EN    EN EN 
 
EN    EN  EUROPEAN COMMISSION 
Brussels, 17.11.2010 
SEC(2010) 1391 final 
  
COMMISSION STAFF WORKING DOCUMENT 
Accompanying document to the 
 
Report from the Commission to the European Parliament and the Council on the 
application of Council Regulation 2157/2001 of 8 October 2001 on the Statute for a 
European Company (SE) 
 
COM(2010) 676 
 
EN 2   EN 1. INTRODUCTION  
The European Company St atute ("SE Regulation")1 was adopted on 8 October 2001 after 
more than 30 years of negotiations in the Council.  It offered the possibility to create a new 
legal form called a European Company, also re ferred to as an SE after its Latin name Societas 
Europaea . The main idea behind the SE Regulati on was to make it easier for companies and 
groups with a "European" dimension to combine,  plan and carry out the reorganisation of 
their business on an EU scale. 
Article 69 of the SE Regulation requires the Commission to present a report on its application 
including proposals for amendments, where appropriat e, five years after th e entry into force.  
This Staff Working Document accompanies the Commission Report. It provides a description 
of the inventory of SEs and the implementation of the Member State options contained in the 
SE Regulation, as well as more detailed descrip tion of the practical pr oblems encountered in 
the course of setting up or running an SE. 
2. APPLICATION OF THE SE STATUTE  
2.1. The inventory of SEs and their characteristics2 
As of 25 June 2010, 595 SEs were registered in the EU/EEA Member States. The number of 
SEs increased in an exponen tial way from 2004 to 2008. In 2009 fewer new SEs were created 
than in 2008, but in 2010 the trend was again an  increased number of new SEs created. The 
number of new SEs set up each year from 2004 to mid-2010 was 9 in 2004, 16 in 2005, 35 in 
2006, 88 in 2007, 179 in 2008, 156 in 2009 and 112 in 2010 as at 25 June3. Reportedly 6 SEs 
have been liquidated4 and 1 SE converted to a nationa l legal form (German GmbH).  
For the purpose of the inventory of SEs, four ty pes of SEs can be distin guished: (1) SEs with 
more than a few employees; (2) SEs that have  activities but no or ve ry few employees; (3) 
SEs that seem to be operating but on which there is no information on the number of 
employees; (4) shelf SEs, i.e. SEs with no acti vities or employees th at are usually set up by 
professional company providers with the purpose  of selling them afterwards to interested 
buyers. SEs mentioned in points (1)-(3) are hereaf ter referred to as "non-shelf" SEs. The 
presentation of the inventory of  SEs below is supplemented with more detailed information in 
Annexes 1 to 6.  
                                                 
1 Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European Company 
(SE). 
2 Facts and figures are extracted either from the da tabase "The European Company (SE) Fact sheets" 
(hereinafter: "ETUI database") available at http ://ecdb.worker-participation.eu/ (this database is 
managed and updated by the Research department of  the European Trade Union Institute (ETUI), which 
is financially supported by the EU) or from the "Study on the operation and the impacts of the Statute 
for a European Company" of 2009, (hereinafter: "E&Y study") commissioned by the Commission to 
Ernst & Young (the complete study can be found at: 
http://ec.europa.eu/internal_market/company/se/index_en.htm). 
3 The figures for the years 2004 to 2008 are extracted from the E&Y study. The data for 2009 and 2010 
rely on the ETUI database. 
4 2 German, 2 from Cayman Islands, 1 from UK, 1 Latvian. 
 
EN 3   EN As of 25 June 2010, SEs were registered in 21 ou t of the 30 EU/EEA Member States, with the 
vast majority (around 70%) in the Czech Republic  or Germany. Very few SEs were registered 
in Southern European Member States, with the exception of Cyprus. Around 10% of the SEs 
were listed companies5. Approximately 25% of all SEs had five or more employees of which 
half were registered in Germany. 6% of all SEs, most of them registered in the Czech 
Republic, had less than 5 employees. 14% of a ll SEs were operating but seemed to have no 
employees. This type of SEs accounted for at l east half of the SEs in  the Netherlands, the 
United Kingdom, Ireland, Denmark, Poland and Sp ain. Around 42% of all SEs seemed to be 
operating but no information was available on the number of employees. A large majority of 
them were registered in the Czech Republic  and a substantial percentage in France, 
Luxembourg, Cyprus, Belgium and Liechtenstein. The remaining 13% were shelf SEs not yet 
activated6 as at 25 June 2010. 95% of these shelf SEs were registered in the Czech Republic, 
Germany or Slovakia. Further 36% of all SEs were originally set up as shelf SEs but had been 
activated7. 
49 SEs had transferred their registered office  from one Member State to another. Whereas 
the United Kingdom (13) and Cyprus  (6) were the most frequently chosen destinations, the 
largest number of SEs moved away from the Ne therlands (17), Luxem bourg (9), Germany (7) 
and the Nordic countries (6). Almost all SEs th at had transferred their registered office were 
operating SEs. Most of them had no employees, but  at least 20% of the transfers involved SEs 
with 5 or more employees. More than 80% of the SEs of which activities were known were 
active in the services sector (55% in the financ ial services sector alone) and 8% in the metal 
sector. The trend shows an increase in  seat transfers from year to year8.  
Concerning the method of creation  of an SE the trends vary considerably from one Member 
State to the other and depend on whether or not setting up of sh elf SEs is excluded from the 
calculation of statistics . If shelf SEs are excluded, setti ng up an SE through conversion of a 
public limited-liability company was in genera l the most frequently used method (40%), 
followed by a cross-border merger between pub lic limited-liability companies (25%), setting 
up a common subsidiary SE (18%), setting up a SE subsidiary by an existing SE (10%) and 
setting up a holding SE (7%)9.  
Regarding the legal form of the founding companies , apart from public limited liability 
companies, also private limited-liability compan ies have participated in the creation of SEs 
when it was legally possible (i.e. creation of  a holding SE and a common subsidiary SE). 
Private limited-liability companies,  of which a majority were German, participated in almost 
60% of the cases of the creati on of (non-shelf) holding SEs and close to 80% of the cases of 
the establishment of (non-shelf) common subsidiary SEs10. Private limited-liability companies 
have also participated in setting up SEs th rough merger and conversion, but only after first 
having transformed into a public  limited-liability company11. Other types of companies were 
seldom founders of SEs.  
                                                 
5 E&Y study, page 200. 
6 i.e. had been sold and started to conduct activity. 
7 See Annex 1 for more details on the distribution of different types of SEs across the EU/EEA Member 
States. 
8 See Annex 2 for more details on the inventory of seat transfers. 
9 See Annex 3 for more details. 
10 These findings are extracted from the data contained in Appendix 2.3. of the E&Y study. 
11 According to several German source s this is quite common in Germany. 
 
EN 4   EN Concerning the nationality of the founding companies  there is a trend that in most cases 
where a German company participated in th e founding of a non-shelf SE, the SE would be 
registered in Germany12. Only in 2% of all cases had an SE been set up in a Member State 
where neither of its founding companies was registered. 
The SE is typically a corporate form chosen  by groups of companies. 75% of the non-shelf 
SEs were parent companies, whereas only aro und 20% of them were subsidiaries and less 
than 5% were independent companies13.  
The fields of activities  for non-shelf SEs mirror to a large extent the sizes of the economic 
sectors in the EU. However, there were even more SEs in the services sector as a whole 
compared to the economy at large (85% vs. 72% ). On the other hand, there were fewer SEs, 
for instance, in the construction sector compar ed to the economy at large (2% vs. 6%). The 
most dominant field of SEs' activities were finance and insurance (31%) and other services 
(27%). Other fields of activities were real estate (14%), manufacturing (12%) and wholesale 
and retail trade (11%)14. 
Concerning the board structure , in almost all Member States (except the Netherlands and 
Spain) a majority of non-shelf SEs had c hosen the same board structure (one-tier15 or two-
tier16) as the one available to or commonly us ed by the national public limited-liability 
companies in that Member State. Since most SEs were set up in Member States where the 
two-tier board structure is the most common syst em, the result is that a majority of SEs have 
also chosen a two-tier board structure. Howeve r, a one-tier board structure was chosen more 
often in Member States with a two-tier board system than the contrary. Furthermore in all 
Member States that allow both the one- and two-tier system for national public limited-
liability companies, a majority of the SEs had c hosen the one-tier system. In general, very few 
SEs are set up in countries that  already allow both systems. The one-tier board structure was 
preferred by a majority of th e SEs without employees and by ar ound 40% of the SEs with 5 or 
more employees17. Most often the size of the board remain ed the same (in the vast majority of 
cases the board before and after the SE crea tion was composed of 2-5 members). In cases 
where the board's size had changed, the number of board members had more often increased than decreased
18.  
Almost 70% of all SEs, most of th em shelf SEs, were created with a subscribed capital  equal 
to the minimum capital requirement of €120,000. Ar ound one third of all non-shelf SEs, most 
of which came from Germany, were set up w ith an initial subscribed capital of above €10 
million. 8% of the SEs had raised their s ubscribed capital after their formation19.  
The average balance sheet total  of non-shelf SEs was €524 million, the highest average 
coming from German SEs (€1,586 million). In countries like Belgium and Slovakia the 
average balance sheet total was much lower (€17 million and €4 million respectively). Based 
                                                 
