Source: EURLEX
Language: en
Format: md

No C 99 / 40 Official Journal of the European Communities 21.4 . 92

Proposal for a Council Regulation on the statute for a European mutual society

( 92 / C 99 / 05 )

COM(91 ) 2 73 final — SYN 390

( Submitted by the Commission on 6 March 1992 )

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Economic Community, and in particular Article 100a
thereof,

Having regard to the proposal from the Commission,

In cooperation with the European Parliament,

Having regard to the opinion of the Economic and
Social Committee,

Whereas the Commission adopted a communication to
the Council of 18 December 1989 ('); whereas the

Economic and Social Committee gave its opinion on
that communication on 19 September 1990 ( 2 );

Whereas the completion of the internal market means
that there must be full freedom of establishment for all

activities which contribute to the objectives of the
Community, irrespective of the form taken by the body
which carries them on ;

Whereas, therefore, the Community, which is con ­
cerned to respect equal terms of competition and to
contribute to its economic development, should pro ­
vide mutual societies, which are a form of organization
generally recognized in most Member States, with ade ­
quate legal instruments capable of facilitating the
development of their transnational activities ;

Whereas by the attainment of their objectives and the
form of their operations mutual societies play a full
part in the life of the economy ;

2137 / 85 ( 4 ), does allow groupings to promote certain of
their activities in common, while nevertheless preserv ­
ing their independence, but it does not meet the spe ­
cific requirements of mutual societies ;

Whereas respect for the principle of the pnmacy of the
individual is reflected in the specific rules on member ­
ship, resignation and expulsion, where the one-man,
one-vote rule is laid down and the right to vote is
vested in the individual, with the implication that
members cannot exercise any rights over the assets of
the society ;

Whereas mutual societies are essentially groups of per ­
sons operating in accordance with their own principles,
which are different from those applying to other busi ­

nesses ;

Whereas cross-border cooperation between mutual
societies in the Community is currently hampered by
legal and administrative difficulties which should be
eliminated in a market without frontiers ;

Whereas the introduction of a European form of organ ­
ization which would be available to mutual societies,
based on common principles but taking account of
their specific features, and in particular of the fact that
they may operate in the general interest, should enable
them to operate outside their own national borders in
all or part of the territory of the Community ;

Whereas the essential aim of the legal rules governing

Whereas the statute for a European company, as prov ­ the European mutual society implies that such a society
## ided for in Regulation ( EEC ) No .../... ( 3 ), is not an may be set up by legal entities from different Member

instrument which is suited to the specific features of States, or by transformation of a national mutual
mutual societies ; society into the new form, without first being wound

up, so long as the mutual society has its registered off ­
ice and central administration in the Community and

Whereas the European Economic Interest Grouping an establishment or subsidiary in a Member State other
( EEIG ), as provided for in Regulation ( EEC ) No than that in which it has its central administration ; in

this last case, the mutual society must engage in gen ­
(') Businesses in the ' économie sociale ' sector — Europe s uine and effective cross-border activity ;
frontier-free market : SEC(89 ) 2187 final, 18 . 12 . 1989 .
0 OJNoC 332, 31 . 12 . 1990, p. 81 .
( 3 ) OJ No L . . . ( 4 ) OJ No L 199, 31 . 7 . 1985, p. 1 .

Whereas the statute for a European company, as prov ­
## ided for in Regulation ( EEC ) No .../... ( 3 ), is not an

instrument which is suited to the specific features of
mutual societies ;

Whereas the European Economic Interest Grouping
( EEIG ), as provided for in Regulation ( EEC ) No

21.4 . 92 Official Journal of the European Communities No C 99 / 41

Whereas European mutual societies should hold a for ­
mation fund ;

Whereas the rules on accounting are intended to ensure
more effective management and to forestall any possi ­
ble difficulty ;

Whereas this Regulation does not affect basic obliga ­
tory social security schemes managed in certain Mem ­
ber States by mutual provident societies and the liberty
of Member States to decide whether or not and under

what conditions to entrust the management of these
schemes to mutual societies ;

Whereas, on matters not covered by this Regulation,
the provisions of the law of the Member States and of
Community law are applicable, for example with
regard to :

— rules on employee involvement in the decision ­

making process,

— employment law,

— taxation law,

— competition law,

— intellectual and industrial property law,

— rules on insolvency and suspension of payments ;

Whereas the application of this Regulation must be
deferred so as to enable each Member State to incor ­

porate into its national law the provisions of Council
## Directive .../... / EEC supplementing the Statute for

a European mutual society with regard to the involve ­
ment of employees (') and to put in place in advance
the necessary machinery for securing the formation and
operation of European mutual societies having their
registered office in its territory, so that the Regulation
and the Directive may be applied concomitantly ;

Whereas work on the approximation of national com ­
pany law has made substantial progress so that refer ­
ence may be made to certain dispositions made by the

Member State where the European mutual society has
its registered office for the purpose of implementing
directives on companies, by analogy for the European
mutual society in areas where the functioning of the
society does not require uniform Community rules,
such dispositions being appropriate to the arrange ­
ments governing the European mutual society :

guards equivalent throughout the Community ( 2 ),

as last amended by the Act of Accession of Spain
and Portugal,

— Council Directive 78 / 660 / EEC of 25 July 1978
based on Article 54(3)(g ) of the Treaty on the
annual accounts of certain types of companies ( 3 ),
as last amended by Directives 90 / 604 / EEC ( 4 ) and
90 / 605 / EEC ( 5 ),

— Council Directive 83 / 349 / EEC of 13 June 1983

based on Article 54(3)(g ) of the Treaty on consoli ­
dated accounts ( 6 ), as last amended by Directives
90 / 604 / EEC and 90 / 605 / EEC,

— Council Directive 84 / 253 / EEC of 10 April 1984

based on Article 54(3)(g ) of the Treaty on the
approval of persons responsible for carrying out
the statutory audits of accounting documents ( 7 ),

— Council Directive 89 / 48 / EEC of 21 December

1988 on a general system for the recognition of
higher-education diplomas awarded on completion
of professional education and training of at least
three years ' duration ( 8 ),

