Such  nullification  proceedings  may  not  be  initiated  more  than  six 
months after the date ⌦ on which the merger takes effect ⌫ . 

3.  The  laws  of  the  Member  States  on  the  nullity  of  a  merger  pronounced  following  any 
supervision  other  than  judicial  or  administrative  preventive  supervision  of  legality ⌦ shall 
not be affected ⌫. 

CHAPTER IV 

Merger by formation of a new company 

Article 23 

1. Articles 5, 6, 7 and 9 to 22 shall apply, without prejudice to Articles 12 and 13 of Directive 
⌦ [../…/..] ⌫  ,  to  merger  by  formation  of  a  new  company.  For  this  purpose,  ‘merging 
companies’  and  ‘company  being  acquired’  shall  mean  the  companies  which  will  cease  to 
exist, and ‘acquiring company’ shall mean the new company. 

Article 5(2)(a) ⌦ of this Directive ⌫ shall also apply to the new company. 

2  .  The  draft  terms  of  merger  and,  if  they  are  contained  in  a  separate  document,  the 
memorandum  or  draft  memorandum  of  association  and  the  articles  or  draft  articles  of 
association  of  the  new  company  shall  be  approved  at  a  general  meeting  of  each  of  the 
companies that will cease to exist. 

3 . The Member States need not apply to the formation of a new company the rules governing 
the  verification  of  any  consideration  other  than  cash  laid  down  in  Article 10  of  Directive 
77/91/EEC. 

EN 

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CHAPTER V 

Acquisition of one company by another which holds 90% or more 
of its shares 

Article 24 

The Member States shall make provision, in respect of companies governed by their laws, for 
the  operation  whereby  one  or  more  companies are wound  up without  going  into liquidation 
and transfer all their assets and liabilities to another company which is the holder of all their 
shares and other securities conferring the right to vote at general meetings. Such operations 
shall be regulated by the provisions of Chapter III , with the exception of Article 5(2)(b), (c) 
and (d), Articles 9 and 10, Article 11(1)(d) and (e), Article 19(1)(b), and Articles 20 and 21. 

Article 25 

The Member States need not apply Article 7 to the operations ⌦ referred to ⌫ in Article 24 
if the following conditions at least are fulfilled: 

(a) 

(b) 

the publication provided for in Article 6 must be effected, as regards each company 
involved in the operation, at least one month before the operation takes effect; 

at least one month before the operation takes effect, all shareholders of the acquiring 
company  must  be  entitled  to  inspect  the  documents  ⌦ referred  to ⌫  in  Article 
11(1)(a),  (b)  and  (c)  at  the  company's  registered  office;  Article  11(2)  and  (3)  must 
apply; 

(c) 

Article 8(c) must apply. 

Article 26 

The  Member  States  may  apply  Articles  24  and  25  to  operations  whereby  one  or  more 
companies  are  wound  up  without  going  into  liquidation  and  transfer  all  their  assets  and 
liabilities to another company, if all the shares and other securities specified in Article 24 of 
the  company  or  companies  being  acquired  are  held  by  the  acquiring  company  and/or  by 
persons holding those shares and securities in their own names but on behalf of that company. 

Article 27 

In  cases  of  merger  where  one  or  more  companies  are  acquired  by  another  company  which 
holds 90% or more, but not all, of the shares and other securities of each of those companies 
the holding of which confers the right to vote at general meetings,  the Member  States  need 
not require approval of the merger by the general meeting of the acquiring company, provided 
that the following conditions at least are fulfilled: 

EN 

21 

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(a) 

(b) 

the  publication  provided  for  in  Article  6  must  be  effected,  as  regards  the  acquiring 
company,  at  least  one  month  before  the  date  fixed  for  the  general  meeting  of  the 
company  or  companies  being  acquired  which  is  to  decide  on  the  draft  terms  of 
merger; 

at  least  one  month  before  the  date  specified  in  point  (a),  all  shareholders  of  the 
acquiring  company  must  be  entitled  to  inspect  the  documents ⌦ referred  to ⌫  in 
Article 11(1)(a), (b) and (c) at the company's registered office; Article 11(2) and (3) 
must apply; 

(c) 

Article 8(c) must apply. 

