03/02/2020
CURIA - Documents
Whereas in these matters Community provisions must be adopted in respect of such companies simultaneously,
since the only safeguards they offer to third parties are their assets;
Whereas the basic documents of the company should be disclosed in order that third parties may be able to
ascertain their contents and other information concerning the company, especially particulars of the persons who
are authorised to bind the company;
Whereas the protection of third parties must be ensured by provisions which restrict to the greatest possible extent
the grounds on which obligations entered into in the name of the company are not valid;
Whereas it is necessary, in order to ensure certainty in the law as regards relations between the company and third
parties, and also between members, to limit the cases in which nullity can arise and the retroactive effect of a
declaration of nullity, and to fix a short time limit within which third parties may enter objection to any such
declaration’.
Pursuant to Article 1 of Directive 68/151, the coordination measures prescribed by that directive apply to the laws,
regulations and administrative provisions of the Member States relating to the forms of companies listed in that
provision, including, for the Italian Republic, the società a responsabilità limitata (limited liability company).
Article 2 of that directive, which is set out in Section I thereof, entitled ‘Disclosure’, states:
‘1.
Member States shall take the measures required to ensure compulsory disclosure by companies of at least
the following documents and particulars:
…
the appointment, termination of office and particulars of the persons who either as a body constituted pursuant to
law or as members of any such body:
are authorized to represent the company in dealings with third parties and in legal proceedings;
take part in the administration, supervision or control of the company.
…
the winding-up of the company;
…
The appointment of liquidators, particulars concerning them, and their respective powers, unless such powers are
expressly and exclusively derived from law or from the statutes of the company;
the termination of the liquidation and, in Member States where striking off the register entails legal consequences,
the fact of any such striking off.’
Article 3 of that directive, which is also set out in that section, provides:
‘1.
In each Member State a file shall be opened in a central register, commercial register or companies register,
for each of the companies registered therein.
2.
All documents and particulars which must be disclosed in pursuance of Article 2 shall be kept in the file or
entered in the register; the subject matter of the entries in the register must in every case appear in the file.
…
3.
A copy of the whole or any part of the documents or particulars referred to in Article 2 must be obtainable on
application. As from 1 January 2007 at the latest, applications may be submitted to the register by paper means or
by electronic means as the applicant chooses.
As from a date to be chosen by each Member State, which shall be no later than 1 January 2007, copies as referred
to in the first subparagraph must be obtainable from the register by paper means or by electronic means as the
applicant chooses. This shall apply in the case of all documents and particulars, irrespective of whether they were
filed before or after the chosen date. However, Member States may decide that all, or certain types of, documents
and particulars filed by paper means on or before a date which may not be later than 31 December 2006 shall not
be obtainable from the register by electronic means if a specified period has elapsed between the date of filing and
the date of the application submitted to the register. Such specified period may not be less than 10 years.
…’
Directive 68/151 was repealed and replaced by Directive 2009/101/EC of the European Parliament and of the
Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members
and third parties, are required by Member States of companies within the meaning of the second paragraph of
Article 48 of the Treaty, with a view to making such safeguards equivalent (OJ 2009 L 258, p. 11), as amended by
Directive 2012/17/EU of the European Parliament and of the Council of 13 June 2012 (OJ 2012 L 156, p. 1).
Directive 2012/17 introduced, inter alia, Article 7a into Directive 2009/101, which states:
‘The processing of personal data carried out within the framework of this Directive shall be subject to Directive
95/46 ...’
However, bearing in mind the date of the facts, the main proceedings are still governed by Directive 68/151.
Directive 95/46
Directive 95/46, the object of which, according to Article 1, is to protect the fundamental rights and freedoms of
natural persons, in particular their right to privacy with respect to the processing of personal data, and to remove
obstacles to the free flow of personal data, states in recitals 10 and 25 thereof:
Whereas the object of the national laws on the processing of personal data is to protect fundamental rights and
freedoms, notably the right to privacy, which is recognised both in Article 8 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950,] and in the general
principles of Community law; whereas, for that reason, the approximation of those laws must not result in any
lessening of the protection they afford but must, on the contrary, seek to ensure a high level of protection in the
Community;
…
Whereas the principles of protection must be reflected, on the one hand, in the obligations imposed on persons …
responsible for processing, in particular regarding data quality, technical security, notification to the supervisory
authority, and the circumstances under which processing can be carried out, and, on the other hand, in the right
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