HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 315/74
EN
Official Journal of the European Union
14.11.2012
DIRECTIVE 2012/30/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 25 October 2012
on coordination of safeguards which, for the protection of the interests of members and others, are
required by Member States of companies within the meaning of the second paragraph of Article 54
of the Treaty on the Functioning of the European Union, in respect of the formation of public
limited liability companies and the maintenance and alteration of their capital, with a view to
making such safeguards equivalent
(Recast)
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
(2) The
coordination
provided
for
in
point
(g)
of
EUROPEAN UNION,
Article 50(2) of the Treaty and in the General
Programme for the abolition of restrictions on freedom
of establishment, which was begun by First Council
Directive 68/151/EEC of 9 March 1968 on co-ordination
Having regard to the Treaty on the Functioning of the European
of safeguards which, for the protection of the interests of
Union, and in particular Article 50(1) and (2) (g) thereof,
members and others, are required by Member States of
companies within the meaning of the second paragraph
of Article 58 of the Treaty, with a view to making such
safeguards equivalent throughout the Community ( 5 ), is
Having regard to the proposal from the European Commission,
especially important in relation to public limited liability
companies, because their activities predominate in the
economy of the Member States and frequently extend
beyond their national boundaries.
After transmission of the draft legislative act to the national
parliaments,
(3) In
order
to
ensure
minimum
equivalent
protection
for
Having regard to the opinion of the European Economic and
both shareholders and creditors of public limited
Social Committee ( 1 ),
liability companies, the coordination of national
provisions relating to their formation and to the main
tenance, increase or reduction of their capital is
particularly important.
Acting in accordance with the ordinary legislative procedure ( 2 ),
Whereas:
(4)
In the Union, the statutes or instrument of incorporation
of a public limited liability company must make it
possible for any interested person to acquaint himself
with the basic particulars of the company, including
(1) Second
Council
Directive
77/91/EEC
of
13
December
the exact composition of its capital.
1976 on coordination of safeguards which, for the
protection of the interests of members and others, are
required by Member States of companies within the
meaning of the second paragraph of Article 54 of the
Treaty, in respect of the formation of public limited
(5) Union provisions are necessary for maintaining the
liability companies and the maintenance and alteration
capital, which constitutes the creditors' security, in
of their capital, with a view to making such safeguards
particular by prohibiting any reduction thereof by
equivalent (
distribution to shareholders where the latter are not

3 ) has been substantially amended several
times (
entitled to it and by imposing limits on the company's

4 ). Since further amendments are to be made, it
should be recast in the interests of clarity.
right to acquire its own shares.
( 1 ) OJ C 132, 3.5.2011, p. 113.
( 2 ) Position of the European Parliament of 15 November 2011 (not yet
published in the Official Journal) and decision of the Council of
10 October 2012.
(6) The
restrictions
on
a
company's
acquisition
of
its
own
( 3 ) OJ L 26, 31.1.1977, p. 1. Editorial note: The title of Directive
shares should apply not only to acquisitions made by a
77/91/EEC has been adjusted to take account of the renumbering
company itself but also to those made by any person
of the articles of the Treaty establishing the European Community,
acting in his own name but on the company's behalf.
in accordance with Article 5 of the Treaty of Lisbon; the original
reference was to the second paragraph of Article 58 of the Treaty.
( 4 ) See Annex II, Part A.
( 5 ) OJ L 65, 14.3.1968, p. 8.

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(7) In
order
to
prevent
a
public
limited
liability
company
proceedings where their claims are at stake as a
from using another company in which it holds a
consequence of a reduction in the capital of a public
majority of the voting rights or on which it can
limited liability company.
exercise a dominant influence to make such acquisitions
without complying with the restrictions imposed in that
respect, the arrangements governing a company's
acquisition of its own shares should be extended to
(13) In
order to ensure that market abuse is prevented,
cover the most important and most frequent cases of
Member States should take into account, for the
the acquisition of shares by such other companies.
purpose of implementation of this Directive, the
Those arrangements should be extended to cover
provisions of Directive 2003/6/EC of the European
subscription for shares in the public limited liability
Parliament and of the Council of 28 January 2003 on
company.
insider dealing and market manipulation (market
abuse) ( 2 ), Commission Regulation (EC) No 2273/2003
of 22 December 2003 implementing Directive
2003/6/EC of the European Parliament and of the
(8) In
order
to
prevent
the
circumvention
of
this
Directive,
Council as regards exemptions for buy-back programmes
companies governed by Directive 2009/101/EC of the
and stabilisation of financial instruments
( 3 ) and
European Parliament and of the Council of 16 September
Commission Directive 2004/72/EC of 29 April 2004
2009 on coordination of safeguards which, for the
implementing Directive 2003/6/EC of the European
protection of the interests of members and third
Parliament and of the Council as regards accepted
parties, are required by Member States of companies
market practices, the definition of inside information in
within the meaning of the second paragraph of Article 54
relation to derivatives on commodities, the drawing up of
of the Treaty, with a view to making such safeguards
lists of insiders, the notification of managers' transactions
equivalent ( 1 ) and companies governed by the laws of
and the notification of suspicious transactions ( 4 ).
third countries and having comparable legal forms
should also be covered by the arrangements referred to
in recital 7.
(14) In the light of the judgment of the Court of Justice of
6 May 2008 in Case C-133/06 Parliament v Council ( 5 ), it
is considered necessary to redraft the wording of
(9) Where
the
relationship
between
a
public
limited
liability
Article 6(3) of Directive 77/91/EEC in order to remove
company and another company such as referred to in
an existing secondary legal basis and to provide for the
recital 7 is only indirect, it would appear to be justified
examination and, if need be, the revision of the amount
to relax the provisions applicable when that relationship
referred to in paragraph 1 of that Article by both the
is direct by providing for the suspension of voting rights
European Parliament and the Council.
as a minimum measure for the purpose of achieving the
aims of this Directive.
(15) This Directive should be without prejudice to the
obligations of the Member States relating to the time-
(10) Furthermore,
it
is
justifiable
to
exempt
cases
in
which
the
limits for transposition into national law and application
specific nature of a professional activity rules out the
of the Directives set out in Annex II, Part B,
possibility that the attainment of the objectives of this
Directive may be endangered.
HAVE ADOPTED THIS DIRECTIVE:
(11) It is necessary, having regard to the objectives of point
(g) of Article 50(2) of the Treaty, that the Member States'
laws relating to the increase or reduction of capital
Article 1
ensure that the principles of equal treatment of share
holders in the same position and of protection of
1. The
coordination
measures
prescribed
by
this
Directive
creditors whose claims exist prior to the decision on
shall apply to the provisions laid down by law, regulation or
reduction are observed and harmonised.
administrative action in Member States relating to the types of
company listed in Annex I.
(12) In
order
to
enhance
standardised
creditor
protection
in
all Member States, creditors should be able to resort,
The name for any company of the types listed in Annex I shall
under certain conditions, to judicial or administrative
comprise or be accompanied by a description which is distinct
from the description required of other types of companies.
( 1 ) OJ L 258, 1.10.2009, p. 11. Editorial note: The title of Directive
2009/101/EC has been adjusted to take account of the renumbering
( 2 ) OJ L 96, 12.4.2003, p. 16.
of the Articles of the Treaty establishing the European Community,
( 3 ) OJ L 336, 23.12.2003, p. 33.
in accordance with Article 5 of the Treaty of Lisbon; the original
( 4 ) OJ L 162, 30.4.2004, p. 70.
reference was to the second paragraph of Article 48 of the Treaty.
( 5 ) [2008] ECR I-3189.