12 According to the information in the "Factsheets on established SEs" of the "Study on the operation and 
the impacts of the Statute for a European Comp any" this was true in 57 out of 62 cases. 
13 E&Y study, p. 206. 
14 E&Y study; p. 183-184. 
15 A board structure with only one administrative board. 
16 A board structure comprising a management board and a supervisory board. 
17 See Annex 4 for more details on  the choice of board structure. 
18 E&Y study, p. 199. 
19 See Annex 5 for more details. 
 
EN 5   EN on the information on German SEs, the operating SEs with five or more employees had an 
average balance sheet total double th e size of the overall average.  
The average net turn over  of non-shelf SEs was €366 million, the highest average coming 
from the German SEs (€1,351 million). Several SEs had no net turnover according to the 
annual accounts20.  
Most SEs were set up without employees , mainly due to the fact that around half of all SEs 
were originally set up as shelf SEs. Around 34% of all non-s helf SEs were set up with more 
than 250 employees. Half of these SEs were German21. Due to insufficient data no comment 
can be provided on the developments as regard s the number of employees  after the formation 
of the SEs. 
2.2. The SE legislation applicable  in the different Member States 
Council Regulation 2001/2157/EC on the Statute fo r a European Company (SE) contains not 
only provisions that are directly applicable in all Member States22, but also cross-references to 
the national legislation applicable to publ ic limited-liability companies ("national 
companies")23 as well as several Member State options24. As a result the legislation applicable 
to SEs varies, sometimes considerably, from one Member State to the other. 
According to the external study con ducted on behalf of the Commission25 in general Member 
States have implemented the SE options in such a way as to align the SE rules with the rules 
for national companies. However, for some Member  States there are more exceptions to this 
trend than for others. An analysis of the flexibility26 of the rules applicable to the SE 
                                                 
20 These were mainly SEs without employees. 
21 See Annex 6 for more details. 
22 For example Articles 2 and 3(2) contain an exclusive list of the methods possible to create an SE. 
23 For example Article 24(1) of the SE Regulation, rega rding the protection of the interests of creditors in 
companies participating in a merger to set up an SE. 
24 For example Article 40(3) of the SE Regulation, concerning the minimum number of members in the 
supervisory organ. 
25 The "Study on the operation and the impacts of the Statute for a European Company" analyses the 
references and options contained in the SE Regulation, which concerns rules related to (1) the formation of an SE; (2) the transfer of the registered office of an SE; (3) the management/organisation of an SE; 
and (4) other specific company law issues such as the options on requiring the registered office and 
head office in the same place and on  the expression of the SEs capital when the SE is registered in a 
Member State located outside the Euro-zone.  
The analysis performed in the Study includes information on whether or not the different Member 
States have implemented the different options, and a description of the relevant legislation applicable to SEs. It also includes an assessment on the main di fferences between the Member States and on the 
flexibility of the relevant legislation compared both to other Member States’ legislation (inter Member 
States analysis) and to the legislation applicable to national public limited-liability companies (intra 
Member States analysis). The analysis covered 25 out  of the 30 EEA Member States. Ireland, Lithuania, 
Malta, Iceland and Liechtenstein were not included. 
26 Flexibility was assessed for each op tion by comparing on one side th e rule applicable to the SE 
resulting from the implementation (or non-implementation) of the option and on the other side the 
equivalent rule applicable to national public limited-liability companies. Take for example the option in 
Article 43(2) (an option to fix a minimum and maximum number of members of the administrative 
organ of the SE) if a Member State has no fixed number applying to their national companies but 
nonetheless chose to have such a rule for SEs registered in their territory, the rule applicable to the SE would be assessed "less flexible" than the national rule. The assessment of « flexibility » was conducted 
on the basis of a majority shareholder perspective. If another perspective had been chosen, e.g. creditor 
or employee perspective, the assessment of « flexibility » would in some cases have been different. 
 
EN 6   EN compared to the rules governing the national companies  shows that the United Kingdom, 
Denmark, Belgium and Greece have adopted the mo st flexible approach for the SE, while 
Romania, Bulgaria, Slovenia, Portugal, France a nd Cyprus rate lowest. A comparison of this 
rating with the distribu tion of SEs shows that only for the United Kingdom (23 SEs), Belgium 
(9 SEs), Portugal (1 SE), Bulgaria, Romania a nd Slovenia (all with no SE) there may be some 
positive correlation. On the other hand, the rela tively high flexibility rating for Greece (no 
SE), Denmark (2 SEs) and to some extent Spai n (1 SE) and Italy (no SE) does not match with 
the low number of SEs in those countries, especi ally if compared to e.g. France (19 SEs) and 
Cyprus (12 SEs) who have a low rating and a relatively high number of SEs. 
The study also assessed the flexibility of  the SE rules in each Member State compared to the 
SE rules in the other Member States . This assessment was based on how the Member States 
implemented the options provided for in the SE Statute and on the nationa l legislation in cases 
where the SE Statute explicitly refers to it. Th e analysis indicates that Luxembourg, Italy and 
the United Kingdom have the most flexible rules for SEs and Cyprus, Germany, Portugal, 
Sweden, France and the Czech Republic have the least flexible rules compared to the other 
Member States. A comparison of this rating with  the distribution of SEs shows that only for 
the United Kingdom (23 SEs), Lu xembourg (16 SEs), Portugal (1 SE) and to a le sser extent, 
the Netherlands (24 SEs), Slovakia (22 SEs) and Belgium (9 SEs) is there some positive 
correlation. On the other hand, for the Czech Re public (281 SEs), Germany (134 SEs), France 
(19 SEs) and Cyprus (12 SEs), the correlation is rather negativ e and, therefore, the rating can 
not provide any explanation for the distribution of SEs in these Member States. 
The different implementation of the options a nd the different national company law rules 
applicable to SEs could thus be one amongst othe r explanations for the distribution of SEs in 
certain Member States. However, the results of  the above legal analysis should be looked at 
taking into account the following limitations : (i) the method of assessing flexibility27; (ii) the 
fact that the aggregated legal analysis does not capture the rela tive importance of the analysed 
rules for companies28; (iii) the scope of the rules analyse d, e.g. it does not include all company 
law rules and other areas such as tax, insolvency, employee invol vement or social security 
law. Moreover, the legal analysis does not take  into account any non-legal drivers that could 
partially explain the distribution of SEs across th e Member States, e.g. differences in the value 
of the European image for companies in different Member States or differences in the average size of national companies.  
Close to half of the respondents to the public consultation stated  that the content of national 
company law rules applicable to SEs does not seem to be the actual driver for choosing the SE form, however, according to many of them other rules such as fiscal law, labour law or the 
requirement on minimum capital could be importan t in assessing the attractiveness of national 
provisions applicable to SEs. 
                                                
 
27 For some of the rules analysed it is not very clear which variety of implementation should be considered 
the relatively more flexible.  
28 For instance, if some companies find the rules on the management/organisation of the SE to be more 
important than the other rules analys ed and if, as a result, differences in the Member States' rules on the 
management/organisation of the SE could (partially ) explain the distribution of SEs across Member 
States, then the aggregated analysis  would not capture this trend. In fact the Czech Republic and Italy 
have the most flexible rules in that area (both in th e intra and inter Member St ate analysis). This could 
thus possibly partially explain the many SEs in the Czech Republic but not the 0 SE in Italy. 
 
