European Corporate Law

Name: European Corporate Law | Article-by-Article Commentary
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Article-by-Article Commentary

Peter Kindler Jan Lieder(Herausgeber*in)

Nomos (Verlag)

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Erschienen am 14. Dezember 2021

1055 Seiten

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Beschreibung

Die europäischen Richtlinien zum Gesellschaftsrecht haben zum Ziel, die Wettbewerbsfähigkeit von Unternehmen innerhalb der EU vergleichbar auszugestalten, Aktionäre sowie andere Wettbewerbersteilnehmende effektiv zu schützen und den Binnen- und Außenhandel zu erleichtern und abzusichern. Der neue Kommentar bietet eine fundierte Expertenanalyse zu allen rechtlichen Fragen rund um das EU-Gesellschaftsrecht.
Praxisnah dargestellt, untersuchen die Autorinnen und Autoren Artikel für Artikel die folgenden europäischen Richtlinien:
Richtlinie über bestimmte Aspekte des Gesellschaftsrechts (2017/1132/EU), einschließlich
- Publizität (frühere Publizitätsrichtlinie 2009/101/EG)
- Zweigniederlassungen (frühere Zweigniederlassungsrichtlinie 89/666/EWG)
- Kapitalschutz und Kapitaländerung (frühere Kapitalrichtlinie 2012/30/EU)
- Verschmelzung national und grenzüberschreitend (frühere Fusionsrichtlinie 2011/35/EU und frühere Verschmelzungs-Richtlinie 2005/56/EG)
- Spaltung national und grenzüberschreitend (frühere Spaltungsrichtlinie 82/891/EWG)
- Formwechsel grenzüberschreitend
Bilanzrichtlinie (2013/34/EU) und Abschlussprüferrichtlinie (2006/43/EG)
Richtlinie über Einzelunternehmen mit beschränkter Haftung (2009/102/EG)
Richtlinie über Übernahmeangebote (2004/25/EG)
Aktionärsrechterichtlinie (2007/36/EG)
Damit bietet der Kommentar für Gesellschaftsrechtler, Unternehmensjuristen, Anwaltskanzleien und alle grenzüberschreitend agierenden Unternehmen eine unentbehrliche Hilfe.
Autorinnen und Autoren:
Dr. Klaus Bader, NortonRoseFulbright, München | Dr. Martin Bialluch, Max-Planck Institut für ausländisches und internationales Privatrecht Hamburg | Dr. Andreas Börner, NortonRoseFulbright, München?| Dr. Jan P. Brosius, LL.M. (King's College London), VOIGT WUNSCH HOLLER, Hamburg | Larissa Furtwengler, MJC Rechtsanwälte, Mannheim | David Günther, Leuphana Law School Lüneburg | Dr. Simon Jobst, Maître en droit, Universität München | Prof. Dr. Dr. h.c. Peter Kindler, Universität München | Karsten Kühnle, NortonRoseFulbright, Frankfurt | Dr. Michael Lamsa, Taylor Wessing, Frankfurt/Main | Prof. Dr. Dieter Leuering, Flick Gocke Schaumburg, Bonn | Prof. Dr. Jan Lieder, LL.M. (Harvard), Universität Freiburg | Dr. Silja Maul, MJC Rechtsamwälte, Mannheim | Prof. Dr. Hanno Merkt, LL.M. (Chicago), Universität Freiburg | Dr. Tobias De Raet, lindenpartners, Berlin | Prof. Dr. Alexander Schall, M.Jur. (Oxon), Leuphana Law School Lüneburg.
Das Werk ist Teil der IEBL-Reihe: Kommentare zum Internationalen und Europäischen Wirtschaftsrecht: https://www.iebl.nomos.de

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Inhalt

Cover
Introduction
A. The Spirit of European Corporate LawSection A.I. and II. of this Introduction is based on Roth and Kindler, The Spirit of Corporate Law: Core Principles of Corporate Law in Continental Europe (2013), 1 et seq.
I. Protective Standards vs. 'Shareholder Value'
1. European corporate law at a crossroads
2. The purpose of corporate law
II. Leading Legal Systems in Continental Europe and their Influence on EU Company Law
III. European Company Law and its Neighbouring Areas
1. Four key issues of protective standards in EU and domestic company law
a) Capital structure
b) Organisational structure (including the involvement of employees)
(i) Supervision of the management
(ii) Employee participation at the board level
c) Protection of minority interests
d) External control
2. Capital markets law
3. Insolvency law
4. Company conflicts of laws ('international company law') and fundamental freedoms
5. Framework for the screening of investments from non-EU countries
B. Scope of Application and Current Legal Policy of European Company Law
I. Companies Subject to EU Harmonisation
1. Limited liability companies
2. The focus on the public limited liability company
3. Companies from third Countries
'Brexit'
II. The Material Scope of EU Company Law Directives
1. Types of companies involved
2. Formation and current business
a) Validity, representation, disclosure, limited liability, capital and capital alterations
b) Harmonised Accounting Law (Financial Statements and Approved Auditors)
3. Establishment and structural changes
a) Branches and cross-border conversions
b) Mergers and divisions
c) Takeover bids
d) Groups of companies
(i) Overview
(ii) Financial reporting
(iii) Transparency requirements in capital markets
(iv) The preliminary draft of a Group Law Directive
(v) Conclusion
III. Current Legal Policy and Recent Legislation
1. Diversity in the laws governing small corporations and the state of EU legal policy in the area of corporate law
a) Starting point
b) Low degree of 'Europeanization' of the small corporation
c) State of EU legal policy
2. The 2003 EU Action Plan on the modernisation of company law and improvement of corporate governance
a) Overview
b) Shareholders' Right to choose between monistic and dualistic management structure
c) Capital maintenance and capital alterations
3. Reform initiative 2011/12
a) The EU Green Paper 'European corporate governance framework'
b) 'Reflection Group' and Action Plan 2012
4. Supranational entities created (or planned) by the EU
a) European Economic Interest Grouping (EEIG)
b) European Company (Societas Europaea - SE)
c) European Cooperative Society (Societas Cooperativa Europaea - SCE)
d) European private company (SPE)
e) Single-membered Company (SUP)
C. The Institutional Framework of European Company Law
I. The Interaction between EU and Member States' Law
1. The EU Level
a) Primary Law of the European Union (Treaty Law)
b) Secondary Law of the European Union (Legislation)
2. The Member States' level
II. Impact of the TFEU in the Field of EU Company Law
1. EU conform interpretation of national law
primacy of application of EU law
2. The Legal Basis for (secondary) European company law
a) Principle of Conferral
b) The Influence of Majority Requirements
3. The interpretation of European (secondary) company law
III. EU Law Monitoring National Law
1. EU law rendering national law inapplicable via its fundamental freedoms
a) Freedom of establishment and of capital movements as the fundamental freedoms governing company law
b) Conditions of application and effects
2. EU law rendering national law inapplicable via directives
a) Full harmonisation vs. minimum harmonisation
b) Direct effect
DIRECTIVE (EU) 2017/1132 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
TITLE I GENERAL PROVISIONS AND THE ESTABLISHMENT AND FUNCTIONING OF LIMITED LIABILITY COMPANIES GENERAL PROVISIONS
CHAPTER I Subject matter
Article 1 Subject matter
I. General Features
1. Overview
2. Goal of the codification
II. The single subject matters addressed by CD (EU) 2017/1132
1. Formation of public limited liability companies
maintenance and alteration of their capital
2. Disclosure, validity of obligations and the nullity of companies limited by shares
3. Online formation of companies and registration of branches
online filing of documents and information
4. Disclosure requirements in respect of branches
5. Internal mergers of public limited liability companies
6. Cross-border conversions, cross-border mergers and cross-border divisions of limited liability companies
7. Internal division of public limited liability companies
CHAPTER II Incorporation and nulity of the company and validity of its obligations
Section 1 Incorporation of the public liability company
Article 2 Scope
I. Overview
II. Historical Background
III. Scope of Company Types
IV. Name of the Company
V. Exceptions
Article 3 Compulsory information to be provided in the statutes or instruments of incorporation
I. Overview
II. Purpose
III. Historical Background
IV. Scope
1. The statutes or the instrument of incorporation of the company
2. Information to be provided
a) The type and name of the company
b) The objects of the company
c) The amount of the subscribed capital
d) The amount of the authorised capital
e) Information regarding the company's bodies and its members
f) The duration of the company, except where this is indefinite
V. Legal Consequences
VI. Minimum Provision
VII. Direct application
Article 4 Compulsory information to be provided in the statutes or instruments of incorporation or separate documents
I. Overview
II. Purpose
III. Historical Background
IV. Material Scope
1. Separate document
2. Information to be provided
V. Legal Consequences
VI. Minimum Provision
VII. Direct Application
Article 5 Authorisation for commencing business
I. Historical Background
II. Purpose
III. Scope
IV. Exception
V. Direct application
Article 6 Multiple-member companies
I. Overview
II. Historical Background
III. Purpose
IV. Material scope
V. Minimum Provision
VI. Direct Effect
Section 2 Nullity of the limited liability company and validity of its obligations
Foreword to Arts 7-12
I. Legislative History and Aims of the Directive
1. First Directive 68/151/EEC
2. Amending Directive 2003/58/EC - Electronic Register
3. Codification 2009/101/EC
4. Amending Directive 2012/17/EU - Connection of the European registers
5. Consolidation Directive 2017/1132/EU - Unification of company directives
6. Amendment Directive 2019/1151/EU - Company Law Package
II. The Immersion of the Disclosure Directive within the Company Law Directive
1. Scope
2. Validity of obligations entered into by a company
3. Nullity of the company
4. Disclosure
5. Online formation
Article 7 General provisions and joint and several liability
I. Overview Article 7 para. 1
II. Scope of the Addressed Companies
III. Overview Article 7 para. 2
IV. Underlying National Law
V. Specification of the Pre-Incorporation Period
VI. Examples of Member State Laws Regulating the Pre-Incorporation Period
Article 8 Effects of disclosure with respect to third parties
I. Overview
II. Determination of Irregularities
III. Lex Specialis
Article 9 Acts of the organs of a company and its representation
I. Overview
II. Organs of the Company
III. Third Party
IV. Unrestricted Power to Bind the Company
1. Restrictions via the objects (Art 9 para. 1)
2. "Unrestrictable" power to bind the company (Art 9 para. 2) - objective and subjective limits
a) Exception for abuse of power of representation
b) Conflict of interest
V. Personal Allocation of Power of Representation by the Articles (Art 9 para. 3)
Article 10 Drawing up and certification of the instrument of constitution and the company statutes in due legal form
I. Overview
II. Minimum Standard of Official Examination
Article 11 Conditions for nullity of a company
I. Overview
II. Grounds for Nullity
Article 12 Consequences of nullity
I. Overview
II. Effects of Nullity
CHAPTER III Online procedures (formation, registration and filing), disclosure and registers
Section 1 General provisions
Foreword to Arts 13-28 Foreword to Arts 13-28
Article 13 Scope
Article 13 a Definitions
Article 13 b Recognition of identification means for the purposes of online procedures
I. Overview
II. Citizen of the European Union as Applicant (para. 1)
III. Means of Identification (para. 1 to 3)
IV. Personal Presence as Exception (para. 4)
Article 13 c General provisions on online procedures
Article 13 d Fees for online procedures
Article 13 e Payments
Article 13 f Information requirements
Section 1 A Online formation, online filing and disclosure
Article 13 g Online formation of companies
I. Overview
II. Addressed Companies
III. Necessary Regulation Points for the Online Formation
IV. Further Simplification of the Online Formation
V. Physical Presence in Individual Cases
Article 13 h Templates for online formation of companies
I. Overview
II. Use of Templates (para. 1)
III. Relationship with Art 10 (para. 2)
IV. Language of the Template (para. 3)
Article 13 i Disqualified directors
Article 13 j Online filing of company documents and information
Article 14 Documents and particulars to be disclosed by companies
I. Overview
II. Important Items
1. Lit a) instrument of constitution, including the statutes lit b) amendments lit c) consolidated form
2. Lit d) members of the body
3. Lit e) capital
4. Lit f) accounting documents
5. Lit g) change of the company seat
6. Lit h-k) winding up, nullity, termination of the liquidation
Article 15 Changes in documents and particulars
Article 16 Disclosure in the register
I. Overview
II. European Unique Identifier (EUID)
III. Publication (Art 16 para. 3 and 4)
IV. Effects of disclosure (Art 16 para. 5 and 6)
Article 16 a Access to disclosed information
Article 17 Up-to-date information on national law with regard to the rights of third parties
Article 18 Availability of electronic copies of documents and particulars
Article 19 Fees chargeable for documents and information
Article 20 Information on the opening and termination of winding-up or insolvency proceedings and on striking-off of a company from the register
Article 21 Language of disclosure and translation of documents and particulars to be disclosed
Article 22 System of interconnection of registers
Article 23 Development and operation of the platform
Article 24 Implementing acts
Article 25 Financing
Article 26 Information on letters and order forms
I. Overview
II. Particulars in Letters, Order Forms and on the Company Website
Article 27 Persons carrying out disclosure formalities
Article 28 Penalties
Section 2 Registration and disclosure rules applicable to branches of companies from other Member States
