Proposal for a Directive of the European Parliament and of the Council on co-ordination of safeguards which, for the protection of the interests of members and third parties, 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 (Codified version)
Date: 2008-01-31
Institutions: European Commission
Subjects: EU Member State, access to information, codification of EU law, company law, disclosure of information, legal status, organisation, protection of shareholders, publication of accounts

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.I.2008 
COM(2008) 39 final 

2008/0022 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on co-ordination of safeguards which, for the protection of the interests of members and 
third parties, 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  

(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  inter-institutional  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 First Council Directive 
of  9  March  1968  on  co-ordination  of  safeguards  which,  for  the  protection  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  throughout  the  Community3.  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. 
See Annex I, Part A of this proposal. 

1. 

2. 

3. 

4. 

1 
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3 

4 

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5. 

The codification proposal was drawn up on the basis of a preliminary consolidation, 
in all official languages, of Directive 68/151/EEC and the instruments 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) 68/151/EEC (adapted) 

2008/0022 (COD) 

Proposal for a 

⌦ DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL ⌫ 

on co-ordination of safeguards which, for the protection of the interests of members and 
⌦ third parties ⌫, 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  

(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  General  Programme  for  the  abolition  of  restrictions  on  freedom  of 
establishment1, and in particular Title VI thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Economic and Social Committee2, 

⌦ Acting in accordance with the procedure laid down in Article 251 of the Treaty3, ⌫ 

Whereas: 

(cid:208)  

(1) 

First Council Directive 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  throughout  the  Community4  has 
been substantially amended several times5. In the interests of clarity and rationality the 
said Directive should be codified. 

1 
2 
3 
4 

5 

OJ 2, 15.1.1962, p. 36/62. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ L 65, 14.3.1968, p. 8. Directive as last amended by Directive 2006/99/EC (OJ L 363, 20.12.2006, 
p. 137). 
See Annex I, Part A. 

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(cid:208) 68/151/EEC Recitals 1 and 2 
(adapted) 

(2) 

The  co-ordination  of  national  provisions  concerning  disclosure,  the  validity  of 
obligations  entered  into  by,  and  the  nullity  of,  companies  ⌦ limited  by  shares  or 
otherwise  having  limited  liability ⌫  is  of  special  importance,  particularly  for  the 
purpose of protecting the interests of third parties. 

(3) 

The  basic  documents  of  the  company  should  be  disclosed  in  order  that  third  parties 
may be able to ascertain their contents and other information concerning the company, 
especially particulars of the persons who are authorised to bind the company. 

(cid:208) 68/151/EEC Recital 4 

(4)  Without  prejudice  to  substantive  ⌦ requirements ⌫  and  formalities  established  by 
the national law of the Member States, companies should be able to choose to file their 
compulsory documents and particulars by paper means or by electronic means. 

(cid:208) 2003/58/EC Recital 6 (adapted) 

(5) 

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. 

(cid:208) 2003/58/EC Recital 7 

(6)  Member States should be allowed 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. 

(cid:208) 2003/58/EC Recital 8 

(cid:208) 2003/58/EC Recital 9 (adapted) 

(7) 

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

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(cid:208) 2003/58/EC Recital 10 
(adapted) 

(8) 

It is appropriate to clarify that the statement of the compulsory  particulars set out in 
⌦ this ⌫  Directive  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 
developments, it is also appropriate to provide that these statements be placed on any 
company website. 

(9) 

The  protection  of  third  parties  must  be  ensured  by  provisions  which  restrict  to  the 
greatest possible extent the grounds on which obligations entered into in the name of 
the company are not valid. 

(cid:208) 68/151/EEC Recital 5 

(10) 

It is necessary, in order to ensure certainty in the law as regards relations between the 
company  and  third  parties,  and  also  between  members,  to  limit  the  cases  in  which 
nullity can arise and the retroactive effect of a declaration of nullity, and to fix a short 
time limit within which third parties may enter objection to any such declaration. 