EN 7   EN 3. PRACTICAL PROBLEMS IN THE COURSE OF SETTING UP OR RUNNING AN SE29 
In addition to the main problems highlighted in the Report, a more detail ed presentation of the 
practical problems identified by the cons ulted stakeholders is provided below. 
3.1. Practical problems related to setting up of an SE  
3.1.1.  Limited methods of setting up an SE 
• No possibility to form an SE by way of cross-border division . It is argued that division 
is an obvious instrument for restructurings  both within and acr oss the boarders of a 
Member State and that a cross-border divisi on whereby an SE will be formed would be 
easier and less time-consuming than the alternatives that already exist30. It is also argued 
that although there is no legislation at EU level on cross-border divisions, the jurisprudence 
of the European Court of Justice has alrea dy made it possible to ca rry out a cross-border 
division when the companies involved are governed by the laws of different Member 
States31. 
• Only public limited-liability companies can be transformed into an SE and 
participate in a merger to set up an SE . This makes the SE form more easily available 
only for larger entities, but makes it more  difficult for smaller entities which would 
normally use a private limite d-liability company form. 
3.1.2.  The cross-border requirement 
• The period of at least two years  during which the promoting or forming companies have 
had a subsidiary company or a branch in anot her Member State is considered an obstacle. 
3.1.3.  The minimum capital requirement 
• The high level of the minimum capital requirement  (€120,000) is a disincentive for 
SMEs to adopt the SE particularly in some  Member States where SMEs account for about 
99% of all companies (e .g. Italy and Portugal). 
3.1.4.  The date of creation of the SE 
• For a conversion into an SE, delays between the shareholders’ meeting approving the 
conversion and the registration of the SE in the registrar  of the commercial court can 
be a problem, especially for listed companie s (particularly when listed on several stock 
exchanges) where the time factor  is of vital importance. Furt hermore, the provisions of the 
Regulation differ from some national provisions,  e.g. the effective date of conversion of 
                                                 
29 The information is based on the public consultation on the Ernst&Young study 
(http://ec.europa.eu/internal_market/company/se/index_en.htm). 
30 The current alternatives are: (i) national division and a subsequent cross-border merger, which can be 
carried out on the basis of the SE Regulation or th e Cross-Border Merger Di rective and the national 
laws implementing this directive and – if the cross- border merger is carried out on the basis of the 
Cross-Border Merger Directive – finally a conversion  of the acquiring company into an SE, or (ii) a 
national division, followed by a conversion of the acquiring company into an SE and a subsequent 
transfer of the registered office of the SE.  
31 See the "Sevic" Case (C-411/03). 
 
EN 8   EN French national companies can be the date of the shareholders’ meeting approving the 
conversion. 
3.1.5.  The procedure on employee involvement in the SE 
• The requirement to conclude the negotiations on employee involvement before the 
registration of the SE  was mentioned by several respo ndents as a practical problem, 
because it creates substantial delays and uncerta inty in the registration of the SE (3 months 
to set up the Special Negotia tion Body (hereinafter: ‘SNB’) and then potentially 6-12 
months to negotiate an agreement). It can especially create substantial problems in a merger scenario. 
• Registration of a ‘shelf’ SE . The SE Statute does not clearl y regulate a situation where 
neither the SE nor any of the participati ng companies has employees at the time of 
establishing the SE. A cl arification in the SE Statute is suggested. 
As well as the following ones conc erning directly the SE Directive:
  
• The rules do not ta ke into account if the group  on a higher level than the SE already has a 
supranational employee involvement body , e.g. a European Works Council. 
• National law is governing the rules for the establishment of the SNB and SE works 
council. However, the respective national rules differ considerably and there is uncertainty 
on how to calculate the number of employees  relevant for the procedure. It is especially 
complex when the participating companies are large groups with several interdependent 
subsidiaries and branches in different countries.  
• Limited number of employees (in the case of merger) . The rules with respect to 
employee participation upon the formation of an SE by merger also have to be followed in 
case only a limited number of employees are in volved. This is not necessarily the case for 
a cross-border merger based on the Cross-Border  Merger Directive. In  such a case, said 
rules will in some cases only have to be followe d if certain thresholds are met. As a result, 
parties will have a strong preference for such a cross-border merger and will not opt for the 
use of an SE.  
• Election of the member of the SNB . In some cases, it could be  possible that  none of the 
employees is eligible or wants to be elec ted a member of the SNB. In that case, 
negotiations cannot be started a nd, due to its non-exi stence, the SNB also  cannot decide to 
open negotiations or to terminate negotiations  already opened and to rely on the rules on 
the information and consultation of employees in force in the Member States where the SE has employees. The absence of an agreement on arrangements for employee involvement or the absence of a decision not  to open negotiations or to terminate negotiations would be 
an obstacle in the registration of the SE. 
3.1.6.  Problems stemming from the lack of clar ity and complexity of the SE Statute 
(interpretational issues) 
(i) Definition of a subsidiary: 
• Definition of subsidiary (Article 2 of the SE Regulation) . Article 2(3) and 2(4) make a 
reference to a ‘subsidiary’ but  the Regulation contains no de finition of this term. As a 
 
EN 9   EN result the Member States have different definitions of a subs idiary. It is not clear if a 
subsidiary could also be a subsid iary of the company's subsidiary.  
(ii) Formation of an SE through cross-border merger: 
• Article 17 of the SE Regulation in relation to Article 37(3). Article 17(2)(a) allows for the 
formation of an SE by means of a merger by acquisition. A relevant issue in practice is 
whether or not it is possible to do  simultaneously a merg er by acquisition and a 
transfer of the seat  of the acquiring company to another Member State than the Member 
State of the acquiring company.  
• Article 18 of the SE Regul ation. It is not clear which national rules apply to the 
formation of an SE by merger . Article 18 refers to “the provisions of the law of the 
Member State to which it is subject that apply to mergers of public limited liability 
companies in accordance with Directive 78/855/EEC  (the ‘Third Directive’)”. It is unclear 
if the provisions of the app licable national laws on merger s which are not based upon the 
Third Directive (or even may deviate from it, if the Third Directive provides so) will also 
apply to an SE merger or whether only the provisions of national laws on mergers which 
are based upon and are in accordance with the Third Directive will apply. Furthermore, after the entry into force of the SE Regulati on, also the Cross-Border Merger Directive 
became effective. Through Article 10 of the SE Regulation, the provisions of the Cross-
Border Merger Directive and the applicable national laws in which this Directive is 
implemented are also applicable to a formati on of an SE by a cross-border merger. It is 
uncertain to which extent such provisions will have to be applied and similar questions as 
to the relationship of the national laws  on mergers which are based upon the Third 
Directive can arise. 
• Article 20 par 1(b) of the SE Regulation. The determination of th e share exchange ratio 
(merger) . Within the Member States different (mandatory) methods for determining the 
value of the companies are used (e.g. in Ge rmany the capitalized earnings valuation 
method prevails, whereas in other countries valuation methods based on multiples prevail). 
The differences in the valuation methods may l ead to different results which could lead to 
serious difficulties in determining the applicab le share exchange ratio for the purposes of 
merger. In practice absorbing companies may ne ed to acquire 100% of the share capital of 
the absorbed companies before conducting a merger. 
• Article 25 par 2 of the SE Regulation. The Regulation does not provide for a minimum 
content of the certificate of legality to be i ssued by the competent authority  (merger) . 
This situation is a source of problems for th e authority that should receive the certificate 
issued by authorities from other Member States for each merging company. The same 
applies to the report of the independent expert examining the draft terms of merger (Article 22 of the SE Regulation). 
• The relation between the form ation of an SE through a cross-border merger  and Article 
37(6) of the SE Regulation (which requires an expert report certifying, in the case of 
conversion  into an SE, that the company has net assets  at least equivalent to its capital plus 
the non-distributional reserv es). In an Austrian case of se tting up of an SE by cross-border 
merger it was disputed whether or not such an expert report was also required on top of the 
merger requirements. Although it could seem contra ry to the intentions of the legislator the 
Austrian court decided that the formation by cross-border merger entails also a 
 
