25.9.2006   

EN

Official Journal of the European Union

L 264/1

(1)

Inland waterways are an important part of the Community's transport networks and the promotion of inland waterways transport is one of the objectives of the common transport policy, both for reasons of economic efficiency and in order to reduce energy consumption and the environmental impact of transport, as described in the Commission White Paper: European transport policy for 2010: time to decide.

(2)

The Commission needs statistics concerning the transport of goods by inland waterways in order to monitor and develop the common transport policy, as well as the transport elements of policies on the regions and on trans-European networks.

(3)

Statistics on inland waterways transport have been collected under Council Directive 80/1119/EEC of 17 November 1980 on statistical returns in respect of carriage of goods by inland waterways (2), which no longer corresponds to the present needs in this domain. It is therefore appropriate to replace that Directive with a new instrument which extends its scope and improves its efficiency.

(4)

Consequently, Directive 80/1119/EEC should be repealed.

(5)

Community statistics on all modes of transport should be collected according to common concepts and standards, with the aim of achieving the fullest practicable comparability between transport modes.

(6)

Inland waterways transport does not occur in all Member States and, therefore, the effect of this Regulation is limited to those Member States where this mode of transport exists.

(7)

Since the objective of this Regulation, namely the creation of common statistical standards that permit the production of harmonised data, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(8)

Council Regulation (EC) No 322/97 of 17 February 1997 on Community Statistics (3) provides a reference framework for the provisions laid down by this Regulation.

(9)

The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (4).

(10)

The Statistical Programme Committee established by Council Decision 89/382/EEC, Euratom (5) has been consulted in accordance with Article 3 of that Decision,

(a)

the carriage of goods by vessels of less than 50 deadweight tonnes;

(b)

vessels used principally for the carriage of passengers;

(c)

vessels used for ferrying purposes;

(d)

vessels used solely for non-commercial purposes by port administrations and public authorities;

(e)

vessels used solely for bunkering or storage;

(f)

vessels not used for the carriage of goods such as fishery vessels, dredgers, floating workshops, houseboats and pleasure craft.

(a)

‘navigable inland waterway’ means a stretch of water, not part of the sea, over which vessels of a carrying capacity of not less than 50 tonnes can navigate when normally loaded. This term covers both navigable rivers and lakes and navigable canals;

(b)

‘inland waterway vessel’ means a floating craft designed for the carriage of goods or public transport of passengers by navigable inland waterways;

(c)

‘nationality of the vessel’ refers to the country in which the inland waterway vessel is registered.

(a)

assess the benefits accruing to the Community, the Member States and the providers and users of statistical information of the statistics produced, in relation to their costs;

(b)

assess the quality of the statistics produced;

(c)

identify areas for potential improvement and any amendments considered necessary in the light of the results obtained.

(a)

adaptation of the threshold for statistical coverage of inland waterways transport (Article 2);

(b)

adaptation of the definitions and adoption of additional definitions (Article 3);

(c)

adaptation of the data collection scope and the content of the annexes (Article 4);

(d)

arrangements for transmitting data to the Commission (Eurostat) including data interchange standards (Article 5);

(e)

arrangements for the dissemination of results by the Commission (Eurostat) (Article 6);

(f)

development and publication of methodological requirements and criteria (Article 7).

25.9.2006   

EN

Official Journal of the European Union

L 264/12

(1)

Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer (3) takes 1999 as the base year for allocating quotas of hydrochlorofluorocarbons (HCFCs). The HCFC market in the 10 new Member States has changed considerably since 1999, with the arrival of new companies and changes in market shares. Taking 1999 as the base year for allocating quotas of HCFCs in these new Member States would result in a large number of companies not receiving an import quota. This could be considered as being arbitrary and might also result in a breach of the principles of non-discrimination and legitimate expectations.

(2)

As a general rule, quotas should be based on the most recent and representative figures available in order to ensure that a number of importing companies in the new Member States are not excluded. It is therefore appropriate to choose the years for which the most recent data are available. In order to best reflect the commercial situation on the HCFC market in the 10 new Member States, average market shares in 2002 and 2003 should therefore be used as the basis for the companies from those Member States.

(3)

Regulation (EC) No 2037/2000 should therefore be amended accordingly,

‘(i)

by way of derogation from point (h), each producer and importer in the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia shall ensure that the calculated level of hydrochlorofluorocarbons which it places on the market or uses for its own account shall not exceed, as a percentage of the calculated levels set out in points (b), (d), (e) and (f), the average of its percentage market share in 2002 and 2003.’

