Proposal for a Council Regulation on the statute for a European private company {SEC(2008) 2098} {SEC(2008) 2099}
Date: 2008-06-25
Institutions: European Commission
Subjects: European company, legal status, private sector, small business

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 25.6.2008 
COM(2008) 396 final 

2008/0130 (CNS) 

Proposal for a 

COUNCIL REGULATION 

on the Statute for a European private company 

(presented by the Commission) 

{SEC(2008) 2098} 
{SEC(2008) 2099} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT 

The Commission's communication on the Single Market for 21st century Europe1 stresses the 
need for the continuous improvement of the framework conditions for businesses in the Single 
Market.  

Small and medium-sized enterprises (SMEs) account for more than 99% of companies in the 
European Union but only 8% of them engage in cross-border trade and 5% have subsidiaries 
or joint ventures abroad. While it has become easier in recent years to set up businesses across 
the EU, more needs to be done to improve the access of SMEs to the Single Market, facilitate 
their growth and unlock their business potential.  

The European Private Company Statute (Societas Privata Europaea) forms part of a package 
of measures designed to assist SMEs, referred to as the Small Business Act for Europe (SBA). 
The objective of the SBA is to make it easier for SMEs to do business in the Single Market 
and  consequently  to  improve  their  market  performance.  The  SPE  is  one  of  the  priority 
initiatives of the Commission's 2008 Work Programme2.  

2. 

OBJECTIVES OF THE PROPOSAL 

The initiative creates a new European legal form intended to enhance the competitiveness of 
SMEs  by  facilitating  their  establishment  and  operation  in  the  Single  Market.  At  the  same 
time, the Statute has the potential to benefit larger companies and groups. 

The  proposal  for  a  Statute  for  an  SPE  is  adapted  to  the  specific  needs  of  SMEs.  It  allows 
entrepreneurs to set up an SPE following the same, simple, flexible company law provisions 
across the Member States.  

The proposal also aims to reduce compliance costs on the creation and operation of businesses 
arising from the disparities between national rules both on the formation and on the operation 
of companies.  

The  proposal  does  not  regulate  matters  related  to  labour  law,  tax  law,  accounting,  or  the 
insolvency of the SPE. Nor does it deal with the contractual rights and obligations of the SPE 
or  those  of  its  shareholders  other  than  those  deriving  from  the  articles  of  association  of  the 
SPE. These matters will continue to be governed by national law and existing Community law 
instruments, where relevant. 

The choice of SPE as a legal form to conduct business activities in the EU should be neutral 
from  a  tax  perspective.  It  is  therefore  important  to  ensure  that  the  SPE  enjoys  the  same  tax 
treatment  as  similar  national  legal  forms.  To  this  end,  the  European  Commission  intends  to 

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Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic and Social Committee and the Committee of the Regions: "A single market for 21st century 
Europe" - COM(2007) 724, 20.11.2007. 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic and Social Committee and the Committee of Regions: "Commission Legislative and Work 
Programme 2008" - COM(2007) 640. 

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begin  discussions  with  Member  States  in  autumn  2008  with  a  view  to  tabling  a  proposal  to 
extend  to  the  SPE  the  scope  of  the  Parent  Subsidiary  Directive  (90/435/EEC)3,  the  Merger 
Directive  (90/434/EEC)4  and  the  Interest  and  Royalties  Directive  (2003/49/EC)5.  The 
Commission's objective is to ensure that these measures are in place and benefit SPEs from 
the start of their operations. 

3. 

LEGAL BASIS 

The proposal is based on Article 308 of the EC Treaty. This provision provides the legal basis 
for  EU  actions  aiming  to  attain  one  of  the  Community  objectives  in  the  absence  of  any 
specific legal basis in the EC Treaty. Article 308 is the legal basis of the existing European 
company forms, i.e. the European Company, the European Economic Interest Grouping and 
the European Co-operative Society. 

4. 

SUBSIDIARITY AND PROPORTIONALITY 

The  proposal  aims  to  make  the  Single  Market  more  accessible  to  SMEs  by  providing  them 
with  an  instrument  that  facilitates  the  expansion  of  their  activities  in  other  Member  States. 
However,  the  proposal  does  not  make  the  creation  of  an  SPE  subject  to  a  cross-border 
requirement  (e.g.  shareholders  from  different  Member  States  or  evidence  of  cross-border 
activity).  In  practice,  entrepreneurs  usually  set  up  businesses  in  their  own  Member  State 
before  expanding  to  other  countries.  An  initial  cross-border  requirement  would,  therefore, 
significantly  reduce  the  potential  of  the  instrument.  In  addition,  a  cross-border  requirement 
could  easily  be  circumvented  and  monitoring  and  enforcing  it  would  put  an  unreasonable 
burden on Member States.  

