DOCUMENT DE TRAVAIL DES SERVICES DE LA COMMISSION RÉSUMÉ DE L'ANALYSE D'IMPACT   Document accompagnant la  proposition de directive du Parlement européen et du Conseil modifiant les directives 89/666/CEE, 2005/56/CE et 2009/101/CE en ce qui concerne l’interconnexion des registres centraux, du commerce et des sociétés
Date: 2011-02-24
Institutions: European Commission
Subjects: access to information, business management, company law, legal status, multinational enterprise, registration of a company

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EUROPEAN COMMISSION 

Brussels, 24.2.2011 
SEC(2011) 223 final 

COMMISSION STAFF WORKING DOCUMENT 

SUMMARY OF THE IMPACT ASSESSMENT 

Accompanying document to the 

Proposal for a Directive of the European Parliament and of the Council 
amending Directives 89/666/EEC, 2005/56/EC and 2009/101/EC as regards the 
interconnection of central, commercial and companies registers 

SEC(2011) 222 final 
COM(2011) 79 final 

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1. 

INTRODUCTION 

The current financial crisis highlighted once again the importance of transparency across the 
financial markets, including on companies' governance and business activities. The Council's 
Conclusions of 25 May 2010 confirmed that improving access to up-to-date and trustworthy 
information  on  companies  could  encourage  greater  confidence  in  the  market,  help  recovery 
and increase the competitiveness of European business1.  

Business  registers  play  an  essential  role  in  this  regard;  they  register,  examine  and  store 
company information, such as information on a company's legal form, its seat, capital, legal 
representatives and annual accounts, and they make this information available to the public.  

Businesses  increasingly  expand  beyond  national  borders  using  the  opportunities  offered  by 
the Single Market. Consequently, there is and an increasing need for cross-border cooperation 
between business registers and an increasing demand for access to information on companies 
in a cross-border context, either for commercial purposes or to facilitate access to justice.  
On 5 November 2009, the European Commission adopted a Green Paper2 accompanied by a 
progress  report3  on  the  interconnection  of  business  registers.  The  Green  Paper  formed  the 
basis  of  a  public  consultation  where  nearly  all  respondents  expressed  their  support  for  the 
improvement of the interconnection of business registers in the EU4.  

On  25  May  2010,  the  Competitiveness  Council  adopted  conclusions  welcoming  the 
Commission's initiative to improve the interconnection of business registers. The report of the 
European Parliament also urged the Commission and Member States to make progress in this 
area5.  Finally,  the  opinions  of  the  European  Economic  and  Social  Committee6  and  the 
Committee of Regions7 expressed strong support for the Commission initiative. 

The  IA  report  was  examined  by  the  Impact  Assessment  Board  in  written  procedure.  The 
Board issued a favourable opinion on 15 September 2010. Following the Board's opinion, a 
number of changes were made to the report.  

2. 

CONTEXT 

Business  registers  exist  in  every  Member  State;  they  are  organised  either  at  a  national, 
regional or local level. In 1968 common rules were adopted to establish minimum standards 
for disclosure (registration and publication) of business information8. Since 1 January 2007, 

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9678/10. 
COM(2009) 614 final. 
SEC(2009) 1492. 
Feedback statement: http://ec.europa.eu/internal_market/company/business_registers/index_en.htm 
2010/2055(INI). 
INT/517. 
CdR 20/2010. 
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 (OJ L 258, 1.10.2009, p. 11). 

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Member States also have to maintain electronic business registers9 and allow third parties to 
access the content of the register online. 

Reliable up-to-date information on companies is crucial for consumers, existing or potential 
business  partners,  public  administration  and  justice  also  in  the  cross-border  context. 
Moreover,  cooperation  of  business  registers  from  different  Member  States  is  explicitly 
required by European legal instruments that have been adopted in the last decade in order to 
facilitate  the  cross-border  mergers  of  limited-liability  companies10  and  the  cross-border  seat 
transfer of the European Company (SE)11 and a European Cooperative Society (SCE)12.  

