Companies: protecting the interests of members and third parties

The European Commission considers that it is necessary to protect the interests of third parties and members through coordination between national provisions relating to disclosure, and the validity of obligations entered into by companies limited by shares or otherwise having limited liability. This Directive meets this need by enabling third parties and members to have access to information concerning the basic documents of companies.

ACT

Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent (Text with EEA relevance) [See amending act(s)].

SUMMARY

This Directive aims to frame the guarantees required of companies in order to protect the interests of members and third parties.

Types of companies concerned

This Directive applies to:

• companies incorporated with limited liability.

Disclosure as regards companies

Companies must disclose certain documents and information relating in particular to:

• the instrument of constitution and the statutes, and their amendments;
• the appointment, termination of office and particulars of the persons who have the power to represent the company in legal proceedings and who take part in the administration, supervision or control of the company;
• the amount of the capital subscribed;
• any change of the registered office;
• the winding-up of the company;
• the liquidation of the company.

All of these disclosed items shall be recorded in a file opened in a central register, commercial register or companies register. The file may be available in electronic format or on paper.

Any change must be recorded in the central register and made public within 21 days after the complete transmission of information.

Companies must have a unique identifier for communication between registers. This unique identifier includes the elements which shall enable the following to be identified:

• the Member State of the register;
• the domestic register of origin;
• the company number in that register.

Member States shall be responsible for the publication of the above information in the national gazette or other means. They shall take the necessary measures to avoid any discrepancy between the pieces of information provided and shall ensure that this information is kept up-to-date. This information must also be made available on the European e-Justice portal in all the official languages of the EU, and also in electronic format using the system of interconnection of central registers (available from 2014).

The system of interconnection of registers shall provide access free-of-charge to the following information:

• the name 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.

The Commission shall provide a search service on companies registered in the Member States. In addition it shall introduce a central European portal which aims to ensure the inter-operability of the registers.

The processing of personal data is subject to the provisions of the Directive on the protection of personal data.

Validity of obligations entered into by the company

If action has been carried out on behalf of a company being formed before it has acquired legal personality, the persons who acted shall be liable therefor and not the company itself.

Once a company has acquired legal personality, acts performed by the organs of the company shall be binding upon it in respect of third parties, including such acts that go beyond the limitations of the objects of the company, except where these acts exceed the powers conferred upon those organs.

Even if the formalities of disclosure concerning the persons who are authorised to represent the company have been completed, any irregularity in their appointment shall not be relied upon against third parties. The company may only rely on such disclosure if it provides proof that the third parties had knowledge of the irregularities.

Nullity of the company

The Member States shall provide for the nullity of companies by decision of a court of law. The nullity of a company may only be ordered in the following cases:

• no instrument of constitution has been executed;
• the objects of the company are of an unlawful nature or contrary to public policy;
• there is no statement of the name of the company, subscriptions, the total amount of capital subscribed or the objects of the company;
• failure to comply with the provisions of national law concerning the minimum amount of capital to be paid up;
• the incapacity of all the founder members;
• the number of founder members is less than two.

Once nullity has been official recognised, the company is liquidated. However, shareholders must pay up the capital agreed to be subscribed by them but which has not been paid up with respect to creditors.

This Directive repeals Directive 68/151/EC.

Last updated: 28.12.2012