Considerations on 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 ... |
|---|---|
| document | COM(2010)388  |
| date | August 26, 2010 |
1. Second Council Directive 77/91/EEC of 13 December 1976 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, 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[6] has been substantially amended several times[7]. In the interests of clarity and rationality the said Directive should be codified.
ê 77/91/EEC recital 1 (adapted)
2. The coordination provided for in Article Ö 50(2) Õ (g) Ö of the Treaty Õ and in the General Programme for the abolition of restrictions on freedom of establishment, which was begun by 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 safeguards equivalent throughout the Community[8], is especially important in relation to public limited liability companies, because their activities predominate in the economy of the Member States and frequently extend beyond their national boundaries.
ê 77/91/EEC recital 2
3. In order to ensure minimum equivalent protection for both shareholders and creditors of public limited liability companies, the coordination of national provisions relating to their formation and to the maintenance, increase or reduction of their capital is particularly important.
ê 77/91/EEC recital 3 (adapted)
4. In the Ö Union Õ , the statutes or instrument of incorporation of a public limited liability company must make it possible for any interested person to acquaint himself with the basic particulars of the company, including the exact composition of its capital.
ê 77/91/EEC Recital 4 (adapted)
5. Ö Union Õ provisions Ö are necessary Õ for maintaining the capital, which constitutes the creditors' security, in particular by prohibiting any reduction thereof by distribution to shareholders where the latter are not entitled to it and by imposing limits on the company's right to acquire its own shares.
ê 92/101/EEC recital 2
6. The restrictions on a company's acquisition of its own shares apply not only to acquisitions made by a company itself but also to those made by any person acting in his own name but on the company's behalf.
ê 92/101/EEC recital 3
7. In order to prevent a public limited liability company from using another company in which it holds a majority of the voting rights or on which it can exercise a dominant influence to make such acquisitions without complying with the restrictions imposed in that respect, the arrangements governing a company's acquisition of its own shares should be extended to cover the most important and most frequent cases of the acquisition of shares by such other companies. Those arrangements should be extended to cover subscription for shares in the public limited liability company.
ê 92/101/EEC recital 4 (adapted)
8. In order to prevent the circumvention of Ö this Directive, Õ companies governed by 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[9] and companies governed by the laws of third countries and having comparable legal forms should also be covered Ö by the arrangements referred to in recital 7 Õ.
ê 92/101/EEC recital 5
9. Where the relationship between a public limited liability company and another company such as referred to in recital 7 is only indirect, it would appear to be justified to relax the provisions applicable when that relationship is direct by providing for the suspension of voting rights as a minimum measure for the purpose of achieving the aims of this Directive.
ê 92/101/EEC recital 7 (adapted)
10. Furthermore, it is justifiable to exempt cases in which the specific nature of a professional activity rules out the possibility that Ö the attainment of Õ the objectives of this Directive may be endangered.
ê 77/91/EEC recital 5 (adapted)
11. It is necessary, having regard to the objectives of Article Ö 50(2) Õ (g) Ö of the Treaty Õ, that the Member States' laws relating to the increase or reduction of capital ensure that the principles of equal treatment of shareholders in the same position and of protection of creditors whose claims exist prior to the decision on reduction are observed and harmonised.
ê 2006/68/EC recital 6
12. In order to enhance standardised creditor protection in all Member States, creditors should be able to resort, under certain conditions, to judicial or administrative proceedings where their claims are at stake as a consequence of a reduction in the capital of a public limited liability company.
ê 2006/68/EC recital 7
13. In order to ensure that market abuse is prevented, Member States should take into account, for the purpose of implementation of this Directive, the provisions of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse)[10], Commission Regulation (EC) No 2273/2003 of 22 December 2003 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards exemptions for buy-back programmes and stabilisation of financial instruments[11] and Commission Directive 2004/72/EC of 29 April 2004 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards accepted market practices, the definition of inside information in relation to derivatives on commodities, the drawing up of lists of insiders, the notification of managers' transactions and the notification of suspicious transactions[12].
ê
14. This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the Directives set out in Annex II, Part B,
ê 77/91/EEC (adapted)