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31978L0686

Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services

Official Journal L 233 , 24/08/1978 P. 0001 - 0009 Finnish special edition: Chapter 16 Volume 1 P. 0033  Greek special edition: Chapter 05 Volume 3 P. 0012  Swedish special edition: Chapter 16 Volume 1 P. 0033  Spanish special edition: Chapter 06 Volume 2 P. 0032  Portuguese special edition Chapter 06 Volume 2 P. 0032

COUNCIL DIRECTIVE  of 25 July 1978  concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of pratitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services  (78/686/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Articles 49, 57, 66 and 235 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, pursuant to the Treaty, all discriminatory treatment based on nationality with regard to establishment and provision of services is prohibited as from the end of the transitional period ; whereas the principle of such treatment based on nationality applies in particular to the grant of any authorization required to practise as a dental practitioner and also to registration with or membership of professional organizations or bodies;  Whereas it nevertheless seems desirable that certain provisions be introduced to facilitate the effective exercise of the right of establishment and freedom to provide services in respect of the activities of dental practitioners;  Whereas, pursuant to the Treaty, the Member States are required not to grant any form of aid likely to distort the conditions of establishment;  Whereas Article 57 (1) of the Treaty provides that Directives shall be issued for the mutual recognition of diplomas, certificates and other evidence of formal qualifications ; whereas the aim of this Directive is the recognition of diplomas, certificates and other evidence of formal qualifications of a dental practitioner enabling activities in the field of dentistry to be taken up and pursued and the recognition of diplomas, certificates and other evidence of formal qualifications in respect of practitioners of specialized dentistry;  Whereas, with regard to the training of practitioners of specialized dentistry, the mutual recognition of training qualifications is advisable where these qualifications, while not being a condition for taking up the activities of practitioner of specialized dentistry, are nonetheless a condition for the use of a specialist title;  Whereas, in view of the current differences between the Member States regarding the number of specializations in dentistry and the type or the length of training courses for such specializations, certain coordinating provisions intended to enable Member States to proceed with the mutual recognition of diplomas, certificates and other evidence of formal qualifications should be laid down ; whereas such coordination has been effected by Council Directive 78/687/EEC of 25 August 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners (3);  (1)OJ No C 101, 4.8.1970, p. 19. (2)OJ No C 36, 28.3.1970, p. 17. (3)See page 10 of this Official Journal.   Whereas, although the coordination referred to above was not intended to harmonize all the provisions of the Member States on the training of practitioners of specialized dentistry, it is nevertheless appropriate to proceed with the mutual recognition of diplomas, certificates and other evidence of formal qualifications as a pratitioner of specialized dentistry which are not common to all the Member States, without however excluding the possibility of subsequent harmonization in this field ; whereas it was considered in this connection that recognition of diplomas, certificates and other evidence of formal qualifications as a practitioner of specialized dentistry must be restricted to those Member States where such specialization is known;  Whereas, with regard to the use of academic titles, since a Directive on the mutal recognition of diplomas does not necessarily imply equivalence in the training covered by such diplomas, the use of such titles should be authorized only in the language of the Member State of origin or of the Member State from which the foreign national comes;  Whereas, to facilitate the application of this Directive by national authorities, Member States may prescribe that, in addition to formal certificates of training, a person who satisfies the conditions of training required by these authorities must provide a certificate from the competent authorities of his Member State of origin or of the Member State from which he comes stating that these certificates of training are those covered by this Directive;  Whereas, in the case of the provision of services, the requirement of registration with or membership of professional organizations or bodies since it is related to the fixed and permanent nature of activities pursued in the host country would thus undoubtedly constitute an obstacle to the persons wishing to provide the service, by reason of the temporary nature of his activity ; whereas this requirement should therefore be abolished ; whereas, however, in this event, control over professional discipline which is the responsibility of these professional organizations or bodies, should be guaranteed ; whereas, to this end, it should be provided, subject to the application of Article 62 of the Treaty, that the person concerned may be required to submit to the competent authority of the host Member State particulars relating to the provision of services;  Whereas, with regard to the requirements relating to good character and good repute, a distinction should be drawn between the requirements to be satisfied on first taking up the profession and those to be satisfied for its practice;  Whereas, as far as the activities of employed dental practitioners are concerned, Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (1) lays down no specific provisions relating to good character or good repute, professional discipline or use of title for the professions covered ; whereas, depending on the individual Member State, such rules are or may be applicable both to employed and self-employed persons ; whereas the activities of dental practitioners are or will be subject in all Member States to possession of a diploma, certificate or other evidence of formal qualification in dentistry ; whereas such activities are pursued by both employed and self-employed persons, or by the same persons in both capacities in the course of their professional career ; whereas, in order to encourage as far as possible their free movement within the Community, it therefore appears necessary to extend this Directive to cover employed dental practitioners;  Whereas the dental profession is not yet organized in Italy ; whereas it is therefore necessary to grant Italy an additional period for recognizing the diplomas of dental practitioners awarded by the other Member States;  Whereas, moreover, this means that holders of a doctor's diploma awarded in Italy may not acquire a certificate meeting the requirements of Article 19 of this Directive;  Whereas, in these circumstances, it is necessary to defer on the one hand the obligation of Italy to recognize diplomas awarded by the other Member States and on the other hand that of the Member States to recognize diplomas awarded in Italy as referred to in Article 19,  HAS ADOPTED THIS DIRECTIVE:    CHAPTER I SCOPE  Article 1 This Directive shall apply to the activities of dental practitioners as defined in Article 5 of Directive 78/687/EEC pursued under the following titles:  - in Germany:  Zahnarzt,  (1)OJ No L 257, 19.10.1968, p. 2.   - in Belgium:  licencié en science dentaire/licentiaat in de tandheelkunde,   - in Denmark:  tandlæge,   - in France:  chirurgien-dentiste,   - in Ireland:  dentist, dental practitioner or dental surgeon,   - in Italy:  the diploma the title of which will be notified by Italy to the Member States and the Commission within the time limit laid down in Article 24 (1),   - in Luxembourg:  médecin-dentiste,   - in the Netherlands:  tandarts,   - in the United Kingdom:  dentist, dental practitioner or dental surgeon.   CHAPTER II DIPLOMAS, CERTIFICATES AND OTHER EVIDENCE OF FORMAL QUALIFICATIONS IN DENTISTRY  Article 2 Each Member State shall recognize the diplomas, certificates and other evidence of formal qualifications in dentistry awarded to nationals of Member States by the other Member States in accordance with Article 1 of Directive 78/687/EEC and which are listed in Article 3 of this Directive, by giving such qualifications, as far as the right to take up and pursue the activities of a dental practitioner is concerned, the same effect in its territory as those which the Member States itself awards.   Article 3 The diplomas, certificates and other evidence of formal qualification referred to in Article 2 are as follows:    (a) in Germany      1. "Zeugnis über die zahnärztliche Staatsprüfung" (the State examination certificate in dentistry), awarded by the competent authorities;           2. the certificates from the competent authorities of the Federal Republic of Germany stating that the diplomas awarded after 8 May 1945 by the competent authorities of the German Democratic Republic are recognized as equivalent to those listed in point 1;                  (b) in Belgium  "diplôme légal de licencié en science dentaire/wettelijk diploma van licentiaat in de tandheelkunde" (the official diploma of graduate in dental science), awarded by the university faculties of medicine, or by the Central Board or by the State boards of university examiners;       (c) in Denmark  "bevis for tandlægeeksamen (kandidateksamen)" (official diploma certifying that the holder has passed the examination in dentistry), issued by schools of dentistry together with the document issued by the "Sundhedsstyrelsen" (State Board of Health) certifying that he has worked as an assistant for the required length of time;       (d) in France      1. "diplôme d'État de chirurgien-dentiste" (State diploma of dental surgeon), awarded until 1973 by the university faculties of medicine or the university joint faculties of medicine and pharmacy;           2. "diplôme d'État de docteur en chirurgie dentaire" (State diploma of doctor of dental surgery), awarded by the universities;                  (e) in Ireland  the diploma of:      - Bachelor in Dental Science (B.Dent.Sc.),           - Bachelor of Dental Surgery (BDS), or           - Licentiate in Dental Surgery (LDS),             awarded by the universities or the Royal College of Surgeons in Ireland;       (f) in Italy  the diploma the title of which will be notified by Italy to the Member States and to the Commission within the time limit laid down in Article 24 (1);       (g) in Luxembourg  "diplôme d'État de docteur en médecine dentaire" (State diploma of doctor of dental medicine), issued by the State Board of Examiners;       (h) in the Netherlands  "universitair getuigschrift van een met goed gevolg afgelegd tandartsexamen" (university certificate certifying success in the dental surgeon's examination);        (i) in the United Kingdom  the diploma of:      - Bachelor of Dental Surgery (BDS or B.Ch.D), or           - Licentiate in Dental Surgery (LDS),             issued by the universities and the royal colleges.          