EN 10   EN conversion from a public limited liability company into an SE and therefore the expert 
report mentioned in Article 37(3) was required in the particular case.  
• Language and translation requirements . Such requirements increa se the costs of setting 
up an SE through a cross-border merger. Anot her problem mentioned by one respondent is 
that some local laws apparent ly do not allow bilingual draft terms of merger, and if the 
laws allow bilingual draft terms of merger notarisation requiremen ts can be another 
problem: it can be difficult to find a notary who will notarise bilingual terms of merger if 
the notary does not understand both languages. 
(iii) Formation of an SE through conversi on of a public limited- liability company: 
• Article 37(3) of the SE Regulation. The simultaneous conversion of a public limited 
liability company into an SE and th e transfer of the registered office  to another 
Member State is expressly prohibited, bu t a consecutive transfer is allowed. A 
simultaneous conversion and transfer of th e registered office would be less time-
consuming and would reduce admini strative burden for the company32. The current 
prohibition to transfer the regi stered office at the same time  as the conversion might also 
not be in accordance with the freedom of  establishment (article 43 EC) following the 
Cartesio  case33. 
• Article 37 par 4 of the SE Regulation. The Re gulation is not clear as to whether both the 
report and the draft terms of conversion have to explain and justify the legal and 
economic aspects of the conversion and indicate  the implications for the shareholders and 
employees of the adoption of the form of an SE. 
(iv) Formation of a Holding SE: 
• The SE Regulation contains extensive provisi ons on the procedure for the formation of a 
holding SE in Articles 32 to 34 and references are made to the procedure in the case of a 
merger. However, it is not entirely clear how the ho lding SE to be formed becomes a 
shareholder of its – future – subsidiaries . On the face of Article 33 para. 1 it appears that 
the shares in the future subsidiaries of the hol ding SE will be contri buted to the SE, but the 
way in which this contribution has to be stru ctured is not describe d in the SE Regulation. 
The Regulation also does not provide pr actical and secure solutions in case  one 
shareholder of the contributing company beco mes insolvent or if his shares are or 
become attached by one of his creditors . Such procedure may stop the process of setting 
up the SE. 
(v) Formation of a Subsidiary SE: 
• Contrary to the formation of a holding SE, the SE Regulation does not contain extensive 
provisions on the procedure for the formation of  a subsidiary SE. One can assume that the 
SE Regulation assumes that the participatin g companies pay up for the shares in the 
subsidiary SE. However, due to the absence of a legal framework for the formation of a 
subsidiary SE  in the SE Regulation, it can be argued that the participating companies can, 
                                                 
32 Currently: one month for the conversion (Article 37 paragraph 5 of the SE Regulation) and two months 
for the transfer of the registered office (Article 8 paragraph 6 of the SE Regulation). 
33 Case 210/06. 
 
EN 11   EN not only form a subsidiary SE by paying up fo r its shares, but that they can also form a 
subsidiary SE e.g. by a national or cross-bor der division, however, it is not clear. 
3.2. Practical problems related to the functioning of an SE  
3.2.1.  ‘Activation’ of a ‘shelf SE’  
The SE Directive does not contain specific rule s on the role of employees when an SE is 
activated or structural changes occur after its formation, such as  changes to th e structure of 
the SE, or the employment of employees or th e acquisition of (part of ) another company and 
its employees. In this way, there is potentiall y a possibility to circumvent the rules on 
employee involvement by establishing a shelf SE  or acquiring the shares of a shelf SE and 
then carrying out certain activities – also referr ed to as the ‘activation’ of a shelf SE. The 
national laws of the Member States concerning the subject of structural changes in the SE, 
such as the activation of a shelf SE, differ from each other. Therefore, it  is not clear in all 
cases how it should be dealt with in practice if a shelf SE is ac tivated. If the law of a Member 
State is not clear, this law could be interpreted in conformity with the SE Directive. However, 
the interpretation of the national laws of the Member States in conformity with the SE Directive offers little legal certainty. A clarif ication of the SE Regul ation/Directive could 
resolve the current legal uncertainty and re move the potential risk of circumvention. 
3.2.2.  The requirement that the regi stered office and the head office  of an SE are located in 
the same Member State 
According to Article 7 of the SE Regulation, the re gistered office and the head office of an SE 
shall be located in th e same Member State.  It has the consequence, th at, if the head office of 
an SE is moved, also the registered office has to  be moved and vice versa.  This is considered 
by many stakeholders as an obstacle in practice which is contrary to  the nature of an SE as an 
international legal form designed for cross-bor der business and contrary to the practice of 
national regulations authorising the board of di rectors or the management board of companies 
to be held through videoconferencing or telephone  conferencing systems. It is also argued that 
this requirement may be contrary to the freedom  of establishment as mentioned in Article 49 
of the TFEU Treaty.  
3.2.3.  Removal of members of the managerial board 
According to Article 39(2) of the SE Regul ation, members of the management shall be 
appointed and removed by the supe rvisory organ. In some Member States it is required that 
removal of management can only be done if ther e are "good reasons" to do so. It is not clear 
whether the Regulation's provision is exhausti ve (i.e. allows the supervisory board total 
discretion as regards the remova l of members of the management board) or whether national 
law prevails. 
3.2.4.  Frequency of meeting and reporting requirements  
Articles 41(1) and 44(1) of the SE Statute set requirement s for the administrative organ to 
meet at least once every three months  and for the management organ to report to the 
supervisory organ at least once every three months. It is argued that this is too cumbersome in 
practice for small groups where na tional regulations only provide for a meeting and a report at 
least once a year to discuss or pr esent the annual report and accounts. 
 
EN 12   EN 3.2.5.  The term of office of board members 
Article 46 of the SE Regulation state that the members of company orga ns shall be appointed 
for a period laid down in the statutes not excee ding six years. It is ar gued that it should be 
clarified whether the term of office of board members must be fixed in the articles of 
association or whether the articles of associat ion may fix a maximum term and leave it to the 
body appointing the board members to determin e the individual term of office of the 
respective member. 
3.2.6.  The necessary majority to pass a vote in the general meeting 
According to Articles 57 and 59 of the SE Regula tion, the necessary major ity to pass a vote in 
the general meeting shall meet the requirement s in the SE Regulation, unless the national law 
requires - or permits - a larger majority. Some st akeholders have mentioned that it is uncertain 
what "a larger majority" covers. The SE Regulat ion only refers to "votes  validly cast" but not 
to share capital repres ented in the vote. In the case of e.g. Germ any this has created 
uncertainty as to whether the German rules apply or not34. 
3.2.7.  The place to convene the SE's annual general meeting 
One respondent to the public consultation finds th at the lack of an explicit provision on this 
issue leaves uncertainty on where the SE  can convene its an nual general meeting. 
3.2.8.  Company secretary 
Another respondent thinks  it is not clear from the current drafting of the SE Statute whether 
an SE registered in the UK has to have a company secretary  as normally required by UK law. 
3.2.9.  Transfer of seat of the SE 
The current drafting of the SE Stat ute does not solve problems with differences in national 
rules when  transferring the seat of the SE . Since the SE Regulation only provides for a 
basic framework for an SE that wants to transfer  its seat to another Member State, there are 
uncertainties in relation to the differences in national legislati on and the SE might be required 
to make amendments in order to fulfil the requirements of the new Member State. For example, during a transfer of an SE from th e Netherlands to France the following questions 
arose in practice: after the shar eholders’ meeting approving the transfer, is it necessary in 
order to appoint the directors or members of  the management board to hold a board of 
directors meeting or a supervisory board meeti ng of the company subject to the laws of the 
future territory of registration and the amended articles of association, at a time when the 
company is still subject to the legislation of its current registration? Since Dutch law allows 
an N.V. to be created with only one share holder whereas French la w requires at least 7 
shareholders to create an S.A., when transf erring an SE with one shareholder from the 
Netherlands to France, does the SE registered in the Netherlands have to transfer shares to 6 
new shareholders before the regi stration of the SE in France? 
                                                
 
34 For amending the SE's articles of association Article 59 of the SE Regulation requires two thirds of the 
votes cast, whereas § 179 of the German Stock Cor poration Act requires a majority of not less than 
three fourths of the share capital represented at th e passing, and the Articles of association may provide 
for a different capital majority of the resolution. 
 
