Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE)
Date: 2001-10-08
Institutions: Council of the European Union
Subjects: European company, European legal status, company law, merger, registration of a company, right of establishment

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I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 2157/2001

of 8 October 2001

on the Statute for a European company (SE)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 308 thereof,

Having regard to the proposal from the Commission (1),

means of Directives based on Article 44 of the Treaty
can overcome some of those difficulties. Such approxi-
mation does not, however, release companies governed
by different legal systems from the obligation to choose
a form of company governed by a particular national
law.

Having regard to the opinion of the European Parliament (2),

(4)

Having regard to the opinion of the Economic and Social
Committee (3),

Whereas:

The legal framework within which business must be
carried on in the Community is still based largely on
national laws and therefore no longer corresponds to
the economic framework within which it must develop
if the objectives set out in Article 18 of the Treaty are to
be achieved. That situation forms a considerable obstacle
to the creation of groups of companies from different
Member States.

(1)

(2)

(3)

The completion of the internal market and the improve-
ment it brings about in the economic and social situation
throughout the Community mean not only that barriers
to trade must be removed, but also that the structures
of production must be adapted to the Community
dimension. For that purpose it is essential that compan-
ies the business of which is not limited to satisfying
purely local needs should be able to plan and carry out
the reorganisation of their business on a Community
scale.

Such reorganisation presupposes that existing compan-
ies from different Member States are given the option of
combining their potential by means of mergers. Such
operations can be carried out only with due regard to
the rules of competition laid down in the Treaty.

Restructuring and cooperation operations involving
companies from different Member States give rise to
legal and psychological difficulties and tax problems.
The approximation of Member States’ company law by

(1) OJ C 263, 16.10.1989, p. 41 and OJ C 176, 8.7.1991, p. 1.
(2) Opinion of 4 September 2001 (not yet published in the Official

Journal).

(3) OJ C 124, 21.5.1990, p. 34.

(5) Member States are obliged to ensure that the provisions
applicable to European companies under this Regulation
do not result either in discrimination arising out of
unjustified different treatment of European companies
compared with public limited-liability companies or in
disproportionate restrictions on the formation of a
European company or on the transfer of its registered
office.

(6)

(7)

It is essential to ensure as far as possible that the
economic unit and the legal unit of business in the
Community coincide. For that purpose, provision should
be made for the creation, side by side with companies
governed by a particular national
law, of companies
formed and carrying on business under the law created
by a Community Regulation directly applicable in all
Member States.

The provisions of such a Regulation will permit the
creation and management of companies with a European
dimension, free from the obstacles arising from the
disparity and the limited territorial application of
national company law.

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(8)

(9)

The Statute for a European public limited-liability com-
pany (hereafter referred to as ‘SE’) is among the measures
to be adopted by the Council before 1992 listed in the
Commission’s White Paper on completing the internal
market, approved by the European Council that met in
Milan in June 1985. The European Council that met in
Brussels in 1987 expressed the wish to see such a Statute
created swiftly.

present in the Community two different systems for the
administration of public limited-liability companies.
Although an SE should be allowed to choose between
the two systems, the respective responsibilities of those
responsible for management and those responsible for
supervision should be clearly defined.

Since the Commission’s submission in 1970 of a
proposal for a Regulation on the Statute for a European
public limited-liability company, amended in 1975,
work on the approximation of national company law
has made substantial progress, so that on those points
where the functioning of an SE does not need uniform
Community rules reference may be made to the law
governing public limited-liability companies in the Mem-
ber State where it has its registered office.

(15) Under the rules and general principles of private inter-
national law, where one undertaking controls another
governed by a different legal system, its ensuing rights
and obligations as regards the protection of minority
shareholders and third parties are governed by the law
governing the controlled undertaking, without prejudice
to the obligations imposed on the controlling under-
taking by its own law, for example the requirement to
prepare consolidated accounts.

(10) Without prejudice to any economic needs that may arise
in the future, if the essential objective of legal rules
governing SEs is to be attained, it must be possible at
least to create such a company as a means both of
enabling companies from different Member States to
merge or to create a holding company and of enabling
companies and other legal persons carrying on economic
activities and governed by the laws of different Mem-
ber States to form joint subsidiaries.

(16) Without prejudice to the consequences of any sub-
sequent coordination of the laws of the Member States,
specific rules for SEs are not at present required in
this field. The rules and general principles of private
international law should therefore be applied both where
an SE exercises control and where it is the controlled
company.

(11)

In the same context it should be possible for a public
limited-liability company with a registered office and
head office within the Community to transform itself
into an SE without going into liquidation, provided it
has a subsidiary in a Member State other than that of its
registered office.

(17) The rule thus applicable where an SE is controlled by
another undertaking should be specified, and for this
purpose reference should be made to the law governing
public limited-liability companies in the Member State
in which the SE has its registered office.

(12) National provisions applying to public limited-liability
companies that offer their securities to the public and to
securities transactions should also apply where an SE is
formed by means of an offer of securities to the public
and to SEs wishing to utilise such financial instruments.

(13) The SE itself must take the form of a company with
share capital, that being the form most suited, in terms
of both financing and management, to the needs of a
company carrying on business on a European scale. In
order to ensure that such companies are of reasonable
size, a minimum amount of capital should be set so that
they have sufficient assets without making it difficult for
small and medium-sized undertakings to form SEs.

(18)

Each Member State must be required to apply the
sanctions applicable to public limited-liability companies
governed by its law in respect of infringements of this
Regulation.

(19) The rules on the involvement of employees in the
European company are
laid down in Directive
2001/86/EC (1), and those provisions thus form an
indissociable complement to this Regulation and must
be applied concomitantly.

(14) An SE must be efficiently managed and properly super-
It must be borne in mind that there are at

vised.

(1) See p. 22 of this Official Journal.

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(20) This Regulation does not cover other areas of

law
such as taxation, competition, intellectual property or
insolvency. The provisions of the Member States’ law
and of Community law are therefore applicable in the
above areas and in other areas not covered by this
Regulation.

(21) Directive 2001/86/EC is designed to ensure that
employees have a right of involvement in issues and
decisions affecting the life of their SE. Other social and
labour legislation questions, in particular the right of
employees to information and consultation as regulated
in the Member States, are governed by the national
provisions applicable, under the same conditions, to
public limited-liability companies.

(22) The entry into force of this Regulation must be deferred
so that each Member State may incorporate into its
national law the provisions of Directive 2001/86/EC and
set up in advance the necessary machinery for the
formation and operation of SEs with registered offices
within its territory, so that the Regulation and the
Directive may be applied concomitantly.

(23) A company the head office of which is not in the
Community should be allowed to participate in the
formation of an SE provided that company is formed
under the law of a Member State, has its registered office
in that Member State and has a real and continuous link
with a Member State’s economy according to the
principles established in the 1962 General Programme
for the abolition of restrictions on freedom of establish-
ment. Such a link exists in particular if a company has
an establishment in that Member State and conducts
operations therefrom.

(26) Activities by financial

institutions are regulated by
specific directives and the national law implementing
those directives and additional national rules regulating
those activities apply in full to an SE.

