title: Directive 2011/35/EU of the European Parliament and of the Council of 5 April 2011 concerning mergers of public limited liability companies  Text with EEA relevance

text:
               29.4.2011

               EN

               Official Journal of the European Union

               L 110/1

         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 EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Article 50(2)(g) thereof,
   Having regard to the proposal from the European Commission,
   After transmission of the draft legislative act to the national parliaments,
   Having regard to the opinion of the European Economic and Social Committee (1),
   Acting in accordance with the ordinary legislative procedure (2),
   Whereas:

               (1)

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

               (2)

               The coordination provided for in Article 50(2)(g) of the Treaty and in the general programme for the abolition of restrictions on freedom of establishment (5) was begun with First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (6).

               (3)

               That coordination was continued, as regards the formation of public limited liability companies and the maintenance and alteration of their capital, with Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (7), and, as regards the annual accounts of certain types of companies, with Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (8).

               (4)

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

               (5)

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

               (6)

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

               (7)

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

               (8)

               The disclosure requirements of Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent (10) should be extended to include mergers so that third parties are kept adequately informed.

               (9)

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

               (10)

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

               (11)

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

         HAVE ADOPTED THIS DIRECTIVE:
   CHAPTER I

      SCOPE

   Article 1
   1.   The coordination measures laid down by this Directive shall apply to the laws, regulations and administrative provisions of the Member States relating to the following types of company:

               —

               Belgium:

                           —

                           la société anonyme/de naamloze vennootschap,

               —

               Bulgaria:

                           —

                           акционерно дружество,

               —

               the Czech Republic:

                           —

                           akciová společnost,

               —

               Denmark:

                           —

                           aktieselskaber,

               —

               Germany:

                           —

                           die Aktiengesellschaft,

               —

               Estonia:

                           —

                           aktsiaselts,

               —

               Ireland:

                           —

                           public companies limited by shares, and public companies limited by guarantee having a share capital,

               —

               Greece:

                           —

                           ανώνυμη εταιρία,

               —

               Spain:

                           —

                           la sociedad anónima,

               —

               France:

                           —

                           la société anonyme,

               —

               Italy:

                           —

                           la società per azioni,

               —

               Cyprus:

                           —

                           Δημόσιες εταιρείες περιορισμένης ευθύνης με μετοχές, δημόσιες εταιρείες περιορισμένης ευθύνης με εγγύηση που διαθέτουν μετοχικό κεφάλαιο,

               —

               Latvia:

                           —

                           akciju sabiedrība,

               —

               Lithuania:

                           —

                           akcinė bendrovė,

               —

               Luxembourg:

                           —

                           la société anonyme,

               —

               Hungary:

                           —

                           részvénytársaság,

               —

               Malta:

                           —

                           kumpannija pubblika/public limited liability company, kumpannija privata/private limited liability company,

               —

               the Netherlands:

                           —

                           de naamloze vennootschap,

               —

               Austria:

                           —

                           die Aktiengesellschaft,

               —

               Poland:

                           —

                           spółka akcyjna,

               —

               Portugal:

                           —

                           a sociedade anónima,

               —

               Romania:

                           —

                           societate pe acțiuni,

               —

               Slovenia:

                           —

                           delniška družba,

               —

               Slovakia:

                           —

                           akciová spoločnosť,

               —

               Finland:

                           —

                           julkinen osakeyhtiö/publikt aktiebolag,

               —

               Sweden:

                           —

                           aktiebolag,

               —

               the United Kingdom:

                           —

                           public companies limited by shares, and public companies limited by guarantee having a share capital.

         2.   The Member States need not apply this Directive to cooperatives incorporated as one of the types of company listed in 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 Article 5 of Directive 2009/101/EC.
   3.   The Member States need not apply this Directive in cases where the company or companies which are being acquired or will cease to exist are the subject of bankruptcy proceedings, proceedings relating to the winding-up of insolvent companies, judicial arrangements, compositions and analogous proceedings.
   CHAPTER II

      REGULATION OF MERGER BY THE ACQUISITION OF ONE OR MORE COMPANIES BY ANOTHER COMPANY AND OF MERGER BY THE FORMATION OF A NEW COMPANY

   Article 2
   The Member States shall, as regards companies governed by 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 company.
   Article 3
   1.   For the purposes of this Directive, ‘merger by acquisition’ shall mean the operation whereby one or more companies are wound up without going into liquidation and transfer to another all their assets and liabilities in exchange for the issue to the shareholders of the company or companies being acquired of shares in the acquiring company and a cash payment, if any, not exceeding 10 % of the nominal value of the shares so issued or, where they have no nominal value, of their accounting par value.
   2.   A Member State’s laws may provide that merger by acquisition may also be effected where one or more of the companies being acquired is in liquidation, provided that this option is restricted to companies which have not yet begun to distribute their assets to their shareholders.
   Article 4
   1.   For the purposes of this Directive, ‘merger by the formation of a new company’ shall mean the operation whereby several companies are wound up without going into liquidation and transfer to a company that they set up all their assets and liabilities in exchange for the issue to their shareholders of shares in the new company and a cash payment, if any, not exceeding 10 % of the nominal value of the shares so issued or, where they have no nominal value, of their accounting par value.
   2.   A Member State’s laws may provide that merger by the formation of a new company may also be effected where one or more of the companies which are ceasing to exist is in liquidation, provided that this option is restricted to companies which have not yet begun to distribute their assets to their shareholders.
   CHAPTER III

      MERGER BY ACQUISITION

   Article 5
   1.   The administrative or management bodies of the merging companies shall draw up draft terms of merger in writing.
   2.   Draft terms of merger shall specify at least:

               (a)

               the type, name and registered office of each of the merging companies;

               (b)

               the share exchange ratio and the amount of any cash payment;

               (c)

               the terms relating to the allotment of shares in the acquiring company;

               (d)

               the date from which the holding of such shares entitles the holders to participate in profits and any special conditions affecting that entitlement;

               (e)

               the date from which the transactions of the company being acquired shall be treated for accounting purposes as being those of the acquiring company;

               (f)

               the rights conferred by the acquiring company on the holders of shares to which special rights are attached and the holders of securities other than shares, or the measures proposed concerning them;

               (g)

               any special advantage granted to the experts referred to in Article 10(1) and members of the merging companies’ administrative, management, supervisory or controlling bodies.

