What changed, Directive 2005/56/EC

+ ### Article 1
− ### art_1
+ Scope
− Article 1
+ ### Article 2
− ### art_2
+ Definitions
− Article 2
+ 
+ 1) ‘limited liability company’, hereinafter referred to as ‘company’, means:
+ 
+ (a) a company as referred to in Article 1 of Directive 68/151/EEC (11), or
+ 
+ (b) a company with share capital and having legal personality, possessing separate assets which alone serve to cover its debts and subject under the national law governing it to conditions concerning guarantees such as are provided for by Directive 68/151/EEC for the protection of the interests of m…
+ 
+ 2. ‘merger’ means an operation whereby:
+ (a) 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 applic…
+ 
+ (b) 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 …
− | 1) | ‘limited liability company’, hereinafter referred to as ‘company’, means:(a)a company as referred to in Article 1 of Directive 68/151/EEC (11), or(b)a company with share capital and having legal personality, possessing separate assets which alone serve to cover its debts and subject under the…
− | --- | --- |
− | (a) | a company as referred to in Article 1 of Directive 68/151/EEC (11), or |
− | (b) | a company with share capital and having legal personality, possessing separate assets which alone serve to cover its debts and subject under the national law governing it to conditions concerning guarantees such as are provided for by Directive 68/151/EEC for the protection of the interests …
+ (c) 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.
− | 2. | ‘merger’ means an operation whereby:(a)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 ca…
− | --- | --- |
− | (a) | 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 ap…
− | (b) | 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…
− | (c) | 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. |
+ ### Article 3
− ### art_3
+ Further provisions concerning the scope
− Article 3
+ ### Article 4
− ### art_4
+ Conditions relating to cross-border mergers
− Article 4
+ (a) cross-border mergers shall only be possible between types of companies which may merge under the national law of the relevant Member States, and
− | (a) | cross-border mergers shall only be possible between types of companies which may merge under the national law of the relevant Member States, and |
− | --- | --- |
+ (b) 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 c…
− | (b) | 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…
− | --- | --- |
+ ### Article 5
− ### art_5
+ Common draft terms of cross-border mergers
− Article 5
+ (a) the form, name and registered office of the merging companies and those proposed for the company resulting from the cross-border merger;
− | (a) | the form, name and registered office of the merging companies and those proposed for the company resulting from the cross-border merger; |
− | --- | --- |
+ (b) the ratio applicable to the exchange of securities or shares representing the company capital and the amount of any cash payment;
− | (b) | the ratio applicable to the exchange of securities or shares representing the company capital and the amount of any cash payment; |
− | --- | --- |
+ (c) the terms for the allotment of securities or shares representing the capital of the company resulting from the cross-border merger;
− | (c) | the terms for the allotment of securities or shares representing the capital of the company resulting from the cross-border merger; |
− | --- | --- |
+ (d) the likely repercussions of the cross-border merger on employment;
− | (d) | the likely repercussions of the cross-border merger on employment; |
− | --- | --- |
+ (e) 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;
− | (e) | 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; |
− | --- | --- |
+ (f) 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;
− | (f) | 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; |
− | --- | --- |
+ (g) 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;
− | (g) | 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; |
− | --- | --- |
+ (h) any special advantages granted to the experts who examine the draft terms of the cross-border merger or to members of the administrative, management, supervisory or controlling organs of the merging companies;
− | (h) | any special advantages granted to the experts who examine the draft terms of the cross-border merger or to members of the administrative, management, supervisory or controlling organs of the merging companies; |
− | --- | --- |
+ (i) the statutes of the company resulting from the cross-border merger;
− | (i) | the statutes of the company resulting from the cross-border merger; |
− | --- | --- |
+ (j) 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 16;
− | (j) | 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 16; |
− | --- | --- |
+ (k) information on the evaluation of the assets and liabilities which are transferred to the company resulting from the cross-border merger;
− | (k) | information on the evaluation of the assets and liabilities which are transferred to the company resulting from the cross-border merger; |
− | --- | --- |
+ (l) dates of the merging companies’ accounts used to establish the conditions of the cross-border merger.
