Article 1 
The coordination measures prescribed by this Directive shall apply to the laws, regulations and administrative provisions of the Member States relating to the following types of company: — Belgium: naamloze vennootschap, société anonyme, commanditaire vennootschap op aandelen, société en commandite par actions, personenvennootschap met beperkte aansprakelijkheid; société de personnes à responsabilité limitée; — Bulgaria: акционерно дружество, дружество с ограничена отговорност, командитно дружество с акции; — Czech Republic: společnost s ručením omezeným, akciová společnost; — Denmark: aktieselskab, kommanditaktieselskab, anpartsselskab; — Germany: die Aktiengesellschaft, die Kommanditgesellschaft auf Aktien, die Gesellschaft mit beschränkter Haftung; — Estonia: aktsiaselts, osaühing; — Ireland: Companies incorporated with limited liability; — Greece: ανώνυμη εταιρία, εταιρία περιωρισμένης ευθύνης, ετερόρρυθμη κατά μετοχές εταιρία; — Spain: la sociedad anónima, la sociedad comanditaria por acciones, la sociedad de responsabilidad limitada; — France: société anonyme, société en commandite par actions, société à responsabilité limitée, société par actions simplifiée; — Italy: società per azioni, società in accomandita per azioni, società a responsabilità limitata; — Cyprus: δημόσιες εταιρείες περιορισμένης ευθύνης με μετοχές ή με εγγύηση, ιδιωτικές εταιρείες περιορισμένης ευθύνης με μετοχές ή με εγγύηση; — Latvia: akciju sabiedrība, sabiedrība ar ierobežotu atbildību, komanditsabiedrība; — Lithuania: akcinė bendrovė, uždaroji akcinė bendrovė; — Luxembourg: société anonyme, société en commandite par actions, société à responsabilité limitée; — Hungary: részvénytársaság, korlátolt felelősségű társaság; — Malta: kumpannija pubblika/public limited liability company, kumpannija privata/private limited liability company; — The Netherlands: naamloze vennootschap, besloten vennootschap met beperkte aansprakelijkheid; — Austria: die Aktiengesellschaft, die Gesellschaft mit beschränkter Haftung; — Poland: spółka z ograniczoną odpowiedzialnością, spółka komandytowo-akcyjna, spółka akcyjna; — Portugal: a sociedade anónima de responsabilidade limitada, a sociedade em comandita por acções, a sociedade por quotas de responsabilidade limitada; — Romania: societate pe acțiuni, societate cu răspundere limitată, societate în comandită pe acțiuni; — Slovenia: delniška družba, družba z omejeno odgovornostjo, komaditna delniška družba; — Slovakia: akciová spoločnosť, spoločnosť s ručením obmedzeným; — Finland: yksityinen osakeyhtiö/privat aktiebolag, julkinen osakeyhtiö/publikt aktiebolag; — Sweden: aktiebolag; — United Kingdom: Companies incorporated with limited liability.
Amendment rationale: EXPLANATORY MEMORANDUM CONTEXT The financial crisis has highlighted once again the importance of transparency across the financial markets, including on companies governance and business activities. The Competitiveness Council Conclusions of 25 May 2010 confirmed that improving access to up-to-date and trustworthy information on companies could encourage greater confidence in the market, help recovery and increase the competitiveness of European business[1]. Business registers[2] play an essential role in this regard; they register, examine and store company information, such as information on a company's legal form, its seat, capital, legal representatives and annual accounts, and they make this information available to the public. Businesses increasingly expand beyond national borders using the opportunities offered by the single market. Progress in the field of information technology makes it easier for citizens and companies to purchase and sell goods and services abroad. Cross-border groups as well as many restructuring operations, such as mergers and divisions involve companies from different Member States of the EU. Accordingly, there is an increasing demand for access to information on companies in a cross-border context, either for commercial purposes or to facilitate access to justice. Cross-border access to business information requires the cross-border cooperation among business registers. Some cooperation between them already exists but it is limited to certain types of information and does not cover all Member States. It is therefore not sufficient to satisfy the information needs induced by the business activity in the single market. But efficient cross-border cooperation between business registers is not only essential for the smooth functioning of the single market. It also reduces costs for companies operating cross-border. In 2007, the Commission launched an Action Programme for reducing administrative burdens in order to improve the business environment for EU companies[3] that was endorsed by the Spring European Council in March 2007[4]. In 2008, a large-scale administrative cost measurement exercise was carried out in which company law was considered a priority area[5]. The High Level Group of Independent Stakeholders on Administrative Burdens was fully in support of achieving interoperability between trade registers throughout Europe[6]. The interconnection of business registers is one of the proposals in the Communication on the Single Market Act[7] that aim to create a more business-friendly legal and fiscal environment and can also contribute to the agenda Europe 2020[8] by improving confidence in the single market. OBJECTIVES OF THE PROPOSAL The objectives of this initiative are to increase confidence in the European single market by ensuring a safer business environment for consumers, creditors and other business partners, to foster the competitiveness of European business by reducing administrative burdens and increasing legal certainty and to improve the performance of public administration by promoting cooperation between business registers in Europe in procedures for cross-border mergers, seat transfers and updating the registration of foreign branches where cooperation mechanisms are lacking or limited. The amendments to Directive 2009/101/EC therefore aim at facilitating cross-border access to official business information by setting up an electronic network of registers and determining a common minimum set of up-to-date information to be made available to third parties by electronic means in every Member State. The amendments to Directive 89/666/EEC[9] are intended to ensure that the business register of a company provides up-to-date information on the status of the company to the business register of foreign branches all across Europe. The amendments to Directive 2005/56/EC[10] aim to improve a cooperation framework between business registers in cross-border merger procedures. While Regulations 2157/2001[11] and 1435/2003[12] require cross-border cooperation between business registers in relation to the transfer of the registered office of European Companies (SEs) and European Cooperative Societies (SCEs), it might be more appropriate to amend these legal instruments as part of the upcoming review of the Regulations. It is to note that the European e-Justice portal[13] is to become the key point of access to legal information, legal and administrative institutions, registers, databases and other services in the EU. This proposal is complementary to the e-Justice project and should contribute to easier access to business information through the portal.
