What changed, Directive 2011/35/EU

+ ## CHAPTER I / **SCOPE**
− ### art_1
+ ### Article 1
− Article 1
+ — Belgium:
+ 
+ — la société anonyme/de naamloze vennootschap,
+ 
+ — Bulgaria:
+ 
+ — акционерно дружество,
+ 
+ — the Czech Republic:
+ 
+ — akciová společnost,
+ 
+ — Denmark:
+ 
+ — aktieselskaber,
+ 
+ — Germany:
+ 
+ — die Aktiengesellschaft,
+ 
+ — Estonia:
+ 
+ — aktsiaselts,
+ 
+ — Ireland:
+ 
+ — public companies limited by shares, and public companies limited by guarantee having a share capital,
+ 
+ — Greece:
+ 
+ — ανώνυμη εταιρία,
+ 
+ — Spain:
+ 
+ — la sociedad anónima,
+ 
+ — France:
+ 
+ — la société anonyme,
+ 
+ — Croatia:
+ 
+ — dioničko društvo,
+ 
+ — Italy:
+ 
+ — la società per azioni,
+ 
+ — Cyprus:
+ 
+ — Δημόσιες εταιρείες περιορισμένης ευθύνης με μετοχές, δημόσιες εταιρείες περιορισμένης ευθύνης με εγγύηση που διαθέτουν μετοχικό κεφάλαιο,
+ 
+ — Latvia:
+ 
+ — akciju sabiedrība,
+ 
+ — Lithuania:
+ 
+ — akcinė bendrovė,
− | — | Belgium:—la société anonyme/de naamloze vennootschap, |
− | --- | --- |
− | — | la société anonyme/de naamloze vennootschap, |
+ — Luxembourg:
− | — | Bulgaria:—акционерно дружество, |
− | --- | --- |
− | — | акционерно дружество, |
+ — la société anonyme,
− | — | the Czech Republic:—akciová společnost, |
− | --- | --- |
− | — | akciová společnost, |
+ — Hungary:
− | — | Denmark:—aktieselskaber, |
− | --- | --- |
− | — | aktieselskaber, |
+ — részvénytársaság,
− | — | Germany:—die Aktiengesellschaft, |
− | --- | --- |
− | — | die Aktiengesellschaft, |
+ — Malta:
− | — | Estonia:—aktsiaselts, |
− | --- | --- |
− | — | aktsiaselts, |
+ — kumpannija pubblika/public limited liability company, kumpannija privata/private limited liability company,
− | — | Ireland:—public companies limited by shares, and public companies limited by guarantee having a share capital, |
− | --- | --- |
− | — | public companies limited by shares, and public companies limited by guarantee having a share capital, |
+ — the Netherlands:
− | — | Greece:—ανώνυμη εταιρία, |
− | --- | --- |
− | — | ανώνυμη εταιρία, |
+ — de naamloze vennootschap,
− | — | Spain:—la sociedad anónima, |
− | --- | --- |
− | — | la sociedad anónima, |
+ — Austria:
− | — | France:—la société anonyme, |
− | --- | --- |
− | — | la société anonyme, |
+ — die Aktiengesellschaft,
− | — | Italy:—la società per azioni, |
− | --- | --- |
− | — | la società per azioni, |
+ — Poland:
− | — | Cyprus:—Δημόσιες εταιρείες περιορισμένης ευθύνης με μετοχές, δημόσιες εταιρείες περιορισμένης ευθύνης με εγγύηση που διαθέτουν μετοχικό κεφάλαιο, |
− | --- | --- |
− | — | Δημόσιες εταιρείες περιορισμένης ευθύνης με μετοχές, δημόσιες εταιρείες περιορισμένης ευθύνης με εγγύηση που διαθέτουν μετοχικό κεφάλαιο, |
+ — spółka akcyjna,
− | — | Latvia:—akciju sabiedrība, |
− | --- | --- |
− | — | akciju sabiedrība, |
+ — Portugal:
− | — | Lithuania:—akcinė bendrovė, |
− | --- | --- |
− | — | akcinė bendrovė, |
+ — a sociedade anónima,
− | — | Luxembourg:—la société anonyme, |
− | --- | --- |
− | — | la société anonyme, |
+ — Romania:
− | — | Hungary:—részvénytársaság, |
− | --- | --- |
− | — | részvénytársaság, |
+ — societate pe acțiuni,
− | — | Malta:—kumpannija pubblika/public limited liability company, kumpannija privata/private limited liability company, |
− | --- | --- |