25.9.2006   

EN

Official Journal of the European Union

L 264/13

(1)

Community legislation in the field of the environment aims to contribute inter alia to preserving, protecting and improving the quality of the environment and protecting human health, thereby promoting sustainable development.

(2)

The Sixth Community Environment Action Programme (3) stresses the importance of providing adequate environmental information and effective opportunities for public participation in environmental decision-making, thereby increasing accountability and transparency of decision-making and contributing to public awareness and support for the decisions taken. It furthermore encourages, as did its predecessors (4), more effective implementation and application of Community legislation on environmental protection, including the enforcement of Community rules and the taking of action against breaches of Community environmental legislation.

(3)

On 25 June 1998 the Community signed the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (hereinafter the Aarhus Convention). The Community approved the Aarhus Convention on 17 February 2005 (5). Provisions of Community law should be consistent with that Convention.

(4)

The Community has already adopted a body of legislation, which is evolving and contributes to the achievement of the objectives of the Aarhus Convention. Provision should be made to apply the requirements of the Convention to Community institutions and bodies.

(5)

It is appropriate to deal with the three pillars of the Aarhus Convention, namely access to information, public participation in decision-making and access to justice in environmental matters, in one piece of legislation and to lay down common provisions regarding objectives and definitions. This contributes to rationalising legislation and increasing the transparency of the implementation measures taken with regard to Community institutions and bodies.

(6)

As a general principle, the rights guaranteed by the three pillars of the Aarhus Convention are without discrimination as to citizenship, nationality or domicile.

(7)

The Aarhus Convention defines public authorities in a broad way, the basic concept being that wherever public authority is exercised, there should be rights for individuals and their organisations. It is therefore necessary that the Community institutions and bodies covered by this Regulation be defined in the same broad and functional way. Under the Aarhus Convention, Community institutions and bodies can be excluded from the scope of application of the Convention when acting in a judicial or legislative capacity. However, for reasons of consistency with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (6), the provisions on access to environmental information should apply to Community institutions and bodies acting in a legislative capacity.

(8)

The definition of environmental information in this Regulation encompasses information in any form on the state of the environment. This definition, which has been aligned to the definition adopted for Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (7), has the same content as the one laid down in the Aarhus Convention. The definition of ‘document’ in Regulation (EC) No 1049/2001 encompasses environmental information as defined in this Regulation.

(9)

It is appropriate for this Regulation to provide for a definition of plans and programmes taking into account the provisions of the Aarhus Convention, in parallel with the approach followed in relation to the Member States' obligations under existing EC law. ‘Plans and programmes relating to the environment’ should be defined in relation to their contribution to the achievement, or to their likely significant effect on the achievement, of the objectives and priorities of Community environmental policy. For the ten-year period starting from 22 July 2002, the Sixth Community Environment Action Programme establishes the objectives of Community environmental policy and the actions planned to attain these objectives. At the end of this period, a subsequent environmental action programme should be adopted.

(10)

In view of the fact that environmental law is constantly evolving, the definition of environmental law should refer to the objectives of Community policy on the environment as set out in the Treaty.

(11)

Administrative acts of individual scope should be open to possible internal review where they have legally binding and external effects. Similarly, omissions should be covered where there is an obligation to adopt an administrative act under environmental law. Given that acts adopted by a Community institution or body acting in a judicial or legislative capacity can be excluded, the same should apply to other inquiry procedures where the Community institution or body acts as an administrative review body under provisions of the Treaty.

(12)

The Aarhus Convention calls for public access to environmental information either following a request or by active dissemination by the authorities covered by the Convention. Regulation (EC) No 1049/2001 applies to the European Parliament, the Council and the Commission, as well as to agencies and similar bodies set up by a Community legal act. It lays down rules for these institutions that comply to a great extent with the rules laid down in the Aarhus Convention. It is necessary to extend the application of Regulation (EC) No 1049/2001 to all other Community institutions and bodies.

(13)

Where the Aarhus Convention contains provisions that are not, in whole or in part, to be found also in Regulation (EC) No 1049/2001, it is necessary to address those, in particular with regard to the collection and dissemination of environmental information.

(14)

For the right of public access to environmental information to be effective, environmental information of good quality is essential. It is therefore appropriate to introduce rules that oblige Community institutions and bodies to ensure such quality.