— Council Directive 89 / 666 / EEC of 21 December

1989 concerning disclosure requirements in respect
of branches opened in a Member State by certain
types of company governed by the law of another
State ( 9 ) ;

Whereas the activities in the field of financial services

and notably as they concern establishments and insur ­
ance enterprises have been the subject of legislative
measures pursuant to the following Directives :

— Council Directive 86 / 635 / EEC of 8 December

1986 on the annual accounts and consolidated

accounts of banks and other financial institutions

( 10 ),

— Council Directive 89 / 646 / EEC of 15 December

1989 on the coordination of laws   - regulations and
administrative provisions relating to the taking up
and pursuit of the business of credit institutions
and amending Directive 77 / 780 / EEC ( ll ),

— Council Directive ../... / EEC of ... on the coor ­

dination of laws, regulations and administrative

— Council Directive 68 / 151 / EEC of 9 March 1968

( 2 ) OJ No L 65, 14 . 3 . 1968, p. 8 .

on coordination of safeguards which, for the pro ­ 0 OJ No L 222, 14 . 8 . 1978, p. 11 .
tection of the interests of members and others, are ( 4 ) OJ No L 317, 16 . 11 . 1990, p . 57 .
required by Member States of companies within O OJ No L 317, 16 . 11 . 1990, p . 60 .
the meaning of the second paragraph of Article 58 ( ( 6 7 ) ) OJ OJ No No L L 193 126,, 18 12 . . 7 5 . . 1983 1984,, p. p. 1 20 . .
of the Treaty, with a view to making such safe ­ (») OJ No L 19,24 . 1 . 1989, p. 16 .

( 9 ) OJNoL395, 30 . 12 . 1989, p . 36 .
( I0 ) OJ No L 372, 31 . 12 . 1986, p. 1 .
(') See page 57 of this Official Journal — Proposal . (») OJ No L 386, 30 . 12 . 1989, p. 1 .

No C 99 / 42 Official Journal of the European Communities 21.4 . 92

provisions relating to direct insurance other than
life insurance and amending Directives 73 / 239 /
## EEC and 88 / 357 / EEC 0 ;

Whereas this form of organization should be optional,

HAS ADOPTED THIS REGULATION :

TITLE I

GENERAL PROVISIONS

CHAPTER I

FORMATION OF THE EUROPEAN MUTUAL

SOCIETY

Article 1

( Form of the European mutual society )

1 . Mutual societies may be formed throughout the
Community in the form of a European mutual society
( ME ) on the conditions and in the manner set out in
this Regulation . The name of an ME shall specify the
nature of the activity engaged in, whether concerned
with providence, insurance, health assistance, credit, or
otherwise .

2 . An ME :

— shall guarantee its members, in return for a sub ­

scription, full settlement of contractual undertak ­
ings entered into in the course of the activities
authorized by its statutes ; and

— shall not remunerate its managers or administra ­

tors, unless otherwise provided in its statutes .

3 . An ME shall operate with a formation fund and
reserves which shall serve exclusively to cover its debts .

4 . An ME shall have legal personality . It shall acquire
it on the day of its registration in the Member State in
# which it has its registered office in the, register desig ­

nated by that State in accordance with Article 8 ( 3 ).

5 . This Regulation does not prejudice the competence
of each Member State to regulate access on its territory
to the management of basic obligatory social security
schemes as well as the operations of provident or
assistance organizations the services of which will vary
according to available resources and in which the con ­
tributions of members is determined by contract, as
well as the carrying out of the activities and operations .

Article 2

( Formation )

1 . An ME may be formed by :

( a ) either any two or more of the legal entities which

are listed in Annex I which are formed under the

law of a Member State provided that at least two of
them have their registered office and central
administration in different Member States ; in this
case, the ME will be able to exercise all activities
appropriate to a mutual society of the type of those
mentioned in Article 1 ( 1 );

( b ) or any two or more of the legal entities which are

listed in Annex 2 and which are formed under the

law of a Member State provided that at least two of
them have their registered office and central
administration in different Member States ; in this
case, in conformity with Article 1 ( 5 ), the ME will
not be able to be formed and carry out its activities
except to the extent allowed by Member States to
the founding entities .

2 . A mutual society which has been formed in accord ­
ance with the law of a Member State and has its regis ­
tered office and central administration in the Com ­

munity may form an ME by converting into ME form
if it has an establishment or subsidiary in a Member
State other than that of its central administration, and
can demonstrate that it is carrying on genuine and
effective cross-border activities .

Such conversion shall not result in the society being
wound up or in the creation of a new legal person .

The administrative or management board of such a
society shall draw up a proposal for conversion cover ­
ing the legal and economic aspects of the conversion .

, The conversion to ME form and the ME 's statutes shall
well as the carrying out of the activities and operations .

be approved by the general meeting of members in
accordance with the requirements laid down for
(') CQM(90 ) 348 final — SYN 291 . amendment of its statutes by Article 22 .

21.4 . 92 Official Journal of the European Communities No C 99 / 43

Article 3

( The statutes of the ME )

1 . The statutes of the ME must include :

— the name of the ME, specifying the nature of the

activity engaged in, and preceded or followed by
the abbreviation ' ME ',

— a precise statement of the objects of the ME,

— the name, objects and registered offices of the

founder members, where these are legal entities ;

# — the address of the ME 's registered office ;

— the conditions and procedures for the admission,

expulsion and resignation of members,

— the rights and obligations of members and of the

ME,

— the subscriptions payable by natural or legal per ­

sons, and, where appropriate, provisions as to

arrears,

— the management structure,

— the powers and responsibilities of each of the gov ­

erning bodies of the ME,

— provisions governing the appointment and removal

of the members of the governing bodies,

— the majority and quorum requirements,

— a definition of the governing bodies, or members of

those bodies, having authority to represent the ME
in dealings with third parties,

— the conditions for the initiation of proceedings on

behalf of the ME under Article 42,

— the grounds for winding up .