(cid:208) 68/151/EEC Recital 6 

(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) 68/151/EEC (adapted) 

⌦ Chapter 1 ⌫ 

⌦ Scope ⌫ 

Article 1 

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

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– 

In Belgium: 

naamloze vennootschap, 

société anonyme, 

commanditaire vennootschap op 
aandelen, 

société en commandite par actions, 

personenvennootschap met beperkte 
aansprakelijkheid; 

société de personnes à responsabilité 
limitée; 

– 

In Bulgaria: 

(cid:208) 2006/99/EC Annex A.1 

акционерно  дружество,  дружество  с  ограничена  отговорност,  командитно 
дружество с акции; 

– 

In the Czech Republic: 

společnost s ručením omezeným, akciová společnost; 

(cid:208) 2003 Act of Accession Art. 20 
and Annex II, p. 338 

– 

In Denmark: 

aktieselskab, kommanditaktieselskab, anpartsselskab; 

(cid:208) 2003/58/EC Art. 1 pt. 1(c) 

– 

In Germany: 

(cid:208) 68/151/EEC 

die  Aktiengesellschaft,  die  Kommanditgesellschaft  auf  Aktien,  die  Gesellschaft  mit 
beschränkter Haftung; 

– 

In Estonia: 

aktsiaselts, osaühing; 

(cid:208) 2003 Act of Accession Art. 20 
and Annex II, p. 338 

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– 

In Ireland: 

Companies incorporated with limited liability; 

(cid:208) 1972 Act of Accession 

(cid:208) 1979 Act of Accession  

– 

In Greece: 

ανώνυμη  εταιρία,  εταιρία  περιωρισμένης  ευθύνης,  ετερόρρυθμη  κατά  μετοχές 
εταιρία; 

– 

In Spain: 

(cid:208) 1985 Act of Accession  

la  sociedad  anónima,  la  sociedad  comanditaria  por  acciones,  la  sociedad  de 
responsabilidad limitada; 

(cid:208) 2003/58/EC Art. 1 pt. 1(a) 
(adapted) 

– 

In France: 

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

– 

In Italy: 

(cid:208) 68/151/EEC 

società per azioni, società in accomandita per azioni, società a responsabilità limitata; 

(cid:208) 2003 Act of Accession Art. 20 
and Annex II, p. 338 

– 

In Cyprus: 

δημόσιες  εταιρείες  περιορισμένης  ευθύνης  με  μετοχές  ή  με  εγγύηση,  ιδιωτικές 
εταιρείες περιορισμένης ευθύνης με μετοχές ή με εγγύηση; 

– 

In Latvia: 

akciju sabiedrība, sabiedrība ar ierobežotu atbildību, komanditsabiedrība; 

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– 

In Lithuania: 

akcinė bendrovė, uždaroji akcinė bendrovė; 

– 

In Luxembourg: 

(cid:208) 68/151/EEC (adapted) 

société anonyme, société en commandite par actions, société à responsabilité limitée; 

(cid:208) 2003 Act of Accession Art. 20 
and Annex II, p. 338 

– 

– 

In Hungary: 

részvénytársaság, korlátolt felelősségű társaság; 

In Malta: 

kumpanija  pubblika/public  limited  liability  company,  kumpanija  privata/private 
limited liability company; 

– 

In the Netherlands: 

naamloze vennootschap, besloten vennootschap met beperkte aansprakelijkheid; 

(cid:208) 2003/58/EC Art. 1 pt. 1(b) 
(adapted) 

– 

In Austria: 

die Aktiengesellschaft, die Gesellschaft mit beschränkter Haftung; 

(cid:208) 1994 Act of Accession 

(cid:208) 2003 Act of Accession Art. 20 
and Annex II, p. 338 

– 

In Poland: 

spółka  z  ograniczoną  odpowiedzialnością,  spółka  komandytowo-akcyjna,  spółka 
akcyjna; 

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– 

In Portugal: 

(cid:208) 1985 Act of Accession  

a  sociedade  anónima  de  responsabilidade  limitada,  a  sociedade  em  comandita  por 
acções, a sociedade por quotas de responsabilidade limitada; 

– 

In Romania: 

(cid:208) 2006/99/CE Annex, pt. A.1  

societate  pe  acţiuni,  societate  cu  răspundere  limitată,  societate  în  comandită  pe 
acţiuni; 

(cid:208) 2003 Act of Accession Art. 20 
and Annex II, p. 338 

– 

– 

In Slovenia: 

delniška družba, družba z omejeno odgovornostjo, komaditna delniška družba; 