EN 13   EN 3.2.10.  The national public authorities’ right of oppos ition to an SE being set up by way of a 
merger or to the transfer of the SE on “grounds of public interest" 
Each national authority has its own practices an d internal rules and the lack of definition in 
the Regulation of the “grounds of public intere st” may create discrimination arising out of 
unjustified different treatment from one Member State to a nother. Furthermore, such 
opposition can be exercised late in the process a nd thus may create a risk for the company to 
have to stop the setting-up of the SE or its transfer at the end of the process, generating 
significant costs35.  
3.2.11.  Notification to the competent authority in another Member State in the case of the 
transfer of the registered office of  an SE or conversion into an SE 
It is uncertain what information, and in which language, a notification by the registrar of one 
Member State to the other should include when tr ansferring the SE’s registered office. In case 
of conversion of e.g. a French S.A. into an SE  having a branch register ed in Germany, it is 
also uncertain if the registrar of the Commerci al Court has to notify th e registrar in Germany. 
3.2.12.  Registration of branches 
Member States take different views as to whet her an SE incorporated in one Member State 
that has a presence in a different Member State is required to register a branch there. The UK 
takes the view that it is not required, wher eas other Member States think it is required. 
3.2.13.  Conversion of an existing SE into a national company (Article 66 of the SE 
Regulation) 
Several problems with the application of this provision were reported. One is uncertainty of 
its scope, i.e. whether Article 66 of the SE Stat ute is an obstacle for an SE participating in 
domestic and cross-border restructurings, wh ich is essential for an SE. Other problems 
concern the period of time after which a convers ion of an SE into a public limited liability 
company can be effected. In some language vers ions of the SE Statute the two requirements 
for conversion mentioned in Article 66 are cu mulative (“and”) and in others they are 
alternative (“or”)36 . A more fundamental problem raised is that the restriction on conversion 
into a national company is an impediment in practice37 and is not in line with the 
jurisprudence of the Eur opean Court of Justice38. 
                                                 
35 For example in the case of the merger, the opposition right can be exercised up until the issue of the 
certificate conclusively attesting the completion of the pre-merger acts and formalities (Article 19 of the 
SE Regulation). 
36 The two requirements are 1) the decision on conversion may not be taken before two years have elapsed 
since the SEs registration; 2) the decision may not be  taken before the first two sets of annual accounts 
have been approved. In some language versions such as the French and the Dutch the requirements are 
cumulative, whereas in others such as the Englis h and the German the requirements are alternative. 
37 E.g. a business might dispose of its European operations and decide to concentrate on a single national 
market or if on reflection the company wishes  to revert to a more tested vehicle. 
38 It is argued that in the Cartesio  case (C 210/06), the European Court of Justice, inter alia , confirmed 
that cross-border conversions of  companies within the meaning of article 48 EC are possible on the 
basis of the freedom of establishment (Article 43 EC),  if the law of the ‘host Member State’ allows for 
such a cross-border conversion. 
 
EN 14   EN ANNEXES  
Annex 1: The distribution of SEs across the different Member States39 
The table below shows the dist ribution of SEs across the Memb er States as at 25 June 2010. 
Table 1  
Normal 
SEMicro SE Empty SEEmployees
? SE
Czech Republic (CZ) 281 25 26 5 181 44 162Germany (DE) 134 74 9 21 8 22 48Netherlands (NL) 24 8 0 13 3 0 0United Kingdom (UK) 23 2 0 15 6 0 1
Slovakia (SK) 22 2 5 2 6 7 3
France (FR) 19 9 0 1 9 0 0Luxembourg (LU) 16 3 0 5 7 1 0Austria (AT) 14 7 2 5 0 0 0Cyprus (CY) 12 5 0 2 5 0 1
Belgium (BE) 9 3 0 2 4 0 0
Sweden (SE) 9 2 0 1 3 3 0Ireland (IE) 7 1 1 3 2 0 1N o r w a y  ( N O ) 5302 0 00Estonia (EE) 4 3 0 0 1 0 0
Liechtenstein (LI) 4 1 0 0 3 0 0
Hungary (HU) 3 2 0 1 0 0 0L a t v i a  ( L V ) 3101 1 00Denmark (DK) 2 0 0 2 0 0 0Poland (PL) 2 0 0 1 1 0 0P o r t u g a l  ( P T ) 1000 1 00
Spain (ES) 1 0 0 1 0 0 0
B u l g a r i a  ( B G ) 0000 0 00Finland (FI) 0 0 0 0 0 0 0Greece (EL) 0 0 0 0 0 0 0Iceland (ICE) 0 0 0 0 0 0 0
I t a l y  ( I T ) 0000 0 00
Lithuania (LT) 0 0 0 0 0 0 0M a l t a  ( M T ) 0000 0 00R o m a n i a  ( R O ) 0000 0 00S l o v e n i a  ( S I ) 0000 0 00
Total 595 151 43 83 241 77 216Member State where 
the SEs registered 
office is locatedTotal     Shelf   
SEsActivated 
Shelf SEsNon-shelf SEsNumber of SEs
 
Table 1 shows that as at 25 June 2010 there we re 595 SEs registered in the EU/EEA Member 
States40. 
                                                 
39 The information in Annex 1 is extracted from the data contained in the database "The European 
Company (SE) Factsheets" available at http://ecdb.worker-participation.eu/ . This database is managed 
and updated by the Research department of the European Trade Union Institute (ETUI), see http://ecdb.worker-participation.eu/
. ETUI is financially supported by the EU. 
40 For the purposes of this Staff Working Pape r different types of SEs are distinguished: 
 Normal SE : An SE known to be operating and to have 5 or more employees.  
 
EN 15   EN The Czech Republic and Germany accounted for ar ound 70 % of all SE's registered in the 
EU/EEA Member States. The Netherlands , the United Kingdom, Slovakia, France, 
Luxembourg, Austria and Cyprus were the only ot her Member States with more than 10 SE's 
registered. There were nine Member States where no SE was registered, and a further 10 
Member States with only between  one and five SEs registered. 
Around 25 % of all SEs, of which around half were from Germany, were "normal SEs", i.e. 
operating and with 5 or more em ployees. Other Member States wi th 5 or more "normal" SEs 
were the Czech Republic, the Netherlands, France,  Austria and Cyprus. The "normal" SE was 
the most common type of SE in Germany, Fr ance, Austria, Cyprus, Norway, Estonia and 
Hungary.  
Around 6 % of all SEs, of which 60 % were re gistered in the Czech Republic, were "micro 
SEs", i.e. operating and w ith less than 5 employees.  
Around 14 % of all SEs were "empty SEs", i.e.  operating but apparently with no employees. 
Such SEs accounted for at least half of th e SEs in the Netherlands, the United Kingdom, 
Ireland, Denmark, Poland and Spain. 
About 42 % were probably normal, micro or empty SE s, i.e. they were known or seemed to be 
operating, but the information on the number of employees was not available. The lack of 
information on the number of employees could, for in stance, be a result of the fact that the SE 
had not yet published its annual accounts or that  it had an exemption from publishing this 
information in the notes of its annual accounts due to its small size41. Around 72 % of these 
SEs were registered in the Czech Republic. Such SEs also accounted for a substantial percentage of the SEs regi stered in e.g. France, Luxembourg, Cyprus, Belgium and 
Liechtenstein. 
                                                                                                                                                        
 
 Micro SE : An SE known to be operating and to have 1-4 employees.  
 Empty SE : An SE known to be operating, but without employees.  
 Employees? SE : An SE known or believed to be operating, but where there is no information on the 
number of employees.  
 Shelf SE : An SE with no activities or employees that is  set up by a professional company provider with 
the purpose of selling it to interested buyers.  
 Activated shelf SE : An SE originally set up as a shelf SE, but which had afterwards been sold and/or 
started operations.  
 Non-shelf SE : An SEs that is operating and belongs to either of the following categories: "Normal SE", 
a "Micro SE", an "Empty SE" or an "Employees? SE". 
41 Whereas other types of information on SEs are norma lly publicly available in the business register (e.g. 
the method of formation and the board structure) information on the average number of employees 
during the financial year is only available in th e annual accounts. However the annual accounts are 
always published retrospectively and Member States can exempt small SEs from publishing more than 
abridged balance sheets and notes on their accounts, cf. Article 47(2) of Directive 78/660/EEC. Thus 
most SEs set up in 2009 and 2010 (which potentially totals 268 SEs as of 25 June 2010) would not yet have published any annual accounts, and shelf SEs set up earlier but only activ ated in 2 009 or 2010 
would often not have published updated annual accounts. Adding to this the possibility of small SEs 
being exempt from publishing more than abridged balance sheets and notes on their accounts explains 
the high number of SEs where there was no inform ation on the number of employees. In those cases 
access to this kind of information is only possible if the company pr ovides it on its website (if it has 
one) or delivers it on request. Since most new SEs ha ve been set up in the Czech Republic, and most 
activated shelf SEs also are registered in the Czech  Republic, this is the Member State where most SEs 
with lacking information on the number of employees can be found. 
 