2 . For the purposes of this Regulation the ' statutes ' of
the ME comprise both the instrument of incorporation
and, where they are set out in a separate document, the
ME 's statutes properly so-called .

3 . For the purposes of this Regulation a ' member ' of
any ME means any legal person who took part in the
foundation of the ME or who acquired membership
later .

Article 4

( Formation fund )

1 . The formation fund shall be not less than ecu

100 000 or the equivalent in national currency .

2 . Where the law of a Member State requires a higher
amount in the case of mutual societies engaged in cer ­
tain types of activity, the same requirement shall apply
to MEs which have their registered office in that State .

Article 5

( Registered office )

The registered office of an ME shall be situated at the
place specified in its statutes, which must be within the
Community . It must be the same as the place where the
ME has its central administration .

Article 6

# ( Transfer of registered office )

1 . The registered office of an ME may be transferred
within the Community . Such transfer shall not result in
the ME being wound up or in the creation of a new
legal person .

2 . Where the transfer of the registered office results in
a change of the law applicable pursuant to Article 7(1 )
( b ), a transfer proposal shall be published in accord ­
ance with Article 9 .

No decision to transfer may be taken for two months
after publication of the proposal . Any such decision
must be taken under the conditions laid down for the

amendment of the statutes . The transfer of the regis ­
tered office of the ME and the resulting amendment to
its statutes shall take effect from the date of registration
of the ME, in accordance with Article 8 ( 3 ), in the regis ­
# ter for the new registered office That . registration may

not be effected until evidence has been produced that
the proposed transfer of the registered office has been
published .

3 . The removal of the ME from the register for its pre ­
vious registered office may not be effected until evi ­
dence has been produced that the ME has been regis ­
# tered in the register for its new registered office .

4 . The fact of the new registration and the fact of the
removal of the old registration shall both be published
in the Member States concerned in accordance with

Article 9 .

5 . The new registration of the registered office of the
ME may be relied on as against third parties from pub ­
lication . However, until the removal of the ME from
the register for its previous registered office has been
published third parties may continue to rely on the old
registered office unless the ME proves that such third
# parties were aware of the new registered office .

Article 7

( Applicable law )

1 . An ME shall be governed :

( a ) — by the provisions of this Regulation,

— where expressly authorized by this Regulation,

by the provisions freely determined by the par ­
ties in the statutes of the ME ;

No C 99 / 44 Official Journal of the European Communities 21.4 . 92

failing this :

( b ) — by the provisions of the law of the Member

State in which the ME has its registered office
governing domestic mutual societies engaging
in comparable activities,

— by the provisions freely determined by the par ­

ties in the statutes of the ME, in accordance
with the same conditions as for mutual socie ­

ties engaging in comparable activities and gov ­
erned by the law of the Member State in which
# the ME has its registered office .

2 . Where a State comprises several territorial units,
each of which has its own rules of law applicable to the
matters referred to in paragraph 1, each territorial unit
shall be considered a State for the purposes of identify ­
ing the law applicable under point ( b ) of paragraph 1 .

3 . In each Member State and subject to the express
provisions of this Regulation, an ME shall have the
same rights, powers and obligations as a mutual society
formed under the law of the State in which the ME has

# its registered office .

4 . The following shall apply to an ME :

— the provisions of Community law and national law

adopted in conformity with them,

and

— in the absence of community legislation, national
provisions regulating access or the exercise of cer ­
tain activities such as credit or insurance .

Article 8

( Registration and disclosure requirements )

1 . The founder members shall draw up the statutes of
the ME in accordance with the provisions for the for ­
mation of mutual societies laid down by the law of the
State in which the ME has its registered office . The sta ­
tutes must at least be in writing and signed by the foun ­
der members .

2 . In those Member States whose legislation does not
provide for any precautionary supervision, whether
administrative or judicial, at the time of formation, the
statutes shall be adopted by notarial act . The supervi ­
sory authority shall seek to ensure that this act complies
with the requirements for the formation of an ME, and
in particular those set out in Articles 1, 2, 3 and 5 .

3 . Member States shall designate the register in which
MEs must be registered and shall determine the rules
governing it . They shall lay down the procedures for fil ­

ing the ME 's statutes . No ME may be registered until
## the measures required by Directive .../... / EEC [ sup ­

plementing the statute for a European mutual society
with regard to the involvement of employees ] have
been adopted .

4 . Member States shall take the measures required to
ensure that the following documents and particulars
are disclosed as provided for in paragraph 3 :

( a ) the statutes of the ME, any amendments to them,

and the complete text of the statutes in its up-to ­
date form ;

( b ) the opening or closing of any establishment ;

( c ) the appointment, termination of office and particu ­

lars of the persons who either as a body constituted
pursuant to law or as members of any such body :

— are authorized to represent the ME in dealings

with third parties and in legal proceedings,

— take part in the administration, supervision or

control of the ME ;

( d ) at least once a year, the amount of the formation

fund, unless any increase in the formation fund
requires an amendment to the rules ;

( e) the balance sheet and the profit and loss account

for each financial year ; the document containing
the balance sheet shall give particulars of the per ­
sons who are required by law to certify it ;

( f ) any proposal to transfer the registered office as

referred to in Article 6 ( 2 );

( g ) the winding-up and liquidation of the ME and the

decision to continue the ME 's activities taken

under Article 49 ;

( h ) any declaration of nullity of the ME by a court ;

( i ) the appointment of liquidators, particulars of such
liquidators, and their respective powers, the termi ­
nation of their office ;

0 ) the conclusion of the liquidation of the ME and
the removal of the ME from the register .

5 . If, prior to its acquisition of legal personality, steps
have been taken in the name of an ME, and the ME
does not assume the obligations arising from those
steps, the persons who took them shall be jointly and
severally liable therefor, unless otherwise agreed .

Article 9

( Publication of documents and particulars relating to

the ME in the Member States )

1 . Member States shall ensure that the documents and

particulars referred to in Article 8 ( 4 ) are disclosed in

21.4 . 92 Official Journal of the European Communities No C 99 / 45

the appropriate official gazette in the Member State m
# which the ME has its registered office and shall, deter ­

mine by which persons the disclosure formalities are to
be carried out . Disclosure shall be effected by publica ­
tion either of an extract or of a reference to the entry in
the register .