Action at EU level is necessary to enable SMEs to use the same company form across the EU. 
This  objective  cannot  be  achieved  by  the  Member  States  themselves.  Even  if  all  Member 
States committed to making their corporate legislations more business-friendly, SMEs would 
still face a patchwork of 27 national regimes. 

By offering SMEs a corporate vehicle that is uniform and legally certain, yet flexible, the SPE 
would  constitute  the  most  effective  and  targeted  means  of  achieving  the  objective  set  out 
above. An alternative means of achieving the same objective would be to harmonise at least 
the  core  provisions  of  national  company  law  regimes  applicable  to  private  limited-liability 
companies. This solution would entail a significant and probably disproportionate intrusion in 
Member  States'  legislations.  In  contrast  to  harmonisation,  this  proposal  leaves  national  law 
largely untouched. It provides SMEs with an alternative form that would exist in parallel to 
national company forms.  

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Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case 
of parent companies and subsidiaries of different Member States (OJ L 225, 22.9.1990, p. 6). 
Council  Directive  90/434/EEC  of  23  July  1990  on  the  common  system  of  taxation  applicable  to 
mergers,  divisions,  transfers  of  assets  and  exchanges  of  shares  concerning  companies  of  different 
Member States (OJ L 225, 20.8.1990, p.1). 
Council  Directive  2003/49/EC  of  3  June  2003 on  a  common  system  of  taxation  applicable  to  interest 
and  royalty  payments  made  between  associated  companies  of  different  Member  States  (OJ  L  157, 
26.6.2003, p. 49). 

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The  creation  of  a  new  European  legal  form  requires  a  legal  instrument  that  is  directly 
applicable,  i.e.  a  regulation.  Neither  a  recommendation  nor  a  directive  would  result  in  a 
uniform regime that is applicable in all Member States.  

5. 

CONSULTATION OF INTERESTED PARTIES 

The  European  Private  Company  Statute  was  initially  developed  by  business  and  academic 
circles  in  the  1990s  and  gained  broader  support  over  time  from  industry  organisations  and 
from the European Economic and Social Committee6. It was listed as a possible measure of 
the  2003-2009  Action  Plan  on  Modernising  Company  Law  and  Enhancing  Corporate 
Governance7. The 2006 public consultation on the future priorities of the Commission in the 
fields of company law and corporate governance confirmed this support8. 

In June 2006, the Legal Affairs Committee of the European Parliament held a public hearing 
on  the  SPE  and  drafted  an  own-initiative  report  and  a  resolution  calling  on  the  European 
Commission  to  present  a  proposal  for  an  SPE  before  the  end  of  20079.  The  Parliament 
reiterated  its  support  and  firm  commitment  to  the  initiative  in  a  resolution  of  25  October 
200710.  Given  the  strong  interest  of  the  Parliament  in  the  proposal,  it  should  be  closely 
associated in the work on the SPE from the start. 

In  July  2007,  the  Directorate  General  for  Internal  Market  and  Services  launched  a  specific 
public  consultation  on  the  SPE.  In  addition,  a  survey  among  companies  in  the  27  Member 
States was conducted through the European Business Test Panel11.  

On 10 March 2008, the Commission held a conference on the SPE. 

The  European  Commission's  advisory  group  on  corporate  governance  and  company  law12 
provided information in relation to the impact assessment and advised on the substance of the 
SPE Statute. The group is also drafting examples of provisions for the articles of association 
of an SPE, which will be made available to facilitate the understanding of the draft Statute. 

6. 

IMPACT ASSESSMENT 

Recent surveys13 and public consultations show that, despite their strong potential, SMEs face 
legal  and  administrative  obstacles,  which  hinder  their  development  in  the  Single  Market. 