CHAPTER III DIPLOMAS, CERTIFICATES AND OTHER EVIDENCE OF FORMAL QUALIFICATIONS IN SPECIALIZED DENTISTRY PECULIAR TO TWO OR MORE MEMBER STATES  Article 4 Each Member State with provisions in this field laid down by laws, regulations or administrative provisions shall recognize the diplomas, certificates and other evidence of formal qualifications of dental practitioners specializing in orthodontics and oral surgery awarded to nationals of Member States by other Member States in accordance with Articles 2 and 3 of Directive 78/687/EEC and which are listed in Article 5, by granting such qualifications the same effect in its territory as the diplomas, certificates and other formal qualifications which it itself awards.   Article 5 The diplomas, certificates and other evidence of formal qualifications referred to in Article 4 are as follows:    1. Orthodontics  - in Germany  "fachzahnärztliche Anerkennung für Kieferorthopädie" (certificate of orthodontist), issued by the "Landeszahnärztekammern" (Chamber of Dental Practitioners of the "Länder"),  - in Denmark  "bevis for tilladelse til at betegne sig som specialtandlæge i ortodonti" (certificate awarding the right to use the title of dental practitioner specializing in orthodontics), issued by the "Sundhedsstyrelsen" (State Board of Health),   - in France  "le titre de spécialiste en orthodontie" (the title of orthodontic specialist), issued by the authority recognized competent for this purpose,   - in Ireland  certificate of specialist dentist in orthodontics, issued by the competent authority recognized for this purpose by the competent minister,   - in the Netherlands  "getuigschrift van erkenning en inschrijving als orthodontist in het Specialistenregister" (certificate showing that the person concerned is officially recognized and that his name is entered as a orthodontist in the specialists' register), issued by the "Specialisten-Registratiecommissie (SRC)" (Specialists Registration Board),   - in the United Kingdom  certificate of completion of specialist training in orthodontics, issued by the competent authority recognized for this purpose.       2. Oral surgery  - in Germany  "fachzahnärztliche Anerkennung für Oralchirurgie/Mundchirurgie" (certificate of oral surgery), issued by the "Landeszahnärztekammern" (Chamber of Dental Practitioners of the "Länder"),  - in Denmark  "bevis for tilladelse til at betegne sig som specialtandlæge i hospitalsodontologi" (certificate conferring the right to use the title of dental practitioner specialized in hospital odontology), issued by the "Sundhedsstyrelsen" (State Board of Health),   - in Ireland  certificate of specialist dentist in oral surgery, issued by the competent authority recognized for this purpose by the competent Minister,   - in the Netherlands  "getuigschrift van erkenning en inschrijving als kaakchirurg in het Specialistenregister" (certificate showing that the person concerned is officially recognized and that his name is entered as an oral surgeon in the specialists' register), issued by the "Specialisten-Registratiecommissie (SRC)" (Specialists Registration Board),   - in the United Kingdom  certificate of completion of specialist training in oral surgery, issued by the competent authority recognized for this purpose.          Article 6 1. Nationals of Member States wishing to acquire one of the diplomas, certificates or other evidence of formal  qualification of practitioner of specialized dentistry which are not awarded in the Member State of origin or the Member State from which the foreign national comes, may be required by a host Member State to fulfil the conditions of training laid down in respect of the speciality by its own laws, regulations or administrative provisions.  2. The host Member State shall, however, take into account, in whole or in part, the training periods completed by the nationals referred to in paragraph 1 and attested by possession of a diploma, certificate or other evidence of formal training awarded by the competent authorities of the Member State of origin or the Member State from which the foreign national comes, provided such training periods correspond to those required in the host Member State for the specialized training in question.  3. The competent authorities or bodies of the host Member State, having verified the content and duration of the specialist training of the person concerned on the basis of the diplomas, certificates and other evidence of formal qualifications submitted, shall inform him of the period of additional training required and of the fields to be covered by it.   CHAPTER IV EXISTING CIRCUMSTANCES  Article 7 1. In the case of nationals of Member States whose diplomas, certificates and other evidence of formal qualifications do not satisfy all the minimum training requirements laid down in Article 1 of Directive 78/687/EEC, each Member State shall recognize as being sufficient proof the diplomas, certificates and other evidence of formal qualifications in dentistry awarded by those Member States before the implementation of Directive 78/687/EEC, accompanied by a certificate stating that those nationals have effectively and lawfully been engaged in the activities in question for at least three consecutive years during the five years prior to the date of issue of the certificate.  2. In the case of nationals of Member States whose diplomas, certificates and other evidence of formal qualifications in specialized dentistry do not satisfy the minimum training requirements under Articles 2 and 3 of Directive 78/687/EEC, each Member State shall recognize as sufficient proof the diplomas, certificates and other evidence of formal qualifications in specialized dentistry awarded by those Member States before the implementation of Directive 78/687/EEC. The Member State may, however, require that such diplomas, certificates and other evidence of formal qualifications be accompanied by a certificate issued by the competent authorities or bodies of the Member State of origin or of the Member State from which the foreign national comes, stating that he has been engaged in activities of specialized dentistry for a period equal to twice the difference between the length of specialized training in the Member State of origin or in the Member State from which the foreign national comes and the minimum training period referred to in Directive 78/687/EEC where these diplomas, certificates and other evidence of formal qualifications do not satisfy the minimum training period laid down in Article 2 of Directive 78/687/EEC.  However, if before this Directive is implemented, the host Member State requires a minimum training period of shorter duration than that referred to in Article 2 of Directive 78/687/EEC, the difference mentioned in the first subparagraph can be determined only by reference to the minimum training period laid down by that State.   CHAPTER V USE OF ACADEMIC TITLE  Article 8 1. Without prejudice to Article 17, host Member States shall ensure that the nationals of Member States who fulfil the conditions laid down in Articles 2, 4, 7 and 19 have the right to use the lawful academic title in so far as this is not identical with the professional title or, where appropriate, the abbreviation thereof, of their Member State of origin or of the Member State from which they come, in the language of that State. Host Member States may require this title to be followed by the name and location of the establishment or examining board which awarded it.  2. If the academic title used in the Member State of origin or in the Member State from which a foreign national comes can be confused in the host Member State with a title requiring in that State additional training which the person concerned has not undergone, the host Member State may require such a person to use the title employed in the Member State of origin or the Member State from which he comes in suitable wording to be drawn up by the host Member State.   CHAPTER VI PROVISIONS TO FACILITATE THE EFFECTIVE EXERCISE OF THE RIGHT OF ESTABLISHMENT AND FREEDOM TO PROVIDE SERVICES IN RESPECT OF THE ACTIVITIES OF DENTAL PRACTITIONERS  A. Provisions relating specifically to the right of establishment  Article 9 1. A host Member State which requires of its nationals proof of good character or good repute when they take  up for the first time any of the activities referred to in Article 1 shall accept as sufficient evidence, in respect of nationals of other Member States, a certificate issued by a competent authority in the Member State of origin or the Member State from which the foreign national comes attesting that the requirements of the Member State as to good character or good repute for taking up the activity in question have been met.  2. Where the Member State of origin or the Member State from which the foreign national comes does not require proof of good character or good repute of persons wishing to take up the activity in question for the first time, the host Member State may require of nationals of the Member State of origin or the Member State from which the foreign national comes an extract from the "judicial record" or, failing this, an equivalent document issued by a competent authority in the Member State of origin or the Member State from which the foreign national comes.  3. If the host Member State has detailed knowledge of a serious matter which has occurred prior to the establishment of the person concerned in that State outside its territory and which is likely to affect the taking up within its territory of the activity concerned, it may inform the Member State of origin or the Member State from which the foreign national comes.  The Member State of origin or the Member State from which the foreign national comes shall verify the accuracy of the facts if they are likely to affect in that Member State the taking up of the activity in question. The authorities in that State shall decide on the nature and extent of the investigation to be made and shall inform the host Member State of any consequential action which they take with regard to the certificates or documents they have issued.  4. Member States shall ensure the confidentiality of the information forwarded.   Article 10 1. Where, in a host Member State, provisions laid down by law, regulation or administrative action are in force laying down requirements as to good character or good repute, including provision for disciplinary action in the event of serious professional misconduct or conviction for criminal offences and relating to the pursuit of any of the activities referred to in Article 1, the Member State of origin or the Member State from which the foreign national comes shall forward to the host Member State all necessary information regarding measures or disciplinary action of a professional or administrative nature taken in respect of the person concerned or regarding criminal penalties imposed on him when pursuing his profession in the Member State of origin or in the Member State from which he comes.  2. If the host Member State has detailed knowledge of a serious matter which has occurred prior to the establishment of the person concerned in the State outside its territory and which is likely to affect the pursuit within its territory of the activity concerned, it may inform the Member State of origin or the Member State from which the foreign national comes.  The Member State of origin or the Member State from which the foreign national comes shall verify the accuracy of the facts if they are likely to affect in that Member State the pursuit of the activity in question. The authorities in that State shall decide on the nature and extent of the investigation to be made and shall inform the host Member State of any consequential action which they take with regard to the information they have forwarded in accordance with paragraph 1.  