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29.4.2011 Official
Journal
of
the
European
Union L
110/1
I
(Legislative acts)
DIRECTIVES
DIRECTIVE 2011/35/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 5 April 2011
concerning mergers of public limited liability companies
(codification)
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
protection of the interests of members and others, are
EUROPEAN UNION,
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
Having regard to the Treaty on the Functioning of the European
throughout the Community ( 6 ).
Union, and in particular Article 50(2)(g) thereof,
Having regard to the proposal from the European Commission,
(3) That
coordination
was
continued,
as
regards
the
formation of public limited liability companies and the
maintenance and alteration of their capital, with Second
Council Directive 77/91/EEC of 13 December 1976 on
After transmission of the draft legislative act to the national
coordination of safeguards which, for the protection of
parliaments,
the interests of members and others, are required by
Member States of companies within the meaning of the
second paragraph of Article 58 of the Treaty, in respect
Having regard to the opinion of the European Economic and
of the formation of public limited liability companies and
Social Committee ( 1 ),
the maintenance and alteration of their capital, with a
view to making such safeguards equivalent ( 7 ), and, as
regards the annual accounts of certain types of
Acting in accordance with the ordinary legislative procedure ( 2 ),
companies, with Fourth Council Directive 78/660/EEC
of 25 July 1978 based on Article 54(3)(g) of the
Treaty on the annual accounts of certain types of
Whereas:
companies ( 8 ).
(1) Third
Council
Directive
78/855/EEC
of
9
October
1978
based on Article 54(3)(g) of the Treaty concerning
(4) The
protection
of
the
interests
of
members
and
third
mergers of public limited liability companies ( 3 ) has
parties requires that the laws of the Member States
been substantially amended several times ( 4 ). In the
relating to mergers of public limited liability companies
interests of clarity and rationality the said Directive
be coordinated and that provision for mergers should be
should be codified.
made in the laws of all the Member States.
(2) The
coordination
provided
for
in
Article
50(2)(g)
of
the (5) In
the
context
of
such
coordination
it
is
particularly
Treaty and in the general programme for the abolition of
important that the shareholders of merging companies
restrictions on freedom of establishment ( 5 ) was begun
be kept adequately informed in as objective a manner
with First Council Directive 68/151/EEC of 9 March
as possible and that their rights be suitably protected.
1968 on coordination of safeguards which, for the
However, there is no reason to require an examination
of the draft terms of a merger by an independent expert
( 1 ) OJ C 51, 17.2.2011, p. 36.
for the shareholders if all the shareholders agree that it
( 2 ) Position of the European Parliament of 18 January 2011 (not yet
may be dispensed with.
published in the Official Journal) and decision of the Council of
21 March 2011.
( 3 ) OJ L 295, 20.10.1978, p. 36.
( 6 ) OJ L 65, 14.3.1968, p. 8.
( 4 ) See Annex I, Part A.
( 7 ) OJ L 26, 31.1.1977, p. 1.
( 5 ) OJ 2, 15.1.1962, p. 36/62.
( 8 ) OJ L 222, 14.8.1978, p. 11.

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L 110/2
EN
Official Journal of the European Union
29.4.2011
(6) The
protection
of
employees’
rights
in
the
event
of
— акционерно дружество,
transfers of undertakings, businesses or parts of under
takings or businesses is at present regulated by Council
— the Czech Republic:
Directive 2001/23/EC of 12 March 2001 on the approxi
mation of the laws of the Member States relating to the
— akciová spolenost,
safeguarding of employees’ rights in the event of transfers
of undertakings, businesses or parts of undertakings or
— Denmark:
businesses ( 1 ).
— aktieselskaber,
(7) Creditors,
including
debenture
holders,
and
persons — Germany:
having other claims on the merging companies should
be protected so that the merger does not adversely affect
— die Aktiengesellschaft,
their interests.