(15)

Where Regulation (EC) No 1049/2001 provides for exceptions, these should apply subject to any more specific provisions in this Regulation concerning requests for environmental information. The grounds for refusal as regards access to environmental information should be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions in the environment. The term ‘commercial interests’ covers confidentiality agreements concluded by institutions or bodies acting in a banking capacity.

(16)

Pursuant to Decision No 2119/98/EC of the European Parliament and the Council of 24 September 1998 setting up a network for the epidemiological surveillance and control of communicable diseases in the Community (8), a network at Community level has already been set up to promote cooperation and coordination between the Member States, with the assistance of the Commission, with a view to improving the prevention and control in the Community of a number of communicable diseases. Decision No 1786/2002/EC of the European Parliament and of the Council (9) adopts a programme of Community action in the field of public health that complements national policies. Improving information and knowledge for the development of public health and enhancing the capability to respond rapidly and in a coordinated fashion to threats to health, both of which are elements of this programme, are objectives that are equally fully in line with the requirements of the Aarhus Convention. This Regulation should therefore apply without prejudice to Decision No 2119/98/EC and Decision No 1786/2002/EC.

(17)

The Aarhus Convention requires Parties to make provisions for the public to participate during the preparation of plans and programmes relating to the environment. Such provisions are to include reasonable timeframes for informing the public of the environmental decision-making in question. To be effective, public participation is to take place at an early stage, when all options are open. When laying down provisions on public participation, Community institutions and bodies, should identify the public which may participate. The Aarhus Convention also requires that, to the extent appropriate, Parties shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment.

(18)

Article 9(3) of the Aarhus Convention provides for access to judicial or other review procedures for challenging acts and omissions by private persons and public authorities which contravene provisions of law relating to the environment. Provisions on access to justice should be consistent with the Treaty. It is appropriate in this context that this Regulation address only acts and omissions by public authorities.

(19)

To ensure adequate and effective remedies, including those available before the Court of Justice of the European Communities under the relevant provisions of the Treaty, it is appropriate that the Community institution or body which issued the act to be challenged or which, in the case of an alleged administrative omission, omitted to act, be given the opportunity to reconsider its former decision, or, in the case of an omission, to act.

(20)

Non-governmental organisations active in the field of environmental protection which meet certain criteria, in particular in order to ensure that they are independent and accountable organisations that have demonstrated that their primary objective is to promote environmental protection, should be entitled to request internal review at Community level of acts adopted or of omissions under environmental law by a Community institution or body, with a view to their reconsideration by the institution or body in question.

(21)

Where previous requests for internal review have been unsuccessful, the non-governmental organisation concerned should be able to institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty.

(22)

This Regulation respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty on the European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Article 37 thereof,

(a)

guaranteeing the right of public access to environmental information received or produced by Community institutions or bodies and held by them, and by setting out the basic terms and conditions of, and practical arrangements for, the exercise of that right;

(b)

ensuring that environmental information is progressively made available and disseminated to the public in order to achieve its widest possible systematic availability and dissemination. To that end, the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted;

(c)

providing for public participation concerning plans and programmes relating to the environment;

(d)

granting access to justice in environmental matters at Community level under the conditions laid down by this Regulation.

(a)

‘applicant’ means any natural or legal person requesting environmental information;

(b)

‘the public’ means one or more natural or legal persons, and associations, organisations or groups of such persons;

(c)

‘Community institution or body’ means any public institution, body, office or agency established by, or on the basis of, the Treaty except when acting in a judicial or legislative capacity. However, the provisions under Title II shall apply to Community institutions or bodies acting in a legislative capacity;

(d)

‘environmental information’ means any information in written, visual, aural, electronic or any other material form on:

(e)

‘plans and programmes relating to the environment’ means plans and programmes,

General environmental action programmes shall also be considered as plans and programmes relating to the environment.

This definition shall not include financial or budget plans and programmes, namely those laying down how particular projects or activities should be financed or those related to the proposed annual budgets, internal work programmes of a Community institution or body, or emergency plans and programmes designed for the sole purpose of civil protection;

(f)

‘environmental law’ means Community legislation which, irrespective of its legal basis, contributes to the pursuit of the objectives of Community policy on the environment as set out in the Treaty: preserving, protecting and improving the quality of the environment, protecting human health, the prudent and rational utilisation of natural resources, and promoting measures at international level to deal with regional or worldwide environmental problems;

(g)

‘administrative act’ means any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects;

(h)

‘administrative omission’ means any failure of a Community institution or body to adopt an administrative act as defined in (g).