Since 1992 a voluntary cooperation mechanism between the business registers in Europe has 
been  in  existence.  By  now  the  so-called  European  Business  Register  (EBR)13  combines 
official  business  registers  from  19  Member  States  and  six  other  European  jurisdictions. 
Between  2006  and  2009,  EBR  took  part  in  a  research  project  called  BRITE14  that  had  the 
objective  to  develop  a  technological  platform  for  the  interoperability  of  business  registers 
throughout Europe. But EBR faces significant challenges as regards its expansion, financing 
and governance; the current cooperation mechanism is not satisfactory for the potential users. 

Another relevant project is the Internal Market Information System (IMI) that is an electronic 
support  day-to-day  administrative  cooperation  between  public 
tool  designed 
administrations  in  the  context  of  the  Services  Directive  (2006/123/EC)  and  the  Professional 
Qualifications  Directive  (2005/36/EC).  IMI  services  could  also  support  the  enforcement  of 
other directives. 

to 

Finally,  the  European  e-Justice  portal  will  be  the  key  point  of  access  to  legal  information, 
legal  and  administrative  institutions,  registers,  databases  and  other  services  with  a  view  to 
speeding up the daily tasks of citizens, legal and other experts and the judiciary.  

3. 

SUBSIDIARITY 

Nearly  two  decades  of  experience  with  EBR  show  that  self-regulation  is  not  sufficient  to 
achieve  the  objectives  of  this  initiative.  The  objectives  also  cannot  be  achieved  by  the 
Member  States  as  a  common  set  of  rules,  and  conditions  for  the  cross-border  cooperation 
between  the  national  business  registers  need  to  be  established.  If  such  provisions  were 
determined at national level, they could be incompatible with each other and not be suitable to 
reach the objectives. Action at EU level is therefore necessary and justified. 

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Directive  2003/58/EC  of  the  European  Parliament  and  of  the  Council  of  15  July  2003  amending 
Council  Directive  68/151/EEC,  as  regards  disclosure  requirements  in  respect  of  certain  types  of 
companies (OJ L 221, 4.9.2003, p. 13). 
Directive  2005/56/EC  of  the  European  Parliament  and  of  the  Council  of  26 October  2005  on  cross-
border mergers of limited liability companies (OJ L 310, 25.11.2005, p. 1). 
Regulation (EC) No 2001/2157 of 8 October 2001 on the Statute for a European company (OJ L 294, 
10.11.2001, p. 1). 
Regulation (EC) No 2003/1435 of 18 August 2003 on the Statute for a European Cooperative Society 
(OJ L 207, 18.08.2003, p. 1).  
http://www.ebr.org/  
http://www.briteproject.eu  

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4. 

OBJECTIVES 

The  general  objectives  of  this  initiative  are  to  increase  confidence  in  the  Single 
Market  and  the  competitiveness  of  European  businesses  as  well  as  to  improve  the 
performance  of  public  administration  by  promoting  cooperation  between  business 
registers  in  Europe.  The  specific  objectives  include  ensuring  a  safer  business 
environment  for  consumers,  creditors  and  other  business  partners,  increasing  legal 
certainty, reducing administrative burden on companies and accelerating procedures. 

In particular, this initiative aims at: 

•  Ensuring that the business register of the company provides up-to-date information on the 
status of the company to the business register(s) of the foreign branch all across Europe 

•  Developing  a  cooperation  framework  between  business  registers  in  cross-border  merger 

and seat transfer procedures  

•  Facilitating cross-border access to official business information by determining a common 
minimum set of up-to-date company information to be made available through the network 
to third parties in every Member State  

5. 

PROBLEM DEFINITION, OPTIONS AND IMPACTS 

The issues around the interconnection of business registers can be grouped in three different 
sections:  lack  of  up-to-date  business  information  in  the  register  of  foreign  branches,  the 
difficulties  of  cooperation  in  cross-border  merger  and  seat  transfer  procedures  and  difficult 
cross-border access to business information.  

The  impact  of  the  possible  policy  options  was  measured  against  the  following  criteria: 
effectiveness,  impact  on  stakeholders  (consumers,  creditors,  etc.),  administrative  burden 
reduction, legal certainty, flexibility and costs.  

5.1. 

Cost scenarios 

The costs depend on the chosen technological solution. The choice of the ICT tools needs to 
be  made  in  the  implementation  phase.  The  ICT  implications  of  the  present  initiative  are 
therefore  only  of  indirect  nature.  The  impact  assessment  carried  out  a  high-level  cost 
assessment on the basis of different technologies. The basic difference between them is that 
EBR allows for automated data exchange and is able to treat high volumes of data at the same 
time.  IMI  requires  manual  data  exchange  and  is  suitable  for  low  volume  electronic 
communication.  

