Appendix 5.6 of the International Associations Statutes Series vol 1, UIA eds (1988)
The Council of Ministers of the European Communities adopted in 1985 a regulation concerning the establishment of a European Economic Interest Grouping (EEIG). This provides a legal framework within which enterprises at the national level in different countries can cooperate together at the European level. This regulation forms part of a larger framework of actions being undertaken at the Community level to improve the competitivity of European enterprises in key industrial sectors. It aims to ensure that the use of this legal form is ["made as widely available as possible to natural persons, companies, firms and other legal bodies"] with ["the concept of economic activities being interpreted in the widest sense."] It is possible that this form might prove appropriate to some non-profit organizations which currently take the form of trade associations and associations of manufacturers.
During the debate on 12th March 1987 in the European Parliament concerning non-profit-making associations, the Vice-President of the Commission, Henning Christopher, made the following remark concerning the Regulation: ["Even if non-profit-making associations cannot be defined as being members of an interest grouping, they may come under the definition, contained in that regulation, of other legal persons governed by public or private law pursuing long-term aims such as research and development. That means that there is another category of associations covered by Community protection. From 1 July 1989 this regulation will allow transfrontier cooperation between universities, research centres and undertakings and may even go further. So here too there is a legal basis already allowing the Commission and the Community to ensure protection against discrimination."] (1)
The text of the Regulation is as follows (2):
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Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG)
The Council of the European Communities,
Having regard to the Treaty establishing the European Economic Community, and in particular [Article 235] therof,
Having regard to the proposal from the Commission (2),
Having regard to the opinion of the European Parliament (3),
Having regard to the opinion of the Economic and Social Committee (4),
Whereas a harmonious development of economic activities and a continuous and balanced expansion throughout the Community depend on the establishment and smooth functioning of a common market offering conditions analogous of those of a national market; whereas to bring about this single market and to increase its unity a legal framework which facilitates the adaptation of their activities to the economic conditions of the Community should be created for natural persons, companies, firms and other legal bodies in particular; whereas to that end it is necessary that those natural persons, companies, firms and other legal bodies should be able to cooperate effectively across frontiers;
Whereas cooperation of this nature can encounter legal, fiscal or psychological difficulties; whereas the creation of an appropriate Community legal instrument in the form of a European Economic Interest Grouping would contribute to the achievement of the above mentioned objectives and therefore proves necessary;
Whereas the Treaty does not provide the necessary powers for the creation of such a legal instrument;
Whereas a grouping's ability to adapt to economic conditions must be guaranteed by the considerable freedom for its members in their contractual relations and the internal organization of the grouping;
Whereas a grouping differs from a firm or company principally in its purpose, which is only to facilitate or develop the economic activities of its members to enable them to improve their own results; whereas by reason of that ancillary nature, a grouping's activities must be related to the economic activities of its members but not replace them so that, to that extent, for example, a grouping may not itself, with regard to third parties, practise a profession, the concept of economic activities being interpreted in the widest sense;
Whereas access to grouping form must be made as widely available as possible to natural persons, companies, firms and other legal bodies, in keeping with the aims of this Regulation; whereas this Regulation shall not, however, prejudice the application at national level of legal rules and/or ethical codes concerning the conditions for the pursuit of business and professional activities;
Whereas this Regulation does not itself confer on any person the right to participate in a grouping even where the conditions it lays down are fulfilled;
Whereas the power provided by this Regulation to prohibit or restrict participation in grouping on grounds of public interest is without prejudice to the laws of Member States which govern the pursuit of activities and which may provide further prohibitions or restrictions or otherwise control or supervise participation in a grouping by any natural person, company, firm or other legal body or any class of them;
Whereas to enable a grouping to achieve its purpose, it should be endowed with legal capacity and provision should be made for it to be represented [vis-à-vis] third parties by an organ legally separate from its membership;
