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First Council Directive – Disclosure and the validity of obligations entered into by, and the nullity of, companies with limited liability (68/151/EEC)

The objective of this Directive is to coordinate the regulations concerning disclosure, the power of representation of company organs and the nullity of companies with limited liability. The directive established the principle of compulsory disclosure.

This concerns information of a legal nature, notably the instrument of constitution, the statutes if contained in a separate instrument, the amount of the subscribed capital, the balance sheet and the profit and loss account for each financial year, any transfer of the seat of the company, any declaration of nullity of the company by the courts, and any instrument or decision concerning the duration, winding-up or liquidation of the company.Compulsory disclosure also extends to the appointment, termination of office and particulars of the persons who, either as a body constituted by law or as members of any such body, are authorised to represent the company in dealings with third parties and in legal proceedings. The same applies to persons who take part in the administration, supervision or control of the company. It must be clear from the disclosure whether the persons authorised to represent the company may do so alone or must act jointly.

The means of disclosure are threefold:

  1. the opening of a file on every company in an official register;
  2. publication in a national official gazette;
  3. an indication, on all business documents, of the legal form and registered place of business of the company and the register in which the file on the company is kept, together with the number of the company in that register.

In the event of non-disclosure, the particulars omitted may not be relied on against third parties. This rule is qualified in two cases. First, if the company proves that the third parties had knowledge of the omitted particulars, the particulars may be relied on against them. Conversely, if third parties prove that it was impossible for them to have had knowledge of the published particulars during the first 15 days following publication, the particulars may not be relied on against them.

As a general rule acts done by the organs or officers of a company (its directors, and so on) may be relied upon by third parties. There are exceptions. Such acts are not binding if they exceed the powers which the law allows to be conferred on the organs. An act outside the objects of the company may be relied on by a third party unless the relevant national law allows the company to prove that the third party in the case knew it was outside the objects of the company or could not have been unaware of that fact.

The Directive contains a set of rules on nullity. Nullity may not be automatic, a court judgment being required. An exhaustive list is given of the circumstances in which nullity may be ordered (for example, no instrument of constitution was executed or the requisite legal formalities were not complied with, the objects of the company are unlawful or contrary to public policy, or the rules concerning the minimum amount of capital to be paid up were not complied with).

Directive 2003/58/EC, which amended the first company law directive in the light of the so-called SLIM initiative of simplifications, facilitates and streamlines access by the public to company information and simplifies the disclosure formalities imposed on companies. It thus enables the benefits of modern technology to be exploited to the full since companies may now file the compulsory documents and particulars by paper means as well as by electronic means. Interested parties may also obtain a copy by either means. In addition, companies will continue to publish their documents and particulars in the language or in one of the languages of their Member State but will also be able to publish them voluntarily in other languages of the European Union in order to improve cross-border access to company information.

Legal basis

  • Art. 44 II lit.g EC (former Art. 54 III lit.g EEC)

A mendments

  • Directive 73/101/EEC
  • Directive 2003/58/EC

Links

Alle Overview of Directives