Proposal for a Directive of the European Parliament and of the Council amending Council Directives 77/91/EEC, 78/855/EEC and 82/891/EECand Directive 2005/56/EC as regards reporting and documentation requirements in the case of merger and divisions {SEC(2008) 2486} {SEC(2008) 2487}
Date: 2008-09-24
Institutions: European Commission
Subjects: EC Directive, company law, demerger, merger, simplification of legislation

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 24.9.2008 
COM(2008) 576 final 

2008/0182 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

amending Council Directives 77/91/EEC, 78/855/EEC and 82/891/EECand 
Directive 2005/56/EC as regards reporting and documentation requirements in the case 
of merger and divisions 

(presented by the Commission) 

{SEC(2008) 2486} 
{SEC(2008) 2487} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

General context 

In  2006,  the  Commission  adopted  an  updated  simplification  programme1  with  a  view  to 
measuring  administrative  costs  and  reducing  administrative  burdens  that  unnecessarily 
hamper  the  economic  activities  of  European  businesses.  The  Action  Programme  and  its 
objective  to  reduce  25%  of  administrative  burdens  by  the  year  2012  were  endorsed  by  the 
Spring European Council in March 20072. 

As  a  consequence,  the  Commission  adopted,  in  July  2007,  a  communication  setting  out  its 
proposals for simplifying the areas of company law, accounting and auditing.3 Furthermore, in 
March 2007 and  April 2008, two fast-track proposals were presented by the Commission in 
order to achieve a rapid reduction of administrative burdens through minor changes of the EU 
acquis.  The  first  one  was  adopted  in  November 2007.4  The  second  proposal5  that  takes  up 
certain elements considered in the July 2007 Communication is still under consideration in the 
European  Parliament  and  the  Council.  Other  simplification  possibilities  presented  in  the 
Communication  and  additional  proposals  received  during  the  consultation  process  are 
presented in this proposal. 

1.2. 

Justification and objectives of the initiative 

The  objective  of  the  initiative  is  to  contribute  to  enhancing  the  competitiveness  of  EU 
companies  by  reducing  administrative  burdens  imposed  under  the  European  Company  Law 
Directives where this can be done without major negative impact on other stakeholders. 

limited 

The  initiative  focuses  on  the  Third  Directive  (Council  Directive  78/855/EEC6)  concerning 
the  Sixth  Directive  (Council 
liability  companies  and 
mergers  of  public 
Directive 82/891/EEC7) concerning the division of public limited liability companies that deal 
with the modalities of domestic mergers and divisions. In addition, in relation to the Cross-
border  mergers  Directive  (Directive 2005/56/EC  of  the  European  Parliament  and  of  the 
Council  on  cross-border  mergers  of  limited  liability  companies8)  two  points  need  to  be 
aligned  with  the  changes  made  to  the  regimes  for  domestic  mergers.  Furthermore,  mainly 
technical  changes  need  to  be  made  to  Second  Directive  (Council  Directive 77/91/EEC9)  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 

1 
2 
3 
4 

5 
6 
7 
8 
9 

COM(2006)689 final, OJ C 78, 11.4.2007, p. 9 
Presidency Conclusions of the Brussels European Council - doc. 7224/07 Concl 1 
COM(2007)394, not published in the Official Journal. 
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, OJ L300, 17.11.2007, 
p. 47. 
COM(2008)194 (not yet published in the Official Journal) 
OJ L 295, 20.10.1978, p. 36. 
OJ L 378, 31.12.1982, p. 47. 
OJ L 310, 25.11.2005, p. 1. 
OJ L 26, 31.1.1977, p. 1. 

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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. 

The  Third  and  the  Sixth  Directives  currently  contain  a  number  of  detailed  reporting 
requirements  that  companies  involved  in  a  merger/division  have  to  comply  with  and  which 
impose  considerable  costs  on  them.  In  certain  situations,  the  conjunction  with  the  Second 
Directive can lead to a further increase in costs. Furthermore, the means provided for in the 
directives to inform shareholders about the details of the transactions were designed 30 years 
ago  and  therefore  do  not  take  into  account  today's  technological  possibilities.  This  leads  to 
unnecessary costs and an excessive use of paper that can be avoided. Finally, changes in other 
directives during the last years and in particular to the Second Directive in the area of creditor 
protection have lead to certain inconsistencies between the different directives. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

2.1. 

Consultation of interested parties 

The proposal and the impact assessment that accompanies it are based on a broad consultation 
process which followed the adoption of the July 2007 Communication. 