Whereas the protection of third parties requires wide-spread publicity; whereas the members of a grouping have unlimited joint and several liability for the grouping's debts and other liabilities, including those relating to tax or social security, without, however, that principle's affecting the freedom to exclude or restrict the liability of one or more of its members in respect of a particular debt or other liability by means of a specific contract between the grouping and a third party;
Whereas matters relating to the status or capacity of natural persons and to the capacity of legal persons are governed by national law;
Whereas the grounds for winding up which are peculiar to the grouping should be specific while referring to national law for its liquidation and the conclusion thereof;
Whereas groupings are subject to national laws relating to insolvency and cessation of payments; whereas such laws may provide other grounds for the winding up of groupings;
Whereas this Regulation provides that the profits or losses resulting from the activities of a grouping shall be taxable only in the hands of its members; whereas it is understood that otherwise national tax laws apply particularly as regards the apportionment of profits, tax procedures and any obligations imposed by national tax law;
Whereas in matters not covered by this Regulation the laws of the Member States and Community law are applicable, for example with regard to:
- social and labour laws,
- competition law,
- intellectual property law;
Whereas the activities of groupings are subject to the provisions of Member States' laws on the pursuit and supervision of activities; whereas in the event of abuse or circumvention of the laws of a Member State by a grouping of its members that Member State may impose appropriate sanctions;
Whereas the Member States are free to apply or to adopt any laws, regulations or administrative measures which do not conflict with the scope or objectives of this Regulation;
Whereas this Regulation must enter into force immediately in its entirety; whereas the implementation of some provisions must nevertheless be deferred in order to allow the Member States first to set up the necessary machinery for this registration of groupings in their territories and the disclosure of certain matters relating to groupings; whereas with effect from the date of implementation of this Regulation, groupings set up may operate without territorial restrictions,
Has adopted this regulation:
Art. 1
1. European Economic Interest Groupings shall be formed upon the terms, in the manner and with the effects laid down in this Regulation.
Accordingly, parties intending to form a grouping must conclude a contract and have the registration provided for in [Article 6] carried out.
2. A grouping so formed shall, from the date of its registration as provided for in [Article 6], have the capacity, in its own name, to have rights and obligation of all kinds, to make contracts or accomplish other legal acts, and to sue and be sued.
3. The Member States shall determine whether or not groupings registered at their registries, pursuant to [Article 6], have legal personality.
Art. 2
1. Subject to the provisions of this Regulation, the law applicable, on the one hand, to the contract for the formation of a grouping, except as regards matters relating to the status or capacity of natural persons and to the capacity of legal persons and, on the other hand, to the internal organization of a grouping shall be the internal law of the State in which the official address is situated, as laid down in the contract for the formation of the grouping.
2. Where a State comprises several territorial units, each of which has its own rules of law applicable to the matters referred to in paragraph 1, each territorial unit shall be considered as a State for the purposes of identifying the law applicable under this Article.
Art. 3
1. The purpose of a grouping shall be to facilitate or develop the economic activities of its members and to improve or increase the results of those activities; its purpose is not to make profits for itself.
Its activity shall be related to the economic activities of its members and must not be more than ancillary to those activities.
2. Consequently, a grouping may not:
(a) exercise, directly or indirectly, a power of management or supervision over its members' own activities or over the activities or another undertaking, in particular in the fields of personnel, finance and investment;(b) directly or indirectly, on any basis whatsoever, hold shares of any kind in a member undertaking; the holding of shares in another undertaking shall be possible only in so far as it is necessary for the achievement of the grouping's objects and if it is done on its members' behalf;
(c) employ more than 500 persons;
(d) be used by a company to make a loan to a director of a company, or any person connected with him, when the making of such loans is restricted or controlled under the Member States' laws governing companies. Nor must a grouping be used for the transfer of any property between a company and a director, or any person connected with him, except to the extent allowed by the Member States' laws governing companies. For the purposes of this provision the making of a loan includes entering into any transaction or arrangement of similar effect, and property includes moveable and immoveable property;
(e) be a member of another European Economic Interest Grouping.