Revised version (Article 1 ):
The coordination measures prescribed by this Directive shall apply to the laws, regulations and administrative provisions of the Member States relating to the following types of company: — Belgium: — naamloze vennootschap, société anonyme, commanditaire vennootschap op aandelen, société en commandite par actions, personenvennootschap met beperkte aansprakelijkheid; société de personnes à responsabilité limitée; — Belgium: naamloze vennootschap, société anonyme, commanditaire vennootschap op aandelen, société en commandite par actions, personenvennootschap met beperkte aansprakelijkheid; société de personnes à responsabilité limitée; naamloze vennootschap, société anonyme, naamloze vennootschap, société anonyme, commanditaire vennootschap op aandelen, société en commandite par actions, commanditaire vennootschap op aandelen, société en commandite par actions, personenvennootschap met beperkte aansprakelijkheid; société de personnes à responsabilité limitée; personenvennootschap met beperkte aansprakelijkheid; société de personnes à responsabilité limitée; — Bulgaria: — акционерно дружество, дружество с ограничена отговорност, командитно дружество с акции; — Bulgaria: — акционерно дружество, дружество с ограничена отговорност, командитно дружество с акции; — Czech Republic: — společnost s ručením omezeným, akciová společnost; — Czech Republic: — společnost s ručením omezeným, akciová společnost; — Denmark: — aktieselskab, kommanditaktieselskab, anpartsselskab; — Denmark: — aktieselskab, kommanditaktieselskab, anpartsselskab; — Germany: — die Aktiengesellschaft, die Kommanditgesellschaft auf Aktien, die Gesellschaft mit beschränkter Haftung; — Germany: — die Aktiengesellschaft, die Kommanditgesellschaft auf Aktien, die Gesellschaft mit beschränkter Haftung; — Estonia: — aktsiaselts, osaühing; — Estonia: — aktsiaselts, osaühing; — Ireland: — Companies incorporated with limited liability; — Ireland: — Companies incorporated with limited liability; — Greece: — ανώνυμη εταιρία, εταιρία περιωρισμένης ευθύνης, ετερόρρυθμη κατά μετοχές εταιρία; — Greece: — ανώνυμη εταιρία, εταιρία περιωρισμένης ευθύνης, ετερόρρυθμη κατά μετοχές εταιρία; — Spain: — la sociedad anónima, la sociedad comanditaria por acciones, la sociedad de responsabilidad limitada; — Spain: — la sociedad anónima, la sociedad comanditaria por acciones, la sociedad de responsabilidad limitada; — France: — société anonyme, société en commandite par actions, société à responsabilité limitée, société par actions simplifiée; — France: — société anonyme, société en commandite par actions, société à responsabilité limitée, société par actions simplifiée; — Italy: — società per azioni, società in accomandita per azioni, società a responsabilità limitata; — Italy: — società per azioni, società in accomandita per azioni, società a responsabilità limitata; — Cyprus: — δημόσιες εταιρείες περιορισμένης ευθύνης με μετοχές ή με εγγύηση, ιδιωτικές εταιρείες περιορισμένης ευθύνης με μετοχές ή με εγγύηση; — Cyprus: — δημόσιες εταιρείες περιορισμένης ευθύνης με μετοχές ή με εγγύηση, ιδιωτικές εταιρείες περιορισμένης ευθύνης με μετοχές ή με εγγύηση; — Latvia: — akciju sabiedrība, sabiedrība ar ierobežotu atbildību, komanditsabiedrība; — Latvia: — akciju sabiedrība, sabiedrība ar ierobežotu atbildību, komanditsabiedrība; — Lithuania: — akcinė bendrovė, uždaroji akcinė bendrovė; — Lithuania: — akcinė bendrovė, uždaroji akcinė bendrovė; — Luxembourg: — société anonyme, société en commandite par actions, société à responsabilité limitée; — Luxembourg: — société anonyme, société en commandite par actions, société à responsabilité limitée; — Hungary: — részvénytársaság, korlátolt felelősségű társaság; — Hungary: — részvénytársaság, korlátolt felelősségű társaság; — Malta: — kumpannija pubblika/public limited liability company, kumpannija privata/private limited liability company; — Malta: — kumpannija pubblika/public limited liability company, kumpannija privata/private limited liability company; — The Netherlands: — naamloze vennootschap, besloten vennootschap met beperkte aansprakelijkheid; — The Netherlands: — naamloze vennootschap, besloten vennootschap met beperkte aansprakelijkheid; — Austria: — die Aktiengesellschaft, die Gesellschaft mit beschränkter Haftung; — Austria: — die Aktiengesellschaft, die Gesellschaft mit beschränkter Haftung; — Poland: — spółka z ograniczoną odpowiedzialnością, spółka komandytowo-akcyjna, spółka akcyjna; — Poland: — spółka z ograniczoną odpowiedzialnością, spółka komandytowo-akcyjna, spółka akcyjna; — Portugal: — a sociedade anónima de responsabilidade limitada, a sociedade em comandita por acções, a sociedade por quotas de responsabilidade limitada; — Portugal: — a sociedade anónima de responsabilidade limitada, a sociedade em comandita por acções, a sociedade por quotas de responsabilidade limitada; — Romania: — societate pe acțiuni, societate cu răspundere limitată, societate în comandită pe acțiuni; — Romania: — societate pe acțiuni, societate cu răspundere limitată, societate în comandită pe acțiuni; — Slovenia: — delniška družba, družba z omejeno odgovornostjo, komaditna delniška družba; — Slovenia: — delniška družba, družba z omejeno odgovornostjo, komaditna delniška družba; — Slovakia: — akciová spoločnosť, spoločnosť s ručením obmedzeným; — Slovakia: — akciová spoločnosť, spoločnosť s ručením obmedzeným; — Finland: — yksityinen osakeyhtiö/privat aktiebolag, julkinen osakeyhtiö/publikt aktiebolag; — Finland: — yksityinen osakeyhtiö/privat aktiebolag, julkinen osakeyhtiö/publikt aktiebolag; — Sweden: — aktiebolag; — Sweden: — aktiebolag; — United Kingdom: — Companies incorporated with limited liability. — United Kingdom: — Companies incorporated with limited liability.
