First Company Law Directive - Company Identity Requirements

Whilst incorporating a company may be the easiest way of limiting one’s liability, recent legislation means that the administrative burden of managing a company has got harder. The first Company Law Directive and First Company Law Amendment Directive has amended the English Companies Act 1985 and now requires a company’s name to appear legibly in:

• All its business letters
• All its notices and other official publications
• On all its websites
• On all bills of exchange, promissory notes, endorsements, cheques, orders for money or goods purporting to be signed by or on behalf of the company, and
• All bills, invoices, receipts, letters of credit

In addition, the company’s business letters, order forms and websites have to included fuller particulars, including:

• The company’s place of registration
• The company’s registration number
• The address of its registered office

All these requirements apply to companies incorporated in England and Wales whether or not the documents they produce are in hard or electronic copy or any other form. The introduction of these provisions was timed to coincide with the implementation of the E.U. Transparency Obligations Directive and to allow early delivery of the benefits e-communications – including significant cost savings to business, improved accessibility to information, and, where applicable, enhanced immediacy of dialogue between companies and shareholders. It will certainly involve companies in carrying out some work updating their letterheads and other documentation, whether on paper or electronic form, but should benefit consumers and clients alike.

We have also ascertained requirements for companies situated in the following jurisdictions:

GERMANY

Limited companies have, for reasons of transparency, been obliged to provide similar information. However, this has now been extended to all companies entered on the commercial registers in Germany, whether they are sole traders, partnerships, limit liability partnerships, limit companies or public companies. The information that must be included is:

• The company’s place of business
• The court where it is registered
• The commercial register number

In addition, in respect of limited companies the first name and family name of all directors must be included and further information must be provided for public companies. The regulations also apply to faxes and emails.

Companies which offer interactive and media services are bound by further obligations and violation of any of these regulations can be punished with fines of up to EUR 5,000.

FRANCE and SPAIN

Similar legislation has recently been passed in France and Spain , although the amount a company can be fined for non-compliance differs.

NORWAY

Whilst most information regarding companies, including the business name and number, identity of the members of the board of directors and general manager (including information about positions in other businesses held by these individuals, form of organisation, type of enterprise, date of incorporation, amount of share capital and authority to bind a business, may be found in the National Company Registry, some information must be provided by the business themselves, including their unique nine digit organisation number which must be included, together with the name of the business, on websites, letters and business documents and also the VAT numbers.

CANADA

The federal nature of Canada means that each province has its own legislation and Law Society. We understand that in British Columbia and all Atlantic provinces the requirement to list corporate registration number and/or registered office details on letters and correspondence does not exist. The same also goes for the provinces of Ontario and Quebec.

AUSTRALIA

Under Australian law the only information that companies registered in Australia must provide is the Australian business number (ABN) on all stationery. Companies do not have to provide the ABN on emails or websites.

UNITED STATES OF AMERICA

The United States of America allows each state to decide individually on its own corporate procedure. In New York, there is no equivalent to the Companies Act. Instead, under Section 408 of the Business Corporation Law, the corporation must file a biennial statement that sets forth:

• The name and respective business address of the CEO
• The street address of its principal executive office
• The post office address within or without this state to which the Secretary of State can mail a copy of any process against it

The State of New York then makes the corporate information available to any person on the Secretary of State website.

Most U.S. States, including Florida, Texas, California, New Jersey and Connecticut require a corporate name to include the words “corporation, company, incorporated or limited”. This designation, however, has never been interpreted to require a corporation’s name to be included on all signage, letterheads, company forms, phone listings and the like. The omission of a corporate name indicating subsequent business dealings does not extinguish the existence of the corporation or place personal liability on the agent who signs the contract for the company. United States corporations avoid the repeated production of the company registration, place of registration and office addresses on business letters, required in Great Britain, by placing the burden on the individual to seek out incorporation information at the office, or website, of the Secretary of State.

ACTION REQUIRED

If your company is based in one of the jurisdictions that requires certain information to be included on your letterheads, emails and websites, you must comply or run the risk of incurring a fine. If you are not located in one of those jurisdictions that require such information to be included at this time, you still have a duty to keep yourself up to date with any changes to the legislation.

The Club would like to thank:

• George Chalos, Chalos O’ Connor & Duffy LLP, New York, USA
• Tor Aasberg, Advokatfirmaet Grette DA, Oslo, Norway
• Marcus John, Thomas Miller (Australasia) PTY Ltd, Sydney, Australia
• Paul Harquail, Stewart McKelvey, Saint John, New Brunswick, Canada
• Veronica Meana, Meana Green Maura, Madrid, Spain
• Geraldine Pageard, Pageard & Associes, Paris, France
• Peter Woelk of Pandi Services J & K Brons GmbH, Hamburg, Germany

for their assistance in the preparation of this article.