Art. 4
1. Only the following may be members of a grouping:
(a) companies or firms within the meaning of the second paragraph of [Article 58) of the Treaty and other legal bodies governed by public or private law, which have been formed in accordance with the law of a Member State and which have their registered or statutory office and central administration in the Community; where, under the law of a Member State, a company, firm or other legal body is not obliged to have a registered or statutory office, it shall be sufficient for such a company, firm or other legal body to have its central administration in the Community;
(b) natural persons who carry on any industrail, commercial, craft or agricultural activity or who provide professional or other services in the Community.
2. A grouping must comprise at least:
(a) two companies, firms or other legal bodies, within the meaning of paragraph 1, which have their central administration in different Member States, or
(b) two natural persons, within the meaning of paragraph 1, who carry on their principal activities in [different] Member States, or
(c) a company, firm or other legal body within the meaning of paragraph 1 and a natural person, of which the first has its central administration in one Member State and the second carries on his principal activity in another Member State.
3. A Member State may provide that groupings registered at its registers in accordance with [Article 6] may have no more than 20 members. For this purpose, that Member State may provide that, in accordance with its laws, each member of a legal body formed under its laws, other than a registered company, shall be treated as a separate member of a grouping.
4. Any Member State may, on grounds of that State's public interest, prohibit or restrict participation in groupings by certain classes of natural persons, companies, firms, or other legal bodies.
Art. 5
A contract for the formation of a grouping shall include at least:
(a) the name of the grouping preceded or followed either by the words ["European Economic Interest Grouping"] or by the initials ["EEIG"], unless those words or initials already form part of the name;
(b) the official address of the grouping;
(c) the objects for which the grouping is formed;
(d) the name, business name, legal form, permanent address or registered office, and the number and place of registration, if any, of each member of the grouping:
(e) the duration of the grouping, except where this is indefinite.
Art. 6
A grouping shall be registered in the State in which it has its offical address, at the registry designated pursuant to [Article 39 (1)].
Art. 7
A contract for the formation of a grouping shall be filed at the registry referred to in [Article 6].
The following documents and particulars must also be filed at that registry:
(a) any amendment to the contract for the formation of a grouping, including any change in the composition of a grouping;
(b) notice of the setting up or closure of any establishment of the grouping;
(c) any judicial decision establishing or declaring the nullity of a grouping, in accordance with [Article 15];
(d) notice of the appointment of the manager or managers of a grouping, their names and any other identification particulars required by the law of the Member State in which the register is kept, notification that they may act alone or must act jointly, and the termination of any manager's appointment;
(e) notice of a member's assignment of his participation in a grouping or a proportion thereof, in accordance with [Article 22 (1)];
(f) any decision by members ordering or establishing the winding up ofa grouping, in accordance with [Article 31], or any judicial decision ordering such winding up, in accordance with [Articles 31] or [32];
(g) notice of the appointment of the liquidator or liquidators of a grouping, as referred to in [Article 35], their names and any other identification particulars required by the law of the Member State in which the register is kept, and the termination of any liquidator's appointment;
(h) notice of the conclusion of a grouping's liquidation, as referred to in [Article 35 (2)];
(i) any proposal to transfer the official address, as referred to in [Article 14 (1)];
(j) any clause exempting a new member from the payment of debts and other liabilities which originated prior to his admission, in accordance with [Article 26 (2)].
Art. 8
The following must be published, as laid down in [Article 39], in the gazette referred to in paragraph 1 of that Article:
(a) the particulars which must be included in the contract for the formation of a grouping, pursuant to [Article 5], and any amendments thereto;
(b) the number, date and place of registration as well as notice of the termination of that registration;
(c) the documents and particulars referred to in [Article 7 (b)] to [(j)].
The particulars referred to in (a) and (b) must be published in full. The documents and particulars referred to in (c) may be published either in full or in extract form or by means of a reference to their filing at the registry, in accordance with the national legislation applicable.