IMI  is  run  by  the  Commission.  The  costs  of  the  services  are  therefore  borne  by  the 
Commission. The extension of EBR/BRITE should be financed by the Member States unless 
EU funds become available for this purpose.  

Scenario 1 considered the costs of building on the EBR and the BRITE project and extending 
the scope of the current cooperation to the remaining eight Member States. The overall cost of 
the  extension  would  reach  EUR  164,472.  The  annual  maintenance  costs  could  reach  EUR 
495,000. 

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Scenario  2  examined  the  costs  of  developing  a  solution  using  IMI.  Member  States  do  not 
share  any  of  the  maintenance  or  hosting  costs  in  IMI.  In  2009,  the  costs  borne  by  the 
Commission were around EUR 518,000. The introduction of a new area would require some 
investment within the Commission in terms of development and support. 

Scenario 3 estimated the costs of building a new network of business registers based on the 
costs  of  building  IMI  and  EBR.  Up  until  2009,  the  overall  IMI  development  costs  reached 
nearly EUR 2 million and the maintenance costs nearly EUR 770,000 (excluding the costs of 
human resources). The cost of building an EBR-like network from scratch would amount to 
EUR 11.06 million. The annual maintenance cost could reach EUR 405,000. Due to the high 
costs of this option and the wish of Member States to build on results already achieved in this 
area (EBR, BRITE and IMI), this scenario was discarded. 

5.2. 

Lack  of  up-to-date  business  information  in  the  business  register  of  foreign 
branches  

The 11th Company Law Directive requires companies to disclose a number of particulars and 
documents when they open a branch in another Member State. However, companies often fail 
to update this information. The omission may have critical consequences to the protection of 
consumers and business partners in particular when the register of the branch is not notified 
about the dissolution or the insolvency of the company (15% of the examined cases). Taking 
into  account  the  overall  number  of  foreign  branches  in  Europe  (over  112,000),  16,800 
registered foreign branches could be in this situation. 

The  lack  of  updated  information  in  the  business  register  of  a  foreign  branch  makes  the 
business  environment  riskier  for  consumers  and  creditors  and  reduces  legal  certainty. 
Moreover,  the  lack  of  cooperation  between  business  registers  puts  administrative  burden  on 
companies that could potentially be reduced by EUR 69 million15.  

Four options were examined:  

•  Option A1: No policy change 

•  Option A2: Recommend detailed rules for business registers on the method of cooperation 

in updating information on cross-border branches 

•  Option  A3:  Lay  down  a  legal  requirement  for  the  business  registers  to  cooperate  by 
electronic means with regard to updating the registration of foreign branches and specify 
the technical details of the cooperation 

•  Option  A4:  Lay  down  a  legal  requirement  for  the  business  registers  to  cooperate  by 
electronic means with regard to updating the registration of foreign branches and specify 
the technical details of the cooperation in a delegated act/governance agreement 

The conclusion of the impact assessment is the option A4 should be preferred. While 
options  A2-A4  could  bring  about  positive  changes  as  regards  effectiveness,  option 
A2  could  not  ensure  legal  certainty  and  the  application  of  the  rules  in  all  Member 

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Cf.  Cap  Gemini,  Deloitte,  Ramboll  Management:  Final  Report  for  Priority  Area  Annual  Accounts  / 
Company Law, EU Project on Baseline Measurement and Reduction of Administrative Costs. 

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States.  Options  A3  and  A4  could  reduce  administrative  burden  and  provide  legal 
certainty. While option A3 would assure the highest level of uniformity, it would not 
be  flexible  at  all.  Option  A4  would  complement  legislation  by  a  delegated  act  and 
thus would allow the different registries to take into account their specificities. The 
costs of options A3 and A4 would be the same. 

5.3. 