3. Member States shall ensure the confidentiality of the information forwarded.   Article 11 Where a host Member State requires of its own nationals wishing to take up or pursue any of the activities referred to in Article 1 a certificate of physical or mental health, that State shall accept as sufficient evidence thereof the presentation of the document required in the Member State of origin or the Member State from which the foreign national comes.  Where the Member State of origin or the Member State from which the foreign national comes does not impose any requirements of this nature on those wishing to take up or pursue the activity in question, the host Member State shall accept from such national a certificate issued by a competent authority in that State corresponding to the certificates issued in the host Member State.   Article 12 Documents issued in accordance with Articles 9, 10 and 11 may not be presented more than three months after their date of issue.   Article 13 1. The procedure for authorizing the person concerned to take up any activity referred to in Article 1, pursuant to Articles 9, 10 and 11, must be completed as soon as possible and not later than three months after presentation of all the documents relating to such person, without prejudice to delays resulting from any appeal that may be made upon the termination of this procedure.  2. In the cases referred to in Articles 9 (3) and 10 (2), a request for re-examination shall suspend the period laid down in paragraph 1.  The Member State consulted shall give its reply within a period of three months.   On receipt of the reply or at the end of the period the host Member State shall continue with the procedure referred to in paragraph 1.   Article 14 Where a host Member State requires its own nationals wishing to take up or pursue any of the activities referred to in Article 1 to take an oath or make a solemn declaration and where the form of such oath or declaration cannot be used by nationals of other Member States, that Member State shall ensure that an appropriate and equivalent form of oath or declaration is offered to the person concerned.  B. Provisions relating specifically to the provision of services   Article 15 1. Where a Member State requires of its own nationals wishing to take up or pursue any of the activities referred to in Article 1 an authorization or membership of or registration with a professional organization or body, that Member State shall in the case of the provision of services exempt the nationals of the other Member States from that requirement.  The person concerned shall provide services with the same rights and obligations as the nationals of the host Member State ; in particular he shall be subject to the rules of conduct of a professional or administrative nature which apply in that Member State.  To this end and in addition to the declaration relating to the provision of services referred to in paragraph 2 Member States may, so as to permit the implementation of the provisions relating to professional conduct in force in their territory, provide for automatic temporary registration with or pro forma membership of a professional organization or body or entry in a register, provided that such registration does not delay or in any way complicate the provision of services or impose any additional costs on the person providing the services.  Where a host Member State adopts a measure pursuant to the second subparagraph or becomes aware of facts which run counter to these provisions, it shall forthwith inform the Member State where the person concerned is established.  2. The host Member State may require the person concerned to make a prior declaration to the competent authorities concerning the provision of his services where they involve a temporary stay in its territory.  In urgent cases this declaration may be made as soon as possible after the services have been provided.  3. Pursuant to paragraphs 1 and 2, the host Member State may require the person concerned to supply one or more documents containing the following particulars:    - the declaration referred to in paragraph 2,       - a certificate stating that the person concerned is lawfully pursuing the activities in question in the Member State where he is established,       - a certificate that the person concerned holds one or other of the diplomas, certificates or other evidence of formal qualifications appropriate for the provision of the services in question and referred to in this Directive.         4. The document or documents specified in paragraph 3 may not be presented more than 12 months after their date of issue.  5. Where a Member State temporarily or permanently deprives, in whole or in part, one of its nationals or a national of another Member State established in its territory of the right to pursue any of the activities referred to in Article 1, it shall, as appropriate, ensure the temporary or permanent withdrawal of the certificate referred to in the second indent of paragraph 3.   Article 16 Where registration with a public social security body is required in a host Member State for the settlement with insurance bodies of accounts relating to services rendered to persons insured under social security schemes, that Member State shall exempt nationals of Member States established in another Member State from this requirement in cases of provision of services entailing travel on the part of the person concerned.  In all cases of provision of services entailing travel on the part of the person concerned, the host Member State may require him to supply information to this body in advance, or, in urgent cases, at the earliest opportunity, concerning the services provided.  C. Provisions common to the right of establishment and freedom to provide services   Article 17 1. Where in a host Member State the use of the professional title relating to any of the activities referred to in Article 1 is subject to rules, nationals of other Member States who fulfil the conditions laid down in Articles 2, 7 (1) and 19 shall use the professional title of the host Member State which, in that State, corresponds to those conditions of qualification and shall use the abbreviated title.   2. Paragraph 1 shall also apply to the use of professional titles of practitioner of specialized dentistry by those who fulfil the conditions laid down in Articles 4 and 7 (2) respectively.   Article 18 1. Member States shall take the necessary measures to enable the persons concerned to obtain information on the health and social security laws and, where applicable, on the professional ethics of the host Member State.  For this purpose Member States may set up information centres from which such persons may obtain the necessary information. In the case of establishment, the host Member States may require the person concerned to contact these centres.  2. Member States may set up the centres referred to in paragraph 1 within the competent authorities and bodies which they must designate within the period laid down in Article 24 (1).  3. Member States shall see to it that, where appropriate, the persons concerned acquire, in their interest and in that of their patients, the linguistic knowledge necessary for the exercise of their profession in the host Member State.   CHAPTER VII TRANSITIONAL PROVISIONS COVERING THE SPECIAL CASE OF ITALY  Article 19 From the date on which Italy takes the measures necessary to comply with this Directive, Member States shall recognize, for the purposes of carrying out the activities referred to in Article 1 of this Directive, the diplomas, certificates and other evidence of formal qualifications in medicine awarded in Italy to persons who had begun their university medical training not later than 18 months after notification of this Directive, accompanied by a certificate issued by the competent Italian authorities, certifying that these persons have effectively, lawfully and principally been engaged in Italy in the activities specified in Article 5 of Directive 78/687/EEC for at least three consecutive years during the five years prior to the issue of the certificate and that these persons are authorized to carry out the said activites under the same conditions as holders of the diploma, certificate or other evidence of formal qualifications referred to in Article 3 (f) of this Directive.  The requirement of three years' experience referred to in the first subparagraph shall be waived in the case of persons who have successfully completed at least three years of study which are certified by the competent authorities as being equivalent to the training referred to in Article 1 of Directive 78/687/EEC.   CHAPTER VIII FINAL PROVISIONS  Article 20 Member States which require their own nationals to complete a preparatory training period in order to become eligible for appointment as a dental practitioner of a social security scheme may impose the same requirement on nationals of the other Member States for a period of eight years following notification of this Directive. The training period may not, however, exceed six months.   Article 21 In the event of justified doubts, the host Member State may require of the competent authorities of another Member State confirmation of the authenticity of the diplomas, certificates and other evidence of formal qualifications issued in that other Member State and referred to in Chapters II, III and IV, and also confirmation that the person concerned has fulfilled all the training requirements laid down in Directive 78/687/EEC.   Article 22 Within the time limit laid down in Article 24 (1), Member States shall designate the authorities and bodies competent to issue or receive the diplomas, certificates and other evidence of formal qualifications as well as the documents and information referred to in this Directive and shall forthwith inform the other Member States and the Commission thereof.   Article 23 The Directive shall also apply to the nationals of Member States who, in accordance with Regulation (EEC) No 1612/68, are or will be pursuing as employed persons any of the activities referred to in Article 1.   Article 24 1. Member States shall take the measures necessary to comply with this Directive within 18 months of its notification and shall forthwith inform the Commission   thereof. However, Italy shall take these measures within a maximum period of six years and in any event when it takes those necessary to comply with Directive 78/687/EEC.  2. Member States shall forward to the Commission the texts of the main provisions of national law which they adopt in the field covered by this Directive.   Article 25 Where a Member State encounters major difficulties in certain fields when applying this Directive, the Commission shall examine these difficulties in conjunction with that State and shall request the opinion of the Committee of Senior Officials on Public Health set up by Decision 75/365/EEC (1), as last amended by Decision 78/689/EEC (2).  Where necessary, the Commission shall submit appropriate proposals to the Council.   Article 26 This Directive is addressed to the Member States.     Done at Brussels, 25 July 1978.  For the Council  The President  K. von DOHNANYI  (1)OJ No L 167, 30.6.1975, p. 19. (2)See page 17 of this Official Journal.


