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REPORT (COM(2023)0177 – C90121/2023 – 2023/0089(COD))

On the proposal for a directive of the European Parliament and of the Council amending Directives 2009/102/EC and (EU) 2017/1132 as regards further expanding and upgrading the use of digital tools and processes in company law

A-9-2023-0394

Committee on Legal Affairs · Rapporteur: Emil Radev

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Written by a language model from the full text only; every figure comes from the text. The paragraph links open the paragraph a statement rests on — check the text itself before relying on it.

Parliament's amended version of the Commission proposal for a directive amending Directives 2009/102/EC and (EU) 2017/1132 on digital tools in company law. It requires preventive administrative, judicial or notarial control of company formation documents, and lets Member States add public electronic identity and legality checks. It extends the 'once-only' principle: registers retrieve founder-company documents electronically when a company is formed or a branch registered, and such electronic documents must not be denied legal effect. It sets disclosure rules for commercial partnerships and cooperatives, adds new register items such as NACE activity codes and employee numbers, and drops the yearly confirmation that register information is up to date. It creates an EU Company Certificate, issued by registers and accepted in all Member States as sufficient evidence of incorporation, and a digital EU power of attorney signed with qualified electronic signatures and authenticated at assurance level 'high'. It sets filing and disclosure deadlines, requires Member States to provide effective, proportionate and dissuasive penalties including pecuniary penalties, and requires the Commission to evaluate the directive within five years of the end of its transposition period.

Committee position. The Committee on Legal Affairs adopts Parliament's first-reading position amending the Commission proposal. It backs preventive control of company formation, complementary public electronic identity and legality checks, free EU Company Certificates, and a digital EU power of attorney signed with qualified electronic signatures, while opposing yearly confirmations of group information and fees for the certificate.

Key points

  1. Member States must provide preventive administrative, judicial or notarial control, or any combination, of the instrument of constitution, statutes and amendments at company formation.
  2. Member States may allow complementary public electronic controls of identity, legal capacity and legality, including remote audio-visual identity checks with electronic checks of identity photos.
  3. The legality check must verify that substantive legal requirements are met; the rule on formal and substantive control where national law does not require instruments of constitution is deleted.
  4. Member States may waive the legality check where applicants use the templates referred to in Article 13h.
  5. Registers must retrieve founder-company documents through the system of interconnection of registers when a company is formed or a branch registered, and companies must not be asked to provide them again.
  6. Documents or information sent electronically through the system of interconnection of registers must not be denied legal effect or treated as inadmissible solely because they are electronic.
  7. Commercial partnerships must disclose the same basic information as limited liability companies, adapted to their characteristics, including information about partners and those authorised to represent the partnership.
  8. Where cooperatives are included in company registers, a listed set of information about them must be disclosed, including name, legal form, registered office, registration number, statutes and representatives.
  9. Registers must issue an EU Company Certificate, accepted in all Member States as sufficient evidence of incorporation and of the listed information, and companies and third parties needing reliable information may obtain it free of charge.
  10. A Member State with reasonable doubts about another Member State's preventive control may ask the Commission to assess its reliability and, if equivalence is not confirmed, may decide not to accept the documents as evidence.
  11. The digital EU power of attorney must be signed with qualified electronic signatures, authenticated at assurance level 'high', filed with the register within five working days, and its amendments and revocations disclosed.
  12. Changes to company documents and information must be filed within 15 working days and entered and disclosed within 5 working days, extendable by 10 working days for complex checks; the yearly confirmation obligation is deleted.

Who is affected

  • Companies listed in Annexes II and IIB: must file changes within deadlines, may use the EU Company Certificate and digital EU power of attorney.
  • Commercial partnerships: must disclose basic information and partner details under common minimum standards of preventive control.
  • Cooperatives in Member States where they are in company registers: listed information becomes compulsory and accessible at Union level.
  • National business registers: must issue the EU Company Certificate, retrieve and exchange company data electronically, and check the digital EU power of attorney.
  • Third parties such as authorities, employee representatives, lawyers, notaries and credit institutions: gain free or proportionate-cost access to company information and powers of attorney.

Figures and deadlines

  • Filing of changes to company documents and information: within a time period not exceeding 15 working days from the date the changes were made.
  • Entry and disclosure of changes in the register: within 5 working days from completion of all formalities, extendable by 10 working days for complex checks.
  • Subsidiaries must disclose group changes in their register within a deadline of two weeks from the date the changes were made or from when they were made aware of them.
  • Filing of the digital EU power of attorney, amendments and revocations with the register: within a maximum of five working days.
  • Notification of a decision not to accept documents: within 5 working days of receiving the reply from the contact points.
  • Commission evaluation of the directive: within five years of the end of its transposition period.

Legal basis: Article 294(2), Article 50(1) and (2)(g) and Article 114 of the Treaty on the Functioning of the European Union.