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Document 02017L1132-20220812
Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law (codification) (Text with EEA relevance)Text with EEA relevance
Consolidated text: Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law (codification) (Text with EEA relevance)Text with EEA relevance
Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law (codification) (Text with EEA relevance)Text with EEA relevance
02017L1132 — EN — 12.08.2022 — 003.001
This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal of the European Union and available in EUR-Lex. Those official texts are directly accessible through the links embedded in this document
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DIRECTIVE (EU) 2017/1132 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 June 2017 relating to certain aspects of company law (codification) (OJ L 169 30.6.2017, p. 46) |
Amended by:
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Official Journal |
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No |
page |
date |
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DIRECTIVE (EU) 2019/1023 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 June 2019 |
L 172 |
18 |
26.6.2019 |
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DIRECTIVE (EU) 2019/1151 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 June 2019 |
L 186 |
80 |
11.7.2019 |
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DIRECTIVE (EU) 2019/2121 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 November 2019 |
L 321 |
1 |
12.12.2019 |
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REGULATION (EU) 2021/23 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 16 December 2020 |
L 22 |
1 |
22.1.2021 |
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Corrected by:
DIRECTIVE (EU) 2017/1132 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 14 June 2017
relating to certain aspects of company law
(codification)
(Text with EEA relevance)
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TITLE I |
GENERAL PROVISIONS AND THE ESTABLISHMENT AND FUNCTIONING OF LIMITED LIABILITY COMPANIES |
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Chapter I |
Subject matter |
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Chapter II |
Incorporation and nulity of the company and validity of its obligations |
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Section 1 |
Incorporation of the public liability company |
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Section 2 |
Nullity of the limited liability company and validity of its obligations |
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Chapter III |
Online procedures (formation, registration and filing), disclosure and registers |
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Section 1 |
General provisions |
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Section 1A |
Online formation, online filing and disclosure |
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Section 2 |
Registration and disclosure rules applicable to branches of companies from other Member States |
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Section 3 |
Disclosure rules applicable to branches of companies from third countries |
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Section 4 |
Application and implementing arrangements |
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Chapter IV |
Capital maintenance and alteration |
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Section 1 |
Capital requirements |
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Section 2 |
Safeguards as regards statutory capital |
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Section 3 |
Rules on distribution |
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Section 4 |
Rules on companies' aquisitions of their own shares |
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Section 5 |
Rules for the increase and reduction of capital |
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Section 6 |
Application and implementing arrangements |
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TITLE II |
CONVERSIONS, MERGERS AND DIVISIONS OF LIMITED LIABILITY COMPANIES |
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Chapter -I |
Cross-border conversions |
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Chapter I |
Mergers of public limited liability companies |
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Section 1 |
General provisions on mergers |
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Section 2 |
Merger by acquisition |
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Section 3 |
Merger by formation of a new company |
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Section 4 |
Acquisition of one company by another which holds 90 % or more of its shares |
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Section 5 |
Other operations treated as mergers |
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Chapter II |
Cross-border mergers of limited liability companies |
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Chapter III |
Divisions of public limited liability companies |
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Section 1 |
General provisions |
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Section 2 |
Division by acquisition |
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Section 3 |
Division by the formation of new companies |
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Section 4 |
Divisions under the supervision of a judicial authority |
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Section 5 |
Other operations treated as divisions |
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Section 6 |
Application arrangements |
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Chapter IV |
Cross-border divisions of limited liability companies |
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TITLE III |
FINAL PROVISIONS |
TITLE I
GENERAL PROVISIONS AND THE ESTABLISHMENT AND FUNCTIONING OF LIMITED LIABILITY COMPANIES
CHAPTER I
Subject matter
Article 1
Subject matter
This Directive lays down measures concerning the following:
CHAPTER II
Incorporation and nulity of the company and validity of its obligations
Article 2
Scope
The term ‘investment company with variable capital’, within the meaning of this Directive, means only those companies:
Article 3
Compulsory information to be provided in the statutes or instruments of incorporation
The statutes or the instrument of incorporation of a company shall always give at least the following information:
the type and name of the company;
the objects of the company;
where the company has no authorised capital, the amount of the subscribed capital;
where the company has an authorised capital, the amount thereof and also the amount of the capital subscribed at the time the company is incorporated or is authorised to commence business, and at the time of any change in the authorised capital, without prejudice to Article 14(e);
in so far as they are not legally determined, the rules governing the number of, and the procedure for, appointing members of the bodies responsible for representing the company vis-à-vis third parties, administration, management, supervision or control of the company and the allocation of powers among those bodies;
the duration of the company, except where this is indefinite.
Article 4
Compulsory information to be provided in the statutes or instruments of incorporation or separate documents
The following information at least shall appear in either the statutes or the instrument of incorporation or a separate document published in accordance with the procedure laid down in the laws of each Member State in accordance with Article 16:
the registered office;
the nominal value of the shares subscribed and, at least once a year, the number thereof;
the number of shares subscribed without stating the nominal value, where such shares may be issued under national law;
the special conditions, if any, limiting the transfer of shares;
where there are several classes of shares, the information referred to in points (b), (c) and (d) for each class and the rights attaching to the shares of each class;
whether the shares are registered or bearer, where national law provides for both types, and any provisions relating to the conversion of such shares unless the procedure is laid down by law;
the amount of the subscribed capital paid up at the time the company is incorporated or is authorised to commence business;
the nominal value of the shares or, where there is no nominal value, the number of shares issued for a consideration other than in cash, together with the nature of the consideration and the name of the person providing the consideration;
the identity of the natural or legal persons or companies or firms by which or in whose name the statutes or the instrument of incorporation, or where the company was not formed at the same time, the drafts of those documents, have been signed;
the total amount, or at least an estimate, of all the costs payable by the company or chargeable to it by reason of its formation and, where appropriate, before the company is authorised to commence business;
any special advantage granted, at the time the company is formed or up to the time it receives authorisation to commence business, to anyone who has taken part in the formation of the company or in transactions leading to the grant of such authorisation.
Article 5
Authorisation for commencing business
Article 6
Multiple-member companies
Article 7
General provisions and joint and several liability
Article 8
Effects of disclosure with respect to third parties
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 9
Acts of the organs of a company and its representation
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.
Article 10
Drawing up and certification of the instrument of constitution and the company statutes in due legal form
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 11
Conditions for nullity of a company
The laws of the Member States may not provide for the nullity of companies otherwise than in accordance with the following provisions:
nullity must be ordered by decision of a court of law;
nullity may be ordered only on the grounds:
that no instrument of constitution was executed or that the rules of preventive control or the requisite legal formalities were not complied with;
that the objects of the company are unlawful or contrary to public policy;
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;
of failure to comply with provisions of national law concerning the minimum amount of capital to be paid up;
of the incapacity of all the founder members;
that, contrary to the national law governing the company, the number of founder members is less than two.
Apart from the grounds of nullity referred to in the first paragraph, a company shall not be subject to any cause of non-existence, absolute nullity, relative nullity or declaration of nullity.
Article 12
Consequences of nullity
CHAPTER III
Online procedures (formation, registration and filing), disclosure and registers
Article 13
Scope
The coordination measures prescribed by this Section and by Section 1A shall apply to the laws, regulations and administrative provisions of the Member States relating to the types of companies listed in Annex II and, where specified, to the types of companies listed in Annexes I and IIA.
Article 13a
Definitions
For the purposes of this Chapter:
‘electronic identification means’ means an electronic identification means as defined in point (2) of Article 3 of Regulation (EU) No 910/2014 of the European Parliament and of the Council ( 1 )
‘electronic identification scheme’ means an electronic identification scheme as defined in point (4) of Article 3 of Regulation (EU) No 910/2014;
‘electronic means’ means electronic equipment used for the processing, including digital compression, and the storage of data, and through which information is initially sent and received at its destination; that information being entirely transmitted, conveyed and received in a manner to be determined by Member States;
‘formation’ means the whole process of establishing a company in accordance with national law, including the drawing up of the company’s instrument of constitution and all the necessary steps for the entry of the company in the register;
‘registration of a branch’ means a process leading to disclosure of documents and information relating to a branch newly opened in a Member State;
‘template’ means a model for the instrument of constitution of a company which is drawn up by Member States in compliance with national law and is used for the online formation of a company in accordance with Article 13g.
Article 13b
Recognition of identification means for the purposes of online procedures
Member States shall ensure that the following electronic identification means can be used by applicants who are Union citizens in the online procedures referred to in this Chapter:
an electronic identification means issued under an electronic identification scheme approved by their own Member State;
an electronic identification means issued in another Member State and recognised for the purpose of cross-border authentication in accordance with Article 6 of Regulation (EU) No 910/2014.
Article 13c
General provisions on online procedures
Article 13d
Fees for online procedures
Article 13e
Payments
Where the completion of a procedure laid down in this Chapter requires a payment, Member States shall ensure that that payment can be made by means of a widely available online payment service that can be used for cross-border payments, that permits identification of the person that made the payment and is provided by a financial institution or payment service provider established in a Member State.
Article 13f
Information requirements
Member States shall ensure that concise and user-friendly information, provided free of charge and at least in a language broadly understood by the largest possible number of cross-border users, is made available on registration portals or websites that are accessible by means of the Single Digital Gateway to assist in the formation of companies and the registration of branches. The information shall cover at least the following:
rules on the formation of companies, including online procedures referred to in Articles 13g and 13j, and requirements relating to the use of templates and to other formation documents, identification of persons, the use of languages and to applicable fees;
rules on the registration of branches, including online procedures referred to in Articles 28a and 28b, and requirements relating to registration documents, identification of persons and the use of languages;
an outline of the applicable rules on becoming a member of the administrative body, the management body or the supervisory body of a company, including of the rules on disqualification of directors, and on the authorities or bodies responsible for keeping information about disqualified directors;
an outline of the powers and responsibilities of the administrative body, the management body and the supervisory body of a company, including the authority to represent a company in dealings with third parties.
Article 13g
Online formation of companies
However, Member States may decide not to provide for online formation procedures for types of companies other than those listed in Annex IIA.
The rules referred to in paragraph 2 shall at least provide for the following:
the procedures to ensure that the applicants have the necessary legal capacity and have authority to represent the company;
the means to verify the identity of the applicants in accordance with Article 13b;
the requirements for the applicants to use trust services referred to in Regulation (EU) No 910/2014;
the procedures to verify the legality of the object of the company, insofar as such checks are provided for under national law;
the procedures to verify the legality of the name of the company, insofar as such checks are provided for under national law;
the procedures to verify the appointment of directors.
The rules referred to in paragraph 2 may, in particular, also provide for the following:
the procedures to ensure the legality of the company instruments of constitution, including verifying the correct use of templates;
the consequences of the disqualification of a director by the competent authority in any Member State;
the role of a notary or any other person or body mandated under national law to deal with any aspect of the online formation of a company;
the exclusion of online formation in cases where the share capital of the company is paid by way of contributions in kind.
Member States shall ensure that the online formation is completed within five working days where a company is formed exclusively by natural persons who use the templates referred to in Article 13h, or within ten working days in other cases, from the later of the following:
the date of the completion of all formalities required for the online formation, including the receipt of all documents and information, which comply with national law, by an authority or a person or body mandated under national law to deal with any aspect of the formation of a company;
the date of the payment of a registration fee, the payment in cash for share capital, or the payment for the share capital by way of a contribution in kind, as provided for under national law.
Where it is not possible to complete the procedure within the deadlines referred to in this paragraph, Member States shall ensure that the applicant is notified of the reasons for the delay.
Article 13h
Templates for online formation of companies
This Directive shall not affect any requirement under national law to have the drawing up of instruments of constitution done in due legal form, as long as the online formation referred to in Article 13g is possible.
Article 13i
Disqualified directors
Member States may refuse the appointment of a person as a director of a company where that person is currently disqualified from acting as a director in another Member State.
Member States shall ensure that the registers referred to in Article 16, authorities or persons or bodies mandated under national law to deal with any aspect of online procedures do not store personal data transmitted for the purposes of this Article any longer than is necessary, and in any event no longer than any personal data related to the formation of a company, the registration of a branch or a filing by a company or branch are stored.
Article 13j
Online filing of company documents and information
Article 14
Documents and particulars to be disclosed by companies
Member States shall take the measures required to ensure compulsory disclosure by companies of at least the following documents and particulars:
the instrument of constitution, and the statutes if they are contained in a separate instrument;
any amendments to the instruments referred to in point (a), including any extension of the duration of the company;
after every amendment of the instrument of constitution or of the statutes, the complete text of the instrument or statutes as amended to date;
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:
are authorised to represent the company in dealings with third parties and in legal proceedings; it shall be apparent from the disclosure whether the persons authorised to represent the company may do so alone or are required to act jointly;
take part in the administration, supervision or control of the company;
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;
any change of the registered office of the company;
the winding-up of the company;
any declaration of nullity of the company by the courts;
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;
any termination of a liquidation and, in Member States where striking off the register entails legal consequences, the fact of any such striking off.
Article 15
Changes in documents and particulars
Article 16
Disclosure in the register
Member States shall ensure that companies have a European unique identifier (‘EUID’), referred to in point (8) of the Annex to Commission Implementing Regulation (EU) 2015/884CCC ( 5 ), allowing them to be unequivocally identified in communications between registers through the system of interconnection of registers established in accordance with Article 22 (‘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.
All documents and information referred to in Article 14, irrespective of the means by which they are filed, shall be kept in the file in the register or entered directly into it in electronic form. Member States shall ensure that all documents and information that are filed by paper means are converted by the register to electronic form as quickly as possible.
Member States shall ensure that documents and information referred to in Article 14 that were filed by paper means before 31 December 2006 are converted into electronic form by the register upon receipt of an application for disclosure by electronic means.
Member States that require the publication of documents and information in a national gazette or on a central electronic platform shall take the necessary measures to avoid any discrepancy between what is disclosed in accordance with paragraph 3 and what is published in the gazette or on the platform.
In cases of any discrepancies under this Article, the documents and information made available in the register shall prevail.
However, with regard to transactions taking place before the sixteenth day following the disclosure, the documents and information shall not be relied on as against third parties who prove that it was impossible for them to have had knowledge thereof.
Third parties may always rely on any documents and information in respect of which the disclosure formalities have not yet been completed, save where non-disclosure causes such documents or information to have no effect.
Article 16a
Access to disclosed information
However, Member States may decide that certain types or parts of the documents and information, which were filed by paper means on or before 31 December 2006, cannot be obtained by electronic means where a specified period has elapsed between the date of filing and the date of the application. Such a specified period shall not be less than 10 years.
Article 17
Up-to-date information on national law with regard to the rights of third parties
Article 18
Availability of electronic copies of documents and particulars
The Commission shall provide a search service in all the official languages of the Union in respect of companies registered in the Member States, in order to make available through the portal:
the documents and information referred to in Article 14, including for types of companies other than those listed in Annex II, where such documents are made available by Member States;
the documents and information referred to in Articles 86g, 86n, 86p, 123, 127a, 130, 160g, 160n and 160p;
the explanatory labels, available in all the official languages of the Union, listing those particulars and the types of those documents.