(27)

In view of the specific Community character of an SE,
the ‘real seat’ arrangement adopted by this Regulation in
respect of SEs is without prejudice to Member States’
laws and does not pre-empt any choices to be made for
other Community texts on company law.

(28) The Treaty does not provide,

for the adoption of
this Regulation, powers of action other than those of
Article 308 thereof.

(29)

Since the objectives of the intended action, as outlined
above, cannot be adequately attained by the Member
States in as much as a European public limited-liability
company is being established at European level and can
therefore, because of the scale and impact of such
company, be better attained at Community level, the
Community may take measures in accordance with the
principle of subsidiarity enshrined in Article 5 of the
Treaty.
In accordance with the principle of pro-
portionality as set out in the said Article, this Regulation
does not go beyond what is necessary to attain these
objectives,

HAS ADOPTED THIS REGULATION:

TITLE I

GENERAL PROVISIONS

Article 1

(24) The SE should be enabled to transfer its registered office
to another Member State. Adequate protection of the
interests of minority shareholders who oppose the
transfer, of creditors and of holders of other rights
should be proportionate. Such transfer should not affect
the rights originating before the transfer.

(25) This Regulation is without prejudice to any provision
which may be inserted in the 1968 Brussels Convention
or in any text adopted by Member States or by the
Council to replace such Convention, relating to the rules
of jurisdiction applicable in the case of transfer of the
registered offices of a public limited-liability company
from one Member State to another.

1.
A company may be set up within the territory of the
Community in the form of a European public limited-liability
company (Societas Europaea or SE) on the conditions and in the
manner laid down in this Regulation.

2.
The capital of an SE shall be divided into shares. No
shareholder shall be liable for more than the amount he has
subscribed.

3.

An SE shall have legal personality.

Employee involvement in an SE shall be governed by the

4.
provisions of Directive 2001/86/EC.

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Article 2

1.
Public limited-liability companies such as referred to in
Annex I, formed under the law of a Member State, with
registered offices and head offices within the Community may
form an SE by means of a merger provided that at least two of
them are governed by the law of different Member States.

2.
An SE may itself set up one or more subsidiaries in the
form of SEs. The provisions of the law of the Member State in
which a subsidiary SE has its registered office that require a
public limited-liability company to have more than one
shareholder shall not apply in the case of the subsidiary SE.
The provisions of national
law implementing the twelfth
Council Company Law Directive (89/667/EEC) of 21 Decemb-
er 1989 on single-member private limited-liability compani-
es (1) shall apply to SEs mutatis mutandis.

2.
Public and private limited-liability companies such as
referred to in Annex II, formed under the law of a Member
State, with registered offices and head offices within the
Community may promote the formation of a holding SE
provided that each of at least two of them:

Article 4

1.

The capital of an SE shall be expressed in euro.

(a)

is governed by the law of a different Member State, or

2.
The
EUR 120 000.

subscribed capital

shall not be

less

than

(b) has for at least two years had a subsidiary company
governed by the law of another Member State or a branch
situated in another Member State.

The laws of a Member State requiring a greater subscribed
3.
capital for companies carrying on certain types of activity shall
apply to SEs with registered offices in that Member State.

Companies and firms within the meaning of the second
3.
paragraph of Article 48 of the Treaty and other legal bodies
governed by public or private law, formed under the law of a
Member State, with registered offices and head offices within
the Community may form a subsidiary SE by subscribing for
its shares, provided that each of at least two of them:

(a)

is governed by the law of a different Member State, or

(b) has for at least two years had a subsidiary company
governed by the law of another Member State or a branch
situated in another Member State.

4.
A public limited-liability company, formed under the
law of a Member State, which has its registered office and head
office within the Community may be transformed into an SE
if for at least two years it has had a subsidiary company
governed by the law of another Member State.

5.
A Member State may provide that a company the head
office of which is not in the Community may participate in
the formation of an SE provided that company is formed
under the law of a Member State, has its registered office in
that Member State and has a real and continuous link with a
Member State’s economy.

Article 3

1.
For the purposes of Article 2(1), (2) and (3), an SE shall
be regarded as a public limited-liability company governed by
the law of the Member State in which it has its registered
office.

Article 5

Subject to Article 4(1) and (2), the capital of an SE,
its
maintenance and changes thereto, together with its shares,
bonds and other similar securities shall be governed by the
provisions which would apply to a public limited-liability
company with a registered office in the Member State in which
the SE is registered.

Article 6

For the purposes of this Regulation, ‘the statutes of the SE’
shall mean both the instrument of incorporation and, where
they are the subject of a separate document, the statutes of the
SE.

Article 7

The registered office of an SE shall be located within the
Community, in the same Member State as its head office. A
Member State may in addition impose on SEs registered in its
territory the obligation of locating their head office and their
registered office in the same place.

Article 8

The registered office of an SE may be transferred to
1.
another Member State in accordance with paragraphs 2 to 13.
Such a transfer shall not result in the winding up of the SE or
in the creation of a new legal person.

(1) OJ L 395, 30.12.1989, p. 40. Directive as last amended by the

1994 Act of Accession.

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The management or administrative organ shall draw up
2.
in accordance with
a transfer proposal and publicise it
forms of
Article 13, without prejudice to any additional
publication provided for by the Member State of the registered
office. That proposal shall state the current name, registered
office and number of the SE and shall cover:

(a)

the proposed registered office of the SE;

(b)

the proposed statutes of the SE including, where appropri-
ate, its new name;

(c)

any implication the transfer may have on employees’
involvement;

(d)

the proposed transfer timetable;

(e)

any rights provided for the protection of shareholders
and/or creditors.

The management or administrative organ shall draw up
3.
a report explaining and justifying the legal and economic
aspects of the transfer and explaining the implications of the
transfer for shareholders, creditors and employees.

4.
An SE’s shareholders and creditors shall be entitled, at
least one month before the general meeting called upon to
decide on the transfer, to examine at the SE’s registered office
the transfer proposal and the report drawn up pursuant to
paragraph 3 and, on request,
those
documents free of charge.

to obtain copies of

5.
A Member State may, in the case of SEs registered within
its territory, adopt provisions designed to ensure appropriate
protection for minority shareholders who oppose a transfer.

6.
No decision to transfer may be taken for two months
after publication of the proposal. Such a decision shall be
taken as laid down in Article 59.

7.
Before the competent authority issues the certificate
mentioned in paragraph 8, the SE shall satisfy it that, in respect
of any liabilities arising prior to the publication of the transfer
proposal, the interests of creditors and holders of other rights
in respect of the SE (including those of public bodies) have
been adequately protected in accordance with requirements
laid down by the Member State where the SE has its registered
office prior to the transfer.

The first and second subparagraphs shall be without prejudice
to the application to SEs of the national legislation of Member
States concerning the satisfaction or securing of payments to
public bodies.

8.
In the Member State in which an SE has its registered
office the court, notary or other competent authority shall
issue a certificate attesting to the completion of the acts and
formalities to be accomplished before the transfer.

9.
The new registration may not be effected until the
certificate referred to in paragraph 8 has been submitted, and
evidence produced that the formalities required for registration
in the country of the new registered office have been com-
pleted.