Foreword to Arts 28a-42
I. General Features
1. Goal of Arts 28a-42 Company Law Directive
exhaustive nature
2. Legislative history
3. Scope of application (Arts 29, 36 and 42)
II. The Disclosure Requirements in a Nutshell
1. Means and effects of disclosure (Arts 29 and 35, 36 and 39)
2. Items to be disclosed
a) Branches of companies from another member state
b) Branches of companies from third countries
Article 28 a Online registration of branches
I. General Features
1. Overview
2. Scope of application
II. Online Registration Procedure (Article 28a(1)-(5))
1. Elimination of the need of physical presence of the applicant
2. Exception: requirement of physical presence
3. Optional involvement of a notary (Article 28a(4)(d))
4. Use of previously submitted documents and information
5. Verification of information via the BRIS (Article 28a(5) subpara 1)
6. Licenses and authorisations (Article 28a(5) subpara 2)
III. Duration of the Registration Procedure (Article 28a(6))
IV. Exchange of Information between National Registers (Article 28a(7))
1. Duty to inform (Article 28a(7) sentence 1)
2. Duty to acknowledge receipt and record (Article 28a(7) sentence 2)
V. Disqualified Directors: Application of Article 13 i?
Article 28 b Online filing of documents and information for branches
I. General Features
1. Overview
2. Goal
II. Online Filing and Filing by other Means
1. Elimination of the need of physical presence of the applicant (Article 28b(1) sentence 1)
2. Exception: requirement of physical presence (Article 28b(1) sentence 2)
3. Application of the rules regarding the online registration of branches (Art 28a(2)-(5))
4. (Partial) duty to file documents online (Article 28b(3))
Article 28 c Closure of branches
I. General Features
1. Systematic position and background
2. Goal
II. Duty to Inform (Article 28 c Sentence 1)
III. Duty to Acknowledge Receipt and Record (Article 28 c Sentence 2)
Article 29 Disclosure of documents and particulars relating to a branch
I. General Features
1. Overview
2. Background
II. General Duty to Disclose (Article 29(1))
1. Items to disclose
2. Branch opened in a Member State
3. Types of companies addressed and lex societatis
4. Disclosure duties and penalties in the event of failure to disclose
III. Diverging Disclosure Requirements (Article 29(2))
IV. The Publication of Documents and Particulars within the System of Interconnection of Registers (Article 29(3) and (4))
Article 30 Documents and particulars to be disclosed
I. General Features
1. Overview
2. Background
II. The Single Items of Disclosure
1. Compulsory items of disclosure (Article 30(1))
a) Address of the branch
b) Activities of the branch
c) Register and registration number of the company
d) Name and legal form of the company
name of the branch
e) Persons authorised to represent the company
f) Winding-up and insolvency of the company
g) Accounting documents
h) Closure of the branch
2. Optional items of disclosure (Article 30(2))
a) The Signature of any Person Having the Power to Represent the Company
b) Instruments of constitution
memorandum and articles of association
c) Attestation from the register relating to the existence of the company
d) Securities on the company's property
III. Exhaustive nature of the lists of items of disclosure?
Article 30 a Changes to documents and information of the company
I. General Features
1. Overview
goals of the provision
2. Background
II. The Contents and the Mechanisms of the Ex Officio Notification
1. The single items of the ex officio notification (Article 30 a subpara 1)
a) The company's name (Art 30 a subpara 1 (a))
b) The company's registered office (Art 30 a subpara 1 (b))
c) The company's registration number in the register (Art 30 a subpara 1 (c))
d) The company's legal form (Art 30 a subpara 1 (d))
e) Documents and information related to the representatives of the company and to accounting documents Art 30 a subpara 1 (e)
2. The ex officio notification to the register of the branch and the update of the branch register: procedural steps (Article 30 a subpara 1 and 2)
Article 31 Limits on the compulsory disclosure of accounting documents
I. General Features
1. Overview
2. Background
II. Limits on the Compulsory Disclosure of Accounting Documents (Article 31 Subpara 1)
III. Member States' Option to Not Provide for Disclosure of Accounting Documents (Article 31 Subpara 2)
Article 32 Language of disclosure and translation of documents to be disclosed
I. General Features
1. Overview
2. Background
II. The Member States' Option as regards the Language of the Instruments of Constitution and the Accounting Documents
Article 33 Disclosure in cases of multiple branches in a Member State
I. General Features
1. Overview
2. Background
II. The Companies' Choice in favour of One of Several Branch Registers (Article 33 Subpara 1)
III. Compulsory Disclosure by the Other Branches (Article 33 Subpara 2)
Article 34 Information on the opening and termination of winding-up or insolvency proceedings and on striking-off of the company from the register
I. General Features
1. Overview
2. Background
II. Application of Article 20 by Analogy (Article 34(1))
III. Striking-off of the Branch from the Register (Article 34(2) and (3))
1. Update of the register of the branch
2. Companies that have been struck off the register but which have a 'legal successor'
Article 35 Information on letters and order forms
I. General Features
1. Overview
2. Background
II. The Means of Disclosure
III. Items to Disclose
1. The information prescribed by Art 26
2. Register of the branch and number
Section 3 Disclosure rules applicable to branches of companies from third countries
Article 36 Disclosure of documents and particulars relating to a branch
I. General Features
1. Overview
2. Background
II. General Duty to Disclose (Article 36(1))
1. Items to disclose
2. Branch opened in a Member State
3. Types of companies addressed and lex societatis
4. Disclosure duties and penalties in the event of failure to disclose
III. Diverging Disclosure Requirements (Article 36(2))
Article 37 Compulsory documents and particulars to be disclosed
I. General Features
1. Overview
2. Background
II. Disclosure
1. Compulsory items of disclosure
a) Address of the branch
b) Activities of the branch
c) Law of the State by which the company is governed
d) Register and registration number of the company
e) Instruments of constitution
memorandum and articles of association
f) Legal form of the company and other items
g) Name of the company
name of the branch
h) Persons authorised to represent the company
i) Winding-up and insolvency of the company
j) Accounting documents
k) Closure of the branch
2. Directors' duties and qualification
Article 38 Limits of compulsory disclosure of accounting documents
I. General Features
1. Overview
2. Background
II. Compulsory Disclosure of Accounting Documents pursuant to the Law of the State which Governs the Company (Article 38 Para. 1 Sentence 1)
III. Member States' Option to Provide for Accounting Documents relating to the Activities of the Branch (Article 38 Para. 1 Sentence 2)
IV. Language of Disclosure and Translation of Documents to Be Disclosed (Article 38 Para. 2 Read with Art 32)
V. Multiple Branches (Article 38 Para. 2 Read with Art 33)
Article 39 Information on letters and order forms
I. General Features
1. Overview
2. Background
II. The Means of Disclosure
III. Items to Disclose
1. Register of the branch and number (Article 39 sentence 1)
2. Register of the company and registration number (Article 39 sentence 2)
Section 4 Application and implementing arrangements
Article 40 Penalties
I. General Features
1. Overview
2. Background
II. Relevant Infringements
1. Failure to disclose
2. Omission of particulars from letters and order forms
III. Appropriate Character of Penalties
1. Fines or penalty payments
2. Personal liability of the persons who acted for the company
Article 41 Persons carrying out disclosure formalities
I. General Features
1. Overview
2. Background
II. Categories of Persons Able to Carry Out Disclosure Formalities
1. TEU requirements
2. The single categories of persons
Article 42 Exemptions to provisions on disclosure of accounting documents for branches
I. General Features
1. Overview
2. Background
II. Disclosure of Accounting Documents of Credit Institutions and Financial Institutions (Article 42(1))
III. Disclosure of Accounting Documents of Insurance Companies (Article 42(2))
Article 43 Contact Committee
CHAPTER IV Capital maintenance and alteration
Foreword to Arts 44-85
I. Historical Background
II. Amendments
III. Ratio legis
IV. Scope
1. Public limited liability companies
2. Material scope and structure
3. Legal relationship between shareholders and company
4. Exemption of liquidation measures
5. Exemption of groups of companies
6. Primacy of issuer liability
V. Interpretation of the Provisions Derived from the Second Directive
VI. Minimum Protection and Scope for Divergent National Legislation
VII. Incomprehensive Regime / effet utile
VIII. Direct Applicability / Direct Effect
Section 1 Capital requirements
Article 44 General provisions
I. Overview
II. Historical Background
III. Scope of Company Types
IV. Exceptions
Article 45 Minimum capital
I. Overview
II. Historical Background
III. Minimum Capital
IV. Examination and Amendment of Minimum Capital
V. Amount Provided for in the Member States
Article 46 Assets
I. Historical Background
II. Limitation to Assets Capable of Economic Assessment
III. Exclusion of Undertaking to Perform Work or Supply Services
Article 47 Issuing price of shares
I. Historical Background
II. Material Scope
1. No issue at a discount
2. The concept of share capital
III. Exception
IV. Direct Application
V. Reform Efforts
Article 48 Paying up of shares issued for a consideration
I. Overview
II. Historical Background
III. Distinction Between Contribution in Cash and Contribution in Kind
IV. Time of Payment or Provision
V. Premium
VI. Exception
VII. Minimum Protection
VIII. Direct Application
Section 2 Safeguards as regards statutory capital
Article 49 Experts' report on consideration other than in cash
I. Overview
II. Historical Background
III. Purpose
IV. Material Scope
V. Publication of the Report
VI. Legally Binding Effect and Judicial Review
VII. Exceptions
1. Intragroup incorporations
2. Formation by way of merger or division
3. Article 84 (3)
VIII. Minimum Protection and Scope for National Legislation
IX. Direct Application
Article 50 Derogation from the requirement for an experts' report
I. Overview
II. Historical Background and Rationale
III. Transferable Securities and Money-Market Instruments
IV. Assets Subject to Recent Valuation
V. Value Derived from Statutory Accounts
VI. Direct Application
Article 51 Consideration other than in cash without an experts' report
I. Overview
II. Historical Background
III. Purpose
IV. Exception Pursuant to Article 50
V. Capital Increase and Authorised Capital
VI. Safeguards
VII. Minimum Provision
VIII. Direct Application
Article 52 Substantial acquisitions after incorporation or authorisation to commence business
I. Overview
II. Historical Background
III. Purpose
IV. Material Scope
V. Application of Articles 50 and 51
VI. Exceptions
VII. Minimum Protection and Scope for National Legislation
VIII. General Principles on Circumvention of the Law
IX. Minimum Provision
X. Direct Application
Article 53 Shareholders' obligation to pay up contributions
I. Historical Background
II. Purpose
III. No Release from the Obligation to Pay Up Contributions
IV. Direct Application
Article 54 Safeguards in the event of conversion
I. Historical Background