Article 19
Fees chargeable for documents and information
Member States shall ensure that at least the following information and documents are available free of charge through the system of interconnection of registers:
the name or names and legal form of the company;
the registered office of the company and the Member State where it is registered;
the registration number of the company and its EUID;
details of the company website, where such details are recorded in the national register;
the status of the company, such as when it is closed, struck off the register, wound up, dissolved, economically active or inactive as defined in national law and where recorded in the national registers;
the object of the company, where it is recorded in the national register;
the particulars of any persons who either as a body or as members of any such body are currently authorised by the company to represent it in dealing with third parties and in legal proceedings and information as to whether the persons authorised to represent the company may do so alone or are required to act jointly;
information on any branches opened by the company in another Member State including the name, registration number, EUID and the Member State where the branch is registered.
Article 20
Information on the opening and termination of winding-up or insolvency proceedings and on striking-off of a company from the register
▼M2 —————
Article 21
Language of disclosure and translation of documents and particulars to be disclosed
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.
Member States may prescribe that the translation of such documents and particulars be certified.
Article 22
System of interconnection of registers
The system of interconnection of registers shall be composed of:
The Commission may also establish optional access points to the system of interconnection of registers. Such access points shall consist of systems developed and operated by the Commission or other Union institutions, bodies, offices or agencies in order to perform their administrative functions or to comply with provisions of Union law. The Commission shall notify the Member States without undue delay of the establishment of such access points and of any significant changes to their operation.
Article 23
Development and operation of the platform
If the Commission decides to develop and/or operate the platform through a third party, the choice of the third party and the enforcement by the Commission of the agreement concluded with that third party shall be done in accordance with Regulation (EU, Euratom) No 966/2012.
The operational management of the platform shall include, in particular:
The supervision of the functioning of the platform shall be carried out by the Commission.
Article 24
Implementing acts
By means of implementing acts, the Commission shall adopt the following:
the technical specification defining the methods of communication by electronic means for the purpose of the system of interconnection of registers;
the technical specification of the communication protocols;
the technical measures ensuring the minimum information technology security standards for communication and distribution of information within the system of interconnection of registers;
the technical specification defining the methods of exchange of information between the register of the company and the register of the branch as referred to in Articles 20, 28a, 28c, 30a and 34;
the detailed list of data to be transmitted for the purpose of exchanging information between registers, as referred to in Articles 20, 28a, 28c, 30a and 34;
the detailed list of data to be transmitted for the purpose of exchanging information between registers and for the purposes of disclosure, as referred to in Articles 86g, 86n, 86p, 123, 127a, 130, 160g, 160n and 160p;
the technical specification defining the structure of the standard message format for the purpose of the exchange of information between the registers, the platform and the portal;
the technical specification defining the set of the data necessary for the platform to perform its functions as well as the method of storage, use and protection of such data;
the technical specification defining the structure and use of the unique identifier for communication between registers;
the specification defining the technical methods of operation of the system of interconnection of registers as regards the distribution and exchange of information, and the specification defining the information technology services, provided by the platform, ensuring the delivery of messages in the relevant language version;
the harmonised criteria for the search service provided by the portal;
the payment modalities, taking into account available payment facilities such as online payment;
the details of the explanatory labels listing the particulars and the types of documents referred to in Article 14;
the technical conditions of availability of services provided by the system of interconnection of registers;
the procedure and technical requirements for the connection of the optional access points to the platform as referred to in Article 22;
the detailed arrangements for and technical details of the exchange between registers of the information referred to in Article 13i.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 164(2).
The Commission shall adopt the implementing acts pursuant to points (d), (e), (n) and (o) by 1 February 2021. ►M3 ►C1 The Commission shall adopt the implementing acts referred to in point (ea) by 2 July 2021. ◄ ◄
Article 25
Financing
Article 26
Information on letters and order forms
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:
the information necessary in order to identify the register in which the file referred to in Article 16 is kept, together with the number of the company in that register;
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 referred to in the first paragraph and, if applicable, a reference to the capital subscribed and paid up.
Article 27
Persons carrying out disclosure formalities
Each Member State shall determine by which persons the disclosure formalities are to be carried out.
Article 28
Penalties
Member States shall provide for appropriate penalties at least in the case of:
failure to disclose accounting documents as required by Article 14(f);
omission from commercial documents or from any company website of the compulsory particulars provided for in Article 26.
Article 28a
Online registration of branches
The rules referred to in paragraph 2 shall at least provide for the following:
the procedure to ensure that the applicants have the necessary legal capacity and that they have authority to represent the company;
the means for verifying the identity of the person or persons registering the branch or their representatives;
the requirements for the applicants to use the trust services referred to in Regulation (EU) No 910/2014.
The rules referred to in paragraph 2 may also provide for procedures to do the following:
verify the legality of the object of the branch;
verify the legality of the name of the branch;
verify the legality of the documents and information submitted for the registration of the branch;
provide for the role of a notary or any other person or body involved in the process of registration of the branch under the applicable national provisions.
Member States shall not make the online registration of a branch conditional on obtaining any licence or authorisation before the branch is registered, unless such a condition is indispensable for the proper oversight laid down in national law of certain activities.
Where it is not possible to register a branch within the deadlines referred to in this paragraph, Member States shall ensure that the applicant is notified of the reasons for the delay.
Article 28b
Online filing of documents and information for branches
Article 28c
Closure of branches
Member States shall ensure that, upon receipt of the documents and information referred to in point (h) of Article 30(1), the register of a Member State where a branch of a company is registered informs, by means of the system of interconnection of registers, the register of the Member State where the company is registered that its branch has been closed and struck off the register. The register of the Member State of the company shall acknowledge receipt of such notification also by means of that system and shall record the information without delay.
Article 29
Disclosure of documents and particulars relating to a branch
Article 30
Documents and particulars to be disclosed
The compulsory disclosure provided for in Article 29 shall cover the following documents and particulars only:
the address of the branch;
the activities of the branch;
the register in which the company file referred to in Article 16 is kept, together with the registration number in that register;
the name and legal form of the company and the name of the branch, if that is different from the name of the company;
the appointment, termination of office and particulars of the persons who are authorised to represent the company in dealings with third parties and in legal proceedings:
the accounting documents in accordance with Article 31;
the closure of the branch.
The Member State in which the branch has been opened may provide for the disclosure, as referred to in Article 29, of
the signature of the persons referred to in points (e) and (f) of paragraph 1 of this Article;
the instruments of constitution and the memorandum and articles of association if they are contained in a separate instrument, in accordance with points (a), (b) and (c) of Article 14, together with amendments to those documents;
an attestation from the register referred to in point (c) of paragraph 1 of this Article relating to the existence of the company;
an indication of the securities on the company's property situated in that Member State, provided such disclosure relates to the validity of those securities.
Article 30a
Changes to documents and information of the company
The Member State where a company is registered shall notify, by means of the system of interconnection of registers, without delay, the Member State where a branch of the company is registered, in the event that a change has been filed with regard to any of the following:
the company’s name;
the company’s registered office;
the company’s registration number in the register;
the company’s legal form;
the documents and information referred to in points (d) and (f) of Article 14.
Upon receipt of the notification referred to in the first paragraph of this Article, the register in which the branch is registered shall, by means of the system of interconnection of registers, acknowledge receipt of such notification and shall ensure that the documents and information referred to in Article 30(1) are updated without delay.
Article 31
Limits on the compulsory disclosure of accounting documents
The compulsory disclosure provided for by Article 30(1)(g) shall be limited to the accounting documents of the company as drawn up, audited and disclosed pursuant to the law of the Member State by which the company is governed in accordance with Directive 2006/43/EC of the European Parliament and of the Council ( 6 ) and Directive 2013/34/EU.
Member States may provide that the mandatory disclosure of accounting documents referred to in point (g) of Article 30(1) may be considered fulfilled by the disclosure in the register of the Member State in which the company is registered in accordance with point (f) of Article 14.
Article 32
Language of disclosure and translation of documents to be disclosed
The Member State in which the branch has been opened may stipulate that the documents referred to in Article 30(2)(b) and Article 31 are to be published in another official language of the Union and that the translations of such documents are to be certified.
Article 33
Disclosure in cases of multiple branches in a Member State
Where a company has opened more than one branch in a Member State, the disclosure referred to in Article 30(2)(b) and Article 31 may be made in the register of the branch of the company's choice.
In the case referred to in the first paragraph, compulsory disclosure by the other branches shall cover the particulars of the branch register of which disclosure was made, together with the number of that branch in that register.
Article 34
Information on the opening and termination of winding-up or insolvency proceedings and on striking-off of the company from the register
Article 35
Information on letters and order forms
Member States shall prescribe that letters and order forms used by a branch shall state, in addition to the information prescribed by Article 26, the register in which the file in respect of the branch is kept together with the number of the branch in that register.
Article 36
Disclosure of documents and particulars relating to a branch
Article 37
Compulsory documents and particulars to be disclosed
The compulsory disclosure provided for in Article 36 shall cover at least the following documents and particulars:
the address of the branch;
the activities of the branch;
the law of the State by which the company is governed;
where that law so provides, the register in which the company is entered and the registration number of the company in that register;
the instruments of constitution, and memorandum and articles of association if they are contained in a separate instrument, with all amendments to those documents;
the legal form of the company, its principal place of business and its object and, at least annually, the amount of subscribed capital if those particulars are not given in the documents referred to in point (e);
the name of the company and the name of the branch if that is different from the name of the company;
the appointment, termination of office and particulars of the persons who are authorised to represent the company in dealings with third parties and in legal proceedings:
The extent of the powers of the persons authorised to represent the company shall be stated, as well as whether those persons may represent the company alone or are required to act jointly;
the accounting documents in accordance with Article 38;
the closure of the branch.
Article 38
Limits of compulsory disclosure of accounting documents
Article 39
Information on letters and order forms
Member States shall prescribe that letters and order forms used by a branch state the register in which the file in respect of the branch is kept together with the number of the branch in that register. Where the law of the State by which the company is governed requires entry in a register, the register in which the company is entered, and the registration number of the company in that register shall also be stated.
Article 40
Penalties
Member States shall provide for appropriate penalties in the event of failure to disclose the matters set out in Articles 29, 30, 31, 36, 37 and 38 and of omission from letters and order forms of the compulsory particulars provided for in Articles 35 and 39.
Article 41
Persons carrying out disclosure formalities
Each Member State shall determine who shall carry out the disclosure formalities provided for in Sections 2 and 3.
Article 42
Exemptions to provisions on disclosure of accounting documents for branches
▼M2 —————
CHAPTER IV
Capital maintenance and alteration
Article 44
General provisions
Article 45
Minimum capital
Article 46
Assets
Subscribed capital may be formed only of assets capable of economic assessment. However, an undertaking to perform work or supply services may not form part of those assets.
Article 47
Issuing price of shares
Shares may not be issued at a price lower than their nominal value, or, where there is no nominal value, their accountable par.
However, Member States may allow those who undertake to place shares in the exercise of their profession to pay less than the total price of the shares for which they subscribe in the course of this transaction.
Article 48
Paying up of shares issued for a consideration
Shares issued for consideration shall be paid up at the time the company is incorporated or is authorised to commence business at not less than 25 % of their nominal value or, in the absence of a nominal value, their accountable par.
However, where shares are issued for consideration other than in cash at the time the company is incorporated or is authorised to commence business, the consideration shall be transferred in full within five years of that time.
Article 49
Experts' report on consideration other than in cash
Member States may decide not to apply this Article where 90 % of the nominal value, or where there is no nominal value, of the accountable par, of all the shares is issued to one or more companies for a consideration other than in cash, and where the following requirements are met:
with regard to the company in receipt of such consideration, the persons referred to in point (i) of Article 4 have agreed to dispense with the experts' report;
such agreement has been published as provided for in paragraph 3;
the companies furnishing such consideration have reserves which may not be distributed under the law or the statutes and which are at least equal to the nominal value or, where there is no nominal value, the accountable par of the shares issued for consideration other than in cash;
the companies furnishing such consideration guarantee, up to an amount equal to that indicated in point (c), the debts of the recipient company arising between the time the shares are issued for a consideration other than in cash and one year after the publication of that company's annual accounts for the financial year during which such consideration was furnished. Any transfer of such shares shall be prohibited during that period;
the guarantee referred to in point (d) has been published as provided for in paragraph 3; and
the companies furnishing such consideration shall place a sum equal to that indicated in point (c) into a reserve which may not be distributed until three years after publication of the annual accounts of the recipient company for the financial year during which such consideration was furnished or, if necessary, until such later date as all claims relating to the guarantee referred to in point (d) which are submitted during this period have been settled.
Where Member States decide to apply this Article in the cases referred to in the first subparagraph, they may provide that the report drawn up under paragraph 1 of this Article and the report by one or more independent experts on the draft terms of merger or division may be drawn up by the same expert or experts.
Article 50
Derogation from the requirement for an experts' report
However, where that price has been affected by exceptional circumstances that would significantly change the value of the asset at the effective date of its contribution, including situations where the market for such transferable securities or money-market instruments has become illiquid, a revaluation shall be carried out on the initiative and under the responsibility of the administrative or management body.
For the purposes of such revaluation, Article 49(1), (2) and (3) shall apply.
Member States may decide not to apply Article 49(1), (2) and (3) where, upon a decision of the administrative or management body, assets, other than the transferable securities and money-market instruments referred to in paragraph 1 of this Article, are contributed as consideration other than in cash which have already been subject to a fair value opinion by a recognised independent expert and where the following conditions are fulfilled:
the fair value is determined for a date not more than six months before the effective date of the asset contribution; and
the valuation has been performed in accordance with generally accepted valuation standards and principles in the Member State which are applicable to the kind of assets to be contributed.
In the case of new qualifying circumstances that would significantly change the fair value of the asset at the effective date of its contribution, a revaluation shall be carried out on the initiative and under the responsibility of the administrative or management body.
For the purposes of the revaluation referred to in the second subparagraph, Article 49(1), (2) and (3) shall apply.
In the absence of such a revaluation, one or more shareholders holding an aggregate percentage of at least 5 % of the company's subscribed capital on the date the decision on the increase in the capital is taken, may demand a valuation by an independent expert, in which case Article 49(1), (2) and (3) shall apply.
Such shareholder(s) may submit a demand up until the effective date of the asset contribution, provided that, at the date of the demand, the shareholder(s) in question still hold(s) an aggregate percentage of at least 5 % of the company's subscribed capital, as it was on the date the decision on the increase in the capital was taken.
The second to fifth subparagraphs of paragraph 2 of this Article shall apply mutatis mutandis.
Article 51
Consideration other than in cash without an experts' report
Where consideration other than in cash as referred to in Article 50 is provided without an experts' report as referred to in Article 49(1), (2) and (3), in addition to the requirements set out in point (h) of Article 4 and within one month of the effective date of the asset contribution, a declaration containing the following shall be published:
a description of the consideration other than in cash at issue;
its value, the source of this valuation and, where appropriate, the method of valuation;
a statement whether the value arrived at corresponds at least to the number, to the nominal value or, where there is no nominal value, the accountable par and, where appropriate, to the premium on the shares to be issued for such consideration; and
a statement that no new qualifying circumstances with regard to the original valuation have occurred.