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Opinion of the Economic and Social Committee on a 'European Company Statute for SMEs' (OJ C 125, 
27.5.2002, p. 19). 
COM(2003) 284. 
http://ec.europa.eu/internal_market/company/consultation/index_en.htm 
European  Parliament  Report  with  recommendations  to  the  Commission  on  the  European  private 
company Statute (2006/2013(INI)), A6-0434/2006 final. 
European Parliament resolution on the 14th company law directive and the European Private Company 
(B6-0399/07). 
Consultation: http://ec.europa.eu/internal_market/company/epc/index_en.htm 
EBTP: http://ec.europa.eu/yourvoice/ebtp/consultations/2007_en.htm  
http://ec.europa.eu/internal_market/company/advisory/index_en.htm 
Survey  of  the  Observatory  of  European  SMEs  (Flash  EB  N°  196)  conducted  by  Gallup  Organisation 
Hungary  upon  the  request  of  DG  for  Enterprise  and  Industry,  Survey  presented  at  BusinessEurope’s 
SME Action Day on 21 November 2007. 
http://www.businesseurope.eu/Content/Default.asp?PageId=496 

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Although  all  companies  wishing  to  expand  cross-border  are  affected  by  legal  and 
administrative barriers, these are proportionately greater for smaller companies, who are less 
well equipped in terms of financial and human resources.  

The  difficulties  which  businesses  face  as  a  result  of  the  diversity  of  company  forms 
essentially  consist  of  compliance  costs  on  the  formation  of  a  company  (e.g.  mandatory 
minimum capital requirement, registration and notary fees, cost of expert legal advice) and of 
difficulties and compliance costs associated with the operation of a company, which make the 
day-to-day  operation  of  foreign  subsidiaries  more  expensive  compared  with  domestic 
subsidiaries.  

SMEs  are  also  hindered  in  their  cross-border  development  by  the  lack  of  trust  in  certain 
foreign company forms in other Member States. This problem exists mainly in relation to the 
less widely known company forms.  

The impact assessment examines four high level policy options:  

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– 

Taking no action and relying on existing legislation and case law: despite efforts to 
make company formation quicker and easier throughout the EU, SMEs still have to 
face 27 company law regimes. 

Seeking  to  harmonise  the  company  laws  of  the  Member  States:  A  high  degree  of 
harmonisation  of  national  regimes  would  be  necessary  to  significantly  reduce  the 
costs  of  company  formation  and  operation  across  Member  States.  However,  the 
major  changes  to  national  legislation  which  this  approach  would  entail  would  not 
necessarily be proportionate to the objective of the proposal.  

Improving  the  European  Company  Statute  (SE)  and  adapting  it  to  the  needs  of 
SMEs:  Making  the  Statute  of  the  SE  accessible  to  SMEs  would  require  significant 
amendments. This option would require a thorough redrafting and re-negotiation of 
the SE Regulation before it is evaluated in 2008/2009.  

Proposing  an  SPE  Statute  for  SMEs:  The  creation  of  a  new  European  legal  form 
targeting  SMEs  best  solves  the  problems  presented  above  by  offering  a  company 
form featuring uniform rules on formation throughout the EU, flexibility as regards 
the  internal  organisation,  thus  saving  costs.  It  would  also  offer  SMEs  a  European 
label and thus make cross-border business easier.  

7. 

EXPLANATION OF THE PROPOSAL 

Chapter I: General provisions 

The  general  provisions  define  the  main  features  of  the  SPE.  The  SPE  is  a  company  having 
legal personality and share capital. It is a limited-liability company, i.e. its shareholders may 
not  be  liable  for  more  than  the  amount  they  have  subscribed  for.  As  the  SPE  is  a  private 
company, the shares of the SPE may not be offered to the public or be publicly traded.  

There is no restriction on the formation of the SPE. It may be set up by one or more founders, 
natural persons and/or companies or firms under Article 48 of the EC Treaty. In addition, an 
SE,  a  European  Co-operative  Society,  a  European  Economic  Interest  Grouping  or  another 
SPE may also take part in the formation of an SPE.  

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As  regards  the  scope  of  application  of  the  Statute  and  its  interface  with  national  law,  the 
Regulation provides that:  

(1) 

(2) 

(3) 

An SPE is governed first and foremost by the directly applicable mandatory 
provisions of the Regulation. These rules facilitate the formation and ensure 
the necessary uniformity of the SPE in the EU.  

The  Regulation  requires  a  range  of  matters,  in  particular  the  internal 
organisation of the SPE, to be regulated in the articles of association (Annex 
I).  In  order  to  ensure  flexibility,  shareholders  are  free  to  decide  how  to 
regulate these questions, subject only to the rules of the Regulation.  

In matters covered by the SPE Statute, national company law is only relevant 
where  specified  by  the  Regulation.  The  provisions  which  are  required  or 
allowed  by  Annex  I  to  be  included  in  the  articles  of  association  are  not 
subject to national law. 