− | (l) | dates of the merging companies’ accounts used to establish the conditions of the cross-border merger. |
− | --- | --- |
+ ### Article 6
− ### art_6
+ Publication
− Article 6
+ 
+ Any of the merging companies shall be exempt from the publication requirement laid down in Article 3 of Directive 68/151/EEC if, for a continuous period beginning at least one month before the day fixed for the general meeting which is to decide on the common draft terms of cross-border merger and e…
+ 
+ By way of derogation from the second subparagraph, Member States may require that publication be effected via the central electronic platform referred to in Article 3(4) of Directive 68/151/EEC. Member States may alternatively require that such publication be made on any other website designated by …
+ 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 day fixed for the general meeting. That reference shall include the date of publication of the common draf…
+ 
+ The prohibition precluding the charging to companies of a specific fee for publication, laid down in the third and fourth subparagraphs, 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 tem…
+ 
+ (a) the type, name and registered office of every merging company;
− | (a) | the type, name and registered office of every merging company; |
− | --- | --- |
+ (b) the register in which the documents referred to in Article 3(2) of Directive 68/151/EEC are filed in respect of each merging company, and the number of the entry in that register;
− | (b) | the register in which the documents referred to in Article 3(2) of Directive 68/151/EEC are filed in respect of each merging company, and the number of the entry in that register; |
− | --- | --- |
+ (c) an indication, for each of the merging companies, of the arrangements made for the exercise of the rights of creditors and of any minority members of the merging companies and the address at which complete information on those arrangements may be obtained free of charge.
− | (c) | an indication, for each of the merging companies, of the arrangements made for the exercise of the rights of creditors and of any minority members of the merging companies and the address at which complete information on those arrangements may be obtained free of charge. |
− | --- | --- |
+ ### Article 7
− ### art_7
+ Report of the management or administrative organ
− Article 7
+ ### Article 8
− ### art_8
+ Independent expert report
− Article 8
+ ### Article 9
− ### art_9
+ Approval by the general meeting
− Article 9
+ ### Article 10
− ### art_10
+ Pre-merger certificate
− Article 10
+ ### Article 11
− ### art_11
+ Scrutiny of the legality of the cross-border merger
− Article 11
+ ### Article 12
− ### art_12
+ Entry into effect of the cross-border merger
− Article 12
+ ### Article 13
− ### art_13
+ Registration
− Article 13
+ ### Article 14
− ### art_14
+ Consequences of the cross-border merger
− Article 14
+ (a) all the assets and liabilities of the company being acquired shall be transferred to the acquiring company;
− | (a) | all the assets and liabilities of the company being acquired shall be transferred to the acquiring company; |
− | --- | --- |
+ (b) the members of the company being acquired shall become members of the acquiring company;
− | (b) | the members of the company being acquired shall become members of the acquiring company; |
− | --- | --- |
+ (c) the company being acquired shall cease to exist.
− | (c) | the company being acquired shall cease to exist. |
− | --- | --- |
+ (a) all the assets and liabilities of the merging companies shall be transferred to the new company;
− | (a) | all the assets and liabilities of the merging companies shall be transferred to the new company; |
− | --- | --- |
+ (b) the members of the merging companies shall become members of the new company;
− | (b) | the members of the merging companies shall become members of the new company; |
− | --- | --- |
+ (c) the merging companies shall cease to exist.
− | (c) | the merging companies shall cease to exist. |
− | --- | --- |
+ (a) by the acquiring company itself or through a person acting in his or her own name but on its behalf;
− | (a) | by the acquiring company itself or through a person acting in his or her own name but on its behalf; |
− | --- | --- |
+ (b) by the company being acquired itself or through a person acting in his or her own name but on its behalf.
− | (b) | by the company being acquired itself or through a person acting in his or her own name but on its behalf. |
− | --- | --- |
+ ### Article 15
− ### art_15
+ Simplified formalities
− Article 15
+ — Articles 5, points (b), (c) and (e), 8 and 14(1), point (b) shall not apply,
− | — | Articles 5, points (b), (c) and (e), 8 and 14(1), point (b) shall not apply, |
− | --- | --- |
+ — Article 9(1) shall not apply to the company or companies being acquired.