II. Conversion of Another Type of Company
III. Minimum Provision
IV. Direct Application
Article 55 Modification of the statutes or of the instrument of incorporation
I. Historical Background
II. No Modification of the Statutes or of the Instrument of Incorporation
Section 3 Rules on distribution
Article 56 General rules on distribution
I. Overview
II. Historical Background
III. Purpose
IV. Prohibition of Unlawful Distributions
V. Deduction of Uncalled Amounts of Subscribed Capital
VI. Maximum Distribution
VII. Interim Dividends
VIII. Increases in Subscribed Capital by Capitalisation of Reserves
IX. Derogation Rules for Investment Companies with Fixed Capital
X. Derogation for Groups
XI. Issuer Liability
XII. Minimum Protection and Scope for National Legislation
XIII. Direct Application
Article 57 Recovery of distributions unlawfully made
I. Overview
II. Historical Background
III. Scope
IV. Knowledge or Negligent Unawareness of Shareholder
V. Burden of Proof
VI. Limitation Period
VII. Minimum Provision and Scope for National Legislature
VIII. Direct Application
Article 58 Serious loss of the subscribed capital
I. Historical Background
II. Purpose
III. Serious Loss of the Subscribed Capital
IV. Convening of the General Meeting
V. Duties of the General Meeting
VI. Exceptions
VII. Breach
VIII. Minimum Protection and Scope
IX. Direct Application
Section 4 Rules on companies' aquisitions of their own shares
Article 59 No subscription of own shares
I. Overview
II. Historical Background
III. Purpose
IV. Prohibition of the Subscription of Own Shares
V. Liability of Founders or Members of the Administrative or Management Body
VI. Direct Application
Article 60 Acquisition of own shares Jan P. Brosius
I. Overview
II. Historical Background
III. Purpose
IV. Scope
V. Equal Treatment and Market Abuse
VI. Mandatory Conditions
1. Optional conditions
2. Exceptions
VII. Minimum Provision and Scope of Discretion
VIII. Direct Application
Article 61 Derogation from rules on acquisition of own shares Jan P. Brosius
I. Overview
II. Historical Background
III. Purpose
IV. Exceptions Provided for under Article 61 (1)
V. Period of disposal and cancellation
Article 62 Consequences of illegal acquisition of own shares Jan P. Brosius
I. Historical Background
II. Purpose
III. Scope
IV. Minimum Provision
V. Direct Application
Article 63 Holding of own shares and annual report in case of acquisition of own shares Jan P. Brosius
I. Overview
II. Historical Background
III. Purpose
IV. Scope
V. Unlawfully Acquired Shares
VI. Minimum Provision
VII. Direct Application
Article 64 Financial assistance by a company for acquisition of its shares by a third party Jan P. Brosius
I. Overview
II. Historical Background
III. Purpose
IV. Material Scope
1. The prohibition of financial assistance
a) Advance funds
b) Make loans
c) Provide security
d) Other means of financial assistance
e) Neutral and advantageous transactions
f) Direct or indirectly
g) With a view to the acquisition of its own shares
2. Relation to other provisions
3. Permission to grant financial assistance
a) Responsibility of the administrative or management body
b) Fair market conditions
c) Credit standing of third party
d) Written report by the administrative or management body
e) Prior approval of general meeting
f) Reserve
g) No reduction of net assets below Article 17 (1) and (2)
h) Acquisition of own shares at a fair price
i) Exceptions
V. Contesting the General Meeting's Decision
VI. Minimum Provision
VII. Direct Application
Article 65 Additional safeguards in case of related party transactions Jan P. Brosius
I. Overview
II. Historical Background
III. Purpose
IV. Scope
V. Minimum Provision
VI. Direct Application
Article 66 Acceptance of the company's own shares as security Jan P. Brosius
I. Overview
II. Historical Background
III. Purpose
IV. Scope
V. Exceptions
VI. Minimum Provision
VII. Direct Application
Article 67 Subscription, acquisition or holding of shares by a company in which the public limited liability company holds a majority of the voting rights or on which it can exercise a dominant influence Jan P. BrosiusSubscription, acquisition or holding of shares
I. Overview
II. History
III. Purpose
IV. Scope
V. Exemptions
VI. Minimum Provision
VII. Direct Application
Section 5 Rules for the increase and reduction of capital
Article 68 Decision by the general meeting on the increase of capital
I. Overview
II. Historical Background
III. Purpose
IV. Scope
V. Competence of General Meeting
VI. Several Classes of Shares
VII. Abuse of Law
VIII. Authorised Capital
IX. Convertible Securities and Option Bonds
X. Exceptions and Derogations
XI. Minimum Provision
XII. Direct Effect
Article 69 Paying up shares issued for consideration
I. Overview
II. Historical Background
III. 25 % of Their Nominal Value
IV. Derogations
V. Minimum Provision
VI. Direct Application
Article 70 Shares issued for consideration other than in cash
I. Overview
II. Historical Background
III. Assets Capable of Economic Assessment
IV. Time Limit
V. Expert's Report
VI. Merger, Division or Public Offer
Intragroup capital increase
VII. Exceptions
VIII. Minimum Provision
Article 71 Increase in capital not fully subscribed
I. Overview
II. Historical Background
III. Purpose
IV. Minimum Provision
V. Direct Effect
Article 72 Increase in capital by consideration in cash
I. Overview
II. Historical Background
III. Purpose
IV. Scope
1. The right of pre-emption
2. Publishing
3. Exercise period
V. Exceptions and Modifications
VI. Exclusion of Pre-Emptive Rights
1. Written report
2. Decision by the general meeting
3. Publishing
4. Authorisation to exclude
5. Factual justification and adequacy
VII. Indirect Subscription
VIII. Minimum Provision and Scope for National Regulations
IX. Direct Effect
Article 73 Decision by the general meeting on reduction in the subscribed capital
I. Overview
II. Historical Background
III. Purpose
IV. Scope
V. Convening Notice
VI. Quorum
VII. Publishing
VIII. Minimum Provision
Article 74 Reduction in the subscribed capital in case of several classes of shares
I. Historical Background
II. Purpose
III. Scope
IV. Derogations
Article 75 Safeguards for creditors in case of reduction in the subscribed capital
I. Overview
II. Historical Background
III. Purpose
IV. Scope
V. Application to the Appropriate Administrative or Judicial Authority
VI. Voidness or Restriction of Payment
VII. Waiver of Payment of Shareholder Contributions
VIII. Exceptions
IX. Minimum Provision
Article 76 Derogation from safeguards for creditors in case of reduction in the subscribed capital
I. Overview
II. Historical Background
III. Purpose
IV. Material Scope
V. Minimum Provision
VI. Direct Effect
Article 77 Reduction in the subscribed capital and the minimum capital
I. Historical Background
II. Purpose
III. No Capital Reduction Below Minimum Capital
IV. Exception
V. Sanctions
VI. Direct Application
Article 78 Redemption of subscribed capital without reduction
I. Overview
II. Historical Background
III. Purpose
IV. Redemption of Subscribed Capital
V. Minimum Provision
VI. Direct Application
Article 79 Reduction in the subscribed capital by compulsory withdrawal of shares
I. Overview
II. Historical Background
III. Purpose
IV. Scope
V. Derogations
VI. Minimum Provision
VII. Direct Application
Article 80 Reduction in the subscribed capital by the withdrawal of shares acquired by the company itself or on its behalf
I. Overview
II. Historical Background
III. Purpose
IV. Scope
V. Derogations
VI. Minimum Provision
VII. Direct Application
Article 81 Redemption of the subscribed capital or its reduction by withdrawal of shares in case of several classes of shares
I. Historical Background
II. Purpose
III. Material Scope
IV. Derogations
V. Minimum Provision
Article 82 Conditions for redemption of shares
I. Overview
II. Historical Background
III. Purpose
IV. Scope
V. Derogations
VI. Minimum Provision
VII. Direct Application
Article 83 Voting requirements for the decisions of the general meeting
I. Historical Background
II. Three-Fourths Majority
III. Simple Majority
IV. Minimum Provision
V. Direct Application
Section 6 Application and implementing arrangements
Article 84 Derogation from certain requirements
I. Overview
II. Historical Background
III. Purpose
IV. Derogation in Favour of Employee Participation
V. Derogation in Favour of Worker's Shares
VI. Derogation in Favour of Mechanisms laid down in Directive 2014/59/EU
VII. Derogation in Favor of Restructuring Efforts
VIII. Direct Application
Article 85 Equal treatment of all shareholders who are in the same position
I. Overview
II. Historical Background
III. Scope
IV. Direct Application
Article 86 Transitional provisions
TITLE II CONVERSIONS, MERGERS AND DIVISIONS OF LIMITED LIABILITY COMPANIES CONVERSIONS, MERGERS AND DIVISIONS
CHAPTER -I Cross-border conversions
Foreword to Arts 86a-86 t
I. Twenty Years after the ECJ's Centros Decision - The Company Law Package
II. The ECJ Shaping Freedom of Establishment: Centros, Überseering and Inspire Art
III. The ECJ's Judgements on Cross-Border Mergers and Conversions: SEVIC, Cartesio and VALE
IV. The ECJ on the Isolated Transfer of the Registered Office: Polbud
V. The 2019 Directive in Light of the ECJ's Judgements
VI. Key Drivers Behind the 2019 Directive
VII. European Model for Structural Changes
VIII. Transposition of the 2019 Directive
IX. Advance Effect of the 2019 Directive
X. Brexit
Article 86 a Scope
I. Cross-border Conversions Involving Limited Liability Companies
1. Societas Europaea - not explicitly covered by the 2019 Directive
2. Civil partnerships - not covered by the 2019 Directive
3. Relevance for EFTA States
II. 2019 Directive Not Applicable to UCITS
III. Exclusion of Companies Subject to Liquidation
IV. Exclusion of Credit Institutions and Investment Firms
V. Member State Option for Preventive Restructuring Scenarios
Article 86 b Definitions
Article 86 c Procedures and formalities
Article 86 d Draft terms of cross-border conversions
I. Introduction
1. Disclosure of certain minimum content
2. Form and language
II. Responsibility for Preparing the Draft Terms of the Cross-Border Conversion
III. Information to be Disclosed in the Draft Terms of the Cross-Border Conversion
1. Corporate information in the departure and destination Member State
2. Instrument of constitution and statutes
3. Indicative timetable
4. Treatment of holders of special rights
5. Safeguards offered to creditors
solvency statement
6. Special advantages granted to members of the administrative, management, supervisory or controlling organs of the company
7. Incentives or subsidies
8. Details of the offer of cash compensation for members
9. Repercussion of the cross-border conversion on employment
10. Employee participation in the converted company
Article 86 e Report of the administrative or management body for members and employees
I. Introduction
II. Report for Members and Employees
1. Responsibility for drawing up the report
2. Timeline
3. Permissibility to waive sections of the report and the report in its entirety
4. Implications of the cross-border conversion on the company's future business
5. Specific content to be contained in the section for members
a) Explanation of the cash compensation
b) Implications of the cross-border conversion for members
c) Rights and remedies available to members
6. Specific content to be contained in the section for employees
a) Continuity of employment relationships
b) Implications of the cross-border conversion on employment conditions
c) Potential structuring options
7. Employees' right to render an opinion on the report
Article 86 f Independent expert report
I. Introduction