EN 16   EN The remaining 13 % (95 % of which were from  the Czech Republic, Germany and Slovakia) 
were shelf SEs not yet sold and/or activated on 23 June 2010. 
The last column in Table 1 shows that 216 out of 518 operating SEs were originally shelf SEs. 
This means that around 40% of all non-shelf SE s were originally shelf SEs. Almost all 
activated shelf SEs were registered in  either the Czech Republic or Germany42. A comparison 
of the data on the number of ac tivated shelf SEs and on the number of shelf SEs shows that 
around 50 % of all SEs in the dataset were originally set up as shelf SEs. 
                                                 
42 The activated shelf SEs registered in Ireland, the United Kingdom and Cyprus also originate from either 
the Czech Republic or Germany, see Annex 2 (transfer of seat). 
 
EN 17   EN Annex 2: Data on seat transfers of SEs43 
Table 244 
Normal 
SEMicro 
SE Empty 
SEEmplo -
yees?
Graphisoft SE NL HU 1 Services IBITS 2005
DIAG Human SE CZ LI 1 Other 2006
Afschrift SE BE LU 1 Other services 2007BIBO ZWEITE [..] SE DE UK 1 Financial services 2007BOLBU Beteiligungsgesellschaft DE UK 1 Financial services 2007Joh. A. Benckiser SE (JAB) DE AT 1 Financial services 2007
Jura Management SE (now 
transformed into GmbH) NL DE 1 Financial services 2007
MDM Holding SE AT CY 1 Financial services 2007
Narada Europe SE (liquidated) NO UK 1 Commerce servic
e2007
Prosafe SE NO CY 1 Other 2007Swiss Re International SE UK LU 1 Financial services 2007AmRest Holdings SE NL PL 1 Financial services 2008Arcelor Steel Trading SE NL ES 1 Metal 2008Atrium Dritte Europäische VV DE IE 1 1 Other services 2008
bluO SE DE AT 1 Unknown 2008
Elcoteq SE FI LU 1 Metal 2008Imperio Regere SE CZ CY 1 Unknown 2008MAI Luxembourg SE LU UK 1 Unknown 2008Milium SE LU BE 1 Commerce servic
e2008
RSL COM Germany SE DE UK 1 1 Other 2008
SEKISUI NordiTube 
Technologies SE SE DE 1 Other services 2008
Spirall Solution SE CZ CY 1 1 Unknown 2008UBM International Holdings SE LU UK 1 Unknown 2008United Consumer Media SE LU UK 1 Financial services 2008UPRN 1 SE LU NL 1 Financial services 2008World Nordic SE DK CY 1 Financial services 2008Allpar SE LU AT 1 Other services 2009
Ardanos Holdings SE NL FR 1 Medical services 2009
Bercy Charenton SE NL FR 1 Financial services 2009Carthago Value Invest SE DE IE 1 Financial services 2009Crius Capital SE CZ SK 1 Other services 2009Equinox II SE NL FR 1 Financial services 2009Europasta SE NL CZ 1 Food,Hotel,Cater 2009Fotex Holding SE Nyrt HU LU 1 Financial services 2009
Guardian Middle East & Africa DK LU 1 Financial services 2009
GUS International Holdings SE NL UK 1 Unknown 2009GUS Ireland Holdings SE NL UK 1 Unknown 2009GUS Overseas Holdings SE NL UK 1 Unknown 2009GUS Overseas Investments SE NL UK 1 Unknown 2009GUS US Holdings SE NL UK 1 Unknown 2009
International Engineering SE LU AT 1 Financial services 2009
Marcel Pourtout SE NL FR 1 Financial services 2009Nyckel 0328 SE UK SE 1 Financial services 2009Philippe Auguste SE NL FR 1 Financial services 2009Powergen LS SE LU UK 1 Unknown 2009Songa Offshore SE NO CY 1 Other 2009Elster Group SE LU DE 1 Metal 2010
James Hardie Industries SE NL IE 1 Financial services 2010
James Hardie Int. Holdings NL IE 1 Financial services 2010T o t a l 4 94 91 03 2 1 1 5 0 3Name of SE Original 
regist-
rationNew 
regist
-
rationNon-shelf SEs 
Shelf 
SEEx 
Shelf 
SEActivitiesYear 
trans-
fer
 
                                                 
43 The information in this Annex is extracted from the data contained in the database "The European 
Company (SE) Factsheets" available at http://ecdb.worker-participation.eu/ . This database is managed 
and updated by the Research department of the European Trade Union Institute (ETUI), see 
http://ecdb.worker-participation.eu/ . ETUI is financially supported by the EU. 
44 Non-shelf SEs where the number of employees was unknown are denoted "Employees?" in table 2. 
 
EN 18   EN The table above shows the inventory of seat tran sfers of SEs as at 25 June 2010. It shows that 
as at 25 June 2010 there had been 49 cases of seat transfer of  SEs. This corresponds to around 
8% of all SEs (and 10% of all non-shel f SEs) that existed on 25 June 2010.  
Whereas the United Kingdom (13) and Cyprus (6) were the most frequently chosen 
destinations, the largest number  of SEs moved away from the Netherlands (17), Luxembourg 
(9), Germany (7) and the Nordic countries (6). However, several of the seat transfers were 
related. Almost all SEs that had transferred thei r registered office were operating SEs. Only in 
three cases did a shelf SE transf er its registered office. In around 30% of all cases it was not 
known if the transferring non-shelf SE had a ny employees. In around 30 % of the cases where 
the number of employees in the SE was known, it  was an SE with more than 5 employees 
("normal SE"), but there were double as many ca ses where the SE had no employees ("empty 
SE"). 
The activities of 23% of the SEs that had tran sferred their registered office were unknown. 
More than 80% the SEs of whic h activities were known were ac tive in the services sector 
(55% in the financial services sector alone) and 8% in metal s ector. 88% of "empty" SEs were 
active in the services sector. 
There has been an increase in the number of  transfers per year. Whereas there was only 1 
known transfer in both 2005 and 2006, there were 9 in 2007, 15 in 2008 and 20 in 2009. 
However, as the information on transfers is onl y detected with some delay, there might have 
been more transfers in 2009, and espe cially in 2010, than presented above. 
 
EN 19   EN Annex 3: Methods of formation of the SE45 
The SE Regulation allows five different methods  of formation. These five methods of creating 
an SE are: 
• through a cross-border merger  between public limited- liability companies, cf. Art. 2(1) of 
the SE Regulation; 
• through two or more co mpanies setting up a holding SE , cf. Art. 2(2) SE Regulation;  
• through two or more legal bodies setting up a common subsidiary  SE, cf. Art. 2(3) SE 
Regulation;  
• through conversion  of a public limited-liab ility company, cf. Art. 2(4) SE Regulation;  
• through an existing SE company setting up an SE subsidiary , cf. Art. 3(2) SE Regulation. 
The most commonly chosen meth ods of formation vary signi ficantly depending on whether 
shelf SEs is excluded in the analysis or not. Ther efore the analysis will present figures for all 
SEs, for shelf SEs46 and for non-shelf SEs47, respectively. Differences between the formation 
methods in different Member States will be show ed with examples from some of the Member 
States where SEs have been set up relatively frequently. 
Method of formation (all SEs) 
369 SEs were analysed. The method of formation was unknown for 20. 
Chart 1 : The pie chart shows that the 
clearly most commonly chosen method of setting up an SE in general is setting up an SE as a subsidiary of an existing SE (43%). Setting up an 
SE through conversion of a public 
limited-liability company or as a common subsidiary of two or more legal bodies are the second most popular methods of formation (20%). Setting up an SE through a cross-border merger between public limited-liability companies is less 
popular (13%) and setting up an SE as a holding SE for two or mo re companies is very rarely 
chosen (4%). 
                                                
 
45 The information in this Annex is extracted from the data contained in "Appendix 2.3.: Factsheets on 
established SEs" of the "Study on the operatio n and the impacts of the Statute for a European 
Company" commissioned by the Commission. It is based on the 369 SEs set up as at 15 April 2009. 
46 These are SEs with no activities or employees, norma lly set up by professional company providers with 
the purpose of selling them to interested buyers. 
47 All SEs that are not considered to be "shelf  SEs" are referred to as "non-shelf SEs". 43%
20%20%13%4%
SE subsidiary
Conversion
Common subsidiary
Merger
Holding43%
20%20%13%4%
SE subsidiary
Conversion
Common subsidiary
Merger
Holding
 