− | — | kumpannija pubblika/public limited liability company, kumpannija privata/private limited liability company, |
+ — Slovenia:
− | — | the Netherlands:—de naamloze vennootschap, |
− | --- | --- |
− | — | de naamloze vennootschap, |
+ — delniška družba,
− | — | Austria:—die Aktiengesellschaft, |
− | --- | --- |
− | — | die Aktiengesellschaft, |
+ — Slovakia:
− | — | Poland:—spółka akcyjna, |
− | --- | --- |
− | — | spółka akcyjna, |
+ — akciová spoločnosť,
− | — | Portugal:—a sociedade anónima, |
− | --- | --- |
− | — | a sociedade anónima, |
+ — Finland:
− | — | Romania:—societate pe acțiuni, |
− | --- | --- |
− | — | societate pe acțiuni, |
+ — julkinen osakeyhtiö/publikt aktiebolag,
− | — | Slovenia:—delniška družba, |
− | --- | --- |
− | — | delniška družba, |
+ — Sweden:
− | — | Slovakia:—akciová spoločnosť, |
− | --- | --- |
− | — | akciová spoločnosť, |
+ — aktiebolag,
− | — | Finland:—julkinen osakeyhtiö/publikt aktiebolag, |
− | --- | --- |
− | — | julkinen osakeyhtiö/publikt aktiebolag, |
+ — the United Kingdom:
− | — | Sweden:—aktiebolag, |
− | --- | --- |
− | — | aktiebolag, |
+ — public companies limited by shares, and public companies limited by guarantee having a share capital.
− | — | the United Kingdom:—public companies limited by shares, and public companies limited by guarantee having a share capital. |
− | --- | --- |
− | — | public companies limited by shares, and public companies limited by guarantee having a share capital. |
+ ## CHAPTER II / **REGULATION OF MERGER BY THE ACQUISITION OF ONE OR MORE COMPANIES BY ANOTHER COMPANY AND OF MERGER BY THE FORMATION OF A NEW COMPANY**
− ### art_2
+ ### Article 2
− Article 2
+ ### Article 3
− ### art_3
− 
− Article 3
+ ### Article 4
− ### art_4
− 
− Article 4
+ ## CHAPTER III / **MERGER BY ACQUISITION**
− ### art_5
+ ### Article 5
− Article 5
+ (a) the type, name and registered office of each of the merging companies;
− | (a) | the type, name and registered office of each of the merging companies; |
− | --- | --- |
+ (b) the share exchange ratio and the amount of any cash payment;
− | (b) | the share exchange ratio and the amount of any cash payment; |
− | --- | --- |
+ (c) the terms relating to the allotment of shares in the acquiring company;
− | (c) | the terms relating to the allotment of shares in the acquiring company; |
− | --- | --- |
+ (d) the date from which the holding of such shares entitles the holders to participate in profits and any special conditions affecting that entitlement;
− | (d) | the date from which the holding of such shares entitles the holders to participate in profits and any special conditions affecting that entitlement; |
− | --- | --- |
+ (e) the date from which the transactions of the company being acquired shall be treated for accounting purposes as being those of the acquiring company;
− | (e) | the date from which the transactions of the company being acquired shall be treated for accounting purposes as being those of the acquiring company; |
− | --- | --- |
+ (f) 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;
− | (f) | 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; |
− | --- | --- |
+ (g) any special advantage granted to the experts referred to in Article 10(1) and members of the merging companies’ administrative, management, supervisory or controlling bodies.