Art. 9
1. The documents and particulars which must be published pursuant to this Regulation may be relied on by a grouping as against third parties under the conditions laid down by the national law applicable pursuant to [Article 3 (5) and (7)] of Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members within the meaning of the second paragraph or [Article 58] of the Treaty, with a view to making such safeguards equivalent throughout the Community (6).
2. If activities have been carried on on behalf of a grouping before its registration in accordance with [Article 6] and if the grouping does not, after its registration, assume the obligations arising out of such activities, the natural persons, companies, firms or other legal bodies which carried on those activities shall bear unlimited joint and several liability for them.
Art. 10
Any grouping establishment situated in a Member State other than that in which the official address is situated shall be registered in that State. For the purpose of such registration, a grouping shall file, at the appropriate registry, in that Member State, copies of the documents which must be filed at the registry of the Member State in which the official address, is situated, together, if necessary, with a translation which conforms with the practice of the registry where the establishment is registered.
Art. 11
Notice that a grouping has been formed or that the liquidation of a grouping has been concluded stating the number, date and place of registration and the date, place and title of publication, shall be given in the [Official Journal of the European Communities] after it has been published in the gazette referred to in [Article 39 (1)].
Art. 12
The official address referred to in the contract for the formation of a grouping must be situated in the Community.
The official address must be fixed either:
(a) where the grouping has its central administration, or
(b) where one of the members of the grouping has its central administration or, in case of a natural person, his principal activity, provided that the grouping carries on an activity here.
Art. 13
The official address of a grouping may be transferred within the Community.
When such a transfer does not result in a change in the law applicable pursuant to [Article 2], the decision to transfer shall be taken in accordance with the conditions laid down in the contract for the formation of the grouping.
Art. 14
1. When the transfer of the official address results in a change in the law applicable pursuant to [Article 2], a transfer proposal must be drawn up, filed and published in accordance with the conditions laid down in [Articles 7] and [8].
No decision to transfer may be taken to two months after publication of the proposal. Any such decision must be taken by the members of the grouping unanimously. The transfer shall take effect on the date on which the grouping is registered, in accordance with [Article 6], at the registry for the new official address. That registration may not be effected until evidence has been produced that the proposal to transfer the official address has been published.
2. The termination of a grouping's registration at the registry for its old official address may not be effected until evidence has been produced that the grouping has been registered at the registry for its new official address.
3. Upon publication of a grouping's new registration the new official address may be relied on as against third parties in accordance with the conditions referred to in [Article 9 (1)]; however, as long as the termination of the grouping's registration at the registry for the old official address has not been plublished, third parties may continue to rely on the old official address unless the grouping proves that such third parties were aware of the new official address.
4. The laws of a Member State may provide that, as regards groupings registered under [Article 6] in that Member State, the transfer of an official address which would result in a change of the law applicable shall not take effect if, within the two-month period referred to in paragraph 1, a competent authority in that Member State opposes it. Such opposition may be based only on grounds of public interest. Reviews by a juridicial authority must be possible.
Art. 15
1. Where the law applicable to a grouping by virtue of [Article 2] provides for the nullity of that grouping, such nullity must be established or declared by juridicial decision. However, the court to which the matter is referred must, where it is possible for the affairs of the grouping to be put in order, allow time to permit that to be done.
2. The nullity of a grouping shall entail its liquidation in accordance with the conditions laid down in [Article 35].
3. A decision establishing or declaring the nullity or a grouping may be relied on as against third parties in accordance with the conditions laid down in [Article 9 (1)].
Such a decision shall not of itself affect the validity of liabilities, owned by or to a grouping, which originated before it could be relied on as against third parties in accordance with the conditions laid down in the previous subparagraph.
Art. 16
1. The organs of a grouping shall be the members acting collectively and the manager or managers.
A contract for the formation of a grouping may provide for other organs; if it does it shall determine their powers.
2. The members of a grouping, acting as a body, may take any decision for the purpose of achieving the objects of the grouping.
Art. 17
1. Each member shall have one vote. The contract for the formation of a grouping may, however, give more than one vote to certain members, provided that not one member holds a majority of the votes.