II. Development of the Provision
III. Specific Content of the Independent Expert's Report
1. Adequacy of the cash compensation
2. Generally accepted valuation principles
3. Access to information
confidential information
IV. Independence of the Expert
Article 86 g Disclosure
I. Introduction
II. Disclosure of the Draft Terms of the Cross-Border Conversion and Notice to Stakeholders in the Register of the Departure Member State
III. Development of the Provision
IV. Disclosure on the Company's Website in lieu of Disclosure in the Register
Article 86 h Approval by the general meeting
I. Introduction
II. General Meeting to Approve the Draft Terms of Cross-Border Conversion
1. Discussion and debate of reports and comments received from stakeholders
2. Majority to approve the draft terms of the cross-border conversion
3. Approval by members affected of an increase of economic obligations
4. Approval conditioned on express ratification of arrangements regarding employee participation rights
III. Form and Language Requirements
IV. Reasons Ineligible to Challenge Approval of the Draft Terms of the Cross-Border Conversion
Article 86 i Protection of members
I. Introduction
1. Change of the applicable law
2. Safeguards available to members
a) Draft terms of the cross-border conversion
b) Report of the company's administrative or management body for members
c) Report of the independent expert
3. Substantive protection: Member's right to exit the company
II. Development of the Provision
III. Fundamental Safeguards for Members
1. Members' right to dispose of the shares
a) Exit right available to holders of voting shares
Member State option for holders of non-voting shares
b) Members' opposition to the draft terms of the cross-border conversion
c) Members' declaration vis-à-vis the company to exercise the right to dispose of the shares
2. Company's obligation to pay an adequate cash compensation
a) Adequate cash compensation
b) Period within which the cash compensation is to be paid
c) Share transfers to effect the disposal of the shares
d) Acquisition of own shares by the converted company
3. Members' contesting the adequacy of the cash compensation
a) Claim for additional cash compensation
b) Time limitation for the claim for additional cash compensation
c) Reformatio in peius
effect of the competent body's decision
IV. Governing Law
Article 86 j Protection of creditors
I. Introduction
1. Need for creditor protection: altering of the company's legal cloth versus a transfer of assets and liabilities
2. Discontinuity of the applicable corporate law: effects on creditors
II. Development of the Provision
1. Lack of harmonization of creditor protection under the Company Law Directive
2. Different rules on creditor protection across Member States in conversion scenarios
3. Legal economics: the 2019 Directive turning away from the concept of rebuttable presumptions (Article 86 k (3) of the Commission Proposal)
III. Adequate System of Creditor Protection
1. Minimum harmonization
Member State option to request a solvency declaration
2. Creditors eligible to protection
cut-off date for creditors' claims
3. Date of disclosure of the draft-terms of the cross-border conversion
4. Application for adequate safeguards with the appropriate authority
5. Adequacy of safeguards as an element of the scrutiny procedure?
IV. Solvency Declaration
V. Place of Jurisdiction
Article 86 k Employee information and consultation
Article 86 l Employee participation
I. Introduction
II. Development of the Provision
III. Protection of Employee Participation
1. Basic rule
2. Exceptions
a) The four-fifth rule
b) The "before-and-after" principle
c) No employee participation for employees outside the destination Member State
3. Negotiation procedure
a) Possible options of employee participation mutatis mutandis to the SE-Regulation
b) Principles and procedures mutatis mutandis to the SE-Directive
c) Certain modifications to the principles and procedures
4. Legal forms permissible to the converted company
5. Perpetuation of employee participation in the converted company
6. Communication of the outcome of negotiations
Article 86 m Pre-conversion certificate
I. Introduction
II. Development of the Provision
III. Scrutiny Procedure in the Departure Member State
1. Competent authority
2. Scope of scrutiny
a) Relevant conditions, procedures and formalities
b) Documentation to be submitted
c) Examination of documents and information submitted
IV. Timeline and potential outcomes of the scrutiny procedure
1. Refusal of the pre-conversion certificate
a) Combatting of abusive or fraudulent purposes
b) Identification of abusive of fraudulent purposes
2. Judicial review of the authority's decision
3. Issuance of the pre-conversion certificate
Article 86 n Transmission of the pre-conversion certificate
Article 86 o Scrutiny of the legality of the cross-border conversion by the destination Member State
I. Introduction
II. Development of the Provision
III. Scrutiny Procedure in the Destination Member State
1. Competent authority
2. Scope of scrutiny
a) Conditions for incorporation and registration of the company
b) Arrangements on employee participation
c) Documentation to be submitted
3. Timeline of the scrutiny procedure in the destination Member State
4. Acceptance of the pre-conversion certificate
Article 86 p Registration
Article 86 q Date on which the cross-border conversion takes effect
Article 86 r Consequences of a cross-border conversion
I. Introduction
II. Development of the Provision
III. Continuity of the Company's Legal Affairs
IV. Certain Exceptions
Article 86 s Independent experts
I. Introduction
II. Development of the Provision
III. Liability of the Expert
1. Civil liability vis-à-vis the company
2. Civil liability vis-à-vis members
3. Civil liability vis-à-vis the company's employees and creditors
IV. Independence of the Expert
Article 86 t Validity
CHAPTER I Mergers of public limited liability companies
Section 1 General provisions on mergers
Article 87 General provisions
I. Legislative History and Regulatory Context
II. Legislative Aim of the Chapter
III. Scope of Application
1. Public limited liability companies (PLCs)
2. Member States of the European Economic Area (EEA) / Brexit
3. Cooperatives incorporated as a PLC)
4. Companies subject to bankruptcy, insolvency or analogue proceedings
IV. Mergers outside the Scope of the Directive
1. Companies which are the subject to the Directive (2014/59/EU)
2. Mergers involving other legal forms of business organization
Article 88 Rules governing mergers by acquisition and mergers by formation of a new company
I. Codification of Domestic Mergers in the Member States
II. Companies governed by the Laws of the same Member State
III. Types of Mergers Covered by Chapter I
1. Merger by acquisition and merger by formation of a new company (Article 89, 90)
2. Upstream-mergers of a 100 % subsidiary into its parent company (Article 110, 111)
3. Upstream-mergers in cases of indirect shareholding (Article 112)
4. Upstream-mergers of a 90 % subsidiary into its parent company (Article 113, 114)
5. Transfer of all assets and liabilities by one or more companies to another company which is the holder of 90 % or more of their shares (Article 115)
6. Other operations treated as mergers under this Chapter (Articles 116, 117)
a) Mergers with a cash payment exceeding 10 % (Article 116)
b) Merger without all of the transferring companies ceasing to exist (Article 117)
Article 89 Definition of a 'merger by acquisition'
I. Statutory Definition of a Merger by Acquisition
1. One or more companies
2. Wound up without going into liquidation
3. Transfer of all assets and liabilities to the acquiring company
4. In exchange for shares of the acquiring company or a cash payment
II. Option to Include Companies in Liquidation
Article 90 Definition of a 'merger by the formation of a new company'
I. Definition of a Merger by Formation of a New Company
II. Option to Include Companies in Liquidation
Section 2 Merger by acquisition
Article 91 Draft terms of merger
I. Drawing up the Draft Terms of Merger
1. Responsibility
2. Form requirement
3. Content
II. Minimum Content
1. Key figures of the companies
2. Share exchange ratio, amount of cash payment
3. Terms relating to the allotment of shares
4. Date of profit entitlement (point d) and accounting date
5. Specification of special rights
6. Specification of special advantages
III. Scope of Application in Regard to Other Types of Mergers
Article 92 Publication of the draft terms of merger
I. Publication of the Draft Terms of Merger
1. Published as prescribed by law of the Member State in accordance with Article 16
2. Deadline for the publication of the draft terms of merger
II. Exemption from the Publication Requirement Laid Down in Article 16
1. Online availability of the draft terms of the merger
2. Deadline for the publishing on the website
3. Limits to further restriction of exemption towards the Member States
III. Derogation from the Exemption of the Second Subparagraph
IV. Reference on the Central Electronic Platform to the Website
V. Availability of the Information on the Website after the General Meeting
VI. Consequences of Temporary Disruption of Access
VII. Scope of Application in Regard to other Types of Mergers
Article 93 Approval by the general meeting of each of the merging companies
I. Approval of the General Meeting
1. Approval of the general meeting of each of the companies involved in the merger
2. Majority requirements
a) Majority requirement - general rule
b) Simple majority
3. Rules which apply to the alteration of the articles of association
II. Separate Vote for Each Class of Shareholders (Para. 2)
III. Scope of Decision to Be Made by the General Meeting
IV. Scope of Application in Regard to Other Types of Mergers
Article 94 Derogation from the requirement of approval by the general meeting of the acquiring company
I. Derogation from the Requirement of Approval by the General Meeting of the Acquiring Company
II. Cumulative Fulfilment of Specified Conditions (Points (a-c))
1. Publication of draft terms of merger
2. Right of shareholder to inspect the documents specified in Article 97(1)
3. Protection of minority shareholders
III. Application of Article 97(2), (3) and (4) for Point (b)
IV. Scope of Application in Regard to Other Types of Mergers
Article 95 Detailed written report and information on a merger
I. Written Report Explaining the Merger
1. Responsibility of administrative or management bodies
2. Form of the report
a) Detailed written report
b) Separate or joint report of the companies involved in the merger
c) Deadline for the report
3. Content of the report
II. Obligation to Update in Case of Material Change in the Assets and Liabilities
III. Option to Waive Report
IV. Civil Liability of Members of the Administrative or Management Bodies (Article 106)
V. Scope of Application in Regard to Other Types of Mergers
Article 96 Examination of the draft terms of merger by experts
I. Examination of the Draft Terms of Merger by Experts
1. Separate or joint expert reports
2. Expert requirements
a) Qualification and independence of experts
b) Appointment or approval by a judicial or administrative authority
c) Legal quality of the experts
3. Scope of examination
4. Deadline for the report
II. Written Expert Report
1. Methods used to arrive at the share exchange ratio
2. Appropriateness of used method
3. Special valuation difficulties
III. Expert's Right to Obtain Information and Investigate
IV. Option to Waive Examination of the Draft Terms of the Merger and the Expert Report
V. Civil Liability of Experts (Article 107)