The  Competitiveness  Council  adopted,  on  22  November  2007,  conclusions  welcoming  the 
simplification initiative.10 In the European Parliament, a report was adopted on 21 May 2007 
that  reflects  broad  support  for  the  initiative  to  simplify  European  company  law  and  reduce 
administrative burdens.11 With a view to possible further modifications to the Third and the 
Sixth  Directives,  the  report  confirms  that  more  updating  is  necessary  but  recalls  that  the 
interests  of  all  stakeholders,  including  investors,  owners,  creditors  and  employees,  must  be 
duly  taken  into  account  and  that  the  harmonisation  in  that  area  should  not  be  deprived  of 
substance. 

In addition, eighteen Member States' governments, the government of one EEA country and 
110 stakeholders reacted to the invitation, in the Communication, to submit comments on the 
proposals  in  writing,  by  mid-October  2007.  These  contributions  from  governments  and 
stakeholders originated from 23 countries in total, including 22 Member States. A report on 
the  reactions  received  from  Member  States  and  stakeholders  between  July  and 
December 2007 is available on the website of the Directorate-General for Internal Market and 
at
Services 

(DG MARKT) 

http://ec.europa.eu/internal_market/company/simplification/index_en.htm. 

The  High  Level  Group  of  Independent  Stakeholders,  in  its  report  adopted  on  10  July  2008, 
welcomes  the  efforts  by  the  Commission  to  review  the  reporting  requirements  in  the  Third 
and the Sixth Directives and calls for ambitious legislative proposals which realize as much as 
possible  the  reduction  potential  identified  for  these  two  directives  whilst  protecting  both 
shareholders’ and creditors’ interests. 

The main source of information on which the Impact Assessment is based is the large scale 
measurement  of  administrative  costs,  carried  out  by  a  consortium  of  contractors  which 
delivered its complete final report on 31 July 2008. This report is based on the EU Standard 

10 
11 

Council document 15222/07 DRS 48 
A6-0101/2008 

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cost  model.  Where  the  measurement  could  not  provide  sufficient  or  representative  figures, 
additional  information  obtained  mainly  from  Member  States  was  used  to  supplement  or 
correct the data. 

2.2. 

Impact Assessment 

The Impact Assessment shows that there is a significant potential for savings for companies in 
the areas mentioned above. 

2.2.1.  Reporting requirements 

The reporting requirements in the Third and the Sixth Directives consist of (1) the obligation 
to  produce  a  written  report  by  the  management  on  the  legal  and  economic  grounds  of  the 
merger/division;  (2)  an  independent  expert's  report  that  examines  in  particular  the  proposed 
share  exchange  ratio;  and  (3)  an  accounting  statement  where  the  annual  accounts  are  older 
than  six  months  at  the  time  the  draft  terms  of  merger  or  division  are  drawn  up.  These 
documents  have  to  be  submitted  to  the  general  meeting  of  shareholders  that  decides  on  the 
merger or the division. 

With a view to the management report and the accounting statement, the Impact Assessment 
recommends  to  introduce  the  possibility  of  a  unanimous  waiver,  as  was  done  by 
Directive 2007/63/EC with a view to the expert's report. This would avoid a negative impact 
on the interests of the shareholders while achieving some savings for the companies involved. 

In addition, it is proposed to abolish the requirement for an accounting statement where the 
company has set up a half-yearly financial statement under the Transparency Directive12.  

The total burden savings of these measures are estimated at about 7.12 mio €/year. 

2.2.2.  Measures  with  a  view  to  companies  that  are  set  up  or  increase  their  capital  in  the 

context of a merger or division 

In cases where the operation is linked to either setting up a new company or an increase in the 
capital of the receiving company, currently there is a duplication of requirements for experts' 
reports due to the rules of the Sixth Directives on the one hand and the Second Directive on 
the other. In the case of mergers and public offers, the Second Directive contains a Member 
State  option  to  exempt  companies  from  the  report  on  contributions  in  kind  required  by  that 
directive. 

The Impact Assessment recommends that this Member State option be extended to the cases 
of divisions. The potential burden savings of these proposed measures are estimated to lie at 
between 3.26 – 9.43 mio €/year, depending on how  many Member States will make use of the 
option to be granted. 

12 

Directive  2004/109/EC  of  15  December  2004  on  the  harmonisation  of  transparency  requirements  in 
relation to information about issuers whose securities are admitted to trading on a regulated market and 
amending Directive 2001/34/EC, OJ L 390, 31.12.2004, p. 1 

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2.2.3.  Measures  concerning  simplified  mergers  and  divisions  between  parent  companies 

and subsidiaries 

Currently,  Member  States  have  the  possibility  to  grant  exemptions  from  the  need  to  hold  a 
general meeting and from certain reporting and information requirements where the merger or 
division take place between parent companies and their subsidiaries. However, only a few of 
the Member States make full or almost full use of these options.  

