European Company Statute
Encyclopedia
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. , at least 702 registrations have been reported. 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
.
See "The European Company all over Europe" De Gruyter Recht - Berlin for a general overview of the European process.
SEs can be created in the following ways:
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:
Council Directive 2001/86/EC 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.
UK Statutory Instrument 2004 no. 2407. The European Public Limited-Liability Company (Fees) Regulations 2004 also came into force on 8 October 2004. An explanatory memorandum(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)."
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.
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.
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, and transfer to other member states. , at least 702 registrations have been reported. Examples of companies registered as a European Company are Allianz SE
Allianz
SE is a global financial services company headquartered in Munich, Germany. Its core business and focus is insurance. As of 2010, it was the world's 12th-largest financial services group and 23rd-largest company according to a composite measure by Forbes magazine.Its Allianz Global Investors...
, BASF SE
BASF
BASF SE is the largest chemical company in the world and is headquartered in Germany. BASF originally stood for Badische Anilin- und Soda-Fabrik . Today, the four letters are a registered trademark and the company is listed on the Frankfurt Stock Exchange, London Stock Exchange, and Zurich Stock...
, Strabag SE
Strabag
Strabag is a European construction company based in Villach, with its headquarters in Vienna, Austria). It is the largest construction company in Austria and one of the largest construction companies in Europe...
, Gfk SE
GfK
The GfK Group, established in 1934 as Gesellschaft für Konsumforschung is Germany's largest market research institute, and the fourth largest market research organisation in the world, after Nielsen Company, Kantar Group, and IMS Health...
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
Employee Involvement Directive
The Employee Involvement Directive is an EU Directive concerning the right of workers to elect members of the board of directors in a European Company. It is a supplement to the European Company Regulation.-Content:...
which sets rules for participation by employees on the company's board of directors
Board of directors
A board of directors is a body of elected or appointed members who jointly oversee the activities of a company or organization. Other names include board of governors, board of managers, board of regents, board of trustees, and board of visitors...
. There is also a statute allowing European Cooperative Societies
European Cooperative Society
The European Cooperative Society is, in company law, a European co-operative type of company, established in 2006 and related to the European Company. European Cooperative Societies may be established, and may operate, throughout the European Economic Area...
.
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
Official Journal of the European Union
The Official Journal of the European Union is the official gazette of record for the European Union . It is published every working day in all of the official languages of the member states. Only legal acts published in the Official Journal are binding.It was first published on 30 December 1952 as...
.
Formation
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.
SEs can be created in the following ways:
- By merger of national companies from different member states
- By the creation of a joint venture between companies (or other entities) in different member states
- By the creation of a SE subsidiary of a national company
- By the conversion of a national company into an SE
Minimum capital
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)).Registered office
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.Registration and liquidation
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.Statutes
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
Supervisory board
A supervisory board or supervisory committee, often called board of directors, is a group of individuals chosen by the stockholders of a company to promote their interests through the governance of the company and to hire and supervise the executive directors and CEO.Corporate governance varies...
. 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:
- any investment project requiring an amount more than the percentage of subscribed capital;
- the conclusion of supply and performance contracts where the total turnover provided for therein is more than the percentage of turnover for the previous financial year;
- the raising or granting of loans, the issue of debtDebtA debt is an obligation owed by one party to a second party, the creditor; usually this refers to assets granted by the creditor to the debtor, but the term can also be used metaphorically to cover moral obligations and other interactions not based on economic value.A debt is created when a...
securitiesSecurity (finance)A security is generally a fungible, negotiable financial instrument representing financial value. Securities are broadly categorized into:* debt securities ,* equity securities, e.g., common stocks; and,...
and the assumption of liabilities of a third party or suretyship for a third party where the total moneyMoneyMoney is any object or record that is generally accepted as payment for goods and services and repayment of debts in a given country or socio-economic context. The main functions of money are distinguished as: a medium of exchange; a unit of account; a store of value; and, occasionally in the past,...
value in each case is more than the percentage of subscribed capital; - the setting-up, acquisition, disposal or closing down of undertakings, businesses or parts of businesses where the purchase price or disposal proceeds account for more than the percentage of subscribed capital;
- the percentage referred to above is to be determined by the Statutes of the SE. It may not be less than 5% nor more than 25%.