title: Directive 2005/56/EC of the European Parliament and of the Council of  26 October 2005  on cross-border mergers of limited liability companies   (Text with EEA relevance)

text:
               25.11.2005

               EN

               Official Journal of the European Union

               L 310/1

      DIRECTIVE 2005/56/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

   of 26 October 2005
   on cross-border mergers of limited liability companies
   (Text with EEA relevance)
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 44 thereof,
   Having regard to the proposal from the Commission,
   Having regard to the opinion of the European Economic and Social Committee (1),
   Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),
   Whereas:

               (1)

               There is a need for cooperation and consolidation between limited liability companies from different Member States. However, as regards cross-border mergers of limited liability companies, they encounter many legislative and administrative difficulties in the Community. It is therefore necessary, with a view to the completion and functioning of the single market, to lay down Community provisions to facilitate the carrying-out of cross-border mergers between various types of limited liability company governed by the laws of different Member States.

               (2)

               This Directive facilitates the cross-border merger of limited liability companies as defined herein. The laws of the Member States are to allow the cross-border merger of a national limited liability company with a limited liability company from another Member State if the national law of the relevant Member States permits mergers between such types of company.

               (3)

               In order to facilitate cross-border merger operations, it should be laid down that, unless this Directive provides otherwise, each company taking part in a cross-border merger, and each third party concerned, remains subject to the provisions and formalities of the national law which would be applicable in the case of a national merger. None of the provisions and formalities of national law, to which reference is made in this Directive, should introduce restrictions on freedom of establishment or on the free movement of capital save where these can be justified in accordance with the case-law of the Court of Justice and in particular by requirements of the general interest and are both necessary for, and proportionate to, the attainment of such overriding requirements.

               (4)

               The common draft terms of the cross-border merger are to be drawn up in the same terms for each of the companies concerned in the various Member States. The minimum content of such common draft terms should therefore be specified, while leaving the companies free to agree on other items.

               (5)

               In order to protect the interests of members and others, both the common draft terms of cross-border mergers and the completion of the cross-border merger are to be publicised for each merging company via an entry in the appropriate public register.

               (6)

               The laws of all the Member States should provide for the drawing-up at national level of a report on the common draft terms of the cross-border merger by one or more experts on behalf of each of the companies that are merging. In order to limit experts’ costs connected with cross-border mergers, provision should be made for the possibility of drawing up a single report intended for all members of companies taking part in a cross-border merger operation. The common draft terms of the cross-border merger are to be approved by the general meeting of each of those companies.

               (7)

               In order to facilitate cross-border merger operations, it should be provided that monitoring of the completion and legality of the decision-making process in each merging company should be carried out by the national authority having jurisdiction over each of those companies, whereas monitoring of the completion and legality of the cross-border merger should be carried out by the national authority having jurisdiction over the company resulting from the cross-border merger. The national authority in question may be a court, a notary or any other competent authority appointed by the Member State concerned. The national law determining the date on which the cross-border merger takes effect, this being the law to which the company resulting from the cross-border merger is subject, should also be specified.

               (8)

               In order to protect the interests of members and others, the legal effects of the cross-border merger, distinguishing as to whether the company resulting from the cross-border merger is an acquiring company or a new company, should be specified. In the interests of legal certainty, it should no longer be possible, after the date on which a cross-border merger takes effect, to declare the merger null and void.

               (9)

               This Directive is without prejudice to the application of the legislation on the control of concentrations between undertakings, both at Community level, by Regulation (EC) No 139/2004 (3), and at the level of Member States.

               (10)

               This Directive does not affect Community legislation regulating credit intermediaries and other financial undertakings and national rules made or introduced pursuant to such Community legislation.

               (11)

               This Directive is without prejudice to a Member State’s legislation demanding information on the place of central administration or the principal place of business proposed for the company resulting from the cross-border merger.

               (12)

               Employees’ rights other than rights of participation should remain subject to the national provisions referred to in Council Directive 98/59/EC of 20 July 1998 on collective redundancies (4), Council Directive 2001/23/EC of 12 March 2001 on the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (5), Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (6) and Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (7).

               (13)

               If employees have participation rights in one of the merging companies under the circumstances set out in this Directive and, if the national law of the Member State in which the company resulting from the cross-border merger has its registered office does not provide for the same level of participation as operated in the relevant merging companies, including in committees of the supervisory board that have decision-making powers, or does not provide for the same entitlement to exercise rights for employees of establishments resulting from the cross-border merger, the participation of employees in the company resulting from the cross-border merger and their involvement in the definition of such rights are to be regulated. To that end, the principles and procedures provided for in Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) (8) and in Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees (9), are to be taken as a basis, subject, however, to modifications that are deemed necessary because the resulting company will be subject to the national laws of the Member State where it has its registered office. A prompt start to negotiations under Article 16 of this Directive, with a view to not unnecessarily delaying mergers, may be ensured by Member States in accordance with Article 3(2)(b) of Directive 2001/86/EC.

               (14)

               For the purpose of determining the level of employee participation operated in the relevant merging companies, account should also be taken of the proportion of employee representatives amongst the members of the management group, which covers the profit units of the companies, subject to employee participation.

               (15)

               Since the objective of the proposed action, namely laying down rules with common features applicable at transnational level, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the proposed action, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.

               (16)

               In accordance with paragraph 34 of the Interinstitutional Agreement on better law-making (10), Member States should be encouraged to draw up, for themselves and in the interest of the Community, their own tables which will, as far as possible, illustrate the correlation between this Directive and the transposition measures and to make them public,

         HAVE ADOPTED THIS DIRECTIVE:
   Article 1
   Scope
   This Directive shall apply to mergers of limited liability companies formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community, provided at least two of them are governed by the laws of different Member States (hereinafter referred to as cross-border mergers).
   Article 2
   Definitions
   For the purposes of this Directive:

               1)

               ‘limited liability company’, hereinafter referred to as ‘company’, means:

                           (a)

                           a company as referred to in Article 1 of Directive 68/151/EEC (11), or

                           (b)

                           a company with share capital and having legal personality, possessing separate assets which alone serve to cover its debts and subject under the national law governing it to conditions concerning guarantees such as are provided for by Directive 68/151/EEC for the protection of the interests of members and others;

               2.

               ‘merger’ means an operation whereby:

                           (a)

                           one or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to another existing company, the acquiring company, in exchange for the issue to their members of securities or shares representing the capital of that other company and, if applicable, a cash payment not exceeding 10 % of the nominal value, or, in the absence of a nominal value, of the accounting par value of those securities or shares; or

                           (b)

                           two or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to a company that they form, the new company, in exchange for the issue to their members of securities or shares representing the capital of that new company and, if applicable, a cash payment not exceeding 10 % of the nominal value, or in the absence of a nominal value, of the accounting par value of those securities or shares; or

                           (c)

                           a company, on being dissolved without going into liquidation, transfers all its assets and liabilities to the company holding all the securities or shares representing its capital.

         Article 3
   Further provisions concerning the scope
   1.   Notwithstanding Article 2(2), this Directive shall also apply to cross-border mergers where the law of at least one of the Member States concerned allows the cash payment referred to in points (a) and (b) of Article 2(2) to exceed 10 % of the nominal value, or, in the absence of a nominal value, of the accounting par value of the securities or shares representing the capital of the company resulting from the cross-border merger.
   2.   Member States may decide not to apply this Directive to cross-border mergers involving a cooperative society even in the cases where the latter would fall within the definition of ‘limited liability company’ as laid down in Article 2(1).
   3.   This Directive shall not apply to cross-border mergers involving a company the object of which is the collective investment of capital provided by the public, which operates on the principle of risk-spreading and the units of which are, at the holders’ request, repurchased or redeemed, directly or indirectly, out of the assets of that company. Action taken by such a company to ensure that the stock exchange value of its units does not vary significantly from its net asset value shall be regarded as equivalent to such repurchase or redemption.
   Article 4
   Conditions relating to cross-border mergers
   1.   Save as otherwise provided in this Directive,

               (a)

               cross-border mergers shall only be possible between types of companies which may merge under the national law of the relevant Member States, and

               (b)

               a company taking part in a cross-border merger shall comply with the provisions and formalities of the national law to which it is subject. The laws of a Member State enabling its national authorities to oppose a given internal merger on grounds of public interest shall also be applicable to a cross-border merger where at least one of the merging companies is subject to the law of that Member State. This provision shall not apply to the extent that Article 21 of Regulation (EC) No 139/2004 is applicable.