         Article 6
   Draft terms of merger must be published in the manner prescribed by the laws of each Member State in accordance with Article 3 of Directive 2009/101/EC, for each of the merging companies, at least 1 month before the date fixed for the general meeting which is to decide thereon.
   Any of the merging companies shall be exempt from the publication requirement laid down in Article 3 of Directive 2009/101/EC if, for a continuous period beginning at least 1 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. 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 website and 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.
   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 Directive 2009/101/EC. Member States may alternatively require that such publication be made on any other website designated by them for that purpose. Where Member States avail themselves of one of those possibilities, they shall ensure that companies are not charged a specific fee for such publication.
   Where a website other than the central electronic platform is 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 website and shall be accessible to the public free of charge. Companies shall not be charged a specific fee for such publication.
   The prohibition precluding the charging to companies of a specific fee for publication, laid down in the third and fourth paragraphs, shall not affect the ability of Member States to pass on to companies the costs in respect of the central electronic platform.
   Member States may require companies to maintain the information for a specific period after the general meeting on 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 electronic platform, caused by technical or other factors.
   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 Member States shall provide that this approval decision shall require a majority of not less than two thirds of the votes attached either to the shares or to the subscribed capital represented.
   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 represented. Moreover, where appropriate, the rules governing alterations to the memorandum and articles of association shall apply.
   2.   Where there is more than one class of shares, the decision concerning a merger shall be subject to a separate vote by at least each class of shareholders whose rights are affected by the transaction.
   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.
   Article 8
   The laws of a Member State need not require approval of the merger by the general meeting of the acquiring company if the following conditions are fulfilled:

               (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 merger;

               (b)

               at least 1 month before the date specified in point (a), all shareholders of the acquiring company must be entitled to inspect the documents specified in Article 11(1) at the registered office of the acquiring company;

               (c)

               one or more shareholders of the acquiring company holding a minimum percentage of the subscribed capital must be entitled to require that a general meeting of the acquiring company be called to decide whether to approve the merger; this minimum percentage may not be fixed at more than 5 %. Member States may, however, provide for the exclusion of non-voting shares from this calculation.

         For the purposes of point (b) of the first paragraph, Article 11(2), (3) and (4) shall apply.
   Article 9
   1.   The administrative or management bodies of each of the merging companies shall draw up a detailed written report explaining the draft terms of merger and setting out the legal and economic grounds for them, in particular the share exchange ratio.
   That report shall also describe any special valuation difficulties which have arisen.
   2.   The administrative or management bodies of each of the 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 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 decide on the draft terms of merger.
   3.   Member States may provide that the report referred to in paragraph 1 and/or the information referred to in paragraph 2 shall not be required if all the shareholders and the holders of other securities conferring the right to vote of each of the companies involved in the merger have so agreed.
   Article 10
   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 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 independent experts for all the merging companies, if such appointment is made by a judicial or administrative authority at the joint request of those companies. Such experts may, depending on the laws of each Member State, be natural or legal persons or companies or firms.
   2.   In the report mentioned in paragraph 1 the experts must in any case state whether in their opinion the share exchange ratio is fair and reasonable. Their statement must at least:

               (a)

               indicate the method or methods used to arrive at the share exchange ratio proposed;

               (b)

               state whether such method or methods are adequate in the case in question, indicate the values arrived at using each such method and give an opinion on the relative importance attributed to such methods in arriving at the value decided on.

         The report shall also describe any special valuation difficulties which have arisen.
   3.   Each expert shall be entitled to obtain from the merging companies all relevant information and documents and to carry out all necessary investigations.
   4.   Neither an examination of the draft terms of merger nor an expert report shall be required if all the shareholders and the holders of other securities conferring the right to vote of each of the companies involved in the merger have so agreed.
   Article 11
   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 on the draft terms of merger:

               (a)

               the draft terms of merger;

               (b)

               the annual accounts and annual reports of the merging companies for the preceding three financial years;

               (c)

               where applicable, an accounting statement drawn up as at a date which must not be earlier than the first day of the third month preceding the date of the draft terms of merger, if the latest annual accounts relate to a financial year which ended more than 6 months before that date;

               (d)

               where applicable, the reports of the administrative or management bodies of the merging companies provided for in Article 9;

               (e)

               where applicable, the report referred to in Article 10(1).

         For the purposes of point (c) of the first subparagraph, an accounting statement shall not be required if the company publishes a half-yearly financial report in accordance with Article 5 of Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market (11) and makes it available to shareholders in accordance with this paragraph. Furthermore, Member States may provide that an accounting statement shall not be required if all the shareholders and the holders of other securities conferring the right to vote of each of the companies involved in the merger have so agreed.
   2.   The accounting statement provided for in point (c) of the first subparagraph of paragraph 1 shall be drawn up using the same methods and the same layout as the last annual balance sheet.
   However, the laws of a Member State may provide that:

               (a)

               it is not necessary to take a fresh physical inventory;

               (b)

               the valuations shown in the last balance sheet are to be altered only to reflect entries in the books of account; the following shall nevertheless be taken into account:

                           —

                           interim depreciation and provisions,

                           —

                           material changes in actual value not shown in the books.