2. A unanimous decision by the members shall be required to:
(a) after the objects of a grouping;
(b) alter the number of votes allotted to each member;
(c) alter the conditions for the taking of decisions;
(d) extend the duration of a grouping beyond any period fixed in the contract for the formation of the grouping;
(e) alter the contribution by every member or by some members to the grouping's financing;
(f) alter any other obligation of a member, unless otherwise provided by the contracts for the formation of the grouping;
(g) make any alteration to the contract for the formation of the grouping not covered by this paragraph, unless otherwise provided by that contract.
3. Except where this Regulation provides that decisions must be taken unanimously, the contract for the formation of a grouping may prescribe the conditions for a quorum and for a majority, in accordance with which the decisions, or some of them, shall be taken.
Unless otherwise provided for by the contract, decisions shall be taken unanimously.
4. On the initiative of a manager or at the request of a member, the manager or managers must arrange for the members to be consulted so that the latter can take a decision.
Art. 18
Each member shall be entitled to obtain information from the manager or managers concerning the grouping's business and to inspect the grouping's books and business records.
Art. 19
1. A grouping shall be managed by one or more natural persons appointed in the contract for the formation of the grouping or by decision of the members.
No person may be a manager of a grouping if:
- by virtue of the law applicable to him, or
- by virtue of the internal law of the State in which the grouping has its official address, or
- following a judicial or administrative decision made or recognized in a Member State
he may not belong to the administrative or management body of a company, may not manage an undertaking or may not act as manager of a European Economic Interest Grouping.
2. A Member State may, in the case of groupings registered at their registries pursuant to [Article 6], provide that legal persons may be managers on condition that such legal persons designate one or more natural persons, whose particulars shall be the subject of the filing provisions of [Article 7 (d)] to represent them.
If a Member State exercises this option, it must provide that the representative or representatives shall be liable as if they were themselves managers of the groupings concerned.
The restrictions imposed in paragraph 1 shall also apply to those representatives.
3. The contract for the formation of a grouping or, failing that, a unanimous decision by the members shall determine the conditions for the appointment and removal of the manager of managers and shall lay down their powers.
Art. 20
1. Only the manager or, where there are two or more, each of the managers shall represent a grouping in respect of dealing with third parties.
Each of the managers shall bind the grouping as regards third parties when he acts on behalf of the grouping, even where his acts do not fall within the objects of the grouping, unless the grouping proves that the third party knew or could not, under the circumstances, have been unaware that the act fell outside the objects of the grouping; publication of the particulars referred to in [Article 5 (c)] shall not itself be proof thereof.
No limitation on the powers of the manager or managers whether deriving from the contract for the formation of the grouping or from the decision by the members, may be relied on as against third parties even if it is published.
2. The contract for the formation of the grouping may provide that the grouping shall be validly bound only by two or more managers acting jointly. Such a clause may be relied on as against third parties in accordance with the conditions referred to in [Article 9 (1)] only if it is published in accordance with [Article 8].
Art. 21
1. The profits resulting from a grouping's activities shall be deemed to be the profits of the members and shall be apportioned among them in the proportions laid down in the contract for the formation of the grouping or, in the absence of any such provision, in equal shares.
2. The members of a grouping shall contribute to the payment of the amount by which expenditure exceeds income in the proportions laid down in the contract for the formation of the grouping or, in the absence of any such provision, in equal shares.
Art. 22
1. Any member of a grouping may assign his participation in the grouping, or a proportion thereof, either to another member or to a third party; the assignment shall not take effect without the unanimous authorization of the other members.
2. A member of a grouping may use his participation in the grouping as security only after the other members have given their unanimous authorization, unless otherwise laid down in the contract for the formation of the grouping. The holder or the security may not at any time become a member of the grouping by virtue of that security.
Art. 23
No grouping may invite investment by the public.
Art. 24
1. The members of a grouping shall have unlimited joint and several liability for its debts and other liabilities of whatever nature. National law shall determine the consequences of such liability.