         2.   The provisions and formalities referred to in paragraph 1(b) shall, in particular, include those concerning the decision-making process relating to the merger and, taking into account the cross-border nature of the merger, the protection of creditors of the merging companies, debenture holders and the holders of securities or shares, as well as of employees as regards rights other than those governed by Article 16. A Member State may, in the case of companies participating in a cross-border merger and governed by its law, adopt provisions designed to ensure appropriate protection for minority members who have opposed the cross-border merger.
   Article 5
   Common draft terms of cross-border mergers
   The management or administrative organ of each of the merging companies shall draw up the common draft terms of cross-border merger. The common draft terms of cross-border merger shall include at least the following particulars:

               (a)

               the form, name and registered office of the merging companies and those proposed for the company resulting from the cross-border merger;

               (b)

               the ratio applicable to the exchange of securities or shares representing the company capital and the amount of any cash payment;

               (c)

               the terms for the allotment of securities or shares representing the capital of the company resulting from the cross-border merger;

               (d)

               the likely repercussions of the cross-border merger on employment;

               (e)

               the date from which the holding of such securities or shares representing the company capital will entitle the holders to share in profits and any special conditions affecting that entitlement;

               (f)

               the date from which the transactions of the merging companies will be treated for accounting purposes as being those of the company resulting from the cross-border merger;

               (g)

               the rights conferred by the company resulting from the cross-border merger on members enjoying special rights or on holders of securities other than shares representing the company capital, or the measures proposed concerning them;

               (h)

               any special advantages granted to the experts who examine the draft terms of the cross-border merger or to members of the administrative, management, supervisory or controlling organs of the merging companies;

               (i)

               the statutes of the company resulting from the cross-border merger;

               (j)

               where appropriate, information on the procedures by which arrangements for the involvement of employees in the definition of their rights to participation in the company resulting from the cross-border merger are determined pursuant to Article 16;

               (k)

               information on the evaluation of the assets and liabilities which are transferred to the company resulting from the cross-border merger;

               (l)

               dates of the merging companies’ accounts used to establish the conditions of the cross-border merger.

         Article 6
   Publication
   1.   The common draft terms of the cross-border merger shall be published in the manner prescribed by the laws of each Member State in accordance with Article 3 of Directive 68/151/EEC for each of the merging companies at least one month before the date of the general meeting which is to decide thereon.
   2.   For each of the merging companies and subject to the additional requirements imposed by the Member State to which the company concerned is subject, the following particulars shall be published in the national gazette of that Member State:

               (a)

               the type, name and registered office of every merging company;

               (b)

               the register in which the documents referred to in Article 3(2) of Directive 68/151/EEC are filed in respect of each merging company, and the number of the entry in that register;

               (c)

               an indication, for each of the merging companies, of the arrangements made for the exercise of the rights of creditors and of any minority members of the merging companies and the address at which complete information on those arrangements may be obtained free of charge.

         Article 7
   Report of the management or administrative organ
   The management or administrative organ of each of the merging companies shall draw up a report intended for the members explaining and justifying the legal and economic aspects of the cross-border merger and explaining the implications of the cross-border merger for members, creditors and employees.
   The report shall be made available to the members and to the representatives of the employees or, where there are no such representatives, to the employees themselves, not less than one month before the date of the general meeting referred to in Article 9.
   Where the management or administrative organ of any of the merging companies receives, in good time, an opinion from the representatives of their employees, as provided for under national law, that opinion shall be appended to the report.
   Article 8
   Independent expert report
   1.   An independent expert report intended for members and made available not less than one month before the date of the general meeting referred to in Article 9 shall be drawn up for each merging company. Depending on the law of each Member State, such experts may be natural persons or legal persons.
   2.   As an alternative to experts operating on behalf of each of the merging companies, one or more independent experts, appointed for that purpose at the joint request of the companies by a judicial or administrative authority in the Member State of one of the merging companies or of the company resulting from the cross-border merger or approved by such an authority, may examine the common draft terms of cross-border merger and draw up a single written report to all the members.
   3.   The expert report shall include at least the particulars provided for by Article 10(2) of Council Directive 78/855/EEC of 9 October 1978 concerning mergers of public limited liability companies (12). The experts shall be entitled to secure from each of the merging companies all information they consider necessary for the discharge of their duties.
   4.   Neither an examination of the common draft terms of cross-border merger by independent experts nor an expert report shall be required if all the members of each of the companies involved in the cross-border merger have so agreed.
   Article 9
   Approval by the general meeting
   1.   After taking note of the reports referred to in Articles 7 and 8, the general meeting of each of the merging companies shall decide on the approval of the common draft terms of cross-border merger.
   2.   The general meeting of each of the merging companies may reserve the right to make implementation of the cross-border merger conditional on express ratification by it of the arrangements decided on with respect to the participation of employees in the company resulting from the cross-border merger.
   3.   The laws of a Member State need not require approval of the merger by the general meeting of the acquiring company if the conditions laid down in Article 8 of Directive 78/855/EEC are fulfilled.
   Article 10
   Pre-merger certificate
   1.   Each Member State shall designate the court, notary or other authority competent to scrutinise the legality of the cross-border merger as regards that part of the procedure which concerns each merging company subject to its national law.
   2.   In each Member State concerned the authority referred to in paragraph 1 shall issue, without delay to each merging company subject to that State’s national law, a certificate conclusively attesting to the proper completion of the pre-merger acts and formalities.
   3.   If the law of a Member State to which a merging company is subject provides for a procedure to scrutinise and amend the ratio applicable to the exchange of securities or shares, or a procedure to compensate minority members, without preventing the registration of the cross-border merger, such procedure shall only apply if the other merging companies situated in Member States which do not provide for such procedure explicitly accept, when approving the draft terms of the cross-border merger in accordance with Article 9(1), the possibility for the members of that merging company to have recourse to such procedure, to be initiated before the court having jurisdiction over that merging company. In such cases, the authority referred to in paragraph 1 may issue the certificate referred to in paragraph 2 even if such procedure has commenced. The certificate must, however, indicate that the procedure is pending. The decision in the procedure shall be binding on the company resulting from the cross-border merger and all its members.
   Article 11
   Scrutiny of the legality of the cross-border merger
   1.   Each Member State shall designate the court, notary or other authority competent to scrutinise the legality of the cross-border merger as regards that part of the procedure which concerns the completion of the cross-border merger and, where appropriate, the formation of a new company resulting from the cross-border merger where the company created by the cross-border merger is subject to its national law. The said authority shall in particular ensure that the merging companies have approved the common draft terms of cross-border merger in the same terms and, where appropriate, that arrangements for employee participation have been determined in accordance with Article 16.
   2.   To that end each merging company shall submit to the authority referred to in paragraph 1 the certificate referred to in Article 10(2) within six months of its issue together with the common draft terms of cross-border merger approved by the general meeting referred to in Article 9.
   Article 12
   Entry into effect of the cross-border merger
   The law of the Member State to whose jurisdiction the company resulting from the cross-border merger is subject shall determine the date on which the cross-border merger takes effect. That date must be after the scrutiny referred to in Article 11 has been carried out.
   Article 13
   Registration
   The law of each of the Member States to whose jurisdiction the merging companies were subject shall determine, with respect to the territory of that State, the arrangements, in accordance with Article 3 of Directive 68/151/EEC, for publicising completion of the cross-border merger in the public register in which each of the companies is required to file documents.
   The registry for the registration of the company resulting from the cross-border merger shall notify, without delay, the registry in which each of the companies was required to file documents that the cross-border merger has taken effect. Deletion of the old registration, if applicable, shall be effected on receipt of that notification, but not before.
   Article 14
   Consequences of the cross-border merger
   1.   A cross-border merger carried out as laid down in points (a) and (c) of Article 2(2) shall, from the date referred to in Article 12, have the following consequences:

               (a)

               all the assets and liabilities of the company being acquired shall be transferred to the acquiring company;

               (b)

               the members of the company being acquired shall become members of the acquiring company;

               (c)

               the company being acquired shall cease to exist.