         3.   Every shareholder shall be entitled to obtain, on request and free of charge, full or, if so desired, partial copies of the documents referred to in paragraph 1.
   Where a shareholder has consented to the use by the company of electronic means for conveying information, such copies may be provided by electronic mail.
   4.   A company shall be exempt from the requirement to make the documents referred to in paragraph 1 available at its registered office if, for a continuous period beginning at least 1 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 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 website and 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.
   Paragraph 3 shall not apply if the website gives shareholders the 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 the shareholders.
   Member States may require companies to maintain the information on their website for a specific period after the general meeting. Member States may determine the consequences of temporary disruption of access to the website caused by technical or other factors.
   Article 12
   Protection of the rights of the employees of each of the merging companies shall be regulated in accordance with Directive 2001/23/EC.
   Article 13
   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 of the draft terms of merger and have not fallen due at the time of such publication.
   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 creditors do not already have such safeguards.
   Member States shall lay down the conditions for the protection 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 administrative or judicial authority for adequate safeguards provided that they can credibly demonstrate that due to the merger the satisfaction of their claims is at stake and that no adequate safeguards have been obtained from the company.
   3.   Such protection may be different for the creditors of the acquiring company and for those of the company being acquired.
   Article 14
   Without prejudice to the rules governing the collective exercise 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 debenture holders individually.
   Article 15
   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 acquired, unless the alteration of those rights has been approved by a meeting of the holders of such securities, if such a meeting is provided for under national laws, or by the holders of those securities individually, or unless the holders are entitled to have their securities repurchased by the acquiring company.
   Article 16
   1.   Where the laws of a Member State do not provide for judicial or administrative preventive supervision of the legality of mergers, or where such supervision does not extend to all the legal acts required for a merger, the minutes of the general meetings which decide on the merger and, where appropriate, the merger contract subsequent to such general meetings shall be drawn up and certified in due legal form. In cases where the merger need not be approved by the general meetings of all the merging companies, the draft terms of merger must be drawn up and certified in due legal form.
   2.   The notary or the authority competent to draw up and certify the document in due legal form must check and certify the existence and validity of the legal acts and formalities required of the company for which that notary or authority is acting and of the draft terms of merger.
   Article 17
   The laws of the Member States shall determine the date on which a merger takes effect.
   Article 18
   1.   A merger must be publicised in the manner prescribed by the laws of each Member State, in accordance with Article 3 of Directive 2009/101/EC, in respect of each of the merging companies.
   2.   The acquiring company may itself carry out the publication formalities relating to the company or companies being acquired.
   Article 19
   1.   A merger shall have the following consequences ipso jure and simultaneously:

               (a)

               the transfer, both as between the company being acquired and the acquiring company and as regards third parties, to the acquiring company of all the assets and liabilities of the company being acquired;

               (b)

               the shareholders of the company being acquired become shareholders of the acquiring company;

               (c)

               the company being acquired ceases to exist.

         2.   No shares in the acquiring company shall be exchanged for shares in the company being acquired held either:

               (a)

               by the acquiring company itself or through a person acting in his own name but on its behalf; or

               (b)

               by the company being acquired itself or through a person acting in his own name but on its behalf.

         3.   The foregoing shall not affect the laws of Member States which require the completion of special formalities for the transfer of certain assets, rights and obligations by the acquired company to be effective as against third parties. The acquiring company may carry out these formalities itself; however, the laws of the Member States may permit the company being acquired to continue to carry out these formalities for a limited period which cannot, save in exceptional cases, be fixed at more than 6 months from the date on which the merger takes effect.
   Article 20
   The laws of the Member States shall at least lay down rules governing the civil liability towards the shareholders of the company being acquired of the members of the administrative 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 21
   The laws of the Member States shall at least lay down rules governing the civil liability towards the shareholders of the company being acquired of the experts responsible for drawing up on behalf of that company the report referred to in Article 10(1) in respect of misconduct on the part of those experts in the performance of their duties.
   Article 22
   1.   The laws of the Member States may lay down nullity rules for mergers in accordance with the following conditions only:

               (a)

               nullity must be ordered in a court judgment;

               (b)

               mergers which have taken effect pursuant to Article 17 may be declared void only if there has been no judicial or administrative preventive supervision of their legality, or if they have not been drawn up and certified in due legal form, or if it is shown that the decision of the general meeting is void or voidable under national law;

               (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 situation has been rectified;

               (d)

               where it is possible to remedy a defect liable to render a merger void, the competent court shall grant the companies involved a period of time within which to rectify the situation;

               (e)

               a judgment declaring a merger void shall be published in the manner prescribed by the laws of each Member State in accordance with Article 3 of Directive 2009/101/EC;

               (f)

               where the laws of a Member State permit a third party to challenge such a judgment, that party may do so only within 6 months of publication of the judgment in the manner prescribed by Directive 2009/101/EC;

               (g)

               a judgment declaring a merger void shall not of itself affect the validity of obligations owed by or in relation to the acquiring company which arose before the judgment was published and after the date on which the merger takes effect;

               (h)

               companies which have been parties to a merger shall be jointly and severally liable in respect of the obligations of the acquiring company referred to in point (g).

         2.   By way of derogation from point (a) of paragraph 1, the laws of a Member State may also provide for the nullity of a 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 administrative authority. Such nullification proceedings may not be initiated more than 6 months after the date on which the merger takes effect.
   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 affected.
   CHAPTER IV

      MERGER BY FORMATION OF A NEW COMPANY

   Article 23
   1.   Articles 5, 6 and 7 and Articles 9 to 22 of this Directive shall apply, without prejudice to Articles 12 and 13 of Directive 2009/101/EC, to merger by formation of a new company. For this purpose, ‘merging companies’ and ‘company being acquired’ shall mean the companies which will cease to exist, and ‘acquiring company’ shall mean the new company.
   Point (a) of Article 5(2) of this Directive shall also apply to the new company.
   2.   The draft terms of merger and, if they are contained in a separate document, the memorandum or draft memorandum of association and the articles or draft articles of association of the new company shall be approved at a general meeting of each of the companies that will cease to exist.
   CHAPTER V

      ACQUISITION OF ONE COMPANY BY ANOTHER WHICH HOLDS 90 % OR MORE OF ITS SHARES

   Article 24
   Member States shall make provision, in respect of companies governed by their laws, for the operation whereby one or more companies are wound up without going into liquidation and transfer all their assets and liabilities to another company which is the holder of all their shares and other securities conferring the right to vote at general meetings. Such operations shall be 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) of Article 11(1), point (b) of Article 19(1) and Articles 20 and 21.
   Article 25
   Member States shall not apply Article 7 to the operations referred to in Article 24 if the following conditions are fulfilled:

               (a)

               the publication provided for in Article 6 must be effected, as regards each company involved in the operation, at least 1 month before the operation takes effect;

               (b)

               at least 1 month before the operation takes effect, all shareholders of the acquiring company must be entitled to inspect the documents referred to in points (a), (b) and (c) of Article 11(1) at the company’s registered office;

               (c)

               point (c) of the first paragraph of Article 8 must apply.