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2. The
Member
States
may
decide
not
to
apply
this
Directive (e) in so far as they are not legally determined, the rules
to investment companies with variable capital and to cooper
governing the number of and the procedure for appointing
atives incorporated as one of the types of company listed in
members of the bodies responsible for representing the
Annex I. In so far as the laws of the Member States make use of
company with regard to third parties, administration,
this option, they shall require such companies to include the
management, supervision or control of the company and
words ‘investment company with variable capital’, or ‘cooper
the allocation of powers among those bodies;
ative’ in all documents indicated in Article 5 of Directive
2009/101/EC.
(f) the duration of the company, except where this is indefinite.
The expression ‘investment company with variable capital’,
within the meaning of this Directive, means only those
companies:
Article 3
The following information at least must appear in either the
statutes or the instrument of incorporation or a separate
document published in accordance with the procedure laid
— the exclusive object of which is to invest their funds in
down in the laws of each Member State in accordance with
various stocks and shares, land or other assets with the
Article 3 of Directive 2009/101/EC:
sole aim of spreading investment risks and giving their
shareholders the benefit of the results of the management
of their assets,
(a) the registered office;
— which offer their own shares for subscription by the public,
(b) the nominal value of the shares subscribed and, at least
and
once a year, the number thereof;
— the statutes of which provide that, within the limits of a
(c) the number of shares subscribed without stating the
minimum and maximum capital, they may at any time
nominal value, where such shares may be issued under
issue, redeem or resell their shares.
national law;
(d) the special conditions, if any, limiting the transfer of shares;
Article 2
The statutes or the instrument of incorporation of the company
shall always give at least the following information:
(e) where there are several classes of shares, the information
referred to in points (b), (c) and (d) for each class and the
rights attaching to the shares of each class;
(a) the type and name of the company;
(f) whether the shares are registered or bearer, where national
law provides for both types, and any provisions relating to
(b) the objects of the company;
the conversion of such shares unless the procedure is laid
down by law;
(c) when the company has no authorised capital, the amount of
(g) the amount of the subscribed capital paid up at the time the
the subscribed capital;
company is incorporated or is authorised to commence
business;
(d) when the company has an authorised capital, the amount
thereof and also the amount of the capital subscribed at the
(h) the nominal value of the shares or, where there is no
time the company is incorporated or is authorised to
nominal value, the number of shares issued for a
commence business, and at the time of any change in the
consideration other than in cash, together with the nature
authorised capital, without prejudice to point (e) of Article 2
of the consideration and the name of the person providing
of Directive 2009/101/EC;
that consideration;

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(i) the identity of the natural or legal persons or companies or
3. Where
a
winding-up
order
as
referred
to
in
paragraph
2
is
firms by whom or in whose name the statutes or the
made the company shall enter into liquidation.
instrument of incorporation, or where the company was
not formed at the same time, the drafts of those documents,
have been signed;
Article 6
1. The
laws
of
the
Member
States
shall
require
that,
in
order
that a company may be incorporated or obtain authorisation to
(j) the total amount, or at least an estimate, of all the costs
commence business, a minimum capital shall be subscribed the
payable by the company or chargeable to it by reason of its
amount of which shall be not less than EUR 25 000.
formation and, where appropriate, before the company is
authorised to commence business; and
2. Every five years the European Parliament and the Council,
acting on a proposal from the Commission in accordance with
Article 50(1) and (2)(g) of the Treaty, shall examine and, if need
(k) any special advantage granted, at the time the company is
be, revise the amount expressed in paragraph 1 in euro in the
formed or up to the time it receives authorisation to
light of economic and monetary trends in the Union and of the
commence business, to anyone who has taken part in the
tendency towards allowing only large and medium-sized under
formation of the company or in transactions leading to the
takings to opt for the types of company listed in Annex I.
grant of such authorisation.
Article 7
The subscribed capital may be formed only of assets capable of
Article 4
economic assessment. However, an undertaking to perform
work or supply services may not form part of those assets.
1. Where the laws of a Member State prescribe that a
company may not commence business without authorisation,
they shall also make provision for responsibility for liabilities
incurred by or on behalf of the company during the period
before such authorisation is granted or refused.
Article 8
Shares may not be issued at a price lower than their nominal
value, or, where there is no nominal value, their accountable
par.
2. Paragraph 1 shall not apply to liabilities under contracts
concluded by the company conditionally upon its being granted
authorisation to commence business.
However, Member States may allow those who undertake to
place shares in the exercise of their profession to pay less
than the total price of the shares for which they subscribe in
the course of that transaction.
Article 5
1. Where the laws of a Member State require a company to
be formed by more than one member, the fact that all the
Article 9
shares are held by one person or that the number of
members has fallen below the legal minimum after incor
Shares issued for a consideration must be paid up at the time
poration of the company shall not lead to the automatic
the company is incorporated or is authorised to commence
dissolution of the company.
business at not less than 25 % of their nominal value or, in
the absence of a nominal value, their accountable par.
2. If, in the cases referred to in paragraph 1, the laws of a
However, where shares are issued for a consideration other than
Member State permit the company to be wound up by order of
in cash at the time the company is incorporated or is authorised
the court, the judge having jurisdiction must be able to give the
to commence business, the consideration must be transferred in
company sufficient time to regularise its position.
full within five years of that time.