         2.   A cross-border merger carried out as laid down in point (b) of Article 2(2) shall, from the date referred to in Article 12, have the following consequences:

               (a)

               all the assets and liabilities of the merging companies shall be transferred to the new company;

               (b)

               the members of the merging companies shall become members of the new company;

               (c)

               the merging companies shall cease to exist.

         3.   Where, in the case of a cross-border merger of companies covered by this Directive, the laws of the Member States require the completion of special formalities before the transfer of certain assets, rights and obligations by the merging companies becomes effective against third parties, those formalities shall be carried out by the company resulting from the cross-border merger.
   4.   The rights and obligations of the merging companies arising from contracts of employment or from employment relationships and existing at the date on which the cross-border merger takes effect shall, by reason of that cross-border merger taking effect, be transferred to the company resulting from the cross-border merger on the date on which the cross-border merger takes effect.
   5.   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 or her own name but on its behalf;

               (b)

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

         Article 15
   Simplified formalities
   1.   Where a cross-border merger by acquisition is carried out by a company which holds all the shares and other securities conferring the right to vote at general meetings of the company or companies being acquired:

               —

               Articles 5, points (b), (c) and (e), 8 and 14(1), point (b) shall not apply,

               —

               Article 9(1) shall not apply to the company or companies being acquired.

         2.   Where a cross-border 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, reports by an independent expert or experts and the documents necessary for scrutiny shall be required only to the extent that the national law governing either the acquiring company or the company being acquired so requires.
   Article 16
   Employee participation
   1.   Without prejudice to paragraph 2, the company resulting from the cross-border merger shall be subject to the rules in force concerning employee participation, if any, in the Member State where it has its registered office.
   2.   However, the rules in force concerning employee participation, if any, in the Member State where the company resulting from the cross-border merger has its registered office shall not apply, where at least one of the merging companies has, in the six months before the publication of the draft terms of the cross-border merger as referred to in Article 6, an average number of employees that exceeds 500 and is operating under an employee participation system within the meaning of Article 2(k) of Directive 2001/86/EC, or where the national law applicable to the company resulting from the cross-border merger does not

               (a)

               provide for at least the same level of employee participation as operated in the relevant merging companies, measured by reference to the proportion of employee representatives amongst the members of the administrative or supervisory organ or their committees or of the management group which covers the profit units of the company, subject to employee representation, or

               (b)

               provide for employees of establishments of the company resulting from the cross-border merger that are situated in other Member States the same entitlement to exercise participation rights as is enjoyed by those employees employed in the Member State where the company resulting from the cross-border merger has its registered office.

         3.   In the cases referred to in paragraph 2, the participation of employees in the company resulting from the cross-border merger and their involvement in the definition of such rights shall be regulated by the Member States, mutatis mutandis and subject to paragraphs 4 to 7 below, in accordance with the principles and procedures laid down in Article 12(2), (3) and (4) of Regulation (EC) No 2157/2001 and the following provisions of Directive 2001/86/EC:

               (a)

               Article 3(1), (2) and (3), (4) first subparagraph, first indent, and second subparagraph, (5) and (7);

               (b)

               Article 4(1), (2), points (a), (g) and (h), and (3);

               (c)

               Article 5;

               (d)

               Article 6;

               (e)

               Article 7(1), (2) first subparagraph, point (b), and second subparagraph, and (3). However, for the purposes of this Directive, the percentages required by Article 7(2), first subparagraph, point (b) of Directive 2001/86/EC for the application of the standard rules contained in part 3 of the Annex to that Directive shall be raised from 25 to 33 1/3 %;

               (f)

               Articles 8, 10 and 12;

               (g)

               Article 13(4);

               (h)

               part 3 of the Annex, point (b).

         4.   When regulating the principles and procedures referred to in paragraph 3, Member States:

               (a)

               shall confer on the relevant organs of the merging companies the right to choose without any prior negotiation to be directly subject to the standard rules for participation referred to in paragraph 3(h), as laid down by the legislation of the Member State in which the company resulting from the cross-border merger is to have its registered office, and to abide by those rules from the date of registration;

               (b)

               shall confer on the special negotiating body the right to decide, by a majority of two thirds of its members representing at least two thirds of the employees, including the votes of members representing employees in at least two different Member States, not to open negotiations or to terminate negotiations already opened and to rely on the rules on participation in force in the Member State where the registered office of the company resulting from the cross-border merger will be situated;

               (c)

               may, in the case where, following prior negotiations, standard rules for participation apply and notwithstanding these rules, determine to limit the proportion of employee representatives in the administrative organ of the company resulting from the cross-border merger. However, if in one of the merging companies employee representatives constituted at least one third of the administrative or supervisory board, the limitation may never result in a lower proportion of employee representatives in the administrative organ than one third.

         5.   The extension of participation rights to employees of the company resulting from the cross-border merger employed in other Member States, referred to in paragraph 2(b), shall not entail any obligation for Member States which choose to do so to take those employees into account when calculating the size of workforce thresholds giving rise to participation rights under national law.
   6.   When at least one of the merging companies is operating under an employee participation system and the company resulting from the cross-border merger is to be governed by such a system in accordance with the rules referred to in paragraph 2, that company shall be obliged to take a legal form allowing for the exercise of participation rights.
   7.   When the company resulting from the cross-border merger is operating under an employee participation system, that company shall be obliged to take measures to ensure that employees’ participation rights are protected in the event of subsequent domestic mergers for a period of three years after the cross-border merger has taken effect, by applying mutatis mutandis the rules laid down in this Article.
   Article 17
   Validity
   A cross-border merger which has taken effect as provided for in Article 12 may not be declared null and void.
   Article 18
   Review
   Five years after the date laid down in the first paragraph of Article 19, the Commission shall review this Directive in the light of the experience acquired in applying it and, if necessary, propose its amendment.
   Article 19
   Transposition
   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 15 December 2007.
   When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
   Article 20
   Entry into force
   This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
   Article 21
   Addressees
   This Directive is addressed to the Member States.

      Done at Strasbourg, 26 October 2005.

            For the European Parliament

            The President

         J. BORRELL FONTELLES

            For the Council

            The President

         D. ALEXANDER

      (1)  OJ C 117, 30.4.2004, p. 43.

      (2)  Opinion of the European Parliament of 10 May 2005 (not yet published in the Official Journal) and Council Decision of 19 September 2005.

      (3)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).

      (4)  OJ L 225, 12.8.1998, p. 16.

      (5)  OJ L 82, 22.3.2001, p. 16.

      (6)  OJ L 80, 23.3.2002, p. 29.

      (7)  OJ L 254, 30.9.1994, p. 64. Directive as amended by Directive 97/74/EC (OJ L 10, 16.1.1998, p. 22).

      (8)  OJ L 294, 10.11.2001, p. 1. Regulation as amended by Regulation (EC) No 885/2004 (OJ L 168, 1.5.2004, p. 1).

      (9)  OJ L 294, 10.11.2001, p. 22.

      (10)  OJ C 321, 31.12.2003, p. 1.

      (11)  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 (OJ L 65, 14.3.1968, p. 8). Directive as last amended by the 2003 Act of Accession.

      (12)  OJ L 295, 20.10.1978, p. 36. Directive as last amended by the 2003 Act of Accession.


Avis juridique important

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31968L0151

First Council Directive 68/151/EEC of 9 March 1968 on co-ordination 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

Official Journal L 065 , 14/03/1968 P. 0008 - 0012 Finnish special edition: Chapter 17 Volume 1 P. 0003  Danish special edition: Series I Chapter 1968(I) P. 0041  Swedish special edition: Chapter 17 Volume 1 P. 0003  English special edition: Series I Chapter 1968(I) P. 0041  Greek special edition: Chapter 06 Volume 1 P. 0080  Spanish special edition: Chapter 17 Volume 1 P. 0003  Portuguese special edition Chapter 17 Volume 1 P. 0003

