Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning mergers of public limited liability companies
Date: 2010-08-30
Institutions: European Commission
Subjects: disclosure of information, member country, merger, public limited company

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EUROPEAN COMMISSION 

Brussels, 30.8.2010 
COM(2010) 391 final 

2008/0009 (COD) 

Amended proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

concerning mergers of public limited liability companies 

(Codification) 

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1. 

2. 

3. 

EXPLANATORY MEMORANDUM 

On  29  January  2008,  the  Commission  presented  a  proposal  for  a  Directive  of  the 
European  Parliament 
codifying  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 companies1. 

the  Council 

and 

of 

In  its  opinion  of  27  February  2008  the  Consultative  Working  Party  of  the  legal 
services  set  up  under  the  Interinstitutional  Agreement  of  20  December  1994  on  an 
accelerated  working  method  for  official  codification  of  legislative  texts2  stated  that 
the  proposal  referred  to  in  point  1  does  indeed  confine  itself  to  straightforward 
codification, without any substantive changes to the acts covered by it. 

Having regard to the amendments adopted3 in respect of the proposal referred to in 
point  1  and  in  view  of  the  work  already  carried  out  in  the  course  of  the  legislative 
procedure,  the  Commission  has  decided  to  present  –  in  accordance  with 
Article 293(2) of the TFEU – an amended proposal for codification of the Directive 
in question. 

This amended proposal also takes account of the purely formal or editorial changes 
proposed  by  the  Consultative  Working  Party  of  the  legal  services,  where  these  are 
considered justified4. 

4. 

The changes made in this amended proposal, compared with the proposal referred to 
in point 1, are the following: 

(1) 

(2) 

to 

"Article 

50(2)(g) 

of 
is  replaced  by  a  reference 

In  recital  2,  the  reference  to  "Article  44(2)(g)  of  the  Treaty"  is  replaced  by  a 
to 
reference 
"Directive 68/151/EEC" 
to  "First  Council 
Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, 
for  the  protection  of  the  interests  of  members  and  others,  are  required  by 
Member  States  of  companies  within  the  meaning  of  the  second  paragraph  of 
Article  58  of  the  Treaty,  with  a  view  to  making  such  safeguards  equivalent 
throughout the Community". 

the  Treaty", 

that 

and 

In recital 8, the wording "Directive [.../.../...] of the European Parliament and 
of the Council of […]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  48  of  the 
Treaty,  with  a  view  to  making  such  safeguards  equivalent  throughout  the 
Community"  is  replaced  by  the  wording  "Directive  2009/101/EC  of  the 
European  Parliament  and  of  the  Council  of  16  September  2009  on 
coordination  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". 

1 
2 
3 
4 

COM(2008) 26 final. 
OJ C 102, 4.4.1996, p. 2. 
OJ L 259, 2.10.2009, p. 14. 
Cf. the opinion of the Consultative Working Party of 27.2.2008. 

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(3) 

In Article 1(1), the indent relating to Finland is replaced by the following: 

"Finland: julkinen osakeyhtiö/publikt aktiebolag". 

(4) 

In Article 1(2), in Article 6, in Article 18(1), in Article 22(1)(e) and (f), and in 
the first subparagraph of Article 23(1), the reference to " Directive […/…/…]" 
is replaced by "Directive 2009/101/EC". 

(5) 

In Article 6, the following paragraphs are added: 

"Any  of  the  merging  companies  shall  be  exempt  from  the  publication 
requirement  laid  down  in  Article  3  of  Directive  2009/101/EC  if,  for  a 
continuous  period  beginning  at  least  one  month  before  the  day  fixed  for  the 
general meeting which is to decide on the draft terms of merger and ending not 
earlier  than  the  conclusion  of  that  meeting,  it  makes  the  draft  terms  of  such 
merger  available  on  its  website  free  of  charge  for  the  public.  Member  States 
shall not subject that exemption to any requirements or constraints other than 
those which are necessary in order to ensure the security of the website and the 
authenticity  of  the  documents,  and  may  impose  such  requirements  or 
constraints  only  to  the  extent  that  they  are  proportionate  in  order  to  achieve 
those objectives. 

By way of derogation from the second paragraph, Member States may require 
that  publication  be  effected  via  the  central  electronic  platform  referred  to  in 
Article  3(5)  of  Directive  2009/101/EC.  Member  States  may  alternatively 
require that such publication be made on any other website designated by them 
for  that  purpose.  Where  Member  States  avail  themselves  of  one  of  those 
possibilities,  they  shall  ensure  that  companies  are  not  charged  a  specific  fee 
for such publication. 