In Slovakia: 

akciová spoločnosť, spoločnosť s ručením obmedzeným; 

– 

In Finland: 

yksityinen osakeyhtiö/privat aktiebolag, julkinen osakeyhtiö/publikt aktiebolag; 

(cid:208) 2003/58/EC Art. 1 pt. 1(d) 

– 

In Sweden: 

aktiebolag; 

– 

In the United Kingdom: 

Companies incorporated with limited liability; 

(cid:208) 1994 Act of Accession 

(cid:208) 1972 Act of Accession 

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(cid:208) 68/151/EEC (adapted) 

Chapter 2 

Disclosure 

Article 2 

Member  States  shall  take  the  measures  required  to  ensure  compulsory  disclosure  by 
companies  ⌦ ,  referred  to  in  Article  1, ⌫  of  at  least  the  following  documents  and 
particulars: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

the  instrument  of  constitution,  and  the  statutes  if  they  are  contained  in  a  separate 
instrument; 

any  amendments  to  the  instruments  mentioned  in  ⌦ point ⌫  (a),  including  any 
extension of the duration of the company; 

after  every  amendment  of  the  instrument  of  constitution  or  of  the  statutes,  the 
complete text of the instrument or statutes as amended to date; 

the appointment, termination of office and particulars of the persons who either as a 
body constituted pursuant to law or as members of any such body: 

(i) 

are  authorised  to  represent  the  company  in  dealings  with  third  parties  and  in 
legal  proceedings;  it  must  appear  from  the  disclosure  whether  the  persons 
authorised to represent the company may do so alone or must act jointly; 

(ii) 

take part in the administration, supervision or control of the company. 

at  least  once  a  year,  the  amount  of  the  capital  subscribed,  where  the  instrument  of 
constitution or the statutes mention an authorised capital, unless any increase in the 
capital subscribed necessitates an amendment of the statutes; 

the accounting documents for each financial year, which are required to be published 
in  accordance  with  Council  Directives  78/660/EEC6,  83/349/EEC7,  86/635/EEC8 
and 91/674/EEC9; 

(cid:208) 2003/58/EC Art. 1 pt. 2(a) 

6 
7 
8 
9 

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. 

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(g) 

(h) 

(i) 

(j) 

(k) 

(cid:208) 68/151/EEC 

any transfer of the seat of the company; 

the winding up of the company; 

any declaration of nullity of the company by the courts; 

the  appointment  of  liquidators,  particulars  concerning  them,  and  their  respective 
powers, unless such powers are expressly and exclusively derived from law or from 
the statutes of the company; 

the  termination  of  the  liquidation  and,  in  Member  States  where  striking  off  the 
register entails legal consequences, the fact of any such striking off. 

(cid:208) 2003/58/EC Art. 1 pt. 3 

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. 

(cid:208) 2003/58/EC Art.1 pt. 3 
(adapted) 

2. 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 in a manner to be determined by Member States by wire, by radio, by 
optical means or by other electromagnetic means. 

3. All documents 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  the  filing  by  companies,  as  well  as  by  other  persons  and 
bodies  required  to  make  or  assist  in  making  notifications,  of  all  documents  and  particulars 
which  must  be  disclosed  pursuant  to  Article  2  ⌦ is ⌫  possible  by  electronic  means.  In 
addition,  Member  States  may  require  all,  or  certain  categories  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, whether by paper means 
or by electronic means, ⌦ shall ⌫ 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 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 

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by  the  register.  Member  States  shall  nevertheless  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  ⌦ measures ⌫  adopted  to  give  effect  to 
paragraph 4. 

4.  A  copy  of  the  whole  or  any  part  of  the  documents  or  particulars  referred  to  in  Article  2 
must  be  obtainable  on  application.  Applications  may  be  submitted  to  the  register  by  paper 
means or by electronic means as the applicant chooses. 

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.  This  shall  apply  in  the  case  of  all 
documents and particulars ⌦ already ⌫ filed. 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 specified period has elapsed between the date of filing and the date of 
the application submitted to the register. Such specified 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. Electronic copies supplied shall not be certified as “true copies”, unless the 
applicant explicitly requests such a certification. 