FIRST COUNCIL DIRECTIVE of 9 March 1968 on co-ordination 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 (68/151/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 54 (3) (g) thereof;  Having regard to the General Programme for the abolition of restrictions on freedom of establishment1, and in particular Title VI thereof;  Having regard to the proposal from the Commission;  Having regard to the Opinion of the European Parliament2;  Having regard to the Opinion of the Economic and Social Committee3;  Whereas the co-ordination provided for in Article 54 (3) (g) and in the General Programme for the abolition of restrictions on freedom of establishment is a matter of urgency, especially in regard to companies limited by shares or otherwise having limited liability, since the activities of such companies often extend beyond the frontiers of national territories;  Whereas the co-ordination of national provisions concerning disclosure, the validity of obligations entered into by, and the nullity of, such companies is of special importance, particularly for the purpose of protecting the interests of third parties;  Whereas in these matters Community provisions must be adopted in respect of such companies simultaneously, since the only safeguards they offer to third parties are their assets;  Whereas the basic documents of the company should be disclosed in order that third parties may be able to ascertain their contents and other information concerning the company, especially particulars of the persons who are authorised to bind the company;  Whereas the protection of third parties must be ensured by provisions which restrict to the greatest possible extent the grounds on which obligations entered into in the name of the company are not valid;  Whereas it is necessary, in order to ensure certainty in the law as regards relations between the company and third parties, and also between members, to limit the cases in which nullity can arise and the retroactive effect of a declaration of nullity, and to fix a short time limit within which third parties may enter objection to any such declaration;  HAS ADOPTED THIS DIRECTIVE:    Article 1 The co-ordination measures prescribed by this Directive shall apply to the laws, regulations and administrative provisions of the Member States relating to the following types of company:  - In Germany:  die Aktiengesellschaft, die Kommanditgesellschaft auf Aktien, die Gesellschaft mit beschränkter Haftung;  - In Belgium:  de naamloze vennootschap, la société anonyme, >PIC FILE= "T0050832">   1 OJ No 2, 15.1.1962, p. 36/62.  2 OJ No 96, 28.5.1966, p. 1519/66.  3 OJ No 194, 27.11.1964, p. 3248/64.   - In France:  la société anonyme, la société en commandite par actions, la société à responsabilité limitée;  - In Italy:  società per azioni, società in accomandita per azioni, società a responsabilità limitata;  - In Luxembourg:  la société anonyme, la société en commandite par actions, la société à responsabilité limitée;  - In the Netherlands:  de naamloze vennootschap, de commanditaire vennootschap op aandelen.  SECTION I Disclosure   Article 2 1. Member States shall take the measures required to ensure compulsory disclosure by companies of at least the following documents and particulars:    (a) The instrument of constitution, and the statutes if they are contained in a separate instrument;       (b) Any amendments to the instruments mentioned in (a), including any extension of the duration of the company;       (c) After every amendment of the instrument of constitution or of the statutes, the complete text of the instrument or statutes as amended to date;       (d) The appointment, termination of office and particulars of the persons who either as a body constituted pursuant to law or as members of any such body:      (i) are authorised to represent the company in dealings with third parties and in legal proceedings;           (ii) take part in the administration, supervision or control of the company.  It must appear from the disclosure whether the persons authorised to represent the company may do so alone or must act jointly;                  (e) At least once a year, the amount of the capital subscribed, where the instrument of constitution or the statutes mention an authorised capital, unless any increase in the capital subscribed necessitates an amendment of the statutes;       (f) The balance sheet and the profit and loss account for each financial year. The document containing the balance sheet shall give particulars of the persons who are required by law to certify it.  However, in respect of the Gesellschaft mit beschränkter Haftung, société de personnes à responsabilité limitée, personenvennootschap met beperkte aansprakelijkheid, société à responsabilité limitée and società a responsabilità limitata under German, Belgian, French, Italian or Luxembourg law, referred to in Article 1, and the besloten naamloze vennootschap under Netherlands law, the compulsory application of this provision shall he postponed until the date of implementation of a Directive concerning co-ordination of the contents of balance sheets and of profit and loss accounts and concerning exemption of such of those companies whose balance sheet total is less than specified in the Directive from the obligation to make disclosure, in full or in part, of the said documents. The Council will adopt such a Directive within two years following the adoption of the present Directive;       (g) Any transfer of the seat of the company;       (h) The winding up of the company;       (i) Any declaration of nullity of the company by the courts;       (j) The appointment of liquidators, particulars concerning them, and their respective powers, unless such powers are expressly and exclusively derived from law or from the statutes of the company;       (k) The termination of the liquidation and, in Member States where striking off the register entails legal consequences, the fact of any such striking off.         2. For purposes of paragraph 1 (f), companies which fulfil the following conditions shall be considered as besloten naamloze vennootschappen:    (a) They cannot issue bearer shares;       (b) No bearer certificate of registered shares within the meaning of Article 42 (c) of the Netherlands Commercial Code can be issued by any person whatsoever;       (c) Their shares cannot be quoted on a stock exchange;       (d) Their statutes contain a clause requiring approval by the company before the transfer of shares to third parties, except in the case of transfer in the event of death and, if the statutes so provide, in the case of transfer to a spouse, forebears or issue; transfers shall not be in blank, but otherwise each transfer shall be in writing under hand, signed by the transferor and transferee or by notarial act;        (e) Their statutes specify that the company is a besloten naamloze vennootschap; the name of the company includes the words "Besloten Naamloze Vennootschap" or the initials "BNV".          Article 3 1. In each Member State a file shall be opened in a central register, commercial register or companies register, for each of the companies registered therein.  2. All documents and particulars which must be disclosed in pursuance of Article 2 shall be kept in the file or entered in the register; the subject matter of the entries in the register must in every case appear in the file.  3. A copy of the whole or any part of the documents or particulars referred to in Article 2 must be obtainable by application in writing at a price not exceeding the administrative cost thereof.  Copies supplied shall be certified as "true copies", unless the applicant dispenses with such certification.  4. Disclosure of the documents and particulars referred to in paragraph 2 shall be effected by publication in the national gazette appointed for that purpose by the Member State, either of the full or partial text, or by means of a reference to the document which has been deposited in the file or entered in the register.  5. The documents and particulars may be relied on by the company as against third parties only after they have been published in accordance with paragraph 4, unless the company proves that the third parties had knowledge thereof. However, with regard to transactions taking place before the sixteenth day following the publication, the documents and particulars shall not be relied on as against third parties who prove that it was impossible for them to have had knowledge thereof.  6. Member States shall take the necessary measures to avoid any discrepancy between what is disclosed by publication in the press and what appears in the register or file.  However, in cases of discrepancy, the text published in the press may not be relied on as against third parties; the latter may nevertheless rely thereon, unless the company proves that they had knowledge of the texts deposited in the file or entered in the register.  7. Third parties may, moreover, always rely on any documents and particulars in respect of which the disclosure formalities have not yet been completed, save where non-disclosure causes them not to have effect.   Article 4 Member States shall prescribe that letters and order forms shall state the following particulars:    - the register in which the file mentioned in Article 3 is kept, together with the number of the company in that register;       - the legal form of the company, the location of its scat and, where appropriate, the fact that the company is being wound up.         Where in these documents mention is made of the capital of the company, the reference shall be to the capital subscribed and paid up.   Article 5 Each Member State shall determine by which persons the disclosure formalities are to be carried out.   Article 6 Member States shall provide for appropriate penalties in case of:    - failure to disclose the balance sheet and profit and loss account as required by Article 2 (1) (f);       - omission from commercial documents of the compulsory particulars provided for in Article 4.         SECTION II Validity of obligations entered into by a company   Article 7 If, before a company being formed has acquired legal personality, action has been carried out in its name and the company does not assume the obligations arising from such action, the persons who acted shall, without limit, be jointly and severally liable therefor, unless otherwise agreed.   Article 8 Completion of the formalities of disclosure of the particulars concerning the persons who, as an organ of the company, are authorised to represent it shall constitute a bar to any irregularity in their appointment being relied upon as against third parties unless the company proves that such third parties had knowledge thereof.   Article 9 1. Acts done by the organs of the company shall be binding upon it even if those acts are not within  the objects of the company, unless such acts exceed the powers that the law confers or allows to be conferred on those organs.  However, Member States may provide that the company shall not be bound where such acts are outside the objects of the company, if it proves that the third party knew that the act was outside those objects or could not in view of the circumstances have been unaware of it; disclosure of the statutes shall not of itself be sufficient proof thereof.  2. The limits on the powers of the organs of the company, arising under the statutes or from a decision of the competent organs, may never be relied on as against third parties, even if they have been disclosed.  3. If the national law provides that authority to represent a company may, in derogation from the legal rules governing the subject, be conferred by the statutes on a single person or on several persons acting jointly, that law may provide that such a provision in the statutes may be relied on as against third parties on condition that it relates to the general power of representation; the question whether such a provision in the statutes can be relied on as against third parties shall be governed by Article 3.  SECTION III Nullity of the company   Article 10 In all Member States whose laws do not provide for preventive control, administrative or judicial, at the time of formation of a company, the instrument of constitution, the company statutes and any amendments to those documents shall be drawn up and certified in due legal form.   Article 11 The laws of the Member States may not provide for the nullity of companies otherwise than in accordance with the following provisions:    1. Nullity must be ordered by decision of a court of law;       2. Nullity may be ordered only on the following grounds:      (a) that no instrument of constitution was executed or that the rules of preventive control or the requisite legal formalities were not complied with;           (b) that the objects of the company are unlawful or contrary to public policy;           (c) that the instrument of constitution or the statutes do not state the name of the company, the amount of the individual subscriptions of capital, the total amount of the capital subscribed or the objects of the company;           (d) failure to comply with the provisions of the national law concerning the minimum amount of capital to be paid up;           (e) the incapacity of all the founder members;           (f) that, contrary to the national law governing the company, the number of founder members is less than two.                    Apart from the foregoing grounds of nullity, a company shall not be subject to any cause of non-existence, nullity absolute, nullity relative or declaration of nullity.   Article 12 1. The question whether a decision of nullity pronounced by a court of law may be relied on as against third parties shall be governed by Article 3. Where the national law entitles a third party to challenge the decision, he may do so only within six months of public notice of the decision of the court being given.  2. Nullity shall entail the winding up of the company, as may dissolution.  3. Nullity shall not of itself affect the validity of any commitments entered into by or with the company, without prejudice to the consequences of the company's being wound up.  4. The laws of each Member State may make provision for the consequences of nullity as between members of the company.  5. Holders of shares in the capital shall remain obliged to pay up the capital agreed to be subscribed by them but which has not been paid up, to the extent that commitments entered into with creditors so require.  SECTION IV General provisions   Article 13 Member States shall put into force, within eighteen months following notification of this Directive, all  amendments to their laws, regulations or administrative provisions required in order to comply with provisions of this Directive and shall forthwith inform the Commission thereof.  The obligation of disclosure provided for in Article 2 (1) (f) shall not enter into force until thirty months after notification of this Directive in respect of naamloze vennootschappen under Netherlands law other than those referred to in the present Article 42 (c) of the Netherlands Commercial Code.  Member States may provide that initial disclosure of the full text of the statutes as amended since the formation of the company shall not be required until the statutes are next amended or until 31 December 1970, whichever shall be the earlier.  Member States shall ensure that they communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.   Article 14 This Directive is addressed to the Member States.     Done at Brussels, 9 March 1968.  For the Council  The President  M. COUVE de MURVILLE