         For the purposes of point (b) of the first paragraph of this Article, Article 11(2), (3) and (4) shall apply.
   Article 26
   The Member States may apply Articles 24 and 25 to operations whereby one or more companies are wound up without going into liquidation and transfer all their assets and liabilities to 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 persons holding those shares and securities in their own names but on behalf of that company.
   Article 27
   Where a merger by acquisition is carried out by a company which holds 90 % or more, but not all, of the shares and other 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 acquiring company if the following conditions are fulfilled:

               (a)

               the publication provided for in Article 6 must be effected, as regards 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 merger;

               (b)

               at least 1 month before the date specified in point (a), all shareholders of the acquiring company must be entitled to inspect the documents specified in points (a), (b) and, where applicable, (c), (d) and (e) of Article 11(1) at the company’s registered office;

               (c)

               point (c) of the first paragraph of Article 8 must apply.

         For the purposes of point (b) of the first paragraph of this Article, Article 11(2), (3) and (4) shall apply.
   Article 28
   Member States shall not impose the requirements set out in Articles 9, 10 and 11 in the case of a merger within the meaning of Article 27 if the following conditions are fulfilled:

               (a)

               the minority shareholders of the company being acquired must be entitled to have their shares acquired by the acquiring company;

               (b)

               if they exercise that right, they must be entitled to receive consideration corresponding to the value of their shares;

               (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 designated by the Member State for that purpose.

         A Member State need not apply the first paragraph if the laws of that Member State entitle the acquiring company, without a previous public takeover offer, to require all the holders of the 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 29
   The Member States may apply Articles 27 and 28 to operations 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 companies being acquired are held by that acquiring company and/or by persons holding those shares and securities in their own names but on behalf of that company.
   CHAPTER VI

      OTHER OPERATIONS TREATED AS MERGERS

   Article 30
   Where in the case of one of the operations referred to in Article 2 the laws of a Member State permit a cash payment to exceed 10 %, Chapters III and IV and Articles 27, 28 and 29 shall apply.
   Article 31
   Where the laws of a Member State permit one of the operations referred to in Articles 2, 24 and 30, without all of the transferring companies thereby ceasing to exist, Chapter III, except for point (c) of Article 19(1), Chapter IV or Chapter V shall apply as appropriate.
   CHAPTER VII

      FINAL PROVISIONS

   Article 32
   Directive 78/855/EEC, as amended by the acts listed in Annex I, Part A, is hereby repealed, without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives set out in Annex I, Part B.
   References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.
   Article 33
   This Directive shall enter into force on 1 July 2011.
   Article 34
   This Directive is addressed to the Member States.

      Done at Strasbourg, 5 April 2011.

            For the European Parliament

            The President

         J. BUZEK

            For the Council

            The President

         GYŐRI E.

      (1)  OJ C 51, 17.2.2011, p. 36.

      (2)  Position of the European Parliament of 18 January 2011 (not yet published in the Official Journal) and decision of the Council of 21 March 2011.

      (3)  OJ L 295, 20.10.1978, p. 36.

      (4)  See Annex I, Part A.

      (5)  OJ 2, 15.1.1962, p. 36/62.

      (6)  OJ L 65, 14.3.1968, p. 8.

      (7)  OJ L 26, 31.1.1977, p. 1.

      (8)  OJ L 222, 14.8.1978, p. 11.

      (9)  OJ L 82, 22.3.2001, p. 16.

      (10)  OJ L 258, 1.10.2009, p. 11.

      (11)  OJ L 390, 31.12.2004, p. 38.

      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
                  (OJ L 363, 20.12.2006, p. 137)

                  Only as regards the reference 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
                  (OJ L 300, 17.11.2007, p. 47)

                  Article 2 only

                  Directive 2009/109/EC of the European Parliament and of the Council
                  (OJ L 259, 2.10.2009, p. 14)

                  Article 2 only

            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

      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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31970L0311

Council Directive 70/311/EEC of 8 June 1970 on the approximation of the laws of the Member States relating to the steering equipment for motor vehicles and their trailers

Official Journal L 133 , 18/06/1970 P. 0010 - 0013 Finnish special edition: Chapter 13 Volume 1 P. 0139  Danish special edition: Series I Chapter 1970(II) P. 0323  Swedish special edition: Chapter 13 Volume 1 P. 0139  English special edition: Series I Chapter 1970(II) P. 0375  Greek special edition: Chapter 13 Volume 1 P. 0093  Spanish special edition: Chapter 13 Volume 1 P. 0221  Portuguese special edition Chapter 13 Volume 1 P. 0221

