Where Member States permit the companies referred to in Article 1 (1) of Directive 78/855/EEC coming under their laws to carry out division operations by acquisition as defined in Article 2 of this Directive, they shall subject those operations to the provisions of Chapter I of this Directive.
Sixth Council Directive of 17 December 1982 based on Article 54 (3) (g) of the Treaty, concerning the division of public limited liability companies (82/891/EEC)
Sixth Council Directive of 17 December 1982 based on Article 54 (3) (g) of the Treaty, concerning the division of public limited liability companies (82/891/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 54 (3) (g) thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Having regard to the opinion of the Economic and Social Committee(3),
Whereas the coordination provided for in Article 54 (3) (g) and in the general programme for the abolition of restrictions on freedom of establishment(4) was begun with Directive 68/151/EEC(5);
Whereas that coordination was continued as regards the formation of public limited liability companies and the maintenance and alteration of their capital with Directive 77/91/EEC(6), as regards the annual accounts of certain types of companies with Directive 78/660/EEC(7), and as regards mergers of public limited liability companies with Directive 78/855/EEC(8);
Whereas Directive 78/855/EEC dealt only with mergers of public limited liability companies and certain operations treated as mergers; whereas, however, the Commission proposal also covered division operations; whereas the opinions of the European Parliament and of the Economic and Social Committee were in favour of the regulation of such operation;
Whereas, because of the similarities which exist between merger and division operations, the risk of the guarantees given with regard to mergers by Directive 78/855/EEC being circumvented can be avoided only if provision is made for equivalent protection in the event of division;
Whereas the protection of the interests of members and third parties requires that the laws of the Member States relating to divisions of public limited liability companies be coordinated where the Member States permit such operations;
Whereas, in the context of such coordination, it is particularly important that the shareholders of the companies involved in a division be kept adequately informed in as objective a manner as possible and that their rights be suitably protected;
Whereas the protection of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses is at present regulated by Directive 77/187/EEC(9);
Whereas creditors, including debenture holders, and persons having other claims on the companies involved in a division, must be protected so that the division does not adversely affect their interests;
Whereas the disclosure requirements of Directive 68/151/EEC must be extended to include divisions so that third parties are kept adequately informed;
Whereas the safeguards afforded to members and third parties in connection with divisions must be extended to cover certain legal practices which in important respects are similar to division, so that the obligation to provide such protection cannot be evaded;
Whereas to ensure certainty in the law as regards relations between the companies involved in the division, between them and third parties, and between the members, the cases in which nullity can arise must be limited by providing that defects be remedied wherever that is possible and by restricting the period within which nullification proceedings may be commenced,
HAS ADOPTED THIS DIRECTIVE:
Article 1
1.
2.
Where Member States permit the companies referred to in paragraph 1 to carry out division operations by the formation of new companies as defined in Article 21, they shall subject those operations to the provisions of Chapter II of this Directive.
3.
Where Member States permit the companies referred to in paragraph 1 to carry out operations, whereby a division by acquisition as defined in Article 2(1) is combined with a division by the formation of one or more new companies as defined in Article 21 (1), they shall subject operation to the provisions of Chapter I and Article 22.
4.
Article 1 (2) and (3) of Directive 78/855/EEC shall apply.
CHAPTER I Division by acquisition
Article 2
1.
For the purposes of this Directive, ‘division by acquisition’ shall mean the operation whereby, after being wound up without going into liquidation, a company transfers to more than one company all its assets and liabilities in exchange for the allocation to the shareholders of the company being divided of shares in the companies receiving contributions as a result of the division (hereinafter referred to as ‘recipient companies’) and possibly a cash payment not exceeding 10 % of the nominal value of the shares allocated or, where they have no nominal value, of their accounting par value.
2.
Article 3 (2) of Directive 78/855/EEC shall apply.
3.
In so far as this Directive refers to Directive 78/855/EEC, the expression ‘merging companies’ shall mean ‘the companies involved in a division’, the expression ‘company being acquired’ shall mean ‘the company being divided’, the expression ‘acquiring company’ shall mean ‘each of the recipient companies’ and the expression ‘draft terms of merger’ shall mean ‘draft terms of division’.
Article 3
1.
The administrative or management bodies of the companies involved in a division shall draw up draft terms of division in writing.
2.
Draft terms of division shall specify at least:
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the type, name and registered office of each of the companies involved in the division;
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the share exchange ratio and the amount of any cash payment;
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the terms relating to the allotment of shares in the recipient companies;
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the date from which the holding of such shares entitles the holders to participate in profits and any special conditions affecting that entitlement;
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the date from which the transactions of the company being divided shall be treated for accounting purposes as being those of one or other of the recipient companies;
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the rights conferred by the recipient companies on the holders of shares to which special rights are attached and the holders of securities other than shares, or the measures proposed concerning them;
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any special advantage granted to the experts referred to in Article 8(1) and members of the administrative, management, supervisory or controlling bodies of the companies involved in the division;
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the precise description and allocation of the assets and liabilities to be transferred to each of the recipient companies;
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the allocation to the shareholders of the company being divided of shares in the recipient companies and the criterion upon which such allocation is based.
3.
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Where an asset is not allocated by the draft terms of division and where the interpretation of these terms does not make a decision on its allocation possible, the asset or the consideration therefor shall be allocated to all the recipient companies in proportion to the share of the net assets allocated to each of those companies under the draft terms of division.
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Where a liability is not allocated by the draft terms of division and where the interpretation of these terms does not make a decision on its allocation possible, each of the recipient companies shall be jointly and severally liable for it. Member States may provide that such joint and several liability be limited to the net assets allocated to each company.