CELEX: 51990PC0629
Language: en
Date: 1990-12-13
Title: SECOND AMENDMENT TO THE PROPOSAL FOR A FIFTH COUNCIL DIRECTIVE BASED ON ARTICLE 54 OF THE EEC TREATY CONCERNING THE STRUCTURE OF PUBLIC LIMITED COMPANIES AND THE POWERS AND OBLIGATIONS OF THEIR ORGANS

No C 7/4                             Official Journal of the European Communities                                           11. 1. 91
                                                                      II
                                                          (Preparatory Acts)
                                                    COMMISSION
               Second Amendment to the proposal for a Fifth Council Directive based on Article 54 of the
               EEC Treaty concerning the structure of public limited companies and the powers and obli-
                                                      gations of their organs
                                                   COM(90) 629 final — SYN 3
               (Submitted by the Commission pursuant to Article 149(3) of the EEC Treaty on 20 December
                                                                    1990)
                                                               (91/C 7/05)
                   FIRST AMENDED PROPOSAL                                                                SECOND PROPOSAL
 Amended proposal for a Fifth Directive founded on                           Amendment to the proposal for a Fifth Directive based
 Article 54 (3) (g) of the EEC Treaty concerning the                         on Article 54 of the EEC Treaty concerning the structure
 structure of public limited companies and the powers and                    of public limited companies and the powers and obli-
                 obligations of their organs                                                         gations of their organs
 THE COUNCIL OF THE EUROPEAN COMMUNITIES,                                    Unchanged.
 Having regard to the Treaty establishing the European                       Having regard to the Treaty establishing the European
 Economic Community, and in particular Article                               Economic Community, and in particular Article 54
 54 (3) (g) thereof,                                                         thereof,
 Having regard to the proposal from the Commission (*),                      Having regard to the amended proposal from            the
                                                                             Commission ('),
 Having regard       to  the  opinion   of    the    European                In cooperation with the European Parliament,
Parliament (2),
Having regard to the opinion of the Economic and                            Unchanged.
Social Committee ( J ),
                                         F i r s t to t w e l f t h r e c i t a l s u n c h a n g e d
                                                                            A new recital is inserted between the twelfth and thir-
                                                                                                       teenth, as follows
                                                                            Whereas the position of shareholders regarding the
                                                                            exercise of their voting rights should be strengthened in
                                                                            order to ensure a wide measure of participation in the
                                                                            life of the company; whereas voting rights should
                                                                            accordingly be proportionate to the shareholder's stake
                                                                            in the company capital, and limits should be imposed
O OJ No C 131, 13. 12. 1972, p. 49.
O OJ No C 149, 14. 6. 1982, p. 17.
(3) OJ No C 109, 19. 9. 1974, p. 9.                                         (l) OJ No C 240, 9. 9. 1983, p. 2.
 ---pagebreak---  11. 1.91                              Official Journal of the European Communities                                         No C 7/5
                 FIRST AMENDED PROPOSAL                                                          SECOND PROPOSAL
                                                                            on the issue of preference shares without voting rights;
                                                                            whereas the freedom of the general meeting to appoint
                                                                            members of the organs of the company should not be
                                                                            reduced by giving particular categories of shareholders
                                                                            an exclusive right to put forward nominations; whereas
                                                                           the majority required for such resolutions on the part of
                                                                           the general meeting should be no greater than the
                                                                           absolute majority;
                                   F o u r t e e n t h and fifteenth recitals u n c h a n g e d
 HAS ADOPTED THIS DIRECTIVE:                                                Unchanged
                                                    A r t i c l e s 1 to 3 u n c h a n g e d
                         Article 4                                                                  Article 4
                                                 P a r a g r a p h s 1 to 4 u n c h a n g e d
                                                                                     A new paragraph 5 is inserted, as follows
                                                                           5.     The memorandum or articles of association may
                                                                           not confer on the holders of a particular category of
                                                                           shares an exclusive right to put forward nominations for
                                                                           a majority of those members of the supervisory organ
                                                                           whose appointment is a matter for the general meeting.
                                                A r t i c l e s 4a t o 21a u n c h a n g e d
                       Article 21b                                                                 Article 21b
                                                P a r a g r a p h s 1 to 4 u n c h a n g e d
                                                                                     A new paragraph 5 is inserted, as follows
                                                                           5.     The memorandum or articles of association may
                                                                           not confer on the holders of a particular category of
                                                                           shares an exclusive right to put forward nominations for
                                                                           a majority of those members of the administrative organ
                                                                           whose appointment is a matter for the general meeting.
                                                A r t i c l e s 21c t o 32 u n c h a n g e d
                        Article 33                                                                 Article 33
1.   The shareholder's right to vote shall be                              1.     Unchanged,
proportionate to the fraction of the subscribed capital
which the shares represent.
 ---pagebreak--- No C 7/6                                Official Journal of the European Communities                                           11. 1.91
                    FIRST AMENDED PROPOSAL                                                       SECOND PROPOSAL
2.     Notwithstanding paragraph 1, the laws of the                        2.      Notwithstanding paragraph 1, the laws of the
Member States may authorize the memorandum and the                         Member States may authorize the memorandum and the
articles of association to allow:                                          articles of association to allow restriction or exclusion of
                                                                           the right to vote in respect of shares which carry special
(a) restriction or exclusion of the right to vote in respect               pecuniary advantages. Such shares may not be issued for
     of shares which carry special advantages;                             an amount exceeding 50 % of the subscribed capital.
                                                                           Where the company has not fulfilled the obligations
(b) restriction of votes in respect of shares allotted to the
                                                                           arising in respect of such shares for a period which may
     same shareholder, provided the restriction applies at
                                                                           not exceed three consecutive accounting years, the
     least to all shareholders of the same class.
                                                                           holders of those shares shall acquire voting rights in
                                                                           proportion to the fraction of the subscribed capital which
                                                                           those shares represent, and the voting rights thus
                                                                           acquired shall be equivalent to those of the other share-
                                                                           holders.
3.     Any shareholder who, at the date of the general                     3.      Unchanged.
meeting, has not paid up calls made by the company at
least one month earlier may not exercise his right to
vote.
                                              A r t i c l e s 34 a n d    5 unchanged
                           Article 36                                                               Article 36
1.     Resolutions of the general meeting shall be passed                  1.      Unchanged.
by absolute majority of votes cast by all the shareholders
present or represented, unless a greater majority or other
additional requirements are prescribed by the law or the
memorandum or articles of assocation.
2.     Paragraph 1 shall not apply to the appointment of                  2.       Unchanged.
members of the company organs or of the persons
responsible for auditing the accounts of the company.
                                                                          3.      For resolutions appointing or dismissing members
                                                                          of the administrative, management or supervisory organ,
                                                                          neither the law nor the memorandum or articles of
                                                                          association may require a majority greater than the
                                                                          absolute majority of votes cast by all the shareholders
                                                                          present or represented.
                                              A r t i c l e s 37 to 6 d u n c h a n g e d
                           Article 64                                                               Article 64
                                              P a r a g r a p h s 1 to 3 u n c h a n g e d
                                                                                          A new paragraph 4 is inserted
                                                                          4.      When Member States adopt these measures, they
                                                                          shall contain a reference to this Directive or shall be
                                                                          accompanied by such reference on the occasion of their
                                                                          official publication. The methods of making such a
                                                                          reference shall be laid down by the Member States.
                                                      A r t i c l e 65 u n c h a n g e d