The transfer of an SE’s registered office and the
10.
consequent amendment of its statutes shall take effect on the
date on which the SE is registered,
in accordance with
Article 12, in the register for its new registered office.

11. When the SE’s new registration has been effected, the
registry for its new registration shall notify the registry for its
old registration. Deletion of the old registration shall be
effected on receipt of that notification, but not before.

12.
the old
The new registration and the deletion of
registration shall be publicised in the Member States concerned
in accordance with Article 13.

On publication of an SE’s new registration, the new
13.
registered office may be relied on as against third parties.
However, as long as the deletion of the SE’s registration from
the register for its previous registered office has not been
publicised, third parties may continue to rely on the previous
registered office unless the SE proves that such third parties
were aware of the new registered office.

The laws of a Member State may provide that, as
14.
regards SEs registered in that Member State, the transfer of a
registered office which would result in a change of the law
applicable shall not take effect if any of that Member State’s
competent authorities opposes it within the two-month period
referred to in paragraph 6. Such opposition may be based only
on grounds of public interest.

Where an SE is supervised by a national financial supervisory
authority according to Community directives the right to
oppose the change of registered office applies to this authority
as well.

A Member State may extend the application of the first
subparagraph to liabilities that arise (or may arise) prior to the
transfer.

Review by a judicial authority shall be possible.

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15.
An SE may not transfer its registered office if proceed-
ings for winding up, liquidation, insolvency or suspension of
payments or other similar proceedings have been brought
against it.

16.
An SE which has transferred its registered office to
another Member State shall be considered, in respect of any
cause of action arising prior to the transfer as determined in
paragraph 10, as having its registered office in the Member
States where the SE was registered prior to the transfer, even if
the SE is sued after the transfer.

Article 9

1.

An SE shall be governed:

(a)

by this Regulation,

(b) where expressly authorised by this Regulation, by the

provisions of its statutes

or

(c)

in the case of matters not regulated by this Regulation or,
where matters are partly regulated by it, of those aspects
not covered by it, by:

(i)

(ii)

the provisions of laws adopted by Member States in
implementation of Community measures relating
specifically to SEs;

the provisions of Member States’ laws which would
apply to a public limited-liability company formed
in accordance with the law of the Member State in
which the SE has its registered office;

(iii)

the provisions of its statutes, in the same way as
for a public limited-liability company formed in
accordance with the law of the Member State in
which the SE has its registered office.

The provisions of

2.
laws adopted by Member States
specifically for the SE must be in accordance with Directives
applicable to public limited-liability companies referred to in
Annex I.

If the nature of the business carried out by an SE is
3.
regulated by specific provisions of national laws, those laws
shall apply in full to the SE.

Article 10

Subject to this Regulation, an SE shall be treated in every
Member State as if it were a public limited-liability company
formed in accordance with the law of the Member State in
which it has its registered office.

Article 11

The name of an SE shall be preceded or followed by the

1.
abbreviation SE.

2.

Only SEs may include the abbreviation SE in their name.

3.
Nevertheless, companies, firms and other legal entities
registered in a Member State before the date of entry into force
of this Regulation in the names of which the abbreviation SE
appears shall not be required to alter their names.

Article 12

1.
Every SE shall be registered in the Member State in which
it has its registered office in a register designated by the law of
that Member State in accordance with Article 3 of
the
first Council Directive (68/151/EEC) of 9 March 1968 on
coordination of safeguards which, for the protection of the
interests of members and others, are required by Member
States of companies within the meaning of
the second
paragraph of Article 58 of the Treaty, with a view to making
such safeguards equivalent throughout the Community (1).

2.
An SE may not be registered unless an agreement on
arrangements for employee involvement pursuant to Article 4
of Directive 2001/86/EC has been concluded, or a decision
pursuant to Article 3(6) of the Directive has been taken, or the
period for negotiations pursuant to Article 5 of the Directive
has expired without an agreement having been concluded.

In order for an SE to be registered in a Member State
3.
which has made use of the option referred to in Article 7(3) of
Directive 2001/86/EC, either an agreement pursuant
to
Article 4 of the Directive must have been concluded on the
including partici-
arrangements for employee involvement,
pation, or none of the participating companies must have been
governed by participation rules prior to the registration of the
SE.

4.
The statutes of the SE must not conflict at any time with
the arrangements for employee involvement which have been
so determined. Where new such arrangements determined
pursuant to the Directive conflict with the existing statutes,
the statutes shall to the extent necessary be amended.

In this case, a Member State may provide that the management
organ or the administrative organ of the SE shall be entitled to
proceed to amend the statutes without any further decision
from the general shareholders meeting.

(1) OJ L 65, 14.3.1968, p. 8. Directive as last amended by the 1994

Act of Accession.

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Article 13

Publication of the documents and particulars concerning an
SE which must be publicised under this Regulation shall be
effected in the manner laid down in the laws of the Member
State in which the SE has its registered office in accordance
with Directive 68/151/EEC.

Article 14

Notice of an SE’s registration and of the deletion of such
1.
a registration shall be published for information purposes in
the Official Journal of the European Communities after publication
in accordance with Article 13. That notice shall state the name,
number, date and place of registration of the SE, the date and
place of publication and the title of publication, the registered
office of the SE and its sector of activity.

2. Where the registered office of an SE is transferred in
accordance with Article 8, notice shall be published giving the
information provided for in paragraph 1, together with that
relating to the new registration.

The particulars referred to in paragraph 1 shall be
3.
forwarded to the Office for Official Publications of
the
European Communities within one month of the publication
referred to in Article 13.

TITLE II

FORMATION

S e c t i o n 1

General

Article 15

1.
Subject to this Regulation, the formation of an SE shall
be governed by the law applicable to public limited-liability
companies in the Member State in which the SE establishes its
registered office.

The registration of an SE shall be publicised in accordance

2.
with Article 13.

Article 16

An SE shall acquire legal personality on the date on

1.
which it is registered in the register referred to in Article 12.

assume the obligations arising out of such acts after its
registration, the natural persons, companies, firms or other
legal entities which performed those acts shall be jointly and
severally liable therefor, without limit,
in the absence of
agreement to the contrary.

S e c t i o n 2

Formation by merger

Article 17

An SE may be formed by means of a merger in

1.
accordance with Article 2(1).

2.

Such a merger may be carried out in accordance with:

(a)

the procedure for merger by acquisition laid down in
Article 3(1) of the third Council Directive (78/855/EEC)
of 9 October 1978 based on Article 54(3)(g) of the
Treaty concerning mergers of public limited-liability
companies (1) or

(b)

the procedure for merger by the formation of a new
company laid down in Article 4(1) of the said Directive.

In the case of a merger by acquisition, the acquiring company
shall take the form of an SE when the merger takes place. In
the case of a merger by the formation of a new company, the
SE shall be the newly formed company.

Article 18

For matters not covered by this section or, where a matter is
partly covered by it, for aspects not covered by it, each
company involved in the formation of an SE by merger shall
be governed by 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.

Article 19

The laws of a Member State may provide that a company
governed by the law of that Member State may not take part
in the formation of an SE by merger if any of that Member
State’s competent authorities opposes it before the issue of the
certificate referred to in Article 25(2).