The provisions of the Regulation and the list of matters in Annex I which must be covered in 
the articles of association define the scope of the EU rules. The proposal does not contain any 
default provisions which apply in case the articles do not cover the matters listed in Annex I. 
However  national  law  has  to  set  out  the  sanctions  of  such  omission  or  other  breach  of  the 
Regulation. 

National law governs those matters which are not covered by the Regulation or by the articles 
of association of the SPE as stipulated in Annex I. This is the case, in particular, for matters 
not  mentioned  in  Annex  I  or  in  areas  which  are  outside  the  scope  of  company  law  as  such 
(e.g.  labour,  insolvency  or  tax  law).  The  relevant  applicable  law  is  the  law  of  the  Member 
State  where  the  SPE  has  its  registered  office,  which  applies  to  private  limited-liability 
companies.  Member  States  shall  notify  the  name  of  the  respective  company  form  to  the 
Commission. 

Chapter II: Formation 

The Regulation does not restrict the manner in which an SPE may be created. A SPE may be 
set up ex nihilo, in accordance with the provisions of the Regulation. It may also be created by 
transforming or dividing an existing company  or by the merger of existing companies. Any 
company  form  existing  under  national  law  (private  or  public,  with  or  without  legal 
personality) may become an SPE, in accordance with the relevant provisions of national law. 
An SE or another SPE may also participate in the formation of an SPE.  

The  name  of  any  European  Private  Company  must  be  followed  by  the  abbreviation  "SPE". 
The  SPE  is  required  to  have  its  registered  office  and  its  central  administration  or  principal 
place  of  business  in  the  territory  of  the  Member  States.  However,  in  accordance  with  the 
Centros  judgment14  of  the  European  Court  of  Justice,  the  SPE  may  be  set  up  with  its 
registered office and central administration or principal place of business in different Member 
States.  Shareholders  may  also  decide  to  transfer  the  registered  office  of  the  company  to 
another Member State. 

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C-212/97. 

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The Regulation does not set up a specific registration procedure for the SPE but builds on the 
provisions  laid  down  by  the  First  Company  law  Directive  (68/151/EEC),  while  setting  out 
some  requirements  to  make  the  formation  of  an  SPE  easier  and  cheaper.  First,  it  must  be 
possible to apply for the registration of a SPE by electronic means. Secondly, the Regulation 
contains a closed list of documents and particulars which Member States may require for the 
registration  of  the  SPE.  Changes  in  the  documents  and  particulars  must  also  be  filed  at  the 
register. 

Finally, the proposal provides for a single legality check, i.e. either control of the legality of 
the  SPE's  documents  and  particulars  by  an  administrative  or  judicial  body,  or  their 
certification by a notary, on registration of an SPE. Founders of the SPE must not be required 
to satisfy both conditions. 

Chapter III: Shares 

The Regulation allows shareholders a large degree of freedom to determine matters relating to 
shares, in particular the rights and obligations attached to shares. An SPE may issue ordinary 
or  priority  shares.  Restrictions  only  apply  when  necessary  in  the  interest  of  third  parties  or 
minority shareholders.  

All shareholdings must be registered in the list of the shareholders drawn up and kept by the 
management  body  of  the  SPE.  This  list  serves  as  evidence  of  shareholdings,  unless  proven 
otherwise. The list may be inspected by the shareholders or third parties on request. 

The conditions for the transfer of the shares must be regulated in the articles of association. 
Any new restriction or prohibition on transfers requires a qualified majority decision (Article 
27).  In  addition,  to  protect  the  interests  of  minority shareholders, such decision requires  the 
consent of each shareholder affected by the restriction or prohibition.  

The  Regulation  does  not  provide  shareholders  with  the  right  to  squeeze-out  minority 
shareholders. Nor does it put an obligation on the majority shareholder or the SPE to buy the 
shares  of  the  minority  shareholder  (sell-out  right).  Such  provisions  may  be  adopted  in  the 
articles of association. However, the Regulation allows both the expulsion and the withdrawal 
of a shareholder under specific circumstances. 

