Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 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 54 of the Treaty on the Functioning of the European Union, 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
Date: 2011-02-01
Institutions: European Commission
Subjects: codification of EU law, company law, legal status, protection of shareholders, public limited company, right of establishment, share capital

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EUROPEAN COMMISSION 

Brussels, 1.2.2011 
COM(2011) 29 final 

2011/0011 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

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 54 of the Treaty on the Functioning of the European Union, 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 

(Recast) 

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1. 

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3. 

4. 

5. 

6. 

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EXPLANATORY MEMORANDUM 

and  of 

On 16 September 2008, the Commission presented a proposal for a Directive of the 
European  Parliament 
codifying  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 equivalent1. 

the  Council 

In  its  opinion  of  16  October  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. 

On  26  August  2010  the  Commission  presented  an  amended  proposal3  for  the 
codification of Directive 77/91/EEC, following subsequent amendments to it. 

In  its  further  opinion  of  12  October  2010  the  Consultative  Working  Party  of  the 
Legal  Services  has  stated  that  that  amended  proposal  does  indeed  confine  itself  to 
straightforward codification, without any substantive changes to the acts covered by 
it. 

In  that  opinion  the  Consultative  Working  Party  of  the  Legal  Services  also 
acknowledged  that  Article  6(3)  of  Directive 77/91/EEC,  which  corresponds  to 
Article 6(2) in the proposed codified text, established a secondary legal basis. In the 
light of the judgment of the Court of Justice of 6 May 2008 in Case C-133/06, it was 
considered necessary to redraft Article 6(2) of the proposed codified text. Since such 
a  redrafting  would  imply  a  substantive  change,  and  would  therefore  go  beyond 
straightforward  codification,  it  was  considered  necessary  that  point  84  of  the 
Interinstitutional Agreement of 20 December 1994 - Accelerated working method for 
official  codification  of  legislative  texts  -  be  applied,  in  the  light  of  the  Joint 
declaration on that point5. 

The amendment to be made to Article 6(2) of the proposed codified text concerns the 
insertion  of  the  words  "the  European  Parliament  and"  before  the  words  "the 
Council", in order to confer on both institutions the competence to examine and, if 
need be, revise the amount referred to in Article 6(1). 

COM(2008) 544 final. 
OJ C 102, 4.4.1996, p. 2. 
COM(2010) 388 final. 
"Should it prove necessary during the legislative process to go beyond straightforward codification and 
make substantive changes, it will be the Commission's responsibility to submit any proposal(s), where 
appropriate". 
"The European Parliament, the Council and the Commission note that if it should appear necessary to 
go beyond straightforward codification and make substantive changes, the Commission will be able to 
choose,  case  by  case,  whether  to  recast  its  proposal  or  whether  to  submit  a  separate  proposal  for 
amendment, leaving its codification proposal on the table, and then, once the substantive change has 
been adopted, incorporate it into the proposal for codification". 

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7. 

It is therefore appropriate to transform the codification of Directive 77/91/EEC into a 
recast in order to incorporate the necessary amendment. 

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(cid:208) 77/91/EEC (adapted) 

2011/0011 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

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 ⌦ 54 ⌫ of the Treaty ⌦ on the Functioning of the European 
Union ⌫ , 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 

(Recast) 
(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 Committee6, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

6 

OJ C […], […], p. […]. 

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(1) 

(2) 

(cid:216) new 

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  equivalent7  has  been  substantially  amended  several  times8.  Since 
further amendments are to be made, it should be recast in the interests of clarity. 

(cid:208) 77/91/EEC recital 1 (adapted) 

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 establishment, 
which  was  begun  by  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  Community9,  is  especially  important  in  relation  to  public 
limited liability companies, because their activities predominate in the economy of the 
Member States and frequently extend beyond their national boundaries. 

(3) 

In order to ensure minimum equivalent protection for both shareholders and creditors 
of public limited liability companies, the coordination of national provisions relating 
to  their  formation  and  to  the  maintenance,  increase  or  reduction  of  their  capital  is 
particularly important. 

(cid:208) 77/91/EEC recital 2 

(4) 

In  the ⌦ Union ⌫  ,  the  statutes  or  instrument  of  incorporation  of  a  public  limited 
liability company must make it possible for any interested person to acquaint himself 
with  the  basic  particulars  of  the  company,  including  the  exact  composition  of  its 
capital. 

(cid:208) 77/91/EEC recital 3 (adapted) 

7 
8 
9 

OJ L 26, 31.1.1977, p. 1.  
See Annex II, Part A. 
OJ L 65, 14.3.1968, p. 8.  

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(5)  ⌦ Union ⌫  provisions  ⌦ are  necessary ⌫  for  maintaining  the  capital,  which 
constitutes the creditors' security, in particular by prohibiting any reduction thereof by 
distribution  to  shareholders  where  the  latter  are  not  entitled  to  it  and  by  imposing 
limits on the company's right to acquire its own shares. 

(cid:208) 77/91/EEC Recital 4 (adapted) 

(6) 

The  restrictions  on  a  company's  acquisition  of  its  own  shares  apply  not  only  to 
acquisitions made by a company itself but also to those made by any person acting in 
his own name but on the company's behalf. 

(cid:208) 92/101/EEC recital 2 

(7) 

(8) 

(cid:208) 92/101/EEC recital 3 

In order to prevent a public limited liability company from using another company in 
which it holds a majority of the voting rights or on which it can exercise a dominant 
influence to make such acquisitions without complying with the restrictions imposed 
in that respect, the arrangements governing a company's acquisition of its own shares 
should  be  extended  to  cover  the  most  important  and  most  frequent  cases  of  the 
acquisition  of  shares  by  such  other  companies.  Those  arrangements  should  be 
extended to cover subscription for shares in the public limited liability company. 

(cid:208) 92/101/EEC recital 4 (adapted) 

In order to prevent the circumvention of ⌦ this Directive, ⌫ companies governed by 
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  equivalent10  and  companies  governed  by  the  laws  of  third 
countries  and  having  comparable  legal  forms  should  also  be  covered  ⌦ by  the 
arrangements referred to in recital 7 ⌫. 

(cid:208) 92/101/EEC recital 5 

(9)  Where  the  relationship  between  a  public  limited  liability  company  and  another 
company such as referred to in recital 7 is only indirect, it would appear to be justified 
to relax the provisions applicable when that relationship is direct by providing for the 
suspension  of  voting  rights  as  a  minimum  measure  for  the  purpose  of  achieving  the 
aims of this Directive. 

10 

OJ L 258, 1.10.2009, p. 11. 

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(10)  Furthermore,  it  is  justifiable  to  exempt  cases  in  which  the  specific  nature  of  a 
professional  activity  rules  out  the  possibility  that  ⌦ the  attainment  of ⌫  the 
objectives of this Directive may be endangered. 

(cid:208) 92/101/EEC recital 7 (adapted) 

(cid:208) 77/91/EEC recital 5 (adapted) 

(11) 

It  is  necessary,  having  regard  to  the  objectives  of  Article ⌦ 50(2) ⌫ (g) ⌦ of  the 
Treaty ⌫, that the Member States' laws relating to the increase or reduction of capital 
ensure that the principles of equal treatment of shareholders in the same position and 
of  protection  of  creditors  whose  claims  exist  prior  to  the  decision  on  reduction  are 
observed and harmonised. 

(12) 

In  order  to  enhance  standardised  creditor  protection  in  all  Member  States,  creditors 
should  be  able  to  resort,  under  certain  conditions,  to  judicial  or  administrative 
proceedings  where  their  claims  are  at  stake  as  a  consequence  of  a  reduction  in  the 
capital of a public limited liability company. 

(cid:208) 2006/68/EC recital 6 

(cid:208) 2006/68/EC recital 7 

(13) 

the  European  Parliament  and  of 

In  order  to  ensure  that  market  abuse  is  prevented,  Member  States  should  take  into 
account,  for  the  purpose  of  implementation  of  this  Directive,  the  provisions  of 
Directive 2003/6/EC  of 
the  Council  of 
28 January 2003  on  insider  dealing  and  market  manipulation  (market  abuse)11, 
Commission  Regulation (EC)  No 2273/2003  of  22 December 2003  implementing 
Directive 2003/6/EC  of  the  European  Parliament  and  of  the  Council  as  regards 
exemptions  for  buy-back  programmes  and  stabilisation  of  financial  instruments12 
and Commission 
implementing 
Directive 2003/6/EC  of  the  European  Parliament  and  of  the  Council  as  regards 
accepted  market  practices,  the  definition  of  inside  information  in  relation  to 
derivatives  on  commodities,  the  drawing  up  of  lists  of  insiders,  the  notification  of 
managers' transactions and the notification of suspicious transactions13. 

Directive 2004/72/EC 

29 April 2004 

of 

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13 

OJ L 96, 12.4.2003, p. 16. 
OJ L 336, 23.12.2003, p. 33. 
OJ L 162, 30.4.2004, p. 70. 

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(cid:216) new 

(14) 

is  considered  necessary 

In the light of the judgment of the Court of Justice of 6 May 2008 in Case C-133/0614, 
the  wording  of  Article  6(3)  of 
it 
Directive 77/91/EEC  in  order  to  remove  an  existing  secondary  legal  basis  and  to 
confer competence on both the European Parliament and the Council to examine and, 
if need be, revise the amount referred to in paragraph 1 of that Article. 

redraft 

to 

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

HAVE ADOPTED THIS DIRECTIVE: 

(cid:208) 77/91/EEC (adapted) 

Article 1 

1.  The  coordination  measures  prescribed  by  this  Directive  shall  apply  to  the  provisions  laid 
down  by  law,  regulation  or  administrative  action  in  Member  States  relating  to  the  types  of 
company ⌦ listed in Annex I ⌫ . 