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Article 10
(e) the guarantee referred to in point (d) has been published as
provided for in paragraph 3; and
1. A
report
on
any
consideration
other
than
in
cash
shall
be
drawn up before the company is incorporated or is authorised
to commence business, by one or more independent experts
appointed or approved by an administrative or judicial auth
ority. Such experts may be natural persons as well as legal
persons and companies or firms under the laws of each
(f) the companies furnishing such consideration shall place a
Member State.
sum equal to that indicated in point (c) into a reserve which
may not be distributed until three years after publication of
the annual accounts of the recipient company for the
financial year during which such consideration was
2. The
experts'
report
referred
to
in
paragraph
1
shall
furnished or, if necessary, until such later date as all
contain at least a description of each of the assets comprising
claims relating to the guarantee referred to in point (d)
the consideration as well as of the methods of valuation used
which are submitted during that period have been settled.
and shall state whether the values arrived at by the application
of those methods correspond at least to the number and
nominal value or, where there is no nominal value, to the
accountable par and, where appropriate, to the premium on
the shares to be issued for them.
5. Member
States
may
decide
not
to
apply
this
Article
to
the
formation of a new company by way of merger or division
where a report by one or more independent experts on the
draft terms of merger or division is drawn up.
3. The
experts'
report
shall
be
published
in
the
manner
laid
down by the laws of each Member State, in accordance with
Article 3 of Directive 2009/101/EC.
Where Member States decide to apply this Article in the cases
referred to in the first subparagraph, they may provide that the
4. Member
States
may
decide
not
to
apply
this
Article
where report under this Article and the report by one or more inde
90 % of the nominal value, or where there is no nominal value,
pendent experts on the draft terms of merger or division may
of the accountable par, of all the shares is issued to one or more
be drawn up by the same expert or experts.
companies for a consideration other than in cash, and where
the following requirements are met:
Article 11
(a) with regard to the company in receipt of such consider
ation, the persons referred to in point (i) of Article 3
1. Member
States
may
decide
not
to
apply
Article
10(1),
(2)
have agreed to dispense with the experts' report;
and (3) of this Directive where, upon a decision of the adminis
trative or management body, transferable securities as defined in
point 18 of Article 4(1) of Directive 2004/39/EC of the
European Parliament and of the Council of 21 April 2004 on
markets in financial instruments
( 1 ) or money-market
(b) such agreement has been published as provided for in
instruments as defined in point 19 of Article 4(1) of that
paragraph 3;
Directive are contributed as consideration other than in cash,
and those securities or money-market instruments are valued at
the weighted average price at which they have been traded on
one or more regulated markets as defined in point 14 of
(c) the companies furnishing such consideration have reserves
Article 4(1) of that Directive during a sufficient period, to be
which may not be distributed under the law or the statutes
determined by national law, preceding the effective date of the
and which are at least equal to the nominal value or, where
contribution of the respective consideration other than in cash.
there is no nominal value, the accountable par of the shares
issued for consideration other than in cash;
However, where that price has been affected by exceptional
(d) the companies furnishing such consideration guarantee, up
circumstances that would significantly change the value of the
to an amount equal to that indicated in point (c), the debts
asset at the effective date of its contribution, including situations
of the recipient company arising between the time the
where the market for such transferable securities or money-
shares are issued for a consideration other than in cash
market instruments has become illiquid, a revaluation shall be
and one year after the publication of that company's
carried out on the initiative and under the responsibility of the
annual accounts for the financial year during which such
administrative or management body.
consideration was furnished; any transfer of those shares is
prohibited within this period;
( 1 ) OJ L 145, 30.4.2004, p. 1.

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For the purposes of such revaluation, Article 10(1), (2) and (3)
statutory accounts have been subject to an audit in accordance
shall apply.
with Directive 2006/43/EC of the European Parliament and of
the Council of 17 May 2006 on statutory audits of annual
accounts and consolidated accounts ( 1 ).
2. Member
States
may
decide
not
to
apply
Article
10(1),
(2)
and (3) where, upon a decision of the administrative or
management body, assets other than the transferable securities
The second to fifth subparagraphs of paragraph 2 of this Article
and money-market instruments referred to in paragraph 1 of
shall apply mutatis mutandis.
this Article are contributed as consideration other than in cash
which have already been subject to a fair value opinion by a
recognised independent expert and where the following
conditions are fulfilled:
Article 12
1. Where
consideration
other
than
in
cash
as
referred
to
in
Article 11 occurs without an experts' report as referred to in
Article 10(1), (2) and (3), in addition to the requirements set
(a) the fair value is determined for a date not more than six
out in point (h) of Article 3 and within one month after the
months before the effective date of the asset contribution;
effective date of the asset contribution, a declaration containing
and
the following shall be published:
(b) the valuation has been performed in accordance with
(a) a description of the consideration other than in cash at
generally accepted valuation standards and principles in
issue;
the Member State which are applicable to the kind of
assets to be contributed.
(b) its value, the source of that valuation and, where appro
priate, the method of valuation;
In the case of new qualifying circumstances that would signifi
cantly change the fair value of the asset at the effective date of
its contribution, a revaluation shall be carried out on the
initiative and under the responsibility of the administrative or
(c) a statement whether the value arrived at corresponds at least
management body.
to the number, to the nominal value or, where there is no
nominal value, the accountable par and, where appropriate,
to the premium on the shares to be issued for such
consideration; and
For the purposes of such revaluation, Article 10(1), (2) and (3)
shall apply.
(d) a statement that no new qualifying circumstances with
regard to the original valuation have occurred.
In the absence of such a revaluation, one or more shareholders
holding an aggregate percentage of at least 5 % of the
company's subscribed capital on the day the decision on the
increase in the capital is taken may demand a valuation by an
That publication shall be effected in the manner laid down by
independent expert, in which case Article 10(1), (2) and (3) shall
the laws of each Member State in accordance with Article 3 of
apply.
Directive 2009/101/EC.
Such shareholder(s) may submit a demand up until the effective
2. Where
consideration
other
than
in
cash
is
proposed
to
be
date of the asset contribution, provided that, at the date of the
made without an experts' report as referred to in Article 10(1),
demand, the shareholder(s) in question still hold(s) an aggregate
(2) and (3) in relation to an increase in the capital proposed to
percentage of at least 5 % of the company's subscribed capital as
be made under Article 29(2), an announcement containing the
it was on the day the decision on the increase in the capital was
date when the decision on the increase was taken and the
taken.
information listed in paragraph 1 of this Article shall be
published, in the manner laid down by the laws of each
Member State in accordance with Article 3 of Directive
2009/101/EC, before the contribution of the asset as
3. Member
States
may
decide
not
to
apply
Article
10(1),
(2) consideration other than in cash is to become effective. In
and (3) where, upon a decision of the administrative or
that event, the declaration pursuant to paragraph 1 of this
management body, assets other than the transferable securities
Article shall be limited to the statement that no new qualifying
and money-market instruments referred to in paragraph 1 of
circumstances have occurred since the aforementioned
this Article are contributed as consideration other than in cash
announcement was published.
whose fair value is derived by individual asset from the statutory
accounts of the previous financial year provided that the
( 1 ) OJ L 157, 9.6.2006, p. 87.