VI. Scope of Application in Regard to Other Types of Mergers
Article 97 Availability of documents for inspection by shareholders
I. Right of Inspection by Shareholders
1. Documents to be inspected
a) List of documents
b) Special requirements for the drawing up of the accounting statement
2. Formal requirements
a) Place and time frame of access
(i) Access at the registered office
(ii) Access on the website
b) Requirements for the accounting statement
c) Manner of access
(i) General
(ii) Website
II. Scope of Application in Regard to Other Types of Mergers
Article 98 Protection of employees' rights
I. Protection of Employees' Rights in Accordance with Directive 2001/23/EC
II. Scope of Application in Regard to Other Types of Mergers
Article 99 Protection of the interests of creditors of the merging companies
I. Protection of the Interests of Creditors
1. Protected claims
2. Protected creditors
II. Adequate Safeguard System
1. Procedural safeguards
2. No uniform protection system required
III. Waiver
IV. Scope of Application in Regard to Other Types of Mergers
Article 100 Protection of the interests of debenture holders of the merging companies
I. Protection of Debenture Holders Similar to Those of Creditors
II. Waiver
III. Scope of Application in Regard to Other Types of Mergers
Article 101 Protection of holders of securities, other than shares, to which special rights are attached
I. Holders of Securities with Special Rights
1. General definition
2. Qualification of employee participation rights
II. Equal Rights in the Acquiring Company
III. Waiver/Exceptions
IV. Scope of Application in Regard to Other Types of Mergers
Article 102 Drawing up and certification of documents in due legal form
I. Drawing Up and Certification
1. Member States with a preventive judicial or administrative supervision of the legality of mergers
2. Member States with no sufficient preventive supervision by judicial or administrative authorities
a) Mergers, for which an approval by the general meeting is required
b) Mergers, for which no approval by the general meeting is required
II. Scope of examination
III. Scope of Application in Regard to Other Types of Mergers
Article 103 Date on which a merger takes effect
I. Effective Date
II. Scope of Application in Regard to Other Types of Mergers
Article 104 Publication formalities
I. Communication/Publication of the Merger
II. Right of the Acquiring Company to Initiate a Publication
III. Scope of Application in Regard to Other Types of Mergers
Article 105 Consequences of a merger
I. Consequences of the Merger
1. Universal succession - transfer of all assets and liabilities to the acquiring company (the new company)
a) Ipso iure succession
b) Validity of the transfer in relation to third parties
2. Share exchange
a) Procedure
b) Exceptions
c) No waiver
3. Dissolution of the company being acquired
II. Scope of Application in Regard to Other Types of Mergers
Article 106 Civil liability of members of the administrative or management bodies of the company being acquired
I. (Civil) D&O Liability
1. Liability towards the shareholders of the company being acquired
2. Liability of the administrative or management bodies of the company being acquired
3. Consequences of misconduct
II. Scope of Application in Regard to Other Types of Mergers
Article 107 Civil liability of the experts responsible for drawing up the expert report on behalf of the company being acquired
I. Civil Liability of the Experts
II. Scope of Application in Regard to Other Types of Mergers
Article 108 Conditions for nullity of a merger
I. Rules Regarding Nullity of Mergers
1. Reasons for nullity and remedy
2. Procedural requirements for the nullity of a merger
a) Nullity by court judgement or administrative authority
b) Deadline for the initiation of the nullification proceeding
c) Publication of the judgement or decision declaring a merger void
3. Consequences
II. Relation to the Laws of the Member States
III. Scope of Application in Regard to Other Types of Mergers
Section 3 Merger by formation of a new company
Article 109 Merger by formation of a new company
I. Application of the Model for Mergers by Acquisition
II. Adjustments to the Specific Characteristics of Mergers by Formation of a new company
1. Article 94
2. Wording
3. Nullification
4. Information regarding the new company
5. Approval of memorandum and articles of association
6. Possibility to waive contribution report
Section 4 Acquisition of one company by another which holds 90 % or more of its shares
Article 110 Transfer of all assets and liabilities by one or more companies to another company which is the holder of all their shares
I. Application of Chapter 2 to Upstream Mergers of a 100 % Subsidiary
II. Derogations of Certain Requirements
Article 111 Exemption from the requirement of approval by the general meeting
I. Historical Background
II. Specific Requirements
Article 112 Shares held by or on behalf of the acquiring company
Article 113 Merger by acquisition by a company which holds 90 % or more of the shares of a company being acquired
I. Historical Background and Context
II. Specific Conditions
Article 114 Exemption from requirements applicable to mergers by acquisition
I. Historical Background and Context
II. Specific Conditions
Article 115 Transfer of all assets and liabilities by one or more companies to another company which is the holder of 90 % or more of their shares
Section 5 Other operations treated as mergers
Article 116 Mergers with cash payment exceeding 10 %
Article 117 Mergers without all of the transferring companies ceasing to exist
CHAPTER II Cross-border mergers of limited liability companies
Article 118 General provisions
I. Legislative History and Regulatory Context of the Provisions on Cross-Border Mergers
1. From the EEC Treaty to the failed Convention on cross-border mergers (1957 to 1980)
a) The starting point: Article 220 of the EEC Treaty (1957)
b) The 1972 draft of a Convention and its failure
(i) Controversy regarding employee participation/co-determination
(ii) The role of the 1978 Directive
(iii) Failure in 1980
2. First attempt at a Directive on cross-border mergers (1985 to 2001)
3. Second attempt at a directive on cross-border mergers (2003 to 2005)
a) The road to the 2003 Proposal
b) From the 2003 Proposal to the 2005 Directive
4. Amendments to the cross-border Directive and the 2017 Company Law Directive
5. From the EU Company Law Package 2018 to the 2019 Directive
II. Legislative Aim of Chapter II
1. Removal of legal hurdles for cross-border activities of companies
2. Promotion of external growth of EU companies
3. Protection of shareholders, creditors and employees involved in the cross-border merger
4. The role of the ECJ's SEVIC decision
5. Developments after the 2005 Directive
III. Scope of Application
1. Limited liability companies
2. Cross-border element
a) Location within the European Union
b) Multiple jurisdictions
(i) Relevance of company statute (lex societatis)
(ii) Real seat theory vs. incorporation theory
3. Member States of the European Economic Area (EEA) / Brexit
4. Mergers not within the scope of the Directive
a) Mergers involving partnerships, cooperatives and other legal entities
(i) Overview
(ii) Conflict with the ECJ's SEVIC decision
(iii) Gold-plating
b) Crossing the border by formation of a NewCo only
c) Mergers involving non-EU Member States
Article 119 Definitions
I. Limited Liability Companies
1. Corporations pursuant to Annex II
2. Small general clause
II. Types of Mergers
1. Merger by acquisition
2. Merger by the formation of a new company
3. Upstream-merger of a 100 % subsidiary to the parent company
4. Side-step cross-border mergers (Article 119(2)(d))
Article 120 Further provisions concerning scope
I. Cash Payments Exceeding 10 %
II. Opt-out Option for Cooperative Societies
III. Not Applicable to UCITS
IV. Exclusion of Certain Crisis and Restructuring Scenarios from the Scope of Application
1. Companies in liquidation which have begun to distribute their assets
2. Companies subject to preventive restructuring proceedings
3. Other scenarios
V. Option to Further Narrow the Scope of Application
Article 121 Conditions relating to cross-border mergers
I. Limitation of the Permissible Types of Merger
II. Compliance with the Applicable National Laws
1. National laws on domestic mergers as a basis for cross-border mergers
2. Prohibition of mergers for reasons of public interest
3. Merger control
4. Specification of provisions and formalities
Article 122 Common draft terms of cross-border mergers
I. Purpose
II. Legal Nature of the Common Draft Terms of the Cross-Border Merger
III. Formalities
1. Responsibility of the management or administrative organ
2. Written form requirement
3. Language
IV. Content
1. Minimum requirements
a) Key information on the companies involved in the cross-border merger
b) Share exchange ratio, amount of cash payment
c) Terms relating to the allotment of securities or shares
d) Implications on employment
e) Date of profit entitlement
f) Accounting date
g) Specification of special rights
h) Specification of special advantages
i) Instruments and/or statutes of the resulting company
j) Information on arrangements for the involvement of employees
k) Information on the evaluation of the assets and liabilities
l) Reporting date of annual accounts
m) Details of the cash compensation
n) Safeguards offered to creditors
2. Voluntary additions to the minimum requirements
a) By the companies involved in the merger
b) By the Member States
Article 123 Disclosure
I. History
II. Disclosure Regime
1. Documents to be disclosed in the registers of the Member States
a) Common draft terms of the cross-border merger
b) Notice informing members, creditors and employee representatives
c) Independent expert report
2. Publication in registers of the Member States
3. Availability via BRIS system
4. Alternatively: Publication on the website
5. Information to be provided to national register in case of publication on website
a) Key corporate information
b) Register and number of entry of company documents and particulars
c) Indication for the exercise of the rights of creditors and of any minority members
d) Further details (website, notice, expert report)
e) Costs
6. Online publication
7. Time of disclosure if cross-border merger does not need to be approved by general meeting
8. Additional disclosure in the national gazette
Article 124 Report of the administrative or management body for members and employees
I. History
1. The legal framework under the 2017 Directive
2. The road to the 2019 Directive: One or two reports?
II. Formal Aspects
1. Separate or joint reports by the merging companies
2. Formal requirements
a) Responsibility
b) Form
c) Two or three parts
III. Content
1. General Section
2. Section addressed at members
3. Section addressed at employees
4. Creditors
IV. Waiver
1. Section for Members
2. Section for employees
3. Entire report
a) 100 % subsidiaries
b) Cases in which no report is required
V. No Facilitation for Upstream-Merger of a 100 % or 90 % Subsidiary
VI. Opinion from the Representatives of the Employees to the Merger Report
VII. Obligation to Update in Case of Material Change in the Assets and Liabilities?
VIII. Availability of the Report
1. Manner
2. Addressees
3. Deadline
4. Consequences of errors
Article 125 Independent expert report
I. Expert Examination of the Common Draft Terms of the Cross-Border Merger
1. Formal requirements
a) Responsibility for examination and the expert report
b) Separate or joint expert examination and report
c) Choice of law for joint expert report?
