CELEX: 51978FC0855
Language: en
Date: 2007-04-24
Title: Proposal for a Directive …/…/EC of the European Parliament and of the Council of […] concerning mergers of public limited liability companies (Codified version)

EN
|[pic]                     |COMMISSION OF THE EUROPEAN COMMUNITIES                                                                           |

                                        Brussels,
                                        COM

                                                                  Proposal for a

                                          DIRECTIVE …/…/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

                                                                      of […]

                                             concerning mergers of public limited liability companies

                                                                (Codified version)

                                                              EXPLANATORY MEMORANDUM

1.    In the context of a people’s Europe, the Commission attaches great importance to simplifying and clarifying Community law so as to make  it
       clearer and more accessible to the ordinary citizen, thus giving him new opportunities and the chance to make use of the  specific  rights
       it gives him.

       This aim cannot be achieved so long as numerous provisions that have  been  amended  several  times,  often  quite  substantially,  remain
       scattered, so that they must be sought partly in the original instrument and partly in later amending ones.  Considerable  research  work,
       comparing many different instruments, is thus needed to identify the current rules.

       For this reason a codification of rules that have frequently been amended  is  also  essential  if  Community  law  is  to  be  clear  and
       transparent.

2.    On 1 April 1987 the Commission therefore decided[1] to instruct its staff that all legislative acts should be codified after no  more  than
       ten amendments, stressing that this is a minimum requirement and that departments should endeavour to codify at even shorter intervals the
       texts for which they are responsible, to ensure that the Community rules are clear and readily understandable.

3.    The Conclusions of the Presidency of the Edinburgh  European  Council  (December 1992)  confirmed  this[2],  stressing  the  importance  of
       codification as it offers certainty as to the law applicable to a given matter at a given time.

       Codification must be undertaken in full compliance with the normal Community legislative procedure.

       Given that no changes of substance may be made to the instruments affected by codification, the European Parliament, the Council  and  the
       Commission have agreed, by an interinstitutional agreement dated 20 December 1994, that an accelerated procedure may be used for the fast-
       track adoption of codification instruments.

4.    The purpose of this proposal is to undertake a codification of Council  Directive 78/855/EEC[3].  The  new  Directive  will  supersede  the
       previous act as amended[4]; this proposal, in bringing together the provisions of the  basic  act  and  those  of  its  amendments,  fully
       preserves their content and it will contain only such formal amendments as are required by the codification exercise itself.

5.    The codification proposal was drawn up on the basis of a preliminary consolidation, in all official languages, of Directive 78/855/EEC  and
       the instruments amending it, carried out by the Office for Official Publications  of  the  European  Communities,  by  means  of  a  data-
       processing system. Where the Articles have been given new numbers, the correlation between the old and the new numbers is shown in a table
       contained in Annex II to the codified Directive.

                                                                  Proposal for a

                                          DIRECTIVE …/…/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

                                                                      of […]

                                            ê 78/855/EEC (adapted)

                                             concerning mergers of public limited liability companies

                                                           [(Text with EEA relevance)]

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article Ö 44 Õ (3) (g) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee[5],

Ö Acting in accordance with the procedure laid down in Article 251 of the Treaty[6], Õ

Whereas:

                                            ê (adapted)

   1) Third Council Directive 78/855/EEC of 9 October 1978 based on Article 54 (3) (g)  of  the  Treaty  concerning  mergers  of  public  limited
      liability companies [7] has been substantially amended[8]. In the interests of  clarity  and  rationality  the  said  Directive  should  be
      codified.

                                            ê 78/855/EEC Recital 1(adapted)

   2) The co-ordination provided for in Article Ö 44 Õ (3) (g) and in the general programme for the  abolition  of  restrictions  on  freedom  of
      establishment[9] was begun with Directive 68/151/EEC[10].

                                            ê 78/855/EEC Recital 2(adapted) (adapted)

   3) This co-ordination was continued as regards the formation of public limited liability companies and the maintenance and alteration of their
      capital with Directive Ö [../…/..] Õ [11], and as regards the annual accounts of certain types of companies  with  Directive  Ö [../…/..] Õ
      [12].

                                            ê 78/855/EEC Recital 3(adapted)

   4) The protection of the interests of members and third parties requires that the laws of the Member States  relating  to  mergers  of  public
      limited liability companies be co-ordinated and that provision for mergers should be made in the laws of all the Member States.