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3. Each
Member
State
shall
provide
for
adequate
safeguards date of the last financial year the net assets as set out in the
ensuring compliance with the procedure set out in Article 11
company's annual accounts are, or following such a distribution
and in this Article where a contribution for a consideration
would become, lower than the amount of the subscribed capital
other than in cash is made without an experts' report as
plus those reserves which may not be distributed under the law
referred to in Article 10(1), (2) and (3).
or the statutes.
Article 13
2. Where the uncalled part of the subscribed capital is not
1. If,
before
the
expiry
of
a
time-limit
laid
down
by
national included in the assets shown in the balance sheet, that amount
law of at least two years from the time the company is incor
shall be deducted from the amount of subscribed capital
porated or is authorised to commence business, the company
referred to in paragraph 1.
acquires any asset belonging to a person or company or firm
referred to in point (i) of Article 3 for a consideration of not
less than one-tenth of the subscribed capital, the acquisition
shall be examined and details of it published in the manner
3. The
amount
of
a
distribution
to
shareholders
may
not
provided for in Article 10(1), (2) and (3) and it shall be
exceed the amount of the profits at the end of the last
submitted for the approval of the general meeting.
financial year plus any profits brought forward and sums
drawn from reserves available for this purpose, less any losses
brought forward and sums placed to reserve in accordance with
the law or the statutes.
Articles 11 and 12 shall apply mutatis mutandis.
4. The
expression
‘distribution’
used
in
paragraphs
1
and
3
Member States may also require those provisions to be applied
includes in particular the payment of dividends and of interest
when the assets belong to a shareholder or to any other person.
relating to shares.
2. Paragraph
1
shall
not
apply
to
acquisitions
effected
in
the 5. When the laws of a Member State allow the payment of
normal course of the company's business, to acquisitions
interim dividends, the following conditions at least shall apply:
effected at the instance or under the supervision of an adminis
trative or judicial authority, or to stock exchange acquisitions.
(a) interim accounts shall be drawn up showing that the funds
Article 14
available for distribution are sufficient;
Subject to the provisions relating to the reduction of subscribed
capital, the shareholders may not be released from the
obligation to pay up their contributions.
(b) the amount to be distributed may not exceed the total
profits made since the end of the last financial year for
which the annual accounts have been drawn up, plus any
profits brought forward and sums drawn from reserves
Article 15
available for that purpose, less losses brought forward and
Pending coordination of national laws at a subsequent date,
sums to be placed to reserve pursuant to the requirements
Member States shall adopt the measures necessary to require
of the law or the statutes.
provision of at least the same safeguards as are laid down in
Articles 2 to 14 in the event of the conversion of another type
of company into a public limited liability company.
6. Paragraphs
1
to
5
shall
not
affect
the
provisions
of
the
Member States as regards increases in subscribed capital by
capitalisation of reserves.
Article 16
Articles 2 to 15 shall not prejudice the provisions of Member
States on competence and procedure relating to the modifi
7. The
laws
of
a
Member
State
may
provide
for
derogation
cation of the statutes or of the instrument of incorporation.
from paragraph 1 in the case of investment companies with
fixed capital.
Article 17
1. Except
for
cases
of
reductions
of
subscribed
capital,
no
The expression ‘investment company with fixed capital’, within
distribution to shareholders may be made when on the closing
the meaning of this paragraph, means only those companies:

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(a) the exclusive object of which is to invest their funds in
Article 20
various stocks and shares, land or other assets with the
sole aim of spreading investment risks and giving their
1. The shares of a company may not be subscribed for by
shareholders the benefit of the results of the management
the company itself.
of their assets; and
2. If
the
shares
of
a
company
have
been
subscribed
for
by
a
person acting in his own name, but on behalf of the company,
(b) which offer their own shares for subscription by the public.
the subscriber shall be deemed to have subscribed for them for
his own account.
In so far as the laws of Member States make use of this option
3. The persons or companies or firms referred to in point (i)
they shall:
of Article 3 or, in cases of an increase in subscribed capital, the
members of the administrative or management body shall be
liable to pay for shares subscribed in contravention of this
Article.
(a) require such companies to include the expression
‘investment company’ in all documents indicated in
Article 5 of Directive 2009/101/EC;
However, the laws of a Member State may provide that any
such person may be released from his obligation if he proves
that no fault is attributable to him personally.
(b) not permit any such company whose net assets fall below
the amount specified in paragraph 1 to make a distribution
Article 21
to shareholders when on the closing date of the last
financial year the company's total assets as set out in the
1. Without
prejudice
to
the
principle
of
equal
treatment
of
annual accounts are, or following such distribution would
all shareholders who are in the same position, and to Directive
become, less than one-and-a-half times the amount of the
2003/6/EC, Member States may permit a company to acquire
company's total liabilities to creditors as set out in the
its own shares, either itself or through a person acting in his
annual accounts; and
own name but on the company's behalf. To the extent that the
acquisitions are permitted, Member States shall make such
acquisitions subject to the following conditions:
(c) require any such company which makes a distribution when
its net assets fall below the amount specified in paragraph 1
(a) authorisation shall be given by the general meeting, which
to include in its annual accounts a note to that effect.
shall determine the terms and conditions of such
acquisitions and, in particular, the maximum number of
shares to be acquired, the duration of the period for
which the authorisation is given, the maximum length of
which shall be determined by national law without,
Article 18
however, exceeding five years, and, in the case of acquisition
Any distribution made contrary to Article 17 must be returned
for value, the maximum and minimum consideration.
by shareholders who have received it if the company proves
Members of the administrative or management body shall
that those shareholders knew of the irregularity of the
satisfy themselves that, at the time when each authorised
distributions made to them, or could not in view of the circum
acquisition is effected, the conditions referred to in points
stances have been unaware of it.
(b) and (c) are respected;
(b) the acquisitions, including shares previously acquired by the
Article 19
company and held by it, and shares acquired by a person
acting in his own name but on the company's behalf, may
1. In the case of a serious loss of the subscribed capital, a
not have the effect of reducing the net assets below the
general meeting of shareholders must be called within the
amount mentioned in Article 17(1) and (2); and
period laid down by the laws of the Member States, to
consider whether the company should be wound up or any
other measures taken.
(c) only fully paid-up shares may be included in the transaction.
2. The
amount
of
a
loss
deemed
to
be
serious
within
the Furthermore, Member States may subject acquisitions within the
meaning of paragraph 1 may not be set by the laws of Member
meaning of the first subparagraph to any of the following
States at a figure higher than half the subscribed capital.
conditions:

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(a) that the nominal value or, in the absence thereof, the
Such shares must be distributed within 12 months of their
accountable par of the acquired shares, including shares
acquisition.
previously acquired by the company and held by it, and
shares acquired by a person acting in his own name but
on the company's behalf, may not exceed a limit to be
determined by Member States; that limit may not be
Article 22
lower than 10 % of the subscribed capital;
1. Member
States
may
decide
not
to
apply
Article
21
to:
(a) shares acquired in carrying out a decision to reduce capital,
(b) that the power of the company to acquire its own shares
or in the circumstances referred to in Article 43;
within the meaning of the first subparagraph, the maximum
number of shares to be acquired, the duration of the period
for which the power is given and the maximum or
minimum consideration are laid down in the statutes or
(b) shares acquired as a result of a universal transfer of assets;
in the instrument of incorporation of the company;
(c) fully paid-up shares acquired free of charge or by banks and
other financial institutions as purchasing commission;
(c) that the company complies with appropriate reporting and
notification requirements;
(d) shares acquired by virtue of a legal obligation or resulting
from a court ruling for the protection of minority share
holders in the event, particularly, of a merger, a change in
the company's object or form, transfer abroad of the
registered office, or the introduction of restrictions on the
(d) that certain companies, as determined by Member States,
transfer of shares;
may be required to cancel the acquired shares provided
that an amount equal to the nominal value of the shares
cancelled must be included in a reserve which cannot be
distributed to the shareholders, except in the event of a
(e) shares acquired from a shareholder in the event of failure to
reduction in the subscribed capital; that reserve may be
pay them up;
used only for the purposes of increasing the subscribed
capital by the capitalisation of reserves; and
(f) shares acquired in order to indemnify minority shareholders
in associated companies;
(e) that the acquisition shall not prejudice the satisfaction of
creditors' claims.
(g) fully paid-up shares acquired under a sale enforced by a
court order for the payment of a debt owed to the
company by the owner of the shares; and
2. The
laws
of
a
Member
State
may
provide
for
derogations
from the first sentence of point (a) of paragraph 1 where the
(h) fully paid-up shares issued by an investment company with
acquisition of a company's own shares is necessary to prevent
fixed capital, as defined in the second subparagraph of
serious and imminent harm to the company. In such a case, the
Article 17(7), and acquired at the investor's request by
next general meeting must be informed by the administrative or
that company or by an associate company. Point (a) of
management body of the reasons for and nature of the
the third subparagraph of Article 17(7) shall apply. Those
acquisitions effected, of the number and nominal value or, in
acquisitions may not have the effect of reducing the net
the absence of a nominal value, the accountable par, of the
assets below the amount of the subscribed capital plus
shares acquired, of the proportion of the subscribed capital
any reserves the distribution of which is forbidden by law.
which they represent, and of the consideration for these shares.
2. Shares acquired in the cases listed in points (b) to (g) of
paragraph 1 must, however, be disposed of within not more
than three years of their acquisition unless the nominal value or,
3. Member
States
may
decide
not
to
apply
the
first
sentence in the absence of a nominal value, the accountable par of the
of point (a) of paragraph 1 to shares acquired by either the
shares acquired, including shares which the company may have
company itself or by a person acting in his own name but
acquired through a person acting in his own name but on the
on the company's behalf, for distribution to that company's
company's behalf, does not exceed 10 % of the subscribed
employees or to the employees of an associate company.
capital.

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3. If the shares are not disposed of within the period laid
Article 25
down in paragraph 2, they must be cancelled. The laws of a
Member State may make that cancellation subject to a
1. Where
Member
States
permit
a
company
to,
either
directly
corresponding reduction in the subscribed capital. Such a
or indirectly, advance funds or make loans or provide security,
reduction must be prescribed where the acquisition of shares
with a view to the acquisition of its shares by a third party, they
to be cancelled results in the net assets having fallen below the
shall make such transactions subject to the conditions set out in
amount specified in Article 17(1) and (2).
paragraphs 2 to 5.
2. The
transactions
shall
take
place
under
the
responsibility
Article 23
of the administrative or management body at fair market
conditions, especially with regard to interest received by the
Shares acquired in contravention of Articles 21 and 22 shall be
company and with regard to security provided to the
disposed of within one year of their acquisition. Should they
company for the loans and advances referred to in paragraph 1.
not be disposed of within that period, Article 22(3) shall apply.
The credit standing of the third party or, in the case of
multiparty transactions, of each counterparty thereto shall
Article 24
have been duly investigated.
1. Where the laws of a Member State permit a company to
acquire its own shares, either itself or through a person acting
in his own name but on the company's behalf, they shall make
3. The
transactions
shall
be
submitted
by
the
administrative
the holding of those shares at all times subject to at least the
or management body to the general meeting for prior approval,
following conditions:
whereby the general meeting shall act in accordance with the
rules for a quorum and a majority laid down in Article 44.
(a) among the rights attaching to the shares, the right to vote
The administrative or management body shall present a written
attaching to the company's own shares shall in any event be
report to the general meeting, indicating:
suspended;
(a) the reasons for the transaction;
(b) if the shares are included among the assets shown in the
balance sheet, a reserve of the same amount, unavailable for
distribution, shall be included among the liabilities.
(b) the interest of the company in entering into such a trans
action;
2. Where the laws of a Member State permit a company to
(c) the conditions on which the transaction is entered into;
acquire its own shares, either itself or through a person acting
in his own name but on the company's behalf, they shall
require the annual report to state at least:
(d) the risks involved in the transaction for the liquidity and
solvency of the company; and
(a) the reasons for acquisitions made during the financial year;
(e) the price at which the third party is to acquire the shares.
(b) the number and nominal value or, in the absence of a
That report shall be submitted to the register for publication in
nominal value, the accountable par of the shares acquired
accordance with Article 3 of Directive 2009/101/EC.
and disposed of during the financial year and the
proportion of the subscribed capital which they represent;
4. The
aggregate
financial
assistance
granted
to
third
parties
shall at no time result in the reduction of the net assets below
the amount specified in Article 17(1) and (2), taking into
(c) in the case of acquisition or disposal for a value, the
account also any reduction of the net assets that may have
consideration for the shares;
occurred through the acquisition, by the company or on
behalf of the company, of its own shares in accordance with
Article 21(1).
(d) the number and nominal value or, in the absence of a
nominal value, the accountable par of all the shares
The company shall include, among the liabilities in the balance
acquired and held by the company and the proportion of
sheet, a reserve, unavailable for distribution, of the amount of
the subscribed capital which they represent.
the aggregate financial assistance.