The publication of the declaration shall be effected in the manner laid down by the laws of each Member State in accordance with Article 16.
Article 52
Substantial acquisitions after incorporation or authorisation to commence business
Articles 50 and 51 shall apply mutatis mutandis.
Member States may also require these provisions to be applied when the assets belong to a shareholder or to any other person.
Article 53
Shareholders' obligation to pay up contributions
Subject to the provisions relating to the reduction of subscribed capital, the shareholders may not be released from the obligation to pay up their contributions.
Article 54
Safeguards in the event of conversion
Pending coordination of national laws at a subsequent date, Member States shall adopt the measures necessary to require provision of at least the same safeguards as are laid down in Articles 3 to 6 and Articles 45 to 53 in the event of the conversion of another type of company into a public limited liability company.
Article 55
Modification of the statutes or of the instrument of incorporation
Articles 3 to 6 and Articles 45 to 54 shall be without prejudice to the provisions of Member States on competence and procedure relating to the modification of the statutes or of the instrument of incorporation.
Article 56
General rules on distribution
When the laws of a Member State allow the payment of interim dividends, at least the following conditions shall apply:
interim accounts shall be drawn up showing that the funds available for distribution are sufficient;
the amount to be distributed may not exceed the total profits made since the end of the last financial year for which the annual accounts have been drawn up, plus any profits brought forward and sums drawn from reserves available for this purpose, less losses brought forward and sums to be placed to reserve pursuant to the requirements of the law or the statutes.
For the purposes of this paragraph, the term ‘investment company with fixed capital’ means only companies:
the exclusive object of which is to invest their funds in various stocks and shares, land or other assets with the sole aim of spreading investment risks and giving their shareholders the benefit of the results of the management of their assets; and
which offer their own shares for subscription by the public.
In so far as the laws of Member States make use of the option they shall:
require such companies to include the term ‘investment company’ in all documents indicated in Article 26;
not permit any such company whose net assets fall below the amount specified in paragraph 1 to make a distribution to shareholders when on the closing date of the last financial year the company's total assets as set out in the annual accounts are, or following such distribution would become, less than one-and-a-half times the amount of the company's total liabilities to creditors as set out in the annual accounts; and
require any such company which makes a distribution when its net assets fall below the amount specified in paragraph 1 to include in its annual accounts a note to that effect.
Article 57
Recovery of distributions unlawfully made
Any distribution made contrary to Article 56 shall be returned by shareholders who have received it if the company proves that those shareholders knew of the irregularity of the distributions made to them, or could not in view of the circumstances have been unaware of it.
Article 58
Serious loss of the subscribed capital
Article 59
No subscription of own shares
However, the laws of a Member State may provide that any such person may be released from his or her obligation if they prove that no fault is attributable to them personally.
Article 60
Acquisition of own shares
Without prejudice to the principle of equal treatment of all shareholders who are in the same position, and to Regulation (EU) No 596/2014, Member States may permit a company to acquire its own shares, either itself or through a person acting in his or her own name but on the company's behalf. To the extent that the acquisitions are permitted, Member States shall make such acquisitions subject to the following conditions:
authorisation is given by the general meeting, which shall determine the terms and conditions of such acquisitions, and, in particular, the maximum number of shares to be acquired, the duration of the period for which the authorisation is given, the maximum length of which shall be determined by national law without, however, exceeding five years, and, in the case of acquisition for value, the maximum and minimum consideration. Members of the administrative or management body shall satisfy themselves that, at the time when each authorised acquisition is effected, the conditions referred to in points (b) and (c) are respected;
the acquisitions, including shares previously acquired by the company and held by it, and shares acquired by a person acting in his or her own name but on the company's behalf, cannot have the effect of reducing the net assets below the amount referrred to in Article 56(1) and (2); and
only fully paid-up shares can be included in the transaction.
Furthermore, Member States may subject acquisitions within the meaning of the first subparagraph to any of the following conditions:
the nominal value or, in the absence thereof, the accountable par of the acquired shares, including shares previously acquired by the company and held by it, and shares acquired by a person acting in his own name but on the company's behalf, does not exceed a limit to be determined by Member States; this limit may not be lower than 10 % of the subscribed capital;
the power of the company to acquire its own shares within the meaning of the first subparagraph, the maximum number of shares to be acquired, the duration of the period for which the power is given and the maximum or minimum consideration are laid down in the statutes or in the instrument of incorporation of the company;
the company complies with appropriate reporting and notification requirements;
certain companies, as determined by Member States, can be required to cancel the acquired shares provided that an amount equal to the nominal value of the shares cancelled is included in a reserve which cannot be distributed to the shareholders, except in the event of a reduction in the subscribed capital; this reserve may be used only for the purposes of increasing the subscribed capital by the capitalisation of reserves;
the acquisition does not prejudice the satisfaction of creditors' claims.
Article 61
Derogation from rules on acquisition of own shares
Member States may decide not to apply Article 60 to:
shares acquired in carrying out a decision to reduce capital, or in the circumstances referred to in Article 82;
shares acquired as a result of a universal transfer of assets;
fully paid-up shares acquired free of charge or by banks and other financial institutions as purchasing commission;
shares acquired by virtue of a legal obligation or resulting from a court ruling for the protection of minority shareholders in the event, particularly, of a merger, a change in the company's object or form, transfer abroad of the registered office, or the introduction of restrictions on the transfer of shares;
shares acquired from a shareholder in the event of failure to pay them up;
shares acquired in order to indemnify minority shareholders in associated companies;
fully paid-up shares acquired under a sale enforced by a court order for the payment of a debt owed to the company by the owner of the shares; and
fully paid-up shares issued by an investment company with fixed capital, as defined in the second subparagraph of Article 56(7), and acquired at the investor's request by that company or by an associate company. Point (a) of the third subparagraph of Article 56(7) shall apply. Such acquisitions may not have the effect of reducing the net assets below the amount of the subscribed capital plus any reserves the distribution of which is forbidden by law.
Article 62
Consequences of illegal acquisition of own shares
Shares acquired in contravention of Articles 60 and 61 shall be disposed of within one year of their acquisition. If they are not disposed of within that period, Article 61(3) shall apply.
Article 63
Holding of own shares and annual report in case of acquisition of own shares
Where the laws of a Member State permit a company to acquire its own shares, either itself or through a person acting in his or her own name but on the company's behalf, they shall make the holding of these shares at all times subject to at least the following conditions:
among the rights attaching to the shares, the right to vote attaching to the company's own shares must in any event be suspended;
if the shares are included among the assets shown in the balance sheet, a reserve of the same amount, unavailable for distribution, shall be included among the liabilities.
Where the laws of a Member State permit a company to acquire its own shares, either itself or through a person acting in his or her own name but on the company's behalf, they shall require the annual report to state at least:
the reasons for acquisitions made during the financial year;
the number and nominal value or, in the absence of a nominal value, the accountable par of the shares acquired and disposed of during the financial year and the proportion of the subscribed capital which they represent;
in the case of acquisition or disposal for a value, the consideration for the shares;
the number and nominal value or, in the absence of a nominal value, the accountable par of all the shares acquired and held by the company and the proportion of the subscribed capital which they represent.
Article 64
Financial assistance by a company for acquisition of its shares by a third party
The credit standing of the third party or, in the case of multiparty transactions, of each counterparty thereto shall have been duly investigated.
The administrative or management body shall present a written report to the general meeting, indicating:
the reasons for the transaction;
the interest of the company in entering into such a transaction;
the conditions on which the transaction is entered into;
the risks involved in the transaction for the liquidity and solvency of the company; and
the price at which the third party is to acquire the shares.
This report shall be submitted to the register for publication in accordance with Article 16.
The company shall include, among the liabilities in the balance sheet, a reserve, unavailable for distribution, of the amount of the aggregate financial assistance.
However, these transactions may not have the effect of reducing the net assets below the amount specified in Article 56(1).
Article 65
Additional safeguards in case of related party transactions
In cases where individual members of the administrative or management body of the company being party to a transaction referred to in Article 64(1) of this Directive, or of the administrative or management body of a parent undertaking within the meaning of Article 22 of Directive 2013/34/EU or such parent undertaking itself, or individuals acting in their own name, but on behalf of the members of such bodies or on behalf of such undertaking, are counterparties to such a transaction, Member States shall ensure through adequate safeguards that such transaction does not conflict with the company's best interests.
Article 66
Acceptance of the company's own shares as security
Article 67
Subscription, acquisition or holding of shares by a company in which the public limited liability company holds a majority of the voting rights or on which it can exercise a dominant influence
The first subparagraph shall also apply where the other company is governed by the law of a third country and has a legal form comparable to those listed in Annex II.
However, where the public limited liability company holds a majority of the voting rights indirectly or can exercise a dominant influence indirectly, Member States need not apply the first and the second subparagraphs if they provide for the suspension of the voting rights attached to the shares in the public limited liability company held by the other company.
In the absence of coordination of national legislation on groups of companies, Member States may:
define the cases in which a public limited liability company shall be regarded as being able to exercise a dominant influence on another company; if a Member State exercises this option, its national law shall in any event provide that a dominant influence can be exercised if a public limited liability company:
has the right to appoint or dismiss a majority of the members of the administrative organ, of the management organ or of the supervisory organ, and is at the same time a shareholder or member of the other company; or
is a shareholder or member of the other company and has sole control of a majority of the voting rights of its shareholders or members under an agreement concluded with other shareholders or members of that company.
Member States shall not be obliged to make provision for any cases other than those referred to in points (i) and (ii) of the first subparagraph;
define the cases in which a public limited liability company shall be regarded as indirectly holding voting rights or as able indirectly to exercise a dominant influence;
specify the circumstances in which a public limited liability company shall be regarded as holding voting rights.
However, the voting rights attached to those shares shall be suspended and the shares shall be taken into account when it is determined whether the condition laid down in Article 60(1)(b) is fulfilled.
Member States need not apply Article 61(2) or (3) or Article 62 where shares in a public limited liability company are acquired by another company on condition that they provide for:
the suspension of the voting rights attached to the shares in the public limited liability company held by the other company; and
the members of the administrative or the management organ of the public limited liability company to be obliged to buy back from the other company the shares referred to in Article 61(2) and (3) and Article 62 at the price at which the other company acquired them; this sanction shall be inapplicable only where the members of the administrative or the management organ of the public limited liability company prove that that company played no part whatsoever in the subscription for or acquisition of the shares in question.
Article 68
Decision by the general meeting on the increase of capital
Article 69
Paying up shares issued for consideration
Shares issued for consideration, in the course of an increase in subscribed capital, shall be paid up to at least 25 % of their nominal value or, in the absence of a nominal value, of their accountable par. Where provision is made for an issue premium, it shall be paid in full.
Article 70
Shares issued for consideration other than in cash
Article 49(2) and (3) and Articles 50 and 51 shall apply.
In the case of a merger or a division, however, Member States shall apply the first subparagraph only where a report by one or more independent experts on the draft terms of merger or division is drawn up.
Where Member States decide to apply paragraph 2 in the case of a merger or a division, they may provide that the report under this Article and the report by one or more independent experts on the draft terms of merger or division may be drawn up by the same expert or experts.
Article 71
Increase in capital not fully subscribed
Where an increase in capital is not fully subscribed, the capital will be increased by the amount of the subscriptions received only if the conditions of the issue so provide.
Article 72
Increase in capital by consideration in cash
The laws of a Member State:
need not apply paragraph 1 to shares which carry a limited right to participate in distributions within the meaning of Article 56 and/or in the company's assets in the event of liquidation; or
may permit, where the subscribed capital of a company having several classes of shares carrying different rights with regard to voting, or participation in distributions within the meaning of Article 56 or in assets in the event of liquidation, is increased by issuing new shares in only one of these classes, the right of pre-emption of shareholders of the other classes to be exercised only after the exercise of this right by the shareholders of the class in which the new shares are being issued.
Article 73
Decision by the general meeting on reduction in the subscribed capital
Any reduction in the subscribed capital, except under a court order, shall be subject at least to a decision of the general meeting acting in accordance with the rules for a quorum and a majority laid down in Article 83 without prejudice to Articles 79 and 80. Such decision shall be published in the manner laid down by the laws of each Member State in accordance with Article 16.
The notice convening the meeting shall specify at least the purpose of the reduction and the way in which it is to be carried out.
Article 74
Reduction in the subscribed capital in case of several classes of shares
Where there are several classes of shares, the decision by the general meeting concerning a reduction in the subscribed capital shall be subject to a separate vote, at least for each class of shareholders whose rights are affected by the transaction.
Article 75
Safeguards for creditors in case of reduction in the subscribed capital
Member States shall lay down the conditions for the exercise of the right provided for in the first subparagraph. In any event, Member States shall ensure that the creditors are authorised to apply to the appropriate administrative or judicial authority for adequate safeguards provided that they can credibly demonstrate that due to the reduction in the subscribed capital the satisfaction of their claims is at stake, and that no adequate safeguards have been obtained from the company.
Article 76
Derogation from safeguards for creditors in case of reduction in the subscribed capital
Article 77
Reduction in the subscribed capital and the minimum capital
The subscribed capital may not be reduced to an amount less than the minimum capital laid down in accordance with Article 45.
However, Member States may permit such a reduction if they also provide that the decision to reduce the subscribed capital may take effect only when the subscribed capital is increased to an amount at least equal to the prescribed minimum.
Article 78
Redemption of subscribed capital without reduction
Where the laws of a Member State authorise total or partial redemption of the subscribed capital without reduction of the latter, they shall at least require that the following conditions are observed:
where the statutes or instrument of incorporation provide for redemption, the latter shall be decided on by the general meeting voting at least under the usual conditions of quorum and majority; where the statutes or instrument of incorporation do not provide for redemption, the latter shall be decided upon by the general meeting acting at least under the conditions of quorum and majority laid down in Article 83; the decision shall be published in the manner prescribed by the laws of Member States, in accordance with Article 16;
only sums which are available for distribution within the meaning of Article 56(1) to (4) may be used for redemption purposes;
shareholders whose shares are redeemed shall retain their rights in the company, with the exception of their rights to the repayment of their investment and participation in the distribution of an initial dividend on unredeemed shares.
Article 79
Reduction in the subscribed capital by compulsory withdrawal of shares
Where the laws of a Member State allow companies to reduce their subscribed capital by compulsory withdrawal of shares, they shall require that at least the following conditions are observed:
compulsory withdrawal must be prescribed or authorised by the statutes or instrument of incorporation before the shares which are to be withdrawn are subscribed for;
where the compulsory withdrawal is authorised merely by the statutes or instrument of incorporation, it shall be decided upon by the general meeting unless it has been unanimously approved by the shareholders concerned;
the company body deciding on the compulsory withdrawal shall fix the terms and manner thereof, where they have not already been fixed by the statutes or instrument of incorporation;
Article 75 shall apply except in the case of fully paid-up shares which are made available to the company free of charge or are withdrawn using sums available for distribution in accordance with Article 56(1) to (4); in these cases, an amount equal to the nominal value or, in the absence thereof, to the accountable par of all the withdrawn shares must be included in a reserve; except in the event of a reduction in the subscribed capital, this reserve may not be distributed to shareholders; it can be used only for offsetting losses incurred or for increasing the subscribed capital by the capitalisation of such reserve, in so far as Member States permit such an operation; and
the decision on compulsory withdrawal shall be published in the manner laid down by the laws of each Member State in accordance with Article 16.