2.
If acts have been performed in an SE’s name before its
registration in accordance with Article 12 and the SE does not

(1) OJ L 295, 20.10.1978, p. 36. Directive as last amended by the

1994 Act of Accession.

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Such opposition may be based only on grounds of public
interest. Review by a judicial authority shall be possible.

Article 20

The management or administrative organs of merging
1.
companies shall draw up draft terms of merger. The draft
terms of merger shall include the following particulars:

(a)

(b)

the name and registered office of each of the merging
companies together with those proposed for the SE;

the share-exchange ratio and the amount of any compen-
sation;

(b)

(c)

(d)

the register in which the documents referred to in
Article 3(2) of Directive 68/151/EEC are filed in respect
of each merging company, and the number of the entry
in that register;

an indication of the arrangements made in accordance
with Article 24 for the exercise of the rights of the
creditors of the company in question and the address at
which complete information on those arrangements may
be obtained free of charge;

an indication of the arrangements made in accordance
with Article 24 for the exercise of the rights of minority
shareholders of the company in question and the address
at which complete information on those arrangements
may be obtained free of charge;

(c)

the terms for the allotment of shares in the SE;

(e)

the name and registered office proposed for the SE.

(d)

(e)

(f)

(g)

the date from which the holding of shares in the SE will
entitle the holders to share in profits and any special
conditions affecting that entitlement;

the date from which the transactions of the merging
companies will be treated for accounting purposes as
being those of the SE;

the rights conferred by the SE on the holders of shares to
which special rights are attached and on the holders of
securities other than shares, or the measures proposed
concerning them;

any special advantage granted to the experts who examine
the draft terms of merger or to members of the adminis-
trative, management, supervisory or controlling organs
of the merging companies;

(h)

the statutes of the SE;

(i)

information on the procedures by which arrangements
for employee involvement are determined pursuant to
Directive 2001/86/EC.

The merging companies may include further items in the

2.
draft terms of merger.

Article 22

As an alternative to experts operating on behalf of each of the
merging companies, one or more independent experts as
defined in Article 10 of Directive 78/855/EEC, appointed for
those purposes at the joint request of the companies by a
judicial or administrative authority in the Member State of one
of the merging companies or of the proposed SE, may examine
the draft terms of merger and draw up a single report to all
the shareholders.

The experts shall have the right to request from each of the
merging companies any information they consider necessary
to enable them to complete their function.

Article 23

The general meeting of each of the merging companies

1.
shall approve the draft terms of merger.

2.
Employee involvement in the SE shall be decided pursu-
ant to Directive 2001/86/EC. The general meetings of each of
the merging companies may reserve the right
to make
registration of the SE conditional upon its express ratification
of the arrangements so decided.

Article 21

Article 24

the merging companies and subject

For each of
to the
additional requirements imposed by the Member State to
which the company concerned is subject,
the following
particulars shall be published in the national gazette of that
Member State:

The law of the Member State governing each merging
1.
company shall apply as in the case of a merger of public
limited-liability companies, taking into account the cross-
border nature of the merger, with regard to the protection of
the interests of:

(a)

the type, name and registered office of every merging
company;

(a)

creditors of the merging companies;

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(b) holders of bonds of the merging companies;

(c)

holders of securities, other than shares, which carry
special rights in the merging companies.

A Member State may,

2.
the merging
companies governed by its law, adopt provisions designed to
ensure appropriate protection for minority shareholders who
have opposed the merger.

in the case of

Article 25

2.
To that end each merging company shall submit to the
competent authority the certificate referred to in Article 25(2)
within six months of its issue together with a copy of the draft
terms of merger approved by that company.

3.
The authority referred to in paragraph 1 shall in particu-
lar ensure that the merging companies have approved draft
terms of merger in the same terms and that arrangements for
employee involvement have been determined pursuant to
Directive 2001/86/EC.

4.
That authority shall also satisfy itself that the SE has been
formed in accordance with the requirements of the law of the
Member State in which it has its registered office in accordance
with Article 15.

1.
The legality of a merger shall be scrutinised, as regards
the part of the procedure concerning each merging company,
in accordance with the law on mergers of public limited-
liability companies of the Member State to which the merging
company is subject.

Article 27

1.
A merger and the simultaneous formation of an SE shall
take effect on the date on which the SE is registered in
accordance with Article 12.

2.
In each Member State concerned the court, notary or
other competent authority shall issue a certificate conclusively
attesting to the completion of
the pre-merger acts and
formalities.

3.
If the law of a Member State to which a merging
company is subject provides for a procedure to scrutinise and
amend the share-exchange ratio, or a procedure to compensate
minority shareholders, without preventing the registration of
the merger, such procedures shall only apply if the other
merging companies situated in Member States which do not
provide for such procedure explicitly accept, when approving
the draft terms of the merger in accordance with Article 23(1),
the possibility for the shareholders of that merging company
to have recourse to such procedure. In such cases, the court,
notary or other competent authorities may issue the certificate
referred to in paragraph 2 even if such a procedure has been
commenced. The certificate must, however, indicate that the
procedure is pending. The decision in the procedure shall be
binding on the acquiring company and all its shareholders.

Article 26

The SE may not be registered until

2.
provided for in Articles 25 and 26 have been completed.

the formalities

Article 28

For each of the merging companies the completion of the
merger shall be publicised as laid down by the law of each
Member State in accordance with Article 3 of Directive
68/151/EEC.

Article 29

A merger carried out as laid down in Article 17(2)(a) shall
1.
have the following consequences ipso jure and simultaneously:

(a)

(b)

the assets and liabilities of each company being

all
acquired are transferred to the acquiring company;

the shareholders of the company being acquired become
shareholders of the acquiring company;

(c)

the company being acquired ceases to exist;

(d)

the acquiring company adopts the form of an SE.

1.
The legality of a merger shall be scrutinised, as regards
the part of the procedure concerning the completion of the
merger and the formation of the SE, by the court, notary or
other authority competent in the Member State of the proposed
registered office of the SE to scrutinise that aspect of the
legality of mergers of public limited-liability companies.

2.
A merger carried out as laid down in Article 17(2)(b) shall
have the following consequences ipso jure and simultaneously:

(a)

all the assets and liabilities of the merging companies are
transferred to the SE;

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(b)

the shareholders of
shareholders of the SE;

the merging companies become

Member States may, however, provide that this paragraph may
apply where a company holds shares conferring 90 % or more
but not all of the voting rights.

(c)

the merging companies cease to exist.

3. Where, in the case of a merger of public limited-liability
companies, the law of a Member State requires the completion
of any special formalities before the transfer of certain assets,
rights and obligations by the merging companies becomes
effective against third parties, those formalities shall apply and
shall be carried out either by the merging companies or by the
SE following its registration.

4.
The rights and obligations of the participating companies
on terms and conditions of employment arising from national
law, practice and individual employment contracts or employ-
ment relationships and existing at the date of the registration
shall, by reason of such registration be transferred to the SE
upon its registration.

Article 30

A merger as provided for in Article 2(1) may not be declared
null and void once the SE has been registered.

The absence of scrutiny of the legality of the merger pursuant
to Articles 25 and 26 may be included among the grounds for
the winding-up of the SE.