− | (g) | any special advantage granted to the experts referred to in Article 10(1) and members of the merging companies’ administrative, management, supervisory or controlling bodies. |
− | --- | --- |
+ ### Article 6
− ### art_6
− Article 6
− 
+ ### Article 7
− ### art_7
− Article 7
− 
+ ### Article 8
− ### art_8
− Article 8
− 
+ (a) the publication provided for in Article 6 must be effected, for the acquiring company, at least 1 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;
− | (a) | the publication provided for in Article 6 must be effected, for the acquiring company, at least 1 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; |
− | --- | --- |
+ (b) at least 1 month before the date specified in point (a), all shareholders of the acquiring company must be entitled to inspect the documents specified in Article 11(1) at the registered office of the acquiring company;
− | (b) | at least 1 month before the date specified in point (a), all shareholders of the acquiring company must be entitled to inspect the documents specified in Article 11(1) at the registered office of the acquiring company; |
− | --- | --- |
+ (c) one or more shareholders of the acquiring company holding a minimum percentage of the subscribed capital must be 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 %. Membe…
− | (c) | one or more shareholders of the acquiring company holding a minimum percentage of the subscribed capital must be 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 %. M…
− | --- | --- |
+ ### Article 9
− ### art_9
− Article 9
− 
+ ### Article 10
− ### art_10
− Article 10
− 
+ (a) indicate the method or methods used to arrive at the share exchange ratio proposed;
− | (a) | indicate the method or methods used to arrive at the share exchange ratio proposed; |
− | --- | --- |
+ (b) state whether such method or methods are adequate in the case in question, indicate the values arrived at using each such method and give an opinion on the relative importance attributed to such methods in arriving at the value decided on.
− | (b) | state whether such method or methods are adequate in the case in question, indicate the values arrived at using each such method and give an opinion on the relative importance attributed to such methods in arriving at the value decided on. |
− | --- | --- |
+ ### Article 11
− ### art_11
− 
− Article 11
+ (a) the draft terms of merger;
− | (a) | the draft terms of merger; |
− | --- | --- |
+ (b) the annual accounts and annual reports of the merging companies for the preceding three financial years;
− | (b) | the annual accounts and annual reports of the merging companies for the preceding three financial years; |
− | --- | --- |
+ (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 merger, if the latest annual accounts relate to a financial year which ended more than 6 months before that date;
− | (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 merger, if the latest annual accounts relate to a financial year which ended more than 6 months before that date; |
− | --- | --- |
+ (d) where applicable, the reports of the administrative or management bodies of the merging companies provided for in Article 9;
− | (d) | where applicable, the reports of the administrative or management bodies of the merging companies provided for in Article 9; |
− | --- | --- |
+ (e) where applicable, the report referred to in Article 10(1).
− | (e) | where applicable, the report referred to in Article 10(1). |
− | --- | --- |
+ (a) it is not necessary to take a fresh physical inventory;
+ 
+ (b) 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:
+ 
+ — interim depreciation and provisions,
− | (a) | it is not necessary to take a fresh physical inventory; |
− | --- | --- |
+ — material changes in actual value not shown in the books.
− | (b) | 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:—interim depreciation and provisions,—material changes in actual value not shown in the books. |
− | --- | --- |
− | — | interim depreciation and provisions, |
− | — | material changes in actual value not shown in the books. |
+ ### Article 12
− ### art_12
− 
− Article 12
+ ### Article 13
− ### art_13
− 
− Article 13
+ ### Article 14
− ### art_14
− 
− Article 14
+ ### Article 15
− ### art_15
− 
− Article 15
+ ### Article 16
− ### art_16
− 
− Article 16
+ ### Article 17
− ### art_17
− 
− Article 17
+ ### Article 18
− ### art_18
− 
− Article 18
+ ### Article 19
− ### art_19
+ 1. A merger shall have the following consequences *ipso jure* and simultaneously:
− Article 19
+ (a) 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;
− 1. A merger shall have the following consequences ipso jure and simultaneously:
+ (b) the shareholders of the company being acquired become shareholders of the acquiring company;
− | (a) | 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; |
− | --- | --- |
+ (c) the company being acquired ceases to exist.
− | (b) | the shareholders of the company being acquired become shareholders of the acquiring company; |
− | --- | --- |
− | (c) | the company being acquired ceases to exist. |
− | --- | --- |
− 
+ (a) by the acquiring company itself or through a person acting in his own name but on its behalf; or
− | (a) | by the acquiring company itself or through a person acting in his own name but on its behalf; or |
− | --- | --- |
+ (b) by the company being acquired itself or through a person acting in his own name but on its behalf.