Article 80
Reduction in the subscribed capital by the withdrawal of shares acquired by the company itself or on its behalf
Article 81
Redemption of the subscribed capital or its reduction by withdrawal of shares in case of several classes of shares
In the cases covered by Article 78, Article 79(1)(b) and Article 80(1), when there are several classes of shares, the decision by the general meeting concerning redemption of the subscribed capital or its reduction by withdrawal of shares shall be subject to a separate vote, at least for each class of shareholders whose rights are affected by the transaction.
Article 82
Conditions for redemption of shares
Where the laws of a Member State authorise companies to issue redeemable shares, they shall require that the following conditions, at least, are complied with for the redemption of such shares:
redemption must be authorised by the company's statutes or instrument of incorporation before the redeemable shares are subscribed for;
the shares must be fully paid up;
the terms and the manner of redemption must be laid down in the company's statutes or instrument of incorporation;
redemption can be only effected by using sums available for distribution in accordance with Article 56(1) to (4) or the proceeds of a new issue made with a view to effecting such redemption;
an amount equal to the nominal value or, in the absence thereof, to the accountable par of all the redeemed shares must be included in a reserve which cannot be distributed to the shareholders, except in the event of a reduction in the subscribed capital; it may be used only for the purpose of increasing the subscribed capital by the capitalisation of reserves;
point (e) shall not apply to redemption using the proceeds of a new issue made with a view to effecting such redemption;
where provision is made for the payment of a premium to shareholders in consequence of a redemption, the premium may be paid only from sums available for distribution in accordance with Article 56(1) to (4), or from a reserve other than that referred to in point (e) of this Article which may not be distributed to shareholders except in the event of a reduction in the subscribed capital; this reserve may be used only for the purposes of increasing the subscribed capital by the capitalisation of reserves or for covering the costs referred to in point (j) of Article 4 or the cost of issuing shares or debentures or for the payment of a premium to holders of redeemable shares or debentures;
notification of redemption shall be published in the manner laid down by the laws of each Member State in accordance with Article 16.
Article 83
Voting requirements for the decisions of the general meeting
The laws of the Member States shall provide that the decisions referred to in Article 72(4) and (5) and Articles 73, 74, 78 and 81 are to be taken at least by a majority of not less than two thirds of the votes attaching to the securities or the subscribed capital represented.
The laws of the Member States may, however, lay down that a simple majority of the votes specified in the first paragraph is sufficient when at least half the subscribed capital is represented.
Article 84
Derogation from certain requirements
Member States shall ensure that Article 49, Article 58(1), Article 68(1), (2) and (3), the first subparagraph of Article 70(2), Articles 72 to 75, 79, 80 and 81 of this Directive do not apply in the case of application of the resolution tools, powers and mechanisms provided for in Title IV of Directive 2014/59/EU of the European Parliament and of the Council ( 9 ) or in Title V of Regulation (EU) 2021/23 of the European Parliament and of the Council ( 10 ).
The first subparagraph shall be without prejudice to the principle of equal treatment of shareholders.
Article 85
Equal treatment of all shareholders who are in the same position
For the purposes of the implementation of this Chapter, the laws of the Member States shall ensure equal treatment to all shareholders who are in the same position.
Article 86
Transitional provisions
Member States may decide not to apply points (g), (i), (j) and (k) of Article 4 to companies already in existence at the date of entry into force of the laws, regulations and administrative provisions adopted in order to comply with Council Directive 77/91/EEC ( 12 ).
TITLE II
CONVERSIONS, MERGERS AND DIVISIONS OF LIMITED LIABILITY COMPANIES
CHAPTER -I
Cross-border conversions
Article 86a
Scope
Member States shall ensure that this Chapter does not apply to companies in either of the following circumstances:
the company is in liquidation and has begun to distribute assets to its members;
the company is subject to resolution tools, powers and mechanisms provided for in Title IV of Directive 2014/59/EU or in Title V of Regulation (EU) 2021/23.
Member States may decide not to apply this Chapter to companies which are:
the subject of insolvency proceedings or subject to preventive restructuring frameworks;
the subject of liquidation proceedings other than those referred to in point (a) of paragraph 3, or
the subject of crisis prevention measures as defined in point (101) of Article 2(1) of Directive 2014/59/EU or in point (48) of Article 2 of Regulation (EU) 2021/23.
Article 86b
Definitions
For the purposes of this Chapter:
‘company’ means a limited liability company of a type listed in Annex II that carries out a cross-border conversion;
‘cross-border conversion’ means an operation whereby a company, without being dissolved or wound up or going into liquidation, converts the legal form under which it is registered in a departure Member State into a legal form of the destination Member State, as listed in Annex II, and transfers at least its registered office to the destination Member State, while retaining its legal personality;
‘departure Member State’ means a Member State in which a company is registered prior to a cross-border conversion;
‘destination Member State’ means a Member State in which a converted company is registered as a result of a cross-border conversion;
‘converted company’ means a company formed in a destination Member State as a result of a cross-border conversion.
Article 86c
Procedures and formalities
In compliance with Union law, the law of the departure Member State shall govern those parts of the procedures and formalities to be complied with in connection with the cross‐border conversion in order to obtain the pre-conversion certificate, and the law of the destination Member State shall govern those parts of the procedures and formalities to be complied with following receipt of the pre-conversion certificate.
Article 86d
Draft terms of cross-border conversions
The administrative or management body of the company shall draw up the draft terms of a cross-border conversion. The draft terms of a cross-border conversion shall include at least the following particulars:
the legal form and name of the company in the departure Member State and the location of its registered office in that Member State;
the legal form and name proposed for the converted company in the destination Member State and the proposed location of its registered office in that Member State;
the instrument of constitution of the company in the destination Member State, where applicable, and the statutes if they are contained in a separate instrument;
the proposed indicative timetable for the cross-border conversion;
the rights conferred by the converted company on members enjoying special rights or on holders of securities other than shares representing the company capital, or the measures proposed concerning them;
any safeguards offered to creditors, such as guarantees or pledges;
any special advantages granted to members of the administrative, management, supervisory or controlling bodies of the company;
whether any incentives or subsidies were received by the company in the departure Member State in the preceding five years;
details of the offer of cash compensation for members in accordance with Article 86i;
the likely repercussions of the cross-border conversion on employment;
where appropriate, information on the procedures by which arrangements for the involvement of employees in the definition of their rights to participation in the converted company are determined pursuant to Article 86l.
Article 86e
Report of the administrative or management body for members and employees
It shall, in particular, explain the implications of the cross-border conversion for the future business of the company.
The company may decide either to draw up one report containing those two sections or to draw up separate reports for members and employees, respectively, containing the relevant section.
The section of the report for members shall, in particular, explain the following:
the cash compensation and the method used to determine the cash compensation;
the implications of the cross-border conversion for members;
the rights and remedies available to members in accordance with Article 86i.
The section of the report for employees shall, in particular, explain the following:
the implications of the cross-border conversion for employment relationships, as well as, where applicable, any measures for safeguarding those relationships;
any material changes to the applicable conditions of employment or to the location of the company’s places of business;
how the factors set out in points (a) and (b) affect any subsidiaries of the company.
Article 86f
Independent expert report
The report referred to in paragraph 1 shall in any case include the expert’s opinion as to whether the cash compensation is adequate. When assessing the cash compensation, the expert shall consider any market price of the shares in the company prior to the announcement of the conversion proposal or the value of the company excluding the effect of the proposed conversion, as determined in accordance with generally accepted valuation methods. The report shall at least:
indicate the method or methods used to determine the cash compensation proposed;
state whether the method or methods used are adequate for the assessment of the cash compensation, indicate the value arrived at using such methods and give an opinion on the relative importance attributed to those methods in arriving at the value decided on; and
describe any special valuation difficulties which have arisen.
The expert shall be entitled to obtain from the company all information necessary for the discharge of the duties of the expert.
Member States may exclude single-member companies from the application of this Article.
Article 86g
Disclosure
Member States shall ensure that the following documents are disclosed by the company and made publicly available in the register of the departure Member State, at least one month before the date of the general meeting referred to in Article 86h:
the draft terms of the cross-border conversion; and
a notice informing the members, creditors and representatives of the employees of the company, or, where there are no such representatives, the employees themselves, that they may submit to the company, at the latest five working days before the date of the general meeting, comments concerning the draft terms of the cross-border conversion.
Member States may require that the independent expert report be disclosed and made publicly available in the register.
Member States shall ensure that the company is able to exclude confidential information from the disclosure of the independent expert report.
The documents disclosed in accordance with this paragraph shall also be accessible through the system of interconnection of registers.
However, Member States shall not subject that exemption to any requirements or constraints other than those which are necessary to ensure the security of the website and the authenticity of the documents, and which are proportionate to achieving those objectives.
Where the company makes the draft terms of the cross-border conversion available in accordance with paragraph 2 of this Article, it shall submit to the register of the departure Member State, at least one month before the date of the general meeting referred to in Article 86h, the following information:
the legal form and name of the company and the location of its registered office in the departure Member State and the legal form and name proposed for the converted company in the destination Member State and the proposed location of its registered office in that Member State;
the register in which the documents referred to in Article 14 are filed in respect of the company and its registration number in that register;
an indication of the arrangements made for the exercise of the rights of creditors, employees and members; and
details of the website from which the draft terms of the cross-border conversion, the notice referred to in paragraph 1, the independent expert report and complete information on the arrangements referred to in point (c) of this paragraph may be obtained online and free of charge.
The register of the departure Member State shall make publicly available the information referred to in points (a) to (d) of the first subparagraph.
Member States shall further ensure that any fees charged to the company by the registers for the disclosure referred to in paragraphs 1 and 3 and, where applicable, for the publication referred to in paragraph 5 do not exceed the recovery of the cost of providing such services.
Article 86h
Approval by the general meeting
Member States shall ensure that the approval of the cross-border conversion by the general meeting cannot be challenged solely on the following grounds:
the cash compensation referred to in point (i) of Article 86d has been inadequately set; or
the information given with regard to the cash compensation referred to in point (a) did not comply with the legal requirements.
Article 86i
Protection of members
Member States may also provide for other members of the company to have the right referred to in the first subparagraph.
Member States may require that express opposition to the draft terms of the cross‐border conversion, the intention of members to exercise their right to dispose of their shares, or both, be appropriately documented, at the latest at the general meeting referred to in Article 86h. Member States may allow the recording of opposition to the draft terms of the cross-border conversion to be considered proper documentation of a negative vote.
Member States may provide that the final decision to provide additional cash compensation is valid for all members who have declared their decision to exercise the right to dispose of their shares in accordance with paragraph 2.
Article 86j
Protection of creditors
Member States shall ensure that creditors who are dissatisfied with the safeguards offered in the draft terms of the cross-border conversion, as provided for in point (f) of Article 86d, may apply, within three months of the disclosure of the draft terms of the cross-border conversion referred to in Article 86g, to the appropriate administrative or judicial authority for adequate safeguards, provided that such creditors can credibly demonstrate that, due to the cross-border conversion, the satisfaction of their claims is at stake and that they have not obtained adequate safeguards from the company.
Member States shall ensure that the safeguards are conditional on the cross-border conversion taking effect in accordance with Article 86q.
Article 86k
Employee information and consultation
Article 86l
Employee participation
However, the rules in force concerning employee participation, if any, in the destination Member State shall not apply where the company has, in the six months prior to the disclosure of the draft terms of the cross-border conversion, an average number of employees equivalent to four fifths of the applicable threshold, as laid down in the law of the departure Member State, for triggering the participation of employees within the meaning of point (k) of Article 2 of Directive 2001/86/EC, or where the law of the destination Member State does not:
provide for at least the same level of employee participation as operated in the company prior to the cross-border conversion, measured by reference to the proportion of employee representatives among the members of the administrative or supervisory body or their committees or of the management group which covers the profit units of the company, subject to employee representation; or
provide for employees of establishments of the converted company that are situated in other Member States the same entitlement to exercise participation rights as is enjoyed by those employees employed in the destination Member State.
In the cases referred to in paragraph 2 of this Article, the participation of employees in the converted company and their involvement in the definition of such rights shall be regulated by the Member States, mutatis mutandis and subject to paragraphs 4 to 7 of this Article, in accordance with the principles and procedures laid down in Article 12(2) and (4) of Regulation (EC) No 2157/2001 and the following provisions of Directive 2001/86/EC:
Article 3(1), points (a)(i) and (b) of Article 3(2), Article 3(3), the first two sentences of Article 3(4), and Article 3(5) and (7);
Article 4(1), points (a), (g) and (h) of Article 4(2), and Article 4(3) and (4);
Article 5;
Article 6;
Article 7(1), with the exception of the second indent of point (b);
Articles 8, 10, 11 and 12; and
point (a) of Part 3 of the Annex.
When regulating the principles and procedures referred to in paragraph 3, Member States:
shall confer on the special negotiating body the right to decide, by a majority of two thirds of its members representing at least two thirds of the employees, not to open negotiations or to terminate negotiations already opened and to rely on the rules on participation in force in the destination Member State;
may, in the case where, following prior negotiations, standard rules for participation apply and notwithstanding such rules, decide to limit the proportion of employee representatives in the administrative body of the converted company. However, if, in the company, employee representatives constituted at least one third of the administrative or supervisory body, the limitation may never result in a lower proportion of employee representatives in the administrative body than one third;
shall ensure that the rules on employee participation that applied prior to the cross-border conversion continue to apply until the date of application of any subsequently agreed rules or, in the absence of agreed rules, until the application of standard rules in accordance with point (a) of Part 3 of the Annex to Directive 2001/86/EC.
Article 86m
Pre-conversion certificate
Such completion of procedures and formalities may comprise the satisfaction or securing of pecuniary or non-pecuniary obligations due to public bodies or compliance with specific sectoral requirements, including securing obligations arising from ongoing proceedings.
Member States shall ensure that the application to obtain a pre-conversion certificate by the company is accompanied by the following:
the draft terms of the cross-border conversion;
the report and the appended opinion, if any, referred to in Article 86e, as well as the report referred to in Article 86f, where they are available;
any comments submitted in accordance with Article 86g(1); and
information on the approval by the general meeting referred to in Article 86h.
Member States may require that the application to obtain a pre-conversion certificate by the company is accompanied by additional information, such as, in particular:
the number of employees at the time of the drawing up of the draft terms of the cross-border conversion;
the existence of subsidiaries and their respective geographical location;
information regarding the satisfaction of obligations due to public bodies by the company.
For the purposes of this paragraph, competent authorities may request such information, if not provided by the company, from other relevant authorities.
As part of the scrutiny referred to in paragraph 1, the competent authority shall examine the following:
all documents and information submitted to the competent authority in accordance with paragraphs 2 and 3;
an indication by the company that the procedure referred to in Article 86l(3) and (4) has started, where relevant.