Article 31

1. Where a merger within the meaning of Article 17(2)(a)
is carried out by a company which holds all the shares and
other securities conferring the right to vote at general meetings
of another company, neither Article 20(1)(b),
(c) and (d),
law
Article 29(1)(b) nor Article 22 shall apply. National
governing each merging company and mergers of public
limited-liability companies in accordance with Article 24 of
Directive 78/855/EEC shall nevertheless apply.

2. Where a merger by acquisition is carried out by a
company which holds 90 % or more but not all of the shares
and other securities conferring the right to vote at general
meetings of another company, reports by the management or
administrative body, reports by an independent expert or
experts and the documents necessary for scrutiny shall be
required only to the extent that the national law governing
either the acquiring company or the company being acquired
so requires.

S e c t i o n 3

Formation of a holding SE

Article 32

A holding SE may be formed in accordance with

1.
Article 2(2).

A company promoting the formation of a holding SE in
accordance with Article 2(2) shall continue to exist.

The management or administrative organs of the com-
2.
panies which promote such an operation shall draw up, in the
same terms, draft terms for the formation of the holding SE.
The draft terms shall include a report explaining and justifying
the legal and economic aspects of the formation and indicating
the implications for the shareholders and for the employees of
the adoption of the form of a holding SE. The draft terms shall
also set out the particulars provided for in Article 20(1)(a), (b),
(c), (f), (g), (h) and (i) and shall fix the minimum proportion of
the shares in each of the companies promoting the operation
which the shareholders must contribute to the formation of
the holding SE. That proportion shall be shares conferring
more than 50 % of the permanent voting rights.

3.
For each of the companies promoting the operation, the
draft terms for the formation of the holding SE shall be
publicised in the manner laid down in each Member State’s
law in accordance with Article 3 of Directive
national
68/151/EEC at least one month before the date of the general
meeting called to decide thereon.

4.
One or more experts independent of the companies
promoting the operation, appointed or approved by a judicial
or administrative authority in the Member State to which each
company is subject in accordance with national provisions
adopted in implementation of Directive 78/855/EEC, shall
examine the draft terms of formation drawn up in accordance
with paragraph 2 and draw up a written report for the
shareholders of each company. By agreement between the
companies promoting the operation, a single written report
may be drawn up for the shareholders of all the companies by
one or more independent experts, appointed or approved by a
judicial or administrative authority in the Member State to
which one of the companies promoting the operation or the
proposed SE is subject in accordance with national provisions
adopted in implementation of Directive 78/855/EEC.

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5.
The report shall indicate any particular difficulties of
valuation and state whether the proposed share-exchange ratio
is fair and reasonable, indicating the methods used to arrive at
it and whether such methods are adequate in the case in
question.

The general meeting of each company promoting the
6.
operation shall approve the draft terms of formation of the
holding SE.

Employee involvement in the holding SE shall be decided
pursuant to Directive 2001/86/EC. The general meetings of
each company promoting the operation may reserve the right
to make registration of the holding SE conditional upon its
express ratification of the arrangements so decided.

These provisions shall apply mutatis mutandis to private

7.
limited-liability companies.

Article 33

The shareholders of the companies promoting such an
1.
operation shall have a period of three months in which to
inform the promoting companies whether they intend to
contribute their shares to the formation of the holding SE.
That period shall begin on the date upon which the terms for
the formation of the holding SE have been finally determined
in accordance with Article 32.

The holding SE shall be formed only if, within the period
2.
referred to in paragraph 1, the shareholders of the companies
promoting the operation have assigned the minimum pro-
portion of shares in each company in accordance with the
draft terms of formation and if all the other conditions are
fulfilled.

3.
If the conditions for the formation of the holding SE are
all fulfilled in accordance with paragraph 2, that fact shall, in
respect of each of the promoting companies, be publicised in
the manner laid down in the national law governing each of
those companies adopted in implementation of Article 3 of
Directive 68/151/EEC.

Shareholders of the companies promoting the operation who
have not indicated whether they intend to make their shares
available to the promoting companies for the purpose of
forming the holding SE within the period referred to in
paragraph 1 shall have a further month in which to do so.

4.
Shareholders who have contributed their securities to
the formation of the SE shall receive shares in the holding SE.

Article 34

A Member State may, in the case of companies promoting
such an operation, adopt provisions designed to ensure
protection for minority shareholders who oppose the oper-
ation, creditors and employees.

S e c t i o n 4

Formation of a subsidiary SE

Article 35

An SE may be formed in accordance with Article 2(3).

Article 36

Companies, firms and other legal entities participating in such
an operation shall be subject to the provisions governing their
participation in the formation of a subsidiary in the form of a
public limited-liability company under national law.

S e c t i o n 5

Conversion of an existing public limited-liability company
into an SE

Article 37

1.

An SE may be formed in accordance with Article 2(4).

2. Without prejudice to Article 12 the conversion of a
public limited-liability company into an SE shall not result in
the winding up of the company or in the creation of a new
legal person.

The registered office may not be transferred from one
3.
Member State to another pursuant to Article 8 at the same
time as the conversion is effected.

The management or administrative organ of the com-
4.
pany in question shall draw up draft terms of conversion and
a report explaining and justifying the legal and economic
aspects of the conversion and indicating the implications for
the shareholders and for the employees of the adoption of the
form of an SE.

The holding SE may not be registered until it is shown
5.
the formalities referred to in Article 32 have been
that
completed and that the conditions referred to in paragraph 2
have been fulfilled.

5.
The draft terms of conversion shall be publicised in the
manner laid down in each Member State’s law in accordance
with Article 3 of Directive 68/151/EEC at least one month
before the general meeting called upon to decide thereon.

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6.
Before the general meeting referred to in paragraph 7
one or more independent experts appointed or approved, in
accordance with the national provisions adopted in implemen-
tation of Article 10 of Directive 78/855/EEC, by a judicial or
administrative authority in the Member State to which the
company being converted into an SE is subject shall certify in
compliance with Directive 77/91/EEC (1) mutatis mutandis that
the company has net assets at least equivalent to its capital
plus those reserves which must not be distributed under the
law or the Statutes.

7.
The general meeting of the company in question shall
approve the draft terms of conversion together with the
statutes of the SE. The decision of the general meeting shall be
passed as laid down in the provisions of national law adopted
in implementation of Article 7 of Directive 78/855/EEC.

8. Member States may condition a conversion to a favour-
able vote of a qualified majority or unanimity in the organ
of the company to be converted within which employee
participation is organised.

The rights and obligations of

9.
the company to be
converted on terms and conditions of employment arising
from national law, practice and individual employment con-
tracts or employment relationships and existing at the date of
the registration shall, by reason of such registration be
transferred to the SE.

TITLE III

STRUCTURE OF THE SE

Article 38

S e c t i o n 1

Two-tier system

Article 39

1.
The management organ shall be responsible for manag-
ing the SE. A Member State may provide that a managing
director or managing directors shall be responsible for the
current management under the same conditions as for public
limited-liability companies that have registered offices within
that Member State’s territory.

The member or members of the management organ shall

2.
be appointed and removed by the supervisory organ.