2. Content of the examination
II. The Expert Report
1. Content of the report
a) Cash compensation
b) Methods used to arrive at the cash compensation and the share exchange ratio
c) Appropriateness of method(s) used
2. Availability of the report
a) Addressees
b) Form
c) Deadline
d) Manner of access
III. Right to Request All Relevant Information
IV. Consequences of Errors
V. Waiver of the Obligation to Draw Up an Expert Report
VI. Upstream-Mergers
VII. Possibility to Waive Reporting on Any Consideration Other than in Cash
Article 126 Approval by the general meeting
I. Approval of the General Meeting
1. Information to be provided prior to the general meeting
2. Timing of the general meeting
3. Approval of the general meeting of each of the merging companies
4. Content of the approval decision
5. Upstream mergers of a 100 % subsidiary into the parent company
II. Reservation of Approval
III. Derogation from the Requirement of Approval
IV. Limitation of Legal Challenges
Article 126 a Protection of members
I. Exit Right (in Return) for Cash Compensation
1. Background
2. Eligible Shareholders
a) Shareholders of the company or companies being acquired
b) Shareholders who voted against the merger
3. Obligor of cash compensation
4. Deadlines
a) Deadline for claiming the cash compensation
b) Deadline for paying the cash compensation
5. Manner of claiming the cash compensation
6. Right to challenge the cash compensation
7. Alternative compensation?
II. Right to Challenge the Share Exchange Ratio
1. Background
2. Eligible Shareholders
3. Proceedings
4. Compensation
Article 126 b Protection of creditors
I. Background
II. Protection of Creditors by Safeguards (Securities)
1. Safeguards
2. Right to challenge safeguards as inadequate
a) Deadline
b) Competent body
c) Claim at stake
d) Causation
e) No adequate safeguards
3. Consequences for the merger taking effect
4. Solvency Declaration
5. National laws
Article 126 c Employee information and consultation
I. Background
II. Content
III. Timing
IV. Manner
Article 127 Pre-merger certificate
I. Two-Stage Scrutiny of the Legality of the Cross-Border Merger
II. Designation of Authority Competent to Scrutinise
III. Scope of Scrutiny
IV. Pre-Merger Certificate
1. Purpose of the Pre-Merger Certificate
2. Application
3. Process
a) Online
b) Scope of examination
c) Coordination with other authorities
d) Timing
e) Decision
(i) Positive decision
(ii) Negative decision
4. Form of the pre-merger certificate
V. Control Against Abuse and Fraudulent Purposes
Article 127 a Transmission of the pre-merger certificate
Article 128 Scrutiny of the legality of the cross-border merger
I. Competent Authority
II. Scope of the Scrutiny
III. Procedure
1. Documents to Be Submitted
2. Deadline and timing
3. Online
Article 129 Date on which the cross-border merger takes effect
I. No harmonised effective date
II. Earliest Effective Date
Article 130 Registration
I. Registration and Publication of the Cross-Border Merger
II. Notification Through the System of Interconnection of Registers
III. Deletion of the Old Registration
Article 131 Consequences of a cross-border merger
I. Consequences of the Cross-Border Merger
1. Universal succession
2. Exchange of shares
3. Dissolution of the company being acquired
II. Validity of the Transfer in Relation to Third Parties
III. Transfer of Rights and Obligations Arising from Contracts of Employment or from Employment Relationships
Article 132 Simplified formalities
I. Upstream-Merger of a 100 % Subsidiary into its Parent Company
II. Upstream Mergers of a 90 % or More Subsidiary into the Parent Company
III. Publication of the Merger Documents if no Shareholders' Meeting is Required
Article 133 Employee participation
I. Worker's Participation vs. Co-Determination
II. Co-Determination
1. Basic principle: Registered seat principle
2. Exception: Modified SE negotiation model
a) Exceptions
(i) Employee threshold
(ii) Cross-border merger would lead to a lower level of employee participation
(iii) Lower level of employee protection in establishments
b) Modification of SE negotiation model
(i) Threshold for standard rule
(ii) Direct application of standard rule
(iii) Application of the laws of the Member State of the registered seat without prior negotiations
(iv) Modification of the standard rule
(v) Obligation to take a legal form allowing for the exercise of participation
(vi) Four-year perpetuation
(vii) Communication to employees
Article 133 a Independent experts
Article 134 Validity
CHAPTER III Divisions of public limited liability companies
Section 1 General provisions
Article 135 General provisions on division operations
I. Legislative History and Regulatory Context of the Provisions on Divisions
II. Legislative Aim and Scope of Application
1. National limited liability companies
2. Insolvency or restructuring proceedings
Section 2 Division by acquisition
Article 136 Definition of a 'division by acquisition'
I. Two Types of Domestic Divisions: Overview
II. Division by acquisition - Section 2 Chapter III Title II
III. Division by formation of new companies - Section 3 Chapter III Title II
IV. Ratio-preserving and ratio-altering division
Article 137 Draft terms of division
I. Purpose
II. Formalities
1. Draft terms of division - formal requirements
2. Draft terms of division - content
III. Examples of National Implementation
1. Germany
2. Italy
3. The Netherlands
Article 138 Publication of the draft terms of division
I. Purpose
II. Publication Requirements
1. Form of publication
2. Notice period
3. Exemption from publication requirements
4. Modalities of publication
Article 139 Approval by the general meeting of each company involved in a division
I. Approval of the Division
1. General meeting as competent body
2. Majority requirements
3. Form requirements
II. Ratio-Altering Divisions and Protection of Minority Shareholders
Article 140 Derogation from the requirement of approval by the general meeting of a recipient company
Article 141 Detailed written report and information on a division
I. Purpose of the Detailed Written Report
II. Report
1. Content requirements
2. Formal requirements
3. Information obligation about substantial changes in assets and liabilities
III. Written Reports for Group Divisions
Article 142 Examination of the draft terms of division by experts
I. Examination of the Draft Terms of Division
II. The Independent Expert
III. Material Focus
IV. Content Requirements
V. Addressees of the Report
VI. Group Divisions
Article 143 Availability of documents for inspection by shareholders
I. Comprehensive Information on the Draft Terms of Division
II. Content Requirements
III. National Implementation Examples
Article 144 Simplified formalities
Article 145 Protection of employees' rights
Article 146 Protection of the interests of creditors of companies involved in a division
joint and several liability of the recipient companies
I. Purpose
II. Creditors
1. Protective measure 1: security rights and contingent liability
2. Protective measure 2: joint and several liability
3. Combination of protective measures 1 and 2
4. National implementation example, Germany
III. Debenture Holders
Article 147 Protection of holders of securities, other than shares, to which special rights are attached
I. Purpose
II. Economically Equivalent Rights
Article 148 Drawing up and certification of documents in due legal form
Article 149 Date on which a division takes effect
I. No Harmonized Effective Date
II. National Implementation Examples
Article 150 Publication formalities
Article 151 Consequences of a division
I. General Remarks
II. (Partial) Universal Succession
III. Transfer of Shares
IV. Company being Divided Ceasing to Exist
Article 152 Civil liability of members of the administrative or management bodies of a company being divided
I. Civil Liability
II. Only Minimum Standard
Article 153 Conditions for nullity of a division
I. Limited Number of Cases of Nullity
II. Examples of Nullity under National Law
Article 154 Exemption from the requirement of approval by the general meeting of the company being divided
I. Scope of Application
II. Division by Acquisition
Section 3 Division by the formation of new companies
Article 155 Definition of a 'division by the formation of new companies'
I. Division by Formation of New Companies
II. Characteristics of Division by Formation of New Companies
Article 156 Application of rules on divisions by acquisition
I. Application of Rules on Division by Acquisition
II. Content Requirements
III. Formal Requirements
Section 4 Divisions under the supervision of a judicial authority
Article 157 Divisions under the supervision of a judicial authority
I. Purpose
II. Procedural Facilitations
III. Specific Member State Option Regarding Creditor Protection
Section 5 Other operations treated as divisions
Article 158 Divisions with cash payment exceeding 10 %
Article 159 Divisions without the company being divided ceasing to exist
Section 6 Application arrangements
Article 160 Transitional provisions
CHAPTER IV Cross-border divisions of limited liability companies
Article 160 a Scope
I. Legislative Purpose of Chapter IV
II. European Model for Structural Changes and Key Elements of Cross-Border Divisions
III. Scope of Application
1. Limited liability companies
2. Cross-border element
a) Established within the European Union
b) Company statutes of at least two Member States
c) Other company statutes within the European Economic Area (EEA)
3. Cash payments exceeding 10 %
4. Divisions not within the scope of the 2019 Directive
a) Divisions involving non-EU states
b) Divisions involving civil partnerships, cooperatives and other legal entities
c) Sectorial exceptions
d) Not applicable to operations pursuant to the BRRD Directive
e) Not applicable to companies in liquidation, where the distribution of assets has begun.
f) Discretion of the Member States to exclude companies involved in insolvency proceedings, other liquidation proceedings or crisis prevention measures
5. Transposition of the Directive
6. Advance effect of the 2019 Directive
7. Brexit
Article 160 b Definitions
I. Limited Liability Companies - Corporations Pursuant to Annex II
II. Three Types of Cross-Border Divisions
1. Cross-border divisions by formation and acquisition
2. Ratio-altering cross-border divisions
Article 160 c Procedures and formalities
I. Procedures and Formalities Applicable to the Company Being Divided
II. Procedures and Formalities Applicable to the Recipient Companies
III. Ratio of Article 160 c
IV. Scope of the Term "Procedures and Formalities"
Article 160 d Draft terms of cross-border divisions
I. Purpose
II. Legal Nature of the Draft Terms
III. Formalities
1. Responsibility of the administrative or management body
2. Written form requirement
3. Language
4. Disclosure
IV. Content and Confidentiality
1. Key information of the company being divided and each recipient company
2. Share exchange ratio, amount of cash payment, allotment of securities and shares
3. Indicative timetable
4. Repercussions on employment
5. Date of entitlement to distributions
6. Accounting date
7. Specification of special advantages
8. Specification of special rights
9. Instruments of constitution of the recipient companies
10. Information on arrangements for the involvement of employees
11. Precise description, allocation and valuation of assets and liabilities
12. Reporting date of annual accounts
13. Allocation to members of the shares in the recipient companies and/or the company being divided
14. Details of the cash compensation being offered to members
15. Any safeguard offered to creditors
V. Consequence of Non-Compliance with Minimum Terms and Errors within the Draft Terms
Article 160 e Report of the administrative or management body for members and employees
I. Drawing Up of a Report and Consequences of Errors
II. Formal Requirements
1. Separate or joint reports
2. Exceptions and waiver of the obligation to draw up a report
3. Availability to its addressees
4. Timing
III. Content
1. General content
2. Report addressed to members
3. Report addressed to employees
4. No disclosure of confidential information
5. No report addressed to creditors required
IV. Opinion from the Representatives of the Employees
Article 160 f Independent expert report
I. Scope of the Examination of the Draft Terms by the Independent Expert
II. The Independent Expert
III. Scope of the Examination
IV. Addressees of the Report and Deadline for the Submission
V. Public Disclosure of the Expert Report
VI. Consequences of Errors
VII. Waiver of the Obligation to Draw Up an Expert Report and Single Member Companies
Article 160 g Disclosure
I. Disclosure Concept and Forms of Disclosure
II. Submission of Documents by the Company
III. Documents Not to Be Made Publicly Available
Article 160 h Approval by the general meeting
I. Minimum Standard for the Protection of the Members
II. Approval by the General Meeting
III. Information to Be Provided Prior to the General Meeting
IV. Timing of the General Meeting
V. Majority Requirements, Reservations of the General Meeting and Specific Consent Requirements of Certain Members
1. Majority requirements
2. Reservation of approval subject to the outcome of the employee participation
3. Specific consent requirement
4. Form requirements
5. Content of the approval decision
VI. Challenges of the Resolution of the Members
VII. Cross-Border Divisions by Acquisition
Article 160 i Protection of members
I. Protection of Members - The Concept
II. Right to Dispose of Shares
1. Background
2. Exit right at least for members having voted against the resolution
3. Exercise of the right to dispose
4. Payment of cash compensation by the company being divided
III. Right of the Objecting Member to Challenge the Amount of the Cash Compensation
IV. Right to Challenge the Adequacy of the Share Exchange Ratio
Article 160 j Protection of creditors
I. General Effects of the Division on Creditors and the New Concept of Protection
II. Draft Terms
III. Solvency Declaration - Statement Accurately Reflecting the Company's Financial Situation
IV. Right to Challenge Safeguards as Inadequate and Request (Additional) Safeguards
V. Joint and Several Liability
Article 160 k Employee information and consultation
I. Employee Consultation
II. Stronger Rights under Member State Law
Article 160 l Employee participation
I. Conflicting Approaches of Employee Participation
II. The General Principle
III. Exceptions
1. Four-fifths rule
2. Reduction of employee participation
3. Discrimination
IV. Mechanism for the Involvement of Employees in the Definition of Their Rights to Participation in the Recipient Companies
V. Four Year Perpetuation
Article 160 m Pre-division certificate
I. A Two-Stage Scrutiny of the Legality
II. The Competent Authority to Scrutinize
III. The First Stage
1. Scope of scrutiny
2. Time limits
3. Abuse control
4. Individual and collective employee rights
5. Pre-division certificate and judicial review
Article 160 n Transmission of the pre-division certificate
Article 160 o Scrutiny of the legality of the cross-border division
I. Second Stage of the Legality Check
II. Competent Authority
III. Scope of Scrutiny
IV. Re-Examination of Issues: Exceptions
Article 160 p Registration
I. Registration and Publication
II. Notification through the System of Interconnection of Registers
III. Removal of the Company Being Divided from its Register
Article 160 q Date on which the cross-border division takes effect
I. No Harmonized Effective Date
II. Earliest and Latest Effective Date
Article 160 r Consequences of a cross-border division
I. Consequences of the Cross-Border Division
II. Relevance of Restrictions and Requirements for the Individual Transfer of Assets, Rights, Contracts and Liabilities, and Consequences for "Indivisible" Legal Positions