Member States shall also ensure that anyone may con ­
sult the documents referred to in Article 8 ( 4 ) in the
register referred to in Article 8 ( 3 ), and may obtain a
copy of the whole or any part, by post if requested .

Member States shall take the necessary measures to
avoid any discrepancy between what is disclosed by
publication and what appears in the register . However,
in cases of discrepancy, the text published may not be
relied on as against third parties ; the latter may never ­
theless rely thereon, unless the ME proves that they
had knowledge of the text entered in the register .

Member States may require payment of a fee for the
services referred to in the preceding subparagraphs, but
the fee may not exceed the administrative cost .

2 . The national rules adopted pursuant to Directive
89 / 666 / EEC shall apply to branches of a ME opened
in a Member State other than that in which it has its

# registered office .

3 . Documents and particulars may be relied on by the
ME as against third parties only after they have been
disclosed in accordance with paragraph 1, unless the
ME proves that the third party had knowledge thereof .
However, they may not be relied on in respect of trans ­
actions which take place before the 16th day after pub ­
lication as against third parties who prove that they
could not have had knowledge thereof .

4 . Third parties may rely on any documents and parti ­
culars in respect of which the disclosure formalities
have not yet been completed, save where non-disclo ­
sure causes them not to have effect .

Article 10

( Notice in the Official Journal )

Member States shall ensure that a notice stating that an
ME has been registered or that the liquidation of an
ME has been concluded is published for information
purposes in the Official Journal of the European Com ­

munities, stating the number, date and place of registra ­
tion of the ME, the date and place of publication and
the title of the publication, the address of the ME and a
summary of its objects, and that these particulars are

forwarded to the Office for Official Publications of the

European Communities within one month of the date
of the publication in the official gazette of the Member
State in which the ME has its registered office pursuant
to Article 9(1 ).

Where the registered office of the ME is transferred in
accordance with Article 6 ( 2 ) a notice shall be pub ­
lished containing the information provided for in the
first paragraph, together with that relating to the new
registration .

Article 11

( Particulars to be stated in the ME 's documents )

Letters and documents sent to third parties shall state
legibly :

( a ) the name of the ME, preceded or followed by the

abbreviation ' ME ';

( b ) the place of the register in which the ME is regis ­

tered in accordance with Article 8 ( 3 ), and the num ­
ber of the ME 's entry in that register ;

# ( c ) the address of the ME 's registered office ;

( d ) the fact that the ME is in liquidation or under the

administration of the courts if that is so .

CHAPTER II

GENERAL MEETING

Article 12

( Competence )

The general meeting shall decide on :

( a ) matters for which it has sole responsibility under

this Regulation ;

( b ) matters for which the management board, supervi ­

sory board or administrative board do not have
sole responsibility as a result of :

— this Regulation,

— Directive . . . [ supplementing the Statute for a
European mutual society with regard to the
involvement of employees ],

— the law of the State where the ME has its regis ­
## tered office,

— the statutes of the ME .

Article 13

( Holding of general meeting )

1 . A general meeting shall be held at least once a
year, not later than six months after the end of the
ME 's financial year .

No C 99 / 46 Official Journal of the European Communities 21.4 . 92

2 . General meetings may be convened at any time by
the management board or the administrative board .
The management board is bound to convene the gen ­
eral meeting at the request of the supervisory board .

3 . The agenda for the general meeting held after the
end of the financial year shall include at least the
approval of the annual accounts and of the appropria ­
tion of the profit or treatment of the loss and the
approval of the annual report referred to in Article 46
of Directive 78 / 660 / EEC, to be submitted by the man ­
agement or administrative board .

4 . The statutes of an ME with a management board
and a supervisory board may provide that a decision on
approval of the annual accounts is to be taken jointly
by the two boards, in separate votes, and that the gen ­
eral meeting is to pass a resolution only if the boards
are unable to reach agreement .

Article 14

( Meeting called by a minority of members )

1 . Not less than 25% of the members of the ME,
which proportion may be reduced by the statutes, may
request that the general meeting be convened and its
agenda set .

2 . The request for a meeting shall give the reasons for
convening it and the items to be included on the
agenda .

3 . If, following a request made under paragraph 1, the
necessary steps have not been taken within one month,
the court or competent authority within the State where
the ME 's registered office is situated may order the
convening of a general meeting or authorize either the
members who have requested it or their representative
to convene the meeting .

4 . A general meeting may during a meeting decide
that a further meeting be convened and set the date and
the agenda .

Article 15

( Notice of meeting )

1 . The general meeting shall be convened :

— by a notice published in the national gazette

appointed by the Member State in which the ME
has its registered office in accordance with Article 3
( 4 ) of Directive 68 / 1 5 1 / EEC,

— by a notice published in one or more newspapers

with a large circulation in the Member States,

— or by a notice in writing sent to every member of

the ME by any available means .

2 . The notice calling the general meeting shall contain
the following particulars, at least :

— the name and the registered office of the ME,

— the place and date of the meeting,

— the type of general meeting ( ordinary, extraordi ­

nary or special ),

— a statement of the formalities, if any, prescribed by
the rules for attendance at the general meeting and
for the exercise of the right to vote,

— the agenda, showing the subjects to be discussed

and the proposals for resolutions .

3 . The period between the date of publication of the
notice or the date of dispatch of the communication
referred to in paragraph 1 and the date of the opening

of the general meeting shall be not less than 30 days .

Article 16

( Addition of items to the agenda )

Not less than 25 % of the members of the ME, which
proportion may be reduced by the statutes, may, within
ten days of receipt of the notice convening a general
meeting, request the addition of one or more items to
the agenda .

Article 17

( Attendance and proxies )

1 . Only members shall be entitled to speak and vote
at the general meeting .

2 . Persons entitled to vote shall be entitled to appoint
a proxy to represent them at the general meeting in
accordance with procedures to be laid down in the sta ­

tutes .

