Directive 2011/35/EU of the European Parliament and of the Council (repealed)Show full title

Directive 2011/35/EU of the European Parliament and of the Council

of 5 April 2011

concerning mergers of public limited liability companies

(codification)

(Text with EEA relevance) (repealed)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 50(2)(g) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee(1),

Acting in accordance with the ordinary legislative procedure(2),

Whereas:

(1) Third Council Directive 78/855/EEC of 9 October 1978 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies(3) has been substantially amended several times(4). In the interests of clarity and rationality the said Directive should be codified.

(2) The coordination provided for in Article 50(2)(g) of the Treaty and in the general programme for the abolition of restrictions on freedom of establishment(5) was begun with 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(6).

(3) That coordination was continued, as regards the formation of public limited liability companies and the maintenance and alteration of their capital, with 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(7), and, as regards the annual accounts of certain types of companies, with Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies(8).

(4) The protection of the interests of members and third parties requires that the laws of the Member States relating to mergers of public limited liability companies be coordinated and that provision for mergers should be made in the laws of all the Member States.

(5) In the context of such coordination it is particularly important that the shareholders of merging companies be kept adequately informed in as objective a manner as possible and that their rights be suitably protected. However, there is no reason to require an examination of the draft terms of a merger by an independent expert for the shareholders if all the shareholders agree that it may be dispensed with.

(6) The protection of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses is at present regulated by Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses(9).

(7) Creditors, including debenture holders, and persons having other claims on the merging companies should be protected so that the merger does not adversely affect their interests.

(8) The disclosure requirements of 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(10) should be extended to include mergers so that third parties are kept adequately informed.

(9) The safeguards afforded to members and third parties in connection with mergers should be extended to cover certain legal practices which in important respects are similar to merger, so that the obligation to provide such protection cannot be evaded.

(10) To ensure certainty in the law as regards relations between the companies concerned, between them and third parties, and between the members, it is necessary to limit the cases in which nullity can arise by providing that defects be remedied wherever that is possible and by restricting the period within which nullification proceedings may be commenced.

(11) This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives set out in Annex I, Part B,

HAVE ADOPTED THIS DIRECTIVE:

(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.

(6)

OJ L 65, 14.3.1968, p. 8.

(7)

OJ L 26, 31.1.1977, p. 1.

(8)

OJ L 222, 14.8.1978, p. 11.

(9)

OJ L 82, 22.3.2001, p. 16.

(10)

OJ L 258, 1.10.2009, p. 11.