EN 20   EN However, as will be seen from the following two charts, the trends change completely if we 
distinguish between the SEs that are believed to  have been set up as sh elf SEs and those that 
are believed to have been set up as non-shelf SEs. 
Method of formation (shelf SEs) 
187 (originally) shelf SEs were analysed48. The method of formation was unknown for 7 . 
73%2%21%2%2%
SE subsidiary
Conversion
Common subsidiary
Merger
Holding
 
Chart 2 : The pie chart above shows the formation me thod used to set up shelf SEs. It shows 
that shelf SEs are almost exclusively set up either as subsidiaries of an existing SE (73%) or as common subsidiaries of two or  more legal bodies (21%). Gi ven that around half of all SEs 
analysed seem to have been set up as shelf SEs these two methods of formation (and method 
of setting up an SE subsidiary  in particular) are dominant if compared to other formation 
methods (see Chart 1). 
The pie charts below show the SE formation methods used for setting up shelf SEs in the 
Czech Republic and Germany. It shows that th e strong dominance of the method of setting up 
shelf SEs as SE subsidiaries  in general can be explained by the fact that this method is 
commonly used in the Czech Republic for settin g up shelf SEs (98%), whereas the prevailing 
method to set up shelf SEs in Germany is a common subsidiary SE  (80%). 
Czech Republic
98%1%1%
SE subsidiary
Merger
Hol dingGermany
11%
7%
80%2%SE su bsidiary
Conversion
Common
subsidiary
Merger
 
Out of all analysed SEs that are believed to ha ve been set up as a shelf SE 92 % originated 
from either the Czech Republic  (66 %) or Germany (26 %). In  the Czech Republic shelf SEs 
                                                 
48 The contractors of the study categor ised 140 out of the 369 SEs analysed  as "shelf SEs" at the time of 
research. Based on the information provided in the fact sheets of Appendix 2.3 of the study it is 
reasonable to assume that around 47  of the "non-shelf SEs" were originally also set up as "shelf SEs". 
Such assessment is made, for instance, in cases lik e Kvido Chech SE where acco rding to the fact sheet 
it was established as a shelf SE, then sold and subsequently changed its name. Thus, based on the 
information in Appendix 2.3 of the study the total number of SEs analysed originally set up as shelf SEs 
is around 187 (or around 50% of all 369 SEs analysed). 
 
EN 21   EN account for around 87 % of all SE formations and in Germany shelf SEs account for around 
half of all SE formations.  
 
EN 22   EN Method of formation (non-shelf SEs) 
182 (originally) non-shelf SEs were analyse d. The method of formation was unknown for 13.  
10%
40%
18%25%7%
SE subsidiary
Conversion
Common subsidiary
Merger
Holding
 
Chart 3 : The pie chart above presents the methods of formation used for setting up non-shelf 
SEs. It shows that the most common methods used in these cases are different from the 
methods used to set up shelf SEs. The most common method for estab lishing non-shelf SEs is 
the conversion  of a public limited-liability company into an SE (40 %), followed by cross-
border merger  between public limited-liability companies (25%) and setting up a common 
subsidiary  SE (18%). Setting up an SE subsidiary  of an existing SE (10 %) or setting up a 
holding SE  (7 %) happens more rarely. 
The four charts below show so me of the differences between the methods used to set up non-
shelf SEs in different Member States. The num bers in the brackets show the number of SEs 
forming the basis for the analysis.  
Czech Republic (16)
31 %
31 %38%Germany (43)
2%
51 %
19%23%5%
SE s ubs idiary
Conversion
Co mmo n  su b si d ia ry
Merger
Ho lding
The Netherlands (29)
24%
45%21%7%3%France (10)
10 %
60%10 %20%
 
EN 23   EN Annex 4:  The board structure of the SE49 
The table provides information on the board st ructure chosen by 595 SE s registered in the 
EU/EEA Member States as at 25 June 2010. 
Table 350 
1-tier 2-tier 1-tier 2-tier 1-tier 2-tier 1-tier 2-tier 1-tier 2-tier
C Z 2 8 1 2 - t i e r2 2 7 90 02 512 50 5 1 1 8 004 4
D E 1 3 4 2 - t i e r 5 7 5 81 92 5 4 83 01 63 4 3 9 4
NL 24 2-tier 14 7 3 2 5 0 0 11 1 1 1 0 0
U K 2 3 1 - t i e r 501 8200030 0 0 00S K 2 2 2 - t i e r 5 1 70 112302 2 4 07FR 19 1-2 tier 13 4 2 6 3 0 0 0 1 7 0 0 0
LU 16 1-2 tier 12 2 2 2 1 0 0 5 0 4 1 1 0
AT 14 1-2 tier 9 5 0 5 2 2 0 2 3 0 0 0 0
C Y 1 2 1  t i e r 63 3 500011 0 2 00
B E 9 1  t i e r 81 0 300020 3 1 00S E 9 1 - t i e r 90 0 200010 3 0 30
I E 7 1  t i e r 42 1 010130 1 0 00
N O 5 1 - 2  t i e r 50 0 300020 0 0 00
E E 4 2 - t i e r 13 0 030000 1 0 00
L I4 1 - 2  t i e r 20 2 100000 1 0 00
H U 3 1 - 2  t i e r 21 0 110010 0 0 00
L V 3 2 - t i e r 12 0 010010 0 1 00
D K 2 1 - 2  t i e r 20 0 000020 0 0 00
P L 2 2 - t i e r 01 1 000001 0 0 00
E S 1 1 - t i e r 01 0 000001 0 0 00
P T 1 1 - 2  t i e r 10 0 000000 1 0 00
B G 0 1 - 2  t i e r 00 0 000000 0 0 00
E L 0 1 - 2  t i e r 00 0 000000 0 0 00
F I0 1 - 2  t i e r 00 0 000000 0 0 00
I C E 0 1 - t i e r 00 0 000000 0 0 00
I T 0 1 - 2  t i e r 00 0 000000 0 0 00
L T 0 2 - t i e r 00 0 000000 0 0 00
M T 0 1 - t i e r 00 0 000000 0 0 00
R O 0 1 - 2  t i e r 00 0 000000 0 0 00
S I0 1 - 2  t i e r 00 0 000000 0 0 00
Total 595 158 386 51 58 91 8 29 50 18 29 193 13 55Shelf SEBoard system 
chosen by SEs 
(total)Board system chosen by SEs (per SE type)
Normal SE Micro SE Empty SEEmployees? 
SE 2-tierUn-
knownMSNormal  
MS 
systemTotal 
SEs
1-tier
 
Table 3 shows that around 71% of all SEs had a two-tier board structure as at 25 June 2010. 
This figure should be compared with the finding that around 79% of all SEs were set up in a 
                                                 
49 The information in this Annex is extracted from the data contained in the database "The European 
Company (SE) Factsheets" available at http://ecdb.worker-participation.eu/ . This database is managed 
and updated by the Research department of the European Trade Union Institute (ETUI), see 
http://ecdb.worker-participation.eu/ . ETUI is financially supported by the EU. 
50 Non-shelf SEs where the number of employees was unknown are denoted "Employees? SE" in table 3. 
 
EN 24   EN Member State that only allows a two-tier board  structure for national public limited liability 
companies. In fact, in all Member States, excep t for the Netherlands and Spain, a majority of 
SEs had chosen the board structure known to th e national public limited-liability companies 
of that Member State, either the one-tier or  two-tier board structur e. However, a one-tier 
board was chosen more often in Member Stat es with a two-tier bo ard system than the 
contrary. Especially in Germa ny, the one-tier system was chosen very often by SEs, even 
though national German public limit ed liability companies (AGs) must have a two-tier board 
structure. Furthermore, in all Member States  that allow both the one- and two-tier board 
system for national public limited-liability companies, a majority of SEs had chosen the one-tier system
51. In general, there are less SEs register ed in Member States that allow both the 
one and the two-tier board structure for national companies, i.e. these Member States already 
provide a choice on board struct ure (flexibility) for national companies comparable to the 
flexibility provided for SEs through the SE Statute. 
The comparison of the data on the choice of boar d structure and the type of SE shows that 
around 75% of the SEs without employees ("em pty SE") preferred the one-tier system, 
whereas around 40% of the SEs with 5 or more  employees ("normal SE") had chosen the one-
tier system. For all the other types of SEs the one-tier board structur e was chosen by 20% or 
less of the SEs. 
                                                 
51 Until 1 March 2010 Denmark was considered only to  allow a 1-tier system. From 1 March 2010 a new 
companies act made it possible for national companies to choose also a two-tier system. 
 