                                            ê 78/855/EEC Recital 4(adapted)

   5) In the context of such co-ordination it is particularly important that the shareholders of merging companies be kept adequately informed in
      as objective a manner as possible and that their rights be suitably protected.

                                            ê 78/855/EEC Recital 5(adapted) (adapted)

   6) The protection of employees' rights in the event of transfers of undertakings, businesses or parts of Ö undertakings or Õ businesses is  at
      present regulated by Ö Council Õ Directive Ö 2001/23/EC Õ[13].

                                            ê 78/855/EEC Recital 6(adapted)

   7) Creditors, including debenture holders, and persons having other claims on the merging companies must be protected so that the merger  does
      not adversely affect their interests.

                                            ê 78/855/EEC Recital 7(adapted) (adapted)

   8) The disclosure requirements of Directive Ö [../…/..] Õ must be extended to include mergers  so  that  third  parties  are  kept  adequately
      informed.

                                            ê 78/855/EEC recital 8(adapted)

   9) The safeguards afforded to members and third parties in connection with mergers must be extended to cover certain legal practices which  in
      important respects are similar to merger, so that the obligation to provide such protection cannot be evaded.

                                            ê 78/855/EEC Recital 9(adapted)

  10) To ensure certainty in the law as regards relations between the companies concerned, between  them  and  third  parties,  and  between  the
      members, the cases in which nullity can arise must be limited by providing that defects be  remedied  wherever  that  is  possible  and  by
      restricting the period within which nullification proceedings may be commenced.

                                            ê 78/855/EEC Recital 10 (adapted)

  11) This Directive should be without prejudice to the obligations of the Member States relating  to  the  time-limits  for  transposition  into
      national law of the Directive set out in Annex I, Part C,

                                            ê 78/855/EEC (adapted)

HAVE ADOPTED THIS DIRECTIVE:

                                                                    Article 1

                                                                      Scope

1. The co-ordination measures laid down by this Directive shall apply to the laws,  regulations  and  administrative  provisions  of  the  Member
States relating to the following types of company:

     – Belgium:

     –     la société anonyme, de naamloze vennootschap ;

                                            ê 2003 Act of Accession

     – ‘the Czech Republic:

     – akciová spolecˇnost;

                                            ê 78/855/EEC

     – Denmark:

Aktieselskaber;

     – Germany:

      die Aktiengesellschaft;

                                            ê 2004 Act of Accession

     – Estonia:

     – aktsiaselts;

                                            ê 1979 Act of Accession Art. 21 and Annex I, p. 89

     – Greece:

      η ανώνυμη εταιρία,

                                            ê 1985 Act of Accession Art. 26 and Annex I, p. 157

     – Spain:

     – la sociedad anónima,

                                            ê 78/855/EEC

     – France:

      la société anonyme ;

     – Ireland:

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

     – Italy:

      la società per azioni ;

                                            ê 2003 Act of Accession

     – Cyprus:

     – Δημόσιες εταιρείες περιορισμένης ευθύνης με μετοχές, δημόσιες εταιρείες

     – περιορισμένης ευθύνης με εγγύηση που διαθέτουν μετοχικό κεφάλαιο;

     – Latvia:

     – akciju sabiedrı¯ba;

     – Lithuania:

     – akcine˙ bendrove;

                                            ê 78/855/EEC

     – Luxembourg:

      la société anonyme;

                                            ê 2003 Act of Accession

     – Hungary:

     – részvénytársaság;

     – Malta:

     – kumpanija pubblika/public limited liability company, kumpanija

     – privata/private limited liability company;

                                            ê 78/855/EEC

     – The Netherlands:

      de naamloze vennootschap,

                                            ê 1994 Act of Accession

     – Austria:

     – die Aktiengesellschaft;

                                            ê 2003 Act of Accession

     – Poland:

     – spółka akcyjna;

                                            ê 1985 Act of Accession

     – Portugal:

      a sociedade anónima de responsabilidade limitada ;

                                            ê 2003 Act of Accession

     – Slovenia:

     – delniška druzˇba;

     – Slovakia:

     – akciová spolocˇnost’.’

                                            ê 78/855/EEC

     – Finland:

      osakeyhtiöaktiebolag;

     – Sweden:

      aktiebolag.