3 . The statutes may permit postal voting, in which
case they shall lay down the necessary procedures .

Article 18

( Sectional meetings )

Where the ME has several establishments, or where its
activities span more than one territorial unit, the sta ­
tutes may provide for the holding of sectional meetings
to consider the same agenda separately before the gen ­
eral meeting is held . These meetings shall elect dele ­
gates, who shall in their turn be convened as the gen ­

21.4 . 92 Official Journal of the European Communities No C 99 / 47

eral meeting . The statutes shall lay down the division
into sections, the number of delegates for each section,
and the procedures to be followed .

Article 19

( Right to information )

All members of the ME shall have an equal right of
access to information both before and at general meet ­
ings .

This information shall be made available to members

at the ME 's registered office at least one month before
the holding of the meeting .

In particular, before the general meeting that follows
the end of the financial year, members may examine
any accounting documents that must be drawn up in
accordance with the national measures adopted pur ­
suant to Directives 78 / 660 / EEC and 83 / 349 / EEC .

Article 20

( Voting rights )

Each member of the ME shall have one vote .

Article 21

( Normal majority )

Except where this Regulation or the statutes lay down
majority requirements, decisions of the general meeting
shall be taken by a majority of the votes of the mem ­
bers present or represented .

Article 22

( Special majority )

The general meeting shall have sole power to amend
the statutes of the ME ; any such resolution shall be
passed by a majority of two-thirds of the votes of the
members present or represented .

A Member State may provide that the management or
administrative board is to amend the statutes where it is

ordered to do so by a court or administrative authority
whose authorization is required for amendments to the

statutes .

Article 23

( Actions to have resolutions of general meeting declared

void )

Resolutions of the general meeting may be declared
void on the grounds that they infringe this Regulation
or the statutes of the ME in the following manner :

— an action for such a declaration may be brought by

any member provided he can show that he has an
interest in having the infringed provision observed,

— the action for such a declaration shall be brought

within three months, before the court within whose
# jurisdiction the ME has its registered office the ;

procedure in the action shall be governed by the
law of the State in which the ME has its registered
# office,

— having heard the ME, the court may suspend appli ­

cation of the contested resolution ; it may also
require the applicant to lodge security for the dam ­
age which may result from the suspension of appli ­
cation of the resolution, if the application is ulti ­
mately dismissed as inadmissible or unfounded ;
judgments declaring a resolution void or ordering

that its application be suspended shall be effective

erga omnes, without prejudice to claims on the ME
acquired in good faith by third parties .

Article 24

( Disclosure of decisions of a court )

Decisions of a court declaring a resolution of the gen ­
eral meeting void or non-existent shall be the subject of
disclosure in accordance with Article 9 .

CHAPTER III

MANAGEMENT, SUPERVISORY AND

ADMINISTRATIVE BODIES

Article 25

( Structure )

Under the conditions laid down by this Regulation the
statutes of the ME shall organize the structure of the
ME either according to a two-tier system ( management
board and supervisory board ) or according to a one-tier
system ( administrative board ); a Member State may,
however, require that MEs having their registered office
in its territory adopt either the two-tier or the one-tier
system as it shall determine .

Section I

Two-tier system

Subsection 1

Management board

Article 26

( Functions of the management board ; appointment of

members )

1 . The management board shall manage the ME . The
member or members of the management board shall

No C 99 / 48 Official Journal of the European Communities 21.4 . 92

have the power to represent the ME in dealings with
third parties and in legal proceedings in accordance
with the measures adopted pursuant to Directive 68 /

151 / EEC by the Member State in which the ME has its
registered office .

2 . The member or members of the management board
shall be appointed and removed by the supervisory
board .

3 . No person may at the same time be a member of
the management board and of the supervisory board .

However, the supervisory board may nominate one of
its members to exercise the function of member of the
management board in the event of a vacancy . During
such a period the function of the person concerned as
member of the supervisory board shall be suspended .

4 . The number of members of the management board
shall be laid down in the statutes of the ME .

Article 27

( Chairmanship, convening of meetings )

1 . The statutes may provide that the management
board is to elect a chairman from among its members .

2 . Meetings of the management board shall be con ­
vened in accordance with the statutes of the ME or the

rules of procedure of the board . In any event any mem ­
ber of the board may convene a meeting where urgency
requires, stating his reasons .

Subsection 2

Supervisory board

Article 28

( Functions of the supervisory board ; appointment of

members )

1 . The supervisory board shall supervise the duties
performed by the management board . It may not itself
exercise the power to manage the ME . The supervisory
board may not represent the ME in dealings with third
parties . It shall represent the ME in dealings with mem ­
bers of the management board, or one of them, in res ­
pect of litigation or the conclusion of contracts .

2 . The members of the supervisory board shall be
appointed and removed by the general meeting . How ­
ever, the members of the first supervisory board may be

appointed in the statutes . This provision shall apply
without prejudice to national law permitting a minority
of shareholders to appoint some of the members of a
board .

3 . The number of members of the supervisory board
shall be laid down in the statutes . A Member State

may, however, stipulate the number of members of the
supervisory board for MEs registered in its territory .

Article 29

( Right to information )

1 . The management board shall report to the supervi ­
sory board at least once every three months on the state
and foreseeable prospects of the ME 's affairs, taking
particular account of any information relating to
undertakings controlled by the ME that may signifi ­
cantly affect those affairs .

2 . The management board shall communicate to the
supervisory board without delay any information which
may have an appreciable effect on the ME .

3 . The supervisory board may at any time require the
management board to provide information or a special
report on any matter concerning the ME .

4 . The supervisory board may undertake all investiga ­
tions necessary for the performance of its duties . It may
appoint one or more of its members to carry out this
task and may call in the help of experts .

5 . Each member of the supervisory board shall be
entitled to examine all information communicated by
the management board to the supervisory board .

Article 30

( Chairmanship, calling of meetings )

1 . The supervisory board shall elect a chairman from
among its members .