Article 2 
Member States shall take the measures required to ensure compulsory disclosure by companies as referred to in Article 1 of at least the following documents and particulars: (a) the instrument of constitution, and the statutes if they are contained in a separate instrument; (b) any amendments to the instruments mentioned in point (a), including any extension of the duration of the company; (c) after every amendment of the instrument of constitution or of the statutes, the complete text of the instrument or statutes as amended to date; (d) the appointment, termination of office and particulars of the persons who either as a body constituted pursuant to law or as members of any such body: (i) are authorised to represent the company in dealings with third parties and in legal proceedings; it must be apparent from the disclosure whether the persons authorised to represent the company may do so alone or must act jointly; (ii) take part in the administration, supervision or control of the company; (e) at least once a year, the amount of the capital subscribed, where the instrument of constitution or the statutes mention an authorised capital, unless any increase in the capital subscribed necessitates an amendment of the statutes; (f) the accounting documents for each financial year which are required to be published in accordance with Council Directives 78/660/EEC ( 6 ) , 83/349/EEC ( 7 ) , 86/635/EEC ( 8 ) and 91/674/EEC ( 9 ) ; (g) any change of the registered office of the company; (h) the winding-up of the company; (i) any declaration of nullity of the company by the courts; (j) the appointment of liquidators, particulars concerning them, and their respective powers, unless such powers are expressly and exclusively derived from law or from the statutes of the company; (k) the termination of the liquidation and, in Member States where striking off the register entails legal consequences, the fact of any such striking off.
Amendment rationale: EXPLANATORY MEMORANDUM CONTEXT The financial crisis has highlighted once again the importance of transparency across the financial markets, including on companies governance and business activities. The Competitiveness Council Conclusions of 25 May 2010 confirmed that improving access to up-to-date and trustworthy information on companies could encourage greater confidence in the market, help recovery and increase the competitiveness of European business[1]. Business registers[2] play an essential role in this regard; they register, examine and store company information, such as information on a company's legal form, its seat, capital, legal representatives and annual accounts, and they make this information available to the public. Businesses increasingly expand beyond national borders using the opportunities offered by the single market. Progress in the field of information technology makes it easier for citizens and companies to purchase and sell goods and services abroad. Cross-border groups as well as many restructuring operations, such as mergers and divisions involve companies from different Member States of the EU. Accordingly, there is an increasing demand for access to information on companies in a cross-border context, either for commercial purposes or to facilitate access to justice. Cross-border access to business information requires the cross-border cooperation among business registers. Some cooperation between them already exists but it is limited to certain types of information and does not cover all Member States. It is therefore not sufficient to satisfy the information needs induced by the business activity in the single market. But efficient cross-border cooperation between business registers is not only essential for the smooth functioning of the single market. It also reduces costs for companies operating cross-border. In 2007, the Commission launched an Action Programme for reducing administrative burdens in order to improve the business environment for EU companies[3] that was endorsed by the Spring European Council in March 2007[4]. In 2008, a large-scale administrative cost measurement exercise was carried out in which company law was considered a priority area[5]. The High Level Group of Independent Stakeholders on Administrative Burdens was fully in support of achieving interoperability between trade registers throughout Europe[6]. The interconnection of business registers is one of the proposals in the Communication on the Single Market Act[7] that aim to create a more business-friendly legal and fiscal environment and can also contribute to the agenda Europe 2020[8] by improving confidence in the single market. OBJECTIVES OF THE PROPOSAL The objectives of this initiative are to increase confidence in the European single market by ensuring a safer business environment for consumers, creditors and other business partners, to foster the competitiveness of European business by reducing administrative burdens and increasing legal certainty and to improve the performance of public administration by promoting cooperation between business registers in Europe in procedures for cross-border mergers, seat transfers and updating the registration of foreign branches where cooperation mechanisms are lacking or limited. The amendments to Directive 2009/101/EC therefore aim at facilitating cross-border access to official business information by setting up an electronic network of registers and determining a common minimum set of up-to-date information to be made available to third parties by electronic means in every Member State. The amendments to Directive 89/666/EEC[9] are intended to ensure that the business register of a company provides up-to-date information on the status of the company to the business register of foreign branches all across Europe. The amendments to Directive 2005/56/EC[10] aim to improve a cooperation framework between business registers in cross-border merger procedures. While Regulations 2157/2001[11] and 1435/2003[12] require cross-border cooperation between business registers in relation to the transfer of the registered office of European Companies (SEs) and European Cooperative Societies (SCEs), it might be more appropriate to amend these legal instruments as part of the upcoming review of the Regulations. It is to note that the European e-Justice portal[13] is to become the key point of access to legal information, legal and administrative institutions, registers, databases and other services in the EU. This proposal is complementary to the e-Justice project and should contribute to easier access to business information through the portal.