2. Creditors may not proceed against a member for payment in respect of debts and other liabilities, in accordance with the conditions laid down in paragraph 1, before the liquidation of a grouping is concluded, unless they have first requested the grouping to pay and payment has not been made within an appropriate period.
Art. 25
Letters, order forms and similar documents must indicate legibly:
(a) the name of the grouping preceded or followed either by the words ["European Economic Interest Grouping"] or by the initials ["EEIG"], unless those words or initials already occur in the name;
(b) the location of the registry referred to in [Article 6], in which the grouping is registered, together with the number of the grouping's entry at the registry;
(c) the grouping's official address;
(d) where applicable, that the managers must act jointly;
(e) where applicable, that the grouping is in liquidation, pursuant to [Articles 15, 31, 32] or [36.]
Every establishment of a grouping when registered in accordance with [Article 10], must give the above particulars together with those relating to its own registration, on the documents referred to in the first paragraph of this Article uttered by it.
Art. 26
1. A decision to admit new members shall be taken unanimously by the members of the grouping.
2. Every new member shall be liable, in accordance with the conditions laid down in [Article 24], for the grouping's debts and other liabilities, including those arising out of the grouping's activities before his admission.
He may, however, be exempted by a clause in the contract for the formation of the grouping or in the instrument of admission from the payment of debts and other liabilities which originated before his admission. Such a clause may be relied on as against third parties, under the conditions referred to in [Article 9 (1)], only if it is published in accordance with [Article 8].
Art. 27
1. A member of a grouping may withdraw in accordance with the conditions laid down in the contract for the formation of a grouping or, in the absence of such conditions, with the unanimous agreement of the other members.
Any member of a grouping may, in addition, withdraw on just and proper grounds.
2. Any member of a grouping may be expelled for the reasons listed in the contract for the formation of the grouping and, in any case, if he seriously fails in his obligations of if he causes or threatens to cause serious disruption in the operation of the grouping.
Such expulsion may occur only by the decision of a court to which joint application has been made by a majority of the other members, unless otherwise provided by the contract for the formation of a grouping.
Art. 28
1. A member of a grouping shall cease to belong to it on death or when he no longer complies with the conditions laid down in [Article 4 (1)].
In addition, a Member State may provide, for the purposes of its liquidation, winding up, insolvency of cessation of payments laws, that a member shall cease to be a member of any grouping at the moment
determined by those laws.
2. In the event of the death of natural person who is a member of a grouping, no person may become a member in his place except under the conditions laid down in the contract for the formation of the grouping or, failing that, with the unanimous agreement of the remaining members.
Art. 29
As soon as a member ceases to belong to a grouping, the manager or managers must inform the other members of that fact; they must also take the steps required as listed in [Articles 7] and [8]. In addition, any person concerned may take those steps.
Art. 30
Except when the contract for the formation of a grouping provides otherwise and without prejudice to the rights acquired by a person under [Articles 22 (1)] or [28 (2)], a grouping shall continue to exist for the remaining members after a member has ceased to belong to it, in accordance with the conditions laid down in the contract for the formation of the grouping or determined by unanimous decision of the members in question.
Art. 31
1. A grouping may be wound up by a decision of its members ordering its winding up. Such a decision shall be taken unanimously, unless otherwise laid down in the contract for the formation of the grouping.
2. A grouping must be wound up by a decision of its members:
(a) noting the expiry of the period fixed in the contract for the formation of the grouping or the existence of any other cause for winding up provided for in the contract, or
(b) noting the accomplishment of the grouping's purpose or the impossibility of pursuing it further.
Where, three months after one of the situations referred to in the first subparagraph has ocurred, a member's decision establishing the winding up of the grouping has not been taken, any member may petition the court to order winding up.
3. A grouping must also be wound up by a decision of its members or of the remaining members when the conditions laid down in [Article 4 (2)] are no longer fulfilled.