EN 25   EN Annex 5: Subscribed capital of the SE52 
The table below shows the initial subscribed cap ital in the SEs set up in the different Member 
States. 
Table 453  
Nor-
malEmp-
tyEmp-
loy-
ees?ShelfNor-
malEmp-
tyEmp-
loy-
ees?ShelfNor-
malEmp-
tyEmp-
loy-
ees?Nor-
malEmp-
tyEmp-
loy-
ees?Nor-
malEmp-
tyEmp-
loy-
ees?
C Z 1 3 7 1 56 1 1 6 2 213100 0 000 00 0
D E 9 1 5 53 4 3 3 212400 1 1 10 1 0 10 0
N L 2 1 3 8003 400100 0 100 10 2F R 1 5 0 1001 060200 1 003 10 0
U K 1 4 0 2540 100010 1 000 00 2
A T 1 3 1 1012 100000 2 002 12 1
S K 1 3 3 3060 001000 0 000 00 0
L U 1 1 0 0112 410000 0 101 00 0
B E 81 1100 000301 0 100 00 2C Y 81 0020 200000 1 010 10 2H U 40 0000 100001 1 100 00 0
L V 42 0001 000100 0 000 00 0
N O 40 0010 001000 2 000 00 0
E E 30 0001 000200 0 000 00 0
L I20 0200 000000 0 000 00 1
P L 21 0001 000000 0 000 00 0
D K 10 0000 000100 0 000 00 0E S 11 0000 000000 0 000 00 0
I E 10 0010 000000 0 000 00 0
S E 10 0000 001000 0 000 00 5B G 00 0000 000000 0 000 00 0
E L 00 0000 000000 0 000 00 0
F I 00 0000 000000 0 000 00 0
I C E 00 0000 000000 0 000 00 0
I T 00 0000 000000 0 000 00 0
L T 00 0000 000000 0 000 00 0
M T 00 0000 000000 0 000 00 0
P T 00 0000 000000 0 000 00 0
R O 00 0000 000000 0 000 00 0
S I 00 0000 000000 0 000 00 0
19 26 18 175 16 17 9 8 15 1 2 19 5 1 16 5 2 15MSSEs 
analy
-
sedSubscribed capital at time of formation
120,000 120,001-3 mio. 3 mio.-10 mio. 10 mio.-100 > 100 mio.
un-
repor -
tedSE type SE type SE type SE type SE type
18 25 23Total 354238 50  
                                                 
52 The information in this Annex is extracted from the data contained in "Appendix 2.3.: Factsheets on 
established SEs" of the "Study on the operatio n and the impacts of the Statute for a European 
Company" commissioned by the Commission. It is based on the information that was available on the 
369 SEs contained in the study and set up as at 15 April 2009. Where the data indicated that the SE was originally a shelf SE, this was presumed. 
53 Non-shelf SEs where the number of employees was unknown are denoted "Employees?" in table 4 and 
table 6. 
 
EN 26   EN Table 4 shows that the majority of SEs (67%) had the minimum capital requirement of 
€120,000 at the time of formation. However, the se tting up of shelf SEs accounts for most of 
these cases. Around 30% of all non-shelf SEs were  set up with an initial subscribed capital 
above €10 mio. Around half of these had a s ubscribed capital above €100 mio, and also 
around half of them were German SEs. Most ot her SEs with a high initial subscribed capital 
came from Austria or France. The Czech SEs we re almost exclusively present in the two 
smallest size-categories of subscribed capital.  
The initial subscribed capital of SEs with 5 or more employees ("normal" SEs) were relatively 
equally spread across the different size-categories of subscribed capital. However, in all size-
categories of initial subscribed above €3 mio th ese SEs accounted for a large majority of the 
SEs. SEs with no employees ("empty" SEs) were mostly represented in the two smallest size-
categories of subscribed capital, but they also  represent around 20% of  the SEs in the two 
biggest size-categories. 
Table 5  
120,000120,001-
3 mio.3 mio.-10 
mio.10 mio.-
100 mio.> 100 
mio.
Finance/insurance 19 18 6 6 8 57 4
Other services 16 14 6 8 2 46 1
Real estate 12 3 1 2 2 20 0
Manufacturing 4 3 2 7 4 20 2
Wholesale/retail trade 3 5 1 1 2 12 2
T o t a l 5 44 31 62 41 8 1 5 5 9Sector of activitySector of activity compared to the subscribed capital 
TotalCapital 
un-
known
 
Table 5 above provides an indication of the di fferent sectors of activ ity where originally non-
shelf SEs operated depending on the size of their initial subscribed capital. The table is based 
on 183 SEs, but the table only pr esents the five most common sectors of activity (some SEs 
were operating in more than  one sector of activity). 
The table shows that "Finance/insurance" and "Other services" were generally well 
represented in all size-c ategories of subscribed capital, how ever the relative weight of these 
two sectors of activity decrease the higher subscr ibed capital. "Manufacturing" was a sector of 
activity that had more weight in the highe r size-categories of subscribed capital. 
 
EN 27   EN Table 6  
Normal 
SEEmpty 
SEEmplo-
yees? Shelf SumNormal 
SEEmpty 
SEEmplo-
yees? Shelf Sum
C Z 377 1 1 7 1 3 4 10 1 2 1
D E 3 0 93 3 6 7 8 301 9 1 3
NL 7 9 16 5 5 2F R 616 1 3 1 1 1
SK 2 3 7 12 1 1
A T 6221 1 1 1 1 1L U 2511 9 1 1 2
C Y 2312 8 2
UK 1 3 3 7 9
B E 221 5 2 2 3H U 121 4NO 2 2 4
EE 3 3
LI 2 2 1
LV 2 2 1 1 1PL 2 2
DK 1 1
ES 1 1
IE 1 1
SE 6
T o t a l 7 34 62 4 1 7 0 3 1 3 1 0 6 21 0 2 8 2 7Un-
repor-
ted MS Stagnation IncreaseDevelopment in the subscribed capital since the formation of the SE
 
Table 6 above shows to what extent SEs ha d remained within th eir size-category of 
subscribed capital since their formation. It shows that around 8% of the SEs had moved to a 
higher size-category and thus increased their s ubscribed capital. Most of the SEs that had 
increased their subscribed capital were originally either normal or shelf SEs, and half of them 
were German. 
Only one SE (from Austria) had reduced its subscribed capital. 
 
EN 28   EN  
Annex 6:  Employees of the SE54 
The table below shows the number of employees in the SEs at the time of formation of the 
SE. 
Table 7   
1-9 10-49 50-249 > 250
SE type SE type SE type SE type
Normal Empty Shelf Normal Normal Normal Normal
CZ 115 3 108 3 1 22
DE 89 2 12 45 3 1 2 24 2
NL 22 1 14 2 5 1
SK 13 1 3 7 2
UK 11 5 4 1 1 5
AT 10 3 1 1 1 4 4
CY 10 5 2 1 2
L U 915 1 22F R 8 1 2122 7
BE 7 3 2 1 1 3
SE 6 4 2
HU 3 2 1 1NO 3 2 1 1
PL 2 2
DK 1 1
EE 1 1 2
IE 1 1
LI 1 1 2
LV 1 1 3
BG 0
EL 0
ES 0 1
FI 0
ICE 0
IT 0
LT 0
MT 0
PT 0
RO 0
SI 0
7 58 175 8 10 8 47 56
81 084 7Un-
repor
-
tedSE type
Total 313240MSSEs 
analy-
sedEmployees at time of formation
0
 
Table 7 shows that most SEs were set up withou t employees. However, this is mainly due to 
the fact that around half of all SEs were orig inally set up as shelf SEs. Around 34% of all non-
                                                 
54 The information in this Annex is extracted from the data contained in "Appendix 2.3.: Factsheets on 
established SEs" of the "Study on the operatio n and the impacts of the Statute for a European 
Company" commissioned by the Commis sion. Where the data indicated that the SE was originally a 
shelf SE, this was presumed. In five cases an SE was categorised by E&Y as "UFO" even though there 
was information that there were 0 employees at the ti me of formation. In table 7 these five cases have 
therefore been treated  as "Empty" SEs.  
 
EN 29   EN shelf SEs were set up with more than 250 employees. Around half of these came from 
Germany.