The conclusion of the Impact Assessment is that Member States should be required to grant 
the possibility of simplified mergers/divisions to their companies. The potential cost savings, 
under this option, are estimated to lie around 153.5 mio €/year.  

2.2.4.  Publication and documentation duties 

Under the rules of the Third, the Sixth and the Directive on Cross-border Mergers, companies 
have to file the draft terms of merger or division with the companies register and publish these 
draft terms in the national gazette or on a central electronic platform. Furthermore, the Third 
and  the  Sixth  Directives  provide  that  shareholders  must  be  given  the  possibility  to  access 
certain documents at the place of the company's registered office and to receive free copies of 
these  documents.  However,  today's  means  of  modern  information  technology  allow  for  an 
easier  and  cheaper  access  to  the  information  and  have  therefore  already  been  used  in  more 
recent directives, such as the Shareholders' rights Directive.13 

The Impact Assessment therefore recommends allowing companies to use their Internet site 
for publishing the information. This scenario is estimated to offer a savings potential of over 
3.5 mio €/year. 

2.2.5.  Protection of creditors 

Recent  changes  to  the  Second  Directive14  have,  inter  alia,  led  to  clarifying  the  creditor 
protection rules under that directive in the sense that creditors have to show credibly that an 
operation  concerning  the  company's  capital  jeopardises  their  claims  if  they  want  to  obtain 
securities. For reasons of coherence, the Impact Assessment recommends that the rules of the 
Third and the Sixth Directives be adapted along these lines. 

No material impact on companies' costs is expected from this option. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

3.1. 

Legal Basis 

The legal base for the proposal is Article 44(2)(g) of the Treaty. 

13 

14 

Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of 
certain rights of shareholders in listed companies, OJ L 184, 14.7.2007, p. 17 
Directive 2006/68/EC of the European Parliament and of the Council of 6 September 2006 amending 
Council  Directive  77/91/EEC  as  regards  the  formation  of  public  limited  liability  companies  and  the 
maintenance and alteration of their capital, OJ L 264, 25.9.2006, p. 32. 

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3.2. 

Subsidiarity and proportionality 

Action  at  EU  level  is  necessary  to  deal  with  these  problems  because  the  reporting  and 
documentation  requirements  addressed  in  the  proposal  derive  from  EU  law.  In  some  areas 
covered  by  the  proposal,  Member  States  already  have  the  possibility  to  reduce  the 
requirements  weighing  on  companies.  However,  as  shown  in  the  impact  assessment 
accompanying this proposal and in a report on a broad scale measurement of administrative 
costs carried out for the Commission, a considerable number of Member States so far do not 
make use of these possibilities, despite of their important potential for cost savings. In order to 
make  sure  that  all  companies  can  benefit  from  these  alleviations,  action  at  EU  level  is 
necessary. 

The  proposed  modifications  are  limited  to  what  is  necessary  in  order  to  remove  the 
unnecessary  administrative  burdens  in  the  areas  concerned  and  are  proportionate  to  this 
objective. 

4. 

SIMPLIFICATION 

This  proposal  is  foreseen  in  the  Simplification  Rolling  Programme  for  adoption  by  the 
Commission in 200815. Significant simplification benefits are being brought about. Reporting 
requirements are reduced by providing greater flexibility to Member States and companies in 
order to decide which reports are really needed in each specific case. Rules leading to double 
reporting  are  removed,  eliminating  unnecessary  costs  to  companies.  Publication  and 
information duties are adapted to technological developments, which will also have beneficial 
consequences  for  the  environment.  The  creditor  protection  rules  in  the  Third  and  the  Sixth 
Directives are brought into line with recent changes to the rest of the Company law acquis. 
The  total  potential  burden  savings  of  these  measures  is  estimated  to  be  as  high  as 
€ 172 million per year. 

5. 

1. 

1.1. 

1.2. 

COMMENTS ON SPECIFIC ARTICLES 

Article 1: Amendment of the Third Directive 

Under  point  1,  the  list  of  companies  to  which  the  Third  Directive  and  –  via  a 
reference  in  its  Article 1(1)  -  also  the  Sixth  Directive  apply  is  adapted  in  order  to 
reflect a change in the national law of Finland. 

Point 2, introduces an alternative, for companies, to the publication mechanism of the 
First Directive. Instead of filing the draft terms of merger with the register they can 
be  published  on  the  company's  website  or  another  website  (in  particular  where  the 
company  has  the  possibility  to  use  the  website  e.g.  of  a  business  association). 
However,  in  order  to  allow  shareholders  and  other  stakeholders  to  locate  the 
document,  a  reference  and  a  link  have  to  be  published  on  the  central  electronic 
platform  that  should  be  introduced  as  a  mandatory  tool  in  Art.  3(4)  of  the  First 
Directive  by  the  directive  that  was  proposed  by  Commission  proposal  of  17  April 
200816. With a view to the fact that certain provisions (as for example Art. 13 Third 

15 
16 

COM(2008)33, not published in the Official Journal, p. 23 
See footnote 5. 