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5. Where
a
third
party
by
means
of
financial
assistance
from
Article 28
a company acquires that company's own shares within the
meaning of Article 21(1) or subscribes for shares issued in
1. The
subscription,
acquisition
or
holding
of
shares
in
a
the course of an increase in the subscribed capital, such
public limited liability company by another company within
acquisition or subscription shall be made at a fair price.
the meaning of Article 1 of Directive 2009/101/EC in which
the public limited liability company directly or indirectly holds a
majority of the voting rights or on which it can directly or
indirectly exercise a dominant influence shall be regarded as
having been effected by the public limited liability company
6. Paragraphs 1 to 5 shall not apply to transactions
itself.
concluded by banks and other financial institutions in the
normal course of business, nor to transactions effected with a
view to the acquisition of shares by or for the company's
employees or the employees of an associate company.
The first subparagraph shall also apply where the other
company is governed by the law of a third country and has a
legal form comparable to those listed in Article 1 of Directive
2009/101/EC.
However, those transactions may not have the effect of reducing
the net assets below the amount specified in Article 17(1).
However, where the public limited liability company holds a
majority of the voting rights indirectly or can exercise a
7. Paragraphs 1 to 5 shall not apply to transactions effected
dominant influence indirectly, Member States need not apply
with a view to acquisition of shares as described in point (h) of
the first and the second subparagraphs if they provide for the
Article 22(1).
suspension of the voting rights attached to the shares in the
public limited liability company held by the other company.
Article 26
2. In
the
absence
of
coordination
of
national
legislation
on
In cases where individual members of the administrative or
groups of companies, Member States may:
management body of the company being party to a transaction
referred to in Article 25(1), or of the administrative or
management body of a parent undertaking within the
meaning of Article 1 of Seventh Council Directive 83/349/EEC
of 13 June 1983 based on the Article 50(2)(g) of the Treaty on
(a) define the cases in which a public limited liability company
consolidated accounts ( 1 ) or such parent undertaking itself, or
shall be regarded as being able to exercise a dominant
individuals acting in their own name but on behalf of the
influence on another company; if a Member State
members of such bodies or on behalf of such undertaking,
exercises this option, its national law must in any event
are counterparties to such a transaction, Member States shall
provide that a dominant influence can be exercised if a
ensure through adequate safeguards that such transaction does
public limited liability company:
not conflict with the company's best interests.
— has the right to appoint or dismiss a majority of the
Article 27
members of the administrative organ, of the
1. The
acceptance
of
the
company's
own
shares
as
security,
management organ or of the supervisory organ, and is
either by the company itself or through a person acting in his
at the same time a shareholder or member of the other
own name but on the company's behalf, shall be treated as an
company, or
acquisition for the purposes of Article 21, Article 22(1), and
Articles 24 and 25.
— is a shareholder or member of the other company and
has sole control of a majority of the voting rights of its
2. The
Member
States
may
decide
not
to
apply
paragraph
1
shareholders or members under an agreement concluded
to transactions concluded by banks and other financial insti
with other shareholders or members of that company.
tutions in the normal course of business.
( 1 ) OJ L 193, 18.7.1983, p. 1. Editorial note: The title of Directive
83/349/EEC has been adjusted to take account of the renumbering
Member States shall not be obliged to make provision for
of the Articles of the Treaty establishing the European Community,
in accordance with Article 5 of the Treaty of Lisbon; the original
any cases other than those referred to in the first and
reference was to Article 54(3)(g) of the Treaty.
second indents;