The  name  for  any  company  of  the  types  ⌦ listed  in  Annex  I ⌫  shall  comprise  or  be 
accompanied by a description which is distinct from the description required of other types of 
companies. 

2. The Member States may decide not to apply this Directive to investment companies with 
variable  capital  and  to  cooperatives  incorporated  as  one  of  the  types  of  company  listed  in 
⌦ Annex I ⌫. In so far as the laws of the Member States make use of this option, they shall 
require such companies to include the words ‘investment company with variable capital’, or 
‘cooperative’ in all documents indicated in Article 5 of Directive 2009/101/EC. 

(cid:208) 77/91/EEC 

The  expression  ‘investment  company  with  variable  capital’,  within  the  meaning  of  this 
Directive, means only those companies: 

– 

– 

the  exclusive  object  of  which  is  to  invest  their  funds  in  various  stocks  and  shares, 
land or other assets with the sole aim of spreading investment risks and giving their 
shareholders the benefit of the results of the management of their assets, 

which offer their own shares for subscription by the public, and 

14 

[2008] ECR I-03189. 

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– 

the  statutes  of  which  provide  that,  within  the  limits  of  a  minimum  and  maximum 
capital, they may at any time issue, redeem or resell their shares. 

The statutes or the instrument of incorporation of the company shall always give at least the 
following information: 

Article 2 

(a) 

(b) 

(c) 

(d) 

(e) 

the type and name of the company; 

the objects of the company; 

when the company has no authorised capital, the amount of the subscribed capital; 

when the company has an authorised capital, the amount thereof and also the amount 
of the capital subscribed at the time the company is incorporated or is authorised to 
commence business, and at the time of any change in the authorised capital, without 
prejudice to Article 2(e) of Directive 2009/101/EC; 

in so far as they are not legally determined, the rules governing the number of and 
the procedure for appointing members of the bodies responsible for representing the 
company  with  regard  to  third  parties,  administration,  management,  supervision  or 
control of the company and the allocation of powers among those bodies; 

(f) 

the duration of the company, except where this is indefinite. 

Article 3 

The  following  information  at  least  must  appear  in  either  the  statutes  or  the  instrument  of 
incorporation or a separate document published in accordance with the procedure laid down 
in the laws of each Member State in accordance with Article 3 of Directive 2009/101/EC: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

the registered office; 

the  nominal  value  of  the  shares  subscribed  and,  at  least  once  a  year,  the  number 
thereof; 

the  number  of  shares  subscribed  without  stating  the  nominal  value,  where  such 
shares may be issued under national law; 

the special conditions, if any, limiting the transfer of shares; 

where there are several classes of shares, the information referred to in points (b), (c) 
and (d) for each class and the rights attaching to the shares of each class; 

whether  the  shares  are  registered  or  bearer,  where  national  law  provides  for  both 
types,  and  any  provisions  relating  to  the  conversion  of  such  shares  unless  the 
procedure is laid down by law; 

the amount of the subscribed capital paid up at the time the company is incorporated 
or is authorised to commence business; 

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(h) 

(i) 

(j) 

(k) 

the nominal value of the shares or, where there is not nominal value, the number of 
shares issued for a consideration other than in cash, together with the nature of the 
consideration and the name of the person providing this consideration; 

the  identity  of  the  natural  or  legal  persons  or  companies  or  firms  by  whom  or  in 
whose  name  the  statutes  or  the  instrument  of  incorporation,  or  where  the  company 
was not formed at the same time, the drafts of these documents, have been signed; 

the total amount, or at least an estimate, of all the costs payable by the company or 
chargeable  to  it  by  reason  of  its  formation  and,  where  appropriate,  before  the 
company is authorised to commence business; 

any special advantage granted, at the time the company is formed or up to the time it 
receives  authorisation  to  commence  business,  to  anyone  who  has  taken  part  in  the 
formation  of  the  company  or  in  transactions  leading  to  the  grant  of  such 
authorisation. 

Article 4 

1. Where the laws of a Member State prescribe that a company may not commence business 
without authorisation, they shall also make provision for responsibility for liabilities incurred 
by  or  on  behalf  of  the  company  during  the  period  before  such  authorisation  is  granted  or 
refused. 

2.  Paragraph  1  shall  not  apply  to  liabilities  under  contracts  concluded  by  the  company 
conditionally upon its being granted authorisation to commence business. 

Article 5 

1.  Where  the  laws  of  a  Member  State  require  a  company  to  be  formed  by  more  than  one 
member, the fact that all the shares are held by one person or that the number of members has 
fallen  below  the  legal  minimum  after  incorporation  of  the  company  shall  not  lead  to  the 
automatic dissolution of the company. 

2. If, in the cases referred to in paragraph 1, the laws of a Member State permit the company 
to be wound up by order of the court, the judge having jurisdiction must be able to give the 
company sufficient time to regularise its position. 

(cid:208) 77/91/EEC (adapted) 
(cid:206)1 Act  of  Accession  of  1994 
Art. 29 and Annex I, p. 194 
(cid:214) new 

3. Where a winding up order ⌦ as referred to in paragraph 2 ⌫ is made the company shall 
enter into liquidation. 

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Article 6 

1.  The  laws  of  the  Member  States  shall  require  that,  in  order  that  a  company  may  be 
incorporated  or  obtain  authorisation  to  commence  business,  a  minimum  capital  shall  be 
subscribed the amount of which shall be not less than (cid:206)1 ⌦ EUR ⌫  25 000. 

2. Every five years (cid:214) the European Parliament and  the Council, acting on a proposal from 
the  Commission,  shall  examine  and,  if  need  be,  revise  the  amount  expressed  in 
⌦ paragraph 1 ⌫ in (cid:206)1 ⌦ euro ⌫  in the light of economic and monetary trends in the 
⌦ Union ⌫  and  of  the  tendency  towards  allowing  only  large  and  medium-sized 
undertakings to opt for the types of company listed in ⌦ Annex I ⌫ . 

(cid:208) 77/91/EEC 

Article 7 

The  subscribed  capital  may  be  formed  only  of  assets  capable  of  economic  assessment. 
However,  an  undertaking  to  perform  work  or  supply  services  may  not  form  part  of  these 
assets. 

Article 8 

Shares  may  not  be  issued  at  a  price  lower  than  their  nominal  value,  or,  where  there  is  no 
nominal value, their accountable par. 

However,  Member  States  may  allow  those  who  undertake to place shares in  the exercise of 
their profession to pay less than the total price of the shares for which they subscribe in the 
course of this transaction. 

Article 9 

Shares issued for a consideration must be paid up at the time the company is incorporated or 
is  authorised  to  commence  business  at  not  less  than  25%  of  their  nominal  value  or,  in  the 
absence of a nominal value, their accountable par. 

However,  where  shares  are  issued  for  a  consideration  other  than  in  cash  at  the  time  the 
company  is  incorporated  or  is  authorised  to  commence  business,  the  consideration  must  be 
transferred in full within five years of that time. 

Article 10 

1. A report on any consideration other than in cash shall be drawn up before the company is 
incorporated  or  is  authorised  to  commence  business,  by  one  or  more  independent  experts 
appointed or approved by an administrative or judicial authority. Such experts may be natural 
persons as well as legal persons and companies or firms under the laws of each Member State. 

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(cid:208) 77/91/EEC (adapted) 

2. The experts' report ⌦ referred to in paragraph 1 ⌫ shall contain at least a description of 
each of the assets comprising the consideration as well as of the methods of  valuation used 
and shall state whether the values arrived at by the application of these methods correspond at 
least to the number and nominal value or, where there is no nominal value, to the accountable 
par and, where appropriate, to the premium on the shares to be issued for them. 

(cid:208) 77/91/EEC  

3. The experts' report shall be published in the manner laid down by the laws of each Member 
State, in accordance with Article 3 of Directive 2009/101/EC. 

4.  Member  States  may  decide  not to apply this Article where 90% of the nominal value, or 
where there is no nominal value, of the accountable par, of all the shares is issued to one or 
more companies for a consideration other than in cash, and where the following requirements 
are met: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

with regard to the company in receipt of such consideration, the persons referred to 
in Article 3(i) have agreed to dispense with the experts' report; 

such agreement has been published as provided for in paragraph 3; 

the  companies  furnishing  such  consideration  have  reserves  which  may  not  be 
distributed under the law or the statutes and which are at least equal to the nominal 
value or, where there is no nominal value, the accountable par of the shares issued 
for consideration other than in cash; 

the companies furnishing such consideration guarantee, up to an amount equal to that 
indicated in point (c), the debts of the recipient company arising between the time the 
shares  are  issued  for  a  consideration  other  than  in  cash  and  one  year  after  the 
publication  of  that  company's  annual  accounts  for  the  financial  year  during  which 
such  consideration  was  furnished;  any  transfer  of  these  shares  is  prohibited  within 
this period; 

the  guarantee  referred  to  in  point  (d)  has  been  published  as  provided  for  in 
paragraph 3; 

the companies furnishing such consideration shall place a sum equal to that indicated 
in  point  (c)  into  a  reserve  which  may  not  be  distributed  until  three  years  after 
publication  of  the  annual  accounts  of  the  recipient  company  for  the  financial  year 
during which such consideration was furnished or, if necessary, until such later date 
as  all  claims  relating  to  the  guarantee  referred  to  in  point  (d)  which  are  submitted 
during this period have been settled. 