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1.3. 

1.4. 

Directive and Art. 12 Sixth Directive with a view to the creditor protection) refer to 
the  date  of  publication,  this  date  has  to  be  published  on  the  central  electronic 
platform as well. 

Point  3  adapts  Article  8  (b)  to  the  proposed  change  in  Article  11  (4)  according  to 
which also in the case of the other documents that so far do not need to be entered 
into the register but have to be made available to shareholders, the company can use 
its Internet site. 

Point  4  adapts,  in  its  new  paragraph  2,  this  provision  to  the  parallel  provision  of 
Art. 7(3)  Sixth  Directive  according  to  which  the  management  has  the  obligation  to 
inform the general meeting about changes that have occurred between the time when 
the  draft  terms  of  merger  were  drawn  up  and  the  time  of  the  general  meeting.  An 
exemption  from  both  the  reporting  requirement  established  in  paragraph  1  of  the 
article as well as the information obligation should apply where shareholders of all 
companies involved have so agreed. 

1.5. 

The changes to Article 11 that are proposed in point 5 aim at ensuring that: 

–  A company does not need to set up an accounting statement: 

–  where it is subject to the obligation, under the Transparency Directive, to draw up 

half-yearly financial reports and has effectively done so; 

–  where all shareholders agree that they do not need it. 

–  That copies of the documents set out in paragraph 1 of that article can also be sent 
by  electronic  mail  if  the  shareholder  generally  has  agreed  to  using  this  way  of 
communication,  e.g.  by  providing  the  company  with  his/her  e-mail  address. 
Although the current text does not exclude that the copy be in electronic form, so 
far  is  not  clear  under  which  conditions  the  electronic  means  can  be  used  by  the 
company. Currently, the shareholder could always insist on receiving a paper copy 
which would not be the case any more if the provision is changed as suggested; 

–  That,  instead  of  making  the  documents  available  at  the  place  of  its  registered 
office,  the  company  can  post  it  on  its  website.  This  possibility  facilitates  the 
procedure  for  the  company  and  makes  the  documents  more  easily  accessible  for 
non-resident shareholders and, where the company allows open access to that site, 
also for creditors. Where the documents can be downloaded from the site, there is 
also no need to provide for a right of shareholders  to obtain an individual copy, 
taking  into  account  that  the  process  of  sending  (even  in  electronic  form)  creates 
unnecessary costs to the company. 

1.6. 

1.7. 

In point 6, it is proposed to align the mechanism of the creditor protection under the 
Third  Directive  with  the  mechanism  that  was  introduced  into  the  Second  Directive 
by Directive 2006/68/EC. 

Point 7 is the  consequence  of the proposal, in Article 4(2)  and (3), to centralise  all 
provisions on exemptions from the reporting requirement under the Second Directive 
in that directive itself. 

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1.8. 

Points 8 to 12 aim at making the current Member State options, in Articles 24 to 29 
Third Directive, to allow for simplified mergers mandatory for Member States. Point 
11, furthermore, aims at simplifying the current wording of Article 27. 

2. 

Article 2: Amendment of the Sixth Directive 

Most  modifications  that  are  proposed  in  this  article  mirror  those  proposed  for  the 
Third Directive. For the explanation of the changes, reference therefore can be made 
to  point  1  above.  Only  on  the  possibility  of  shareholders  to  waive  the  reporting 
requirements,  the  technique  of  the  proposals  under  points  3  and  5  (with  a  view  to 
Article  9(1)(c))  differs  slightly  from  that  used  in  the  case  of  the  Third  Directive, 
given  that  in  the  Sixth  Directive,  these  possibilities  for  waivers  are  centralised  in 
Article 10. 

Furthermore, under point 8, it is proposed to delete point (c) of Article 20, taking into 
account that in the situation described by Article 20 all shareholders are involved in 
the  establishment  of  the  draft  terms  of  division.  Therefore,  there  is  no  need  to 
provide  them  with  the  minority  right  to  call  for  a  general  meeting,  as  currently  the 
case. 

3. 

Article 3: Amendment of the Cross-border mergers Directive 

Point  1  of  Article  3  mirrors  the  changes  proposed  for  the  Third  and  the  Sixth 
Directives with a view to the disclosure of the draft terms of merger. 