III. Fall Back Allocation
IV. Application of the Principle to the Various Types of Cross-Border Divisions
1. Full cross-border division
2. Partial cross-border division
3. Cross-border division by separation
Article 160 s Simplified formalities
Article 160 t Independent experts
Article 160 u Validity
I. General Principle
II. Exceptions
Accounting and Auditing Law of the European Union
A. Introduction
B. The EU-Accounting Directive 2013/34/EU (EUAccD)
I. Overview and Historical Development
1. The Accounting Directives
a) Onset
b) Amendments
2. Unification by the EU-Accounting Directive
a) Introduction
b) EUAccD and First Amendments
II. Provisions of the EUAccDStandards without a separate legal designation are those of the EUAccD.
1. Chapter 1 (Art 1-3) - Scope, definitions, categories
a) Scope (Art 1)
b) Definitions (Art 2)
c) Categories of undertakings and groups (Art 3)
2. Chapter 2 (Art 4-8) - General provisions
3. Chapters 3 and 4 (Art 9-14 and 15-18) - Financial statements and notes
a) Financial statements
(i) Balance sheet
(ii) Profit and loss account
b) Notes
4. Chapter 5 (Art 19-20) - Management report
a) Original version
b) Amendment by NFRDSee note 30 supra.
5. Chapter 6 (Art 21-29) - Consolidated financial statements and reports
a) Underlying principles
b) Scope and exemptions to the requirement of consolidation
c) Content and preparation
6. Chapter 7 (Art 30-33) - Publication
7. Chapter 8 (Art 34 and 35) - Auditing
8. Chapter 9 (Art 36-40) - Exemptions
9. Chapter 10 (Art 41-48) - Country-by-Country Reporting (CbCR)
C. The IAS Regulation (EC) No 1606/2002 (IASR)
I. Overview and Historical Development
1. Historical development and objectives
2. Amendments
II. Provisions of the IAS RegulationStandards without a separate legal designation are those of the IAS Regulation.
1. Aim, scope and definitions (Art 1, 2, 4, 5 IASR)
2. Endorsement mechanism (Art 3 and 6)
D. The Statutory Audit Directive 2006/43/EC (SAD) and Statutory Audit Regulation (EU) No 537/2014 (SAR)
I. Overview and Historical Development
1. Onset
2. Development towards the SAD
a) Introduction
b) SAD, amendments and SAR
II. Provisions of SAD and SARStandards designated as SAD are those of the Statutory Audit Directive, those designated as SAR those of the Statutory Audit Regulation.
1. Objectives and scope
a) Objectives
b) Scope
c) Relation to EUAccD
2. Chapter I - Subject matter and definitions (Art 1 and 2 SAD)
3. Chapters II and III - Approval, continuing education and mutual recognition and registration (Art 3-20 SAD)
a) Approval, continuing education and mutual recognition (Art 3-14 SAD)
(i) Approval and continuing education
(ii) Mutual recognition
b) Registration (Art 15 SAD)
4. Chapter VI - Professional ethics, independence, objectivity, confidentiality and professional secrecy
a) Professional ethics and scepticism (Art 21 SAD)
b) Independence and objectivity (Art 22, 22 a, 22 b, 24 SAD)
c) Confidentiality and professional secrecy (Art 23 SAD)
d) Internal organisation and organisation of the work (Art 24 a, 24 b SAD)
e) Fees (Art 25 SAD)
5. Chapter V - Auditing standards and audit reporting (Art 26-28 SAD)
6. Chapter VI - Quality assurance (Art 29 SAD)
7. Chapter VII - Investigations and sanctions (Art 30-30 f SAD)
8. Chapter VIII - Public oversight and regulatory arrangements between Member States (Art 32-36 SAD)
9. Chapter IX - Appointment and dismissal (Art 37 and 38 SAD)
10. Chapter X - Audit committee (Art 39 SAD)
11. Chapter XI - International aspects (Art 44-47 SAD)
Directive 2009/102/EC of the European Parliament and the Council of 16 September 2009 in the area of company law on single-member private limited liability companies
Preface
I. Context and Objective
1. History
2. Current state of affairs: Directive 2009/102/ECDirective 2009/102/EC of the European Parliament and of the Council of September 16, 2009 in the area of company law on single-member private limited liability companies.
3. SUP (Societas Unius Personae) - A European idea realized at the national level
II. Interpretation of the Directive
Article 1 [Scope]
Article 2 [Legitimacy]
1. Original and subsequent single-member company, Art 2 (1)
a) Original formation
b) Subsequent unification of all shares in one hand
2. Special provisions and sanctions, Art 2 (2)
a) Background
b) Concrete sanction options
c) Judge-made law as legal basis
3. Scope of the Member States' regulatory freedom
Article 3 [Disclosure]
1. Protection provisions of third parties
2. Disclosure provisions for the single shareholder
Article 4 [General Meeting and Decisions]
1. Sole shareholder as "shareholders' meeting", Art 4 (1)
2. Shareholder resolutions, Article 4 (2)
Article 5 [Self-dealing]
1. Mandatory form requirement, Art 5 (1)
2. Relaxation of the mandatory form requirement, Art 5 (2)
Article 6 [The one-person public limited liability company]
Article 7 [Single-member enterprise with limited liability]
Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies (Shareholder Rights Directive)
CHAPTER I General Provisions
Article 1 Subject matter and scope
I. General Information, Purposes and Guiding Principles of the SRD
1. Political and historical outline
2. Criticism on the legislative technique in the SRD - Interpretation of the SRD's legal terms
II. The SRD's General Scope of Application (Para. 1)
1. Personal scope of application
2. Material scope of application
III. The "Competent Member State" and the "Applicable Law" (Para. 2)
IV. Options to Exempt Certain Types of Companies (Para. 3 and 3 a)
V. Conflicts with Directive 2014/59/EU (Para. 4)
VI. Scope of Chapter Ia and Chapter Ib (Para. 5 and 6)
VII. Conflicts with Other EU Legislations (Para. 7)
Article 2 Definitions
I. Regulated Market (Point (a))
II. Shareholder (Point (b))
III. Proxy (Point (c))
IV. Intermediary (Point (d))
V. Institutional Investor (Point (e))
VI. Asset Manager (Point (f))
VII. Proxy Advisor (Point (g))
VIII. Related Party (Point (h))
IX. Director (Point (i))
X. Information Regarding Shareholder Identity (Point (j))
Article 3 Further national measures
CHAPTER Ia Identification of shareholders, transmission of information and facilitation of exercise of shareholder rights
Article 3 a Identification of shareholders
I. The Principle of "Know Your Shareholder"
II. Personal Scope: Companies, Intermediaries, Shareholders
1. General right to shareholder identification
2. Further claim against the intermediaries
III. Material Scope: Information Regarding Shareholder Identity
1. Principal rule
2. Chains of Intermediaries (para. 3)
3. Threshold value exemption (para. 1)
IV. Prerequisite of Formal Request (Para. 2)
V. Data Protection, Privacy and Secrecy
VI. ESMA-Reporting and Commissions Implementing Regulation (Para. 7 and 8)
Article 3 b Transmission of information
I. Subject of the Transmission of Information
II. Ways of Transmitting Information
1. Transmission of information to the shareholders "bottom up" (para. 1-3)
2. Transmission of information to the company "top down" (para. 4)
III. Chains of Intermediaries (Para. 5)
IV. Commissions Implementing Regulation (Para. 6)
Article 3 c Facilitation of the exercise of shareholder rights
I. Regulatory Options to Improve Shareholder Rights (Para. 1)
1. Necessary arrangements for shareholders or nominated third parties (point (a))
2. Intermediaries exercising shareholder rights (point (b))
II. Voting Confirmation (Para. 2)
1. Electronic confirmation of receipt of electronic votes (subpara. 1)
2. Confirmation that votes have been validly recorded and counted (subpara. 2)
3. Chains of intermediaries (subpara. 3)
III. Commissions Implementing Regulation (Para. 3)
Article 3 d Non-discrimination, proportionality and transparency of costs
I. Disclosure of Charges (Para. 1)
II. Non-Discrimination, Proportionality and Transparency (Para. 2)
III. Member State Option (Para. 3)
Article 3 e Third-country intermediaries
Article 3 f Information on implementation
CHAPTER Ib Transparency of institutional investors, asset managers and proxy advisors
Article 3 g Engagement policy
I. Comply or Explain (Para. 1)
1. Engagement policy (point (a))
2. Annual implementation report (point (b))
II. Format and Costs of Disclosure (Para. 2)
III. Relationship to Other EU Legal Acts (Para. 3)
Article 3 h Investment strategy of institutional investors and arrangements with asset managers
I. Long-Term Performance Report (Para. 1)
II. Investments on Behalf of Institutional Investors (Para. 2)
III. Format and Costs of Disclosure (Para. 3)
Article 3 i Transparency of asset managers
I. Transparency Requirements (Para. 1)
II. Format and Costs of Disclosure (Para. 2)
III. Disclosure to Other Investors of the Same Fund (Para. 3)
Article 3 j Transparency of proxy advisors
I. Code of Conduct - Comply or Explain (Para. 1)
II. Transparency of Proxy Advisors
1. Public annual reports (para. 2)
2. Conflicts of interests (para. 3)
III. Extension to Third-Country Proxy Advisors (Para. 4)
Article 3 k Review
CHAPTER II General Meetings of Shareholders
Article 4 Equal treatment of shareholders
Article 5 Information prior to the general meeting
I. General Scope
II. Convocation Period (Para. 1)
III. Modalities of Convocation (Para. 2)
IV. Minimum Content of Information
1. Requirements for the convocation itself (para. 3)
2. Requirements for the related internet information (para. 4)
V. Special Provisions Concerning Directive 2014/59/EU (BRRD) (Para. 5 and 6)
Article 6 Right to put items on the agenda of the general meeting and to table draft resolutions
I. Minority Rights Corresponding With the (Annual) General Meeting (Para. 1)
II. Limitation
1. Minority rights as individual "or" collective rights
2. Restriction of shareholders' right to put items on the agenda of the general meeting
3. Restrictions of shareholders' right to draft resolutions for items included or to be included on the agenda
4. Restriction to exercising of shareholders' rights in writing
5. Threshold value for quantity of shareholdings (para. 2)
6. Time limits on the exercise of minority rights (para. 3)
III. Obligation to Provide a Revised Agenda (Para. 4)
Article 7 Requirements for participation and voting in the general meeting
I. Prohibition of the Mandatory Deposit and Share Blocking (Para. 1)
II. Record Date (Para. 2)
1. Participation and voting of non-shareholders
2. Non-application of the record date
III. Differences Depending on the Type of Share (Para. 3)
IV. Proof of Shareholder Qualification (Para. 4)
Article 8 Participation in the general meeting by electronic means
I. Regulatory Purpose
II. Participation by Electronic Means (Para. 1)
1. The right of the company to enable any form of electronic participation
2. Virtual general meetings
III. Requirements and Constraints in National Law (Para. 2)
Article 9 Right to ask questions
I. Shareholders' Right to Ask Questions and to Obtain Information
1. Purpose and linking to agenda items
2. Further material scope
3. Transposition into national law