— Estonia:
(8) The
disclosure
requirements
of
Directive
2009/101/EC
of
the European Parliament and of the Council of
— aktsiaselts,
16 September 2009 on coordination of safeguards
which, for the protection of the interests of members
— Ireland:
and third parties, are required by Member States of
companies within the meaning of the second paragraph
— public companies limited by shares, and public
of Article 48 of the Treaty, with a view to making such
companies limited by guarantee having a share capital,
safeguards equivalent ( 2 ) should be extended to include
mergers so that third parties are kept adequately
— Greece:
informed.
— αννυμη εταιρα,
(9) The
safeguards
afforded
to
members
and
third
parties
in — Spain:
connection with mergers should be extended to cover
certain legal practices which in important respects are
— la sociedad anónima,
similar to merger, so that the obligation to provide
such protection cannot be evaded.
— France:
(10) To
ensure certainty in the law as regards relations
— la société anonyme,
between the companies concerned, between them and
third parties, and between the members, it is necessary
— Italy:
to limit the cases in which nullity can arise by providing
that defects be remedied wherever that is possible and by
— la società per azioni,
restricting the period within which nullification
— Cyprus:
proceedings may be commenced.
— Δημσιε εταιρεε περιορισμνη ευθνη με μετοχ,
(11) This
Directive
should
be
without
prejudice
to
the
obli
δημσιε εταιρεε περιορισμνη ευθνη με εγγηση που
gations of the Member States relating to the time-limits
διαθτουν μετοχικ κεφλαιο,
for transposition into national law of the Directives set
out in Annex I, Part B,
— Latvia:
HAVE ADOPTED THIS DIRECTIVE:
— akciju sabiedrība,
— Lithuania:
CHAPTER I
SCOPE
— akcin bendrov,
Article 1
— Luxembourg:
1. The
coordination
measures
laid
down
by
this
Directive
— la société anonyme,
shall apply to the laws, regulations and administrative
provisions of the Member States relating to the following
— Hungary:
types of company:
— részvénytársaság,
— Belgium:
— Malta:
— la société anonyme/de naamloze vennootschap,
— kumpannija pubblika/public limited liability company,
kumpannija privata/private limited liability company,
— Bulgaria:
— the Netherlands:
( 1 ) OJ L 82, 22.3.2001, p. 16.
( 2 ) OJ L 258, 1.10.2009, p. 11.
— de naamloze vennootschap,

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29.4.2011 Official
Journal
of
the
European
Union L
110/3
— Austria:
wound up without going into liquidation and transfer to
another all their assets and liabilities in exchange for the issue
— die Aktiengesellschaft,
to the shareholders of the company or companies being
acquired of shares in the acquiring company and a cash
— Poland:
payment, if any, not exceeding 10 % of the nominal value of
— spóka akcyjna,
the shares so issued or, where they have no nominal value, of
their accounting par value.
— Portugal:
— a sociedade anónima,
2. A
Member
State’s
laws
may
provide
that
merger
by
— Romania:
acquisition may also be effected where one or more of the
companies being acquired is in liquidation, provided that this
— societate pe aciuni,
option is restricted to companies which have not yet begun to
distribute their assets to their shareholders.
— Slovenia:
— delnika druba,
Article 4
— Slovakia:
1. For
the
purposes
of
this
Directive,
‘merger
by
the
— akciová spolonos,
formation of a new company’ shall mean the operation
whereby several companies are wound up without going into
— Finland:
liquidation and transfer to a company that they set up all their
assets and liabilities in exchange for the issue to their share
— julkinen osakeyhti/publikt aktiebolag,
holders of shares in the new company and a cash payment, if
any, not exceeding 10 % of the nominal value of the shares so
— Sweden:
issued or, where they have no nominal value, of their
— aktiebolag,
accounting par value.
— the United Kingdom:
2. A
Member
State’s
laws
may
provide
that
merger
by
the
— public companies limited by shares, and public
formation of a new company may also be effected where one or
companies limited by guarantee having a share capital.
more of the companies which are ceasing to exist is in liqui
dation, provided that this option is restricted to companies
2. The
Member
States
need
not
apply
this
Directive
to
coop
which have not yet begun to distribute their assets to their
eratives incorporated as one of the types of company listed in
shareholders.
paragraph 1. In so far as the laws of the Member States make
use of this option, they shall require such companies to include
the word ‘cooperative’ in all the documents referred to in
CHAPTER III
Article 5 of Directive 2009/101/EC.