Chapter IV: Capital 

In order to facilitate start-ups, the Regulation sets the minimum capital requirement at €1. The 
proposal  departs  from  the  traditional  approach  that  considers  the  requirement  of  a  high 
minimum  of  legal  capital  as  a  means  of  creditor  protection.  Studies  show  that  creditors 
nowadays look rather at aspects other than capital, such as cash flow, which are more relevant 
to solvency. Director-shareholders of small companies often offer personal guarantees to their 
creditors  (e.g.  to  banks)  and  suppliers  also  use  other  methods  to  secure  their  claims,  e.g. 
providing  that  ownership  of  goods  only  passes  upon  payment.  Moreover,  companies  have 
different capital needs depending on their activity, and thus it is impossible to determine an 
appropriate capital for all companies. The shareholders of a company  are the best placed to 
define the capital needs of their business. 

The  Regulation  does  not  restrict  the  founding  shareholders'  right  to  decide  what  type  of 
consideration is to be provided for the shares upon creation of the SPE or on capital increase. 
Accordingly,  the  articles  of  association  must  set  out  whether  the  founders  need  to  provide 
consideration in cash or in kind. They are free to decide what property, rights, services, etc. 

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they accept as consideration for the shares and when it has to be paid or provided. Also, the 
articles  must  provide  whether  an  expert  valuation  of  the  consideration  in  kind  is  needed  or 
not.  Shareholders  are  liable  for  their  contribution,  in  accordance  with  the  provisions  of 
national law.  

The Regulation contains uniform rules regarding distributions (e.g. dividend, purchase of the 
SPE's own shares, incurring of debt) to shareholders from the assets of the SPE. A distribution 
may only be made if the SPE satisfies a balance-sheet test, i.e. after the distribution its assets 
fully cover its liabilities. The proposal does not define "assets" or "liabilities", in this respect 
the  relevant  accounting  provisions  apply  (i.e.  the  Fourth  Directive  (78/660/EEC)  or 
Regulation (EC) No 1606/2002). 

Since the preparation of a solvency test on distributions only exists at present in few Member 
States,  the  proposal  does  not  make  it  mandatory  for  SPEs.  However,  it  explicitly  allows 
shareholders to provide for a solvency test in the articles, in addition to the balance-sheet test 
that  is  required  by  the  Regulation.  If  shareholders  require  the  management  body  to  sign  a 
solvency certificate before distribution, they also have to define the related requirements (e.g. 
the grounds, the criteria) and the certificate is to be disclosed. 

The proposal does not prevent the SPE from acquiring its own shares under certain conditions 
to protect the company's assets. Before the acquisition of its own shares, the SPE must carry 
out  a  balance-sheet  test  and,  if  prescribed  in  the  articles  of  association,  a  solvency  test. 
Shareholders decide on acquisition. The non-pecuniary rights attached to the respective shares 
(in  particular,  voting  and  pre-emption  rights)  will  be  suspended.  Additional  conditions  and 
further restrictions may be set out in the articles of association. 

Chapter V: Organisation of the SPE 

The  shareholders  of  the  SPE  enjoy  a  high  degree  of  freedom  in  determining  the  internal 
organisation of the SPE, subject to the Regulation. Article 27 provides a non exhaustive list of 
the decisions which must be taken by shareholders. The articles of association must set out the 
required majority and quorum for voting subject to Article 27 which provides that certain of 
these decisions require a qualified majority (i.e., at least 2/3 of the voting rights of the SPE, 
but the articles may provide for a greater majority, e.g. 3/4).  

There is no obligation to hold physical general meetings. The method for the decision-making 
of  shareholders  is  to  be  prescribed  in  the  articles  of  association.  Shareholders  have  broad 
information  rights  regarding  the  affairs  of  the  SPE.  Their  right  to  challenge  collective 
resolutions is subject to national law. 

The Regulation ensures two specific minority rights for the shareholders: the right to request a 
shareholders'  resolution  and  the  right  to  request  the  competent  court  or  administrative 
authority to appoint an independent expert (in particular, an independent auditor). 

All decisions which are not listed in the Regulation or in the articles of association fall under 
the competence of the SPE's management body which is responsible for running the company. 
The  articles  determine  the  management  structure  of  the  SPE  (a  single  director  or  several 
directors, a one-tier or a two-tier board system). However, if the SPE is subject to employee 
participation, the chosen management structure must allow for the exercise of this right.  

The shareholders of the SPE decide on the appointment and removal of directors. The articles 
must  set  out  the  term  of  directors'  mandates  and  any  eligibility  criterion.  The  Regulation 

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prohibits  anyone  who  is  disqualified  from  serving  as  a  director  in  any  Member  State  from 
serving as a director of the SPE. 