Revised version (Article 2 ):
Member States shall take the measures required to ensure compulsory disclosure by companies as referred to in Article 1 of at least the following documents and particulars: (a) the instrument of constitution, and the statutes if they are contained in a separate instrument; (b) any amendments to the instruments mentioned in point (a), including any extension of the duration of the company; (c) after every amendment of the instrument of constitution or of the statutes, the complete text of the instrument or statutes as amended to date; (d) the appointment, termination of office and particulars of the persons who either as a body constituted pursuant to law or as members of any such body: (i) are authorised to represent the company in dealings with third parties and in legal proceedings; it must be apparent from the disclosure whether the persons authorised to represent the company may do so alone or must act jointly; (ii) take part in the administration, supervision or control of the company; (d) the appointment, termination of office and particulars of the persons who either as a body constituted pursuant to law or as members of any such body: (i) are authorised to represent the company in dealings with third parties and in legal proceedings; it must be apparent from the disclosure whether the persons authorised to represent the company may do so alone or must act jointly; (ii) take part in the administration, supervision or control of the company; (e) at least once a year, the amount of the capital subscribed, where the instrument of constitution or the statutes mention an authorised capital, unless any increase in the capital subscribed necessitates an amendment of the statutes; (f) the accounting documents for each financial year which are required to be published in accordance with Council Directives 78/660/EEC ( 6 ), 83/349/EEC ( 7 ), 86/635/EEC ( 8 ) and 91/674/EEC ( 9 ); (g) any change of the registered office of the company; (h) the winding-up of the company; (i) any declaration of nullity of the company by the courts; (j) the appointment of liquidators, particulars concerning them, and their respective powers, unless such powers are expressly and exclusively derived from law or from the statutes of the company; (k) the termination of the liquidation and, in Member States where striking off the register entails legal consequences, the fact of any such striking off.
Article 3 
1. In each Member State, a file shall be opened in a central register, commercial register or companies register, for each of the companies registered therein. 2. For the purposes of this Article, ‘by electronic means’ shall mean that the information is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received in a manner to be determined by Member States by wire, by radio, by optical means or by other electromagnetic means. 3. All documents and particulars which must be disclosed pursuant to Article 2 shall be kept in the file, or entered in the register; the subject matter of the entries in the register must in every case appear in the file. Member States shall ensure that the filing by companies, as well as by other persons and bodies required to make or assist in making notifications, of all documents and particulars which must be disclosed pursuant to Article 2 is possible by electronic means. In addition, Member States may require all, or certain categories of, companies to file all, or certain types of, such documents and particulars by electronic means. All documents and particulars referred to in Article 2 which are filed, whether by paper means or by electronic means, shall be kept in the file, or entered in the register, in electronic form. To this end, Member States shall ensure that all such documents and particulars which are filed by paper means are converted by the register to electronic form. The documents and particulars referred to in Article 2 that have been filed by paper means up to 31 December 2006 shall not be required to be converted automatically into electronic form by the register. Member States shall nevertheless ensure that they are converted into electronic form by the register upon receipt of an application for disclosure by electronic means submitted in accordance with the measures adopted to give effect to paragraph 4. 4. A copy of the whole or any part of the documents or particulars referred to in Article 2 must be obtainable on application. Applications may be submitted to the register by paper means or by electronic means as the applicant chooses. Copies as referred to in the first subparagraph must be obtainable from the register by paper means or by electronic means as the applicant chooses. This shall apply in the case of all documents and particulars already filed. However, Member States may decide that all, or certain types of, documents and particulars filed by paper means on or before a date which may not be later than 31 December 2006 shall not be obtainable from the register by electronic means if a specified period has elapsed between the date of filing and the date of the application submitted to the register. Such specified period may not be less than 10 years. The price of obtaining a copy of the whole or any part of the documents or particulars referred to in Article 2, whether by paper means or by electronic means, shall not exceed the administrative cost thereof. Paper copies supplied shall be certified as ‘true copies’, unless the applicant dispenses with such certification. Electronic copies supplied shall not be certified as ‘true copies’, unless the applicant explicitly requests such a certification. Member States shall take the necessary measures to ensure that certification of electronic copies guarantees both the authenticity of their origin and the integrity of their contents, by means at least of an advanced electronic signature within the meaning of Article 2(2) of Directive 1999/93/EC ( 10 ) . 5. Disclosure of the documents and particulars referred to in paragraph 3 shall be effected by publication in the national gazette designated for that purpose by the Member State, either of the full text or of a partial text, or by means of a reference to the document which has been deposited in the file or entered in the register. The national gazette designated for that purpose may be kept in electronic form. Member States may decide to replace publication in the national gazette with equally effective means, which shall entail at least the use of a system whereby the information disclosed can be accessed in chronological order through a central electronic platform. 6. The documents and particulars may be relied on by the company as against third parties only after they have been disclosed in accordance with paragraph 5, unless the company proves that the third parties had knowledge thereof. However, with regard to transactions taking place before the sixteenth day following the disclosure, the documents and particulars shall not be relied on as against third parties who prove that it was impossible for them to have had knowledge thereof. 7. Member States shall take the necessary measures to avoid any discrepancy between what is disclosed in accordance with paragraph 5 and what appears in the register or file. However, in cases of discrepancy, the text disclosed in accordance with paragraph 5 may not be relied on as against third parties; such third parties may nevertheless rely thereon, unless the company proves that they had knowledge of the texts deposited in the file or entered in the register. Third parties may, moreover, always rely on any documents and particulars in respect of which the disclosure formalities have not yet been completed, save where non-disclosure causes them not to have effect.