A Member State may, however, require or permit the statutes
to provide that the member or members of the management
organ shall be appointed and removed by the general meeting
under the same conditions as for public limited-liability
companies that have registered offices within its territory.

3.
No person may at the same time be a member of both
the management organ and the supervisory organ of the same
SE. The supervisory organ may, however, nominate one of its
members to act as a member of the management organ in the
event of a vacancy. During such a period the functions of the
person concerned as a member of the supervisory organ shall
be suspended. A Member State may impose a time limit on
such a period.

4.
The number of members of the management organ or
the rules for determining it shall be laid down in the SE’s
statutes. A Member State may, however, fix a minimum and/or
a maximum number.

Under the conditions laid down by this Regulation an SE shall
comprise:

(a)

a general meeting of shareholders and

5. Where no provision is made for a two-tier system in
relation to public limited-liability companies with registered
offices within its territory, a Member State may adopt the
appropriate measures in relation to SEs.

(b)

either a supervisory organ and a management organ
(two-tier system) or an administrative organ (one-tier
system) depending on the form adopted in the statutes.

Article 40

(1) Second Council Directive 77/91/EEC of 13 December 1976 on
coordination of safeguards which, for the protection of the
interests of members and others, are required by Member States
of companies within the meaning of the second paragraph of
Article 58 of the Treaty, in respect of the formation of public
limited liability companies and the maintenance and alteration of
their capital, with a view to making such safeguards equivalent
(OJ L 26, 31.1.1977, p. 1). Directive as last amended by the 1994
Act of Accession.

1.
The supervisory organ shall supervise the work of the
management organ. It may not itself exercise the power to
manage the SE.

2.
The members of the supervisory organ shall be appointed
by the general meeting. The members of the first supervisory
organ may, however, be appointed by the statutes. This shall
apply without prejudice to Article 47(4) or to any employee
participation arrangements determined pursuant to Directive
2001/86/EC.

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3.
The number of members of the supervisory organ or the
rules for determining it shall be laid down in the statutes. A
Member State may, however, stipulate the number of members
of the supervisory organ for SEs registered within its territory
or a minimum and/or a maximum number.

2.
The number of members of the administrative organ or
the rules for determining it shall be laid down in the SE’s
statutes. A Member State may, however, set a minimum and,
where necessary, a maximum number of members.

Article 41

The administrative organ shall, however, consist of at least
three members where employee participation is regulated in
accordance with Directive 2001/86/EC.

1.
The management organ shall report to the supervisory
organ at least once every three months on the progress and
foreseeable development of the SE’s business.

In addition to the regular information referred to in
2.
paragraph 1, the management organ shall promptly pass the
supervisory organ any information on events likely to have an
appreciable effect on the SE.

3.
The supervisory organ may require the management
organ to provide information of any kind which it needs to
exercise supervision in accordance with Article 40(1). A
Member State may provide that each member of the supervis-
ory organ also be entitled to this facility.

The supervisory organ may undertake or arrange for any

4.
investigations necessary for the performance of its duties.

Each member of the supervisory organ shall be entitled

5.
to examine all information submitted to it.

Article 42

The supervisory organ shall elect a chairman from among its
members. If half of the members are appointed by employees,
only a member appointed by the general meeting of share-
holders may be elected chairman.

The member or members of the administrative organ
3.
shall be appointed by the general meeting. The members of
the first administrative organ may, however, be appointed by
the statutes. This shall apply without prejudice to Article 47(4)
or to any employee participation arrangements determined
pursuant to Directive 2001/86/EC.

4. Where no provision is made for a one-tier system in
relation to public limited-liability companies with registered
offices within its territory, a Member State may adopt the
appropriate measures in relation to SEs.

Article 44

1.
The administrative organ shall meet at least once every
three months at intervals laid down by the statutes to discuss
the progress and foreseeable development of the SE’s business.

Each member of the administrative organ shall be entitled

2.
to examine all information submitted to it.

Article 45

The administrative organ shall elect a chairman from among
its members.
the members are appointed by
employees, only a member appointed by the general meeting
of shareholders may be elected chairman.

If half of

S e c t i o n 2

The one-tier system

S e c t i o n 3

Article 43

Rules common to the one-tier and two-tier systems

1.
The administrative organ shall manage the SE. A Member
State may provide that a managing director or managing
directors shall be responsible for the day-to-day management
under the same conditions as for public limited-liability
companies that have registered offices within that Member
State’s territory.

Article 46

1. Members of company organs shall be appointed for a
period laid down in the statutes not exceeding six years.

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2.
Subject to any restrictions laid down in the statutes,
members may be reappointed once or more than once for the
period determined in accordance with paragraph 1.

Article 47

1.
An SE’s statutes may permit a company or other legal
entity to be a member of one of its organs, provided that the
law applicable to public limited-liability companies in the
Member State in which the SE’s registered office is situated
does not provide otherwise.

That company or other legal entity shall designate a natural
person to exercise its functions on the organ in question.

2.
No person may be a member of any SE organ or a
representative of a member within the meaning of paragraph 1
who:

(a)

(b)

is disqualified, under the law of the Member State in
which the SE’s registered office is situated, from serving
on the corresponding organ of a public limited-liability
company governed by the law of that Member State, or

is disqualified from serving on the corresponding organ
of a public limited-liability company governed by the law
of a Member State owing to a judicial or administrative
decision delivered in a Member State.

An SE’s statutes may,

3.
in accordance with the law
applicable to public limited-liability companies in the Member
State in which the SE’s registered office is situated, lay down
special conditions of eligibility for members representing the
shareholders.

4.
This Regulation shall not affect national law permitting
a minority of shareholders or other persons or authorities to
appoint some of the members of a company organ.

Article 48

1.
An SE’s statutes shall list the categories of transactions
which require authorisation of the management organ by the
supervisory organ in the two-tier system or an express decision
by the administrative organ in the one-tier system.

A Member State may, however, provide that in the two-tier
system the supervisory organ may itself make certain categories
of transactions subject to authorisation.

Article 49

The members of an SE’s organs shall be under a duty, even
after they have ceased to hold office, not to divulge any
information which they have concerning the SE the disclosure
of which might be prejudicial to the company’s interests,
except where such disclosure is required or permitted under
national law provisions applicable to public limited-liability
companies or is in the public interest.

Article 50

1.
Unless otherwise provided by this Regulation or the
statutes, the internal rules relating to quorums and decision-
taking in SE organs shall be as follows:

(a)

quorum: at least half of the members must be present or
represented;

(b) decision-taking: a majority of the members present or

represented.

2. Where there is no relevant provision in the statutes, the
chairman of each organ shall have a casting vote in the event
of a tie. There shall be no provision to the contrary in the
statutes, however, where half of the supervisory organ consists
of employees’ representatives.

3. Where employee participation is provided for in accord-
ance with Directive 2001/86/EC, a Member State may provide
that the supervisory organ’s quorum and decision-making
shall, by way of derogation from the provisions referred to in
paragraphs 1 and 2, be subject to the rules applicable, under
the same conditions, to public limited-liability companies
governed by the law of the Member State concerned.