                                            ê 78/855/EEC

     – the United Kingdom:

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

                                            ê 78/855/EEC (adapted)

2. The Member States need not apply this Directive to co-operatives incorporated as one of the types of company listed in paragraph 1. In so  far
as the laws of the Member States make use of this option, they shall require such companies  to  include  the  word  «co-operative»  in  all  the
documents referred to in Article Ö [ ] Õ of Directive Ö [../…/..] Õ.

3. The Member States need not apply this Directive in cases where the company or companies which are being acquired or will cease  to  exist  are
the subject of bankruptcy proceedings, proceedings relating to the winding-up of insolvent companies,  judicial  arrangements,  compositions  and
analogous proceedings.

                                                                    CHAPTER I

           Regulation of merger by the acquisition of one or more companies by another and of merger by the formation of a new company

                                                                    Article 2

The Member States shall, as regards companies governed by their national laws, make provision for rules governing merger by  the  acquisition  of
one or more companies by another Ö company Õ and merger by the formation of a new company.

                                                                    Article 3

1. For the purposes of this Directive, «merger by acquisition» shall mean the operation whereby one or more companies are wound up without  going
into liquidation and transfer to another all their assets and liabilities in exchange for the  issue  to  the  shareholders  of  the  company  or
companies being acquired of shares in the acquiring company and a cash payment, if any, not exceeding 10 % of the nominal value of the shares  so
issued or, where they have no nominal value, of their accounting par value.

2. A Member State's laws may provide that merger by acquisition may also be effected where one or more of the  companies  being  acquired  is  in
liquidation, provided that this option is restricted to companies which have not yet begun to distribute their assets to their shareholders.

                                                                    Article 4

1. For the purposes of this Directive, «merger by the formation of a new company» shall mean the operation whereby several  companies  are  wound
up without going into liquidation and transfer to a company that they set up all their assets and liabilities in exchange for the issue to  their
shareholders of shares in the new company and a cash payment, if any, not exceeding 10 % of the nominal value of the shares so issued  or,  where
they have no nominal value, of their accounting par value.

2. A Member State's laws may provide that merger by the formation of a new company may also be effected where one or more of the companies  which
are ceasing to exist is in liquidation, provided that this option is restricted to companies which have not yet begun to distribute their  assets
to their shareholders.

                                                                    CHAPTER II

                                                              Merger by acquisition

                                                                    Article 5

1. The administrative or management bodies of the merging companies shall draw up draft terms of merger in writing.

2. Draft terms of merger shall specify at least:

(a)   the type, name and registered office of each of the merging companies;

(b)   the share exchange ratio and the amount of any cash payment;

(c)   the terms relating to the allotment of shares in the acquiring company;

(d)   the date from which the holding of such shares entitles the holders to participate in profits and any  special  conditions  affecting  that
       entitlement;

(e)   the date from which the transactions of the company being acquired shall  be  treated  for  accounting  purposes  as  being  those  of  the
       acquiring company;

(f)   the rights conferred by the acquiring company on the holders of shares to which special rights are attached and the holders  of  securities
       other than shares, or the measures proposed concerning them;

(g)   any special advantage granted to the experts referred to  in  Article  10  (1)  and  members  of  the  merging  companies'  administrative,
       management, supervisory or controlling bodies.

                                                                    Article 6

Draft terms of merger must be published in the manner prescribed by the laws of  each  Member  State  in  accordance  with  Article  Ö [  ] Õ  of
Directive Ö [../…/..] Õ , for each of the merging companies, at least one month before the date fixed for the general meeting which is to  decide
thereon.

                                                                    Article 7

1. A merger shall require at least the approval of the general meeting of each of the merging companies. The laws  of  the  Member  States  shall
provide that this decision shall require a majority of not less than two thirds of the votes attach  Ö ed Õ  either  to  the  shares  or  to  the
subscribed capital represented.

The laws of a Member State may, however, provide that a simple majority of the votes specified in the  first  subparagraph  shall  be  sufficient
when at least half of the subscribed capital is represented. Moreover, where appropriate, the rules governing alterations to the  memorandum  and
articles of association shall apply.

2. Where there is more than one class of shares, the decision concerning a merger shall be subject to a separate vote by at least each  class  of
shareholders whose rights are affected by the transaction.

3. The decision shall cover both the approval of the draft terms of merger and any alterations to the  memorandum  and  articles  of  association
necessitated by the merger.