Amendment rationale: EXPLANATORY MEMORANDUM CONTEXT The financial crisis has highlighted once again the importance of transparency across the financial markets, including on companies governance and business activities. The Competitiveness Council Conclusions of 25 May 2010 confirmed that improving access to up-to-date and trustworthy information on companies could encourage greater confidence in the market, help recovery and increase the competitiveness of European business[1]. Business registers[2] play an essential role in this regard; they register, examine and store company information, such as information on a company's legal form, its seat, capital, legal representatives and annual accounts, and they make this information available to the public. Businesses increasingly expand beyond national borders using the opportunities offered by the single market. Progress in the field of information technology makes it easier for citizens and companies to purchase and sell goods and services abroad. Cross-border groups as well as many restructuring operations, such as mergers and divisions involve companies from different Member States of the EU. Accordingly, there is an increasing demand for access to information on companies in a cross-border context, either for commercial purposes or to facilitate access to justice. Cross-border access to business information requires the cross-border cooperation among business registers. Some cooperation between them already exists but it is limited to certain types of information and does not cover all Member States. It is therefore not sufficient to satisfy the information needs induced by the business activity in the single market. But efficient cross-border cooperation between business registers is not only essential for the smooth functioning of the single market. It also reduces costs for companies operating cross-border. In 2007, the Commission launched an Action Programme for reducing administrative burdens in order to improve the business environment for EU companies[3] that was endorsed by the Spring European Council in March 2007[4]. In 2008, a large-scale administrative cost measurement exercise was carried out in which company law was considered a priority area[5]. The High Level Group of Independent Stakeholders on Administrative Burdens was fully in support of achieving interoperability between trade registers throughout Europe[6]. The interconnection of business registers is one of the proposals in the Communication on the Single Market Act[7] that aim to create a more business-friendly legal and fiscal environment and can also contribute to the agenda Europe 2020[8] by improving confidence in the single market. OBJECTIVES OF THE PROPOSAL The objectives of this initiative are to increase confidence in the European single market by ensuring a safer business environment for consumers, creditors and other business partners, to foster the competitiveness of European business by reducing administrative burdens and increasing legal certainty and to improve the performance of public administration by promoting cooperation between business registers in Europe in procedures for cross-border mergers, seat transfers and updating the registration of foreign branches where cooperation mechanisms are lacking or limited. The amendments to Directive 2009/101/EC therefore aim at facilitating cross-border access to official business information by setting up an electronic network of registers and determining a common minimum set of up-to-date information to be made available to third parties by electronic means in every Member State. The amendments to Directive 89/666/EEC[9] are intended to ensure that the business register of a company provides up-to-date information on the status of the company to the business register of foreign branches all across Europe. The amendments to Directive 2005/56/EC[10] aim to improve a cooperation framework between business registers in cross-border merger procedures. While Regulations 2157/2001[11] and 1435/2003[12] require cross-border cooperation between business registers in relation to the transfer of the registered office of European Companies (SEs) and European Cooperative Societies (SCEs), it might be more appropriate to amend these legal instruments as part of the upcoming review of the Regulations. It is to note that the European e-Justice portal[13] is to become the key point of access to legal information, legal and administrative institutions, registers, databases and other services in the EU. This proposal is complementary to the e-Justice project and should contribute to easier access to business information through the portal.
Revised version (Article 3 ):
1. In each Member State, a file shall be opened in a central register, commercial register or companies register, for each of the companies registered therein. Member States shall ensure that companies have a unique identifier allowing them to be unequivocally identified in communication between registers through the system of interconnection of central, commercial and companies registers established in accordance with Article 4a(2) (‘the system of interconnection of registers’). That unique identifier shall comprise, at least, elements making it possible to identify the Member State of the register, the domestic register of origin and the company number in that register and, where appropriate, features to avoid identification errors. 2. For the purposes of this Article, ‘by electronic means’ shall mean that the information is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received in a manner to be determined by Member States by wire, by radio, by optical means or by other electromagnetic means. 3. All documents and particulars which must be disclosed pursuant to Article 2 shall be kept in the file, or entered in the register; the subject matter of the entries in the register must in every case appear in the file. Member States shall ensure that the filing by companies, as well as by other persons and bodies required to make or assist in making notifications, of all documents and particulars which must be disclosed pursuant to Article 2 is possible by electronic means. In addition, Member States may require all, or certain categories of, companies to file all, or certain types of, such documents and particulars by electronic means. All documents and particulars referred to in Article 2 which are filed, whether by paper means or by electronic means, shall be kept in the file, or entered in the register, in electronic form. To this end, Member States shall ensure that all such documents and particulars which are filed by paper means are converted by the register to electronic form. The documents and particulars referred to in Article 2 that have been filed by paper means up to 31 December 2006 shall not be required to be converted automatically into electronic form by the register. Member States shall nevertheless ensure that they are converted into electronic form by the register upon receipt of an application for disclosure by electronic means submitted in accordance with the measures adopted to give effect to paragraph 4. 4. A copy of the whole or any part of the documents or particulars referred to in Article 2 must be obtainable on application. Applications may be submitted to the register by paper means or by electronic means as the applicant chooses. Copies as referred to in the first subparagraph must be obtainable from the register by paper means or by electronic means as the applicant chooses. This shall apply in the case of all documents and particulars already filed. However, Member States may decide that all, or certain types of, documents and particulars filed by paper means on or before a date which may not be later than 31 December 2006 shall not be obtainable from the register by electronic means if a specified period has elapsed between the date of filing and the date of the application submitted to the register. Such specified period may not be less than 10 years. The price of obtaining a copy of the whole or any part of the documents or particulars referred to in Article 2, whether by paper means or by electronic means, shall not exceed the administrative cost thereof. Paper copies supplied shall be certified as ‘true copies’, unless the applicant dispenses with such certification. Electronic copies supplied shall not be certified as ‘true copies’, unless the applicant explicitly requests such a certification. Member States shall take the necessary measures to ensure that certification of electronic copies guarantees both the authenticity of their origin and the integrity of their contents, by means at least of an advanced electronic signature within the meaning of Article 2(2) of Directive 1999/93/EC ( 10 ). 