(a)

Articles 81, 82, 86 and 87 of the Treaty (competition rules);

(b)

Articles 226 and 228 of the Treaty (infringement proceedings);

(c)

Article 195 of the Treaty (Ombudsman proceedings);

(d)

Article 280 of the Treaty (OLAF proceedings).

(a)

texts of international treaties, conventions or agreements, and of Community legislation on the environment or relating to it, and of policies, plans and programmes relating to the environment;

(b)

progress reports on the implementation of the items referred to under (a) where prepared or held in electronic form by Community institutions or bodies;

(c)

steps taken in proceedings for infringements of Community law from the stage of the reasoned opinion pursuant to Article 226(1) of the Treaty;

(d)

reports on the state of the environment as referred to in paragraph 4;

(e)

data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment;

(f)

authorisations with a significant impact on the environment, and environmental agreements, or a reference to the place where such information can be requested or accessed;

(g)

environmental impact studies and risk assessments concerning environmental elements, or a reference to the place where such information can be requested or accessed.

(a)

the draft proposal, where available;

(b)

the environmental information or assessment relevant to the plan or programme under preparation, where available; and

(c)

practical arrangements for participation, including:

(a)

it is an independent non-profit-making legal person in accordance with a Member State's national law or practice;

(b)

it has the primary stated objective of promoting environmental protection in the context of environmental law;

(c)

it has existed for more than two years and is actively pursuing the objective referred to under (b);

(d)

the subject matter in respect of which the request for internal review is made is covered by its objective and activities.

25.9.2006   

EN

Official Journal of the European Union

L 264/20

(1)

Council Directive 78/659/EEC of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fish life (3) has been significantly amended on several occasions (4). In the interests of clarity and rationality that Directive should be codified.

(2)

The protection and improvement of the environment necessitates concrete measures to protect waters against pollution, including fresh waters capable of supporting fish life.

(3)

It is necessary from the ecological and economic viewpoint to safeguard fish populations from various harmful consequences resulting from the discharge of pollutant substances into the waters, such as, in particular, the reduction in number of fish belonging to a certain species and even in some cases the disappearance of a number of these species.

(4)

Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme (5) is designed to achieve levels of surface water quality that do not give rise to significant impacts on, and risks to, the environment.

(5)

Discrepancies between the provisions applicable in the various Member States with regard to the quality of fresh water capable of supporting fish life may give rise to unequal conditions of competition and thus have a direct bearing on the functioning of the internal market.

(6)

In order to attain the objectives of this Directive, Member States should designate the waters to which it will apply and set limit values corresponding to certain parameters. The waters so designated should be brought into conformity with these values within five years of this designation.

(7)

Provision should be made that fresh waters capable of supporting fish life will, under certain conditions, be deemed to conform to the relevant parametric values even if a certain percentage of samples taken does not comply with the limits specified.

(8)

To ensure that the quality of fresh waters capable of supporting fish life is checked, a minimum number of samples should be taken and the measurements relating to specified parameters, as annexed hereto, should be carried out. Such sampling may be reduced or discontinued in the light of the quality of the water.

(9)

Member States are unable to control certain natural circumstances and it is therefore necessary to provide for the possibility of derogating from this Directive in certain cases.

(10)

Technical and scientific progress may call for the rapid adaptation of certain of the requirements laid down in Annex I. In order to facilitate the introduction of the measures required for this purpose, a procedure should be laid down whereby close cooperation would be established between Member States and the Commission in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (6).

(11)

This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Part B of Annex III,

(a)

indigenous species offering a natural diversity;

(b)

species the presence of which is judged desirable for water management purposes by the competent authorities of the Member States.

(a)

salmonid waters shall mean waters which support or become capable of supporting fish belonging to species such as salmon (Salmo salar), trout (Salmo trutta), grayling (Thymallus thymallus) and whitefish (Coregonus);

(b)

cyprinid waters shall mean waters which support or become capable of supporting fish belonging to the cyprinids (Cyprinidae), or other species such as pike (Esox lucius), perch (Perca fluviatilis) and eel (Anguilla anguilla).

(a)

95 % of the samples for the parameters: pH, BOD5, nitrites, non-ionised ammonia, total ammonium, total residual chlorine, total zinc and dissolved copper. When the sampling frequency is lower than one sample per month, both the abovementioned values and comments shall be respected for all the samples;

(b)

the percentages listed in Annex I for the parameters: temperature and dissolved oxygen;

(c)

the average concentration set for the parameter: suspended solids.