COUNCIL DIRECTIVE  of 8 June 1970  on the approximation of the laws of the Member States relating to the steering equipment for motor vehicles and their trailers  (70/311/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 100 thereof;  Having regard to the proposal from the Commission;  Having regard to the Opinion of the European Parliament (1);  Having regard to the Opinion of the Economic and Social Committee (2);  Whereas the technical requirements which motor vehicles must satisfy pursuant to national laws relate, inter alia, to their steering equipment;  Whereas those requirements differ from one Member State to another ; whereas it is therefore necessary that all Member States adopt the same requirements either in addition to or in place of their existing rules, in order, in particular, to allow the EEC type approval procedure which was the subject of the Council Directive (3) of 6 February 1970 on the approximation of the laws of the Member States relating to the type approval of motor vehicles and their trailers to be applied in respect of each type of vehicle;  HAS ADOPTED THIS DIRECTIVE:    Article 1 For the purposes of this Directive, "vehicle" means any motor vehicle intended for use on the road, with or without bodywork, having at least four wheels and a maximum design speed exceeding 25 kilometres per hour, and its trailers, with the exception of vehicles which run on rails, agricultural tractors and machinery and public works vehicles.   Article 2 No Member State may refuse to grant EEC type approval or national type approval of a vehicle on grounds relating to its steering equipment if this equipment satisfies the requirements set out in the Annex.   Article 3 The amendments necessary for adjusting the requirements of the Annex so as to take account of technical progress shall be adopted in accordance with the procedure laid down in Article 13 of the Council Directive of 6 February 1970 on the type approval of motor vehicles and their trailers.   Article 4 1. Member States shall put into force the provisions containing the requirements needed in order to comply with this Directive within eighteen months of its notification and shall forthwith inform the Commission thereof.  2. Member States shall ensure that the text of the main provisions of national law which they adopt in the field covered by this Directive are communicated to the Commission.   Article 5 This Directive is addressed to the Member States.     Done at Brussels, 8 June 1970.  For the Council  The President  P. HARMEL  (1)OJ No C 160, 18.12.1969, p. 7. (2)OJ No C 10, 27.1.1970, p. 18. (3)OJ No L 42, 23.2.1970, p. 1.     ANNEX    1. DEFINITIONS  1.1 Steering equipment  "Steering equipment" means all the equipment the purpose of which is to alter the direction of movement of the vehicle.  The steering equipment may be considered to include:      - the steering control;           - the steering gear;           - the steered wheels;           - where applicable, special equipment to produce additional or independent power   1.1.1 Steering control  "Steering control" means the part directly operated by the driver in order to steer the vehicle.  1.1.2 Steering gear  1.1.2.1 In the case of motor vehicles, "steering gear" means all the components between the steering control and the steered wheels, with the exception of the special equipment referred to in item 1.1.4. The steering gear may be mechanical, hydraulic, pneumatic, electric or a combination of any of these.  1.1.2.2 In the case of trailers, "steering gear" means all the components which transmit to the steered wheels the force necessary in order to obtain a change in the direction of movement of the vehicle.  1.1.3 Steered wheels  "Steered wheels" means the wheels the alignment of which may be altered directly or indirectly in relation to that of the vehicle in order to obtain a change in the direction of movement of the vehicle.  1.1.4 Special equipment  "Special equipment" means that part of the steering equipment by which additional or independent power is produced. Additional or independent power may be produced by any mechanical, hydraulic, pneumatic or electrical system, or by any combination of these (for example by an oil pump, air pump or battery).  1.2 Different types of steering equipment  1.2.1 Depending on the source of power which is necessary for the deflection of the steered wheels, the following types of steering equipment are distinguished:  1.2.1.1 manual steering equipment in which the steering power is provided solely by the muscular power of the driver;  1.2.1.2 assisted steering equipment in which the steering power is provided both by the muscular power of the driver and by the special equipment referred to in item 1.1.4.  1.2.1.3 servo-steering equipment in which the steering power is provided solely by the special equipment referred to in item 1.1.4.  1.3 Steering effort  "Steering effort" means the force exerted by the driver on the steering control in order to steer the vehicle.        2. CONSTRUCTION, FITTING AND INSPECTION REQUIREMENTS  2.1 General requirements  2.1.1 The steering equipment must ensure easy and safe handling of the vehicle ; if necessary, the vehicle must be equipped with assisted steering.  2.2 Detailed requirements  2.2.1 Steering control  2.2.1.1 The steering control must be easy to use and easy to handle. It must be designed in such a way as to permit gradual deflection. The direction of movement of the steering control must correspond clearly to the desired change in the direction of the vehicle.  2.2.1.2 The steering effort required to achieve a turning circle of 12 metres radius, starting from the dead ahead position, must not exceed 25 kilogrammes.  In the case of assisted steering devices, if the auxiliary power supply fails the steering effort required must not exceed 60 kilogrammes.  2.2.1.3 In order to check compliance with the requirement in item 2.2.1.2 above, the vehicle shall describe a spiral movement at a speed of 10 kilometres per hour, starting from the dead ahead position. The steering effort on the steering wheel shall be noted up to the moment when the steering wheel reaches the position corresponding to the vehicle entering a turning circle of 12 metres radius ; the steering effort must not exceed the values laid down. The duration of the manoeuvre (time between the moment when the steering control is first operated and the moment when it reaches the position where the measurements are taken) must not exceed four seconds in normal cases and six seconds if the additional power supply fails. One manoeuvre must be made to the right and one to the left.  For the test, the vehicle must be loaded to its technically permissible maximum weight ; the tyre pressures and also the distribution of the weight between the axles must be as indicated by the manufacturer.  2.2.2 Steering gear  2.2.2.1 It must be possible to steer the vehicle even in the event of total or partial failure of the hydraulic, pneumatic or electrical components of the steering gear.  2.2.2.2 Mechanical steering gear must be designed in such a way as to meet any operational requirements. They must be easily accessible for maintenance and inspection.  2.2.3 Steered wheels  2.2.3.1 The rear wheels must not be the only steered wheels. This requirement does nut apply to semi-trailers.  2.2.3.2 Motor vehicles the rear wheels of which are also steered must be subjected to the following test:  2.2.3.2.1 The driver must be able to keep the rear wheels in a straight line, without making any abnormal steering correction, on a flat and horizontal road at a speed of 80 kilometres per hour or at the maximum design speed if this is less than 80 kilometres per hour.   2.2.3.3 Trailers must also be subjected to the test specified in item 2.2.3.2.1, at a speed of 80 kilometres per hour or at the technically permissible speed stated by the manufacturer if the latter is less than 80 kilometres per hour, in the following cases:      - where the trailer is equipped with more than one axle having steered wheels,            -  where the trailer is a semi-trailer equipped with at least one axle having steered wheels*.              2.2.4 Special equipment  2.2.4.1 Servo-steering equipment is not permitted.  2.2.4.2 When an assisted steering device does not have its own source of additional power, it must include a power reservoir. If the source of power used is compressed air, the reservoir of compressed air must be protected by a non-return valve.  2.2.4.3 It must be possible to steer the vehicle even if the special equipment fails.                     * As corrected by the corrigendum published in OJ No L 196 of 3 September 1970.


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31986L0299

Fourth Commission Directive 86/299/EEC of 3 June 1986 amending the Annex to Council Directive 74/63/EEC on the fixing of maximum permitted levels for undesirable substances and products in feedingstuffs

Official Journal L 189 , 11/07/1986 P. 0040 - 0041 Finnish special edition: Chapter 3 Volume 21 P. 0137  Swedish special edition: Chapter 3 Volume 21 P. 0137