                                                                    Article 8

The laws of a Member State need not require approval of the merger by the general meeting of the acquiring company if  the  following  conditions
are fulfilled:

(a)   the publication provided for in Article 6 must be effected, for the acquiring company, at least one month before the  date  fixed  for  the
       general meeting of the company or companies being acquired which are to decide on the draft terms of merger;

(b)   at least one month before the date specified in (a), all shareholders of the acquiring company must be entitled to  inspect  the  documents
       specified in Article 11 (1) at the registered office of the acquiring company;

(c)   one or more shareholders of the acquiring company holding a minimum percentage of the subscribed capital must be entitled to  require  that
       a general meeting of the acquiring company be called to decide whether to approve the merger. This minimum percentage may not be fixed  at
       more than 5 %. The Member States may, however, provide for the exclusion of non-voting shares from this calculation.

                                                                    Article 9

The administration or management bodies of each of the merging companies shall draw up a detailed written report explaining the  draft  terms  of
merger and setting out the legal and economic grounds for them, in particular the share exchange ratio.

The report shall also describe any special valuation difficulties which have arisen.

                                                                    Article 10

1. One or more experts, acting on behalf of each of the merging companies but independent of  them,  appointed  or  approved  by  a  judicial  or
administrative authority, shall examine the draft terms of merger and draw up a written report to  the  shareholders.  However,  the  laws  of  a
Member State may provide for the appointment of one or more independent experts for all the merging companies, if such appointment is made  by  a
judicial or administrative authority at the joint request of those companies. Such experts may, depending on the laws of each  Member  State,  be
natural or legal persons or companies or firms.

2. In the report mentioned in paragraph 1 the experts must in any case state whether in their opinion  the  share  exchange  ratio  is  fair  and
reasonable. Their statement must at least:

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

(b)   state whether such method or methods are adequate in the case in question, indicate the values arrived at using each such method  and  give
       an opinion on the relative importance attributed to such methods in arriving at the value decided on.

The report shall also describe any special valuation difficulties which have arisen.

3. Each expert shall be entitled to obtain from the merging companies all relevant information and documents  and  to  carry  out  all  necessary
investigations.

                                                                    Article 11

1. All shareholders shall be entitled to inspect at least the following documents at the registered office at least one  month  before  the  date
fixed for the general meeting which is to decide on the draft terms of merger:

(a)   the draft terms of merger;

(b)   the annual accounts and annual reports of the merging companies for the preceding three financial years;

(c)   an accounting statement drawn up as at a date which must not be earlier than the first day of the third month preceding  the  date  of  the
       draft terms of merger, if the latest annual accounts relate to a financial year which ended more than six months before that date;

(d)   the reports of the administrative or management bodies of the merging companies provided for in Article 9;

(e)   the reports provided for in Article 10.

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

However, the laws of a Member State may provide that:

(a)   it shall not be necessary to take a fresh physical inventory;

(b)   the valuations shown in the last balance sheet shall be altered only to reflect entries in  the  books  of  account;  the  following  shall
       nevertheless be taken into account:

         – interim depreciation and provisions,

         – material changes in actual value not shown in the books.

3. Every shareholder shall be entitled to obtain, on request and free of charge, full  or,  if  so  desired,  partial  copies  of  the  documents
referred to in paragraph 1.

                                                                    Article 12

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

                                                                    Article 13

1. The laws of the Member States must provide for an adequate system of protection of the interests of creditors of the merging  companies  whose
claims antedate the publication of the draft terms of merger and have not fallen due at the time of such publication.

2. To this end, the laws of the Member States shall at least provide that such creditors shall be entitled to obtain  adequate  safeguards  where
the financial situation of the merging companies makes such protection necessary and where those creditors do not already have such safeguards.

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

                                                                    Article 14

Without prejudice to the rules governing the collective exercise of their rights, Article 13 shall apply to the debenture holders of the  merging
companies, except where the merger has been approved by a meeting of the debenture holders, if such a meeting  is  provided  for  under  national
laws, or by the debenture holders individually.

                                                                    Article 15

Holders of securities, other than shares, to which special rights are  attached,  must  be  given  rights  in  the  acquiring  company  at  least
equivalent to those they possessed in the company being acquired, unless the alteration of those rights has been approved by  a  meeting  of  the
holders of such securities, if such a meeting is provided for under national laws, or by the holders of those securities individually, or  unless
the holders are entitled to have their securities repurchased by the acquiring company.