− | — | Article 9(1) shall not apply to the company or companies being acquired. |
− | --- | --- |
+ 2. Where a cross-border 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, reports by an independent expert or experts and the documen…
− 2. Where a cross-border 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, reports by an independent expert or experts and the documents…
+ ### Article 16
− ### art_16
+ Employee participation
− Article 16
+ (a) 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 cov…
− | (a) | 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…
− | --- | --- |
+ (b) 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-bo…
− | (b) | 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 cros…
− | --- | --- |
+ 3. 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 below, in accordance wi…
− 3. 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 below, in accordance with…
+ (a) Article 3(1), (2) and (3), (4) first subparagraph, first indent, and second subparagraph, (5) and (7);
− | (a) | Article 3(1), (2) and (3), (4) first subparagraph, first indent, and second subparagraph, (5) and (7); |
− | --- | --- |
+ (b) Article 4(1), (2), points (a), (g) and (h), and (3);
− | (b) | Article 4(1), (2), points (a), (g) and (h), and (3); |
− | --- | --- |
+ (c) Article 5;
− | (c) | Article 5; |
− | --- | --- |
+ (d) Article 6;
− | (d) | Article 6; |
− | --- | --- |
+ (e) Article 7(1), (2) first subparagraph, point (b), and second subparagraph, and (3). However, for the purposes of this Directive, the percentages required by Article 7(2), first subparagraph, point (b) of Directive 2001/86/EC for the application of the standard rules contained in part 3 of the Ann…
− | (e) | Article 7(1), (2) first subparagraph, point (b), and second subparagraph, and (3). However, for the purposes of this Directive, the percentages required by Article 7(2), first subparagraph, point (b) of Directive 2001/86/EC for the application of the standard rules contained in part 3 of the…
− | --- | --- |
+ (f) Articles 8, 10 and 12;
− | (f) | Articles 8, 10 and 12; |
− | --- | --- |
+ (g) Article 13(4);
− | (g) | Article 13(4); |
− | --- | --- |
+ (h) part 3 of the Annex, point (b).
− | (h) | part 3 of the Annex, point (b). |
− | --- | --- |
+ (a) shall confer on the relevant organs of the merging companies the right to choose without any prior negotiation to be directly subject to the standard rules for participation referred to in paragraph 3(h), as laid down by the legislation of the Member State in which the company resulting from the…
− | (a) | shall confer on the relevant organs of the merging companies the right to choose without any prior negotiation to be directly subject to the standard rules for participation referred to in paragraph 3(h), as laid down by the legislation of the Member State in which the company resulting from…
− | --- | --- |
+ (b) 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 …
− | (b) | 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 termin…
− | --- | --- |
+ (c) may, in the case where, following prior negotiations, standard rules for participation apply and notwithstanding these rules, determine 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…
− | (c) | may, in the case where, following prior negotiations, standard rules for participation apply and notwithstanding these rules, determine 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…
− | --- | --- |
+ ### Article 17
− ### art_17
+ Validity
− Article 17
+ ### Article 18
− ### art_18
+ Review
− Article 18
+ ### Article 19
− ### art_19
+ Transposition
− Article 19
+ ### Article 20
− ### art_20
+ Entry into force
− Article 20
+ This Directive shall enter into force on the 20th day following its publication in the *Official Journal of the European Union*.
− This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
+ ### Article 21
− ### art_21
+ Addressees
− Article 21
+ 
+ (1) OJ C 117, 30.4.2004, p. 43.
+ 
+ (2) Opinion of the European Parliament of 10 May 2005 (not yet published in the Official Journal) and Council Decision of 19 September 2005.
+ 
+ (3) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).
+ 
+ (4) OJ L 225, 12.8.1998, p. 16.
+ 
+ (5) OJ L 82, 22.3.2001, p. 16.
+ 
+ (6) OJ L 80, 23.3.2002, p. 29.
+ 
+ (7) OJ L 254, 30.9.1994, p. 64. Directive as amended by Directive 97/74/EC (OJ L 10, 16.1.1998, p. 22).
+ 
+ (8) OJ L 294, 10.11.2001, p. 1. Regulation as amended by Regulation (EC) No 885/2004 (OJ L 168, 1.5.2004, p. 1).
+ 
+ (9) OJ L 294, 10.11.2001, p. 22.
+ 
+ (10) OJ C 321, 31.12.2003, p. 1.
+ 
+ (11) First Council Directive 68/151/EEC of 9 March 1968 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, with a view to making such safegu…
+ 
+ (12) OJ L 295, 20.10.1978, p. 36. Directive as last amended by the 2003 Act of Accession.