*****FOURTH  COMMISSION DIRECTIVE  of 3 June 1986  amending the Annex to Council Directive 74/63/EEC on the fixing of maximum permitted levels for undesirable substances and products in feedingstuffs  (86/299/EEC)  THE COMMISSION OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community,  Having regard to Council Directive 74/63/EEC of 17 December 1973 on the fixing of maximum permitted levels for undesirable substances and products in feedingstuffs (1) as last amended by Regulation (EEC) No 3768/85 (2), and in particular Article 6 thereof,  Whereas Directive 74/63/EEC provides for regular amendment of its Annex to take account of advances in scientific and technical knowledge;  Whereas, in so far as there are no special provisions for complementary feedingstuffs, theses may not, allowing for the dilutions prescribed for their use, contain levels of undesirable substances and products in excess of those fixed in the Annex to the Directive for complete feedingstuffs;  Whereas it appears that keeping to this rule does not always permit the prescribed maximum levels for complete feedingstuffs to be respected, in cases where complementary feedingstuffs are taken into the daily ration with other feedingstuffs that are also contaminated; whereas it is suitable therefore to limit the presence of certain undesirable substances or products in complementary feedingstuffs by fixing appropriate maximum levels;  Whereas the measures provided for in this Directive are in accordance with the opinion on the Standing Committee for Feedingstuffs:  HAS ADOPTED THIS DIRECTIVE:  Article 1  The Annex to Directive 74/63/EEC is amended according to the Annex of the present Directive.  Article 2  The Member States shall bring into force, on 31 December 1987 at the latest, the laws, regulations and administrative provisions necessary to comply with Article 1. They shall forthwith inform the Commission thereof.  Article 3  This Directive is addressed to the Member States.  Done at Brussels, 3 June 1986.  For the Commission  Frans ANDRIESSEN  Vice-President  (1) OJ No L 38, 11. 2. 1974, p. 31.  (2) OJ No L 362, 31. 12. 1985, p. 8.  ANNEX  1. In part A 'Substances (ions or elements)' of the Annex:  1.1. The following item is added to item 1 'Arsenic'  1.2.3 //  //  //  // Substances, products   // Feedingstuffs  // Maximum content in mg/kg (ppm) of feedingstuff referred to a moisture content of 12 %   //    //   //   //  // Complementary feedingstuffs with the exception of   // 4  //   // - Mineral Feedingstuffs   // 12   //    //   //  1.2. The following item is added to item 2 'Lead'  1.2.3 //  //  //  // Substances, products   // Feedingstuffs  // Maximum content in mg/kg (ppm) of feedingstuff referred to a moisture content of 12 %   //    //   //   //  // Complementary feedingstuffs with the exception of   // 10  //   // - Mineral Feedingstuffs   // 30   //    //   //  1.3. The following item is added to item 3 'Fluorine'  1.2.3 //  //  //  // Substances, products   // Feedingstuffs  // Maximum content in mg/kg (ppm) of feedingstuff referred to a moisture content of 12 %   //    //   //   //   // Other complementary feedingstuffs   // 125 (2)   //    //   //  (2) Fluorine content per percentage point phosphorus in the feedingstuff.  1.4. The following item is added to item 4 'Mercury'  1.2.3 //  //  //  // Substances, products   // Feedingstuffs  // Maximum content in mg/kg (ppm) of feedingstuff referred to a moisture content of 12 %   //    //   //   //  // Complementary feedingstuffs (with the exception of complementary feedingstuffs for dogs and cats)   // 0,2   //  //   //  2. In part B 'Products', against item 1 'Aflatoxin', the words 'Complementary feedingstuffs' for dairy cattle, shown in the column 'Feedingstuffs' and the figure '0,01' shown in the column 'Maximum content' are replaced by the following:  1.2.3 //  //  //  // Substances, products   // Feedingstuffs  // Maximum content in mg/kg (ppm) of feedingstuff referred to a moisture content of 12 %   //    //   //   //  // Complementary feedingstuffs for cattle, sheep and goats (with the exception of complementary feedingstuffs for dairy animals, calves and lambs)   // 0,05   //   // Complementary feedingstuffs for pigs and poultry (with the exception of young animals)   // 0,03   //   // Other complementary feedingstuffs  // 0,01   //    //   //


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31998L0039

Commission Directive 98/39/EC of 5 June 1998 adapting to technical progress Council Directive 75/321/EEC relating to the steering equipment of wheeled agricultural or forestry tractors (Text with EEA relevance)

Official Journal L 170 , 16/06/1998 P. 0015 - 0015

COMMISSION DIRECTIVE 98/39/EC of 5 June 1998 adapting to technical progress Council Directive 75/321/EEC relating to the steering equipment of wheeled agricultural or forestry tractors (Text with EEA relevance)THE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Council Directive 75/321/EEC of 20 May 1975 on the approximation of the laws of the Member States relating to the steering equipment of wheeled agricultural or forestry tractors (1), as last amended by European Parliament and Council Directive 97/54/EC (2), and in particular Article 4 thereof,Whereas it is now appropriate to regard a motor breakdown as a potential cause of failure of the special assistance device which could cause the steering to lock;Whereas Directive 75/321/EEC should therefore be amended accordingly;Whereas the provisions of this Directive are in line with the opinion of the Committee on Adaptation to Technical Progress introduced by Council Directive 74/150/EEC (3), as last amended by Directive 97/54/EC,HAS ADOPTED THIS DIRECTIVE:Article 1 In the Annex to Directive 75/321/EEC, the first sentence in item 2.2.4.1.2 is replaced by the following:'If the tractor is fitted with servo-steering equipment as defined in 1.2.1.3, and provided that such equipment has a wholly hydraulic steering gear, it must be possible, should the special device or motor fail, to carry out the two manoeuvres specified in 2.2.1.3 using a special additional device`.Article 2 1. From 1 May 1999 no Member State may:- refuse, in respect of a type of tractor, to grant EC type-approval, to issue the document referred to in the third indent of Article 10(1) of Council Directive 74/150/EEC, or to grant national type-approval, or- to prohibit the entry into service of tractors,if those tractors meet the requirements of Directive 75/321/EEC, as amended by this Directive.2. From 1 October 1999, Member States:- may no longer issue the document referred to in the third indent of Article 10(1) of Directive 74/150/EEC for any type of tractor that does not meet the requirements of Directive 75/321/EEC, as amended by this Directive,- may refuse to grant national type-approval in respect of any type of tractor that does not meet the requirements of Directive 75/321/EEC, as amended by this Directive.Article 3 1. Member States shall bring into force the laws, regulations and administrative provisions necessary in order to comply with this Directive not later than 30 April 1999. They shall forthwith inform the Commission thereof.When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.2. Member States shall transmit to the Commission the text of the essential provisions of national law that they adopt in the area covered by this Directive.Article 4 This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.Article 5 This Directive is addressed to the Member States.Done at Brussels, 5 June 1998.For the CommissionMartin BANGEMANNMember of the Commission(1) OJ L 147, 9. 6. 1975, p. 24.(2) OJ L 277, 10. 10. 1997, p. 24.(3) OJ L 84, 28. 3. 1974, p. 10.