                                                                    Article 16

1. Where the laws of a Member State do not provide for judicial or administrative preventive supervision of the legality  of  mergers,  or  where
such supervision does not extend to all the legal acts required for a merger, the minutes of the general meetings  which  decide  on  the  merger
and, where appropriate, the merger contract subsequent to such general meetings shall be drawn up and certified  in  due  legal  form.  In  cases
where the merger need not be approved by the general meetings of all the merging companies, the draft terms  of  merger  must  be  drawn  up  and
certified in due legal form.

2. The notary or the authority competent to draw up and certify the document in due legal form must check and certify the existence and  validity
of the legal acts and formalities required of the company for which he or it is acting and of the draft terms of merger.

                                                                    Article 17

The laws of the Member States shall determine the date on which a merger takes effect.

                                                                    Article 18

1. A merger must be publicised in the manner prescribed by the laws of each  Member  State,  in  accordance  with  Article  Ö [] Õ  of  Directive
Ö [../…/..] Õ , in respect of each of the merging companies.

2. The acquiring company may itself carry out the publication formalities relating to the company or companies being acquired.

                                                                    Article 19

1. A merger shall have the following consequences ipso jure and simultaneously:

(a)   the transfer, both as between the company being acquired and the acquiring company and as regards third parties, to the  acquiring  company
       of all the assets and liabilities of the company being acquired;

(b)   the shareholders of the company being acquired become shareholders of the acquiring company;

(c)   the company being acquired ceases to exist.

2. No shares in the acquiring company shall be exchanged for shares in the company being acquired held either:

(a)   by the acquiring company itself or through a person acting in his own name but on its behalf;

or

(b)   by the company being acquired itself or through a person acting in his own name but on its behalf.

3. Ö Paragraph 1 Õ shall not affect the laws of Member States which require the completion of special formalities for  the  transfer  of  certain
assets, rights and obligations by the acquired company to be effective as against third parties.  The  acquiring  company  may  carry  out  these
formalities itself; however, the laws of the Member States may permit the company being acquired to continue to carry out these  formalities  for
a limited period which cannot, save in exceptional cases, be fixed at more than six months from the date on which the merger takes effect.

                                                                    Article 20

The laws of the Member States shall at least lay down rules governing the civil liability towards the shareholders of the company being  acquired
of the members of the administrative or management bodies of that company in respect of misconduct on the part of  members  of  those  bodies  in
preparing and implementing the merger.

                                                                    Article 21

The laws of the Member States shall at least lay down rules governing the civil liability towards the shareholders of the company being  acquired
of the experts responsible for drawing up on behalf of that company the report referred to in Article 10 (1) in  respect  of  misconduct  on  the
part of those experts in the performance of their duties.

                                                                    Article 22

1. The laws of the Member States may lay down nullity rules for mergers in accordance with the following conditions only:

(a)   nullity must be ordered in a court judgement;

(b)   mergers which have taken effect pursuant to Article 17 may be  declared  void  only  if  there  has  been  no  judicial  or  administrative
       preventive supervision of their legality, or if they have not been drawn up and certified in due legal form, or if it is  shown  that  the
       decision of the general meeting is void or voidable under national law;

(c)   nullification proceedings may not be initiated more than six months after the date on which the merger becomes  effective  as  against  the
       person alleging nullity or if the situation has been rectified;

(d)   where it is possible to remedy a defect liable to render a merger void, the competent court shall grant the companies involved a period  of
       time within which to rectify the situation;

(e)   a judgement declaring a merger void shall be published in the manner prescribed by the  laws  of  each  Member  State  in  accordance  with
       Article Ö [] Õ of Directive Ö [../…/..] Õ ;

(f)   where the laws of a Member State permit a third party to challenge such a judgement, he may do so only within six months of publication  of
       the judgement in the manner prescribed by Directive Ö [../…/..] Õ ;

(g)   a judgement declaring a merger void shall not of itself affect the validity of obligations owed by or in relation to the acquiring  company
       which arose before the judgement was published and after the date Ö on which the merger takes effect Õ ;

(h)   companies which have been parties to a merger shall be jointly and severally liable in respect of the obligations of the acquiring  company
       referred to in (g).