The addition, to Article 15(2) proposed in point 2 aims at taking account of the fact 
that, with the changes proposed in Article 1 and 2, Member States, in future, should 
not be able any more to require the reports referred to in that provision in all cases. 

4. 

Article 4: Amendment of the Second Directive 

4.1. 

Point 1 contains the same change as the one proposed for the Third Directive. 

4.2. 

Points 2 and 3 aim at centralising the exemption possibility, for Member States, from 
the requirement for an expert report on contributions in-kind in the Second Directive. 
At the same time, also an exemption possibility with a view to divisions is proposed, 
in order to align these rules with those on mergers. Although there is no obligation, 
in  the  directives  on  mergers  and  divisions,  to  make  the  expert  reports  required  by 
these directives available to creditors (contrary to the report referred to in Article 10 
Second Directive) creditors will in practice have access to it, in particular where the 
report is posted on the internet. 

However, where shareholders make use of the possibility to waive the expert report 
under  the  Third,  the  Sixth  or  the  Cross-border  mergers  Directive  the  obligation  to 
draw  up  a  report  on  the  contribution  in-kind  should  continue  to  apply,  in  order  to 
allow for a sufficient degree of creditor protection. 

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2008/0182 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

amending Council Directives 77/91/EEC, 78/855/EEC and 82/891/EECand 
Directive 2005/56/EC as regards reporting and documentation requirements in the case 
of merger and divisions 

THE EUROPAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the Commission17, 

Having regard to the opinion of the European Economic and Social Committee18, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty19, 

Whereas: 

(1) 

(2) 

(3) 

The  European  Council  agreed,  at  its  meeting  on  8  and  9  March  2007,  that 
administrative burdens on companies should be reduced by 25% by the year 2012 in 
order to enhance the competitiveness of companies in the Community. 

Company  law  has  been  identified  as  one  area  that  contains  a  high  number  of 
information obligations for companies, some of which seem outdated or excessive. It 
is therefore appropriate to review those obligations and, where appropriate, to reduce 
the  burdens  weighing  on  companies  within  the  Community  to  the  minimum  that  is 
necessary to ensure the protection of the interests of other stakeholders. 

The  scope  of  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 equivalent20 and of the Third Council Directive 78/855/EEC 
of  9  October  1978  based  on  Article  54  (3)  (g)  of  the  Treaty  concerning  mergers  of 

17 
18 
19 
20 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ L 26, 31.1.1977, p. 1. 

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(4) 

(5) 

(6) 

public limited liability companies21 should be adapted in order to reflect changes in the 
company law of Finland. 

Company  websites  offer,  in  certain  cases,  an  alternative  to  the  publication  using  the 
companies  registers.  Companies  should  therefore  have  the  possibility  to  use  their 
websites  for  the  publication  of  the  draft  terms  of  mergers  and  division  and  of  other 
documents that have to be made available to shareholders and creditors in the process. 

There  is  no  need  to  impose  the  requirement  to  draw  up  an  accounting  statement  in 
cases where an issuer of listed securities publishes half-yearly financial statements, in 
accordance with the rules of Directive 2004/109/EC of the European Parliament and of 
the Council of 15 December 2004 on the harmonisation of transparency requirements 
in relation to information about issuers whose securities are admitted to trading on a 
regulated market and amending Directive 2001/34/EC22. 

and 

An independent expert report as provided for under Directive 77/91/EEC is often not 
needed  where  an  expert  report  has  to  be  drawn  up  also  under  the  rules  of 
Directive 78/855/EEC 
the  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  companies23.  Member  States  should  therefore  have  the 
possibility  to  dispense  companies  from  the  reporting  requirement  under  the  Second 
Directive in these cases or to provide that both reports may be established by the same 
expert. 

(7)  Mergers  between  parent  companies  and  their  subsidiaries  have  a  reduced  economic 
impact  on  shareholders  and  creditors.  The  same  applies  to  certain  divisions,  in 
particular  when  companies  are  split  in  new  companies  that  are  owned  by  the 
shareholders  in  the  proportion  to  their  rights  in  the  company  being  divided.  In  these 
cases, 
the  reporting  requirements  deriving  from  Directives  78/855/EEC  and 
82/891/EEC should therefore be reduced. 

(8) 

Since the objectives of this Directive, namely reducing administrative burdens relating 
in  particular  to  publication  and  documentation  obligations  of  public-limited  liability 
companies within the Community, cannot be sufficiently achieved by Member States 
and can therefore, by reason of the scale and effects, be better achieved at Community 
level,  the  Community  may  adopt  measures  in  accordance  with  the  principle  of 
subsidiarity as  set out in  Article 5 of  the Treaty. In accordance with the principle of 
proportionality,  as  set  out  in  that  Article,  this  Directive  does  not  go  beyond  what  is 
necessary in order to achieve those objectives. 