Member  States  shall  take  the  necessary  measures  to  ensure  that  certification  of  electronic 
copies guarantees both the authenticity of their origin and the integrity of their contents, by 
means  at  least  of  an  advanced  electronic  signature  within  the  meaning  of  Article  2(2)  of 
Directive 1999/93/EC of the European Parliament and of the Council10. 

(cid:208) 2003/58/EC Art. 1 pt. 3 

5. Disclosure of the documents and particulars referred to in paragraph 3 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. 

6.  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  5,  unless  the  company 
proves that the third parties had knowledge thereof. 

10 

JO L 13, 19.1.2000, p. 12. 

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However,  with  regard  to  transactions  taking  place  before  the  16th  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. 

7. Member States shall take the necessary measures to avoid any discrepancy between what is 
disclosed in accordance with paragraph 5 and what appears in the register or file. 

However, in cases of discrepancy, the text disclosed in accordance with paragraph 5 may not 
be relied on as against third parties; such third parties may nevertheless rely thereon, unless 
the company proves that they had knowledge of the texts deposited in the file or entered in the 
register. 

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

(cid:208) 2003/58/EC Art. 1 pt. 4 

Article 4  

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. 

2. In addition to the mandatory disclosure referred to in Article 3, Member States shall allow 
documents  and  particulars  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  access  by  third  parties  to  the 
translations voluntarily 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 knowledge of the 
version which was the subject of the mandatory disclosure. 

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(cid:208) 2003/58/EC Art. 1 pt. 5 
(adapted) 

Article 5 

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) 

(b) 

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; 

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

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

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

(cid:208) 68/151/EEC 

Article 6 

Each  Member  State  shall  determine  by  which  persons  the  disclosure  formalities  are  to  be 
carried out. 

(cid:208) 2003/58/EC Art. 1 pt. 6 

Article 7  

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

(a) 

(b) 

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

omission  from  commercial  documents  or  from  any  company  website  of  the 
compulsory particulars provided for in Article 5. 

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(cid:208) 68/151/EEC 

Chapter 3  

Validity of obligations entered into by a company 

Article 8 

If, before a company being formed has acquired legal personality, action has been carried out 
in  its  name  and  the  company  does  not  assume  the  obligations  arising  from  such  action,  the 
persons  who  acted  shall,  without  limit,  be  jointly  and  severally  liable  therefor,  unless 
otherwise agreed. 

Article 9 

Completion of the formalities of disclosure of the particulars concerning the persons who, as 
an  organ  of  the  company,  are  authorised  to  represent  it  shall  constitute  a  bar  to  any 
irregularity in their appointment being relied upon as against third parties unless the company 
proves that such third parties had knowledge thereof. 

Article 10 

1. Acts done by the organs of the company shall be binding upon it even if those acts are not 
within the objects of the company, unless such acts exceed the powers that the law confers or 
allows to be conferred on those organs. 

However, Member States may provide that the company shall not be bound where such acts 
are outside the objects of the company, if it proves that the third party knew that the act was 
outside  those  objects  or  could  not  in  view  of  the  circumstances  have  been  unaware  of  it; 
disclosure of the statutes shall not of itself be sufficient proof thereof. 

2. The limits on the powers of the organs of the company, arising under the statutes or from a 
decision of the competent organs, may never be relied on as against third parties, even if they 
have been disclosed. 

3. If the national law provides that authority to represent a company may, in derogation from 
the  legal  rules  governing  the  subject,  be  conferred  by  the  statutes  on  a  single  person  or  on 
several persons acting jointly, that law may provide that such a provision in the statutes may 
be  relied  on  as  against  third  parties  on  condition  that  it  relates  to  the  general  power  of 
representation;  the  question  whether  such  a  provision  in  the  statutes  can  be  relied  on  as 
against third parties shall be governed by Article 3. 

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Chapter 4 

Nullity of the company 

Article 11 

In  all  Member  States  whose  laws  do  not  provide  for  preventive  control,  administrative  or 
judicial, at the time of formation of a company, the instrument of constitution, the company 
statutes and any amendments to those documents shall be drawn up and certified in due legal 
form. 