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

5. Member States may decide not to apply this Article to the formation of a new company by 
way of merger or division where ⌦ a' ⌫ report ⌦ by one or more independent experts ⌫ 
on the draft terms of merger or division is drawn up. 

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 ⌦ by one or 
more independent experts ⌫ on the draft terms of merger or division may be drawn up by the 
same expert or experts. 

(cid:208) 2006/68/EC Art. 1 pt. 2 

Article 11 

1. Member States may decide not to apply Article 10(1), (2) and (3) where, upon a decision of 
the  administrative  or  management  body,  transferable  securities  as  defined  in  point 18  of 
Article 4(1)  of  Directive 2004/39/EC  of  the  European  Parliament  and  of  the  Council15  or 
money-market  instruments  as  defined  in  point 19  of  Article 4(1)  of  that  Directive  are 
contributed  as  consideration  other  than  in  cash,  and  those  securities  or  money-market 
instruments are valued at the weighted average price at which they have been traded on one or 
more  regulated  market(s)  as  defined  in  point 14  of  Article 4(1)  of  that  Directive  during  a 
sufficient  period,  to  be  determined  by  national  law,  preceding  the  effective  date  of  the 
contribution of the respective consideration other than in cash. 

However,  where  that  price  has  been  affected  by  exceptional  circumstances  that  would 
significantly change the value of the asset at the effective date of its contribution, including 
situations where the market for such transferable securities or money-market instruments has 
become illiquid, a revaluation shall be carried out on the initiative and under the responsibility 
of the administrative or management body. 

For the purposes of the aforementioned revaluation, Article 10(1), (2) and (3) shall apply. 

2. Member States may decide not to apply Article 10(1), (2) and (3) where, upon a decision of 
the  administrative  or  management  body,  assets,  other  than  the  transferable  securities  and 
money-market  instruments  referred  to  in  paragraph  1  of  this  Article,  are  contributed  as 
consideration other than in cash which have already been subject to a fair value opinion by a 
recognised independent expert and where the following conditions are fulfilled: 

(a) 

the fair value is determined for a date not more than six months before the effective 
date of the asset contribution; 

15 

OJ L 145, 30.4.2004, p. 1.  

EN 

13 

   EN 

 
 
                                                 
(b) 

the  valuation  has  been  performed  in  accordance  with  generally  accepted  valuation 
standards  and  principles  in  the  Member  State,  which  are  applicable  to  the  kind  of 
assets to be contributed. 

In the case of new qualifying circumstances that would significantly change the fair value of 
the  asset  at  the  effective  date  of  its  contribution,  a  revaluation  shall  be  carried  out  on  the 
initiative and under the responsibility of the administrative or management body. 

For the purposes of the aforementioned revaluation, Article 10(1), (2) and (3) shall apply. 

In  the  absence  of  such  a  revaluation,  one  or  more  shareholders  holding  an  aggregate 
percentage of at least 5% of the company's subscribed capital on the day the decision on the 
increase in the capital is taken may demand a valuation by an independent expert, in which 
case Article 10(1), (2) and (3) shall apply. 

Such shareholder(s) may submit a demand up until the effective date of the asset contribution, 
provided  that,  at  the  date  of  the  demand,  the  shareholder(s)  in  question  still  hold(s)  an 
aggregate percentage of at least 5% of the company's subscribed capital, as it was on the day 
the decision on the increase in the capital was taken. 

3. Member States may decide not to apply Article 10(1), (2) and (3) where, upon a decision of 
the  administrative  or  management  body,  assets,  other  than  the  transferable  securities  and 
money-market  instruments  referred  to  in  paragraph  1  of  this  Article,  are  contributed  as 
consideration  other  than  in  cash  whose  fair  value  is  derived  by  individual  asset  from  the 
statutory  accounts  of  the  previous  financial  year  provided  that  the  statutory  accounts  have 
been subject to an audit in accordance with Directive 2006/43/EC of the European Parliament 
and of the Council16. 

The second to fifth subparagraphs of paragraph 2 of this Article shall apply mutatis mutandis. 

Article 12 

(cid:208) 2006/68/EC Art. 1 pt. 2 
(adapted) 

1.  Where  consideration  other  than  in  cash  as  referred  to  in  Article  11  occurs  without  an 
⌦ experts' ⌫  report  as  referred  to  in  Article 10(1),  (2)  and (3),  in  addition  to  the 
requirements set out in point (h) of Article 3 and within one month after the effective date of 
the asset contribution, a declaration containing the following shall be published: 

(a) 

a description of the consideration other than in cash at issue; 

(cid:208) 2006/68/EC Art. 1 pt. 2 

16 

OJ L 157, 9.6.2006, p. 87. 

EN 

14 

   EN 

 
 
                                                 
(b) 

(c) 

(d) 

its  value,  the  source  of  this  valuation  and,  where  appropriate,  the  method  of 
valuation; 

a  statement  whether  the  value  arrived  at  corresponds  at  least  to  the  number,  to  the 
nominal value or, where there is no nominal value, the accountable par and, where 
appropriate, to the premium on the shares to be issued for such consideration; 

a  statement  that  no  new  qualifying  circumstances  with  regard  to  the  original 
valuation have occurred. 

That publication shall be effected in the manner laid down by the laws of each Member State 
in accordance with Article 3 of Directive 2009/101/EC. 

(cid:208) 2006/68/EC Art. 1 pt. 2 
(adapted) 

2. Where consideration other than in cash is proposed to be made without an ⌦ experts' ⌫ 
report  as  referred  to in  Article 10(1),  (2)  and (3)  in  relation  to  an  increase  in  the  capital 
proposed  to  be  made  under  Article 29(2),  an  announcement  containing  the  date  when  the 
decision  on  the  increase  was  taken  and  the  information  listed  in  paragraph 1  of  this  Article 
shall be published, in the manner laid down by the laws of each Member State in accordance 
with Article 3 of Directive 2009/101/EC, before the contribution of the asset as consideration 
other than in cash is to become effective. In that event, the declaration pursuant to paragraph 1 
of  this  Article  shall  be  limited  to  the  statement  that  no  new  qualifying  circumstances  have 
occurred since the aforementioned announcement was published. 

3.  Each  Member  State  shall  provide  for  adequate  safeguards  ensuring  compliance  with  the 
procedure  set  out  in  Article  11  and in  this  Article  where  a  contribution  for  a  consideration 
other than in cash is made without an ⌦ experts' ⌫ report as referred to in Article 10(1), (2) 
and (3). 

(cid:208) 77/91/EEC 
(cid:206)1 2006/68/EC Art. 1 pt. (3)(a) 
(cid:206)2 2006/68/EC Art. 1 pt. (3)(b) 

Article 13 

1. If, before the expiry of a time-limit laid down by national law of at least two years from the 
time  the  company  is  incorporated  or  is  authorised  to  commence  business,  the  company 
acquires any asset belonging to a person or company or firm referred to in Article 3 (i) for a 
consideration  of  not  less  than  one-tenth  of  the  subscribed  capital,  the  acquisition  shall  be 
examined  and  details  of  it  published  in  the  manner  provided  for  in  (cid:206)1 Article  10(1),  (2) 
and (3)  and it shall be submitted for the approval of the general meeting. 

(cid:206)2 Articles 11 and 12 shall apply mutatis mutandis.  

Member  States  may  also  require these  provisions  to  be  applied  when  the  assets  belong  to  a 
shareholder or to any other person. 

EN 

15 

   EN 

 
 
2. Paragraph 1 shall not apply to acquisitions effected in the normal course of the company's 
business, to acquisitions effected at the instance or under the supervision of an administrative 
or judicial authority, or to stock exchange acquisitions. 

Subject to the provisions relating to the reduction of subscribed capital, the shareholders may 
not be released from the obligation to pay up their contributions. 

Article 14 

Article 15 

Pending  coordination  of  national  laws  at  a  subsequent  date,  Member  States  shall  adopt  the 
measures  necessary  to  require  provision  of  at  least  the  same  safeguards  as  are  laid  down  in 
Articles  2  to  14  in  the  event  of  the  conversion  of  another  type  of  company  into  a  public 
limited liability company. 

Articles  2  to  15  shall  not  prejudice  the  provisions  of  Member  States  on  competence  and 
procedure relating to the modification of the statutes or of the instrument of incorporation. 

Article 16 

Article 17 

1. Except for cases of reductions of subscribed capital, no distribution to shareholders may be 
made  when  on  the  closing  date  of  the  last  financial  year  the  net  assets  as  set  out  in  the 
company's  annual  accounts  are,  or  following  such  a  distribution  would  become,  lower  than 
the amount of the subscribed capital plus those reserves which may not be distributed under 
the law or the statutes. 

2. Where the uncalled part of the subscribed capital is not included in the assets shown in the 
balance sheet, this amount shall be deducted from the amount of subscribed capital referred to 
in paragraph 1.  

3. The amount of a distribution to shareholders may not exceed the amount of the profits at 
the  end  of  the  last  financial  year  plus  any  profits  brought  forward  and  sums  drawn  from 
reserves  available  for  this  purpose,  less  any  losses  brought  forward  and  sums  placed  to 
reserve in accordance with the law or the statutes. 

4.  The  expression  "distribution"  used  in  paragraphs  (1)  and  (3)  includes  in  particular  the 
payment of dividends and of interest relating to shares. 