MERGER BY ACQUISITION
Article 5
3. The
Member
States
need
not
apply
this
Directive
in
cases
where the company or companies which are being acquired or
1. The
administrative
or
management
bodies
of
the
merging
will cease to exist are the subject of bankruptcy proceedings,
companies shall draw up draft terms of merger in writing.
proceedings relating to the winding-up of insolvent companies,
judicial arrangements, compositions and analogous proceedings.
2. Draft
terms
of
merger
shall
specify
at
least:
CHAPTER II
REGULATION OF MERGER BY THE ACQUISITION OF ONE OR
(a) the type, name and registered office of each of the merging
MORE COMPANIES BY ANOTHER COMPANY AND OF
companies;
MERGER BY THE FORMATION OF A NEW COMPANY
Article 2
(b) the share exchange ratio and the amount of any cash
The Member States shall, as regards companies governed by
payment;
their national laws, make provision for rules governing
merger by the acquisition of one or more companies by
another company and merger by the formation of a new
(c) the terms relating to the allotment of shares in the acquiring
company.
company;
Article 3
(d) the date from which the holding of such shares entitles the
1. For the purposes of this Directive, ‘merger by acquisition’
holders to participate in profits and any special conditions
shall mean the operation whereby one or more companies are
affecting that entitlement;

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L 110/4
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Official Journal of the European Union
29.4.2011
(e) the date from which the transactions of the company being
The prohibition precluding the charging to companies of a
acquired shall be treated for accounting purposes as being
specific fee for publication, laid down in the third and fourth
those of the acquiring company;
paragraphs, shall not affect the ability of Member States to pass
on to companies the costs in respect of the central electronic
platform.
(f) the rights conferred by the acquiring company on the
holders of shares to which special rights are attached and
Member States may require companies to maintain the
the holders of securities other than shares, or the measures
information for a specific period after the general meeting on
proposed concerning them;
their website or, where applicable, on the central electronic
platform or the other website designated by the Member State
concerned. Member States may determine the consequences of
temporary disruption of access to the website or to the central
(g) any special advantage granted to the experts referred to in
electronic platform, caused by technical or other factors.
Article 10(1) and members of the merging companies’
administrative, management, supervisory or controlling
bodies.
Article 7
1. A merger shall require at least the approval of the general
meeting of each of the merging companies. The laws of the
Article 6
Member States shall provide that this approval decision shall
Draft terms of merger must be published in the manner
require a majority of not less than two thirds of the votes
prescribed by the laws of each Member State in accordance
attached either to the shares or to the subscribed capital repre
with Article 3 of Directive 2009/101/EC, for each of the
sented.
merging companies, at least 1 month before the date fixed
for the general meeting which is to decide thereon.
The laws of a Member State may, however, provide that a
simple majority of the votes specified in the first subparagraph
shall be sufficient when at least half of the subscribed capital is
Any of the merging companies shall be exempt from the publi
represented. Moreover, where appropriate, the rules governing
cation requirement laid down in Article 3 of Directive
alterations to the memorandum and articles of association shall
2009/101/EC if, for a continuous period beginning at least 1
apply.
month before the day fixed for the general meeting which is to
decide on the draft terms of merger and ending not earlier than
the conclusion of that meeting, it makes the draft terms of such
merger available on its website free of charge for the public.
2. Where
there
is
more
than
one
class
of
shares,
the
decision
Member States shall not subject that exemption to any
concerning a merger shall be subject to a separate vote by at
requirements or constraints other than those which are
least each class of shareholders whose rights are affected by the
necessary in order to ensure the security of the website and
transaction.
the authenticity of the documents, and may impose such
requirements or constraints only to the extent that they are
proportionate in order to achieve those objectives.
3. The decision shall cover both the approval of the draft
terms of merger and any alterations to the memorandum and
articles of association necessitated by the merger.