4. After a grouping has been wound up by decision of its members, the manager must take the steps required as listed in [Articles 7] and [8]. In addition, any person concerned may take lose steps.
Art. 32
1. On application by any person concerned or by a competent authority,in the event of the infringement of [Articles 3, 12] or [31 (3)], the court must order a grouping to be wound up, unless its affairs can be and are put in order before the court has delivered a substantive ruling.
2. On application by a member, the court may order a grouping to be wound up on just and proper grounds.
3. A Member State may provide that the court may, on application by a competent authority, order the winding up of a grouping which has its official address in the State to which that authority belongs, wherever the grouping acts in contravention of that State's public interest, if the law of that State provides for such a possibility in respect of registered companies or other legal bodies subject to it.
Art. 33
When a member ceases to belong to a grouping for any reason other than the assignment of his rights in accordance with the conditions laid down in [Article 22 (1)], the value of his rights and obligations shall be determined taking into account the assets and liabilities of the grouping as they stand when he ceases to belong to it.
The value of the rights and obligations of a departing member may not be fixed in advance.
Art. 34
Without prejudice to [Article 37 (1)], any member who ceases to belong to a grouping shall remain answerable, in accordance with the conditions laid down in [Article 24], for the debts and other liabilities arising out of the grouping's activities before he ceased to be a member.
Art. 35
1. The winding up of a grouping shall entail its liquidation.
2. The liquidation of a grouping and the conclusion of its liquidation shall be governed by national law.
3. A grouping shall retain its capacity, within the meaning of [Article 1 (2)], until its liquidation is concluded.
4. The liquidator or liquidators shall take the steps required as listed in [Articles 7] and [8].
Art. 36
Groupings shall be subject to national laws governing insolvency and cessation of payments. The commencement of proceedings against a grouping on grounds of its insolvency or cessation of payments shall not by itself cause the commencement of such proceedings against its members.
Art. 37
1. A period of limitation of five years after the publication, pursuant to [Article 8], of notice of a member's ceasing to belong to a grouping shall be substituted for any longer period which may be laid down by the relevant national law for actions against that member in connection with debts and other liabilities arising out of the grouping's activities before he ceased to be a member.
2. A period of limitation of five years after the publication, pursuant to [Article 8], of notice of the conclusion of the liquidation of a grouping shall be substituted for any longer period which may be laid down by the relevant national law for actions against a member of the grouping in connection with debts and other liabilities arising out of the grouping's activities.
Art. 38
Where a grouping carries on any activity in a Member State in contravention of that State's public interest, a competent authority of that State may prohibit that activity. Review of that competent authority's decision by a juridical authority shall be possible.
Art. 39
1. The Member State shall designate the registry or registries responsible for effecting the registration referred to in [Articles 6] and [10] and shall lay down the rules governing registration. They shall prescribe the conditions under which the documents referred to in [Articles 7] and [10] shall be filed. They shall ensure that the documents and particulars referred to in [Article 8] are published in the appropriate official gazette of the Member State in which the grouping has its official address, and may prescribe the manner of publication of the documents and particulars referred to in [Article 8 (c)].
The Member State shall also ensure that anyone may, at the appropriate registry pursuant to [Article 6] or, where appropriate, [Article 10], inspect the documents referred to in [Article 7] and obtain, even by post, full or partial copies thereof.
The Member State may provide for the payment of fees in connection with the operations referred to in the preceding subparagraphs; those fees may not, however, exceed the administrative costs thereof.
2. The Member State shall ensure that the information to be published in the [Official Journal of the European Communities] pursuant to [Article 11] if forwarded to the Office for Official Publications of the European Communities within one month of its publication in the official gazette referred to in paragraph 1.
3. The Member State shall provide for appropriate penalties in the event of failure to comply with the provisions of [Articles 7, 8] and [10] on disclosure and in the event of failure to comply with [Article 25].
Art. 40
The profits or losses resulting from the activities of a grouping shall be taxable only in the hands of its members.