5. When the laws of a Member State allow the payment of interim dividends, the following 
conditions at least shall apply: 

(a) 

(b) 

EN 

interim accounts shall be drawn up showing that the funds available for distribution 
are sufficient; 

the amount to be distributed may not exceed the total profits made since the end of 
the last financial year for which the annual accounts have been drawn up, plus any 

16 

   EN 

profits brought forward and sums drawn from reserves available for this purpose, less 
losses brought forward and sums to be placed to reserve pursuant to the requirements 
of the law or the statutes. 

6.  Paragraphs  1 ⌦ to  5 ⌫  shall  not  affect  the  provisions  of  the  Member  States  as  regards 
increases in subscribed capital by capitalisation of reserves. 

(cid:208) 77/91/EEC (adapted) 

(cid:208) 77/91/EEC 

7. The laws of a Member State may provide for derogation from paragraph 1 in the case of 
investment companies with fixed capital. 

The  expression  ‘investment  company  with  fixed  capital’,  within  the  meaning  of  this 
paragraph, means only those companies: 

(a) 

the  exclusive  object  of  which  is  to  invest  their  funds  in  various  stocks  and  shares, 
land or other assets with the sole aim of spreading investment risks and giving their 
shareholders the benefit of the results of the management of their assets; and 

(b) 

which offer their own shares for subscription by the public. 

In so far as the laws of Member States make use of this option they shall: 

(a) 

(b) 

(c) 

require  such  companies  to  include  the  expression  ‘investment  company’  in  all 
documents indicated in Article 5 of Directive 2009/101/EC; 

not  permit  any  such  company  whose  net  assets  fall  below  the  amount  specified  in 
paragraph  1  to  make  a  distribution  to  shareholders when on  the closing date of the 
last financial year the company's total assets as set out in the annual accounts are, or 
following such distribution would become, less than one-and-a-half times the amount 
of the company's total liabilities to creditors as set out in the annual accounts; 

require any such company which makes a distribution when its net assets fall below 
the amount specified in paragraph 1 to include in its annual accounts a note to that 
effect. 

Article 18 

Any  distribution  made  contrary  to  Article  17  must  be  returned  by  shareholders  who  have 
received  it  if  the  company  proves  that  those  shareholders  knew  of  the  irregularity  of  the 
distributions made to them, or could not in view of the circumstances have been unaware of it. 

EN 

17 

   EN 

 
 
Article 19 

1.  In  the  case  of  a  serious  loss  of  the  subscribed  capital,  a  general  meeting  of  shareholders 
must  be  called  within  the  period  laid  down  by  the  laws  of  the  Member  States,  to  consider 
whether the company should be wound up or any other measures taken. 

2. The amount of a loss deemed to be serious within the meaning of paragraph 1 may not be 
set by the laws of Member States at a figure higher than half the subscribed capital. 

Article 20 

1. The shares of a company may not be subscribed for by the company itself. 

2. If the shares of a company have been subscribed for by a person acting in his own name, 
but on behalf of the company, the subscriber shall be deemed to have subscribed for them for 
his own account. 

3. The persons or companies or firms referred to in Article 3 (i) or, in cases of an increase in 
subscribed capital, the members of the administrative or management body shall be liable to 
pay for shares subscribed in contravention of this Article. 

However, the laws of a Member State may provide that any such person may be released from 
his obligation if he proves that no fault is attributable to him personally. 

Article 21 

(cid:208) 2006/68/EC Art. 1 pt. 4 

1.  Without  prejudice  to  the  principle  of  equal  treatment  of  all  shareholders  who  are  in  the 
same position, and to Directive 2003/6/EC, Member States may permit a company to acquire 
its own shares, either itself or through a person acting in his own name but on the company's 
behalf.  To  the  extent  that  the  acquisitions  are  permitted,  Member  States  shall  make  such 
acquisitions subject to the following conditions:  

(a) 

(b) 

authorisation shall be given by the general meeting, which shall determine the terms 
and conditions  of  such  acquisitions,  and,  in  particular,  the  maximum  number  of 
shares to be acquired, the duration of the period for which the authorisation is given, 
the maximum length of which shall be determined by national law without, however, 
exceeding  five years,  and,  in  the  case  of  acquisition  for  value,  the  maximum  and 
minimum  consideration;  members  of  the  administrative  or  management  body  shall 
satisfy themselves that, at the time when each authorised acquisition is effected, the 
conditions referred to in points (b) and (c) are respected; 

the acquisitions, including shares previously acquired by the company and held by it, 
and shares acquired by a person acting in his own name but on the company's behalf, 
may  not  have  the  effect  of  reducing  the  net  assets  below  the  amount  mentioned  in 
Article 17(1) and (2); 

(c) 

only fully paid-up shares may be included in the transaction. 

EN 

18 

   EN 

 
Furthermore,  Member  States  may  subject  acquisitions  within  the  meaning  of  the  first 
subparagraph to any of the following conditions: 

(i) 

(ii) 

that the nominal value or, in the absence thereof, the accountable par of the acquired 
shares,  including  shares  previously  acquired  by  the  company  and  held  by  it,  and 
shares  acquired  by  a  person  acting  in  his  own  name  but  on  the  company's  behalf, 
may  not  exceed  a  limit  to  be  determined  by  Member  States;  this  limit  may  not  be 
lower than 10% of the subscribed capital; 

that the power of the company to acquire its own shares within the meaning of the 
first subparagraph, the maximum number of shares to be acquired, the duration of the 
period for which the power is given and the maximum or minimum consideration are 
laid down in the statutes or in the instrument of incorporation of the company; 

(iii) 

that the company complies with appropriate reporting and notification requirements; 

(iv) 

that certain companies, as determined by Member States, may be required to cancel 
the acquired shares provided that an amount equal to the nominal value of the shares 
cancelled  must  be  included  in  a  reserve  which  cannot  be  distributed  to  the 
shareholders, except in the event of a reduction in the subscribed capital; this reserve 
may  be  used  only  for  the  purposes  of  increasing  the  subscribed  capital  by  the 
capitalisation of reserves; 

(v) 

that the acquisition shall not prejudice the satisfaction of creditors' claims. 

(cid:208) 77/91/EEC 
(cid:206)1 2006/68/EC Art. 1 pt. 5 

2.  The  laws  of  a  Member  State  may  provide  for  derogations  from  the  first  sentence  of 
paragraph  1(a)  where  the  acquisition  of  a  company's  own  shares  is  necessary  to  prevent 
serious and imminent harm to the company. In such a case, the next general meeting must be 
informed  by  the  administrative  or  management  body  of  the  reasons  for  and  nature  of  the 
acquisitions effected, of the number and nominal value or, in the absence of a nominal value, 
the accountable par, of the shares acquired, of the proportion of the subscribed capital which 
they represent, and of the consideration for these shares. 

3.  Member  States  may  decide  not  to  apply  the  first  sentence  of  paragraph  1(a)  to  shares 
acquired  by  either  the  company  itself  or  by  a  person  acting  in  his  own  name  but  on  the 
company's  behalf,  for  distribution  to  that  company's  employees  or  to  the  employees  of  an 
associate company. Such shares must be distributed within 12 months of their acquisition. 

1. Member States may decide not to apply Article 21 to: 

Article 22 

(a) 

shares acquired in carrying out a decision to reduce capital, or in the circumstances 
referred to in Article 43; 

(b) 

shares acquired as a result of a universal transfer of assets; 

EN 

19 

   EN 

 
(c) 

(d) 

(e) 

(f) 

(g) 

(h) 

fully  paid-up  shares  acquired  free  of  charge  or  by  banks  and  other  financial 
institutions as purchasing commission; 

shares acquired by virtue of a legal obligation or resulting from a court ruling for the 
protection of minority shareholders in the event, particularly, of a merger, a change 
in  the  company's  object  or  form,  transfer  abroad  of  the  registered  office,  or  the 
introduction of restrictions on the transfer of shares; 

shares acquired from a shareholder in the event of failure to pay them up; 

shares acquired in order to indemnify minority shareholders in associated companies; 

fully paid-up shares acquired under a sale enforced by a court order for the payment 
of a debt owed to the company by the owner of the shares; 

fully paid-up shares issued by an investment company with fixed capital, as defined 
in the second subparagraph of Article 17(7), and acquired at the investor's request by 
that  company  or  by  an  associate  company.  Point  (a)  of  the  third  subparagraph  of 
Article 17(7) shall apply. These acquisitions may not have the effect of reducing the 
net  assets  below  the  amount  of  the  subscribed  capital  plus  any  reserves  the 
distribution of which is forbidden by law. 

2. Shares acquired in the cases listed in paragraph 1 (b) to (g) must, however, be disposed of 
within  not  more  than  three  years  of  their  acquisition  unless  the  nominal  value  or,  in  the 
absence  of  a  nominal  value,  the  accountable  par  of  the  shares  acquired,  including  shares 
which the company may have acquired through a person acting in his own name but on the 
company's behalf, does not exceed 10% of the subscribed capital. 

3. If the shares are not disposed of within the period laid down in paragraph 2, they must be 
cancelled. The laws of a Member State may make this cancellation subject to a corresponding 
reduction in the subscribed capital. Such a reduction must be prescribed where the acquisition 
of shares to be cancelled results in the net assets having fallen below the amount specified in 
(cid:206)1 Article 17(1) and (2) . 

Shares acquired in contravention of Articles 21 and 22 shall be disposed of within one year of 
their acquisition. Should they not be disposed of within that period, Article 22(3) shall apply. 