− | (b) | by the company being acquired itself or through a person acting in his own name but on its behalf. |
− | --- | --- |
+ ### Article 20
− ### art_20
− Article 20
− 
+ ### Article 21
− ### art_21
− Article 21
− 
+ ### Article 22
− ### art_22
− Article 22
− 
+ (a) nullity must be ordered in a court judgment;
− | (a) | nullity must be ordered in a court judgment; |
− | --- | --- |
+ (b) mergers which have taken effect pursuant to Article 17 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…
− | (b) | mergers which have taken effect pursuant to Article 17 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 mee…
− | --- | --- |
+ (c) nullification proceedings may not be initiated more than 6 months after the date on which the merger becomes effective as against the person alleging nullity or if the situation has been rectified;
− | (c) | nullification proceedings may not be initiated more than 6 months after the date on which the merger becomes effective as against the person alleging nullity or if the situation has been rectified; |
− | --- | --- |
+ (d) where it is possible to remedy a defect liable to render a merger void, the competent court shall grant the companies involved a period of time within which to rectify the situation;
− | (d) | where it is possible to remedy a defect liable to render a merger void, the competent court shall grant the companies involved a period of time within which to rectify the situation; |
− | --- | --- |
+ (e) a judgment declaring a merger void shall be published in the manner prescribed by the laws of each Member State in accordance with Article 3 of Directive 2009/101/EC;
− | (e) | a judgment declaring a merger void shall be published in the manner prescribed by the laws of each Member State in accordance with Article 3 of Directive 2009/101/EC; |
− | --- | --- |
+ (f) where the laws of a Member State permit a third party to challenge such a judgment, that party may do so only within 6 months of publication of the judgment in the manner prescribed by Directive 2009/101/EC;
− | (f) | where the laws of a Member State permit a third party to challenge such a judgment, that party may do so only within 6 months of publication of the judgment in the manner prescribed by Directive 2009/101/EC; |
− | --- | --- |
+ (g) a judgment declaring a merger void shall 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;
− | (g) | a judgment declaring a merger void shall 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; |
− | --- | --- |
+ (h) companies which have been parties to a merger shall be jointly and severally liable in respect of the obligations of the acquiring company referred to in point (g).
− | (h) | companies which have been parties to a merger shall be jointly and severally liable in respect of the obligations of the acquiring company referred to in point (g). |
− | --- | --- |
+ ## CHAPTER IV / **MERGER BY FORMATION OF A NEW COMPANY**
− ### art_23
+ ### Article 23
− Article 23
+ ## CHAPTER V / **ACQUISITION OF ONE COMPANY BY ANOTHER WHICH HOLDS 90 % OR MORE OF ITS SHARES**
− ### art_24
+ ### Article 24
− Article 24
+ ### Article 25
− ### art_25
− Article 25
− 
+ (a) the publication provided for in Article 6 must be effected, as regards each company involved in the operation, at least 1 month before the operation takes effect;
− | (a) | the publication provided for in Article 6 must be effected, as regards each company involved in the operation, at least 1 month before the operation takes effect; |
− | --- | --- |
+ (b) at least 1 month before the operation takes effect, all shareholders of the acquiring company must be entitled to inspect the documents referred to in points (a), (b) and (c) of Article 11(1) at the company’s registered office;
− | (b) | at least 1 month before the operation takes effect, all shareholders of the acquiring company must be entitled to inspect the documents referred to in points (a), (b) and (c) of Article 11(1) at the company’s registered office; |
− | --- | --- |
+ (c) point (c) of the first paragraph of Article 8 must apply.
− | (c) | point (c) of the first paragraph of Article 8 must apply. |
− | --- | --- |
+ ### Article 26
− ### art_26
− Article 26
− 
+ ### Article 27
− ### art_27
− Article 27
− 
+ (a) the publication provided for in Article 6 must be effected, as regards the acquiring company, at least 1 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;
− | (a) | the publication provided for in Article 6 must be effected, as regards the acquiring company, at least 1 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; |
− | --- | --- |
+ (b) at least 1 month before the date specified in point (a), all shareholders of the acquiring company must be entitled to inspect the documents specified in points (a), (b) and, where applicable, (c), (d) and (e) of Article 11(1) at the company’s registered office;
− | (b) | at least 1 month before the date specified in point (a), all shareholders of the acquiring company must be entitled to inspect the documents specified in points (a), (b) and, where applicable, (c), (d) and (e) of Article 11(1) at the company’s registered office; |
− | --- | --- |
+ (c) point (c) of the first paragraph of Article 8 must apply.