5. Disclosure of the documents and particulars referred to in paragraph 3 shall be effected by publication in the national gazette designated for that purpose by the Member State, either of the full text or of a partial text, or by means of a reference to the document which has been deposited in the file or entered in the register. The national gazette designated for that purpose may be kept in electronic form. Member States may decide to replace publication in the national gazette with equally effective means, which shall entail at least the use of a system whereby the information disclosed can be accessed in chronological order through a central electronic platform. 6. The documents and particulars may be relied on by the company as against third parties only after they have been disclosed in accordance with paragraph 5, unless the company proves that the third parties had knowledge thereof. However, with regard to transactions taking place before the sixteenth day following the disclosure, the documents and particulars shall not be relied on as against third parties who prove that it was impossible for them to have had knowledge thereof. 7. Member States shall take the necessary measures to avoid any discrepancy between what is disclosed in accordance with paragraph 5 and what appears in the register or file. However, in cases of discrepancy, the text disclosed in accordance with paragraph 5 may not be relied on as against third parties; such third parties may nevertheless rely thereon, unless the company proves that they had knowledge of the texts deposited in the file or entered in the register. Third parties may, moreover, always rely on any documents and particulars in respect of which the disclosure formalities have not yet been completed, save where non-disclosure causes them not to have effect.
Article 4 
1. Documents and particulars which must be disclosed pursuant to Article 2 shall be drawn up and filed in one of the languages permitted by the language rules applicable in the Member State in which the file referred to in Article 3(1) is opened. 2. In addition to the mandatory disclosure referred to in Article 3, Member States shall allow documents and particulars referred to in Article 2 to be disclosed voluntarily in accordance with Article 3 in any official language(s) of the Community. Member States may prescribe that the translation of such documents and particulars be certified. Member States shall take the necessary measures to facilitate access by third parties to the translations voluntarily disclosed. 3. In addition to the mandatory disclosure referred to in Article 3, and to the voluntary disclosure provided for under paragraph 2 of this Article, Member States may allow the documents and particulars concerned to be disclosed, in accordance with Article 3, in any other language(s). Member States may prescribe that the translation of such documents and particulars be certified. 4. In cases of discrepancy between the documents and particulars disclosed in the official languages of the register and the translation voluntarily disclosed, the latter may not be relied upon as against third parties. Third parties may nevertheless rely on the translations voluntarily disclosed, unless the company proves that the third parties had knowledge of the version which was the subject of the mandatory disclosure.
Amendment rationale: EXPLANATORY MEMORANDUM CONTEXT The financial crisis has highlighted once again the importance of transparency across the financial markets, including on companies governance and business activities. The Competitiveness Council Conclusions of 25 May 2010 confirmed that improving access to up-to-date and trustworthy information on companies could encourage greater confidence in the market, help recovery and increase the competitiveness of European business[1]. Business registers[2] play an essential role in this regard; they register, examine and store company information, such as information on a company's legal form, its seat, capital, legal representatives and annual accounts, and they make this information available to the public. Businesses increasingly expand beyond national borders using the opportunities offered by the single market. Progress in the field of information technology makes it easier for citizens and companies to purchase and sell goods and services abroad. Cross-border groups as well as many restructuring operations, such as mergers and divisions involve companies from different Member States of the EU. Accordingly, there is an increasing demand for access to information on companies in a cross-border context, either for commercial purposes or to facilitate access to justice. Cross-border access to business information requires the cross-border cooperation among business registers. Some cooperation between them already exists but it is limited to certain types of information and does not cover all Member States. It is therefore not sufficient to satisfy the information needs induced by the business activity in the single market. But efficient cross-border cooperation between business registers is not only essential for the smooth functioning of the single market. It also reduces costs for companies operating cross-border. In 2007, the Commission launched an Action Programme for reducing administrative burdens in order to improve the business environment for EU companies[3] that was endorsed by the Spring European Council in March 2007[4]. In 2008, a large-scale administrative cost measurement exercise was carried out in which company law was considered a priority area[5]. The High Level Group of Independent Stakeholders on Administrative Burdens was fully in support of achieving interoperability between trade registers throughout Europe[6]. The interconnection of business registers is one of the proposals in the Communication on the Single Market Act[7] that aim to create a more business-friendly legal and fiscal environment and can also contribute to the agenda Europe 2020[8] by improving confidence in the single market. OBJECTIVES OF THE PROPOSAL The objectives of this initiative are to increase confidence in the European single market by ensuring a safer business environment for consumers, creditors and other business partners, to foster the competitiveness of European business by reducing administrative burdens and increasing legal certainty and to improve the performance of public administration by promoting cooperation between business registers in Europe in procedures for cross-border mergers, seat transfers and updating the registration of foreign branches where cooperation mechanisms are lacking or limited. The amendments to Directive 2009/101/EC therefore aim at facilitating cross-border access to official business information by setting up an electronic network of registers and determining a common minimum set of up-to-date information to be made available to third parties by electronic means in every Member State. The amendments to Directive 89/666/EEC[9] are intended to ensure that the business register of a company provides up-to-date information on the status of the company to the business register of foreign branches all across Europe. The amendments to Directive 2005/56/EC[10] aim to improve a cooperation framework between business registers in cross-border merger procedures. While Regulations 2157/2001[11] and 1435/2003[12] require cross-border cooperation between business registers in relation to the transfer of the registered office of European Companies (SEs) and European Cooperative Societies (SCEs), it might be more appropriate to amend these legal instruments as part of the upcoming review of the Regulations. It is to note that the European e-Justice portal[13] is to become the key point of access to legal information, legal and administrative institutions, registers, databases and other services in the EU. This proposal is complementary to the e-Justice project and should contribute to easier access to business information through the portal.