Article 28 

The  Member  States  need  not  apply  Articles  9  to  11  to  a  merger  within  the  meaning  of 
Article 27 if the following conditions at least are fulfilled: 

(a) 

(b) 

(c) 

the  minority  shareholders  of  the  company  being  acquired  must  be  entitled  to  have 
their shares acquired by the acquiring company; 

if  they  exercise  that  right,  they  must  be  entitled  to  receive  consideration 
corresponding to the value of their shares; 

in the event of disagreement regarding such consideration, it must be possible for the 
value of the consideration to be determined by a court. 

Article 29 

The  Member  States  may  apply  Articles  27  and  28  to  operations  whereby  one  or  more 
companies  are  wound  up  without  going  into  liquidation  and  transfer  all  their  assets  and 
liabilities to another company, if 90% or more, but not all, of the shares and other securities 
referred  to  in  Article  27  of  the  company  or  companies  being  acquired  are  held  by  that 
acquiring company and/or by persons holding those shares and securities in their own names 
but on behalf of that company. 

CHAPTER VI 

Other operations treated as mergers 

Article 30 

Where in the case of one of the operations referred to in Article 2 the laws of a Member State 
permit a cash payment to exceed 10%, Chapters III and IV and Articles 27, 28 and 29 shall 
apply. 

EN 

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Article 31 

Where the laws of a Member State permit one of the operations referred to in Articles 2, 24 
and 30, without all of the transferring companies thereby ceasing to exist, Chapter III , except 
for Article 19(1)(c), Chapter IV or Chapter V shall apply as appropriate. 

CHAPTER VII 

Final provisions 

(cid:208)  

Article 32 

Directive 78/855/EEC, as amended by the acts listed in Annex I, Part A, is repealed, without 
prejudice to the obligations of the Member States relating to the time-limits for transposition 
into national law of the Directives set out in Annex I, Part B. 

References  to  the  repealed  Directive  shall  be  construed  as  references  to  this  Directive  and 
shall be read in accordance with the correlation table in Annex II. 

This Directive shall enter into force on 1 January 2009. 

Article 33 

(cid:208) 78/855/EEC Art. 33 

Article 34 

This Directive is addressed to the Member States. 

Done at Brussels, […] 

For the European Parliament 
The President 
[…] 

For the Council 
The President 
[…]

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(cid:207) 

ANNEX I 

Part A 

Repealed Directive with list of its successive amendments 
(referred to in Article 32) 

Council Directive 78/855/EEC 
(OJ L 295, 20.10.1978, p. 36) 

Annex I, point III. C to the 1979 Act of 
Accession 
(OJ L 291, 19.11.1979, p. 89) 

Annex I, point II. d) to the 1985 Act of 
Accession 
(OJ L 302, 15.11.1985, p. 157) 

Annex I, point XI.A.3. to the 1994 Act of 
Accession 
(OJ C 241, 29.8.1994, p. 194) 

Annex II, point 4.A.3 to the 2003 Act of 
Accession 
(OJ L 236, 23.9.2003, p. 338) 

Council Directive 2006/99/EC 
(OJ L 363, 20.12.2006, p. 137) 

Only as regards the reference to 
Directive 78/855/EEC in Article 1 
and Annex, Section A. 3. 

Directive 2007/63/EC of the European 
Parliament and of the Council 
(OJ L 300, 17.11.2007, p. 47) 

Article 2 only 

Part B 

List of time-limits for transposition into national law 
(referred to in Article 32) 

Directive 

Time-limit for transposition 

78/855/EEC 

2006/99/EC 

2007/63/ΕC 

13 October 1981 

1 January 2007 

31 December 2008 

EN 

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ANNEX II 

CORRELATION TABLE 

Directive 78/855/EEC 

This Directive 

______ 

Chapters I to VI 

Articles 1 – 31 

Article 32 

_______ 

_______ 

Article 33 

______ 

______ 

Chapter I 

Chapters II to VII 

Articles 1 – 31 

______ 

Article 32 

Article 33 

Article 34 

Annex I 

Annex II 

_____________ 

EN 

25 

   EN