Art. 41
1. The Member State shall take the measures required by virtue of [Article 39] before 1 July 1989. They shall immediately communicate them to the Commission.
2. For information purposes, the Member States shall inform the Commission of the classes of natural persons, companies, firms and other legal bodies which they prohibit from participating in groupings pursuant to [Article 4 (4)]. The Commission shall inform the other Member States.
Art. 42
1. Upon the adoption of this Regulation, a Contact Committee shall be set up under the auspices of the Commission. Its function shall be:
(a) to facilitate, without prejudice to [Articles 169] and [170] of the Treaty, application of this Regulation through regular consultation dealing in particular with practical problems arising in connection with its application;
(b) to advise the Commission, if necessary, on additions or amendments to this Regulation.
2. The Contact Committee shall be composed of representatives of the Member State and representatives of the Commission. The chairman shall be a representative of the Commission. The Commission shall provide the secretariat.
3. The Contact Committee shall be convened by its chairman either on his own initiative or at the request of one of its members.
Art. 43
This Regulation shall enter into force on the third day following its publication in the [Official Journal of the European Communities].
It shall apply from 1 July 1989, with the exception of [Articles 39, 41] and [42] which shall apply as from the entry into force of the Regulation.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 July 1985.
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Comments
This agreement is considered by the Commission of the European Communities (7) to constitute a significant step towards improving the legal environment of enterprises in the context of completing the internal market as initially proposed in 1973. It is the first time that enterprises have at their disposal a Community law instrument, corresponding to the dimensions of a European market and directly encouraging their cooperation across frontiers. Such a step is likely to lift legal, fiscal or psychological barrierss that such cooperation still encounters, notably by reason of its having to be linked to a national legal system, delimited to a particular territory.
By choosing to work through an EEIG rather than a national legal structure, enterprises from different Member States are placed on an equal footing with regard to law. In this way some apprehensions that enterprises, particularly small and medium-sized enterprises, may have to cooperate with foreign partners, may be overcome.
Furthermore, the attractiveness of the EEIG stems from its particular characteristics, closely modelled on experience in a Member State (France). It is a simple and flexible form of association enabling its members to combine part of their activities whilst retaining their economic and legal independence.
In this way the EEIG stands out from techniques used by enterprises wishing to get together (groups of companies, mergers). It also differs from contractual measures for cooperation because it is an independent legal entity so as to extend and complement the economic activity of its members and enable them to increase their own profits and competitivity.
The EEIG can, for example, serve as a vehicle for research and development (e.g. Airbus Industrie), for the submission of offers in the case of public invitations to tender, even outside the Community, for the promotion of products, bulk purchasing of raw materials, common services etc.
So as not to restrict the economic variations possible, the legal structure of the EEIG leaves as much to be determined by the founder members as they wish. EEIG can thus be formed without any obligation to have capital. If advantages flow from joint action, members can reinforce the terms on which they are cooperating. The process is not however irreversible. Members can always leave and the liquidation of an EEIG does not cause its members to cease to exist.
This flexibility in its organization and financing renders it necessary to protect third parties who have dealings with an EEIG as an independent legal entity. Such protection is ensured by extensive publicity of events in the life of an EEIG and by the unlimited joint and several liability of the members of a grouping for its debts and other liabilities. In this way the Community hopes to have given a response to expectations of industry and commerce.
Notes
1. Debates of the European Parliament, No 2-350/240 of 12.3.87
2. [Official Journal of the European Communities], No L 199/1, 31.7.85 (Regulation 2137/85 of the Council)
3. [Official Journal of the European Communities], No C14 of 15.2.1974, p. 30; No C103 of 28.4.1978, p. 4
4. [Official Journal of the European Communities], No C 163 of 11.7.1977, p. 17
5. [Official Journal of the European Communities], No C 108 of 15.5.1975, p. 46
6. [Official Journal of the European Communities], No L 65 of 14.3.1968
7. Commission of the European Communities. European Economic Interest Grouping (EEIG). [Newsletter; new technologies and innovation policy], August 1985, 44.