Where a website other than the central electronic platform is used, a reference 
giving  access  to  that  website  shall  be  published  on  the  central  electronic 
platform at least one month before the day fixed for the general meeting. That 
reference shall include the date of publication of the draft terms of merger on 
the  website  and  shall  be  accessible  to  the  public  free  of  charge.  Companies 
shall not be charged a specific fee for such publication. 

The  prohibition  precluding  the  charging  to  companies  of  a  specific  fee  for 
publication, laid down in the third and fourth paragraphs, shall not affect the 
ability  of  Member  States  to  pass  on  to  companies  the  costs  in  respect  of  the 
central electronic platform. 

Member  States  may  require  companies  to  maintain  the  information  for  a 
specific period after the general meeting on their website or, where applicable, 
on  the  central  electronic  platform  or  the  other  website  designated  by  the 
Member State  concerned.  Member  States  may  determine  the  consequences  of 
temporary  disruption  of  access  to  the  website  or  to  the  central  electronic 
platform, caused by technical or other factors.". 

(6) 

In Article 7(3), the words "referred to in paragraph 2" are deleted.[EP/Council 
want to go back to original wording] 

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(7) 

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.". 

(8)  The wording of Article 9 is replaced by the following wording: 

"1.  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. 

That  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  the  latter  may  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.  Member  States  may  provide  that  the  report  referred  to  in  paragraph  1 
and/or 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.". 

(9)  The wording of Article 11(1)(c) and (d) is replaced by the following wording: 

"(c)  where applicable, 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)  where  applicable,  the  reports  of  the  administrative  or  management 

bodies of the merging companies provided for in Article 9;". 

(10)  In Article 11(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 of the European 
Parliament  and  of  the  Council  and  makes  it  available  to  shareholders  in 
accordance  with  this  paragraph.  Furthermore,  Member  States  may  provide 
that an accounting statement 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.".  As  a  consequence,  the 
reference  to  "paragraph  1(c)"  in  Article  11(2)  is  replaced  by  a  reference  to 
"point (c) of the first subparagraph of paragraph 1". 

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(11)  In Article 11(3), the following subparagraph is added: 

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

(12)  In Article 11, the following paragraph is added: 

"4.  A company shall be exempt from the requirement to make the documents 
referred  to  in  paragraph  1  available  at  its  registered  office  if,  for  a 
continuous period beginning at least one month before the day fixed for 
the general meeting which is to decide on the draft terms of merger and 
ending  not  earlier  than  the  conclusion  of  that  meeting,  it  makes  them 
available on its website. Member States shall not subject that exemption 
to any requirements or constraints other than those which are necessary 
in order to ensure the security of the website and the authenticity of the 
documents and may impose such requirements or constraints only to the 
extent that they are proportionate in order to achieve those objectives. 

Paragraph  3  shall  not  apply  if  the  website  gives  shareholders  the 
possibility, throughout the period referred to in the first subparagraph of 
this  paragraph,  of  downloading  and  printing  the  documents  referred  to 
in paragraph 1. However, in that case Member States may provide that 
the company is to make those documents available at its registered office 
for consultation by the shareholders. 

Member  States  may  require  companies  to  maintain  the  information  on 
their  website  for  a  specific  period  after  the  general  meeting.  Member 
States may determine the consequences of temporary disruption of access 
to the website caused by technical or other factors.". 

(13)  Article 13(2) is replaced by the following: 

"2.  To  that  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  of  this  paragraph.  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 merger the satisfaction of their claims is at stake and that no 
adequate safeguards have been obtained from the company.". 

(14)  In  Article  19(3),  the  initial  words  "Paragraph  1"  are  replaced  by  the  words 
"The  foregoing".  [EP/Council  want  to  go  back  to  original  wording] 
[see consolidated version in Eurlex] 

(15)  Article 23(3) is deleted. 

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(16)  The wording of Article 24 is replaced by the following wording: 

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

(17)  The wording of Article 25 is replaced by the following wording: 

"Member  States  shall  not  apply  Article  7  to  the  operations  referred  to  in 
Article 24 if the following conditions are fulfilled: 

(a) 

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; 

(b)  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; 

(c)  Article 8(c) must apply. 

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

(18)  The wording of Article 27 is replaced by the following wording: 

"Where a 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, 
Member States shall not require approval of the merger by the general meeting 
of the acquiring company if the following conditions are fulfilled: 

(a) 

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; 

(b)  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  points  (a),  (b)  and,  where  applicable,  (c),  (d)  and  (e)  of 
Article 11(1) at the company's registered office; 

(c)  Article 8(c) must apply. 