(9) 

Directives 77/91/EEC, 78/855/EEC, 82/891/EEC and 2005/56/EC should therefore be 
amended accordingly, 

21 
22 
23 

OJ L 295, 20.10.1978, p. 36. 
OJ L 390, 31.12.2004, p. 38 
OJ L 378, 31.12.1982, p. 47. 

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HAVE ADOPTED THIS DIRECTIVE: 

Article 1 
Amendments to Directive 78/855/EEC 

Directive 78/855/EC is amended as follows: 

1. 

2. 

In  Article  1(1),  the  fourteenth  indent  is  replaced  by  the  following.  "-  Finland: 
julkinen osakeyhtiö/publikt aktiebolag". 

In Article 6, the following paragraph is added: 

Such  publication  shall  not  be  required  from  a  company  if,  for  a  continuous  period 
beginning not later than one month before the day fixed for the general meeting, it 
makes  available  the  draft  terms  of  merger on  its  own  or  on  any  other  Internet  site. 
Where a company makes use of this possibility it shall publish a reference that gives 
access  to  that  Internet  site  on  the  central  electronic  platform  referred  to  in 
Article 3(4)  of  Directive  68/151/EEC.  That  reference  shall  include  the  date  of  the 
publication of the draft terms of merger on the Internet site." 

3. 

In Article 8 the following paragraph is added: 

"For the purposes of point (b) of the first paragraph, Article 11(2), (3) and (4) shall 
apply;" 

4. 

Article 9 is replaced by the following: 

"Article 9 

1. The administration 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. 

2. The administrative or management bodies of each of the companies involved shall 
inform the general meeting of their company and the administrative or management 
bodies  of  the  other  companies  involved  so  that  they  can  inform  their  respective 
general meetings of any material change in the assets and liabilities between the date 
of  preparation  of  the  draft  terms  of  merger  and  the  date  of  the  general  meetings 
which are to decide on the draft terms of merger. 

3. The report referred to in paragraph 1 and the information referred to in paragraph 
2  shall  not  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." 

5. 

(a) 

Article 11 is amended as follows: 

Paragraph 1 is amended as follows: 

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(i) 

Point (d) is replaced by the following:  

"(d) 

where  applicable,  the  reports  of  the  administrative  or  management  bodies  of  the 
merging companies provided for in Article 9;" 

(ii) 

the following subparagraph is added: 

"For the purposes of point (c) of the first subparagraph, an accounting statement shall 
not be required in any of the following situations: 

(a)  if  the  company  publishes  a  half-yearly  financial  report,  in  accordance  with 
Article 5  of  Directive 2004/109/EC,  and  makes  it  available  to  shareholders,  in 
accordance with this paragraph; 

(b) 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;" 

(b) 

In paragraph 3, the following subparagraph is added: 

"Where a shareholder has consented to the use, by the company, of electronic means 
for conveying information, copies may be provided by electronic mail." 

(c) 

The following paragraph 4 is added: 

"4.  A  company  shall  not  be  required  to  make  the  documents  referred  to  in 
paragraph 1 available at its registered office if, for a continuous period beginning not 
later  than  one  month  before  the  day  fixed  for  the  general  meeting,  it  makes  them 
available on its Internet site. 

Paragraph  3  shall  not  apply  if  the  Internet  site  gives  shareholders  the  possibility  to 
save an electronic copy of the documents referred to in paragraph 1, throughout the 
period referred to in paragraph 1." 

6. 

Paragraph 2 of Article 13 is replaced by the following: 

"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.  

Member  States  shall  lay  down  the  conditions  for  the  protection  provided  for  in 
paragraph 1 and in the first subparagraph. In any event, Member States shall ensure 
that the creditors are authorised to apply to the appropriate administrative or judicial 
authority  for  adequate  safeguards  provided  that  they  can  credibly  demonstrate  that 
due  to  the  proposed  merger  the  satisfaction  of  their  claims  is  at  stake,  and  that  no 
adequate safeguards have been obtained from the company." 

7. 

8. 

In Article 23, paragraph 4 is deleted. 

Article 24 is amended as follows: 

(a) 

The second sentence is replaced by the following: 

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"Such operations shall be regulated by the provisions of Chapter II." 

(b) 

The following sentence is added: 

"However, Member States may not impose the requirements set out in Articles 5 (2) 
(b), (c) and (d), 9, 10, 11 (1) (d) and (e), 19 (1) (b), 20 and 21." 

9. 

