Grønnbok om kontakt og transparens mellom Europas foretaksregistre
Grønnbok om sammenkobling av foretaksregistre
Dansk departementsvurdering ("grundnotat") offentliggjort 18.12.2009
Bakgrunn
BAKGRUNN (fra Kommisjonens grønnbok, engelsk utgave)
The current financial crisis highlighted once again the importance of transparency across the financial markets. In the context of the measures for financial recovery [1], improving access to up-to-date and official information on companies can be seen as a means to restore confidence in the markets all over Europe.
Business registers [2] play an essential role in this regard; they register, examine and store company information, such as information on a company's legal form, its seat, capital and legal representatives, and they make this information available to the public. They may also offer additional services, which may vary from one country to another. The minimum standards of the core services are set by European legislation [3]; in particular Member States have to maintain electronic business registers [4] since 1 January 2007. Nevertheless, in Europe, business registers operate on a national or regional basis: they only store information on companies registered in the territory (country or region) where they are competent.
Businesses increasingly expand beyond national borders using the opportunities offered by the Single Market. Cross-border groups as well as a high number of restructuring operations, such as mergers and divisions involve companies from different Member States of the EU. Furthermore, over the past decade the jurisprudence of the European Court of Justice [5] has opened up the possibility for businesses to incorporate in one Member State and conduct their business activity partly or entirely in another.
There is an increasing demand for access to information on companies in a crossborder context, either for commercial purposes or to facilitate access to justice. However, while official information on companies is easily available in the country of their registration, access to the same information from another Member State may be hindered by technical or language barriers [6]. In these circumstances, facilitating cross-border access to official and reliable company information for creditors, business partners and consumers is necessary to ensure an appropriate degree of transparency and legal certainty in the markets all over the EU. To achieve this, the cross-border cooperation of business registers is indispensable.
Moreover, operations such as cross-border mergers or seat transfers and the establishment of branches in other Member States have made the day-to-day cooperation of national, regional or local authorities and/or business registries a necessity. Their close cooperation accelerates procedures and enhances legal certainty.
Efficient cross-border cooperation between the registers is not only essential for a smooth functioning of the Single Market. It also significantly reduces the costs for companies operating cross-border. The High Level Group of Independent Stakeholders on Administrative Burdens identified facilitating cross-border access by electronic means to business information as a means of facilitating cross-border economic activities. Citing possible savings of € 161m regarding certain information obligations stemming from the Eleventh Company law Directive (89/666/EEC), the experts were fully in support of achieving interoperability between trade registers throughout Europe [7].
The existing voluntary cooperation between business registries is, however, not enough. There is a need for enhanced cooperation between them. There are tools and initiatives – such as the European Business Register (EBR), the e-Justice project or the Internal Market Information System (IMI) – that can promote the enforcement of this legal framework further, facilitate communication between the competent registers and enhance transparency and confidence in the market.
This Green Paper describes the existing framework and considers possible ways forward to improve access to information on businesses across the EU and more effective application of the company law directives.
1 Communication for the spring European Council, Driving European recovery - COM(2009) 114.
2 The term "business register" used in this Green Paper comprises all the central, commercial and companies registers within the meaning of Article 3 of the First Company law Directive (68/151/EEC).
3 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 (OJ L 65, 14.3.1968, p. 8); last amended by Directive 2003/58/EC of the European Parliament and of the Council of 15 July 2003 (OJ L 221, 4.9.2003, p. 13).
4 Directive 2003/58/EC of the European Parliament and of the Council of 15 July 2003 amending Council Directive 68/151/EEC, as regards disclosure requirements in respect of certain types of companies (OJ L 221, 4.9.2003, p. 13).
5 Centros (C-212/97), Überseering (C-208/00), Inspire Art (C-167/01) cases.
6 The Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State (OJ L 395, 30.12.1989, p. 36) provides a partial solution by requiring companies to provide a minimum set of information in the language of the country where they register their branch.