Annual accounts
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.Taxation
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
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.European Union
Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE).Council Directive 2001/86/EC 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.
United Kingdom
UK Statutory Instrument 2004 No. 2326. The European Public Limited-Liability Company Regulations 2004 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 also came into force on 8 October 2004. An explanatory memorandum(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)."
Employee participation
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. 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
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.Participation
- If the two parties do not reach a satisfactory arrangement, a set of standard principles set out in the Annex to the Directive becomes applicable.
- Several models of participation are possible: firstly, a model in which the employees form part of the supervisory board or of the administrative board, as the case may be; secondly, a model in which the employees are represented by a separate body; and finally, other models to be agreed between the management or administrative boards of the founder companies and the employees or their representatives in those companies, the level of information and consultation being the same as in the case of the second model. The general meeting may not approve the formation of an SE unless one of the models of participation defined in the Directive has been chosen.
- The employees' representatives must be provided with such financial and material resources and other facilities as enable them to perform their duties properly.
- With regard to a European company formed through a merger, the standard principles relating to worker participation will apply where at least 25% of the employees had the right to participate in decisions before the merger. Here a political agreement proved impossible until the Nice summit in December 2000. The compromise adopted by the Heads of State or Governments allowed a Member State not to apply the Directive to SEs formed from a merger, in which case the SE could not be registered in the Member State in question unless an agreement had been concluded between the management and employees, or that no SE employee had the right of participation before the formation of the SE.
Employment contracts and pensions
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.Development
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.
See also
- European Cooperative SocietyEuropean Cooperative SocietyThe European Cooperative Society is, in company law, a European co-operative type of company, established in 2006 and related to the European Company. European Cooperative Societies may be established, and may operate, throughout the European Economic Area...
- European Economic Interest GroupingEuropean economic interest groupingA European Economic Interest Grouping is a type of legal entity created on 1985-07-25 under European Community Council Regulation 2137/85...
- European Private CompanyEuropean Private CompanyA European Private Company is a legal form for a limited liability company that is currently being proposed by the European Commission to be introduced across the European Union. It forms a company of limited liability, similar to the English limited company, the Austrian or the German GmbH, the...
- Types of business entity
External links
- European Company Network working papers
- http://www.debevoise.com/files/News/50a57d33-f909-48f0-a11f-f7677f6f0231/Presentation/NewsAttachment/00003a12-5e47-4f1b-9211-04c22790ceee/RapportNLenoirenversionanglaise.pdfNoelle LenoirNoelle LenoirNoëlle Lenoir, born on April 27, 1948 in Neuilly-sur-Seine, Hauts-de-Seine, is a French stateswoman.-Career:Noelle Lenoir graduated from the Institut d'Études Politiques de Paris and the Paris Law School and has been a professor in each of these institutions...
's 2007 report on the SE statute, commissioned by the French Minister of Justice] - Frequently-asked questions (the EU website)
- Les avocats
- European Company Network papers
- Website of the European Trade Union Institute on employee involvement in SEs and information on SEs registered
- "The European Company: attractiveness and opportunities in times of crisis" blog of Maître Catherine Cathiard, Avocat (Free translation of the article "La société européenne : intérêts et opportunités en temps de crise" Catherine Cathiard, Avocat et David Zeitoun, directeur juridique groupe, Unibail-Rodamco, DECIDEURS Stratégie Finance Droit n°108, sept. 2009)
- "The European Company (SE): good reasons to adopt the SE status" blog of Maître Catherine Cathiard, Avocat (article in English)
- "La pratique du droit européen des sociétés - analyse comparative des structures et des fusions transfrontalières", JOLY Editions, 2010 (presentation of the book written by Catherine Cathiard and Arnaud Lecourt)
- "La société européenne" (in French by Catherine Cathiard for TVDMA, the first WebTV of Law & Management Business and Entreprises)
- "Les structures européennes : Principales caractéristiques et Intérêts pour les entreprises" (the european corporate entities: main characteristics and interests for enterprises) by Catherine Cathiard and Arnaud Lecourt, DROIT DES SOCIÉTÉS - REVUE MENSUELLE LEXISNEXIS JURISCLASSEUR - AOÛT-SEPTEMBRE 2011 (French)