− | (c) | point (c) of the first paragraph of Article 8 must apply. |
− | --- | --- |
+ ### Article 28
− ### art_28
− 
− Article 28
+ (a) the minority shareholders of the company being acquired must be entitled to have their shares acquired by the acquiring company;
− | (a) | the minority shareholders of the company being acquired must be entitled to have their shares acquired by the acquiring company; |
− | --- | --- |
+ (b) if they exercise that right, they must be entitled to receive consideration corresponding to the value of their shares;
− | (b) | if they exercise that right, they must be entitled to receive consideration corresponding to the value of their shares; |
− | --- | --- |
+ (c) in the event of disagreement regarding such consideration, it must be 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.
− | (c) | in the event of disagreement regarding such consideration, it must be 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. |
− | --- | --- |
+ ### Article 29
− ### art_29
− Article 29
− 
+ ## CHAPTER VI / **OTHER OPERATIONS TREATED AS MERGERS**
− ### art_30
+ ### Article 30
− Article 30
+ ### Article 31
− ### art_31
− Article 31
− 
+ ## CHAPTER VII / **FINAL PROVISIONS**
− ### art_32
+ ### Article 32
− Article 32
+ 
+ ### Article 33
+ 
+ This Directive shall enter into force on 1 July 2011.
+ 
+ ### Article 34
+ 
+ This Directive is addressed to the Member States.
+ 
+ ### ANNEX I
+ 
+ PART A
+ 
+ **Repealed Directive with list of its successive amendments**
+ 
+ (referred to in Article 32)
+ 
+ | Council Directive 78/855/EEC(OJ L 295, 20.10.1978, p. 36) |  |
+ | --- | --- |
+ | Annex I, point III. C, to the 1979 Act of Accession(OJ L 291, 19.11.1979, p. 89) |  |
+ | Annex I, point II. d), to the 1985 Act of Accession(OJ L 302, 15.11.1985, p. 157) |  |
+ | Annex I, point XI.A.3., to the 1994 Act of Accession(OJ C 241, 29.8.1994, p. 194) |  |
+ | Annex II, point 4.A.3, to the 2003 Act of Accession(OJ L 236, 23.9.2003, p. 338) |  |
+ | Council Directive 2006/99/EC(OJ L 363, 20.12.2006, p. 137) | Only as regards the reference to Directive 78/855/EEC in Article 1 and Annex, Section A. 3 |
+ | Directive 2007/63/EC of the European Parliament and of the Council(OJ L 300, 17.11.2007, p. 47) | Article 2 only |
+ | Directive 2009/109/EC of the European Parliament and of the Council(OJ L 259, 2.10.2009, p. 14) | Article 2 only |
+ 
+ PART B
+ 
+ **List of time-limits for transposition into national law**
+ 
+ (referred to in Article 32)
+ 
+ | Directive | Time-limit for transposition |
+ | --- | --- |
+ | 78/855/EEC | 13 October 1981 |
+ | 2006/99/EC | 1 January 2007 |
+ | 2007/63/ΕC | 31 December 2008 |
+ | 2009/109/EC | 30 June 2011 |
+ 
+ ### ANNEX II
+ 
+ **Correlation table**
+ 
+ | Directive 78/855/EEC | This Directive |
+ | --- | --- |
+ | Article 1 | Article 1 |
+ | Articles 2-4 | Articles 2-4 |
+ | Articles 5-22 | Articles 5-22 |
+ | Article 23(1) | Article 23(1), first subparagraph |
+ | Article 23(2) | Article 23(1), second subparagraph |
+ | Article 23(3) | Article 23(2) |
+ | Articles 24-29 | Articles 24-29 |
+ | Articles 30-31 | Articles 30-31 |
+ | Article 32 | — |
+ | — | Article 32 |
+ | — | Article 33 |
+ | Article 33 | Article 34 |
+ | — | Annex I |
+ | — | Annex II |
+ 
+ (1) OJ C 51, 17.2.2011, p. 36.
+ 
+ (2) Position of the European Parliament of 18 January 2011 (not yet published in the Official Journal) and decision of the Council of 21 March 2011.
+ 
+ (3) OJ L 295, 20.10.1978, p. 36.
+ 
+ (4) See Annex I, Part A.
+ (5) OJ 2, 15.1.1962, p. 36/62.
− ### art_33
+ (6) OJ L 65, 14.3.1968, p. 8.
+ 
+ (7) OJ L 26, 31.1.1977, p. 1.
− Article 33
+ (8) OJ L 222, 14.8.1978, p. 11.
… diff truncated at 500 changed lines …