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31999L0022

Council Directive 1999/22/EC of 29 March 1999 relating to the keeping of wild animals in zoos

Official Journal L 094 , 09/04/1999 P. 0024 - 0026

COUNCIL DIRECTIVE 1999/22/ECof 29 March 1999relating to the keeping of wild animals in zoosTHE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 130s(1) thereof,Having regard to the proposal from the Commission,Having regard to the opinion of the Economic and Social Committee(1),Acting in accordance with the procedure laid down in Article 189c of the Treaty(2),Whereas Council Regulation (EEC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein(3) requires evidence of the availability of adequate facilities for the accomodation and care of live specimens of a great many species before their importation into the Community is authorised; whereas that Regulation prohibits the display to the public for commercial purposes of specimens of species listed in Annex A thereof unless a specific exemption was granted for education, research or breeding purposes;Whereas Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds(4), and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora(5), prohibit the capture and keeping of and trade in a great number of species, whilst providing for exemptions for specific reasons, such as research and education, repopulation, reintroduction and breeding;Whereas the proper implementation of existing and future Community legislation on the conservation of wild fauna and the need to ensure that zoos adequately fulfil their important role in the conservation of species, public education, and/or scientific research make it necessary to provide a common basis for Member States' legislation with regard to the licensing and inspection of zoos, the keeping of animals in zoos, the training of staff and the education of the visiting public;Whereas action at the Community level is required in order to have zoos throughout the Community contributing to the conservation of biodiversity in accordance with the Community's obligation to adopt measures for ex situ conservation under Article 9 of the Convention on Biological Diversity;Whereas a number of organisations such as the European Association of Zoos and Aquaria have produced guidelines for the care and accomodation of animals in zoos which could, where appropriate, assist in the development and adoption of national standards,HAS ADOPTED THIS DIRECTIVE:Article 1AimThe objectives of this Directive are to protect wild fauna and to conserve biodiversity by providing for the adoption of measures by Member States for the licensing and inspection of zoos in the Community, thereby strengthening the role of zoos in the conservation of biodiversity.Article 2DefinitionFor the purpose of this Directive, "zoos" means all permanent establishments where animals of wild species are kept for exhibition to the public for 7 or more days a year, with the exception of circuses, pet shops and establishments which Member States exempt from the requirements of this Directive on the grounds that they do not exhibit a significant number of animals or species to the public and that the exemption will not jeopardise the objectives of this Directive.Article 3Requirements applicable to zoosMember States shall take measures under Articles 4, 5, 6 and 7 to ensure all zoos implement the following conservation measures:- participating in research from which conservation benefits accrue to the species, and/or training in relevant conservation skills, and/or the exchange of information relating to species conservation and/or, where appropriate, captive breeding, repopulation or reintroduction of species into the wild,- promoting public education and awareness in relation to the conservation of biodiversity, particularly by providing information about the species exhibited and their natural habitats,- accommodating their animals under conditions which aim to satisfy the biological and conservation requirements of the individual species, inter alia, by providing species specific enrichment of the enclosures; and maintaining a high standard of animal husbandry with a developed programme of preventive and curative veterinary care and nutrition,- preventing the escape of animals in order to avoid possible ecological threats to indigenous species and preventing intrusion of outside pests and vermin,- keeping of up-to-date records of the zoo's collection appropriate to the species recorded.Article 4Licensing and inspection1. Member States shall adopt measures for licensing and inspection of existing and new zoos in order to ensure that the requirements of Article 3 are met.2. Every zoo shall have a licence within four years after the entry into force of this Directive or, in the case of new zoos, before they are open to the public.3. Each licence shall contain conditions to enforce the requirements of Article 3. Compliance with the conditions shall be monitored inter alia by means of regular inspection and appropriate steps shall be taken to ensure such compliance.4. Before granting, refusing, extending the period of, or significantly amending a licence, an inspection by Member States' competent authorities shall be carried out in order to determine whether or not the licensing conditions or proposed licensing conditions are met.5. If the zoo is not licensed in accordance with this Directive or the licensing conditions are not met, the zoo or part thereof:(a) shall be closed to the public by the competent authority; and/or(b) shall comply with appropriate requirements imposed by the competent authority to ensure that the licensing conditions are met.Should these requirements not be complied with within an appropriate period to be determined by the competent authorities but not exceeding two years, the competent authority shall withdraw or modify the licence and close the zoo or part thereof.Article 5Licensing requirements set out in Article 4 shall not apply where a Member State can demonstrate to the satisfaction of the Commission that the objective of this Directive as set out in Article 1 and the requirements applicable to zoos set out in Article 3 are being met and continously maintained by means of a system or regulation and registration. Such a system should, inter alia, contain provisions regarding inspection and closure of zoos equivalent to those in Article 4(4) and (5).Article 6Closure of zoosIn the event of a zoo or part thereof being closed, the competent authority shall ensure that the animals concerned are treated or disposed of under conditions which the Member State deems appropriate and consistent with the purposes and provisions of this Directive.Article 7Competent authoritiesMember States shall designate competent authorities for the purposes of this Directive.Article 8PenaltiesMember States shall determine the penalties applicable to breaches of the national provisions adopted pursuant to this Directive. The penalties shall be effective, proportionate and dissuasive.Article 9Implementation1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive not later than 9 April 2002. They shall forthwith inform the Commission thereof.When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.2. Member States shall communicate to the Commission the main provisions of national law which they adopt in the field covered by this Directive.Article 10Entry in forceThis Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.Article 11This Directive is addressed to the Member States.Done at Brussels, 29 March 1999.For the CouncilThe PresidentF. MÜNTEFERING(1) OJ C 204, 15.7.1996, p. 63.(2) Opinion of the European Parliament of 29 January 1998. (OJ C 56, 23.2.1998, p. 34), Council Common Position of 20 July 1998 (OJ C 364, 25.11.1998, p. 9), and Decision of the European Parliament of 10 February 1999 (not yet published in the Official Journal).(3) OJ L 61, 3.3.1997, p. 1. Regulation as last amended by Commission Regulation (EC) No 2307/97 (OJ L 325, 27.11.1997, p. 1).(4) OJ L 103, 25.4.1979, p. 1. Directive as last amended by Directive 97/49/EC (OJ L 223,. 13.8.1997, p. 9).(5) OJ L 206, 22.7.1992, p. 7. Directive as last amended by Commission Directive 97/62/EC (OJ L 305, 8.11.1997, p. 42).