2 . The chairman shall convene a meeting of the
supervisory board under the conditions laid down in
the statutes, on his own initiative, or at the request of at
least one third of the members of the supervisory
board, or at the request of the management board . The
request must indicate the reasons for calling the meet ­
ing . If no action has been taken in respect of such a
request within fifteen days the meeting of the supervi ­
sory board may be called by those who made the

request .

21.4 . 92 Official Journal of the European Communities No C 99 / 49

Section II

The one-tier system

Article 31

( Functions of the administrative board ; appointment of

members )

1 . The administrative board shall manage the ME .
The member or members of the administrative board
shall have the power to represent the ME in dealings
with third parties and in legal proceedings in accord ­
ance with the measures adopted pursuant to Directive
68 / 151 / EEC by the Member State in which the ME
has its registered office .

2 . The administrative board shall have at least three

members within limits fixed by the statutes .

3 . The administrative board may delegate to one or
more of its members the power of management . It may
also delegate certain management responsibilities to
one or more persons not members of the board ; such
management responsibilities may be revoked at any
time . The statutes, or if the statutes are silent the gen ­
eral meeting, shall lay down the conditions within
which such delegation shall operate .

4 . The member or members of the administrative

board shall be appointed and removed by the general
meeting .

Article 32

( Holding of meetings and right to information )

1 . The management board shall meet at least once
every three months, at intervals laid down by the sta ­
tutes to discuss the progress and foreseeable prospects
of the ME 's affairs, taking particular account of any
information relating to undertakings controlled by the
ME that may significantly affect the progress of the

ME .

2 . The administrative board shall meet to deliberate

on the operations referred to in Article 38 .

3 . Each member of the administrative board shall be
entitled to examine all reports, documents and infor ­
mation supplied to the board concerning the matters
referred to in paragraph 1 .

Article 33

( Chairmanship, calling of meetings )

1 . The administrative board shall elect a chairman

from among its members .

2 . The chairman shall convene a meeting of the
administrative board under the conditions laid down in

the statutes, either on his own initiative or at the
request of at least one-third of the members . The
request must indicate the reasons for calling the meet ­
ing . If the request is not satisfied within fifteen days,
the meeting of the administrative board may be called
by those who made the request .

Section III

Rules common to the one-tier and two-tier board systems

Article 34

( Term of office )

1 . Members of the governing bodies shall be
appointed for a period laid down in the statutes not
exceeding six years .

2 . Board members may be reappointed one or more
times for the period laid down in accordance with para ­
graph 1 .

Article 35

( Conditions of membership )

1 . A mutual society which is a member of a board
shall designate a natural person as its representative to
exercise its functions on the board in question . The
representative shall be subject to the same conditions
and obligations as if he were personally a member of
the board .

2 . No person may be a member of a management,
supervisory or administrative board nor a representa ­
tive of a member within the meaning of paragraph 1,
nor have conferred on him powers of management or
representation, who :

— under the law applicable to him, or

— under the law of the State in which the ME has its

registered office, or

— as a result of a judicial or administrative decision

delivered or recognized in a Member State,

is disqualified from serving on the management, super ­
visory or administrative board of any legal person .

Article 36

( Rules of procedure )

Each governing body may draw up rules of procedure
under the conditions laid down by the statutes of the
ME . Any member of the ME or competent authority
may consult those rules of procedure at the registered
office of the ME .

No C 99 / 50 Official Journal of the European Communities 21.4 . 92

Article 37

( Power of representation ; liability of the ME )

1 . Where the authority to represent the ME in deal ­
ings with third parties, in accordance with Articles 26
( 1 ) and 31 ( 1 ), is conferred on two or more members of
governing bodies, those persons shall exercise that
authority collectively .

2 . However, the statutes of the ME may provide that
the ME shall be validly bound either by each of the
members acting individually or by two or more of them
acting jointly . Such a clause may be relied upon against
third parties where it has been disclosed in accordance
with Article 9 .

3 . Acts performed by members of the governing bod ­
ies of the ME shall bind the ME vis-a-vis third parties,
even where the acts in question are not in accordance
with the objects of the ME, providing they do not
exceed the powers conferred on them by law or which
the law allows to be conferred on them .

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

proof thereof .

4 . The appointment, termination of office and parti ­
culars of the persons who may represent an ME must
be disclosed in accordance with Article 9 . The informa ­

tion disclosed must state whether these persons are
authorized to bind the ME individually or whether they
must act jointly .

Article 38

( Operations requiring authorization )

1 . The following operations shall require the authori ­
zation of the supervisory board or the deliberation of
the administrative board :

( a ) closing or transferring a large establishment or a

substantial part of such an establishment ;

( b ) substantially reducing, extending or altering the

activities of the ME ;

( c ) making substantial organizational changes within

the ME ;

( d ) establishing cooperation with other legal entities

which is both long-term and of importance to the

activities of the ME, or terminating such coopera ­
tion ;

( e ) raising loans in respect of operations in excess of

the ceiling laid down in the statutes, issuing securi ­
ties and assuming or guaranteeing liabilities of a
third party .

2 . The statutes of the ME may provide that paragraph

1 shall also apply to other operations .

3 . A Member State may determine the categories of
operation referred to in paragraph 1 for MEs registered
in its territory under the same conditions as those
applying to mutual societies governed by the law of
that State .

4 . A Member State may provide that the supervisory
or administrative board of MEs registered in its terri ­
tory may itself make certain categories of operation
subject to authorization or deliberation under the same
conditions as those applying to mutual societies gov ­
erned by the law of that State .

Article 39

( Rights and obligations )

1 . Within the scope of the functions attributed to
them by this Regulation, each of the members of a
board shall have the same rights and obligations as the
other members of the board of which he is a member .

2 . All board members shall carry out their functions
in the interests of the ME, having regard in particular
to the interests of the members and the employees .

3 . All board members shall exercise a proper discre ­
# tion, even after they have ceased to hold office in res, ­

pect of information of a confidential nature concerning
the ME .

Article 40

( Conduct of business on boards )

1 . Boards of the ME shall conduct business under the

conditions and in the manner set out in the statutes of

the ME .