Article 51

Members of an SE’s management, supervisory and administrat-
ive organs shall be liable, in accordance with the provisions
applicable to public limited-liability companies in the Member
State in which the SE’s registered office is situated, for loss or
damage sustained by the SE following any breach on their part
of the legal, statutory or other obligations inherent in their
duties.

S e c t i o n 4

General meeting

Article 52

A Member State may determine the categories of trans-
2.
actions which must at least be indicated in the statutes of SEs
registered within its territory.

The general meeting shall decide on matters for which it is
given sole responsibility by:

(a)

this Regulation or

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(b)

the legislation of the Member State in which the SE’s
registered office is situated adopted in implementation of
Directive 2001/86/EC.

Furthermore, the general meeting shall decide on matters for
which responsibility is given to the general meeting of a public
limited-liability company governed by the law of the Member
State in which the SE’s registered office is situated, either by
the law of that Member State or by the SE’s statutes in
accordance with that law.

Article 53

Without prejudice to the rules laid down in this section, the
organisation and conduct of general meetings together with
voting procedures shall be governed by the law applicable to
public limited-liability companies in the Member State in
which the SE’s registered office is situated.

a given period or authorise either the shareholders who have
requested it or their representatives to convene a general
meeting. This shall be without prejudice to any national
provisions which allow the shareholders themselves to con-
vene general meetings.

Article 56

One or more shareholders who together hold at least 10 % of
an SE’s subscribed capital may request that one or more
additional items be put on the agenda of any general meeting.
The procedures and time limits applicable to such requests
shall be laid down by the national law of the Member State in
which the SE’s registered office is situated or, failing that, by
the SE’s statutes. The above proportion may be reduced by the
statutes or by the law of the Member State in which the SE’s
registered office is situated under the same conditions as are
applicable to public limited-liability companies.

Article 54

Article 57

1.
An SE shall hold a general meeting at least once each
calendar year, within six months of the end of its financial
year, unless the law of the Member State in which the SE’s
registered office is situated applicable to public limited-liability
companies carrying on the same type of activity as the SE
provides for more frequent meetings. A Member State may,
however, provide that the first general meeting may be held at
any time in the 18 months following an SE’s incorporation.

2.
General meetings may be convened at any time by the
management organ, the administrative organ, the supervisory
organ or any other organ or competent authority in accordance
law applicable to public limited-liability
with the national
companies in the Member State in which the SE’s registered
office is situated.

Save where this Regulation or, failing that, the law applicable
to public limited-liability companies in the Member State in
which an SE’s registered office is situated requires a larger
majority, the general meeting’s decisions shall be taken by a
majority of the votes validly cast.

Article 58

The votes cast shall not include votes attaching to shares in
respect of which the shareholder has not taken part in the vote
or has abstained or has returned a blank or spoilt ballot paper.

Article 55

Article 59

1.
One or more shareholders who together hold at least
10 % of an SE’s subscribed capital may request the SE to
convene a general meeting and draw up the agenda therefor;
the SE’s statutes or national
legislation may provide for a
smaller proportion under the same conditions as those appli-
cable to public limited-liability companies.

Amendment of an SE’s statutes shall require a decision
1.
by the general meeting taken by a majority which may not be
less than two thirds of the votes cast, unless the law applicable
to public limited-liability companies in the Member State in
which an SE’s registered office is situated requires or permits a
larger majority.

The request that a general meeting be convened shall

2.
state the items to be put on the agenda.

3.
If, following a request made under paragraph 1, a general
meeting is not held in due time and, in any event, within
two months, the competent judicial or administrative authority
within the jurisdiction of which the SE’s registered office is
situated may order that a general meeting be convened within

2.
A Member State may, however, provide that where at
least half of an SE’s subscribed capital is represented, a simple
majority of the votes referred to in paragraph 1 shall suffice.

Amendments to an SE’s statutes shall be publicised in

3.
accordance with Article 13.

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Article 60

TITLE V

1. Where an SE has two or more classes of shares, every
decision by the general meeting shall be subject to a separate
vote by each class of shareholders whose class rights are
affected thereby.

WINDING UP, LIQUIDATION,
INSOLVENCY AND CESSATION OF PAYMENTS

Article 63

2. Where a decision by the general meeting requires the
majority of votes specified in Article 59(1) or (2), that majority
shall also be required for the separate vote by each class of
shareholders whose class rights are affected by the decision.

As regards winding up, liquidation, insolvency, cessation of
payments and similar procedures, an SE shall be governed by
the legal provisions which would apply to a public limited-
liability company formed in accordance with the law of the
Member State in which its registered office is situated, including
provisions relating to decision-making by the general meeting.

TITLE IV

Article 64

ANNUAL ACCOUNTS AND CONSOLIDATED ACCOUNTS

Article 61

Subject to Article 62 an SE shall be governed by the rules
applicable to public limited-liability companies under the law
of the Member State in which its registered office is situated as
regards the preparation of its annual and, where appropriate,
consolidated accounts including the accompanying annual
report and the auditing and publication of those accounts.

Article 62

An SE which is a credit or financial institution shall be
1.
governed by the rules laid down in the national law of the
Member State in which its registered office is situated in
implementation of Directive 2000/12/EC of the European
Parliament and of the Council of 20 March 2000 relating to the
taking up and pursuit of the business of credit institutions (1) as
regards the preparation of its annual and, where appropriate,
consolidated accounts,
including the accompanying annual
report and the auditing and publication of those accounts.

2.
An SE which is an insurance undertaking shall be
governed by the rules laid down in the national law of the
Member State in which its registered office is situated in
implementation of Council Directive 91/674/EEC of
19 December 1991 on the annual accounts and consolidated
accounts of insurance undertakings (2) as regards the prep-
aration of its annual and, where appropriate, consolidated
accounts including the accompanying annual report and the
auditing and publication of those accounts.

(1) OJ L 126, 26.5.2000, p. 1.
(2) OJ L 374, 31.12.1991, p. 7.

1. When an SE no longer complies with the requirement
laid down in Article 7, the Member State in which the SE’s
registered office is situated shall take appropriate measures
to oblige the SE to regularise its position within a specified
period either:

(a)

by re-establishing its head office in the Member State in
which its registered office is situated or

(b) by transferring the registered office by means of the

procedure laid down in Article 8.

2.
The Member State in which the SE’s registered office is
situated shall put in place the measures necessary to ensure
that an SE which fails to regularise its position in accordance
with paragraph 1 is liquidated.

3.
The Member State in which the SE’s registered office is
situated shall set up a judicial remedy with regard to any
established infringement of Article 7. That remedy shall
have a suspensory effect on the procedures laid down in
paragraphs 1 and 2.

4. Where it is established on the initiative of either the
authorities or any interested party that an SE has its head office
within the territory of a Member State in breach of Article 7,
the authorities of that Member State shall immediately inform
the Member State in which the SE’s registered office is situated.

Article 65

Without prejudice to provisions of national
law requiring
additional publication, the initiation and termination of wind-
insolvency or cessation of payment
ing up,
procedures and any decision to continue operating shall be
publicised in accordance with Article 13.

liquidation,

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Official Journal of the European Communities

L 294/17

Article 66

1.
An SE may be converted into a public limited-liability
company governed by the law of the Member State in which
its registered office is situated. No decision on conversion may
be taken before two years have elapsed since its registration or
two sets of annual accounts have been
before the first
approved.