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

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(19)  The wording of Article 28 is replaced by the following wording: 

"Member  States  shall  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: 

(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 or 
by  an  administrative  authority  designated  by  the  Member State  for  that 
purpose. 

A  Member State  need  not  apply  the  first  paragraph  if  the  laws  of  that 
Member State  entitle  the  acquiring  company,  without  a  previous  public 
takeover  offer,  to  require  all  the  holders  of  the  remaining  securities  of  the 
company or companies to be acquired to sell those securities to it prior to the 
merger at a fair price.". 

(20)  The wording of Article 33 is replaced by the following wording: 

"This Directive shall enter into force on 1 July 2011.". 

(21)  In Annex I, Part A, the following entry is added: 

"Directive  2009/109/EC  of  the  European  Parliament  and  of  the  Council 
(OJ L 259, 2.10.2009, p. 14) / Article 2 only". 

(22)  In Annex I, Part B, the following entry is added: 

"2009/109/EC / 30 June 2011". 

(23)  In Annex II, the references to "Chapter I", "Chapters I to VI" and "Chapters II 

to VII" are deleted. 

5. 

To  facilitate  reading  and  examination,  the  full  text  of  the  amended  proposal  for 
codification is attached hereto. 

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

2008/0009 (COD) 

Amended proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

concerning mergers of public limited liability companies 

(Codification) 
(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article ⌦ 50(2) ⌫(g) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Economic and Social Committee5, 

Acting in accordance with the ordinary legislative procedure,  

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  companies6  has  been 
substantially amended several times7. In the interests of clarity and rationality the said 
Directive should be codified. 

(cid:208)  

(2) 

The  coordination  provided  for  in  Article  ⌦ 50(2) ⌫(g)  of  the  Treaty  and  in  the 
general programme for the abolition of restrictions on freedom of establishment8 was 
begun with First Council Directive 68/151/EEC of 9 March 1968 on coordination of 

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

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6 
7 
8 

OJ C […], […], p. […]. 
OJ L 295, 20.10.1978, p. 36.  
See Annex I, Part A. 
OJ 2, 15.1.1962, p. 36/62. 

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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 Community9. 

(cid:208) 78/855/EEC recital 2 

(3) 

This  coordination  was  continued,  as  regards  the  formation  of  public  limited  liability 
companies  and  the  maintenance  and  alteration  of  their  capital,  with  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  equivalent10, 
and, as regards the annual accounts of certain types of companies, with 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 companies11. 

(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 
coordinated  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 coordination 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  a  merger  by  an  independent  expert  for  the 
shareholders if all the shareholders agree that it may be dispensed with. ⌫ 

(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 

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

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10 
11 

OJ L 65, 14.3.1968, p. 8.  
OJ L 26, 31.1.1977, p. 1.  
OJ L 222, 14.8.1978, p. 11.  

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the  Member  States  relating  to  the  safeguarding  of  employees'  rights  in  the  event  of 
transfers of undertakings, businesses or parts of undertakings or businesses12. 

(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  2009/101/EC  of  the  European  Parliament 
and of the Council of 16 September 2009 on coordination 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  13  ⌦ 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 (adapted) 

(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. 

(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)  

12 
13 

OJ ⌦ L 82, 22.3.2001, p. 16. ⌫  
OJ L 258, 1.10.2009, p. 11. 

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HAVE ADOPTED THIS DIRECTIVE: 

(cid:208) 78/855/EEC 

CHAPTER I 

Scope 

Article 1 

1. The coordination 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; 

(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 

– 

Bulgaria: 

акционерно дружество; 

– 

the Czech Republic: 

akciová společnost; 

– 

– 

Denmark: 

aktieselskaber; 

Germany: 

die Aktiengesellschaft; 

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– 

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; 

– 

– 

France: 

la société anonyme; 

Italy: 

la società per azioni; 

– 

Cyprus: 

(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 

(cid:208) 78/855/EEC 

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

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∆ηµόσιες 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; 

– 

the Netherlands: 

de naamloze vennootschap; 

(cid:208) 78/855/EEC 

– 

Austria: 

die Aktiengesellschaft; 

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

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– 

Poland: 

spółka akcyjna; 

(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: 

akciová spoločnosť; 

– 

Finland: 

julkinen osakeyhtiö/publikt aktiebolag; 

(cid:208) 2009/109/EC Art. 2 pt. 1 

– 

Sweden: 

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

EN 

14 

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aktiebolag; 

– 

the United Kingdom: 

(cid:208) 78/855/EEC 

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

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 2009/101/EC. 

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 

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

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. 