By way of derogation from the second paragraph of this Article,
Member States may require that publication be effected via the
central electronic platform referred to in Article 3(5) of
Article 8
Directive 2009/101/EC. Member States may alternatively
The laws of a Member State need not require approval of the
require that such publication be made on any other website
merger by the general meeting of the acquiring company if the
designated by them for that purpose. Where Member States
following conditions are fulfilled:
avail themselves of one of those possibilities, they shall ensure
that companies are not charged a specific fee for such publi
cation.
(a) the publication provided for in Article 6 must be effected,
for the acquiring company, at least 1 month before the date
fixed for the general meeting of the company or companies
being acquired which is to decide on the draft terms of
Where a website other than the central electronic platform is
merger;
used, a reference giving access to that website shall be published
on the central electronic platform at least 1 month before the
day fixed for the general meeting. That reference shall include
the date of publication of the draft terms of merger on the
(b) at least 1 month before the date specified in point (a), all
website and shall be accessible to the public free of charge.
shareholders of the acquiring company must be entitled to
Companies shall not be charged a specific fee for such publi
inspect the documents specified in Article 11(1) at the
cation.
registered office of the acquiring company;

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EN
29.4.2011 Official
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of
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European
Union L
110/5
(c) one or more shareholders of the acquiring company holding
(b) state whether such method or methods are adequate in the
a minimum percentage of the subscribed capital must be
case in question, indicate the values arrived at using each
entitled to require that a general meeting of the acquiring
such method and give an opinion on the relative
company be called to decide whether to approve the
importance attributed to such methods in arriving at the
merger; this minimum percentage may not be fixed at
value decided on.
more than 5 %. Member States may, however, provide for
the exclusion of non-voting shares from this calculation.
The report shall also describe any special valuation difficulties
which have arisen.
For the purposes of point (b) of the first paragraph,
Article 11(2), (3) and (4) shall apply.
3. Each
expert
shall
be
entitled
to
obtain
from
the
merging
companies all relevant information and documents and to carry
out all necessary investigations.
Article 9
1. The administrative or management bodies of each of the
merging companies shall draw up a detailed written report
4. Neither an examination of the draft terms of merger nor
explaining the draft terms of merger and setting out the legal
an expert report shall be required if all the shareholders and the
and economic grounds for them, in particular the share
holders of other securities conferring the right to vote of each
exchange ratio.
of the companies involved in the merger have so agreed.
Article 11
That report shall also describe any special valuation difficulties
which have arisen.
1. All
shareholders
shall
be
entitled
to
inspect
at
least
the
following documents at the registered office at least 1 month
before the date fixed for the general meeting which is to decide
2. The administrative or management bodies of each of the
on the draft terms of merger:
companies involved shall inform the general meeting of their
company and the administrative or management bodies of the
other companies involved so that the latter may inform their
(a) the draft terms of merger;
respective general meetings of any material change in the assets
and liabilities between the date of preparation of the draft terms
of merger and the date of the general meetings which are to
(b) the annual accounts and annual reports of the merging
decide on the draft terms of merger.
companies for the preceding three financial years;
(c) where applicable, an accounting statement drawn up as at a
3. Member States may provide that the report referred to in
date which must not be earlier than the first day of the third
paragraph 1 and/or the information referred to in paragraph 2
month preceding the date of the draft terms of merger, if
shall not be required if all the shareholders and the holders of
the latest annual accounts relate to a financial year which
other securities conferring the right to vote of each of the
ended more than 6 months before that date;
companies involved in the merger have so agreed.
(d) where applicable, the reports of the administrative or
Article 10
management bodies of the merging companies provided
for in Article 9;
1. One or more experts, acting on behalf of each of the
merging companies but independent of them, appointed or
approved by a judicial or administrative authority, shall
(e) where applicable, the report referred to in Article 10(1).
examine the draft terms of merger and draw up a written
report to the shareholders. However, the laws of a Member
State may provide for the appointment of one or more inde
For the purposes of point (c) of the first subparagraph, an
pendent experts for all the merging companies, if such
accounting statement shall not be required if the company
appointment is made by a judicial or administrative authority
publishes a half-yearly financial report in accordance with
at the joint request of those companies. Such experts may,
Article 5 of Directive 2004/109/EC of the European Parliament
depending on the laws of each Member State, be natural or
and of the Council of 15 December 2004 on the harmonisation
legal persons or companies or firms.
