Directive 2009/109/EC

Directive 77/91/EEC is hereby amended as follows:

1. in Article 1(1), the fourteenth indent is replaced by the following:

‘— in Finland: julkinen osakeyhtiö/publikt aktiebolag’;

2. in Article 10, the following paragraph is added:

‘5. Member States may decide not to apply this Article to the formation of a new company by way of merger or division where an independent expert’s report on the draft terms of merger or division is drawn up.

Where Member States decide to apply this Article in the cases referred to in the first subparagraph, they may provide that the report under this Article and the independent expert’s report on the draft terms of merger or division may be drawn up by the same expert or experts.’;

3. Article 27(3) is replaced by the following:

‘3. Member States may decide not to apply paragraph 2 in the event of an increase in subscribed capital made in order to give effect to a merger, a division or a public offer for the purchase or exchange of shares and to pay the shareholders of the company which is being absorbed or divided or which is the object of the public offer for the purchase or exchange of shares.

In the case of a merger or a division, however, Member States shall apply the first subparagraph only where an independent expert’s report 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 independent expert’s report on the draft terms of merger or division may be drawn up by the same expert or experts.’.

Directive 82/891/EEC is hereby amended as follows:

1. in Article 4, the following paragraphs are added:

‘Any of the companies involved in the division 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 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 3(4) of Directive 68/151/EEC. 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 day 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.’;

2. in Article 6, the following paragraph is added:

‘For the purposes of point (b) of the first paragraph, Article 9(2), (3) and (4) shall apply.’;

3. in Article 7(2), the second subparagraph is replaced by the following:

‘Where applicable, it shall disclose the preparation of the report on the consideration other than in cash referred to in Article 27(2) of Directive 77/91/EEC for recipient companies and the register where that report must be lodged.’;

4. in Article 8, paragraph 3 is deleted;

5. Article 9 is amended as follows:

(a) paragraph 1 is amended as follows:

(i) points (c) and (d) are replaced by the following:

‘(c) where applicable, an accounting statement drawn up as at a date which must 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;

(d) where applicable, the reports of the administrative or management bodies of the companies involved in the division provided for in Article 7(1);’;

(ii) the following subparagraph is added:

‘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.’;

(b) in paragraph 3, the following subparagraph is added:

‘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.’;

(c) the following paragraph is added:

‘4. A company shall be exempt from the requirement to make the documents referred to in paragraph 1 available at its registered office if, for a continuous period beginning at least one month before the day 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 them available on its website. Member States shall not subject that exemption to 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.

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.’;

6. in Article 12, paragraph 2 is replaced by the following:

‘2. To that end, the laws of the Member States shall at least provide that such creditors shall be entitled to obtain adequate safeguards where the financial situation of the company being divided and that of the company to which the obligation will be transferred in accordance with the draft terms of division make such protection necessary and where those creditors do not already have such safeguards.

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.’;

7. Article 20 is amended as follows:

(a) the introductory wording is replaced by the following:

‘Without prejudice to Article 6, 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:’;

(b) in point (b), the second sentence is deleted;

(c) point (c) is deleted;

(d) the following paragraph is added:

‘For the purposes of point (b) of the first paragraph, Article 9(2), (3) and (4) and Article 10 shall apply.’;

8. Article 22 is amended as follows:

(a) paragraph 4 is deleted;

(b) paragraph 5 is replaced by the following:

‘5. Member States shall not impose the requirements set out in Articles 7 and 8 and in points (c), (d) and (e) of Article 9(1) where the shares in each of the new companies are allocated to the shareholders of the company being divided in proportion to their rights in the capital of that company.’.

Directive 2005/56/EC is hereby amended as follows:

1. in Article 6(1), the following subparagraphs are added:

‘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 ending not earlier than the conclusion of that meeting, it makes the common 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 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 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 day fixed for the general meeting. That reference shall include the date of publication of the common draft terms of cross-border 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 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 temporary disruption of access to the website or to the central electronic platform, caused by technical or other factors.’;

2. in Article 15, paragraph 2 is replaced by the following:

‘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 necessary for scrutiny shall be required only to the extent that the national law governing either the acquiring company or the company or companies being acquired so requires, in accordance with Directive 78/855/EEC.’.

Five years after the date laid down in Article 6(1), the Commission shall review the functioning of those provisions of Directives 77/91/EEC, 78/855/EEC, 82/891/EEC and 2005/56/EC which are amended or added by this Directive, and in particular their effects on the reduction of administrative burdens on companies, in the light of experience acquired in their application, and shall present a report to the European Parliament and the Council, accompanied if necessary by proposals for further amendments of those directives.

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 June 2011. They shall forthwith communicate to the Commission the text of those provisions.

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

This Directive is addressed to the Member States.

(1) Opinion of 25 February 2009 (not yet published in the Official Journal).

(2) Opinion of the European Parliament of 22 April 2009 (not yet published in the Official Journal) and Council Decision of 27 July 2009.

(3) OJ L 26, 31.1.1977, p. 1.

(4) OJ L 295, 20.10.1978, p. 36.

(5) OJ L 65, 14.3.1968, p. 8.

(6) OJ L 310, 25.11.2005, p. 1.

(7) OJ L 378, 31.12.1982, p. 47.

(8) OJ L 390, 31.12.2004, p. 38.

(9) OJ C 321, 31.12.2003, p. 1.