Member States shall ensure that the scrutiny referred to in paragraph 1 is carried out within three months of the date of receipt of the documents and information concerning the approval of the cross-border conversion by the general meeting of the company. That scrutiny shall have one of the following outcomes:
where it is determined that the cross-border conversion complies with all the relevant conditions and that all necessary procedures and formalities have been completed, the competent authority shall issue the pre-conversion certificate;
where it is determined that the cross-border conversion does not comply with all the relevant conditions or that not all necessary procedures and formalities have been completed, the competent authority shall not issue the pre‐conversion certificate and shall inform the company of the reasons for its decision; in that case, the competent authority may give the company the opportunity to fulfil the relevant conditions or to complete the procedures and formalities within an appropriate period of time.
Article 86n
Transmission of the pre-conversion certificate
Member States shall also ensure that the pre-conversion certificate is available through the system of interconnection of registers.
Article 86o
Scrutiny of the legality of the cross-border conversion by the destination Member State
That authority shall in particular ensure that the converted company complies with provisions of national law on the incorporation and registration of companies and, where appropriate, that arrangements for employee participation have been determined in accordance with Article 86l.
Article 86p
Registration
Member States shall ensure that at least the following information is entered in their registers:
in the register of the destination Member State, that the registration of the converted company is the result of a cross-border conversion;
in the register of the destination Member State, the date of registration of the converted company;
in the register of the departure Member State, that the striking off or removal of the company from the register is the result of a cross-border conversion;
in the register of the departure Member State, the date of striking off or removal of the company from the register;
in the registers of the departure Member State and of the destination Member State, respectively, the registration number, name and legal form of the company and the registration number, name and legal form of the converted company.
The registers shall make the information referred to in the first subparagraph publicly available and accessible through the system of interconnection of registers.
Article 86q
Date on which the cross-border conversion takes effect
The law of the destination Member State shall determine the date on which the cross‐border conversion takes effect. That date shall be after the scrutiny referred to in Articles 86m and 86o has been carried out.
Article 86r
Consequences of a cross-border conversion
A cross-border conversion shall, from the date referred to in Article 86q, have the following consequences:
all the assets and liabilities of the company, including all contracts, credits, rights and obligations, shall be those of the converted company;
the members of the company shall continue to be members of the converted company, unless they have disposed of their shares as referred to in Article 86i(1);
the rights and obligations of the company arising from contracts of employment or from employment relationships and existing at the date on which the cross-border conversion takes effect shall be those of the converted company.
Article 86s
Independent experts
Member States shall have rules in place to ensure that:
the expert, or the legal person on whose behalf the expert is operating, is independent from and has no conflict of interest with the company applying for the pre-conversion certificate; and
the expert’s opinion is impartial and objective, and is given with a view to providing assistance to the competent authority in accordance with the independence and impartiality requirements under the law and professional standards to which the expert is subject.
Article 86t
Validity
A cross-border conversion which has taken effect in compliance with the procedures transposing this Directive may not be declared null and void.
The first paragraph does not affect Member States’ powers, inter alia, in relation to criminal law, the prevention and combatting of terrorist financing, social law, taxation and law enforcement, to impose measures and penalties, under national law, after the date on which the cross-border conversion took effect.
CHAPTER I
Mergers of public limited liability companies
Article 87
General provisions
Article 88
Rules governing mergers by acquisition and mergers by formation of a new company
Member States shall, as regards companies governed by their national laws, make provision for rules governing mergers by the acquisition of one or more companies by another company and merger by the formation of a new company.
Article 89
Definition of a ‘merger by acquisition’
Article 90
Definition of a ‘merger by the formation of a new company’
Article 91
Draft terms of merger
Draft terms of merger shall specify at least:
the type, name and registered office of each of the merging companies;
the share exchange ratio and the amount of any cash payment;
the terms relating to the allotment of shares in the acquiring company;
the date from which the holding of such shares entitles the holders to participate in profits and any special conditions affecting that entitlement;
the date from which the transactions of the company being acquired shall be treated for accounting purposes as being those of the acquiring company;
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;
any special advantage granted to the experts referred to in Article 96(1) and members of the merging companies' administrative, management, supervisory or controlling bodies.
Article 92
Publication of the draft terms of merger
Draft terms of merger shall be published in the manner prescribed by the laws of the Member States in accordance with Article 16, for each of the merging companies, at least one month before the date fixed for the general meeting which is to decide thereon.
Any of the merging companies shall be exempt from the publication requirement laid down in Article 16 if, for a continuous period beginning at least one month before the date fixed for the general meeting which is to decide on the draft terms of merger and ending not earlier than the conclusion of that meeting, it makes the draft terms of such merger available on its website free of charge for the public. Member States shall not subject that exemption to any requirements or constraints other than those which are necessary in order to ensure the security of the website and the authenticity of the documents, and may impose such requirements or constraints only to the extent that they are proportionate in order to achieve those objectives.
By way of derogation from the second paragraph of this Article, Member States may require that publication be effected via the central electronic platform referred to in Article 16(5). Member States may alternatively require that such publication be made on any other website designated by them for that purpose. Where Member States avail themselves of one of those possibilities, they shall ensure that companies are not charged a specific fee for such publication.
Where a website other than the central electronic platform is used, a reference giving access to that website shall be published on the central electronic platform at least one month before the date fixed for the general meeting. That reference shall include the date of publication of the draft terms of merger on the website and shall be accessible to the public free of charge. Companies shall not be charged a specific fee for such publication.
The prohibition precluding the charging of companies of a specific fee for publication, laid down in the third and fourth paragraphs, shall not affect the ability of Member States to pass on to companies the costs in respect of the central electronic platform.
Member States may require companies to maintain the information for a specific period after the general meeting on their website or, where applicable, on the central electronic platform or the other website designated by the Member State concerned. Member States may determine the consequences of temporary disruption of access to the website or to the central electronic platform, caused by technical or other factors.
Article 93
Approval by the general meeting of each of the merging companies
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.
Article 94
Derogation from the requirement of approval by the general meeting of the acquiring company
The laws of a Member State need not require approval of the merger by the general meeting of the acquiring company where the following conditions are fulfilled:
the publication provided for in Article 92 is 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 is to decide on the draft terms of merger;
at least one month before the date specified in point (a), all shareholders of the acquiring company are entitled to inspect the documents specified in Article 97(1) at the registered office of the acquiring company;
one or more shareholders of the acquiring company holding a minimum percentage of the subscribed capital is 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 %. Member States may, however, provide for the exclusion of non-voting shares from this calculation.
For the purposes of point (b) of the first paragraph, Article 97(2), (3) and (4) shall apply.
Article 95
Detailed written report and information on a merger
That report shall also describe any special valuation difficulties which have arisen.
Article 96
Examination of the draft terms of merger by experts
In the report referred to in paragraph 1, the experts shall in any case state whether in their opinion the share exchange ratio is fair and reasonable. Their statement shall at least:
indicate the method or methods used to arrive at the share exchange ratio proposed;
state whether such method or methods are adequate in the case in question, indicate the values arrived at using each such methods 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.
Article 97
Availability of documents for inspection by shareholders
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:
the draft terms of merger;
the annual accounts and annual reports of the merging companies for the preceding three financial years;
where applicable, an accounting statement drawn up on a date which shall 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;
where applicable, the reports of the administrative or management bodies of the merging companies provided for in Article 95;
where applicable, the report referred to in Article 96(1).
For the purposes of point (c) of the first subparagraph, an accounting statement shall not be required if the company publishes a half-yearly financial report in accordance with Article 5 of Directive 2004/109/EC and makes it available to shareholders in accordance with this paragraph. Furthermore, Member States may provide that an accounting statement shall not be required if all the shareholders and the holders of other securities conferring the right to vote of each of the companies involved in the merger have so agreed.
However, the laws of a Member State may provide that:
it is not necessary to take a fresh physical inventory;
the valuations shown in the last balance sheet are to be altered only to reflect entries in the books of account; the following shall nevertheless be taken into account:
Where a shareholder has consented to the use by the company of electronic means for conveying information, such copies may be provided by electronic mail.
Paragraph 3 shall not apply if the website gives shareholders the possibility, throughout the period referred to in the first subparagraph of this paragraph, of downloading and printing the documents referred to in paragraph 1. However, in that case Member States may provide that the company is to make those documents available at its registered office for consultation by the shareholders.
Member States may require companies to maintain the information on their website for a specific period after the general meeting. Member States may determine the consequences of temporary disruption of access to the website caused by technical or other factors.
Article 98
Protection of employees' rights
Protection of the rights of the employees of each of the merging companies shall be regulated in accordance with Directive 2001/23/EC.
Article 99
Protection of the interests of creditors of the merging companies
Member States shall lay down the conditions for the protection provided for in paragraph 1 and in the first subparagraph of this paragraph. In any event, Member States shall ensure that the creditors are authorised to apply to the appropriate administrative or judicial authority for adequate safeguards provided that they can credibly demonstrate that due to the merger the satisfaction of their claims is at stake and that no adequate safeguards have been obtained from the company.
Article 100
Protection of the interests of debenture holders of the merging companies
Without prejudice to the rules governing the collective exercise of their rights, Article 99 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 101
Protection of holders of securities, other than shares, to which special rights are attached
Holders of securities, other than shares, to which special rights are attached shall 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 102
Drawing up and certification of documents in due legal form
Article 103
Date on which a merger takes effect
The laws of the Member States shall determine the date on which a merger takes effect.
Article 104
Publication formalities
Article 105
Consequences of a merger
A merger shall have the following consequences ipso jure and simultaneously:
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;
the shareholders of the company being acquired become shareholders of the acquiring company; and
the company being acquired ceases to exist.
No shares in the acquiring company shall be exchanged for shares in the company being acquired held either:
by the acquiring company itself or through a person acting in his own name but on its behalf; or
by the company being acquired itself or through a person acting in his own name but on its behalf.
Article 106
Civil liability of members of the administrative or management bodies of the company being acquired
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 107
Civil liability of the experts responsible for drawing up the expert report on behalf of the company being acquired
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 96(1), in respect of misconduct on the part of those experts in the performance of their duties.
Article 108
Conditions for nullity of a merger
The laws of the Member States may lay down nullity rules for mergers in accordance with the following conditions only:
nullity is to be ordered in a court judgment;
mergers which have taken effect pursuant to Article 103 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;
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 where the situation has been rectified;
where it is possible to remedy a defect liable to render a merger void, the competent court is to grant the companies involved a period of time within which to rectify the situation;
a judgment declaring a merger void is to be published in the manner prescribed by the laws of each Member State in accordance with Article 16;
where the laws of a Member State permit a third party to challenge such a judgment, that party may only do so within six months of publication of the judgment in the manner prescribed by Section 1 of Chapter III of Title I;
a judgment declaring a merger void does not of itself affect the validity of obligations owed by or in relation to the acquiring company which arose before the judgment was published and after the date on which the merger takes effect; and
companies which have been parties to a merger are jointly and severally liable in respect of the obligations of the acquiring company referred to in point (g).
Article 109
Merger by formation of a new company
Article 91(2)(a) shall also apply to the new company.
Article 110
Transfer of all assets and liabilities by one or more companies to another company which is the holder of all their shares
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 Section 2 of this Chapter. However, Member States shall not impose the requirements set out in points (b), (c) and (d) of Article 91(2), Articles 95 and 96, points (d) and (e) of Article 97(1), point (b) of Article 105(1) and Articles 106 and 107.
Article 111
Exemption from the requirement of approval by the general meeting
Member States shall not apply Article 93 to the operations referred to in Article 110 if the following conditions are fulfilled:
the publication provided for in Article 92 is effected, as regards each company involved in the operation, at least one month before the operation takes effect;
at least one month before the operation takes effect, all shareholders of the acquiring company are entitled to inspect the documents referred to in points (a), (b) and (c) of Article 97(1) at the company's registered office;
point (c) of the first paragraph of Article 94 applies.
For the purposes of point (b) of the first paragraph of this Article, Article 97(2), (3) and (4) shall apply.
Article 112
Shares held by or on behalf of the acquiring company
The Member States may apply Articles 110 and 111 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 110 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 113
Merger by acquisition by a company which holds 90 % or more of the shares of a company being acquired
Where a merger by acquisition is carried out by a company which holds 90 % or more, but not all, of the shares and other securities conferring the right to vote at general meetings of the company or companies being acquired, Member States shall not require approval of the merger by the general meeting of the acquiring company if the following conditions are fulfilled:
the publication provided for in Article 92 is 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;
at least one month before the date specified in point (a), all shareholders of the acquiring company are entitled to inspect the documents specified in points (a) and (b) and, where applicable, points (c), (d) and (e) of Article 97(1) at the company's registered office;
point (c) of the first paragraph of Article 94 applies.
For the purposes of point (b) of the first paragraph of this Article, Article 97(2), (3) and (4) shall apply.
Article 114
Exemption from requirements applicable to mergers by acquisition
Member States shall not impose the requirements set out in Articles 95, 96 and 97 in the case of a merger within the meaning of Article 113 if the following conditions are fulfilled:
the minority shareholders of the company being acquired are entitled to have their shares acquired by the acquiring company;
if they exercise that right, they are entitled to receive consideration corresponding to the value of their shares;
in the event of disagreement regarding such consideration, it is possible for the value of the consideration to be determined by a court or by an administrative authority designated by the Member State for that purpose.
A Member State need not apply the first paragraph if the laws of that Member State entitle the acquiring company, without a previous public takeover offer, to require all the holders of the remaining securities of the company or companies to be acquired, to sell those securities to it prior to the merger at a fair price.
Article 115
Transfer of all assets and liabilities by one or more companies to another company which is the holder of 90 % or more of their shares
The Member States may apply Articles 113 and 114 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 113 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.
Article 116
Mergers with cash payment exceeding 10 %
Where in the case of one of the operations referred to in Article 88 the laws of a Member State permit a cash payment to exceed 10 %, Sections 2 and 3 of this Chapter and Articles 113, 114 and 115 shall apply.
Article 117
Mergers without all of the transferring companies ceasing to exist
Where the laws of a Member State permit one of the operations referred to in Articles 88, 110 and 116, without all of the transferring companies thereby ceasing to exist, Section 2, except for point (c) of Article 105(1), and Section 3 or 4 of this Chapter shall apply as appropriate.
CHAPTER II
Cross-border mergers of limited liability companies
Article 118
General provisions
This Chapter shall apply to mergers of limited liability companies formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union, provided at least two of them are governed by the laws of different Member States (hereinafter referred to as ‘cross-border mergers’).
Article 119
Definitions
For the purposes of this Chapter:
‘limited liability company’, hereinafter referred to as ‘company’, means:
a company of a type listed in Annex II; or
a company with share capital and having legal personality, possessing separate assets which alone serve to cover its debts and that is subject, under the national law governing it, to conditions concerning guarantees such as are provided for by Section 2 of Chapter II of Title I and Section 1 of Chapter III of Title I for the protection of the interests of members and others;
‘merger’ means an operation whereby:
one or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to another existing company, the acquiring company, in exchange for the issue to their members of securities or shares representing the capital of that other company and, if applicable, a cash payment not exceeding 10 % of the nominal value, or, in the absence of a nominal value, of the accounting par value of those securities or shares; or
two or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to a company that they form, the new company, in exchange for the issue to their members of securities or shares representing the capital of that new company and, if applicable, a cash payment not exceeding 10 % of the nominal value, or in the absence of a nominal value, of the accounting par value of those securities or shares; or
a company, on being dissolved without going into liquidation, transfers all its assets and liabilities to the company holding all the securities or shares representing its capital. ►M3 ; or ◄
one or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to another existing company, the acquiring company, without the issue of any new shares by the acquiring company, provided that one person holds directly or indirectly all the shares in the merging companies or the members of the merging companies hold their securities and shares in the same proportion in all merging companies.