(a) 

(b) 

(c) 

Article 25 is amended as follows: 

The introductory phrase is replaced by the following: 

"Member States shall not require approval of a merger pursuant to Article 24 by the 
general meeting if the following conditions are fulfilled:" 

In point (b), the second sentence is deleted; 

The following paragraph is added: 

"For the purposes of point (b) of the first paragraph, Article 11 (2), (3) and (4) shall 
apply." 

10. 

Articles 26 and 27 are replaced by the following: 

"Article 26 

"Articles  24  and  25  shall  apply  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 shall not require approval of the merger by the general meeting of 
the  acquiring  company  if  the  conditions  set  out  in  Article  8  (a),  (b)  and  (c)  are 
fulfilled." 

11. 

In Article 28, the introductory sentence is replaced by the following: "The Member 
States may not impose the requirements set out in Articles 9, 10 and 11 in the case of 
a merger within the meaning of Article 27 if the following conditions are fulfilled:" 

12. 

Article 29 is replaced by the following: 

"Article 29 

Articles  27  and  28  shall  apply  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 

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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." 

Article 2 
Amendments to Directive 82/891/EEC 

Directive 82/891/EEC is amended as follows: 

1. 

In Article 4, the following paragraph is added: 

"Such publication shall not be required from a company if, for a continuous period 
beginning not later than one month before the day fixed for the general meeting, it 
makes available the draft terms of division on its own or on any other Internet site. 
Where a company makes use of this possibility it shall publish a reference that gives 
access  to  that  Internet  site  on  the  central  electronic  platform  referred  to  in 
Article 3 (4)  of  Directive  68/151/EEC.  That  reference  shall  include  the  date  of  the 
publication of the draft terms of division on the Internet site." 

2. 

In Article 6, the following paragraph is added: 

"For the purposes of point (b) of the first paragraph, Article 9 (2), (3) and (4) shall 
apply;" 

3. 

In Article 7(2), the second subparagraph is replaced by the following: 

"Where applicable, it shall disclose the preparation of the report on the consideration 
other than in cash referred to in Article 27 (2) of Directive 77/91/EEC for recipient 
companies and the register where that report must be lodged." 

4. 

5. 

In Article 8, paragraph 3 is deleted. 

Article 9 is amended as follows: 

(a) 

In paragraph 1, the following subparagraph is added: 

"For the purposes of point (c) of the first subparagraph, an accounting statement shall 
not be required if the company publishes a half-yearly financial report, in accordance 
with  Article 5  of  Directive 2004/109/EC,  and  makes  it  available  to  shareholders,  in 
accordance with this paragraph;" 

(b) 

In paragraph 3, the following subparagraph is added: 

"Where a shareholder has consented to the use, by the company, of electronic means 
for conveying information, the company may provide the copies by electronic mail." 

(c) 

The following paragraph 4 is added: 

"4.  A  company  shall  not  be  required  to  make  the  documents  referred  to  in 
paragraph 1 available at its registered office if, for a continuous period beginning not 

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later  than  one  month  before  the  day  fixed  for  the  general  meeting,  it  makes  them 
available on its Internet site. 

Paragraph  3  shall  not  apply  if  the  Internet  site  gives  shareholders  the  possibility  to 
save an electronic copy of the documents referred to in paragraph 1, throughout the 
period referred to in paragraph 1." 

6. 

Article 10 is replaced by the following: 

"Article 10 

The requirements set out in Articles 7 and 8, in points (c), (d) and (e) of Article 9(1) 
and in Article 9(2) and (3) shall not apply if all the shareholders and the holders of 
other securities giving the right to vote of the companies involved in a division have 
so agreed." 

7. 

Paragraph 2 of Article 12 is replaced by the following: 

"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 company being divided and that of the company to which the obligation will 
be  transferred  in  accordance  with  the  draft  terms  of  division  make  such  protection 
necessary and where those creditors do not already have such safeguards.  

Member  States  shall  lay  down  the  conditions  for  the  protection  provided  for  in 
paragraph 1 and in the first subparagraph. In any event, Member States shall ensure 
that the creditors are authorised to apply to the appropriate administrative or judicial 
authority  for  adequate  safeguards  provided  that  they  can  credibly  demonstrate  that 
due  to the  proposed division the satisfaction  of  their  claims  is  at stake, and that no 
adequate safeguards have been obtained from the company." 

Article 20 is amended as follows: 

The introductory sentence is replaced by the following: 

"Without  prejudice  to  Article  6,  Member  States  shall  not  require  approval  of  the 
division  by  the  general  meeting  of  the  company  being  divided  if  the  recipient 
companies  together  hold  all  the  shares  of  the  company  being  divided  and  the 
following conditions are fulfilled:" 

In point (b), the second sentence is deleted; 

Point (c) is deleted; 

The following paragraph is added: 

"For  the  purposes  of  point  (b)  of  the  first  paragraph,  Article  9  (2),  (3)  and (4)  and 
Article 10 shall apply." 