(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 

EN 

15 

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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) 

(d) 

(e) 

(f) 

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; 

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; 

EN 

16 

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(g) 

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 2009/101/EC, 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) 2009/109/EC Art. 2 pt. 2 

Any of the merging companies shall be exempt from the publication requirement laid down in 
Article 3 of Directive 2009/101/EC if, for a continuous period beginning at least one month 
before the day fixed for the general meeting which is to decide on the draft terms of merger 
and ending not earlier than the conclusion of that  meeting,  it makes the draft terms of such 
merger available on its website free of charge for the public. Member States shall not subject 
that  exemption  to  any  requirements  or  constraints  other  than  those  which  are  necessary  in 
order  to  ensure  the  security  of  the  website  and  the  authenticity  of  the  documents,  and  may 
impose such requirements or constraints only to the extent that they are proportionate in order 
to achieve those objectives. 

By way of derogation from the second paragraph, Member States may require that publication 
be  effected  via  the  central  electronic  platform  referred  to  in  Article  3(5)  of  Directive 
2009/101/EC . Member States may alternatively require that such publication be made on any 
other website designated by them for that purpose. Where Member States avail themselves of 
one of those possibilities, they shall ensure that companies are not charged a specific fee for 
such publication. 

Where a website other than the central electronic platform is used, a reference giving access 
to that website shall be published on the central electronic platform at least one month before 
the day fixed for the general meeting. That reference shall include the date of publication of 
the draft terms of merger on the website and shall be accessible to the public free of charge. 
Companies shall not be charged a specific fee for such publication. 

The  prohibition  precluding  the  charging  to  companies  of  a  specific  fee  for  publication,  laid 
down in the third and fourth paragraphs, shall not affect the ability of Member States to pass 
on to companies the costs in respect of the central electronic platform. 

Member States may require companies to maintain the information for a specific period after 
the general meeting on their website or, where applicable, on the central electronic platform 
or  the  other  website  designated  by  the  Member State  concerned.  Member  States  may 
determine the consequences of temporary disruption of access to the website or to the central 
electronic platform, caused by technical or other factors. 

EN 

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(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. 

(cid:208) 78/855/EEC 

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 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. 

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: 

Article 8 

(a) 

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 ⌫ to decide on the draft terms of merger; 

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

(cid:208) 78/855/EEC 

(b) 

(c) 

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 

EN 

18 

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percentage may not be fixed at more than 5%; Member States may, however, provide 
for the exclusion of non-voting shares from this calculation. 

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

(cid:208) 2009/109/EC Art. 2 pt. 3 

(cid:208) 2009/109/EC Art. 2 pt. 4 

Article 9 

1. 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. 

That 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 the latter may 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.  Member  States  may  provide  that  the  report  referred  to  in  paragraph  1  and/or  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. 

(cid:208) 78/855/EEC 

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) 

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

EN 

19 

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(b) 

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. 

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; 

(cid:208) 2009/109/EC Art. 2 pt. 5(a)(i) 

where applicable, 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) 

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

(e) 

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

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

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(cid:208) 2009/109/EC Art. 2 pt. 5(a)(ii) 

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  of  the  European  Parliament  and  of  the  Council14  and  makes  it 
available to shareholders in accordance with this paragraph. Furthermore, Member States may 
provide  that  an  accounting  statement  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. 

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

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

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. 

(cid:208) 78/855/EEC 

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. 

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

(cid:208) 2009/109/EC Art. 2 pt. 5(b) 

14 

OJ L 390, 31.12.2004, p. 38. 

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21 

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(cid:208) 2009/109/EC Art. 2 pt. 5(c) 

4.  A  company  shall  be  exempt  from  the  requirement  to  make  the  documents  referred  to  in 
paragraph 1 available at its registered office if, for a continuous period beginning at least one 
month before the day fixed for the general meeting which is to decide on the draft terms of 
merger and ending not earlier than the conclusion of that meeting, it makes them available on 
its website. Member States shall not subject that exemption to any requirements or constraints 
other  than  those  which  are  necessary  in  order  to  ensure  the  security  of  the  website  and  the 
authenticity  of  the  documents  and  may  impose  such  requirements  or  constraints  only  to  the 
extent that they are proportionate in order to achieve those objectives. 

Paragraph 3 shall not apply if the website gives shareholders the possibility, throughout the 
period referred to in the first subparagraph of this paragraph, of downloading and printing the 
documents referred to in paragraph 1. However, in that case Member States may provide that 
the company is to make those documents available at its registered office for consultation by 
the shareholders. 