Article 120
Further provisions concerning scope
Member States shall ensure that this Chapter does not apply to companies in either of the following circumstances:
the company is in liquidation and has begun to distribute assets to its members;
the company is subject to resolution tools, powers and mechanisms provided for in Title IV of Directive 2014/59/EU or in Title V of Regulation (EU) 2021/23.
Member States may decide not to apply this Chapter to companies which are:
the subject of insolvency proceedings or subject to preventive restructuring frameworks;
the subject of liquidation proceedings other than those referred to in point (a) of paragraph 4, or
the subject of crisis prevention measures as defined in point (101) of Article 2(1) of Directive 2014/59/EU or in point (48) of Article 2 of Regulation (EU) 2021/23.
Article 121
Conditions relating to cross-border mergers
Save as otherwise provided in this Chapter,
▼M3 —————
a company taking part in a cross-border merger shall comply with the provisions and formalities of the national law to which it is subject. The laws of a Member State enabling its national authorities to oppose a given internal merger on grounds of public interest shall also be applicable to a cross-border merger where at least one of the merging companies is subject to the law of that Member State. This provision shall not apply to the extent that Article 21 of Regulation (EC) No 139/2004 is applicable.
Article 122
Common draft terms of cross-border mergers
The management or administrative organ of each of the merging companies shall draw up the common draft terms of a cross-border merger. The common draft terms of a cross-border merger shall include at least the following particulars:
for each of the merging companies, its legal form and name, and the location of its registered office, and the legal form and name proposed for the company resulting from the cross-border merger and the proposed location of its registered office;
the ratio applicable to the exchange of securities or shares representing the company capital and the amount of any cash payment, where appropriate;
the terms for the allotment of securities or shares representing the capital of the company resulting from the cross-border merger;
the likely repercussions of the cross-border merger on employment;
the date from which the holding of such securities or shares representing the company capital will entitle the holders to share in profits and any special conditions affecting that entitlement;
the date from which the transactions of the merging companies will be treated for accounting purposes as being those of the company resulting from the cross-border merger;
the rights conferred by the company resulting from the cross-border merger on members enjoying special rights or on holders of securities other than shares representing the company capital, or the measures proposed concerning them;
any special advantages granted to members of the administrative, management, supervisory or controlling bodies of the merging companies;
the instrument of constitution of the company resulting from the cross-border merger, where applicable, and the statutes if they are contained in a separate instrument;
where appropriate, information on the procedures by which arrangements for the involvement of employees in the definition of their rights to participation in the company resulting from the cross-border merger are determined pursuant to Article 133;
information on the evaluation of the assets and liabilities which are transferred to the company resulting from the cross-border merger;
dates of the merging companies' accounts used to establish the conditions of the cross-border merger;
details of the offer of cash compensation for members in accordance with Article 126a;
any safeguards offered to creditors, such as guarantees or pledges.
Article 123
Disclosure
Member States shall ensure that the following documents are disclosed by the company and made publicly available in the register of the Member State of each of the merging companies, at least one month before the date of the general meeting referred to in Article 126:
the common draft terms of the cross-border merger; and
a notice informing the members, creditors and representatives of the employees of the merging company, or, where there are no such representatives, the employees themselves, that they may submit to their respective company, at the latest five working days before the date of the general meeting, comments concerning the common draft terms of the cross-border merger.
Member States may require that the independent expert report be disclosed and made publicly available in the register.
Member States shall ensure that the company is able to exclude confidential information from the disclosure of the independent expert report.
The documents disclosed in accordance with this paragraph shall also be accessible through the system of interconnection of registers.
However, Member States shall not subject that exemption to any requirements or constraints other than those which are necessary to ensure the security of the website and the authenticity of the documents, and which are proportionate to achieving those objectives.
Where merging companies make the common draft terms of the cross-border merger available in accordance with paragraph 2 of this Article, they shall submit to their respective register, at least one month before the date of the general meeting referred to in Article 126, the following information:
for each of the merging companies its legal form and name and the location of its registered office and the legal form and name proposed for any newly created company and the proposed location of its registered office;
the register in which the documents referred to in Article 14 are filed in respect of each of the merging companies, and the registration number of the respective company in that register;
an indication, for each of the merging companies, of the arrangements made for the exercise of the rights of creditors, employees and members; and
details of the website from which the common draft terms of the cross-border merger, the notice referred to in paragraph 1, the independent expert report and complete information on the arrangements referred to in point (c) of this paragraph may be obtained online and free of charge.
The register of the Member State of each of the merging companies shall make publicly available the information referred to in points (a) to (d) of the first subparagraph.
Member States shall further ensure that any fees charged to the company by the registers for the disclosure referred to in paragraphs 1 and 3 and, where applicable, for the publication referred to in paragraph 6 do not exceed the recovery of the cost of providing such services.
Article 124
Report of the administrative or management body for members and employees
It shall, in particular, explain the implications of the cross-border merger for the future business of the company.
The company may decide either to draw up one report containing those two sections or to draw up separate reports for members and employees, respectively, containing the relevant section.
The section of the report for members shall, in particular, explain the following:
the cash compensation and the method used to determine the cash compensation;
the share exchange ratio and the method or methods used to arrive at the share exchange ratio, where applicable;
the implications of the cross-border merger for members;
the rights and remedies available to members in accordance with Article 126a.
The section of the report for employees shall, in particular, explain the following:
the implications of the cross-border merger for employment relationships, as well as, where applicable, any measures for safeguarding those relationships;
any material changes to the applicable conditions of employment or to the location of the company’s places of business;
how the factors set out in points (a) and (b) affect any subsidiaries of the company.
However, where the approval of the merger is not required by the general meeting of the acquiring company in accordance with Article 126(3), the report shall be made available at least six weeks before the date of the general meeting of the other merging company or companies.
Article 125
Independent expert report
However, where the approval of the merger is not required by the general meeting of the acquiring company in accordance with Article 126(3), the report shall be made available at least one month before the date of the general meeting of the other merging company or companies.
The report referred to in paragraph 1 shall in any case include the expert’s opinion as to whether the cash compensation and the share exchange ratio are adequate. When assessing the cash compensation, the expert shall consider any market price of the shares in the merging companies prior to the announcement of the merger proposal or the value of the companies excluding the effect of the proposed merger, as determined in accordance with generally accepted valuation methods. The report shall at least:
indicate the method or methods used to determine the cash compensation proposed;
indicate the method or methods used to arrive at the share exchange ratio proposed;
state whether the method or methods used are adequate for the assessment of the cash compensation and the share exchange ratio, indicate the value arrived at using such methods and give an opinion on the relative importance attributed to those methods in arriving at the value decided on, and in the event that different methods are used in the merging companies, state also whether the use of different methods was justified; and
describe any special valuation difficulties which have arisen.
The expert shall be entitled to obtain from the merging companies all information necessary for the discharge of the duties of the expert.
Member States may exclude single-member companies from the application of this Article.
Article 126
Approval by the general meeting
Member States shall ensure that the approval of the cross-border merger by the general meeting cannot be challenged solely on the following grounds:
the share exchange ratio referred to in point (b) of Article 122 has been inadequately set;
the cash compensation referred to in point (m) of Article 122 has been inadequately set; or
the information given with regard to the share exchange ratio referred to in point (a) or the cash compensation referred to in point (b) did not comply with the legal requirements.
Article 126a
Protection of members
Member States may also provide for other members of the merging companies to have the right referred to in the first subparagraph.
Member States may require that express opposition to the common draft terms of the cross-border merger, the intention of members to exercise their right to dispose of their shares, or both, be appropriately documented, at the latest at the general meeting referred to in Article 126. Member States may allow the recording of opposition to the common draft terms of the cross-border merger to be considered proper documentation of a negative vote.
Member States may provide that the final decision to provide additional cash compensation is valid for all members of the merging company concerned who have declared their decision to exercise the right to dispose of their shares in accordance with paragraph 2.
Member States may also provide that the share exchange ratio as established in that decision is valid for any members of the merging company concerned who did not have or did not exercise their right to dispose of their shares.
Article 126b
Protection of creditors
Member States shall ensure that creditors who are dissatisfied with the safeguards offered in the common draft terms of the cross-border merger, as provided for in point (n) of Article 122, may apply, within three months of the disclosure of the common draft terms of the cross-border merger referred to in Article 123, to the appropriate administrative or judicial authority for adequate safeguards, provided that such creditors can credibly demonstrate that, due to the cross-border merger, the satisfaction of their claims is at stake and that they have not obtained adequate safeguards from the merging companies.
Member States shall ensure that the safeguards are conditional on the cross-border merger taking effect in accordance with Article 129.
Article 126c
Employee information and consultation
Article 127
Pre-merger certificate
Such completion of procedures and formalities may comprise the satisfaction or securing of pecuniary or non-pecuniary obligations due to public bodies or compliance with specific sectoral requirements, including securing obligations arising from ongoing proceedings.
Member States shall ensure that the application to obtain a pre-merger certificate by the merging company is accompanied by the following:
the common draft terms of the cross-border merger;
the report and the appended opinion, if any, referred to in Article 124, as well as the report referred to in Article 125, where they are available;
any comments submitted in accordance with Article 123(1); and
information on the approval by the general meeting referred to in Article 126.
Member States may require that the application to obtain a pre-merger certificate by the merging company is accompanied by additional information, such as, in particular:
the number of employees at the time of the drawing up of the common draft terms of the cross-border merger;
the existence of subsidiaries and their respective geographical location;
information regarding the satisfaction of obligations due to public bodies by the merging company.
For the purposes of this paragraph, competent authorities may request such information, if not provided by the merging company, from other relevant authorities.
As part of the scrutiny referred to in paragraph 1, the competent authority shall examine the following:
all documents and information submitted to the competent authority in accordance with paragraphs 2 and 3;
an indication by the merging companies that the procedure referred to in Article 133(3) and (4) has started, where relevant.
Member States shall ensure that the scrutiny referred to in paragraph 1 is carried out within three months of the date of receipt of the documents and information concerning the approval of the cross-border merger by the general meeting of the merging company. That scrutiny shall have one of the following outcomes:
where it is determined that the cross-border merger complies with all the relevant conditions and that all necessary procedures and formalities have been completed, the competent authority shall issue the pre-merger certificate;
where it is determined that the cross-border merger does not comply with all the relevant conditions or that not all necessary procedures and formalities have been completed, the competent authority shall not issue the pre-merger certificate and shall inform the company of the reasons for its decision; in that case, the competent authority may give the company the opportunity to fulfil the relevant conditions or to complete the procedures and formalities within an appropriate period of time.
Article 127a
Transmission of the pre-merger certificate
Member States shall also ensure that the pre-merger certificate is available through the system of interconnection of registers.
Article 128
Scrutiny of the legality of the cross-border merger
Article 129
Date on which the cross-border merger takes effect
The law of the Member State to whose jurisdiction the company resulting from the cross-border merger is subject shall determine the date on which the cross-border merger takes effect. That date shall be after the scrutiny referred to in Article 128 has been carried out.
Article 130
Registration
Member States shall ensure that at least the following information is entered in their registers:
in the register of the Member State of the company resulting from the merger, that the registration of the company resulting from the merger is the result of a cross-border merger;
in the register of the Member State of the company resulting from the merger, the date of registration of the company resulting from the merger;
in the register of the Member State of each merging company, that the striking off or removal of the merging company from the register is the result of a cross-border merger;
in the register of the Member State of each merging company, the date of striking off or removal of the merging company from the register;
in the registers of the Member States of each merging company and of the Member State of the company resulting from the merger, respectively, the registration number, name and legal form of each merging company and of the company resulting from the merger.
The registers shall make the information referred to in the first subparagraph publicly available and accessible through the system of interconnection of registers.
Article 131
Consequences of a cross-border merger
A cross-border merger carried out as laid down in subpoints (a), (c) and (d) of point (2) of Article 119 shall, from the date referred to in Article 129, have the following consequences:
all the assets and liabilities of the company being acquired, including all contracts, credits, rights and obligations, shall be transferred to the acquiring company;
the members of the company being acquired shall become members of the acquiring company, unless they have disposed of their shares as referred to in Article 126a(1);
the company being acquired shall cease to exist.
A cross-border merger carried out as laid down in subpoint (b) of point 2 Article 119 shall, from the date referred to in Article 129, have the following consequences:
all the assets and liabilities of the merging companies, including all contracts, credits, rights and obligations, shall be transferred to the new company;
the members of the merging companies shall become members of the new company, unless they have disposed of their shares as referred to in Article 126a(1);
the merging companies shall cease to exist.
No shares in the acquiring company shall be exchanged for shares in the company being acquired held either:
by the acquiring company itself or through a person acting in his or her own name but on its behalf;
by the company being acquired itself or through a person acting in his or her own name but on its behalf.
Article 132
Simplified formalities
Where a cross-border merger by acquisition is carried out either by a company which holds all the shares and other securities conferring the right to vote at general meetings of the company or companies being acquired or by a person who holds directly or indirectly all the shares in the acquiring company and in the company or companies being acquired, and the acquiring company does not allot any shares under the merger:
Article 133
Employee participation
However, the rules in force concerning employee participation, if any, in the Member State where the company resulting from the cross-border merger has its registered office shall not apply where at least one of the merging companies has, in the six months prior to the disclosure of the common draft terms of the cross-border merger, an average number of employees equivalent to four fifths of the applicable threshold, as laid down in the law of the Member State to whose jurisdiction the merging company is subject, for triggering the participation of employees within the meaning of point (k) of Article 2 of Directive 2001/86/EC, or where the national law applicable to the company resulting from the cross-border merger does not:
provide for at least the same level of employee participation as operated in the relevant merging companies, measured by reference to the proportion of employee representatives amongst the members of the administrative or supervisory organ or their committees or of the management group which covers the profit units of the company, subject to employee representation; or
provide for employees of establishments of the company resulting from the cross-border merger that are situated in other Member States the same entitlement to exercise participation rights as is enjoyed by those employees employed in the Member State where the company resulting from the cross-border merger has its registered office.
In the cases referred to in paragraph 2, the participation of employees in the company resulting from the cross-border merger and their involvement in the definition of such rights shall be regulated by the Member States, mutatis mutandis and subject to paragraphs 4 to 7, in accordance with the principles and procedures laid down in Article 12(2), (3) and (4) of Regulation (EC) No 2157/2001 and the following provisions of Directive 2001/86/EC:
Article 3(1), (2) and (3), the first indent of the first subparagraph of Article 3(4), the second subparagraph of Article 3(4) and Article 3(5) and (7);
Article 4(1), Article 4(2)(a), (g) and (h) and Article 4(3);
Article 5;
Article 6;
Article 7(1), point (b) of the first subparagraph of Article 7(2), the second subparagraph of Article 7(2) and Article 7(3). However, for the purposes of this Chapter, the percentages required by point (b) of the first subparagraph of Article 7(2) of Directive 2001/86/EC for the application of the standard rules contained in Part 3 of the Annex to that Directive shall be raised from 25 to 33 1/3 %;
Articles 8, 10 and 12;
Article 13(4);
point (b) of Part 3 of the Annex.