Revised version (Article 4 ):
1. Documents and particulars which must be disclosed pursuant to Article 2 shall be drawn up and filed in one of the languages permitted by the language rules applicable in the Member State in which the file referred to in Article 3(1) is opened. 2. In addition to the mandatory disclosure referred to in Article 3, Member States shall allow documents and particulars referred to in Article 2 to be disclosed voluntarily in accordance with Article 3 in any official language(s) of the Community. Member States may prescribe that the translation of such documents and particulars be certified. Member States shall take the necessary measures to facilitate access by third parties to the translations voluntarily disclosed. 3. In addition to the mandatory disclosure referred to in Article 3, and to the voluntary disclosure provided for under paragraph 2 of this Article, Member States may allow the documents and particulars concerned to be disclosed, in accordance with Article 3, in any other language(s). 4. In cases of discrepancy between the documents and particulars disclosed in the official languages of the register and the translation voluntarily disclosed, the latter may not be relied upon as against third parties. Third parties may nevertheless rely on the translations voluntarily disclosed, unless the company proves that the third parties had knowledge of the version which was the subject of the mandatory disclosure.
Article 5 
Member States shall prescribe that letters and order forms, whether they are in paper form or use any other medium, are to state the following particulars: (a) the information necessary in order to identify the register in which the file mentioned in Article 3 is kept, together with the number of the company in that register; (b) the legal form of the company, the location of its registered office and, where appropriate, the fact that the company is being wound up. Where, in those documents, mention is made of the capital of the company, the reference shall be to the capital subscribed and paid up. Member States shall prescribe that company websites are to contain at least the particulars mentioned in the first paragraph and, if applicable, a reference to the capital subscribed and paid up.
Article 6 
Each Member State shall determine by which persons the disclosure formalities are to be carried out.
Article 7 
Member States shall provide for appropriate penalties at least in the case of: (a) failure to disclose accounting documents as required by Article 2(f); (b) omission from commercial documents or from any company website of the compulsory particulars provided for in Article 5.
Article 8 
If, before a company being formed has acquired legal personality, action has been carried out in its name and the company does not assume the obligations arising from such action, the persons who acted shall, without limit, be jointly and severally liable therefor, unless otherwise agreed.
Article 9 
Completion of the formalities of disclosure of the particulars concerning the persons who, as an organ of the company, are authorised to represent it shall constitute a bar to any irregularity in their appointment being relied upon as against third parties unless the company proves that such third parties had knowledge thereof.
Article 10 
1. Acts done by the organs of the company shall be binding upon it even if those acts are not within the objects of the company, unless such acts exceed the powers that the law confers or allows to be conferred on those organs. However, Member States may provide that the company shall not be bound where such acts are outside the objects of the company, 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; disclosure of the statutes shall not of itself be sufficient proof thereof. 2. The limits on the powers of the organs of the company, arising under the statutes or from a decision of the competent organs, may not be relied on as against third parties, even if they have been disclosed. 3. If the national law provides that authority to represent a company may, in derogation from the legal rules governing the subject, be conferred by the statutes on a single person or on several persons acting jointly, that law may provide that such a provision in the statutes may be relied on as against third parties on condition that it relates to the general power of representation; the question whether such a provision in the statutes can be relied on as against third parties shall be governed by Article 3.
Article 11 
In all Member States whose laws do not provide for preventive, administrative or judicial control, at the time of formation of a company, the instrument of constitution, the company statutes and any amendments to those documents shall be drawn up and certified in due legal form.
Article 12 
The laws of the Member States may not provide for the nullity of companies otherwise than in accordance with the following provisions: (a) nullity must be ordered by decision of a court of law; (b) nullity may be ordered only on the grounds: (i) that no instrument of constitution was executed or that the rules of preventive control or the requisite legal formalities were not complied with; (ii) that the objects of the company are unlawful or contrary to public policy; (iii) that the instrument of constitution or the statutes do not state the name of the company, the amount of the individual subscriptions of capital, the total amount of the capital subscribed or the objects of the company; (iv) of failure to comply with the provisions of the national law concerning the minimum amount of capital to be paid up; (v) of the incapacity of all the founder members; (vi) that, contrary to the national law governing the company, the number of founder members is less than two. Apart from the foregoing grounds of nullity, a company shall not be subject to any cause of non-existence, absolute nullity, relative nullity or declaration of nullity.