Article 23 

Article 24 

1. Where the laws of a Member State permit a company to acquire its own shares, either itself 
or through a person acting in his own name but on the company's behalf, they shall make the 
holding of these shares at all times subject to at least the following conditions: 

(a) 

(b) 

among the rights attaching to the shares, the right to vote attaching to the company's 
own shares shall in any event be suspended; 

if the shares are included among the assets shown in the balance sheet, a reserve of 
the same amount, unavailable for distribution, shall be included among the liabilities. 

EN 

20 

   EN 

2. Where the laws of a Member State permit a company to acquire its own shares, either itself 
or through a person acting in his own name but on the company's behalf, they shall require the 
annual report to state at least: 

(a) 

(b) 

(c) 

(d) 

the reasons for acquisitions made during the financial year; 

the number and nominal value or, in the absence of a nominal value, the accountable 
par  of  the  shares  acquired  and  disposed  of  during  the  financial  year  and  the 
proportion of the subscribed capital which they represent; 

in the case of acquisition or disposal for a value, the consideration for the shares; 

the number and nominal value or, in the absence of a nominal value, the accountable 
par  of  all  the  shares  acquired  and  held  by  the  company  and  the  proportion  of  the 
subscribed capital which they represent. 

Article 25 

(cid:208) 2006/68/EC Art. 1 pt. 6 

1. Where Member States permit a company to, either directly or indirectly, advance funds or 
make loans or provide security, with a view to the acquisition of its shares by a third party, 
they shall make such transactions subject to the conditions set out in paragraphs 2 to 5. 

2.  The  transactions  shall  take  place  under  the  responsibility  of  the  administrative  or 
management body at fair market conditions, especially with regard to interest received by the 
company  and  with  regard  to  security  provided  to  the  company  for  the  loans  and  advances 
referred to in paragraph 1. 

The  credit  standing  of  the  third  party  or,  in  the  case  of  multiparty  transactions,  of  each 
counterparty thereto shall have been duly investigated. 

3.  The  transactions  shall  be  submitted  by  the  administrative  or  management  body  to  the 
general meeting for prior approval, whereby the general meeting shall act in accordance with 
the rules for a quorum and a majority laid down in Article 44. 

The administrative or management body shall present a written report to the general meeting, 
indicating: 

(a) 

(b) 

(c) 

(d) 

the reasons for the transaction;  

the interest of the company in entering into such a transaction;  

the conditions on which the transaction is entered into; 

the risks involved in the transaction for the liquidity and solvency of the company; 
and  

(e) 

the price at which the third party is to acquire the shares.  

EN 

21 

   EN 

 
This report shall be submitted to the register for publication in accordance with Article 3 of 
Directive 2009/101/EC. 

4.  The  aggregate  financial  assistance  granted  to  third  parties  shall  at  no  time  result  in  the 
reduction  of  the  net  assets  below  the  amount  specified  in  Article 17(1)  and  (2),  taking  into 
account also any reduction of the net assets that may have occurred through the acquisition, 
by  the  company  or  on  behalf  of  the  company,  of  its  own  shares  in  accordance  with 
Article 21(1).  

The company shall include, among the liabilities in the balance sheet, a reserve, unavailable 
for distribution, of the amount of the aggregate financial assistance. 

5.  Where  a  third  party  by  means  of  financial  assistance  from  a  company  acquires  that 
company's own shares within the meaning of Article 21(1) or subscribes for shares issued in 
the  course  of  an  increase  in  the  subscribed  capital,  such  acquisition  or  subscription  shall  be 
made at a fair price. 

(cid:208) 77/91/EEC 

6.  Paragraphs  1  to  5  shall  not  apply  to  transactions  concluded  by  banks  and  other  financial 
institutions in the normal course of business, nor to transactions effected with a view to the 
acquisition  of  shares  by  or  for  the  company's  employees  or  the  employees  of  an  associate 
company. 

However,  these  transactions  may  not  have  the  effect  of  reducing  the  net  assets  below  the 
amount specified in Article 17(1). 

7.  Paragraphs  1  to  5  shall  not  apply  to  transactions  effected  with  a  view  to  acquisition  of 
shares as described in Article 22(1)(h). 

(cid:208) 2006/68/EC Art. 1 pt. 7 

Article 26 

In  cases  where  individual  members  of  the  administrative  or  management  body  of  the 
company being party to a transaction referred to in Article 25(1), or of the administrative or 
management  body  of  a  parent  undertaking  within  the  meaning  of  Article 1  of  Council 
Directive 83/349/EEC17  or  such  parent  undertaking  itself,  or individuals  acting  in  their  own 
name,  but  on  behalf  of  the  members  of  such  bodies  or  on  behalf  of  such  undertaking,  are 
counterparties to such a transaction, Member States shall ensure through adequate safeguards 
that such transaction does not conflict with the company's best interests. 

17 

OJ L 193, 18.7.1983, p. 1.  

EN 

22 

   EN 

 
 
                                                 
(cid:208) 77/91/EEC 

Article 27 

1.  The  acceptance  of  the  company's  own  shares  as  security,  either  by  the  company  itself  or 
through a person acting in his own name but on the company's behalf, shall be treated as an 
acquisition for the purposes of Articles 21, 22(1), 24 and 25. 

2.  The  Member  States  may  decide  not  to  apply  paragraph  1  to  transactions  concluded  by 
banks and other financial institutions in the normal course of business. 

(cid:208) 92/101/EEC Art. 1 

Article 28 

1. The subscription, acquisition or holding of shares in a public limited liability company by 
another  company  within  the  meaning  of  Article  1  of  Directive  2009/101/EC  in  which  the 
public limited liability company directly or indirectly holds a majority of the voting rights or 
on  which  it  can  directly  or  indirectly  exercise  a  dominant  influence  shall  be  regarded  as 
having been effected by the public limited liability company itself. 

The first subparagraph shall also apply where the other company is governed by the law of a 
third  country  and  has  a  legal  form  comparable  to  those  listed  in  Article  1  of 
Directive 2009/101/EC. 

However,  where  the  public  limited  liability  company  holds  a  majority  of  the  voting  rights 
indirectly or can exercise a dominant influence indirectly, Member States need not apply the 
first  and  the  second  subparagraphs  if  they  provide  for  the  suspension  of  the  voting  rights 
attached to the shares in the public limited liability company held by the other company. 

2.  In  the  absence  of  coordination  of  national  legislation  on  groups  of  companies,  Member 
States may: 

(a) 

define  the  cases  in  which  a  public  limited  liability  company  shall  be  regarded  as 
being able to exercise a dominant influence on another company; if a Member State 
exercises  this  option,  its  national  law  must  in  any  event  provide  that  a  dominant 
influence can be exercised if a public limited liability company: 

– 

– 

has  the  right  to  appoint  or  dismiss  a  majority  of  the  members  of  the 
administrative  organ,  of  the  management  organ  or  of  the  supervisory  organ, 
and is at the same time a shareholder or member of the other company, or 

is  a  shareholder  or  member  of  the  other  company  and  has  sole  control  of  a 
majority  of  the  voting  rights  of  its  shareholders  or  members  under  an 
agreement concluded with other shareholders or members of that company. 

EN 

23 

   EN 

 
 
Member States shall not be obliged to make provision for any cases other than those 
referred to in the first and second indents; 

(b) 

(c) 

define  the  cases  in  which  a  public  limited  liability  company  shall  be  regarded  as 
indirectly holding voting rights or as able indirectly to exercise a dominant influence; 

specify  the  circumstances  in  which  a  public  limited  liability  company  shall  be 
regarded as holding voting rights. 

3. Member States need not apply the first and second subparagraphs of paragraph 1 where the 
subscription,  acquisition  or  holding  is  effected  on  behalf  of  a  person  other  than  the  person 
subscribing,  acquiring  or  holding  the  shares,  who  is  neither  the  public  limited  liability 
company referred to in paragraph 1 nor another company in which the public limited liability 
company directly or indirectly holds a majority of the voting rights or on which it can directly 
or indirectly exercise a dominant influence. 

4. Member States need not apply the first and second subparagraphs of paragraph 1 where the 
subscription, acquisition or holding is effected by the other company in its capacity and in the 
context of its activities as a professional dealer in securities, provided that it is a member of a 
stock exchange situated or operating within a Member State, or is approved or supervised by 
an  authority  of  a  Member  State  competent  to  supervise  professional  dealers  in  securities 
which, within the meaning of this Directive, may include credit institutions. 

5.  Member  States  need  not  apply  the  first  and  second  subparagraphs  of  paragraph  1  where 
shares  in  a  public  limited  liability  company  held  by  another  company  were  acquired  before 
the  relationship  between  the  two  companies  corresponded  to  the  criteria  laid  down  in 
paragraph 1. 

However, the voting rights attached to those shares shall be suspended and the shares shall be 
taken  into  account  when  it  is  determined  whether  the  condition  laid  down  in  point  (b)  of 
Article 21(1) is fulfilled. 

6. Member States need not apply Article 22(2) or (3) or Article 23 where shares in a public 
limited liability company are acquired by another company on condition that they provide for: 

(a) 

(b) 

the  suspension  of  the  voting  rights  attached  to  the  shares  in  the  public  limited 
liability company held by the other company; and 

the  members  of  the  administrative  or  the  management  organ  of  the  public  limited 
liability  company  to  be  obliged  to  buy  back  from  the  other  company  the  shares 
referred  to  in  Article  22(2)  and  (3)  and  Article  23  at  the  price  at  which  the  other 
company acquired them; this sanction shall be inapplicable only where the members 
of  the  administrative  or  the  management  organ  of  the  public  limited  liability 
company prove that that company played no part whatsoever in the subscription for 
or acquisition of the shares in question. 