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(b) define the cases in which a public limited liability company
(b) the members of the administrative or the management
shall be regarded as indirectly holding voting rights or as
organ of the public limited liability company to be
able indirectly to exercise a dominant influence;
obliged to buy back from the other company the shares
referred to in Article 22(2) and (3) and Article 23 at the
price at which the other company acquired them; this
sanction shall be inapplicable only where the members of
the administrative or the management organ of the public
(c) specify the circumstances in which a public limited liability
limited liability company prove that that company played
company shall be regarded as holding voting rights.
no part whatsoever in the subscription for or acquisition of
the shares in question.
3. Member
States
need
not
apply
the
first
and
second
subparagraphs of paragraph 1 where the subscription,
acquisition or holding is effected on behalf of a person other
Article 29
than the person subscribing, acquiring or holding the shares,
1. Any increase in capital must be decided upon by the
who is neither the public limited liability company referred to in
general meeting. Both that decision and the increase in the
paragraph 1 nor another company in which the public limited
subscribed capital shall be published in the manner laid down
liability company directly or indirectly holds a majority of the
by the laws of each Member State, in accordance with Article 3
voting rights or on which it can directly or indirectly exercise a
of Directive 2009/101/EC.
dominant influence.
4. Member
States
need
not
apply
the
first
and
second 2. Nevertheless,
the
statutes
or
instrument
of
incorporation
subparagraphs of paragraph 1 where the subscription,
or the general meeting, the decision of which must be published
acquisition or holding is effected by the other company in its
in accordance with the rules referred to in paragraph 1, may
capacity and in the context of its activities as a professional
authorise an increase in the subscribed capital up to a
dealer in securities, provided that it is a member of a stock
maximum amount which they shall fix with due regard for
exchange situated or operating within a Member State, or is
any maximum amount provided for by law. Where appropriate,
approved or supervised by an authority of a Member State
the increase in the subscribed capital shall be decided on within
competent to supervise professional dealers in securities
the limits of the amount fixed by the company body
which, within the meaning of this Directive, may include
empowered to do so. The power of such body in this respect
credit institutions.
shall be for a maximum period of five years and may be
renewed one or more times by the general meeting, each
time for a period not exceeding five years.
5. Member
States
need
not
apply
the
first
and
second
subparagraphs of paragraph 1 where shares in a public
limited liability company held by another company were
3. Where
there
are
several
classes
of
shares,
the
decision
by
acquired before the relationship between the two companies
the general meeting concerning the increase in capital referred
corresponded to the criteria laid down in paragraph 1.
to in paragraph 1 or the authorisation to increase the capital
referred to in paragraph 2 shall be subject to a separate vote at
least for each class of shareholder whose rights are affected by
the transaction.
However, the voting rights attached to those shares shall be
suspended and the shares shall be taken into account when it
is determined whether the condition laid down in point (b) of
Article 21(1) is fulfilled.
4. This
Article
shall
apply
to
the
issue
of
all
securities
which
are convertible into shares or which carry the right to subscribe
for shares, but not to the conversion of such securities, nor to
the exercise of the right to subscribe.
6. Member
States
need
not
apply
Article
22(2)
or
(3)
or
Article 23 where shares in a public limited liability company
are acquired by another company on condition that they
provide for:
Article 30
Shares issued for a consideration, in the course of an increase in
subscribed capital, must be paid up to at least 25 % of their
(a) the suspension of the voting rights attached to the shares in
nominal value or, in the absence of a nominal value, of their
the public limited liability company held by the other
accountable par. Where provision is made for an issue
company; and
premium, it must be paid in full.

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Article 31
Article 32
1. Where
shares
are
issued
for
a
consideration
other
than
in
Where an increase in capital is not fully subscribed, the capital
cash in the course of an increase in the subscribed capital the
will be increased by the amount of the subscriptions received
consideration must be transferred in full within a period of five
only if the conditions of the issue so provide.
years from the decision to increase the subscribed capital.
Article 33
1. Whenever
the
capital
is
increased
by
consideration
in
2. The
consideration
referred
to
in
paragraph
1
shall
be
the cash, the shares must be offered on a pre-emptive basis to
subject of a report drawn up before the increase in capital is
shareholders in proportion to the capital represented by their
made by one or more experts who are independent of the
shares.
company and appointed or approved by an administrative or
judicial authority. Such experts may be natural persons as well
as legal persons and companies and firms under the laws of
each Member State.
2. The
laws
of
a
Member
State:
(a) need not apply paragraph 1 to shares which carry a limited
right to participate in distributions within the meaning of
Article 10(2) and (3) and Articles 11 and 12 shall apply.
Article 17 and/or in the company's assets in the event of
liquidation; or
3. Member
States
may
decide
not
to
apply
paragraph
2
in (b) may permit, where the subscribed capital of a company
the event of an increase in subscribed capital made in order to
having several classes of shares carrying different rights
give effect to a merger, a division or a public offer for the
with regard to voting, or participation in distributions
purchase or exchange of shares and to pay the shareholders
within the meaning of Article 17 or in assets in the event
of the company which is being absorbed or divided or which
of liquidation, is increased by issuing new shares in only
is the object of the public offer for the purchase or exchange of
one of these classes, the right of pre-emption of share
shares.
holders of the other classes to be exercised only after the
exercise of that right by the shareholders of the class in
which the new shares are being issued.
In the case of a merger or a division, however, Member States
3. Any
offer
of
subscription
on
a
pre-emptive
basis
and
the
shall apply the first subparagraph only where a report by one or
period within which that right must be exercised shall be
more independent experts on the draft terms of merger or
published in the national gazette appointed in accordance
division is drawn up.
with Directive 2009/101/EC. However, the laws of a Member
State need not provide for such publication where all of a
company's shares are registered. In such case, all the
company's shareholders must be informed in writing. The
right of pre-emption must be exercised within a period which
shall not be less than 14 days from the date of publication of
Where Member States decide to apply paragraph 2 in the case
the offer or from the date of dispatch of the letters to the
of a merger or a division, they may provide that the report
shareholders.
under this Article and the report by one or more independent
experts on the draft terms of merger or division may be drawn
up by the same expert or experts.
4. The
right
of
pre-emption
may
not
be
restricted
or
withdrawn by the statutes or instrument of incorporation.
This may, however, be done by decision of the general
meeting. The administrative or management body shall be
required to present to such a meeting a written report indicating
4. Member
States
may
decide
not
to
apply
paragraph
2
if
all the reasons for restriction or withdrawal of the right of pre-
the shares issued in the course of an increase in subscribed
emption, and justifying the proposed issue price. The general
capital are issued for a consideration other than in cash to
meeting shall act in accordance with the rules for a quorum and
one or more companies, on condition that all the shareholders
a majority laid down in Article 44. Its decision shall be
in the company which receive the consideration have agreed
published in the manner laid down by the laws of each
not to have an experts' report drawn up and that the
Member State, in accordance with Article 3 of Directive
requirements of points (b) to (f) of Article 10(4) are met.
2009/101/EC.