of transparency requirements in relation to information about
issuers whose securities are admitted to trading on a regulated
market ( 1 ) and makes it available to shareholders in accordance
2. In
the
report
mentioned
in
paragraph
1
the
experts
must with this paragraph. Furthermore, Member States may provide
in any case state whether in their opinion the share exchange
that an accounting statement shall not be required if all the
ratio is fair and reasonable. Their statement must at least:
shareholders and the holders of other securities conferring the
right to vote of each of the companies involved in the merger
have so agreed.
(a) indicate the method or methods used to arrive at the share
exchange ratio proposed;
( 1 ) OJ L 390, 31.12.2004, p. 38.

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2. The
accounting
statement
provided
for
in
point
(c)
of
the
Article 12
first subparagraph of paragraph 1 shall be drawn up using the
same methods and the same layout as the last annual balance
Protection of the rights of the employees of each of the merging
sheet.
companies shall be regulated in accordance with Directive
2001/23/EC.
However, the laws of a Member State may provide that:
Article 13
(a) it is not necessary to take a fresh physical inventory;
1. The
laws
of
the
Member
States
must
provide
for
an
adequate system of protection of the interests of creditors of
the merging companies whose claims antedate the publication
(b) the valuations shown in the last balance sheet are to be
of the draft terms of merger and have not fallen due at the time
altered only to reflect entries in the books of account; the
of such publication.
following shall nevertheless be taken into account:
— interim depreciation and provisions,
2. To that end, the laws of the Member States shall at least
provide that such creditors shall be entitled to obtain adequate
safeguards where the financial situation of the merging
companies makes such protection necessary and where those
— material changes in actual value not shown in the
creditors do not already have such safeguards.
books.
3. Every
shareholder
shall
be
entitled
to
obtain,
on
request
and free of charge, full or, if so desired, partial copies of the
Member States shall lay down the conditions for the protection
documents referred to in paragraph 1.
provided for in paragraph 1 and in the first subparagraph of
this paragraph. In any event, Member States shall ensure that
the creditors are authorised to apply to the appropriate adminis
trative or judicial authority for adequate safeguards provided
Where a shareholder has consented to the use by the company
that they can credibly demonstrate that due to the merger the
of electronic means for conveying information, such copies may
satisfaction of their claims is at stake and that no adequate
be provided by electronic mail.
safeguards have been obtained from the company.
4. A company shall be exempt from the requirement to
make the documents referred to in paragraph 1 available at
3. Such
protection
may
be
different
for
the
creditors
of
the
its registered office if, for a continuous period beginning at
acquiring company and for those of the company being
least 1 month before the day fixed for the general meeting
acquired.
which is to decide on the draft terms of merger and ending
not earlier than the conclusion of that meeting, it makes them
available on its website. Member States shall not subject that
exemption to any requirements or constraints other than those
which are necessary in order to ensure the security of the
Article 14
website and the authenticity of the documents and may
impose such requirements or constraints only to the extent
Without prejudice to the rules governing the collective exercise
that they are proportionate in order to achieve those objectives.
of their rights, Article 13 shall apply to the debenture holders of
the merging companies, except where the merger has been
approved by a meeting of the debenture holders, if such a
meeting is provided for under national laws, or by the
Paragraph 3 shall not apply if the website gives shareholders the
debenture holders individually.
possibility, throughout the period referred to in the first
subparagraph of this paragraph, of downloading and printing
the documents referred to in paragraph 1. However, in that case
Member States may provide that the company is to make those
documents available at its registered office for consultation by
Article 15
the shareholders.
Holders of securities, other than shares, to which special rights
are attached must be given rights in the acquiring company at
least equivalent to those they possessed in the company being
Member States may require companies to maintain the
acquired, unless the alteration of those rights has been approved
information on their website for a specific period after the
by a meeting of the holders of such securities, if such a meeting
general meeting. Member States may determine the conse
is provided for under national laws, or by the holders of those
quences of temporary disruption of access to the website
securities individually, or unless the holders are entitled to have
caused by technical or other factors.
their securities repurchased by the acquiring company.

