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PR(02)17: Norway required to comply with disclosure requirements in company law directives on the formation of companies (77/91/EEC) and on branches (89/666/EEC)


The EFTA Surveillance Authority has sent a Reasoned Opinion to Norway for failing to fully comply with the Second Company Law Directive (77/91/EEC) concerning the coordination of safeguards required in respect of the formation of public limited companies and the maintenance and alteration of their capital, and with the Eleventh Company Law Directive (89/666/EEC) concerning disclosure requirements in respect of branches opened in another EEA State by certain types of company governed by the law of another State.

The Second and Eleventh Company Law Directives provide that specific documents and particulars concerning the formation of companies and branches respectively shall be disclosed and published in accordance with Article 3 of the First Company Law Directive (68/151/EEC). This provision chiefly states that in each EEA State essential information concerning companies shall be registered, obtainable on request from the register and be disclosed by publication either in full or in part or by means of reference to the documents entered in the register.

Article 10 of the Second Company Law Directive provides that an experts’ report on any consideration other than in cash shall be drawn up before the company is incorporated or is authorised to commence business. The expert report shall be published. Article 27 of the Directive imposes a similar experts’ report on consideration other than in cash before an increase in the subscribed capital is made. The publication of the expert’s reports is of crucial importance for investors in and creditors of the company, particularly those outside Norway, in order to be fully aware of the existence of an independent assessment of the nature of the assets of the company and their valuation.

According to Article 8 (e) of the Eleventh Company Law Directive, compulsory disclosure shall cover at least the instruments of constitution, memorandum and articles of association if they are contained in a separate instrument, with all amendments to these documents. The publication of these documents ensures, in particular, that third parties carrying out transactions with the company through the branch in Norway, particularly third parties outside Norway, will be fully aware of the instruments of constitution of the company and their amendments.

In its Reasoned Opinion, the Authority has come to the conclusion that Norway has failed to ensure that the documents referred to in the above-mentioned provisions are published.

The purpose of a Reasoned Opinion is to give the State in question a last chance to take corrective measures before the Authority decides whether to bring the matter before the EFTA Court.

For further information please contact Mrs. Elisabethann Wright (Legal and Executive Affairs Directorate, telephone (32)-02-286-1839).

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