2. By way of derogation from paragraph 1 (a), the laws of a Member State may also provide for the nullity  of  a  merger  to  be  ordered  by  an
administrative authority if an appeal against such a decision lies to a court. Subparagraphs (b), (d), (e), (f),  (g)  and  (h)  shall  apply  by
analogy to the administrative authority. Such nullification, proceedings may not be initiated more than six months after the date Ö on which  the
merger takes effect Õ .

3. The foregoing shall not affect the laws of the Member States on the nullity of a  merger  pronounced  following  any  supervision  other  than
judicial or administrative preventive supervision of legality.

                                                                   CHAPTER III

                                                       Merger by formation of a new company

                                                                    Article 23

1. Articles 5, 6, 7 and 9 to 22 shall apply, without prejudice to Articles 11 and 12 of Directive Ö [../…/..] Õ , to merger  by  formation  of  a
new company. For this purpose, «merging companies» and «company being acquired»  shall  mean  the  companies  which  will  cease  to  exist,  and
«acquiring company» shall mean the new company.

2. Article 5 (2) (a) shall also apply to the new company.

3. The draft terms of merger and, if they are contained in a separate document, the  memorandum  or  draft  memorandum  of  association  and  the
articles or draft articles of association of the new company shall be approved at a general meeting of each of the companies that will  cease  to
exist.

4. The Member States need not apply to the formation of a new company the rules governing the verification of any consideration other  than  cash
laid down in Article 10 of Directive Ö [../…/..] Õ .

                                                                    CHAPTER IV

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

                                                                    Article 24

The Member States shall make provision, in respect of companies governed by their laws, for the operation  whereby  one  or  more  companies  are
wound up without going into liquidation and transfer all their assets and liabilities to another company which is the holder of all their  shares
and other securities conferring the right to vote at general meetings. Such operations shall be regulated by the provisions of Chapter  II,  with
the exception of Articles 5 (2) (b), (c) and (d), 9, 10, 11 (1) (d) and (e), 19 (1) (b), 20 and 21.

                                                                    Article 25

The Member States need not apply Article 7 to the operations Ö referred to Õ Article 24 if the following conditions at least are fulfilled:

(a)   the publication provided for in Article 6 must be effected, as regards each company involved in the operation, at least  one  month  before
       the operation takes effect;

(b)   at least one month before the operation takes effect, all shareholders of the acquiring company must be entitled to inspect  the  documents
       specified in Article 11 (1) (a), (b) and (c) at the company's registered office. Article 11 (2) and (3) must apply;

(c)   Article 8 (c) must apply.

                                                                    Article 26

The Member States may apply Articles 24 and 25 to operations whereby one or more companies are  wound  up  without  going  into  liquidation  and
transfer all their assets and liabilities to another company, if all the shares and other securities specified in Article 24 of  the  company  or
companies being acquired are held by the acquiring company and/or by persons holding those shares and  securities  in  their  own  names  but  on
behalf of that company.

                                                                    Article 27

In cases of merger where one or more companies are acquired by another company which holds 90 % or more, but not all, of  the  shares  and  other
securities of each of those companies the holding of which confers the right to vote at general meetings, the  Member  States  need  not  require
approval of the merger by the general meeting of the acquiring company, provided that the following conditions at least are fulfilled:

(a)   the publication provided for in Article 6 must be effected, as regards the acquiring company, at least one month before the date fixed  for
       the general meeting of the company or companies being acquired which is to decide on the draft terms of merger;

(b)   at least one month before the date specified in (a), all shareholders of the acquiring company must be entitled to  inspect  the  documents
       Ö referred to Õ in Article 11 (1) (a), (b) and (c) at the company's registered office. Article 11 (2) and (3) must apply;

(c)   Article 8 (c) must apply.

                                                                    Article 28

The Member States need not apply Articles 9 to 11 to a merger within the meaning of Article 27 Ö (1) Õ if the following conditions at  least  are
fulfilled:

(a)   the minority shareholders of the company being acquired must be entitled to have their shares acquired by the acquiring company;

(b)   if they exercise that right, they must be entitled to receive consideration corresponding to the value of their shares;

(c)   in the event of disagreement regarding such consideration, it must be possible for the value of the consideration to  be  determined  by  a
       court.