7 Opinion of the High Level Group of Independent Stakeholders on Administrative Burdens ("Stoiber Group") on the priority area company law / annual accounts, 10 July 2008, § 22,
The current financial crisis highlighted once again the importance of transparency across the financial markets. In the context of the measures for financial recovery [1], improving access to up-to-date and official information on companies can be seen as a means to restore confidence in the markets all over Europe.
Business registers [2] play an essential role in this regard; they register, examine and store company information, such as information on a company's legal form, its seat, capital and legal representatives, and they make this information available to the public. They may also offer additional services, which may vary from one country to another. The minimum standards of the core services are set by European legislation [3]; in particular Member States have to maintain electronic business registers [4] since 1 January 2007. Nevertheless, in Europe, business registers operate on a national or regional basis: they only store information on companies registered in the territory (country or region) where they are competent.
Businesses increasingly expand beyond national borders using the opportunities offered by the Single Market. Cross-border groups as well as a high number of restructuring operations, such as mergers and divisions involve companies from different Member States of the EU. Furthermore, over the past decade the jurisprudence of the European Court of Justice [5] has opened up the possibility for businesses to incorporate in one Member State and conduct their business activity partly or entirely in another.
There is an increasing demand for access to information on companies in a crossborder context, either for commercial purposes or to facilitate access to justice. However, while official information on companies is easily available in the country of their registration, access to the same information from another Member State may be hindered by technical or language barriers [6]. In these circumstances, facilitating cross-border access to official and reliable company information for creditors, business partners and consumers is necessary to ensure an appropriate degree of transparency and legal certainty in the markets all over the EU. To achieve this, the cross-border cooperation of business registers is indispensable.
Moreover, operations such as cross-border mergers or seat transfers and the establishment of branches in other Member States have made the day-to-day cooperation of national, regional or local authorities and/or business registries a necessity. Their close cooperation accelerates procedures and enhances legal certainty.
Efficient cross-border cooperation between the registers is not only essential for a smooth functioning of the Single Market. It also significantly reduces the costs for companies operating cross-border. The High Level Group of Independent Stakeholders on Administrative Burdens identified facilitating cross-border access by electronic means to business information as a means of facilitating cross-border economic activities. Citing possible savings of € 161m regarding certain information obligations stemming from the Eleventh Company law Directive (89/666/EEC), the experts were fully in support of achieving interoperability between trade registers throughout Europe [7].
The existing voluntary cooperation between business registries is, however, not enough. There is a need for enhanced cooperation between them. There are tools and initiatives – such as the European Business Register (EBR), the e-Justice project or the Internal Market Information System (IMI) – that can promote the enforcement of this legal framework further, facilitate communication between the competent registers and enhance transparency and confidence in the market.
This Green Paper describes the existing framework and considers possible ways forward to improve access to information on businesses across the EU and more effective application of the company law directives.
1 Communication for the spring European Council, Driving European recovery - COM(2009) 114.
2 The term "business register" used in this Green Paper comprises all the central, commercial and companies registers within the meaning of Article 3 of the First Company law Directive (68/151/EEC).
3 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 (OJ L 65, 14.3.1968, p. 8); last amended by Directive 2003/58/EC of the European Parliament and of the Council of 15 July 2003 (OJ L 221, 4.9.2003, p. 13).
4 Directive 2003/58/EC of the European Parliament and of the Council of 15 July 2003 amending Council Directive 68/151/EEC, as regards disclosure requirements in respect of certain types of companies (OJ L 221, 4.9.2003, p. 13).
5 Centros (C-212/97), Überseering (C-208/00), Inspire Art (C-167/01) cases.
6 The Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State (OJ L 395, 30.12.1989, p. 36) provides a partial solution by requiring companies to provide a minimum set of information in the language of the country where they register their branch.
7 Opinion of the High Level Group of Independent Stakeholders on Administrative Burdens ("Stoiber Group") on the priority area company law / annual accounts, 10 July 2008, § 22,