When regulating the principles and procedures referred to in paragraph 3, Member States:
shall confer on the relevant bodies of the merging companies, in the event that at least one of the merging companies is operating under an employee participation system within the meaning of point (k) of Article 2 of Directive 2001/86/EC, the right to choose without any prior negotiation to be directly subject to the standard rules for participation referred to in point (b) of Part 3 of the Annex to that Directive, as laid down by the legislation of the Member State in which the company resulting from the cross-border merger is to have its registered office, and to abide by those rules from the date of registration;
shall confer on the special negotiating body the right to decide, by a majority of two thirds of its members representing at least two thirds of the employees, including the votes of members representing employees in at least two different Member States, not to open negotiations or to terminate negotiations already opened and to rely on the rules on participation in force in the Member State where the registered office of the company resulting from the cross-border merger will be situated;
may, in the case where, following prior negotiations, standard rules for participation apply and notwithstanding such rules, decide to limit the proportion of employee representatives in the administrative organ of the company resulting from the cross-border merger. However, if in one of the merging companies employee representatives constituted at least one third of the administrative or supervisory board, the limitation may never result in a lower proportion of employee representatives in the administrative organ than one third.
Article 133a
Independent experts
Member States shall have rules in place to ensure that:
the expert, or the legal person on whose behalf the expert is operating, is independent from and has no conflict of interest with the company applying for the pre-merger certificate; and
the expert’s opinion is impartial and objective, and is given with a view to providing assistance to the competent authority in accordance with the independence and impartiality requirements under the law and professional standards to which the expert is subject.
Article 134
Validity
A cross-border merger which has taken effect as provided for in Article 129 may not be declared null and void.
The first paragraph does not affect Member States' powers, inter alia, in relation to criminal law, the prevention and combatting of terrorist financing, social law, taxation and law enforcement, to impose measures and penalties, under national law, after the date on which the cross-border merger took effect.
CHAPTER III
Divisions of public limited liability companies
Article 135
General provisions on division operations
Article 136
Definition of a ‘division by acquisition’
Article 137
Draft terms of division
Draft terms of division shall specify at least:
the type, name and registered office of each of the companies involved in the division;
the share exchange ratio and the amount of any cash payment;
the terms relating to the allotment of shares in the recipient companies;
the date from which the holding of such shares entitles the holders to participate in profits and any special conditions affecting that entitlement;
the date from which the transactions of the company being divided shall be treated for accounting purposes as being those of one or other of the recipient companies;
the rights conferred by the recipient companies 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;
any special advantage granted to the experts referred to in Article 142(1) and members of the administrative, management, supervisory or controlling bodies of the companies involved in the division;
the precise description and allocation of the assets and liabilities to be transferred to each of the recipient companies;
the allocation to the shareholders of the company being divided of shares in the recipient companies and the criterion upon which such allocation is based.
Where a liability is not allocated by the draft terms of division and where the interpretation of those terms does not make a decision on its allocation possible, each of the recipient companies shall be jointly and severally liable for it. Member States may provide that such joint and several liability be limited to the net assets allocated to each company.
Article 138
Publication of the draft terms of division
Draft terms of division shall be published in the manner prescribed by the laws of each Member State in accordance with Article 16 for each of the companies involved in a division, at least one month before the date of the general meeting which is to decide thereon.
Any of the companies involved in the division shall be exempt from the publication requirement laid down in Article 16 if, for a continuous period beginning at least one month before the date fixed for the general meeting which is to decide on the draft terms of division and ending not earlier than the conclusion of that meeting, it makes the draft terms of division available on its website free of charge for the public. Member States shall not subject that exemption to any requirements or constraints other than those which are necessary in order to ensure the security of the website and the authenticity of the documents and may impose such requirements or constraints only to the extent that they are proportionate in order to achieve those objectives.
By way of derogation from the second paragraph, Member States may require that publication be effected via the central electronic platform referred to in Article 16(5). Member States may alternatively require that such publication be made on any other website designated by them for that purpose. Where Member States avail themselves of one of those possibilities, they shall ensure that companies are not charged a specific fee for such publication.
Where a website other than the central electronic platform is used, a reference giving access to that website shall be published on that central electronic platform at least one month before the date fixed for the general meeting. That reference shall include the date of publication of the draft terms of division on the website and shall be accessible to the public free of charge. Companies shall not be charged a specific fee for such publication.
The prohibition precluding the charging to companies of a specific fee for publication, laid down in the third and fourth paragraphs, shall not affect the ability of Member States to pass on to companies the costs in respect of the central electronic platform.
Member States may require companies to maintain the information for a specific period after the general meeting on their website or, where applicable, on the central electronic platform or the other website designated by the Member State concerned. Member States may determine the consequences of temporary disruption of access to the website or to the central electronic platform, caused by technical or other factors.
Article 139
Approval by the general meeting of each company involved in a division
Article 140
Derogation from the requirement of approval by the general meeting of a recipient company
The laws of a Member State need not require approval of a division by a general meeting of a recipient company if the following conditions are fulfilled:
the publication provided for in Article 138 is effected, for each recipient company, at least one month before the date fixed for the general meeting of the company being divided which is to decide on the draft terms of division;
at least one month before the date specified in point (a), all shareholders of each recipient company are entitled to inspect the documents specified in Article 143(1) at the registered office of that company;
one or more shareholders of any recipient company holding a minimum percentage of the subscribed capital is entitled to require that a general meeting of such recipient company be called to decide whether to approve the division. Such minimum percentage may not be fixed at more than 5 %. Member States may, however, provide for the exclusion of non-voting shares from this calculation.
For the purposes of point (b) of the first paragraph, Article 143(2), (3) and (4) shall apply.
Article 141
Detailed written report and information on a division
Where applicable, it shall disclose the preparation of the report on the consideration other than in cash referred to in Article 70(2) for recipient companies and the register where that report must be lodged.
Article 142
Examination of the draft terms of division by experts
Article 143
Availability of documents for inspection by shareholders
All shareholders shall be entitled to inspect at least the following documents at the registered office at least one month before the date of the general meeting which is to decide on the draft terms of division:
the draft terms of division;
the annual accounts and annual reports of the companies involved in the division for the preceding three financial years;
where applicable, an accounting statement drawn up as at a date which shall not be earlier than the first day of the third month preceding the date of the draft terms of division, if the latest annual accounts relate to a financial year which ended more than six months before that date;
where applicable, the reports of the administrative or management bodies of the companies involved in the division provided for in Article 141(1);
where applicable, the reports provided for in Article 142.
For the purposes of point (c) of the first subparagraph, an accounting statement shall not be required if the company publishes a half-yearly financial report in accordance with Article 5 of Directive 2004/109/EC and makes it available to shareholders in accordance with this paragraph.
However, the laws of a Member State may provide that:
it shall not be necessary to take a fresh physical inventory;
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.
Where a shareholder has consented to the use by the company of electronic means for conveying information, such copies may be provided by electronic mail.
Paragraph 3 shall not apply if the website gives shareholders the possibility, throughout the period referred to in the first subparagraph of this paragraph, of downloading and printing the documents referred to in paragraph 1. However, in that case Member States may provide that the company is to make those documents available at its registered office for consultation by the shareholders.
Member States may require companies to maintain the information on their website for a specific period after the general meeting. Member States may determine the consequences of temporary disruption of access to the website caused by technical or other factors.
Article 144
Simplified formalities
Article 145
Protection of employees' rights
Protection of the rights of the employees of each of the companies involved in a division shall be regulated in accordance with Directive 2001/23/EC.
Article 146
Protection of the interests of creditors of companies involved in a division; joint and several liability of the recipient companies
Member States shall lay down the conditions for the protection provided for in paragraph 1 and in the first subparagraph of this paragraph. In any event, Member States shall ensure that the creditors are authorised to apply to the appropriate administrative or judicial authority for adequate safeguards provided that they can credibly demonstrate that due to the division the satisfaction of their claims is at stake and that no adequate safeguards have been obtained from the company.
Article 147
Protection of holders of securities, other than shares, to which special rights are attached
Holders of securities, other than shares, to which special rights are attached, shall be given rights in the recipient companies against which such securities may be invoked in accordance with the draft terms of division, at least equivalent to the rights they possessed in the company being divided, 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.
Article 148
Drawing up and certification of documents in due legal form
Where the laws of a Member State do not provide for judicial or administrative preventive supervision of the legality of divisions or where such supervision does not extend to all the legal acts required for a division, Article 102 shall apply.
Article 149
Date on which a division takes effect
The laws of Member States shall determine the date on which a division takes effect.
Article 150
Publication formalities
Article 151
Consequences of a division
A division shall have the following consequences ipso jure and simultaneously:
the transfer, both as between the company being divided and the recipient companies and as regards third parties, to each of the recipient companies of all the assets and liabilities of the company being divided; such transfer shall take effect with the assets and liabilities being divided in accordance with the allocation laid down in the draft terms of division or in Article 137(3);
the shareholders of the company being divided become shareholders of one or more of the recipient companies in accordance with the allocation laid down in the draft terms of division;
the company being divided ceases to exist.
No shares in a recipient company shall be exchanged for shares held in the company being divided either:
by that recipient company itself or by a person acting in his own name but on its behalf; or
by the company being divided itself or by a person acting in his own name but on its behalf.
Article 152
Civil liability of members of the administrative or management bodies of a company being divided
The laws of Member States shall at least lay down rules governing the civil liability of members of the administrative or management bodies of a company being divided towards the shareholders of that company in respect of misconduct on the part of members of those bodies in preparing and implementing the division and the civil liability of the experts responsible for drawing up for that company the report provided for in Article 142 in respect of misconduct on the part of those experts in the performance of their duties.
Article 153
Conditions for nullity of a division
The laws of Member States may lay down nullity rules for divisions in accordance with the following conditions only:
nullity must be ordered in a court judgment;
divisions which have taken effect pursuant to Article 149 are 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;
nullification proceedings are not initiated more than six months after the date on which the division becomes effective as against the person alleging nullity or if the situation has been rectified;
where it is possible to remedy a defect liable to render a division void, the competent court grants the companies involved a period of time within which to rectify the situation;
a judgment declaring a division void is published in the manner prescribed by the laws of each Member State in accordance with Article 16;
where the laws of a Member State permit a third party to challenge such a judgment, he does so only within six months of publication of the judgment in the manner prescribed by Chapter III of Title I;
a judgment declaring a division void does not of itself affect the validity of obligations owed by or in relation to the recipient companies which arose before the judgment was published and after the date referred to in Article 149;
each of the recipient companies is liable for its obligations arising after the date on which the division took effect and before the date on which the decision pronouncing the nullity of the division was published. The company being divided shall also be liable for such obligations; Member States may provide that this liability be limited to the share of net assets transferred to the recipient company on whose account such obligations arose.
Article 154
Exemption from the requirement of approval by the general meeting of the company being divided
Without prejudice to Article 140, Member States shall not require approval of the division by the general meeting of the company being divided if the recipient companies together hold all the shares of the company being divided and all other securities conferring the right to vote at general meetings of the company being divided, and the following conditions are fulfilled:
each of the companies involved in the operation carries out the publication provided for in Article 138 at least one month before the operation takes effect;
at least one month before the operation takes effect, all shareholders of companies involved in the operation are entitled to inspect the documents specified in Article 143(1), at their company's registered office;
where a general meeting of the company being divided, required for the approval of the division, is not summoned, the information provided for in Article 141(3) covers any material change in the asset and liabilities after the date of preparation of the draft terms of division.
For the purposes of point (b) of the first paragraph, Article 143(2), (3) and (4) and Article 144 shall apply.
Article 155
Definition of a ‘division by the formation of new companies’
Article 156
Application of rules on divisions by acquisition
Article 157
Divisions under the supervision of a judicial authority
Member States may apply paragraph 2 where division operations are subject to the supervision of a judicial authority having the power:
to call a general meeting of the shareholders of the company being divided in order to decide upon the division;
to ensure that the shareholders of each of the companies involved in a division have received or can obtain at least the documents referred to in Article 143 in time to examine them before the date of the general meeting of their company called to decide upon the division. Where a Member State makes use of the option provided for in Article 140, the period shall be long enough for the shareholders of the recipient companies to be able to exercise the rights conferred on them by that Article;
to call any meeting of creditors of each of the companies involved in a division in order to decide upon the division;
to ensure that the creditors of each of the companies involved in a division have received or can obtain at least the draft terms of division in time to examine them before the date referred to in point (b);
to approve the draft terms of division.
Where the judicial authority establishes that the conditions referred to in points (b) and (d) of paragraph 1 have been fulfilled and that no prejudice would be caused to shareholders or creditors, it may relieve the companies involved in the division from applying:
Article 138, on condition that the adequate system of protection of the interest of the creditors referred to in Article 146(1) covers all claims regardless of their date;
the conditions referred to in points (a) and (b) of Article 140 where a Member State makes use of the option provided for in Article 140;
Article 143, as regards the period and the manner prescribed for the inspection of the documents referred to therein.
Article 158
Divisions with cash payment exceeding 10 %
Where, in the case of one of the operations specified in Article 135, the laws of a Member State permit the cash payment to exceed 10 %, Sections 2, 3 and 4 of this Chapter shall apply.
Article 159
Divisions without the company being divided ceasing to exist
Where the laws of a Member State permit one of the operations specified in Article 135 without the company being divided ceasing to exist, Sections 2, 3 and 4 of this Chapter shall apply, except for point (c) of Article 151(1).
Article 160
Transitional provisions
Member States need not apply Articles 146 and 147 as regards the holders of convertible debentures and other securities convertible into shares if, at the time when the provisions referred to in Article 26(1) or (2) of Directive 82/891/EEC came into force, the position of those holders in the event of a division had previously been determined by the conditions of issue.
CHAPTER IV
Cross-border divisions of limited liability companies
Article 160a
Scope
Member States shall ensure that this Chapter does not apply to companies in either of the following circumstances:
the company is in liquidation and has begun to distribute assets to its members;
the company is subject to resolution tools, powers and mechanisms provided for in Title IV of Directive 2014/59/EU or in Title V of Regulation (EU) 2021/23.
Member States may decide not to apply this Chapter to companies which are:
the subject of insolvency proceedings or subject to preventive restructuring frameworks;
the subject of liquidation proceedings other than those referred to in point (a) of paragraph 4; or
the subject of crisis prevention measures as defined in point (101) of Article 2(1) of Directive 2014/59/EU or in point (48) of Article 2 of Regulation (EU) 2021/23.