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32001L0023

Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses

Official Journal L 082 , 22/03/2001 P. 0016 - 0020

Council Directive 2001/23/ECof 12 March 2001on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businessesTHE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 94 thereof,Having regard to the proposal from the Commission,Having regard to the opinion of the European Parliament(1),Having regard to the opinion of the Economic and Social Committee(2),Whereas:(1) Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses(3) has been substantially amended(4). In the interests of clarity and rationality, it should therefore be codified.(2) Economic trends are bringing in their wake, at both national and Community level, changes in the structure of undertakings, through transfers of undertakings, businesses or parts of undertakings or businesses to other employers as a result of legal transfers or mergers.(3) It is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded.(4) Differences still remain in the Member States as regards the extent of the protection of employees in this respect and these differences should be reduced.(5) The Community Charter of the Fundamental Social Rights of Workers adopted on 9 December 1989 ("Social Charter") states, in points 7, 17 and 18 in particular that: "The completion of the internal market must lead to an improvement in the living and working conditions of workers in the European Community. The improvement must cover, where necessary, the development of certain aspects of employment regulations such as procedures for collective redundancies and those regarding bankruptcies. Information, consultation and participation for workers must be developed along appropriate lines, taking account of the practice in force in the various Member States. Such information, consultation and participation must be implemented in due time, particularly in connection with restructuring operations in undertakings or in cases of mergers having an impact on the employment of workers".(6) In 1977 the Council adopted Directive 77/187/EEC to promote the harmonisation of the relevant national laws ensuring the safeguarding of the rights of employees and requiring transferors and transferees to inform and consult employees' representatives in good time.(7) That Directive was subsequently amended in the light of the impact of the internal market, the legislative tendencies of the Member States with regard to the rescue of undertakings in economic difficulties, the case-law of the Court of Justice of the European Communities, Council Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies(5) and the legislation already in force in most Member States.(8) Considerations of legal security and transparency required that the legal concept of transfer be clarified in the light of the case-law of the Court of Justice. Such clarification has not altered the scope of Directive 77/187/EEC as interpreted by the Court of Justice.(9) The Social Charter recognises the importance of the fight against all forms of discrimination, especially based on sex, colour, race, opinion and creed.(10) This Directive should be without prejudice to the time limits set out in Annex I Part B within which the Member States are to comply with Directive 77/187/EEC, and the act amending it,HAS ADOPTED THIS DIRECTIVE:CHAPTER IScope and definitionsArticle 11. (a) This Directive shall apply to any transfer of an undertaking, business, or part of an undertaking or business to another employer as a result of a legal transfer or merger.(b) Subject to subparagraph (a) and the following provisions of this Article, there is a transfer within the meaning of this Directive where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.(c) This Directive shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain. An administrative reorganisation of public administrative authorities, or the transfer of administrative functions between public administrative authorities, is not a transfer within the meaning of this Directive.2. This Directive shall apply where and in so far as the undertaking, business or part of the undertaking or business to be transferred is situated within the territorial scope of the Treaty.3. This Directive shall not apply to seagoing vessels.Article 21. For the purposes of this Directive:(a) "transferor" shall mean any natural or legal person who, by reason of a transfer within the meaning of Article 1(1), ceases to be the employer in respect of the undertaking, business or part of the undertaking or business;(b) "transferee" shall mean any natural or legal person who, by reason of a transfer within the meaning of Article 1(1), becomes the employer in respect of the undertaking, business or part of the undertaking or business;(c) "representatives of employees" and related expressions shall mean the representatives of the employees provided for by the laws or practices of the Member States;(d) "employee" shall mean any person who, in the Member State concerned, is protected as an employee under national employment law.2. This Directive shall be without prejudice to national law as regards the definition of contract of employment or employment relationship.However, Member States shall not exclude from the scope of this Directive contracts of employment or employment relationships solely because:(a) of the number of working hours performed or to be performed,(b) they are employment relationships governed by a fixed-duration contract of employment within the meaning of Article 1(1) of Council Directive 91/383/EEC of 25 June 1991 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-duration employment relationship or a tempory employment relationship(6), or(c) they are temporary employment relationships within the meaning of Article 1(2) of Directive 91/383/EEC, and the undertaking, business or part of the undertaking or business transferred is, or is part of, the temporary employment business which is the employer.CHAPTER IISafeguarding of employees' rightsArticle 31. The transferor's rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.2. Member States may adopt appropriate measures to ensure that the transferor notifies the transferee of all the rights and obligations which will be transferred to the transferee under this Article, so far as those rights and obligations are or ought to have been known to the transferor at the time of the transfer. A failure by the transferor to notify the transferee of any such right or obligation shall not affect the transfer of that right or obligation and the rights of any employees against the transferee and/or transferor in respect of that right or obligation.3. Following the transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.Member States may limit the period for observing such terms and conditions with the proviso that it shall not be less than one year.4. (a) Unless Member States provide otherwise, paragraphs 1 and 3 shall not apply in relation to employees' rights to old-age, invalidity or survivors' benefits under supplementary company or intercompany pension schemes outside the statutory social security schemes in Member States.(b) Even where they do not provide in accordance with subparagraph (a) that paragraphs 1 and 3 apply in relation to such rights, Member States shall adopt the measures necessary to protect the interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old age benefits, including survivors' benefits, under supplementary schemes referred to in subparagraph (a).Article 41. The transfer of the undertaking, business or part of the undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organisational reasons entailing changes in the workforce.Member States may provide that the first subparagraph shall not apply to certain specific categories of employees who are not covered by the laws or practice of the Member States in respect of protection against dismissal.2. If the contract of employment or the employment relationship is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for termination of the contract of employment or of the employment relationship.Article 51. Unless Member States provide otherwise, Articles 3 and 4 shall not apply to any transfer of an undertaking, business or part of an undertaking or business where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of a competent public authority (which may be an insolvency practioner authorised by a competent public authority).2. Where Articles 3 and 4 apply to a transfer during insolvency proceedings which have been opened in relation to a transferor (whether or not those proceedings have been instituted with a view to