Where these statutes are silent, a board shall not con ­
duct business validly unless at least half of its members
are present at the discussions . Decisions shall be taken
by majority of the votes of the members present or
represented .

2 . The chairman of each board shall have a casting
vote in the event of a tie .

21.4 . 92 Official Journal of the European Communities No C 99 / 51

Article 41

( Civil liability )

1 . Members of the management, supervisory or
administrative board shall be liable for loss or damage
sustained by the ME as a result of breach of the obliga ­
tions attached to their functions .

2 . Where the board concerned is composed of more
than one member, all the members shall be jointly and
severally liable for loss or damage sustained by the
ME ; however, a member may be relieved of liability if
he can prove that he is not in breach of the obligations
attached to his functions .

Article 42

( Proceedings on behalf of the ME )

1 . The general meeting, by a majority of the votes of
the members present or represented, shall take the deci ­
sion to initiate proceedings, in the name and on behalf
of the ME, to establish liability pursuant to Article 40

( 1 ).

The general meeting shall appoint a special representa ­
tive to conduct the action .

2 . Not less than one-fifth of the members may like ­
wise decide to initiate proceedings to establish liability
in the name and on behalf of the ME . They shall
appoint a special representative to conduct the action .

Article 43

( Limitation of actions )

No proceedings on the ME 's behalf to establish liabil ­
ity may be initiated more than five years after the act
giving rise to loss or damage .

CHAPTER IV

FINANCING, ANNUAL ACCOUNTS AND

CONSOLIDATED ACCOUNTS

Article 44

( Financing )

An ME may make use of all forms of financing in the
State in which it has its registered office under the same
conditions as those applying to the legal entities which
founded it .

Article 45

( Preparation of annual accounts and consolidated

accounts )

1 . For the purposes of drawing up its annual accounts
and its consolidated accounts if any, including the

annual report accompanying them and their auditing
and disclosure, the ME shall be subject to the measures
adopted in the State in which it has its registered office
under Directives 78 / 660 / EEC and 83 / 349 / EEC .

2 . The ME may draw up its annual accounts, and its
consolidated accounts if any, in ecus . In this event, the
bases of conversion used to express in ecus those items
included in the accounts which are or were originally
expressed in another currency must be disclosed in the
notes to the accounts .

Article 46

( Auditing )

The annual accounts of the ME, and its consolidated
accounts if any, shall be audited by one or more per ­
sons authorized to do so in the Member State in which

the ME has its registered office in accordance with the
measures adopted in that State pursuant to Directives
84 / 253 / EEC and 89 / 48 / EEC . Those persons shall also
verify that the annual report is consistent with the
annual accounts, and the consolidated accounts if any,
for the same financial year .

Article 47

( Disclosure of accounts )

The annual accounts, the consolidated accounts if any,
duly approved, and the annual report and audit report
shall be disclosed in accordance with the measures

adopted by the Member State in which the ME has its
registered office pursuant to Article 3 of Directive 68 /

151 / EEC .

Article 48

( Credit or financial institutions and insurance

undertakings )

MEs which are credit or financial institutions or insur ­

ance undertakings shall comply, as regards the draw ­
ing-up, auditing and disclosure of annual accounts and
consolidated accounts, with the rules laid down by the
measures adopted in the Member State in which the
ME has its registered office pursuant to Directive 86 /
636 / EEC or, as the case may be, pursuant to Council
## Directive .../... / EEC of . . . [ on the annual accounts

and consolidated accounts of insurance undertakings ]
(')•

(') OJNoL ...

No C 99 / 52 Official Journal of the European Communities 2.4 . 92

CHAPTER V

WINDING UP AND LIQUIDATION

Section I

Winding up

Article 49

( Winding up by the general meeting )

1 . An ME may be wound up by a decision of the gen ­
eral meeting ordering its winding up, taken in accord ­
ance with the rules laid down in the first paragraph of
Article 22 .

However, the general meeting may decide in accord ­
ance with the same rules, to annul the decision to wind
up, as long as there has been no distribution on the
basis of the liquidation .

2 . The management or administrative board must
convene a general meeting to take a decision on the
winding up of the ME :

— where the period fixed in the statutes has expired,

— where the subscribed formation fund has been

reduced below the minimum laid down in the sta ­

tutes,

— where the disclosure of accounts has not taken

place in the ME 's last three financial years,

— where the number of members is below the mini ­

mum required by this Regulation or by the ME 's

statutes,

— on any grounds laid down either in the law govern ­

ing the legal entities which founded the ME, in the
# State in which the ME has its registered office or,

in the statutes .

The general meeting shall decide :

— either to wind up the ME in accordance with
Article 21,

— or, in accordance with the first paragraph of Article

22, that the ME shall continue its activities .

Article 50

( Winding up by the court )

On an application by any person concerned or any
competent authority, the court of the place where the
ME has its registered office must order it to be wound
up where it finds that the registered office has been
transferred outside the Community, or that the ME 's
activities are being carried on contrary to public policy

in the Member State in which the ME has its registered
# office or in, breach of Articles 1, 2 ( 1 ) or 4 .

The court may grant the ME a period of time to rectify
the situation . If it fails to do so within the time allowed

the court shall order it to be wound up .

Section II

Liquidation

Article 51

( Liquidation )

1 . The winding up of an ME shall entail its liquida ­
tion .

2 . The liquidation of an ME and the conclusion of its
liquidation shall be governed by the law of the State in
# which it has its registered office .

3 . An ME in liquidation shall continue to have legal
personality until the conclusion of the liquidation .

4 . Following the liquidation, the books and records
relating to the liquidation shall be lodged at the register
referred to in Article 8 ( 3 ). Any interested party may
examine such books and records .

Article 52

( Distribution )

After the creditors have been paid in full, and anything
due to beneficiaries designated in the rules has been
distributed, the assets of the ME shall, except where
otherwise stated in the statutes, be distributed by deci ­
sion of the general meeting either to other MEs or
mutual societies governed by the law of a Member
State or to one or more bodies having as their object
the support and promotion of mutual societies .