(cid:208) 68/151/EEC (adapted) 

Article 12 

The laws of the Member States may not provide for the nullity of companies otherwise than in 
accordance with the following provisions: 

(a) 

(b) 

nullity must be ordered by decision of a court of law; 

nullity may be ordered only on the grounds: 

(i) 

that no instrument of constitution was executed or that the rules of preventive 
control or the requisite legal formalities were not complied with; 

(ii) 

that the objects of the company are unlawful or contrary to public policy; 

(iii) 

that the instrument of constitution or the statutes do not state the name of the 
company,  the  amount  of  the  individual  subscriptions  of  capital,  the  total 
amount of the capital subscribed or the objects of the company; 

(iv) 

failure  to  comply  with  the  provisions  of  the  national  law  concerning  the 
minimum amount of capital to be paid up; 

(v) 

the incapacity of all the founder members; 

(vi) 

that,  contrary  to  the  national  law  governing  the  company,  the  number  of 
founder members is less than two. 

Apart from the foregoing grounds of nullity, a company shall not be subject to any cause of 
non-existence, nullity absolute, nullity relative or declaration of nullity. 

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(cid:208) 68/151/EEC  

Article 13 

1. The question whether a decision of nullity pronounced by a court of law may be relied on 
as against third parties shall be governed by Article 3. Where the national law entitles a third 
party to challenge the decision, he may do so only within six months of public notice of the 
decision of the court being given. 

2. Nullity shall entail the winding up of the company, as may dissolution. 

3. Nullity shall not of itself affect the validity of any commitments entered into by or with the 
company, without prejudice to the consequences of the company's being wound up. 

4.  The  laws  of  each  Member  State  may  make  provision  for  the  consequences  of  nullity  as 
between members of the company. 

5.  Holders  of  shares  in  the  capital  shall  remain  obliged  to  pay  up  the  capital  agreed  to  be 
subscribed by them but which has not been paid up, to the extent that commitments entered 
into with creditors so require. 

Chapter 5  

General provisions 

Article 14 

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. 

(cid:208) 68/151/EEC (adapted) 

(cid:208) 2003/58/EC Art. 2(3) (adapted) 

⌦ Article 15 ⌫ 

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. 

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(cid:208)  

Article 16 

Directive 68/151/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 the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 17 

(cid:208) 68/151/EEC 

Article 18 

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 16) 

Council Directive 68/151/EEC 
(OJ L 65, 14.3.1968, p. 8) 

Point III.H of Annex I to the 1972 Act of Accession 
(OJ L 73, 27.3.1972, p. 89) 

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

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

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

Directive 2003/58/CE of the European Parliament 
and of the Council 
(OJ L 221, 4.9.2003, p. 13) 

Point 1.4.A of Annex II 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 point A.1 of the Annex 

Part B 

List of time-limits for transposition into national law 
(referred to in Article 16) 

Directive 

Time-limit for transposition 

68/151/EEC 

2003/58/EC 

2006/99/EC 

11 November 1969 

30 December 2006 

1 January 2007 

_____________ 

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ANNEX II 

CORRELATION TABLE 

Directive 68/151/EEC 

This Directive 

Article 1 

Article 2 

Article 3(1) 

Article 3(2) 

Article 3(3) 

Article 3(4) 

Article 3(5) 

Article 1 

Article 2 

Article 3(1) 

Article 3(3) 

Article 3(4) 

Article 3(5) 

Article 3(6) 

Article 3(6), first and second subparagraphs 

Article 3(7), first and second subparagraphs 

Article 3(7) 

Article 3(8) 

Article 3a 

Article 4 

Article 5 

Article 6 

Article 7 

Article 8 

Article 9 

Article 10 

Article 3(7), third subparagraph 

Article 3(2) 

Article 4 

Article 5 

Article 6 

Article 7 

Article 8 

Article 9 

Article 10 

Article 11 

Article 11, introductory words 

Article 12, introductory words 

Article 11, point 1 

Article 12, point (a) 

Article 11, point 2, introductory words 

Article 12, point (b), introductory words 

Article 11, point 2, points (a) to (f) 

Article 12, point (b), points (i) to (vi) 

Article 12 

Article 13 

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Article 13, first, second and third 
subparagraphs 

Article 13, fourth subparagraph 

Article 14 

________ 

________ 

________ 

________ 

________ 

________ 

Article 14 

Article 18 

Article 15 

Article 16 

Article 17 

Annex I 

Annex II 

____________ 

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