Article 160b
Definitions
For the purposes of this Chapter:
‘company’ means a limited liability company of a type listed in Annex II;
‘company being divided’ means a company which, in the process of a cross-border division, transfers all its assets and liabilities to two or more companies in the case of a full division, or transfers part of its assets and liabilities to one or more companies in the case of a partial division or division by separation;
‘recipient company’ means a company newly formed in the course of a cross-border division;
‘division’ means an operation whereby:
a company being divided, on being dissolved without going into liquidation, transfers all its assets and liabilities to two or more recipient companies, in exchange for the issue to the members of the company being divided of securities or shares in the recipient companies and, if applicable, a cash payment not exceeding 10 % of the nominal value, or, in the absence of a nominal value, a cash payment not exceeding 10 % of the accounting par value of those securities or shares (‘full division’);
a company being divided transfers part of its assets and liabilities to one or more recipient companies, in exchange for the issue to the members of the company being divided of securities or shares in the recipient companies, in the company being divided or in both the recipient companies and the company being divided, and, if applicable, a cash payment not exceeding 10 % of the nominal value, or, in the absence of a nominal value, a cash payment not exceeding 10 % of the accounting par value of those securities or shares (‘partial division’); or
a company being divided transfers part of its assets and liabilities to one or more recipient companies, in exchange for the issue to the company being divided of securities or shares in the recipient companies (‘division by separation’).
Article 160c
Procedures and formalities
In compliance with Union law, the law of the Member State of the company being divided shall govern those parts of the procedures and formalities to be complied with in connection with the cross-border division in order to obtain the pre-division certificate, and the laws of the Member States of the recipient companies shall govern those parts of the procedures and formalities to be complied with following receipt of the pre-division certificate.
Article 160d
Draft terms of cross-border divisions
The administrative or management body of the company being divided shall draw up the draft terms of a cross-border division. The draft terms of a cross-border division shall include at least the following particulars:
the legal form and name of the company being divided and the location of its registered office, and the legal form and name proposed for the new company or companies resulting from the cross-border division and the proposed location of their registered offices;
the ratio applicable to the exchange of securities or shares representing the companies’ capital and the amount of any cash payment, where appropriate;
the terms for the allotment of securities or shares representing the capital of the recipient companies or of the company being divided;
the proposed indicative timetable for the cross-border division;
the likely repercussions of the cross-border division on employment;
the date from which the holding of securities or shares representing the companies' capital will entitle the holders to share in profits, and any special conditions affecting that entitlement;
the date or dates from which the transactions of the company being divided will be treated for accounting purposes as being those of the recipient companies;
any special advantages granted to members of the administrative, management, supervisory or controlling bodies of the company being divided;
the rights conferred by the recipient companies on members of the company being divided enjoying special rights or on holders of securities other than shares representing the divided company capital, or the measures proposed concerning them;
the instruments of constitution of the recipient companies, where applicable, and the statutes if they are contained in a separate instrument, and any changes to the instrument of constitution of the company being divided in the case of a partial division or a division by separation;
where appropriate, information on the procedures by which arrangements for the involvement of employees in the definition of their rights to participation in the recipient companies are determined pursuant to Article 160l;
a precise description of the assets and liabilities of the company being divided and a statement of how those assets and liabilities are to be allocated between the recipient companies, or are to be retained by the company being divided in the case of a partial division or a division by separation, including provisions on the treatment of assets or liabilities not explicitly allocated in the draft terms of cross-border division, such as assets or liabilities which are unknown on the date on which the draft terms of cross-border division are drawn up;
information on the evaluation of the assets and liabilities which are to be allocated to each company involved in the cross-border division;
the date of the accounts of the company being divided used to establish the conditions of the cross-border division;
where appropriate, the allocation to the members of the company being divided of shares and securities in the recipient companies, in the company being divided or in both, and the criterion upon which such allocation is based;
details of the offer of cash compensation for members in accordance with Article 160i;
any safeguards offered to creditors, such as guarantees or pledges.
Article 160e
Report of the administrative or management body for members and employees
It shall, in particular, explain the implications of the cross-border division for the future business of the companies.
The company may decide either to draw up one report containing those two sections or to draw up separate reports for members and employees, respectively, containing the relevant section.
The section of the report for members shall, in particular, explain the following:
the cash compensation and the method used to determine the cash compensation;
the share exchange ratio and the method or methods used to arrive at the share exchange ratio, where applicable;
the implications of the cross-border division for members;
the rights and remedies available to members in accordance with Article 160i.
The section of the report for employees shall, in particular, explain the following:
the implications of the cross-border division for employment relationships, as well as, where applicable, any measures for safeguarding those relationships;
any material changes to the applicable conditions of employment or to the location of the company’s places of business;
how the factors set out in points (a) and (b) affect any subsidiaries of the company.
Article 160f
Independent expert report
The report referred to in paragraph 1 shall in any case include the expert’s opinion as to whether the cash compensation and the share exchange ratio are adequate. When assessing the cash compensation, the expert shall consider any market price of the shares in the company being divided prior to the announcement of the division proposal or the value of the company excluding the effect of the proposed division, as determined in accordance with generally accepted valuation methods. The report shall at least:
indicate the method or methods used to determine the cash compensation proposed;
indicate the method or methods used to arrive at the share exchange ratio proposed;
state whether the method or methods are adequate for the assessment of the cash compensation and the share exchange ratio, indicate the value arrived at using such methods and give an opinion on the relative importance attributed to those methods in arriving at the value decided on; and
describe any special valuation difficulties which have arisen.
The expert shall be entitled to obtain from the company being divided all information necessary for the discharge of the duties of the expert.
Member States may exclude single-member companies from the application of this Article.
Article 160g
Disclosure
Member States shall ensure that the following documents are disclosed by the company and made publicly available in the register of the Member State of the company being divided, at least one month before the date of the general meeting referred to in Article 160h:
the draft terms of the cross-border division; and
a notice informing the members, creditors and representatives of the employees of the company being divided, or, where there are no such representatives, the employees themselves, that they may submit to the company, at the latest five working days before the date of the general meeting, comments concerning the draft terms of the cross-border division.
Member States may require that the independent expert report be disclosed and made publicly available in the register.
Member States shall ensure that the company is able to exclude confidential information from the disclosure of the independent expert report.
The documents disclosed in accordance with this paragraph shall be also accessible through the system of interconnection of registers.
However, Member States shall not subject that exemption to any requirements or constraints other than those which are necessary to ensure the security of the website and the authenticity of the documents, and which are proportionate to achieving those objectives.
Where the company being divided makes the draft terms of the cross-border division available in accordance with paragraph 2 of this Article, it shall submit to the register, at least one month before the date of the general meeting referred to in Article 160h, the following information:
the legal form and name of the company being divided and the location of its registered office and the legal form and name proposed for the newly created company or companies resulting from the cross-border division and the proposed location of their registered office;
the register in which the documents referred to in Article 14 are filed in respect of the company being divided, and its registration number in that register;
an indication of the arrangements made for the exercise of the rights of creditors, employees and members; and
details of the website from which the draft terms of the cross-border division, the notice referred to in paragraph 1, the independent expert report and complete information on the arrangements referred to in point (c) of this paragraph may be obtained online and free of charge.
The register shall make publicly available the information referred to in points (a) to (d) of the first subparagraph.
Member States shall further ensure that any fees charged to the company by the registers for the disclosure referred to in paragraphs 1 and 3 and, where applicable, for the publication referred to in paragraph 5 do not exceed the recovery of the cost of providing such services.
Article 160h
Approval by the general meeting
Member States shall ensure that the approval of the cross-border division by the general meeting cannot be challenged solely on the following grounds:
the share exchange ratio referred to in point (b) of Article 160d has been inadequately set;
the cash compensation referred to in point (p) of Article 160d has been inadequately set; or
the information given with regard to the share exchange ratio referred to in point (a) or the cash compensation referred to in point (b) did not comply with the legal requirements.
Article 160i
Protection of members
Member States may also provide for other members of the company being divided to have the right referred to in the first subparagraph.
Member States may require that express opposition to the draft terms of the cross‐border division, the intention of members to exercise their right to dispose of their shares, or both, be appropriately documented at the latest at the general meeting referred to in Article 160h. Member States may allow the recording of opposition to the draft terms of the cross-border division to be considered proper documentation of a negative vote.
Member States may provide that the final decision to provide additional cash compensation is valid for all members of the company being divided who have declared their decision to exercise the right to dispose of their shares in accordance with paragraph 2.
Article 160j
Protection of creditors
Member States shall ensure that creditors who are dissatisfied with the safeguards offered in the draft terms of the cross-border division, as provided for in point (q) of Article 160d, may apply, within three months of the disclosure of the draft terms of cross-border division referred to in Article 160g, to the appropriate administrative or judicial authority for adequate safeguards, provided that such creditors can credibly demonstrate that, due to the cross-border division, the satisfaction of their claims is at stake and that they have not obtained adequate safeguards from the company.
Member States shall ensure that the safeguards are conditional on the cross-border division taking effect in accordance with Article 160q.
Article 160k
Employee information and consultation
Article 160l
Employee participation
However, the rules in force concerning employee participation, if any, in the Member State where the company resulting from the cross-border division has its registered office shall not apply where the company being divided has, in the six months prior to the disclosure of the draft terms of the cross-border division, an average number of employees equivalent to four fifths of the applicable threshold, as laid down in the law of the Member State of the company being divided, for triggering the participation of employees within the meaning of point (k) of Article 2 of Directive 2001/86/EC, or where the national law applicable to each of the recipient companies does not:
provide for at least the same level of employee participation as operated in the company being divided prior to its cross-border division, measured by reference to the proportion of employee representatives among the members of the administrative or supervisory body or their committees or of the management group which covers the profit units of the company, subject to employee representation; or
provide for employees of establishments of the recipient companies that are situated in other Member States the same entitlement to exercise participation rights as is enjoyed by those employees employed in the Member State where the recipient company has its registered office.
In the cases referred to in paragraph 2 of this Article, the participation of employees in the companies resulting from the cross-border division and their involvement in the definition of such rights shall be regulated by the Member States, mutatis mutandis and subject to paragraphs 4 to 7 of this Article, in accordance with the principles and procedures laid down in Article 12(2) and (4) of Regulation (EC) No 2157/2001 and the following provisions of Directive 2001/86/EC:
Article 3(1), points (a)(i) and (b) of Article 3(2), Article 3(3), the first two sentences of Article 3(4), and Article 3(5) and (7);
Article 4(1), points (a), (g) and (h) of Article 4(2), and Article 4(3) and (4);
Article 5;
Article 6;
Article 7(1), with the exception of the second indent of point (b);
Articles 8, 10, 11 and 12; and
point (a) of Part 3 of the Annex.
When regulating the principles and procedures referred to in paragraph 3, Member States:
shall confer on the special negotiating body the right to decide, by a majority of two thirds of its members representing at least two thirds of the employees, not to open negotiations or to terminate negotiations already opened and to rely on the rules on participation in force in the Member States of each of the recipient companies;
may, in the case where, following prior negotiations, standard rules for participation apply and notwithstanding such rules, decide to limit the proportion of employee representatives in the administrative body of the recipient companies. However, if, in the company being divided, employee representatives constituted at least one third of the administrative or supervisory body, the limitation may never result in a lower proportion of employee representatives in the administrative body than one third;
shall ensure that the rules on employee participation that applied prior to the cross-border division continue to apply until the date of application of any subsequently agreed rules or, in the absence of agreed rules, until the application of standard rules in accordance with point (a) of Part 3 of the Annex to Directive 2001/86/EC.
Article 160m
Pre-division certificate
Such completion of procedures and formalities may comprise the satisfaction or securing of pecuniary or non-pecuniary obligations due to public bodies or compliance with specific sectoral requirements, including securing obligations arising from ongoing proceedings.
Member States shall ensure that the application to obtain a pre-division certificate by the company being divided is accompanied by the following:
the draft terms of the cross-border division;
the report and the appended opinion, if any, referred to in Article 160e, as well as the report referred to in Article 160f, where they are available;
any comments submitted in accordance with Article 160g(1); and
information on the approval by the general meeting referred to in Article 160h.
Member States may require that the application to obtain a pre-division certificate by the company being divided is accompanied by additional information, such as, in particular:
the number of employees at the time of the drawing up of the draft terms of the cross-border division;
the existence of subsidiaries and their respective geographical location;
information regarding the satisfaction of obligations due to public bodies by the company being divided.
For the purposes of this paragraph, competent authorities may request such information, if not provided by the company being divided, from other relevant authorities.
As part of the scrutiny referred to in paragraph 1, the competent authority shall examine the following:
all documents and information submitted to the competent authority in accordance with paragraphs 2 and 3;
an indication by the company being divided that the procedure referred to in Article 160l(3) and (4) has started, where relevant.
Member States shall ensure that the scrutiny referred to in paragraph 1 is carried out within three months of the date of receipt of the documents and information concerning the approval of the cross-border division by the general meeting of the company being divided. That scrutiny shall have one of the following outcomes:
where it is determined that the cross-border division complies with all the relevant conditions and that all necessary procedures and formalities have been completed, the competent authority shall issue the pre-division certificate;
where it is determined that the cross-border division does not comply with all the relevant conditions or that not all necessary procedures and formalities have been completed, the competent authority shall not issue the pre-division certificate and shall inform the company of the reasons for its decision; in that case, the competent authority may give the company the opportunity to fulfil the relevant conditions or to complete the procedures and formalities within an appropriate period of time.
Article 160n
Transmission of the pre-division certificate
Member States shall also ensure that the pre-division certificate is available through the system of interconnection of registers.
Article 160o
Scrutiny of the legality of the cross-border division
That authority or authorities shall in particular ensure that the recipient companies comply with provisions of national law on the incorporation and registration of companies and, where appropriate, that arrangements for employee participation have been determined in accordance with Article 160l.
Article 160p
Registration
Member States shall ensure that at least the following information is entered in their registers:
in the register of the Member States of the recipient companies, that the registration of the recipient company is the result of a cross-border division;
in the register of the Member States of the recipient companies, the dates of registration of the recipient companies;
in the register of the Member State of the company being divided in the event of a full division, that the striking off or removal of the company being divided from the register is the result of a cross-border division;
in the register of the Member State of the company being divided in the event of a full division, the date of striking off or removal of the company being divided from the register;
in the registers of the Member State of the company being divided and of the Member States of the recipient companies, respectively, the registration number, name and legal form of the company being divided and of the recipient companies.
The registers shall make the information referred to in the first subparagraph publicly available and accessible through the system of interconnection of registers.
Article 160q
Date on which the cross-border division takes effect
The law of the Member State of the company being divided shall determine the date on which the cross-border division takes effect. That date shall be after the scrutiny referred to in Articles 160m and 160o has been carried out and after the registers have received all notifications referred to in Article 160p(3).
Article 160r
Consequences of a cross-border division
A cross-border full division shall, from the date referred to in Article 160q, have the following consequences:
all the assets and liabilities of the company being divided, including all contracts, credits, rights and obligations, shall be transferred to the recipient companies in accordance with the allocation specified in the draft terms of the cross‐border division;
the members of the company being divided shall become members of the recipient companies in accordance with the allocation of shares specified in the draft terms of the cross-border division, unless they have disposed of their shares as referred to in Article 160i(1);
the rights and obligations of the company being divided arising from contracts of employment or from employment relationships and existing at the date on which the cross-border division takes effect shall be transferred to the recipient companies;
the company being divided shall cease to exist.
A cross-border partial division shall, from the date referred to in