(a)

in the case of certain parameters marked (0) in Annex I, because of exceptional weather or special geographical conditions;

(b)

when designated waters undergo natural enrichment in certain substances, so that the values set out in Annex I are not respected.

Natural enrichment means the process whereby, without human intervention, a given body of water receives from the soil certain substances contained therein.

(a)

the waters designated in accordance with Article 4(1), in summary form;

(b)

the revision of the designation of certain waters in accordance with Article 4(2);

(c)

the provisions laid down in order to establish new parameters in accordance with Article 9;

(d)

the application of the derogations from the values listed in column I of Annex I.

25.9.2006   

EN

Official Journal of the European Union

L 264/32

(1)

The second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (3), sets out the requirements for several capital-related measures taken by such companies.

(2)

In its Communication of 21 May 2003 to the Council and the European Parliament entitled ‘Modernising Company Law and Enhancing Corporate Governance in the European Union – A Plan to Move Forward’ the Commission draws the conclusion that a simplification and modernisation of Directive 77/91/EEC would significantly contribute to the promotion of business efficiency and competitiveness without reducing the protection offered to shareholders and creditors. Those objectives have the first priority but do not affect the need to proceed without delay to a general examination of the feasibility of alternatives to the capital maintenance regime which would adequately protect the interests of creditors and shareholders of a public limited liability company.

(3)

Member States should be able to permit public limited liability companies to allot shares for consideration other than in cash without requiring them to obtain a special expert valuation in cases in which there is a clear point of reference for the valuation of such consideration. Nonetheless, the right of minority shareholders to require such valuation should be guaranteed.

(4)

Public limited liability companies should be allowed to acquire their own shares up to the limit of the company's distributable reserves and the period for which such an acquisition may be authorised by the general meeting should be increased so as to enhance flexibility and reduce the administrative burden for companies which have to react promptly to market developments affecting the price of their shares.

(5)

Member States should be able to permit public limited liability companies to grant financial assistance with a view to the acquisition of their shares by a third party up to the limit of the company's distributable reserves so as to increase flexibility with regard to changes in the ownership structure of the share capital of companies. This possibility should be subject to safeguards, having regard to this Directive's objective of protecting both shareholders and third parties.

(6)

In order to enhance standardised creditor protection in all Member States, creditors should be able to resort, under certain conditions, to judicial or administrative proceedings where their claims are at stake as a consequence of a reduction in the capital of a public limited liability company.

(7)

In order to ensure that market abuse is prevented, Member States should take into account, for the purpose of implementation of this Directive, the provisions of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) (4), Commission Regulation (EC) No 2273/2003 of 22 December 2003 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards exemptions for buy-back programmes and stabilisation of financial instruments (5) and Commission Directive 2004/72/EC of 29 April 2004 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards accepted market practices, the definition of inside information in relation to derivatives on commodities, the drawing up of lists of insiders, the notification of managers' transactions and the notification of suspicious transactions (6).

(8)

Directive 77/91/EEC should therefore be amended accordingly.

(9)

In accordance with point 34 of the Interinstitutional Agreement on better law-making (7), Member States are encouraged to draw up, for themselves and in the interest of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public,

1.

in Article 1(1), the 21st indent shall be replaced by the following:

;

2.

the following Articles shall be inserted:

‘Article 10a

1.   Member States may decide not to apply Article 10(1), (2) and (3) where, upon a decision of the administrative or management body, transferable securities as defined in point 18 of Article 4(1) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments (8) or money-market instruments as defined in point 19 of Article 4(1) of that Directive are contributed as consideration other than in cash, and those securities or money-market instruments are valued at the weighted average price at which they have been traded on one or more regulated market(s) as defined in point 14 of Article 4(1) of that Directive during a sufficient period, to be determined by national law, preceding the effective date of the contribution of the respective consideration other than in cash.

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 the aforementioned revaluation, Article 10(1), (2) and (3) shall apply.

2.   Member States may decide not to apply Article 10(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, 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:

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 aforementioned revaluation, Article 10(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 day the decision on the increase in the capital is taken may demand a valuation by an independent expert, in which case Article 10(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 day the decision on the increase in the capital was taken.

3.   Member States may decide not to apply Article 10(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, are contributed as consideration other than in cash whose fair value is derived by individual asset from the statutory accounts of the previous financial year provided that the statutory accounts have been subject to an audit in accordance with Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts (9).