EN 

24 

   EN 

 
(cid:208) 77/91/EEC 

Article 29 

1. Any increase in capital must be decided upon by the general meeting. Both this  decision 
and the increase in the subscribed capital shall be published in the manner laid down by the 
laws of each Member State, in accordance with Article 3 of Directive 2009/101/EC. 

2.  Nevertheless,  the  statutes  or  instrument  of  incorporation  or  the  general  meeting,  the 
decision of which must be published in accordance with the rules referred to in paragraph 1, 
may authorise an increase in the subscribed capital up to a maximum amount which they shall 
fix  with  due  regard  for  any  maximum  amount  provided  for  by  law.  Where  appropriate,  the 
increase in the subscribed capital shall be decided on within the limits of the amount fixed by 
the company body empowered to do so. The power of such body in this respect shall be for a 
maximum period of five years and may be renewed one or more times by the general meeting, 
each time for a period not exceeding five years. 

3. Where there are several classes of shares, the decision by the general meeting concerning 
the  increase  in  capital  referred  to  in  paragraph  1  or  the  authorisation  to  increase  the  capital 
referred  to  in  paragraph  2,  shall  be  subject  to  a  separate  vote  at  least  for  each  class  of 
shareholder whose rights are affected by the transaction. 

4.  This  Article  shall  apply  to  the  issue  of  all securities  which  are  convertible  into  shares  or 
which carry the right to subscribe for shares, but not to the conversion of such securities, nor 
to the exercise of the right to subscribe. 

Article 30 

Shares issued for a consideration, in the course of an increase in subscribed capital, must be 
paid up to at least 25% of their nominal value or, in the absence of a nominal value, of their 
accountable par. Where provision is made for an issue premium, it must be paid in full. 

Article 31 

1. Where shares are issued for a consideration other than in cash in the course of an increase 
in the subscribed capital the consideration must be transferred in full within a period of five 
years from the decision to increase the subscribed capital. 

2. The consideration referred to in paragraph 1 shall be the subject of a report drawn up before 
the increase in capital is made by one or more experts who are independent of the company 
and  appointed  or  approved  by  an  administrative  or  judicial  authority.  Such  experts  may  be 
natural  persons  as  well  as  legal  persons  and  companies  and  firms  under  the  laws  of  each 
Member State. 

EN 

25 

   EN 

 
Article 10(2) and (3) and Articles 11 and 12 shall apply. 

(cid:208) 2006/68/EC Art. 1 pt. 8 

(cid:208) 2009/109/EC Art. 1 pt. 3 

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 or divided or which is the object of the public offer for the purchase or exchange of 
shares. 

(cid:208) 2009/109/EC Art. 1 pt. 3 
(adapted) 

In  the  case  of  a  merger  or  a  division,  however,  Member  States  shall  apply  the  first 
subparagraph  only  where  a  report  ⌦ by  one  or  more  independent  experts ⌫  on  the  draft 
terms of merger or division 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 ⌦ by one or more independent 
experts ⌫ on the draft terms of merger or division may be drawn up by the same expert or 
experts. 

(cid:208) 77/91/EEC 

4. Member States may decide not to apply paragraph 2 if all the shares issued in the course of 
an  increase  in  subscribed  capital  are  issued  for  a  consideration  other  than  in  cash  to  one  or 
more  companies,  on  condition  that  all  the  shareholders  in  the  company  which  receive  the 
consideration have agreed not to have an experts' report drawn up and that the requirements of 
Article 10(4)(b) to (f) are met. 

Where  an  increase  in  capital  is  not  fully  subscribed,  the  capital  will  be  increased  by  the 
amount of the subscriptions received only if the conditions of the issue so provide. 

Article 32 

Article 33 

1. Whenever the capital is increased by consideration in cash, the shares must be offered on a 
pre-emptive basis to shareholders in proportion to the capital represented by their shares. 

2. The laws of a Member State: 

EN 

26 

   EN 

 
 
 
 
(a) 

(b) 

need  not  apply  paragraph  1  to  shares  which  carry  a  limited  right  to  participate  in 
distributions within the meaning of Article 17 and/or in the company's assets in the 
event of liquidation; or 

may  permit,  where  the  subscribed  capital  of  a  company  having  several  classes  of 
shares carrying different rights with regard to voting, or participation in distributions 
within the meaning of Article 17 or in assets in the event of liquidation, is increased 
by  issuing  new  shares  in  only  one  of  these  classes,  the  right  of  pre-emption  of 
shareholders of the other classes to be exercised only after the exercise of this right 
by the shareholders of the class in which the new shares are being issued. 

(cid:208) 77/91/EEC (adapted) 

3.  Any  offer  of  subscription  on  a  pre-emptive  basis  and  the  period  within  which  this  right 
must  be  exercised  shall  be  published  in  the  national  gazette  appointed  in  accordance  with 
Directive  2009/101/EC.  However,  the  laws  of  a  Member  State  need  not  provide  for  such 
publication  where  all  ⌦ of ⌫  a  company's  shares  are  registered.  In  such  case,  all  the 
company's  shareholders  must  be  informed  in  writing.  The  right  of  pre-emption  must  be 
exercised within a period which shall not be less than 14 days from the date of publication of 
the offer or from the date of dispatch of the letters to the shareholders. 

(cid:208) 77/91/EEC 

4. The right of pre-emption may not be restricted or withdrawn by the statutes or instrument 
of  incorporation.  This  may,  however,  be  done  by  decision  of  the  general  meeting.  The 
administrative or management body shall be required to present to such a meeting a written 
report  indicating  the  reasons  for  restriction  or  withdrawal  of  the  right  of  pre-emption,  and 
justifying the proposed issue price. The general meeting shall act in accordance with the rules 
for  a  quorum  and  a  majority  laid  down  in  Article  44.  Its  decision  shall  be  published  in  the 
manner  laid  down  by  the  laws  of  each  Member  State,  in  accordance  with  Article  3  of 
Directive 2009/101/EC. 

5. The laws of a Member State may provide that the statutes, the instrument of incorporation 
or  the  general  meeting,  acting  in  accordance  with  the  rules  for  a  quorum,  a  majority  and 
publication  set  out  in  paragraph  4,  may  give  the  power  to  restrict  or  withdraw  the  right  of 
pre-emption to the company body which is empowered to decide on an increase in subscribed 
capital within the limit of the authorised capital. This power may not be granted for a longer 
period than the power for which provision is made in Article 29(2). 

6. Paragraphs 1 to 5 shall apply to the issue of all securities which are convertible into shares 
or which carry the right to subscribe for shares, but not to the conversion of such securities, 
nor to the exercise of the right to subscribe. 

7. The right of pre-emption is not excluded for the purposes of paragraphs 4 and 5 where, in 
accordance with the decision to increase the subscribed capital, shares are issued to banks or 
other financial institutions with a view to their being offered to shareholders of the company 
in accordance with paragraphs 1 and 3. 

EN 

27 

   EN 

 
 
Article 34 

Any reduction in the subscribed capital, except under a court order, must be subject at least to 
a  decision  of  the  general  meeting  acting  in  accordance  with  the  rules  for  a  quorum  and  a 
majority laid down in Article 44 without prejudice to Articles 40 and 41. Such decision shall 
be published in the manner laid down by the laws of each Member State in accordance with 
Article 3 of Directive 2009/101/EC. 

The notice convening the meeting must specify at least the purpose of the reduction and the 
way in which it is to be carried out. 

Article 35 

Where there are several classes of shares, the decision by the general meeting concerning a 
reduction in the subscribed capital shall be subject to a separate vote, at least for each class of 
shareholders whose rights are affected by the transaction. 

Article 36 

(cid:208) 2006/68/EC Art. 1 pt. 9 

1.  In  the  event  of  a  reduction  in  the  subscribed  capital,  at  least  the  creditors  whose  claims 
antedate the publication of the decision on the reduction shall at least have the right to obtain 
security for claims which have not fallen due by the date of that publication. Member States 
may  not  set  aside  such  a  right  unless  the  creditor  has  adequate  safeguards,  or  unless  such 
safeguards are not necessary having regard to the assets of the company. 

Member States shall lay down the conditions for the exercise of the right provided for 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 reduction in the subscribed capital 
the satisfaction of their claims is at stake, and that no adequate safeguards have been obtained 
from the company. 

(cid:208) 77/91/EEC 

2. The laws of the Member States shall also stipulate at least that the reduction shall be void, 
or that no payment may be made for the benefit of the shareholders, until the creditors have 
obtained satisfaction or a court has decided that their application should not be acceded to. 

3. This Article shall apply where the reduction in the subscribed capital is brought about by 
the total or partial waiving of the payment of the balance of the shareholders' contributions. 

EN 

28 

   EN 

 
 
Article 37 

1.  Member  States  need  not  apply  Article  36  to  a  reduction  in  the  subscribed  capital  whose 
purpose is to offset losses incurred or to include  sums  of  money  in  a reserve provided that, 
following  this  operation,  the  amount  of  such  reserve  is  not  more  than  10%  of  the  reduced 
subscribed  capital.  Except  in  the  event  of  a  reduction  in  the  subscribed  capital,  this  reserve 
may not be distributed to shareholders; it may be used only for offsetting losses incurred or 
for  increasing  the  subscribed  capital  by  the  capitalisation  of  such  reserve,  in  so  far  as  the 
Member States permit such an operation. 

