Explanatory Memorandum to COM(2010)388 - 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 54 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 - Main contents
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| dossier | COM(2010)388 - Coordination of safeguards which, for the protection of the interests of members and others, are required by Member States ... |
|---|---|
| source | COM(2010)388  |
| date | 26-08-2010 |
2. In its opinion of 16 October 2008 the Consultative Working Party of the legal services set up under the Interinstitutional Agreement of 20 December 1994 on an accelerated working method for official codification of legislative texts i stated that the proposal referred to in point 1 does indeed confine itself to straightforward codification, without any substantive changes to the acts covered by it.
3. Having regard to the amendments adopted i in respect of the proposal referred to in point 1 and in view of the work already carried out in the course of the legislative procedure, the Commission has decided to present – in accordance with Article 293 i of the TFEU – an amended proposal for codification of the Directive in question.
This amended proposal also takes account of the purely formal or editorial changes proposed by the Consultative Working Party of the legal services, where these are considered justified i.
4. The changes made in this amended proposal, compared with the proposal referred to in point 1, are the following:
In recitals 2 and 11, the references to ' Article 44(2)(g) of the Treaty ' are replaced by references to ' Article 50(2)(g) of the Treaty '.
In recital 4, the word ' Community ' is replaced by ' Union '.
In recital 5, the words ' Community provisions ' are replaced by the words ' Union provisions '.
In recital 8, the reference to ' Directive 68/151/EEC ' is replaced by a reference to ' 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 '.
In recital 9, the words 'another company such as referred to in the preceding recital' are replaced by 'another company such as referred to in recital 7' .
In recital 10, the final wording ' the possibility that the objectives of this Directive may be endangered ' is replaced by ' the possibility that the attainment of the objectives of this Directive may be endangered '.
In Article 1 i and in point (a) of the third subparagraph of Article 17 i, the reference to ' Article 4 of Directive 68/151/EEC ' is replaced by a reference to ' Article 5 of Directive 2009/101/EC '.
In Article 2(d), the reference to ' Article 2(1)(e) of Directive 68/151/EEC ' is replaced by a reference to ' Article 2(e) of Directive 2009/101/EC '.
In the introductory wording of Article 3, in Article 10 i, in the second subparagraph of Article 12 i and i, in the third subparagraph of Article 25 i, in the first and second subparagraphs of Article 28 i, in Article 29 i, in Article 33 i and i, in the first paragraph of Article 34, in Article 39(a), in Article 40(1)(e) and in Article 43(h), the reference to ' Directive 68/151/EEC ' is replaced by a reference to ' Directive 2009/101/EC '.
In Article 6 i, the word “ Community ” is replaced by “ Union ”.
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 a report by one or more independent experts 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 report by one oe more independent experts on the draft terms of merger or division may be drawn up by the same expert or experts .".
In Article 11 i, second subparagraph, the word ' fourth ' is replaced by the word ' fifth '.
In Article 28 i, i and i, the initial wording ' Member States need not apply paragraph 1 ' is replaced by ' Member States need not apply the first and second subparagraphs of paragraph 1 '.
In Article 31, paragraph 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 a report by one or more independent experts 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 report by one or more independent experts on the draft terms of merger or division may be drawn up by the same expert or experts.".
In Article 39(b), in Article 40(1)(d), in Article 41 i and in Article 43(d) and (g), the reference to ' Article 17 i and i ' is replaced by a reference to ' Article 17 i to i '.
In Article 40(1)(a), the words ' subscription of ' are deleted.
In Article 45 i, the reference to ' Article 9 i ' is replaced by a reference to ' the first paragraph of Article 9 '.
In Article 47, paragraph 2 is replaced by the following:
"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.".
The wording of Article 49 is replaced by the following:
" This Directive shall enter into force on 1 July 2011 .".
In Annex I, the indent relating to Finland is replaced by the following:
" Finland: julkinen osakeyhtiö/publikt aktiebolag; ".
In Annex II, Part A, the following entry is added:
"Directive 2009/109/EC of the European Parliament and of the Council (OJ L 259, 2.10.2009, p. 14) / Article 1 only"
In Annex II, Part B, the date of 1 January 1994 appearing next to the entry ' 92/101/EEC ' is replaced by 31 December 1993.
In Annex II, Part B, the following entry is added:
"2009/109/EC / 30 June 2011".
5. To facilitate reading and examination, the full text of the amended proposal for codification is attached hereto.
ê 77/91/EEC (adapted)