CHAPTER VI

INSOLVENCY AND SUSPENSION OF PAYMENTS

Article 53

( Insolvency and suspension of payments )

1 . The ME shall be subject to the law of the State in
which it has its registered office in respect of insol ­
vency and supension of payments .

2 . The opening of insolvency or suspension of pay ­
ment proceedings shall be notified by the person
appointed to conduct the proceedings for entry in the
register referred to in Article 8 ( 3 ). The entry in the
register shall show the following :

( a ) the nature of the proceedings, the date of the order,

and the court making it ;

21.4 . 92 Official Journal of the European Communities No C 99 / 53

( b ) the date on which payments were suspended, if the

court order provides for this ;

( c ) the name and address of the administrator, trustee,

receiver, liquidator or any other person having
power to conduct the proceedings, or of each of
them where there are more than one ;

( d ) any other information considered necessary .

3 . Where a court finally dismisses an application for
the opening of the proceedings referred to in paragraph
2 owing to want of sufficient assets, it shall, either of its
own motion or on application by any interested party,
order its decision to be noted in the register referred to
in Article 8 ( 3 ).

4 . Particulars registered pursuant to paragraphs 2 and
3 shall be disclosed in the manner referred to in

Article 9 .

TITLE II

FINAL PROVISIONS

Article 54 Article 55

( Penalties )

Each Member State shall specify penalties to be
imposed in the case of breach of the provisions of this
Regulation and, where appropriate, of any relevant
national measures ; the penalties must be effective, pro ­
portionate and dissuasive .

Each Member State shall take the necessary measures
before 1 January 1993 and shall forthwith inform the
Commission thereof .

This Regulation shall enter into force on 1 January
1993 .

This Regulation shall be binding m its entirety and
directly applicable in all Member States .

No C 99 / 54 Official Journal of the European Communities 21.4 . 92

ANNEX I

Legal entities mentioned in Article 2 ( 1 ) ( a )

For Belgium

Association of mutual insurance, coming under Article 2 of the Law of 11 June 1874 on insurance and
Article 1 1 of the Law of 9 July 1975 on the control of insurance enterprises ; cooperative societies com ­
ing under Articles 141 to 164 of the consolidated law on commercial companies as it affects cooperative
societies

For Denmark

Fortsaettelsessygekasse ; Gensidige selskaber

For Germany

Versicherungsverein auf Gegenseitigkeit ( WaG ), coming under the law of 6 June 1931 on the control of
insurance enterprises, in the version of 1 July 1990

For France

Mutuals coming under the Code de la mutuality ( the Law of 25 July 1985 ); mutual insurance societies
coming under the Code des Assurances ; Caisse de Mutualité Agricole, regulated by the Code Rural

For Ireland

Voluntary Health Insurance Board coming under the Voluntary Health Insurance Act of 5 February

1957 ; companies limited by guarantee ; societies registered under the Industrial and Provident Societies
Acts ; societies registered under the Friendly Societies Acts

For Italy

Mutuals coming under the Law of 15 April 1886 ; cooperative societies, coming under Section VI of the
Civil Code relating to cooperative and mutual societies as well as the cooperatives and mutuals covered
by legislation or regulations for certain categories

For Luxembourg

Societies of mutual assistance and mutuals coming under the Law of 7 July 1961 and Grand Duchy
Regulation of 31 July 1961 ; associations of mutual insurance coming under Article 2 of the Law of 16
May 1891

For the Netherlands

Entities coming under Section 3 ' association ' ( vereniging ) of the second Book of the Burgerlijk Wetboek
on cooperative union

For the United Kingdom

Companies limited by guarantee having as their principal object the maintenance of a provident fund ;
mutual companies ; societies registered under the Industrial and Provident Societies Acts ; societies regis ­
tered under the Building Societies Acts ; societies registered under the Friendly Societies Act

21.4 . 92 Official Journal of the European Communities No C 99 / 55

For Greece

Entities coming under the law for mutuals ; Allelasphalistikos Sunetairismos

tor Spain

Entidades de Prevision Social, coming under the Law of 2 August 1984 establishing the regulation of
private insurance ; Mutuas des Acc . de Trabajo, coming under the Law of 2 August 1984 establishing the
regulation of private insurance ; Sociedad mutua, coming under the Law of 2 August 1984 establishing
the regulation of private insurance ; Sociedad cooperativa, coming under the Law of 2 April 1987 and
regional laws

For Portugal

Mutualidades, Associates Mutualistas, coming under the decree law No 72 / 90 of 3 March 1990 ; Mis ­
ericordias, coming under Articles 167 to 194 of the Civil Code relating to associations and foundations ;
Mutua de seguros

No C 99 / 56 Official Journal of the European Communities 21.4 . 92

ANNEX II

Legal entities referred to in Article 2 ( 1 ) ( b ) which manage obligatory social security schemes as well as
provident and mutual assistance organizations, the services of which vary according to the resources available

and in which the contribution of members is determined by contract

For Belgium

Mutuals coming under the Law of 6 August 1990 relating to mutuals and to national unions of mutuals

For Denmark

Fortsaettelsessygekasse

For France

Mutuals coming under the Code de la Mutuality ( Law of 25 July 1985 )

For Ireland

Voluntary Health Insurance Board coming under the Voluntary Health Insurance Act of 5 February 1957

For Italy

Mutuals coming under the Law of 1 5 April 1 886

For Luxembourg

Mutual assistance societies and mutuals coming under the Law of 7 July 1961 and Grand Duchy Regu ­
lation of 31 July 1961

For the Netherlands

Ziekenfonds ( Vereniging van Nederlandse Zorgverzekeraars — VNZ — and Zilverenkruis ) coming
under the Law of 1 January 1966 or the Algemene Wet Bijzondere Ziektekosten

For Greece

Entities coming under the law for mutuals

For Spain

Entidades de Prevision Social, coming under the Law of 2 August 1984 establishing the regulation of
private insurance

For Portugal

Mutualidades, Associacoes Mutualistas coming under the Decree-Law No 72 / 90 of 3 March 1990 / 90