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5. The
laws
of
a
Member
State
may
provide
that
the
statutes, Member States shall lay down the conditions for the exercise of
the instrument of incorporation or the general meeting, acting
the right provided for in the first subparagraph. In any event,
in accordance with the rules for a quorum, a majority and
Member States shall ensure that the creditors are authorised to
publication set out in paragraph 4, may give the power to
apply to the appropriate administrative or judicial authority for
restrict or withdraw the right of pre-emption to the company
adequate safeguards provided that they can credibly demonstrate
body which is empowered to decide on an increase in
that due to the reduction in the subscribed capital the satis
subscribed capital within the limit of the authorised capital.
faction of their claims is at stake, and that no adequate safe
That power may not be granted for a longer period than the
guards have been obtained from the company.
power for which provision is made in Article 29(2).
2. The
laws
of
the
Member
States
shall
also
stipulate
at
least
6. Paragraphs 1 to 5 shall apply to the issue of all securities
that the reduction shall be void, or that no payment may be
which are convertible into shares or which carry the right to
made for the benefit of the shareholders, until the creditors have
subscribe for shares, but not to the conversion of such secur
obtained satisfaction or a court has decided that their appli
ities, nor to the exercise of the right to subscribe.
cation should not be acceded to.
7. The
right
of
pre-emption
is
not
excluded
for
the
purposes
of paragraphs 4 and 5 where, in accordance with the decision
3. This
Article
shall
apply
where
the
reduction
in
the
to increase the subscribed capital, shares are issued to banks or
subscribed capital is brought about by the total or partial
other financial institutions with a view to their being offered to
waiving of the payment of the balance of the shareholders'
shareholders of the company in accordance with paragraphs 1
contributions.
and 3.
Article 37
Article 34
1. Member
States
need
not
apply
Article
36
to
a
reduction
in
Any reduction in the subscribed capital, except under a court
the subscribed capital whose purpose is to offset losses incurred
order, must be subject at least to a decision of the general
or to include sums of money in a reserve provided that,
meeting acting in accordance with the rules for a quorum
following that operation, the amount of such reserve is not
and a majority laid down in Article 44 without prejudice to
more than 10 % of the reduced subscribed capital. Except in
Articles 40 and 41. Such decision shall be published in the
the event of a reduction in the subscribed capital, that reserve
manner laid down by the laws of each Member State in
may not be distributed to shareholders; it may be used only for
accordance with Article 3 of Directive 2009/101/EC.
offsetting losses incurred or for increasing the subscribed capital
by the capitalisation of such reserve, in so far as the Member
States permit such an operation.
The notice convening the meeting must specify at least the
purpose of the reduction and the way in which it is to be
carried out.
2. In the cases referred to in paragraph 1 the laws of the
Member States must at least provide for the measures necessary
to ensure that the amounts deriving from the reduction of
subscribed capital may not be used for making payments or
Article 35
distributions to shareholders or discharging shareholders from
Where there are several classes of shares, the decision by the
the obligation to make their contributions.
general meeting concerning a reduction in the subscribed capital
shall be subject to a separate vote, at least for each class of
shareholders whose rights are affected by the transaction.
Article 38
The subscribed capital may not be reduced to an amount less
Article 36
than the minimum capital laid down in accordance with
Article 6.
1. In the event of a reduction in the subscribed capital, at
least the creditors whose claims antedate the publication of the
decision on the reduction shall at least have the right to obtain
security for claims which have not fallen due by the date of that
publication. Member States may not set aside such a right
However, Member States may permit such a reduction if they
unless the creditor has adequate safeguards, or unless such safe
also provide that the decision to reduce the subscribed capital
guards are not necessary having regard to the assets of the
may take effect only when the subscribed capital is increased to
company.
an amount at least equal to the prescribed minimum.

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Article 39
(c) the company body deciding on the compulsory withdrawal
shall fix the terms and manner thereof, where they have not
Where the laws of a Member State authorise total or partial
already been fixed by the statutes or instrument of incor
redemption of the subscribed capital without reduction of the
poration;
latter, they shall at least require that the following conditions
are observed:
(d) Article 36 shall apply except in the case of fully paid-up
shares which are made available to the company free of
(a) where the statutes or instrument of incorporation provide
charge or are withdrawn using sums available for
for redemption, the latter shall be decided on by the general
distribution in accordance with Article 17(1) to (4); in
meeting voting at least under the usual conditions of
those cases, an amount equal to the nominal value or, in
quorum and majority; where the statutes or instrument of
the absence thereof, to the accountable par of all the
incorporation do not provide for redemption, the latter shall
withdrawn shares must be included in a reserve; except in
be decided upon by the general meeting acting at least
the event of a reduction in the subscribed capital that
under the conditions of quorum and majority laid down
reserve may not be distributed to shareholders; it can be
in Article 44; the decision must be published in the
used only for offsetting losses incurred or for increasing the
manner prescribed by the laws of each Member State, in
subscribed capital by the capitalisation of such reserve, in so
accordance with Article 3 of Directive 2009/101/EC;
far as Member States permit such an operation; and
(e) the decision on compulsory withdrawal shall be published
(b) only sums which are available for distribution within the
in the manner laid down by the laws of each Member State
meaning of Article 17(1) to (4) may be used for redemption
in accordance with Article 3 of Directive 2009/101/EC.
purposes;
2. Article 34(1) and Articles 35, 37 and 44 shall not apply
to the cases to which paragraph 1 of this Article refers.
(c) shareholders whose shares are redeemed shall retain their
rights in the company, with the exception of their rights to
the repayment of their investment and participation in the
distribution of an initial dividend on unredeemed shares.
Article 41
1. In the case of a reduction in the subscribed capital by the
withdrawal of shares acquired by the company itself or by a
person acting in his own name but on behalf of the company,
the withdrawal must always be decided on by the general
Article 40
meeting.
1. Where the laws of a Member State may allow companies
to reduce their subscribed capital by compulsory withdrawal of
shares, they shall require that at least the following conditions
are observed:
2. Article
36
shall
apply
unless
the
shares
are
fully
paid
up
and are acquired free of charge or using sums available for
distribution in accordance with Article 17(1) to (4); in those
cases an amount equal to the nominal value or, in the absence
thereof, to the accountable par of all the shares withdrawn must
(a) compulsory withdrawal must be prescribed or authorised by
be included in a reserve. Except in the event of a reduction in
the statutes or instrument of incorporation before the shares
the subscribed capital, that reserve may not be distributed to
which are to be withdrawn are subscribed for;
shareholders. It may be used only for offsetting losses incurred
or for increasing the subscribed capital by the capitalisation of
such reserve, in so far as the Member States permit such an
operation.
(b) where the compulsory withdrawal is authorised merely by
the statutes or instrument of incorporation, it shall be
decided upon by the general meeting unless it has been
3. Articles
35,
37
and
44
shall
not
apply
to
the
cases
to
unanimously approved by the shareholders concerned;
which paragraph 1 o