The Appraisal Regime of Contributions in Kind in the Light of Amendments to the Second EEC Directive

The new art. 10a of the Second EEC Directive regarding the incorporation of public companies and the maintenance and alteration of their capital provides for three cases where it is possible to contribute assets as a consideration in kind without requiring the report drawn up by an expert “appointed or approved by an administrative or judicial authority” as required by the “old” art. 10 of the Second Directive. The amendment of the Directive is not mandatory and has been adopted only by some of the Member States. This article examines the two “general” derogations of art. 10 of the Second Directive, based on another appraisal already available or on values reported in statutory accounts. Doubts are raised on both the rules approved by EC lawmakers: the first because it ends up replacing, with fewer safeguards, the “ordinary” system for the assessment of the value of contributions in kind, which is definitively left with a merely residual function; the second because it is not consistent with the options given to Member States on the adoption of international accounting standards, making any “fair value” entered in the statutory accounts always and unconditionally attributable to share capital, even after an extensive period of time, the only safeguard being provided in this case by a subsequent control check by directors.