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Article 16
3. The foregoing shall not affect the laws of Member States
which require the completion of special formalities for the
1. Where
the
laws
of
a
Member
State
do
not
provide
for transfer of certain assets, rights and obligations by the
judicial or administrative preventive supervision of the legality
acquired company to be effective as against third parties. The
of mergers, or where such supervision does not extend to all the
acquiring company may carry out these formalities itself;
legal acts required for a merger, the minutes of the general
however, the laws of the Member States may permit the
meetings which decide on the merger and, where appropriate,
company being acquired to continue to carry out these
the merger contract subsequent to such general meetings shall
formalities for a limited period which cannot, save in excep
be drawn up and certified in due legal form. In cases where the
tional cases, be fixed at more than 6 months from the date on
merger need not be approved by the general meetings of all the
which the merger takes effect.
merging companies, the draft terms of merger must be drawn
up and certified in due legal form.
Article 20
2. The
notary
or
the
authority
competent
to
draw
up
and
certify the document in due legal form must check and certify
The laws of the Member States shall at least lay down rules
the existence and validity of the legal acts and formalities
governing the civil liability towards the shareholders of the
required of the company for which that notary or authority is
company being acquired of the members of the administrative
acting and of the draft terms of merger.
or management bodies of that company in respect of
misconduct on the part of members of those bodies in
preparing and implementing the merger.
Article 17
The laws of the Member States shall determine the date on
which a merger takes effect.
Article 21
The laws of the Member States shall at least lay down rules
governing the civil liability towards the shareholders of the
Article 18
company being acquired of the experts responsible for
1. A
merger
must
be
publicised
in
the
manner
prescribed
by drawing up on behalf of that company the report referred to
the laws of each Member State, in accordance with Article 3 of
in Article 10(1) in respect of misconduct on the part of those
Directive 2009/101/EC, in respect of each of the merging
experts in the performance of their duties.
companies.
Article 22
2. The
acquiring
company
may
itself
carry
out
the
publi
cation formalities relating to the company or companies
1. The
laws
of
the
Member
States
may
lay
down
nullity
rules
being acquired.
for mergers in accordance with the following conditions only:
Article 19
(a) nullity must be ordered in a court judgment;
1. A merger shall have the following consequences ipso jure
and simultaneously:
(b) mergers which have taken effect pursuant to Article 17 may
be declared void only if there has been no judicial or admin
(a) the transfer, both as between the company being acquired
istrative preventive supervision of their legality, or if they
and the acquiring company and as regards third parties, to
have not been drawn up and certified in due legal form, or
the acquiring company of all the assets and liabilities of the
if it is shown that the decision of the general meeting is
company being acquired;
void or voidable under national law;
(b) the shareholders of the company being acquired become
shareholders of the acquiring company;
(c) nullification proceedings may not be initiated more than
6 months after the date on which the merger becomes
effective as against the person alleging nullity or if the
(c) the company being acquired ceases to exist.
situation has been rectified;
2. No
shares
in
the
acquiring
company
shall
be
exchanged (d) where it is possible to remedy a defect liable to render a
for shares in the company being acquired held either:
merger void, the competent court shall grant the companies
involved a period of time within which to rectify the
situation;
(a) by the acquiring company itself or through a person acting
in his own name but on its behalf; or
(e) a judgment declaring a merger void shall be published in
(b) by the company being acquired itself or through a person
the manner prescribed by the laws of each Member State in
acting in his own name but on its behalf.
accordance with Article 3 of Directive 2009/101/EC;

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(f) where the laws of a Member State permit a third party to
transfer all their assets and liabilities to another company which
challenge such a judgment, that party may do so only
is the holder of all their shares and other securities conferring
within 6 months of publication of the judgment in the
the right to vote at general meetings. Such operations shall be
manner prescribed by Directive 2009/101/EC;
regulated by the provisions of Chapter III. However, Member
States shall not impose the requirements set out in points (b),
(c) and (d) of Article 5(2), Articles 9 and 10, points (d) and (e)
(g) a judgment declaring a merger void shall not of itself affect
of Article 11(1), point (b) of Article 19(1) and Articles 20
the validity of obligations owed by or in relation to the
and 21.
acquiring company which arose before the judgment was
published and after the date on which the merger takes
effect;
Article 25
Member States shall not apply Article 7 to the operations
(h) companies which have been parties to a merger shall be
referred to in Article 24 if the following conditions are fulfilled:
jointly and severally liable in respect of the obligations of
the acquiring company referred to in point (g).
