CELEX: 51989PC0193
Language: en
Date: 1989-05-24
Title: AMENDED PROPOSAL FOR A TWELFTH COUNCIL DIRECTIVE ON COMPANY LAW CONCERNING SINGLE-MEMBER PRIVATE LIMITED COMPANIES

No C 152/10                            Official Journal of the European Communities                              20. 6. 89
              Amended proposal for a Twelfth Council Directive on company law concerning single-member
                                                  private limited companies (')
                                                COM(89) 193 final — SYN 135
              (Submitted by the Commission pursuant to Article 149 (3) of the EEC Treaty on 29 May 1989)
                                                         (89/C 152/07)
              O OJ No C 173, 2. 7. 1988, p. 10.
                       INITIAL PROPOSAL                                                AMENDED PROPOSAL
 THE COUNCIL OF THE EUROPEAN COMMUNITIES,                           THE COUNCIL OF THE EUROPEAN COMMUNITIES,
 Having regard to the Treaty establishing the European              Having regard to the Treaty establishing the European
 Economic Community, and in particular Article 54                   Economic Community, and in particular Article 54
thereof,                                                            thereof,
 Having regard to the proposal from the Commission,                 Having regard to the proposal from the Commission ('),
In cooperation with the European Parliament,                        In cooperation with the European Parliament,
Having regard to the opinion of the Economic and                    Having regard to the opinion of the Economic and
Social Committee,                                                   Social Committee (2),
Whereas certain safeguards which, for the protection of            Unchanged
the interests of members and others, are required by
Member States of companies or firms within the meaning
of the second paragraph of Article 58 of the Treaty
should be coordinated with a view to making such safe-
guards equivalent throughout the Community;
Whereas in this field Council Directives 68/151/EEC ('),           Unchanged
78/660/EEC (2)       and      83/349/EEC (3)      concerning
disclosure, the validity of commitments, nullity, annual
accounts and consolidated accounts apply to all
companies, while Council Directives 77/91/EEC (4),
78/855/EEC (5) and 82/891/EEC (6) on formation and
capital, mergers and divisions apply only to public
limited companies;
(') OJ No  L 65, 14. 3. 1968, p. 8.
O   OJ No  L 222, 14. 8. 1978, p. 11.
(3) OJ No  L 193, 18. 7. 1983, p. 1.
(4) OJ No  L 26, 30. 1. 1977, p. 1.
(5) OJ No  L 295, 20. 10. 1978, p. 36.                             0) OJ No C 173, 2. 7. 1988, p. 10.
(*) OJ No  L 378, 31. 12. 1982, p. 42.                             (2) OJ No C 318, 12. 12. 1988, p. 9.
 ---pagebreak--- 20. 6. 89                             Official Journal of the European Communities                            No C 152/11
                     INITIAL PROPOSAL                                                AMENDED PROPOSAL
Whereas the SME action programme was approved by                Unchanged
the Council on 3 November 1986;
Whereas reforms in the legislation of certain Member            Unchanged
States in the last few years, permitting single-member
private limited companies, have created divergences
between the laws of the Member States;
Whereas it is important to provide a legal instrument           Whereas it is important to provide by means of this
allowing for limitation of the liability of the individual      Directive a legal instrument allowing the limitation of
entrepreneur throughout the Community;                          liability of the individual entrepreneur throughout the
                                                                Community, without prejudice to the laws of the Member
                                                                States which, in exceptional circumstances, require that
                                                                entrepreneur to be liable for the obligations of the
                                                                company;
Whereas a private limited company may be a single-              Whereas a private limited company may be a single-
member company from the time it is formed, or may               member company from the time it is formed, or may
become so because its shares have come to be held by a          become so because its shares have come to be held by a
single shareholder; the shares of a single-member               single shareholder; the shares of a single-member
company should be nominative and certain conditions             company should be nominative, and the Member States
should be established for companies with a legal person         may, until such time as their laws are coordinated, lay
as their sole member;                                           down certain special provisions for cases where a natural
                                                                person is the sole member of serveral companies or where
                                                                a single-member company or any other legal person is the
                                                                sole member of a company;
Whereas the fact that all the shares have come to be held       Whereas the fact that all the shares have come to be held
by a single shareholder should be disclosed;                    by a single shareholder should be disclosed by means of
                                                                entry in a register accessible to the public;
                                                                 Whereas the letters and the order forms of the company
                                                                 should indicate that it is a single-member company;
Whereas decisions taken by the sole member in his                Unchanged
capacity as general meeting should be recorded in
writing;
Whereas agreements between the sole member and the               Whereas contracts between the sole member and the
company should likewise be recorded in writing,                  company should likewise be recorded in writing,
 ---pagebreak--- No C 152/12                                Official Journal of the European Communities                20. 6. 89
                        INITIAL PROPOSAL                                              AMENDED PROPOSAL
HAS ADOPTED THIS DIRECTIVE:                                          HAD ADOPTED THIS DIRECTIVE:
                            Article 1                                                     Article 1
The coordination measures prescribed by this Directive               Unchanged
shall apply to the laws, regulations and administrative
provisions of the Member States relating to the following
types of company:
— in Belgium:
    la societe de personnes a responsabilite limitee/de
    personenvennootschap met beperkte aansprake-
    lijkheid,
— in Denmark:
    anpartsselskaber,
— in Germany:
    die Gesellschaft mit beschrankter Haftung,
— in Spain:
    la sociedad de responsabilidad limitada,
— in France:
    la societe a responsabilite limitee,
— in Greece:
    r\ exaipeia 7t£ptopian£vr|c, eu^uvnc,,
— in Ireland:
    the private     company       limited   by   shares  or  by
    guarantee,
— in Italy:
    la societa a responsabilita limitata,
— in Luxembourg:
    la societe a responsabilite limitee,
— in the Netherlands:
    de besloten vennootschap met beperkte aansprake-
    lijkheid,
— in Portugal:
    a sociedade por quotas,
— in the United Kingdom:
    the private     company       limited   by   shares  or  by
    guarantee.