The second and third subparagraphs of paragraph 2 shall apply mutatis mutandis.

Article 10b

1.   Where consideration other than in cash as referred to in Article 10a occurs without an expert's report as referred to in Article 10(1), (2) and (3), in addition to the requirements set out in point (h) of Article 3 and within one month after the effective date of the asset contribution, a declaration containing the following shall be published:

That publication shall be effected in the manner laid down by the laws of each Member State in accordance with Article 3 of Directive 68/151/EEC.

2.   Where consideration other than in cash is proposed to be made without an expert's report as referred to in Article 10(1), (2) and (3) in relation to an increase in the capital proposed to be made under Article 25(2), an announcement containing the date when the decision on the increase was taken and the information listed in paragraph 1 shall be published, in the manner laid down by the laws of each Member State in accordance with Article 3 of Directive 68/151/EEC, before the contribution of the asset as consideration other than in cash is to become effective. In that event, the declaration pursuant to paragraph 1 shall be limited to the statement that no new qualifying circumstances have occurred since the aforementioned announcement was published.

3.   Each Member State shall provide for adequate safeguards ensuring compliance with the procedure set out in Article 10a and in this Article where a contribution for a consideration other than in cash is made without an expert's report as referred to in Article 10(1), (2) and (3).

3.

in Article 11(1), the first subparagraph shall be amended as follows:

4.

in Article 19, paragraph 1 shall be replaced by the following:

‘1.   Without prejudice to the principle of equal treatment of all shareholders who are in the same position, and to Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) (10), Member States may permit a company to acquire its own shares, either itself or through a person acting in his 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:

Furthermore, Member States may subject acquisitions within the meaning of the first subparagraph to any of the following conditions:

5.

in Article 20(3), the words ‘Article 15(1)(a)’ shall be replaced by the words ‘points (a) and (b) of Article 15(1)’;

6.

Article 23(1) shall be replaced by the following:

‘1.   Where Member States permit a company to, either directly or indirectly, advance funds or make loans or provide security, with a view to the acquisition of its shares by a third party, they shall make such transactions subject to the conditions set out in the second, third, fourth and fifth subparagraphs.

The transactions shall take place under the responsibility of the administrative or management body at fair market conditions, especially with regard to interest received by the company and with regard to security provided to the company for the loans and advances referred to in the first subparagraph. The credit standing of the third party or, in the case of multiparty transactions, of each counterparty thereto shall have been duly investigated.

The transactions shall be submitted by the administrative or management body to the general meeting for prior approval, whereby the general meeting shall act in accordance with the rules for a quorum and a majority laid down in Article 40. 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 3 of Directive 68/151/EEC.

The aggregate financial assistance granted to third parties shall at no time result in the reduction of the net assets below the amount specified in points (a) and (b) of Article 15(1), taking into account also any reduction of the net assets that may have occurred through the acquisition, by the company or on behalf of the company, of its own shares in accordance with Article 19(1). The company shall include, among the liabilities in the balance sheet, a reserve, unavailable for distribution, of the amount of the aggregate financial assistance.

Where a third party by means of financial assistance from a company acquires that company's own shares within the meaning of Article 19(1) or subscribes for shares issued in the course of an increase in the subscribed capital, such acquisition or subscription shall be made at a fair price.’

7.

the following Article shall be inserted:

‘Article 23a

In cases where individual members of the administrative or management body of the company being party to a transaction referred to in Article 23(1), or of the administrative or management body of a parent undertaking within the meaning of Article 1 of Council Directive 83/349/EEC of 13 June 1983 on consolidated accounts (11) 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.

8.

in Article 27(2), the second subparagraph shall be replaced by the following:

‘Article 10(2) and (3) and Articles 10a and 10b shall apply.’

9.

Article 32(1) shall be replaced by the following:

‘1.   In the event of a reduction in the subscribed capital, at least the creditors whose claims antedate the publication of the decision on the reduction shall at least have the right to obtain security for claims which have not fallen due by the date of that publication. Member States may not set aside such a right unless the creditor has adequate safeguards, or unless such safeguards are not necessary having regard to the assets of the company.

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.’

10.

Article 41(1) shall be replaced by the following:

‘1.   Member States may derogate from Article 9(1), the first sentence of point (a) of Article 19(1), and Articles 25, 26 and 29 to the extent that such derogations are necessary for the adoption or application of provisions designed to encourage the participation of employees, or other groups of persons defined by national law, in the capital of undertakings.’