2. In the cases referred to in paragraph 1 the laws of the Member States must at least provide 
for  the  measures  necessary  to  ensure  that  the  amounts  deriving  from  the  reduction  of 
subscribed  capital  may  not  be  used  for  making  payments  or  distributions to  shareholders or 
discharging shareholders from the obligation to make their contributions. 

Article 38 

The subscribed capital may not be reduced to an amount less than the minimum capital laid 
down in accordance with Article 6. 

However, Member States may permit such a reduction if they also provide that the decision to 
reduce the subscribed capital may take effect only when the subscribed capital is increased to 
an amount at least equal to the prescribed minimum. 

Article 39 

Where  the  laws  of  a  Member  State  authorise  total  or  partial  redemption  of  the  subscribed 
capital without reduction of the latter, they shall at least require that the following conditions 
are observed: 

(a) 

(b) 

(c) 

where  the  statutes  or  instrument  of  incorporation  provide  for  redemption,  the  latter 
shall be decided on by the general meeting voting at least under the usual conditions 
of  quorum  and  majority;  where  the  statutes  or  instrument  of  incorporation  do  not 
provide  for  redemption,  the  latter  shall  be  decided  upon  by  the  general  meeting 
acting at least under the conditions of quorum and majority laid down in Article 44; 
the decision must be published in the manner prescribed by the laws of each Member 
State, in accordance with Article 3 of Directive 2009/101/EC; 

only sums which are available for distribution within the meaning of Article 17(1) to 
(4) may be used for redemption purposes; 

shareholders whose shares are redeemed shall retain their rights in the company, with 
the exception of their rights to the repayment of their investment and participation in 
the distribution of an initial dividend on unredeemed shares. 

EN 

29 

   EN 

Article 40 

1. Where the laws of a Member State may allow companies to reduce their subscribed capital 
by compulsory withdrawal of shares, they shall require that at least the conditions set out in 
points (a) to (e) are observed: 

(a) 

compulsory  withdrawal  must  be  prescribed  or  authorised  by  the  statutes  or 
instrument  of  incorporation  before  the  shares  which  are  to  be  withdrawn  are 
subscribed for; 

(cid:208) 77/91/EEC (adapted) 

(b) 

(c) 

(d) 

(e) 

(cid:208) 77/91/EEC 

where the compulsory withdrawal is merely authorised by the statutes or instrument 
of incorporation, it shall be decided upon by the general meeting unless it has been 
unanimously approved by the shareholders concerned; 

the  company  body  deciding  on  the  compulsory  withdrawal  shall  fix  the  terms  and 
manner thereof, where they have not already been fixed by the statutes or instrument 
of incorporation; 

Article  36  shall  apply  except  in  the  case  of  fully  paid-up  shares  which  are  made 
available  to  the  company  free  of  charge  or  are  withdrawn  using  sums  available  for 
distribution in accordance with Article 17(1) to (4) ; in these cases, an amount equal 
to  the  nominal  value  or,  in  the  absence  thereof,  to  the  accountable  par  of  all  the 
withdrawn shares must be included in a reserve; except in the event of a reduction in 
the subscribed  capital  this reserve may  not be distributed to shareholders; it can be 
used only for offsetting losses incurred or for increasing the subscribed capital by the 
capitalisation of such reserve, in so far as Member States permit such an operation; 

the decision on compulsory withdrawal shall be published in the manner laid down 
by 
in  accordance  with  Article  3  of 
Directive 2009/101/EC. 

laws  of  each  Member  State 

the 

2.  Articles  34(1),  35,  37  and  44  shall  not  apply  to  the  cases  to  which  paragraph  1  of  this 
Article refers. 

Article 41 

1. In the case of a reduction in the subscribed capital by the withdrawal of shares acquired by 
the company itself or by a person acting in his own name but on behalf of the company, the 
withdrawal must always be decided on by the general meeting. 

2. Article 36 shall apply unless the shares are fully paid up and are acquired free of charge or 
using sums available for distribution in accordance with Article 17(1) to (4); in these cases an 
amount equal to the nominal value or, in the absence thereof, to the accountable par of all the 
shares  withdrawn  must  be  included  in  a  reserve.  Except  in  the  event  of  a  reduction  in  the 

EN 

30 

   EN 

 
 
subscribed capital, this reserve may not be distributed to shareholders. It may be used only for 
offsetting losses incurred or for increasing the subscribed capital by the capitalisation of such 
reserve, in so far as the Member States permit such an operation. 

3.  Articles  35,  37  and  44  shall  not  apply  to  the  cases  to  which  paragraph  1  of  this  Article 
refers. 

Article 42 

In  the  cases  covered  by  Articles  39,  40(1)(b)  and  41(1),  when  there  are  several  classes  of 
shares, the decision by the general meeting concerning redemption of the subscribed capital or 
its reduction by withdrawal of shares shall be subject to a separate vote, at least for each class 
of shareholders whose rights are affected by the transaction. 

Article 43 

Where the laws of a Member State authorise companies to issue redeemable shares, they shall 
require that the following conditions, at least, are complied with for the redemption of such 
shares: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

redemption  must  be  authorised  by  the  company's  statutes  or  instrument  of 
incorporation before the redeemable shares are subscribed for; 

the shares must be fully paid up; 

the terms and the manner of redemption must be laid down in the company's statutes 
or instrument of incorporation; 

redemption  can  be  only  effected  by  using  sums  available  for  distribution  in 
accordance with Article 17(1) to (4) or the proceeds of a new issue made with a view 
to effecting such redemption; 

an amount equal to the nominal value or, in the absence thereof, to the accountable 
par  of  all  the  redeemed  shares  must  be  included  in  a  reserve  which  cannot  be 
distributed to the shareholders, except in the event of a reduction in the subscribed 
capital; it may be used only for the purpose of increasing the subscribed capital by 
the capitalisation of reserves; 

point (e) shall not apply to redemption using the proceeds of a new issue made with a 
view to effecting such redemption; 

where  provision  is  made  for  the  payment  of  a  premium  to  shareholders  in 
consequence of a redemption, the premium may be paid only from sums available for 
distribution in accordance with Article 17(1) to (4) , or from a reserve other than that 
referred to in point (e) of this Article which may not be distributed to shareholders 
except in the event of a reduction in the subscribed capital; this reserve may be used 
only  for  the  purposes  of  increasing  the  subscribed  capital  by  the  capitalisation  of 
reserves  or  for  covering  the  costs  referred  to  in  Article  3(j)  or  the  cost  of  issuing 
shares  or  debentures  or  for  the  payment  of  a  premium  to  holders  of  redeemable 
shares or debentures; 

EN 

31 

   EN 

(h) 

notification of redemption shall be published in the manner laid down by the laws of 
each Member State in accordance with Article 3 of Directive 2009/101/EC. 

Article 44 

The laws of  the  Member  States  shall provide that the decisions referred to in Articles 33(4) 
and (5), 34, 35, 39 and 42 must be taken at least by a majority of not less than two-thirds of 
the votes attaching to the securities or the subscribed capital represented. 

The laws of the Member States may, however, lay down that a simple majority of the votes 
specified  in  the  first  paragraph  is  sufficient  when  at  least  half  the  subscribed  capital  is 
represented. 

Article 45 

(cid:208) 2006/68/EC Art. 1 pt. 10 

1.  Member  States  may  derogate  from  the  first  paragraph  of  Article 9,  the  first  sentence  of 
point (a) of Article 21(1), and Articles 29, 30 and 33 to the extent  that such derogations  are 
necessary for the adoption or application of provisions designed to encourage the participation 
of  employees,  or  other  groups  of  persons  defined  by  national  law,  in  the  capital  of 
undertakings. 

(cid:208) 77/91/EEC 

2. Member States may decide not to apply the first sentence of point (a) of Article 21(1), and 
Articles 34, 35, 40, 41, 42 and 43 to companies incorporated under a special law which issue 
both capital shares and workers' shares, the latter being issued to the company's employees as 
a body, who are represented at general meetings of shareholders by delegates having the right 
to vote. 

For the purposes of the implementation of this Directive, the laws of the Member States shall 
ensure equal treatment to all shareholders who are in the same position. 

Article 46 

Article 47 

1. Member States may decide not to apply Article 3 (g), (i), (j) and (k) to companies already 
in existence at the date of entry into force of the ⌦ laws, regulations and administrative ⌫ 
provisions ⌦ adopted in order to comply with Directive 77/91/EEC ⌫. 

(cid:208) 77/91/EEC (adapted) 

EN 

32 

   EN 

 
 
 
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. 

(cid:208)  

Article 48 

Directive 77/91/EEC, as amended by the Acts listed in Annex II, Part A, is repealed, without 
prejudice to the obligations of the Member States relating to the time-limits for transposition 
into national law and application of the Directives set out in Annex II, 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 III. 

This Directive shall enter into force on 1 July 2011. 

Article 49 

(cid:208) 77/91/EEC 

Article 50 

This Directive is addressed to the Member States. 