                            Article 2                                                     Article 2
1.     A company may have a sole member, either when it              1.   Unchanged
is formed or when all the shares come to be held by a
single person (single-member company). Shares in such a
company shall be nominative.
 ---pagebreak--- 20. 6. 89                               Official Journal of the European Communities                            No C 152/13
                       INITIAL PROPOSAL                                                 AMENDED PROPOSAL
2.    A single-member company whose sole member is a              2.    The Member States may, until such time as their
legal person may not be the sole member of another                laws relating to groups are coordinated, lay down special
company.                                                          provisions for cases where:
                                                                  (a) a natural person is the sole member of several
                                                                      companies, or
                                                                  (b) a single-member company or any other legal person is
                                                                      the sole member of a company.
3.    Where the sole member is a legal person, Member             Deleted
States shall provide that either:
(a) the legal person has unlimited liability for the
    company's obligations arising during the period of
    the person's sole membership. However, Member
    States may provide that where a legal person
    becomes a sole member, because all the shares come
    to be held by a single person, that liability is not
    incurred unless another member has not been found
    within one year, or
(b) a minimum capital is fixed for the single-member
    company and both the company and the sole
    member are companies which at their balance sheet
    dates do not exceed the limits of two of the three
    criteria in Article 27 of Directive 78/660/EEC. If
    one of the companies exceeds the limits and the
    situation is not regularized in the year following the
    balance sheet date, the sole member shall have
    unlimited liability for the obligations of the single-
    member company arising after the balance sheet
    date.
                                                                                           Article 2a
                                                                  The letters and order forms referred to in Article 4 of
                                                                  Directive 68/151/EEC shall also indicate that the
                                                                  company is a single-member company.
                           Article 3                                                        Article 3
Where a company becomes a single-member company                   Where a company becomes a single-member company
because all its shares come to be held by a single person,        because all its shares come to be held by a single person,
that fact shall be recorded in the file or entered in the         that fact shall either be recorded in the file or entered in
register within the meaning of Article 3 (1) and (2) of           the register within the meaning of Article 3 (1) and (2)
Directive 68/151/EEC.                                             of Directive 68/151/EEC, or be entered in a register
                                                                  held by the company and accessible to the public. The
                                                                  shares shall, if they are not already such, be converted
                                                                  into nominative shares.
                           Article 4                                                        Art ike I 4
1.    The sole member shall exercise the powers of the            1.    The sole member shall exercise the powers of the
general meeting of the company and may not delegate               general meeting of the company.
them.
 ---pagebreak--- No C 152/14                            Official Journal of the European Communities                               20. 6. 89
                      INITIAL PROPOSAL                                                AMENDED PROPOSAL
2.    Decisions taken by the sole member in the field            2.    Decisions taken by the sole member in the field
referred to in paragraph 1 shall be recorded in minutes.         referred to in paragraph 1 shall be recorded in minutes
                                                                 or drawn up in writing.
                          Article 5                                                        Article 5
1.    Agreements between the sole member and the                  1.   Contracts between the sole member and the
company shall be drawn up in writing.                            company shall be recorded in minutes or drawn up in
                                                                 writing.
2.    The possibility of any agreement between the sole          2.    The possibility of any contract between the sole
member and the company represented by that member                member and the company represented by that member
must be provided for in the statutes or instrument of            must be provided for in the statutes or instrument of
incorporation of the company.                                    incorporation of the company.
                          Article 6                                                        Article 6
Where a Member State allows the formation of a single-           Unchanged
member public limited company, the rules of this
Directive shall apply.
                          Article 7                                                        Article 7
A Member State may decide not to apply this Directive            A Member State may decide not to allow the formation
where its legislation provides that an individual busi-          of a single-member company where its legislation
nessman may set up an undertaking whose liability is             provides that an individual businessman may set up an
limited to a sum devoted to a stated activity, on                undertaking whose liability is limited to a sum devoted to
condition that safeguards are laid down for such under-          a stated acitivity, on condition that safeguards are laid
takings which are equivalent to those imposed by                 down for such undertakings which are equivalent to
Community law on the companies to which this                     those imposed by this Directive or by any other
Directive applies.                                               Community provisions applicable to the companies
                                                                 referred to in Article 1.
                          Article 8                                                        Article 8
1.    Member States shall bring into force the laws,             Unchanged
regulations and administrative provisions necessary to
comply with this Directive by 1 January 1990. They shall
inform the Commission thereof
2.    Member States may provide that in the case of              Unchanged
companies already in existence on 1 January 1990 this
Directive shall not apply until 1 January 1991.
3.    Member States shall communicate to the
Commission the text of the main provisions of national
law which they adopt in the field covered by this
Directive.
                          Article 9                                                        Article 9
This Directive is addressed to the Member States.                Unchanged