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A European Private Company Statute
Progress must be made to improve access for small and medium-sized enterprises (SMEs) to the Single Market and to promote their development in the European Union (EU). The Council proposes the adoption of a European Private Company Statute enabling companies to be set up across the Community, under simplified conditions.
Proposal for a Council Regulation of 25 June 2008 on the Statute for a European Private Company.
This Proposal aims to establish a European Private Company Statute (SPE) with limited liability, in order to create a simplified legal form to encourage the setting up and running of small and medium-sized enterprises (SMEs) in the Single Market.
The SPE can be formed ex nihilo by one or several natural persons and/or legal entities. It may also be formed by transforming, merging or dividing existing companies. The latter can have a statute governed by national or Community law, such as those recorded as being a European Company (Societas Europeaea) or SE.
Capital and shareholders
The minimum capital of an SPE can be 1 euro. It is divided into unquoted shares, which cannot be offered to the public or negotiated on a regulated market. Each shareholder is only liable up to the amount for which they have subscribed or agreed to subscribe.
The management body establishes a list of shareholders, which constitutes proof of ownership for the shares. All shareholdings must be notified to the management body which registers them in the list of shareholders. The procedure of excluding a shareholder is subject to a resolution of the shareholders which then leads to a request made by the SPE to the court having jurisdiction. Similarly, shareholders can withdraw from the SPE in order to protect their interests.
The registered office and the central administration or main establishment of the SPE are established in the European Community. The company is registered in the Member State in which the statutory registered office is located. Its subsidiaries are governed by the national law where they are established. An SPE is not bound to establish its central administration or main establishment in the Member State in which the registered office is located. Administrative formalities and registration costs must be reduced as much as possible.
The registered office of the SPE may be transferred to another Member State, without having any consequences on the legal personality or on the rights and obligations created by contracts concluded previously. The transfer takes effect on the date of registration in the host Member State.
The shareholders determine the Articles of Association of the SPE, according to the matters listed in Annex I of the Proposal. Matters not covered by the Articles of Association are subject to the national law of the Member State in which the SPE has its registered office.
The management body is responsible for the management of the SPE, and exercises all prerogatives that are not held by shareholders.
Shareholders are responsible for the organisation of the SPE. They adopt resolutions that are binding upon shareholders, the management body and the supervisory body of the SPE and on third parties.
Accounts management and the preparation, filing, auditing and publication of accounts shall be subject to national law.
Methods for participation are subject to the regulations of the Member State where the SPE has its registered office. Directive 2005/56/EC shall apply in the case of cross-border mergers. In addition, the Proposal for the Regulation provides for a series of specific regulations on this subject if the registered office of a SPE is transferred to another Member State. This is to avoid pre-existing rights concerning employee participation being circumvented.
The existing forms of Community companies are adapted to large enterprises. European SMEs and individuals must therefore benefit from a new form of simplified private company. The Proposal is part of the Commission initiative called the “Small Business Act” (SBA) to encourage the development of SMEs in Europe.
In 2008, SMEs represented 99% of enterprises in the EU, whereas only 8% of them carried out cross-border commercial activities and 5% have subsidiaries or joint companies abroad.
REFERENCES AND PROCEDURE
COM(2008) 396 final