Done at […], 

For the European Parliament 
The President 

For the Council 
The President 

EN 

33 

   EN 

 
 
(cid:208)  

ANNEX I 

Types of companies referred to in the first subparagraph of Article 1(1) 

– 

Belgium: 

société anonyme / naamloze vennootschap; 

(cid:208) 77/91/EEC 

– 

Bulgaria: 

акционерно дружество; 

– 

the Czech Republic: 

akciová společnost; 

– 

– 

Denmark: 

aktieselskab; 

Germany: 

Aktiengesellschaft;  

– 

Estonia: 

aktsiaselts; 

(cid:208) 2006/99/EC  Art.  1  and  Annex 
pt. A(2) 

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

(cid:208) 77/91/EEC 

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

EN 

34 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
– 

Ireland: 

public company limited by shares, 

public company limited by guarantee and having a share capital; 

(cid:208) 77/91/EEC 

– 

Greece: 

ανώνυµη εταιρία;  

– 

Spain: 

sociedad anónima; 

– 

– 

France: 

société anonyme; 

Italy: 

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) 77/91/EEC 

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

δηµόσιες  εταιρείες  περιορισµένης  ευθύνης  µε  µετοχές,  δηµόσιες  εταιρείες 
περιορισµένης ευθύνης µε εγγύηση που διαθέτουν µετοχικό κεφάλαιο; 

– 

– 

Latvia: 

akciju sabiedrība; 

Lithuania: 

EN 

35 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
akcinė˙ bendrovė˙; 

– 

Luxembourg: 

société anonyme; 

– 

Hungary: 

nyilvánosan működő részvénytársaság; 

(cid:208) 77/91/EEC 

(cid:208) 2006/68/EC Art. 1 pt. 1 

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

– 

Malta: 

kumpanija pubblika/public limited liability company; 

– 

the Netherlands: 

naamloze vennootschap; 

(cid:208) 77/91/EEC 

– 

Austria: 

Aktiengesellschaft; 

– 

Poland: 

spółka akcyjna; 

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

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

EN 

36 

   EN 

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

(cid:208) 2006/99/EC  Art.  1  and  Annex 
pt. A(2) 

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

– 

Portugal: 

sociedade anónima de responsabilidade limitada; 

– 

Romania: 

societate pe acţiuni; 

– 

– 

Slovenia: 

delniška družba; 

Slovakia: 

akciová spoločnost’; 

– 

Finland: 

julkinen osakeyhtiö/publikt aktiebolag; 

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

– 

Sweden: 

aktiebolag; 

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

EN 

37 

   EN 

 
 
 
 
 
 
 
 
 
 
 
(cid:208) 77/91/EEC 

– 

the United Kingdom: 

public company limited by shares, 

public company limited by guarantee and having a share capital. 

_____________

EN 

38 

   EN 

 
 
 
(cid:207) 

ANNEX II 

Part A 

Repealed Directive with list of its successive amendments 
(referred to in Article 48) 

Council Directive 77/91/EEC 
(OJ L 26, 31.1.1977, p. 1) 

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

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

Council Directive 92/101/EEC 
(OJ L 347, 28.11.1992, p. 64) 

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

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

Directive 2006/68/EC of the European Parliament 
and of the Council 
(OJ L 264, 25.9.2006, p. 32) 

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

only point A(2) of the Annex 

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

Article 1 only 

EN 

39 

   EN 

 
 
 
 
 
 
 
 
Part B 

List of time-limits for transposition into national law and application 
(referred to in Article 48) 

Directive 

Time-limit for transposition 

Date of application  

77/91/EEC 

92/101/EEC 

2006/68/EC 

2006/99/EC 

17 December 1978 

31 December 1993 

1 January 1995 

15 April 2008 

1 January 2007 

2009/109/EC 

30 June 2011 

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EN 

40 

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ANNEX III 

CORRELATION TABLE 

Directive 77/91/EEC 

This Directive 

Article  1(1)  first  subparagraph  introductory 
phrase 

Article 1(1) first subparagraph 

Article  1(1) 
27th indents 

first  subparagraph 

first 

to 

Annex I  

Article 1(1) second subparagraph 

Article 1(1) second subparagraph 

Article 1(2) 

Article 1(2) 

Article 2 introductory phrase 

Article 2 introductory phrase 

Article 2(a) 

Article 2(b) 

Article 2(c) first indent 

Article 2(c) second indent 

Article 2(d) 

Article 2(e) 

Articles 3 to 5 

Article 2(a) 

Article 2(b) 

Article 2(c) 

Article 2(d) 

Article 2(e) 

Article 2(f) 

Articles 3 to 5 

Article 6(1) first subparagraph  

Article 6(1) 

Article 6(1) second subparagraph 

Article 6(2) 

Article 6(3) 

Article 7 

Article 8(1) 

Article 8(2) 

Article 9(1) 

Article 9(2) 

Article 10 

- 

- 

Article 6(2) 

Article 7 

Article 8 first paragraph 

Article 8 second paragraph 

Article 9 first paragraph 

Article 9 second paragraph 

Article 10 

EN 

41 

   EN 

Article 10a(1) first subparagraph 

Article 11(1) first subparagraph 

Article  10a(1)  second  subparagraph  first 
sentence 

Article 11(1) second subparagraph 

Article  10a(1)  second  subparagraph  second 
sentence 

Article 11(1) third subparagraph  

Article 10a(2) first subparagraph 

Article 11(2) first subparagraph 

Article  10a(2)  second  subparagraph  first 
sentence 

Article 11(2) second subparagraph 

Article  10a(2)  second  subparagraph  second 
sentence 

Article 11(2) third subparagraph  

Article  10a(2) 
sentence 

third 

subparagraph 

first 

Article 11(2) fourth subparagraph  

Article  10a(2)  third  subparagraph  second 
sentence 

Article 11(2) fifth subparagraph  

Article 10a(3)  

Article 10b 

Article 11(3)  

Article 12 

Article 11(1) first subparagraph first sentence  Article 13(1) first subparagraph 

Article  11(1) 
sentence 

first  subparagraph  second 

Article 13(1) second subparagraph 

Article 11(1) second subparagraph  

Article 13(1) third subparagraph 

Article 11 (2) 

Article 12 

Article 13 

Article 14 

Article 15(1)(a) 

Article 15(1)(b) 

Article 15(1)(c) 

Article 15(1)(d) 

Article 15(2) 

Article 15(3) 

Article 13(2) 

Article 14 

Article 15 

Article 16 

Article 17(1) 

Article 17(2) 

Article 17(3) 

Article 17(4) 

Article 17(5) 

Article 17(6) 

EN 

42 

   EN 

Article 15(4)first subparagraph 

Article 17(7) first subparagraph 

Article 15(4) second subparagraph first indent  Article 17(7) second subparagraph point (a) 

Article  15(4)  second  subparagraph  second 
indent 

Article 17(7) second subparagraph point (b) 

Article 15(4) third subparagraph 

Article 17(7) third subparagraph 

Article 16 

Article 17 

Article 18 

Article 19 

Article 20 

Article 21 

Article 22 

Article 18 

Article 19 

Article 20 

Article 21 

Article 22 

Article 23 

Article 24 

Article 23(1) first subparagraph 

Article 25(1) first subparagraph 

Article  23(1)  second  subparagraph 
sentence 

first 

Article 25(2) first subparagraph 

Article  23(1)  second  subparagraph  second 
sentence 

Article 25(2) second subparagraph 

Article 23(1) third subparagraph first sentence Article 25(3) first subparagraph 

Article  23(1)  third  subparagraph  first  part  of 
second sentence 

Article 
introductory phrase 

25(3) 

second 

subparagraph 

Article  23(1)  third  subparagraph  remaining 
part of second sentence 

Article  25(3)  second  subparagraph  points  (a) 
to (e) 

Article  23(1) 
sentence 

Article  23(1) 
sentence 

third 

subparagraph 

third 

Article 25(3) third subparagraph 

fourth 

subparagraph 

first 

Article 25(4) first subparagraph 

Article  23(1)  fourth  subparagraph  second 
sentence 

Article 25(4) second subparagraph 

Article 23(1) fifth subparagraph 

Article 25(5) 

Article 23(2) first sentence 

Article 25(6) first subparagraph 

EN 

43 

   EN 

Article 23(2) second sentence 

Article 25(6) second subparagraph 

Article 23(3) 

Article 23a 

Article 24 

Article 24a(1)(a) 

Article 24a(1)(b) 

Article 24a(2) 

Article 24a(3) 

Article 24a(4)(a) 

Article 24a(4)(b) 

Article 24a(5) 

Article 24a(6) 

Article 25  

Article 26 

Article 27 

Article 28 

Article 29 

Article 30 

Article 31 

Article 32 

Article 33 

Article 25(7) 

Article 26 

Article 27 

Article 28(1) first subparagraph 

Article 28(1) second subparagraph 

Article 28(1) third subparagraph 

Article 28(2) 

Article 28(3) 

Article 28(4) 

Article 28(5) 

Article 28(6) 

Article 29 

Article 30 

Article 31 

Article 32 

Article 33 

Article 34 

Article 35 

Article 36 

Article 37 

Article 34, first sentence 

Article 38, first paragraph 

Article 34, second sentence 

Article 38, second paragraph 

Article 35 

Article 36 

Article 37 

Article 38 

EN 

Article 39 

Article 40 

Article 41 

Article 42 

44 

   EN 

Article 39 

Article 40(1) 

Article 40(2) 

Article 41 

Article 42 

Article 43(1) 

Article 43 

Article 44, first paragraph 

Article 44, second paragraph 

Article 45 

Article 46 

- 

Article 43(2) first subparagraph 

Article 47(1) 

Article 43(2) second and third subparagraphs 

- 

Article 43(3) 

Article 47(2) 

- 

- 

Article 44 

- 

- 

Article 48 

Article 49 

Article 50 

Annex II 

Annex III 

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EN 

45 

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