Difficulties  of  cooperation  between  business  registers  in  cross-border  merger 
and seat transfer procedures 

The  cross-border  cooperation  of  business  registers  in  cross-border  merger  and  seat  transfer 
procedures is required explicitly by European legal instruments. However they do not provide 
guidance  on  the  method  of  sending  the  notification.  In  practice,  the  notifications  between 
business  registers  are  usually  transmitted  by  regular  mail  in  the  language  of  the  issuing 
authority.  Due  to  the  current  low  number  of  procedures,  business  registries  are,  at  present, 
able  to  treat  the  notifications  manually.  However,  they  expect  to  face  difficulties  if  the 
number increases in the future. 

The  difficulties  of  cooperation  between  business  registers  in  cross-border  merger  and  seat 
transfer  have  a  negative  impact  on  legal  certainty.  If  a  requirement  for  cooperation  existed 
when an SE or an SCE is created by cross-border merger, the administrative burden on these 
companies could be reduced. 

Four options were examined:  

•  Option B1: No policy change 

•  Option B2: Recommend detailed rules for business registers on the method of cooperation 

in cross-border merger and seat transfer procedures 

•  Option B3: Lay down legal requirements specifying the technical details of the cooperation 

between business registers in cross-border merger and seat transfer procedures 

•  Option B4: Lay down legal requirements for cooperation and specify the technical details 
in  cross-border  merger  and  seat  transfer  procedures  in  a  delegated  act/governance 
agreement  

The conclusion of the impact assessment is that option B4 should be preferred. As, with the 
exception  of  the  formation  of  an  SE  and  an  SCE  through  a  cross-border  merger,  there  are 
already legal obligations for business registers to cooperate on cross-border procedures, only a 
legal provision delegating powers to the Commission is necessary. Option B3 seems too rigid 
while options B2 and B4 both provide the necessary flexibility for Member States. However, 
option  B4  (delegated  act)  is  the  more  appropriate  solution  as  it  mandatorily  involves  all 
Member States while in option B2 keeps the participation voluntary. Options B3 and B4 could 
reduce administrative burden on companies in relation to the formation of SEs and SCEs by a 
cross-border merger. The costs could be limited, depending on the choice of the ICT tools. 

5.4. 

Difficult cross-border access to business information 

While  business  information  on  companies  is  easily  available  in  the  country  of  their 
registration, access to the same information from another Member State may be hindered by 

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technical or language barriers EBR does not cover all 27 Member States and the information 
that is accessible through the network varies from one country to another. 

The  lack  of  a  unique  company  identifier  makes  the  identification  of  companies  difficult  in 
cross-border  situations  (e.g.  mergers  or  groups).  The  frequency  of  updating  business 
information is currently not harmonised and there is no information for the users of the data as 
regards its reliability in the different Member States. 

The limited cross-border access to business information results in a riskier business 
environment  for  consumers  and  for  existing  or  potential  business  partners.  The 
problem also results in less legal certainty.  

Four options were examined:  

•  Option C1: No policy change 

•  Option C2: Recommend detailed rules for business registers to ensure better cross-border 

access to information 

•  Option  C3:  Lay  down  a  requirement  for  Member  States  to  participate  in  an  electronic 
network of business registers, specify the list of information to be transmitted through the 
network, the frequency of updating the registered information and the technical details of 
the cooperation 

•  Option  C4:  Lay  down  a  requirement  for  Member  States  to  participate  in  an  electronic 
network of business registers, determine the list of information to be transmitted through 
the  network  and  the  frequency  of  updating  the  registered  information  and  specify  the 
technical details of the cooperation in a delegated act/governance agreement 

The conclusion of the impact assessment is the option C4 should be preferred. Option C2 has 
a  potential  while  options  C3  and  C4  have  a  certain  positive  impact  on  stakeholders.  Non-
legislative  measures  (option  C2)  could  not  ensure  legal  certainty  with  respect  to  access  to 
information. Options C3 and C4 would create a clear legal framework, but option C3 would 
require legislative amendments in case technical details change. Option C4 would ensure the 
necessary  flexibility.  The  options  have  no  impact  on  administrative  burden.  The  costs, 
however, could be significant. 

6. 

MONITORING AND EVALUATION 

The  Commission  will  follow  the  implementation  phase  of  the  provisions  and  provide  for  a 
framework  for  a  structured  discussion  of  national  experts  (e.g.  workshops)  on  the  details  of 
the  delegated  act.  Five  years  after  the  transposition  of  the  provisions,  the  effect  of  the 
measures should be evaluated.  

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