(a) the publication provided for in Article 6 must be effected, as
2. By way of derogation from point (a) of paragraph 1, the
regards each company involved in the operation, at least
laws of a Member State may also provide for the nullity of a
1 month before the operation takes effect;
merger to be ordered by an administrative authority if an appeal
against such a decision lies to a court. Point (b) and points (d)
to (h) of paragraph 1 shall apply by analogy to the adminis
trative authority. Such nullification proceedings may not be
(b) at least 1 month before the operation takes effect, all share
initiated more than 6 months after the date on which the
holders of the acquiring company must be entitled to
merger takes effect.
inspect the documents referred to in points (a), (b) and (c)
of Article 11(1) at the company’s registered office;
3. The laws of the Member States on the nullity of a merger
pronounced following any supervision other than judicial or
administrative preventive supervision of legality shall not be
(c) point (c) of the first paragraph of Article 8 must apply.
affected.
CHAPTER IV
For the purposes of point (b) of the first paragraph of this
Article, Article 11(2), (3) and (4) shall apply.
MERGER BY FORMATION OF A NEW COMPANY
Article 23
1. Articles 5, 6 and 7 and Articles 9 to 22 of this Directive
Article 26
shall apply, without prejudice to Articles 12 and 13 of Directive
2009/101/EC, to merger by formation of a new company. For
The Member States may apply Articles 24 and 25 to operations
this purpose, ‘merging companies’ and ‘company being acquired’
whereby one or more companies are wound up without going
shall mean the companies which will cease to exist, and
into liquidation and transfer all their assets and liabilities to
‘acquiring company’ shall mean the new company.
another company, if all the shares and other securities
specified in Article 24 of the company or companies being
acquired are held by the acquiring company and/or by
Point (a) of Article 5(2) of this Directive shall also apply to the
persons holding those shares and securities in their own
new company.
names but on behalf of that company.
2. The
draft
terms
of
merger
and,
if
they
are
contained
in
a
Article 27
separate document, the memorandum or draft memorandum of
association and the articles or draft articles of association of the
Where a merger by acquisition is carried out by a company
new company shall be approved at a general meeting of each of
which holds 90 % or more, but not all, of the shares and other
the companies that will cease to exist.
securities conferring the right to vote at general meetings of the
company or companies being acquired, Member States shall not
require approval of the merger by the general meeting of the
CHAPTER V
acquiring company if the following conditions are fulfilled:
ACQUISITION OF ONE COMPANY BY ANOTHER WHICH
HOLDS 90 % OR MORE OF ITS SHARES
Article 24
(a) the publication provided for in Article 6 must be effected, as
regards the acquiring company, at least 1 month before the
Member States shall make provision, in respect of companies
date fixed for the general meeting of the company or
governed by their laws, for the operation whereby one or more
companies being acquired which is to decide on the draft
companies are wound up without going into liquidation and
terms of merger;

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(b) at least 1 month before the date specified in point (a), all
CHAPTER VI
shareholders of the acquiring company must be entitled to
inspect the documents specified in points (a), (b) and, where
OTHER OPERATIONS TREATED AS MERGERS
applicable, (c), (d) and (e) of Article 11(1) at the company’s
Article 30
registered office;
Where in the case of one of the operations referred to in
Article 2 the laws of a Member State permit a cash payment
(c) point (c) of the first paragraph of Article 8 must apply.
to exceed 10 %, Chapters III and IV and Articles 27, 28 and 29
shall apply.