Member  States  may  require  companies  to  maintain  the  information  on  their  website  for  a 
specific period after the general meeting. Member States may determine the consequences of 
temporary disruption of access to the website caused by technical or other factors. 

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

Article 12 

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

(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 that 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. 

(cid:208) 2009/109/EC Art. 2 pt. 6 

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Member States shall lay down the conditions for the protection provided for in paragraph 1 
and in the first subparagraph of this paragraph. 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  merger  the 
satisfaction  of  their  claims  is  at  stake  and  that  no  adequate  safeguards  have  been  obtained 
from the company. 

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

(cid:208) 78/855/EEC 

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. 

Article 15 

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 
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 

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Article 18 

1. A merger must be publicised in the manner prescribed by the laws of each Member State, 
in  accordance  with  Article  3  of  Directive  2009/101/EC,  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. 

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. The foregoing 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. 

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. 

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 

Article 21 

EN 

24 

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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) 

(g) 

(h) 

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; 

a judgement declaring a merger void shall be published in the manner prescribed by 
the  laws  of  each  Member State  in  accordance  with  Article 3  of  Directive  
2009/101/EC; 

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 2009/101/EC; 

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

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 ⌫. 

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(cid:208) 78/855/EEC 

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 
2009/101/EC,  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. 

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

(cid:208) 78/855/EEC 
(cid:206)1 2009/109/EC Art. 2 pt. 8(a) 
(cid:206)2 2009/109/EC Art. 2 pt. 8(b) 

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. 

CHAPTER V 

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

Article 24 

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.  (cid:206)1 Such 
operations shall be regulated by the provisions of Chapter II.  (cid:206)2 However, Member States 
shall not impose the requirements set out in points (b), (c) and (d) of Article 5(2), Articles 9 
and 10, Article 11(1)(d) and (e), Article 19(1)(b) and Articles 20 and 21.  

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Article 25 

Member  States  shall  not  apply  Article  7  to  the  operations  referred  to  in  Article  24  if  the 
following conditions are fulfilled: 

(cid:208) 2009/109/EC Art. 2 pt. 9(a) 

(a) 

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; 

(cid:208) 78/855/EEC 

(b) 

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; 

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

(c) 

Article 8(c) must apply. 

(cid:208) 78/855/EEC 

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

(cid:208) 2009/109/EC Art. 2 pt. 9(c) 

(cid:208) 78/855/EEC 

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. 

EN 

27 

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Article 27 

(cid:208) 2009/109/EC Art. 2 pt. 10(a) 

Where a 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,  Member  States  shall  not  require  approval  of  the 
merger  by  the  general  meeting  of  the  acquiring  company  if  the  following  conditions  are 
fulfilled: 

(a) 

(b) 

(cid:208) 78/855/EEC 

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; 

(cid:208) 2009/109/EC Art. 2 pt. 10(b) 

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 
points (a), (b) and, where applicable, (c), (d) and (e) of Article 11(1) at the company's 
registered office; 

(c) 

Article 8(c) must apply. 

(cid:208) 78/855/EEC 

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

(cid:208) 2009/109/EC Art. 2 pt. 10(c) 

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(cid:208) 78/855/EEC 

Article 28 

Member States shall 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: 

(cid:208) 2009/109/EC Art. 2 pt. 11(a) 

(cid:208) 78/855/EEC 
(cid:206)1 2009/109/EC Art. 2 pt. 11(b) 

(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  (cid:206)1 or  by  an  administrative 
authority designated by the Member State for that purpose . 

A Member State need not apply the first paragraph if the laws of that Member State entitle the 
acquiring company, without a previous public takeover offer, to require all the holders of the 
remaining securities of the company or companies to be acquired to sell those securities to it 
prior to the merger at a fair price. 

(cid:208) 2009/109/EC Art. 2 pt. 11(c) 

(cid:208) 78/855/EEC 

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. 

EN 

29 

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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. 

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 July 2011. 

Article 33 

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(cid:208) 78/855/EEC 

Article 34 

This Directive is addressed to the Member States. 

Done at […], […] 

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) 

Directive 2009/109/EC of the 
European Parliament and of the Council 
(OJ L 259, 2.10.2009, p. 14) 

Article 2 only 

Article 2 only 

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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 

2009/109/EC 

30 June 2011 

_____________ 

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33 

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ANNEX II 

CORRELATION TABLE 

Directive 78/855/EEC 

This Directive 

Articles 1 – 31 

Articles 1 – 31 

Article 32 

_______ 

_______ 

Article 33 

______ 

______ 

______ 

Article 32 

Article 33 

Article 34 

Annex I 

Annex II 

_____________ 

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