Amendment rationale: EXPLANATORY MEMORANDUM CONTEXT The financial crisis has highlighted once again the importance of transparency across the financial markets, including on companies governance and business activities. The Competitiveness Council Conclusions of 25 May 2010 confirmed that improving access to up-to-date and trustworthy information on companies could encourage greater confidence in the market, help recovery and increase the competitiveness of European business[1]. Business registers[2] play an essential role in this regard; they register, examine and store company information, such as information on a company's legal form, its seat, capital, legal representatives and annual accounts, and they make this information available to the public. Businesses increasingly expand beyond national borders using the opportunities offered by the single market. Progress in the field of information technology makes it easier for citizens and companies to purchase and sell goods and services abroad. Cross-border groups as well as many restructuring operations, such as mergers and divisions involve companies from different Member States of the EU. Accordingly, there is an increasing demand for access to information on companies in a cross-border context, either for commercial purposes or to facilitate access to justice. Cross-border access to business information requires the cross-border cooperation among business registers. Some cooperation between them already exists but it is limited to certain types of information and does not cover all Member States. It is therefore not sufficient to satisfy the information needs induced by the business activity in the single market. But efficient cross-border cooperation between business registers is not only essential for the smooth functioning of the single market. It also reduces costs for companies operating cross-border. In 2007, the Commission launched an Action Programme for reducing administrative burdens in order to improve the business environment for EU companies[3] that was endorsed by the Spring European Council in March 2007[4]. In 2008, a large-scale administrative cost measurement exercise was carried out in which company law was considered a priority area[5]. The High Level Group of Independent Stakeholders on Administrative Burdens was fully in support of achieving interoperability between trade registers throughout Europe[6]. The interconnection of business registers is one of the proposals in the Communication on the Single Market Act[7] that aim to create a more business-friendly legal and fiscal environment and can also contribute to the agenda Europe 2020[8] by improving confidence in the single market. OBJECTIVES OF THE PROPOSAL The objectives of this initiative are to increase confidence in the European single market by ensuring a safer business environment for consumers, creditors and other business partners, to foster the competitiveness of European business by reducing administrative burdens and increasing legal certainty and to improve the performance of public administration by promoting cooperation between business registers in Europe in procedures for cross-border mergers, seat transfers and updating the registration of foreign branches where cooperation mechanisms are lacking or limited. The amendments to Directive 2009/101/EC therefore aim at facilitating cross-border access to official business information by setting up an electronic network of registers and determining a common minimum set of up-to-date information to be made available to third parties by electronic means in every Member State. The amendments to Directive 89/666/EEC[9] are intended to ensure that the business register of a company provides up-to-date information on the status of the company to the business register of foreign branches all across Europe. The amendments to Directive 2005/56/EC[10] aim to improve a cooperation framework between business registers in cross-border merger procedures. While Regulations 2157/2001[11] and 1435/2003[12] require cross-border cooperation between business registers in relation to the transfer of the registered office of European Companies (SEs) and European Cooperative Societies (SCEs), it might be more appropriate to amend these legal instruments as part of the upcoming review of the Regulations. It is to note that the European e-Justice portal[13] is to become the key point of access to legal information, legal and administrative institutions, registers, databases and other services in the EU. This proposal is complementary to the e-Justice project and should contribute to easier access to business information through the portal.
Revised version (Article 12 ):
The laws of the Member States may not provide for the nullity of companies otherwise than in accordance with the following provisions: (a) nullity must be ordered by decision of a court of law; (b) nullity may be ordered only on the grounds: (i) that no instrument of constitution was executed or that the rules of preventive control or the requisite legal formalities were not complied with; (ii) that the objects of the company are unlawful or contrary to public policy; (iii) that the instrument of constitution or the statutes do not state the name of the company, the amount of the individual subscriptions of capital, the total amount of the capital subscribed or the objects of the company; (iv) of failure to comply with the provisions of the national law concerning the minimum amount of capital to be paid up; (v) of the incapacity of all the founder members; (vi) that, contrary to the national law governing the company, the number of founder members is less than two. (b) nullity may be ordered only on the grounds: (i) that no instrument of constitution was executed or that the rules of preventive control or the requisite legal formalities were not complied with; (ii) that the objects of the company are unlawful or contrary to public policy; (iii) that the instrument of constitution or the statutes do not state the name of the company, the amount of the individual subscriptions of capital, the total amount of the capital subscribed or the objects of the company; (iv) of failure to comply with the provisions of the national law concerning the minimum amount of capital to be paid up; (v) of the incapacity of all the founder members; (vi) that, contrary to the national law governing the company, the number of founder members is less than two. Apart from the foregoing grounds of nullity, a company shall not be subject to any cause of non-existence, absolute nullity, relative nullity or declaration of nullity.
Article 13 
1. The question whether a decision of nullity pronounced by a court of law may be relied on as against third parties shall be governed by Article 3. Where the national law entitles a third party to challenge the decision, he may do so only within six months of public notice of the decision of the court being given. 2. Nullity shall entail the winding-up of the company, as may dissolution. 3. Nullity shall not of itself affect the validity of any commitments entered into by or with the company, without prejudice to the consequences of the company’s being wound up. 4. The laws of each Member State may make provision for the consequences of nullity as between members of the company. 5. Holders of shares in the capital shall remain obliged to pay up the capital agreed to be subscribed by them but which has not been paid up, to the extent that commitments entered into with creditors so require.
Article 14 
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 15 
The Commission shall present to the European Parliament and to the Council, by no later than 1 January 2012, a report, together with a proposal, if appropriate, for amendment of the provisions of Article 2(f) and Articles 3, 4, 5 and 7 in the light of the experience acquired in applying those provisions, of their aims and of the technological developments observed at the time.
Article 16 
Directive 68/151/EEC, as amended by the acts listed in Annex I, Part A, is hereby repealed, without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex I, Part B. 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.
Article 17 
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union .
Article 18 
This Directive is addressed to the Member States.