II. Companies' Obligation to Answer
1. General approach
2. Overall answer to questions having the same content
3. (Fictional) response by web-based FAQs
III. Expressively Permitted Limitations under National Law
IV. Sanctions for Violations of the Right on Information
Article 9 a Right to vote on the remuneration policy
I. The SRD's "Say on Pay" Concept
II. Establishment of the Remuneration Policy and Shareholders' Right to Vote (Para. 1)
III. Binding Effect of the Shareholders' Vote and Payments Prerequisites (Para. 2)
1. General principle of a binding effect
2. Lack of shareholders' approval (freezing effect)
3. Delegation to the companies
IV. Member States Options (Para. 3 and 4)
1. Dispensing with the policy's binding effect (para. 3)
2. Remuneration in exceptional circumstances (para. 4)
V. Voting Schedule (Para. 5)
1. Regular voting cycle
2. Triggering of the voting by material changes in the policy
VI. Content of the Remuneration Policy (Para. 6)
1. General prerequisites (subpara 1)
2. Employment conditions (subpara 2)
3. Variable remuneration (subpara 3)
4. Share-based remuneration (subpara 4)
5. Aspects of duration of the remuneration policy (subpara 5)
6. Explanatory aspects on the formation of the remuneration policy (subpara 6)
7. Revision of the remuneration policy (subpara 6)
VII. Publication on the Company's Website (Para. 7)
VIII. Sanctions
Article 9 b Information to be provided in and right to vote on the remuneration report
I. The Remuneration Report (Para. 1)
1. General requirements as regards the preparation of the report
2. Minimum content of the report
3. Further information required mandatorily to be contained in the report
a) Mandatory information referred to in point (a)
b) Mandatory information referred to in point (b)
c) Mandatory information referred to in point (c)
d) Mandatory information referred to in point (d)
e) Mandatory information referred to in point (e)
f) Mandatory information referred to in point (f)
II. Shareholders' 'Say on Pay' in the Context of the Remuneration Report (Para. 4)
1. General principle: Advisory nature of the shareholders' vote
2. Option: Discussions at the annual general meeting of small and medium-sized companies
III. Processing of Personal Data (Para. 2 and 3)
IV. Publication on the Company's Website (Para. 5)
V. Enforcement and Sanctions (Para. 5)
1. Audit
2. Directors' duties and liability
3. Further sanctions
VI. Commission's Guidelines (Para. 6)
Article 9 c Transparency and approval of related party transactions
I. Overview on Related Party Transactions in the SRD
1. Purpose and political background
2. Systematic and regulatory structure
3. Material transactions (para. 1)
4. Circumvention (para. 8)
II. Public Announcement of Material Related Party Transactions
1. Related party transactions of the company (para. 2)
2. Related party transactions of subsidiary companies (para. 7)
3. Format and time of the announcement
4. (Optional) accompanying report - fairness opinion (para. 3 and 7)
III. Requirement of Approval for Related Party Transactions (Para. 4)
1. Competency prerequisites
2. Procedural prerequisites
IV. Transactions in the Ordinary Course of Business and Concluded on Normal Market Terms (Para. 5)
V. Optional Exemptions (Para. 6)
1. Transactions entered into between the company and its subsidiaries (point (a))
2. Transactions approved by the general meeting (point (b))
3. Remuneration of directors (point (c))
4. Authority approved transactions of credit institutions (point (d))
5. Equal treatments (point (e))
VI. Rule of Conflicts in relation to Article 17 MAR (Para. 9)
VII. Enforcement and Sanctions
Article 10 Proxy voting
I. System of Proxy Voting in the SRD
1. General scope and role of proxy voting
2. System of multi-person voting in the SRD
II. Proxy Holder Rights (Para. 1)
III. Restrictions under National Law
1. Time limitations and limitations for multiple proxies (para. 2)
2. Conflicts of interest (para. 3)
a) Possible restrictions under Member State law
b) Conflict of interest
3. Restrictions effects in national private law relationships
IV. Shareholders' Right to Instruct the Proxy Holder (Para. 4)
1. Mandatory instructions
2. Duty to keep a record
V. Multiple Proxy Holdings (Para. 5)
VI. Sanctions
Article 11 Formalities for proxy holder appointment and notification
I. Proxy Appointment and Revocation thereof by Electronic Means (Para. 1)
II. Formal Requirements for Legal Acts in the Context of Proxy Voting (Para. 2)
Article 12 Voting by correspondence
I. General Scope and Relation to Article 8 SRD
II. "Correspondence" in Advance of the General Meeting
Article 13 Removal of certain impediments to the effective exercise of voting rights
I. General Scope und Systematic Context
1. Scope of regulation (para. 1)
2. Intermediaries as "shareholders" under the applicable law
II. Disclosure Requirements and Further Formal Requirements under National Law (Para. 2 and 3)
III. Split Voting and Proxy Voting (Para. 4 and 5)
Article 14 Voting results
I. Establishment of the Voting Results (Para. 1)
1. Scope and purpose
2. Contents to be established
3. Dispensation rule (subs. 2)
II. Online Publishing (Para. 2)
III. Conflict Rule for National Law Governing Resolutions (Para. 3)
CHAPTER IIa Implementing Acts and Penalties
Article 14 a Committee procedure
Article 14 b Measures and penalties
I. Chapter IIa - Implementing Acts and Penalties
II. Article 14 b SRD beyond the Scope of Minimum Harmonisation
CHAPTER III Final Provisions
Article 15 Transposition
I. Transposition of SRD I and SRD II
1. Legal effects of non-transposition
2. Direct legal effect of directives
II. Further Provisions for Transposition (Para. 2 and 3)
Article 16 Entry into force
Article 17 Addressees
Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids
Introduction
I. Core of the Directive
II. Compromise Proposal
III. Development of the Directive
IV. Harmonization
V. Need for Reform
Article 1 Scope
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Scope of Application (Art 1 (1))
III. Exceptions to the Scope of Application (Art 1 (2), (3))
Article 2 Definitions
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Definitions
III. Persons Controlled by Another Person as Persons Acting in Concert (Art 2 (2))
Article 3 General principles
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. General Principles
1. The principle of equal treatment (Art 3 (1) (a))
2. The duty to provide information to holders of securities (Art 3 (1)(b))
3. The commitment to the interests of the company (Art 3 (1)(c))
4. The avoidance of the distortion of markets (Art 3 (1)(d))
5. The fulfillment of consideration (Art 3 (1) (e))
6. The protection of the offeree company (Art 3 (1)(f))
III. Article 3 (2)
Article 4 Supervisory authority and applicable law
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Supervisory Authorities - Designation by the Member States (Art 4 (1))
III. Competency of the Supervisory Authority and Applicable Law (Art 4 (2))
1. Competent supervisory authority
2. The applicable law
IV. Secrecy (Art 4 (3))
V. Cooperation (Art 4 (4))
VI. Derogations (Art 4 (5))
VII. Authorities Dealing with Disputes (Art 4 (6))
Article 5 Protection of minority shareholders, the mandatory bid and the equitable price
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. The Mandatory Bid
1. Triggers for a mandatory bid (Art 5 (1))
2. Exception in cases of a voluntary bid (Art 5 (2))
3. Determination of control and method of calculation (Art 5 (3))
4. Equitable price (Art 5 (4))
5. Consideration (Art 5 (5))
6. Further protection (Art 5 (6))
Article 6 Information concerning bids
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Offer-Publication and content (Art 6 (1))
III. Offer Document (Art 6 (2))
IV. Contents of the Offer Document (Art 6 (3))
V. Comitology (Art 6 (4))
VI. Information for the Supervisory Authority (Art 6 (5))
Article 7 Time allowed for acceptance
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Time Allowed for Acceptance
III. Exceptions (Art 7 (2))
Article 8 Disclosure
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Making Public of the Bid (Art 8 (1))
III. Disclosure of all Information Required by Art 6, Art 8 (2)
Article 9 Obligations of the board of the offeree company
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Duty of Neutrality with Regards to the Obligations of the Board of the Offeree Company (Art 9 (1))
III. Duty of Neutrality - Subject Matter (Art 9 (2))
IV. Time (Art 9 (3))
V. Calling of a General Meeting (Art 9 (4))
VI. Statement of the Board (Art 9 (5))
VII. Ratio Personae (Art 9 (6))
Article 10 Information on companies as referred to in Article 1(1)
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Information to be Disclosed by the Companies
III. Disclosure of the Management Report (Art 10 (2))
IV. Report of the Board
Article 11 Breakthrough
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Breakthrough of Takeover Barriers
III. Breakthrough During the Time for Acceptance (Art 11 (2))
IV. Breakthrough During the Vote on Defensive Measures (Art 11 (3))
V. Breakthrough after a Successful Bid (Art 11 (4))
VI. Compensation (Art 11 (5))
VII. Exception of Monetary Compensation (Art 11 (6))
VIII. Further exceptions Art 11 (7)
Article 12 Optional arrangements
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. First Step: Opt-out by Member States (Art 12 (1))
III. Second Step: Opt-in by Companies (Art 12 (2))
IV. Reciprocity Rule (Art 12 (3))
V. Disclosure (Art 12 (4))
VI. Authorization of the General Meeting of Shareholders (Art 12 (5))
Article 13 Other rules applicable to the conduct of bids
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Additional Procedural Rules for Takeover Bids (Art 13)
Article 14 Information for and consultation of employees' representatives
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Information for and Consultation of Employees' Representatives
Article 15 The right of squeeze-out
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Squeeze-Out after a Takeover (Art 15 (1))
III. Squeeze-Out, Threshold, Franchise (Art 15 (2))
IV. Calculation of Threshold and Exclusion (Art 15 (3))
V. Time Limit on Executing a Squeeze-Out Art (15 (4))
VI. Compensation (Art 15 (5))
Article 16 The right of sell-out
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Sell-Out after a Takeover (Art 16 (1))
III. Sell-Out Threshold (Art 16 (2))
IV. Price Presumptions and Nature of the Consideration
Article 17 Sanctions
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Sanctions (Art 17)
Article 18 Committee procedure
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Committee Procedure (Art 18)
Article 19 Contact committee
I. General Features
1. Overview
2. Background
3. Relation to other provisions
II. Contact Committee (Art 19)
Article 20 Revision
Article 21 Transposition
Article 22 Entry into force
Article 23 Addressees
Index

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