For the purposes of point (b) of the first paragraph of this
Article, Article 11(2), (3) and (4) shall apply.
Article 31
Where the laws of a Member State permit one of the operations
Article 28
referred to in Articles 2, 24 and 30, without all of the trans
ferring companies thereby ceasing to exist, Chapter III, except
Member States shall not impose the requirements set out in
for point (c) of Article 19(1), Chapter IV or Chapter V shall
Articles 9, 10 and 11 in the case of a merger within the
apply as appropriate.
meaning of Article 27 if the following conditions are fulfilled:
CHAPTER VII
(a) the minority shareholders of the company being acquired
must be entitled to have their shares acquired by the
FINAL PROVISIONS
acquiring company;
Article 32
Directive 78/855/EEC, as amended by the acts listed in Annex I,
(b) if they exercise that right, they must be entitled to receive
Part A, is hereby repealed, without prejudice to the obligations
consideration corresponding to the value of their shares;
of the Member States relating to the time-limits for trans
position into national law of the Directives set out in
Annex I, Part B.
(c) in the event of disagreement regarding such consideration, it
must be possible for the value of the consideration to be
determined by a court or by an administrative authority
References to the repealed Directive shall be construed as
designated by the Member State for that purpose.
references to this Directive and shall be read in accordance
with the correlation table in Annex II.
A Member State need not apply the first paragraph if the laws
of that Member State entitle the acquiring company, without a
Article 33
previous public takeover offer, to require all the holders of the
This Directive shall enter into force on 1 July 2011.
remaining securities of the company or companies to be
acquired to sell those securities to it prior to the merger at a
fair price.
Article 34
This Directive is addressed to the Member States.
Article 29
The Member States may apply Articles 27 and 28 to operations
Done at Strasbourg, 5 April 2011.
whereby one or more companies are wound up without going
into liquidation and transfer all their assets and liabilities to
another company, if 90 % or more, but not all, of the shares
and other securities referred to in Article 27 of the company or
For the European Parliament
For the Council
companies being acquired are held by that acquiring company
and/or by persons holding those shares and securities in their
The President
The President
own names but on behalf of that company.
J. BUZEK
GYRI E.

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Official Journal of the European Union
29.4.2011
ANNEX I
PART A
Repealed Directive with list of its successive amendments
(referred to in Article 32)
Council Directive 78/855/EEC
(OJ L 295, 20.10.1978, p. 36)
Annex I, point III. C, to the 1979 Act of Accession
(OJ L 291, 19.11.1979, p. 89)
Annex I, point II. d), to the 1985 Act of Accession
(OJ L 302, 15.11.1985, p. 157)
Annex I, point XI.A.3., to the 1994 Act of Accession
(OJ C 241, 29.8.1994, p. 194)
Annex II, point 4.A.3, to the 2003 Act of Accession
(OJ L 236, 23.9.2003, p. 338)
Council Directive 2006/99/EC
Only as regards the reference
(OJ L 363, 20.12.2006, p. 137)
to Directive 78/855/EEC in
Article 1 and Annex, Section
A. 3
Directive 2007/63/EC of the European Parliament and of the Council
Article 2 only
(OJ L 300, 17.11.2007, p. 47)
Directive 2009/109/EC of the European Parliament and of the Council
Article 2 only
(OJ L 259, 2.10.2009, p. 14)
PART B
List of time-limits for transposition into national law
(referred to in Article 32)
Directive Time-limit
for
transposition
78/855/EEC 13
October
1981
2006/99/EC 1
January
2007
2007/63/ΕC 31
December
2008
2009/109/EC 30
June
2011

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ANNEX II
Correlation table
Directive 78/855/EEC This
Directive
Article 1 Article
1
Articles 2-4 Articles
2-4
Articles 5-22 Articles
5-22
Article 23(1) Article
23(1),
first
subparagraph
Article 23(2) Article
23(1),
second
subparagraph
Article 23(3) Article
23(2)
Articles 24-29 Articles
24-29
Articles 30-31 Articles
30-31
Article 32
—
— Article
32
— Article
33
Article 33 Article
34
— Annex
I
— Annex
II

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