The conversion of an SE into a public limited-liability
2.
company shall not result in the winding up of the company or
in the creation of a new legal person.

3.
The management or administrative organ of the SE shall
draw up draft terms of conversion and a report explaining and
justifying the legal and economic aspects of the conversion
and indicating the implications of the adoption of the public
limited-liability company for the shareholders and for the
employees.

The draft terms of conversion shall be publicised in the
4.
manner laid down in each Member State’s law in accordance
with Article 3 of Directive 68/151/EEC at least one month
before the general meeting called to decide thereon.

5.
Before the general meeting referred to in paragraph 6,
one or more independent experts appointed or approved, in
accordance with the national provisions adopted in implemen-
tation of Article 10 of Directive 78/855/EEC, by a judicial or
administrative authority in the Member State to which the SE
being converted into a public limited-liability company is
subject shall certify that the company has assets at least
equivalent to its capital.

6.
The general meeting of the SE shall approve the draft
terms of conversion together with the statutes of the public
limited-liability company. The decision of the general meeting
shall be passed as laid down in the provisions of national
law adopted in implementation of Article 7 of Directive
78/855/EEC.

TITLE VI

ADDITIONAL AND TRANSITIONAL PROVISIONS

Article 67

1.
If and so long as the third phase of economic and
monetary union (EMU) does not apply to it each Member State
may make SEs with registered offices within its territory
subject to the same provisions as apply to public limited-

liability companies covered by its legislation as regards the
expression of their capital. An SE may, in any case, express its
capital in euro as well. In that event the national currency/euro
conversion rate shall be that for the last day of the month
preceding that of the formation of the SE.

If and so long as the third phase of EMU does not apply
2.
to the Member State in which an SE has its registered office,
the SE may, however, prepare and publish its annual and,
where appropriate, consolidated accounts in euro. The Member
State may require that the SE’s annual and, where appropriate,
consolidated accounts be prepared and published in the
national currency under the same conditions as those laid
down for public limited-liability companies governed by the
law of that Member State. This shall not prejudge the additional
possibility for an SE of publishing its annual and, where
appropriate, consolidated accounts in euro in accordance with
Council Directive 90/604/EEC of 8 November 1990 amending
Directive 78/60/EEC on annual accounts and Directive
83/349/EEC on consolidated accounts as concerns the exemp-
tions for small and medium-sized companies and the publi-
cation of accounts in ecu (1).

TITLE VII

FINAL PROVISIONS

Article 68

1.
The Member States shall make such provision as is
appropriate to ensure the effective application of this Regu-
lation.

2.
Each Member State shall designate the competent auth-
orities within the meaning of Articles 8, 25, 26, 54, 55 and
64. It shall inform the Commission and the other Member
States accordingly.

Article 69

Five years at the latest after the entry into force of this
Regulation, the Commission shall forward to the Council and
the European Parliament a report on the application of the
Regulation and proposals for amendments, where appropriate.
The report shall, in particular, analyse the appropriateness of:

(a)

allowing the location of an SE’s head office and registered
office in different Member States;

(b) broadening the concept of merger in Article 17(2) in
order to admit also other types of merger than those
defined in Articles 3(1) and 4(1) of Directive 78/855/EEC;

(1) OJ L 317, 16.11.1990, p. 57.

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Official Journal of the European Communities

10.11.2001

(c)

revising the jurisdiction clause in Article 8(16) in the light
of any provision which may have been inserted in the
1968 Brussels Convention or in any text adopted by
Member States or by the Council to replace such Conven-
tion;

ensure the effective application of this Regulation in
respect to the SE which deviate from or are complemen-
tary to these laws, even when such provisions would not
be authorised in the statutes of a public limited-liability
company having its registered office in the Member State.

(d)

allowing provisions in the statutes of an SE adopted by a
Member State in execution of authorisations given to the
Member States by this Regulation or laws adopted to

Article 70

This Regulation shall enter into force on 8 October 2004.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Luxembourg, 8 October 2001.

For the Council

The President

L. ONKELINX

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ANNEX I

PUBLIC LIMITED-LIABILITY COMPANIES REFERRED TO IN ARTICLE 2(1)

BELGIUM:

la société anonyme/de naamloze vennootschap

DENMARK:

aktieselskaber

GERMANY:

die Aktiengesellschaft

GREECE:

Æ(cid:237)ø·(cid:237)ı(cid:236)(cid:231) (cid:229)(cid:244)ÆØæØ·Æ

SPAIN:

la sociedad ano´ nima

FRANCE:

la société anonyme

IRELAND:

public companies limited by shares

public companies limited by guarantee having a share capital

ITALY:

società per azioni

LUXEMBOURG:

la société anonyme

NETHERLANDS:

de naamloze vennootschap

AUSTRIA:

die Aktiengesellschaft

PORTUGAL:

a sociedade ano´ nima de responsabilidade limitada

FINLAND:

julkinen osakeyhtiö/publikt aktiebolag

SWEDEN:

publikt aktiebolag

UNITED KINGDOM:

public companies limited by shares

public companies limited by guarantee having a share capital

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ANNEX II

PUBLIC AND PRIVATE LIMITED-LIABILITY COMPANIES REFERRED TO IN ARTICLE 2(2)

BELGIUM:

la société anonyme/de naamloze vennootschap,

la société privée à responsabilité limitée/besloten vennootschap met beperkte aansprakelijkheid

DENMARK:

aktieselskaber,

anpartselskaber

GERMANY:

die Aktiengesellschaft,

die Gesellschaft mit beschränkter Haftung

GREECE:

Æ(cid:237)ø·(cid:237)ı(cid:236)(cid:231) (cid:229)(cid:244)ÆØæØ·Æ

(cid:229)(cid:244)ÆØæØ·Æ (cid:240)(cid:229)æØ(cid:239)æØ(cid:243)(cid:236)(cid:229)·(cid:237)(cid:231)(cid:242) (cid:229)ıŁı·(cid:237)(cid:231)(cid:242)

SPAIN:

la sociedad ano´ nima,

la sociedad de responsabilidad limitada

FRANCE:

la société anonyme,

la société à responsabilité limitée

IRELAND:

public companies limited by shares,

public companies limited by guarantee having a share capital,

private companies limited by shares,

private companies limited by guarantee having a share capital

ITALY:

società per azioni,

società a responsabilità limitata

LUXEMBOURG:

la société anonyme,

la société à responsabilité limitée

NETHERLANDS:

de naamloze vennootschap,

de besloten vennootschap met beperkte aansprakelijkheid

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Official Journal of the European Communities

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AUSTRIA:

die Aktiengesellschaft,

die Gesellschaft mit beschränkter Haftung

PORTUGAL:

a sociedade ano´ nima de responsabilidade limitada,

a sociedade por quotas de responsabilidade limitada

FINLAND:

osakeyhtiö

aktiebolag

SWEDEN:

aktiebolag

UNITED KINGDOM:

public companies limited by shares,

public companies limited by guarantee having a share capital,

private companies limited by shares,

private companies limited by guarantee having a share capital