                                                                    Article 29

The Member States may apply Articles 27 and 28 to operations whereby one or more companies are  wound  up  without  going  into  liquidation  and
transfer all their assets and liabilities to another company if 90 % or more, but not all, of the shares and  other  securities  referred  to  in
Article 27 Ö (1) Õ of the company or companies being acquired are held by that acquiring company and/or  by  persons  holding  those  shares  and
securities in their own names but on behalf of that company.

                                                                    CHAPTER V

                                                       Other operations treated as mergers

                                                                    Article 30

Where in the case of one of the operations referred to in Article 2 the laws of a Member State permit a cash payment to exceed 10 %, Chapters  II
and III and Articles 27, 28 and 29 shall apply.

                                                                    Article 31

Where the laws of a Member State permit one of the operations referred to in Articles 2, 24 and 30, without all  of  the  transferring  companies
thereby ceasing to exist, Chapter II, except for Article 19 (1) (c), Chapter III or Chapter IV shall apply as appropriate.

                                                                    CHAPTER VI

                                                                 Final provisions

                                            ê 78/855/EEC (adapted)

                                                                    Article 32

Ö 1. Õ The Member States need not apply Articles 13, 14 and 15 as regards the holders of convertible debentures and other convertible  securities
if, at the time when the laws, regulations and administrative provisions referred to in paragraph 1  come  into  force,  the  position  of  these
holders in the event of a merger has previously been determined by the conditions of issue.

Ö 2. Õ The Member States need not apply this Directive to mergers or to operations treated as mergers for the preparation or execution  of  which
an act or formality required by national law has already been completed when the provisions referred to in paragraph 1 enter into force.

                                            ê .

                                                                    Article 33

Directive 78/855/EEC, as amended by the Acts of Accession listed in Annex I, Part B, 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 Directive set out in Annex I, Part C.

References to the repealed Directive shall be construed as references to this Directive and shall be read  in  accordance  with  the  correlation
table in Annex II.

                                            ê .

                                                                    Article 34

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

                                            ê 78/855/EEC Art. 33

                                                                    Article 35

This Directive is addressed to the Member States.

Done at Brussels, […]

For the European Parliament  For the Council
The President    The President
[…]   […]

                                                                     ANNEX I

                                                                      Part A

                                 Reference to the repealed Directive with its non-repealed successive amendments
                                                           (referred to in Article 32)

|Council Directive 78/855/EEC                                                       |(OJ L 295, 20.10.1978, p. 36 )                 |

                                                                      Part B

                                                        Non-repealed successive amendments

1979 Act of Accession

1985 Act of Accession

1994 Act of Accession

2003 Act of Accession

                                                                      Part C

                                             List of time-limits for transposition into national law
                                                           (referred to in Article 32)

|Directive                                    |Time-limit for transposition                 |
|78/855/EEC                                   |13 October 1981                              |

                                                                  _____________

                                                                     ANNEX II

                                                                Correlation Table

|Directive 78/855/EEC                                                 |This Directive                                                       |
|Articles 1-31                                                        |Articles 1-31                                                        |
|Article 32, first paragraph                                          |______                                                               |
|Article 32, second paragraph                                         |______                                                               |
|Article 32, third paragraph                                          |Article 32, first paragraph                                          |
|Article 32, fourth paragraph 4                                       |Article 32, second paragraph                                         |
|_______                                                              |Article 33                                                           |
|Article 33                                                           |Article 35                                                           |
|______                                                               |Article 34                                                           |

                                                                  _____________

                                                             -----------------------
[1]   COM(87) 868 PV.
[2]   See Annex 3 to Part A of the Conclusions.
[3]   Carried out pursuant to the Communication from the Commission to the European Parliament and the  Council  –  Codification  of  the  Acquis
      communautaire, COM(2001) 645 final.
[4]   Annex I, Part A of this proposal.
[5]   OJ C
[6]   OJ C
[7]   OJ L 295, 20.10.1978, p. 36. Directive as last amended by 2004 Act of Act.
[8]   See Annex I, Part A.
[9]   OJ  2, 15. 1. 1962, p. 36/62.
[10]  OJ L 65, 14. 3. 1968, p. 8.
[11]  OJ L 26, 31. 1. 1977, p. 1.
[12]  OJ L 222, 14. 8. 1978, p. 11. Directive as last amended by Directive 2003/51/EC of the European Parliament and of the Council  (OJ  L  178,
      17.7.2003, p. 16).
[13]  OJ L 82, 22.3.2001, p. 16.