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The Council Regulation on the Statute for a European Company 2157/2001 is an EU Regulation containing the rules for a public EU company, called a Societas Europaea, or "SE". An SE can register in any member state of the European Union, and transfer to other member states. As of January 2011[update], at least 702 registrations have been reported.[1] Examples of companies registered as a European Company are Allianz SE, BASF SE, Strabag SE, Gfk SE and MAN SE. National law continues to supplement the basic rules in the Regulation on formation and mergers.
The European Company Regulation is complemented by an Employee Involvement Directive which sets rules for participation by employees on the company's board of directors. There is also a statute allowing European Cooperative Societies.
There is no EU-wide register of SEs (an SE is registered on the national register of the member state in which it has its head office), but each registration is to be published in the Official Journal of the European Union.
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The Statute provides four ways of forming a European limited company: merger, formation of a holding company, formation of a joint subsidiary, or conversion of a public limited company previously formed under national law. Formation by merger is available only to public limited companies from different Member States. Formation of an SE holding company is available to public and private limited companies with their registered offices in different Member States or having subsidiaries or branches in Member States other than that of their registered office. Formation of a joint subsidiary is available under the same circumstances to any legal entities governed by public or private law. See "The European Company all over Europe" De Gruyter Recht - Berlin for a general overview of the European process.[2]
SEs can be created in the following ways:
The SE must have a minimum subscribed capital of €120,000, as per article 4(2) of the directive, subject to the provision that where a Member State requires a larger capital for companies exercising certain types of activities, the same requirement will also apply to an SE with its registered office in that Member State (article 4(3)).
The registered office of the SE designated in the statutes must be the place where it has its central administration, that is to say its true centre of operations. The SE may transfer its registered office within the Community without dissolving the company in one Member State in order to form a new one in another Member State, however, such a transfer is subject to the provisions of 8 which require, inter alia, the drawing up of a transfer proposal, a report justifying the legal and economic aspects of the transfer and the issuing, by the competent authority in the member state in which the SE is registered, of a certificate attesting to the completion of the required acts and formalities.
The order of precedence of the laws applicable to the SE is clarified.
The registration and completion of the liquidation of an SE must be disclosed for information purposes in the Official Journal of the European Communities. Every SE must be registered in the State where it has its registered office, in a register designated by the law of that State.
The Statutes of the SE must provide as governing bodies the general meeting of shareholders and either a management board and a supervisory board (two-tier system) or an administrative board (single-tier system). Under the two-tier system the SE is managed by a management board. The member or members of the management board have the power to represent the company in dealings with third parties and in legal proceedings. They are appointed and removed by the supervisory board. No person may be a member of both the management board and the supervisory board of the same company at the same time. But the supervisory board may appoint one of its members to exercise the functions of a member of the management board in the event of absence through holidays. During such a period the function of the person concerned as a member of the supervisory board shall be suspended. Under the single-tier system, the SE is managed by an administrative board. The member or members of the administrative board have the power to represent the company in dealings with third parties and in legal proceedings. Under the single-tier system the administrative board may delegate the power of management to one or more of its members.
The following operations require the authorization of the supervisory board or the deliberation of the administrative board:
The SE must draw up annual accounts comprising the balance sheet, the profit and loss account and the notes to the accounts, and an annual report giving a fair view of the company's business and of its position; consolidated accounts may also be required.
In tax matters, the SE is treated the same as any other multinational, i.e. it is subject to the tax regime of the national legislation applicable to the company and its subsidiaries. SEs are subject to taxes and charges in all Member States where their administrative centres are situated. Thus their tax status is not perfect as there is still no adequate harmonization at European level.
Winding-up, liquidation, insolvency and suspension of payments are in large measure to be governed by national law. An SE which transfers its registered office outside the Community, or in any other manner no longer complies with requirements of article 7, the member state must take appropriate measures to ensure compliance or take the necessary measure to ensure that the SE is liquidated.
Council Regulation (EC) No 2157/2001[3] of 8 October 2001 on the Statute for a European company (SE).
Council Directive 2001/86/EC[4] of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees.
See also: Europa's collection of press releases, regulations, directives and FAQs on the European Company Statute.[5]
UK Statutory Instrument 2004 No. 2326. The European Public Limited-Liability Company Regulations 2004[6] came in to force on 8 October and give effect to The European Company Statute Regulation, (Council Regulation EC no.2157/2001) which gives the framework for a new form of company, the European Public Limited-Liability Company or Societas Europaea (SE). The regulations are available in full text on the HMSO website.
UK Statutory Instrument 2004 no. 2407. The European Public Limited-Liability Company (Fees) Regulations 2004[7] also came into force on 8 October 2004. An explanatory memorandum[8](PDF, 2 pages 23KB) on the Fees Regulations describe them as setting out "the fees payable in connection with the services and facilities provided by the DTI in respect of a new form of company, the European Public Limited-Liability Company or 'Societas Europaea' (SE)."
The regulation is complemented by the Council Directive supplementing the Statute for a European Company with regard to the involvement of employees (informally "Council Directive on Employee Participation"), adopted October 8, 2001.[9] The directive establishes rules on worker involvement in the management of the SE.
EU member states differ in the degree of worker involvement in corporate management. In Germany, most large corporations are required to allow employees to elect a certain percentage of seats on the supervisory board. Other member states, such as the UK, have no such requirement, and furthermore in these states such practices are largely unknown and considered a threat to the rights of management.
These differing traditions of worker involvement have held back the adoption of the Statute for over a decade. States without worker involvement provisions were afraid that the SE might lead to having such provisions being imposed on their companies; and states with those provisions were afraid they might lead to those provisions being circumvented.
A compromise, contained in the Directive, was worked out as follows: worker involvement provisions in the SE will be decided upon by negotiations between employees and management before the creation of the SE. If agreement cannot be reached, provisions contained in the Directive will apply. The Directive provides for worker involvement in the SE if a minimum percentage of employees from the entities coming together to form the SE enjoyed worker involvement provisions. The Directive permits Member States to not implement these default worker involvement provisions in their national law, but then an SE cannot be created in that member state if the provisions in the Directive would apply and negotiations between workers and management are unsuccessful.
Definition of employee participation: it does not mean participation in day-to-day decisions, which are a matter for the management, but participation in the supervision and strategic development of the company.
Employment contracts and pensions are not covered by the Directive. With regard to occupational pension schemes, the SE is covered by the provisions laid down in the proposal for a directive on institutions for occupational schemes, presented by the Commission in October 2000, in particular in connection with the possibility of introducing a single pension scheme for all their employees in the European Union.
Two approaches have been attempted to solve the problems cited above. One approach is to harmonize the company law of the member states. This approach has had some successes, but after thirty years only limited progress has been made. It is difficult to harmonize widely different regulatory systems, especially when they reflect different national attitudes to issues such as worker involvement in the management of the company.
The other approach is to construct a whole new system of EU company law, that co-exists with the individual company laws of the member states. Companies would have the choice of operating either under national regulations or under the EU-wide system. However, this approach has been only somewhat more effective than the harmonization approach: while states are not as concerned about having foreign traditions of corporate governance imposed on their companies, which the harmonization approach could well entail; they also wish to ensure that the EU-wide system would be palatable to the traditions of their national companies, so that they will not be put at a disadvantage compared to the other member states.
The European Company Statute represents a step in this direction, albeit a limited one. While it establishes some common EU rules on the SE, these rules are incomplete, and the holes in the rules are to be filled in using the law of the member state in which the SE is registered. This has been due to the difficulties of agreeing on common European rules on these issues.
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