the liquidation of the assets of the transferor) and provided that such proceedings are under the supervision of a competent public authority (which may be an insolvency practioner determined by national law) a Member State may provide that:(a) notwithstanding Article 3(1), the transferor's debts arising from any contracts of employment or employment relationships and payable before the transfer or before the opening of the insolvency proceedings shall not be transferred to the transferee, provided that such proceedings give rise, under the law of that Member State, to protection at least equivalent to that provided for in situations covered by Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer(7), and, or alternatively, that,(b) the transferee, transferor or person or persons exercising the transferor's functions, on the one hand, and the representatives of the employees on the other hand may agree alterations, in so far as current law or practice permits, to the employees' terms and conditions of employment designed to safeguard employment opportunities by ensuring the survival of the undertaking, business or part of the undertaking or business.3. A Member State may apply paragraph 20(b) to any transfers where the transferor is in a situation of serious economic crisis, as defined by national law, provided that the situation is declared by a competent public authority and open to judicial supervision, on condition that such provisions already existed in national law on 17 July 1998.The Commission shall present a report on the effects of this provision before 17 July 2003 and shall submit any appropriate proposals to the Council.4. Member States shall take appropriate measures with a view to preventing misuse of insolvency proceedings in such a way as to deprive employees of the rights provided for in this Directive.Article 61. If the undertaking, business or part of an undertaking or business preserves its autonomy, the status and function of the representatives or of the representation of the employees affected by the transfer shall be preserved on the same terms and subject to the same conditions as existed before the date of the transfer by virtue of law, regulation, administrative provision or agreement, provided that the conditions necessary for the constitution of the employee's representation are fulfilled.The first subparagraph shall not supply if, under the laws, regulations, administrative provisions or practice in the Member States, or by agreement with the representatives of the employees, the conditions necessary for the reappointment of the representatives of the employees or for the reconstitution of the representation of the employees are fulfilled.Where the transferor is the subject of bankruptcy proceedings or any analoguous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of a competent public authority (which may be an insolvency practitioner authorised by a competent public authority), Member States may take the necessary measures to ensure that the transferred employees are properly represented until the new election or designation of representatives of the employees.If the undertaking, business or part of an undertaking or business does not preserve its autonomy, the Member States shall take the necessary measures to ensure that the employees transferred who were represented before the transfer continue to be properly represented during the period necessary for the reconstitution or reappointment of the representation of employees in accordance with national law or practice.2. If the term of office of the representatives of the employees affected by the transfer expires as a result of the transfer, the representatives shall continue to enjoy the protection provided by the laws, regulations, administrative provisions or practice of the Member States.CHAPTER IIIInformation and consultationArticle 71. The transferor and transferee shall be required to inform the representatives of their respective employees affected by the transfer of the following:- the date or proposed date of the transfer,- the reasons for the transfer,- the legal, economic and social implications of the transfer for the employees,- any measures envisaged in relation to the employees.The transferor must give such information to the representatives of his employees in good time, before the transfer is carried out.The transferee must give such information to the representatives of his employees in good time, and in any event before his employees are directly affected by the transfer as regards their conditions of work and employment.2. Where the transferor or the transferee envisages measures in relation to his employees, he shall consult the representatives of this employees in good time on such measures with a view to reaching an agreement.3. Member States whose laws, regulations or administrative provisions provide that represenatives of the employees may have recourse to an arbitration board to obtain a decision on the measures to be taken in relation to employees may limit the obligations laid down in paragraphs 1 and 2 to cases where the transfer carried out gives rise to a change in the business likely to entail serious disadvantages for a considerable number of the employees.The information and consultations shall cover at least the measures envisaged in relation to the employees.The information must be provided and consultations take place in good time before the change in the business as referred to in the first subparagraph is effected.4. The obligations laid down in this Article shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer.In considering alleged breaches of the information and consultation requirements laid down by this Directive, the argument that such a breach occurred because the information was not provided by an undertaking controlling the employer shall not be accepted as an excuse.5. Member States may limit the obligations laid down in paragraphs 1, 2 and 3 to undertakings or businesses which, in terms of the number of employees, meet the conditions for the election or nomination of a collegiate body representing the employees.6. Member States shall provide that, where there are no representatives of the employees in an undertaking or business through no fault of their own, the employees concerned must be informed in advance of:- the date or proposed date of the transfer,- the reason for the transfer,- the legal, economic and social implications of the transfer for the employees,- any measures envisaged in relation to the employees.CHAPTER IVFinal provisionsArticle 8This Directive shall not affect the right of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees or to promote or permit collective agreements or agreements between social partners more favourable to employees.Article 9Member States shall introduce into their national legal systems such measures as are necessary to enable all employees and representatives of employees who consider themselves wronged by failure to comply with the obligations arising from this Directive to pursue their claims by judicial process after possible recourse to other competent authorities.Article 10The Commission shall submit to the Council an analysis of the effect of the provisions of this Directive before 17 July 2006. It shall propose any amendment which may seem necessary.Article 11Member States shall communicate to the Commission the texts of the laws, regulations and administrative provisions which they adopt in the field covered by this Directive.Article 12Directive 77/187/EEC, as amended by the Directive referred to in Annex I, Part A, is repealed, without prejudice to the obligations of the Member States concerning the time limits for implementation set out in Annex I, Part B.References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.Article 13This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.Article 14This Directive is addressed to the Member States.Done at Brussels, 12 March 2001.For the CouncilThe PresidentB. Ringholm(1) Opinion delivered on 25 October 2000 (not yet published in the Official Journal).(2) OJ C 367, 20.12.2000, p. 21.(3) OJ L 61, 5.3.1977, p. 26.(4) See Annex I, Part A.(5) OJ L 48, 22.2.1975, p. 29. Directive replaced by Directive 98/59/EC (OJ L 225, 12.8.1998, p. 16).(6) OJ L 206, 29.7.1991, p. 19.(7) OJ L 283, 20.10.1980, p. 23. Directive as last amended by the 1994 Act of Accession.ANNEX IPART ARepealed Directive and its amending Directive(referred to in Article 12)Council Directive 77/187/EEC (OJ L 61, 5.3.1977, p. 26)Council Directive 98/50/EC (OJ L 201, 17.7.1998, p. 88)PART BDeadlines for transposition into national law(referred to in Article 12)>TABLE>ANNEX IICORRELATION TABLE>TABLE>