Article 22 is amended as follows: 

Paragraph 4 is deleted; 

8. 

(a) 

(b) 

(c) 

(d) 

9. 

(a) 

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(b) 

Paragraph 5 is replaced by the following: 

"5.  Member  States  shall  not  impose  the  requirements  set  out  in  Articles  7, 8  and 
9 (1) (c), (d) and (e) where the shares in each of the new companies are allocated to 
the  shareholders  of  the  company  being  divided  in  proportion  to  their  rights  in  the 
capital of that company." 

Article 3 
Amendments to Directive 2005/56/EC 

1. 

In Article 6(1), the following subparagraph is added: 

"A publication in accordance with the first subparagraph shall not be required from a 
company  if,  for  a  continuous  period  beginning  not  later  than  one  month  before  the 
day  fixed  for  the  general  meeting,  the  company  makes  available  the  draft  terms  of 
merger on its own or on any other Internet site. Where a company makes use of this 
possibility  it  shall  publish  a  reference  that  gives  access  to  that  Internet  site  on  the 
central electronic platform referred to in Article 3 (4) of Directive 68/151/EEC. The 
reference shall include the date of the publication of the draft terms of merger on the 
Internet site." 

2. 

In Article 15, paragraph 2 is replaced by the following: 

"2. Where a cross-border merger by acquisition is carried out by a company which 
holds 90 % or more but not all of the shares and other securities conferring the right 
to vote at general meetings of the company or companies being acquired, reports by 
an independent expert or experts and the documents necessary for scrutiny shall be 
required  only  to  the  extent  that  the  national  law  governing  either  the  acquiring 
company  or  the  company  being  acquired  so  requires,  in  accordance  with  Directive 
78/855/EEC." 

Article 4 
Amendments to Directive 77/91/EEC 

Directive 77/91/EEC is amended as follows: 

1. 

2. 

In  Article  1(1),  the  fourteenth  indent  is  replaced  by  the  following.  "-  in  Finland: 
julkinen osakeyhtiö/publikt aktiebolag". 

In Article 10, the following paragraph 5 is added: 

"5.  Member  States  may  decide  not  to  apply  this  Article  to  the  formation  of  a  new 
company  by  way  of  merger  or  division  where  an  expert  report  under  Article 10  of 
Council  Directive 78/855/EEC24,  Article  8  of  Council  Directive  82/891/EEC25  or 

24 
25 

OJ L 295, 20.10.1978, p. 36. 
OJ L 378, 31.12.1982, p. 47. 

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Article 8  of  Directive 2005/56/EC  of  the  European  Parliament  and  the  Council26  is 
established.  

Where Member States decide to apply this Article in the cases referred to in the first 
subparagraph,  they  may  provide  that  the  report  under  this  Article  and  the  report 
under  Article  10  of  Directive 78/855/EEC, 
the  report  under  Article  8  of 
Directive 82/891/EEC  or  the  report  under  Article 8  of  Directive 2005/56/EC  of  the 
European  Parliament  and  the  Council  may  be  drawn  up  by  the  same  expert  or 
experts." 

3. 

In Article 27, paragraph 3 is replaced by the following: 

"3. Member States may decide not to apply paragraph 2 in the event of an increase in 
subscribed  capital  made  in  order  to  give  effect  to  a  merger,  a  division  or  a  public 
offer  for  the  purchase  or  exchange  of  shares  and  to  pay  the  shareholders  of  the 
company which is being absorbed, divided or which is the object of the public offer 
for the purchase or exchange of shares.  

However, in the cases of a merger or a division, this shall only apply where an expert 
report under Article 10 of Directive 78/855/EEC, Article 8 of Directive 82/891/EEC 
or Article 8 of Directive 2005/56/EC is drawn up.  

Where  Member  States  decide  to  apply  paragraph  2  in  the  case  of  a  merger  or  a 
division,  they  may  provide  that  the  report  under  this  Article  and  the  report  under 
Article  10  of  Directive  78/855/EEC, 
report  under  Article  8  of 
Directive 82/891/EEC  or  the  report  under  Article 8  of  Directive 2005/56/EC  of  the 
European  Parliament  and  the  Council  may  be  drawn  up  by  the  same  expert  or 
experts." 

the 

Article 5 
Transposition 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  30  June  2011  at  the  latest. 
They  shall  forthwith  communicate  to  the  Commission  the  text  of  those  provisions 
and a correlation table between those provisions and this Directive. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

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. 

26 

OJ L 310, 25.11.2005, p. 1 

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

Article 6 

Article 7 

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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