The Regulation imposes on directors the duty of acting in the best interests of the company. 
Accordingly,  directors'  duties  are  owed  to  the  SPE  and  may  only  be  enforced  by  the 
company.  The  Regulation  does  not  give  individual  shareholders  or  creditors  the  right  to 
directly sue the members of the management body. 

The Regulation lays down a general standard of care by requiring from directors the care and 
skill reasonably required in the conduct of business. The interpretation of this provision may 
be  developed  by  national  courts.  While  the  Regulation  also  identifies  the  most  important 
specific  duties  of  the  directors  (e.g.  propose  distributions),  the  articles  may  set  out  further 
duties. Directors are required to avoid any actual or potential conflicts of interests. However, 
the  articles  of  association  may  provide  that  situations  involving  such  conflicts  may  be 
authorised. 

The Regulation establishes directors' liability for any loss or damage suffered by the SPE due 
to  the  breach  of  their  duties  deriving  from  the  Regulation,  articles  of  association  or  a 
resolution of shareholders. However other aspects of liabilities, e.g. the consequences of the 
breach of duties or any business judgement rule, are governed by national law.  

Chapter VI: Employee participation 

Employee participation exists in small companies only in a few Member States (e.g. Sweden, 
Denmark).  

The  general  principle,  derived  from  the  Directive  on  cross-border  mergers  (2005/56/EC),  is 
that the SPE is subject to the employee participation rules of the Member State where it has its 
registered  office.  Accordingly,  the  SPE,  as  regards  employee  participation,  will  be  no  more 
and no less attractive than comparable national companies. 

Cross-border mergers involving SPEs are governed by the Directive on cross-border mergers. 
However,  special  rules  are  required  in  the  case  of  the  transfer  of  the  registered  office  of  an 
SPE.  

Chapter VII: Transfer of the registered office of the SPE 

The SPE can transfer its registered office to another Member State, while maintaining its legal 
personality  and  not  having  to  wind-up.  In  order  to  protect  the  interests  of  third  parties,  the 
Regulation  does  not  allow  the  transfer  of  the  SPE's  registered  office  during  winding-up, 
liquidation or similar proceedings. 

The transfer procedure is inspired by the provisions on the transfer of the registered office of 
the SE Regulation.  

The  Regulation  provides  for  a  special  regime  where  an  SPE  that  is  subject  to  employee 
participation  transfers  its  registered  office  to  another  Member  State  where  there  is  no  or  a 
lower  level  of  employee  participation  rights  or  which  does  not  provide  for  employees  of 
establishments  of  the  SPE  situated  in  other  Member  States  the  same  entitlement  to  exercise 
participation rights as they enjoyed before the transfer. In such cases, if at least one third of 
the SPE's employees are employed in the home Member State, negotiations must take place 
between  the  management  body  and  the  representatives  of  the  employees  to  reach  an 

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agreement on the participation of employees. In the absence of an agreement, the participation 
arrangements existing in the home Member State are maintained. 

Chapter VIII: Restructuring, dissolution and nullity 

The Regulation refers the dissolution of an SPE or its transformation to a national company 
form  to  national  law.  Also,  the  SPE  may  merge with other companies and be divided up in 
accordance with the rules applicable to private limited-liability companies. 

Chapter IX: Additional and transitional provisions 

Article  42  allows  SPEs  registered  in  a  Member  State  outside  the  euro-zone  to  express  their 
capital and to draw up their accounts in the national currency of that Member State, although 
such SPEs may also express their capital and/or draw up their accounts in euro. 

Chapter X: Final provisions 

The  Regulation  requires  the  adoption  of  certain  provisions  by  Member  States.  In  particular, 
the procedural rules on registration, on the transfer of the registered office of the SPE along 
with sanction for breach of the Regulation and the articles of association, have to be adopted. 

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2008/0130 (CNS) 

Proposal for a 

COUNCIL REGULATION 

on the Statute for a European private company 

(Text with EEA relevance) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
308 thereof, 

Having regard to the proposal from the Commission15, 

Having regard to the opinion of the European Parliament16, 

Having regard to the opinion of the European Economic and Social Committee17, 

Whereas: 

(1) 

(2) 

The  legal  framework  in  which  business  is  carried  out  in  the  Community  remains 
largely  national.  This  exposes  companies  to  a  wide  diversity  of  national  laws, 
company forms and company regimes. The approximation of national laws by means 
of directives based on Article 44 of the Treaty can overcome some of these difficulties. 
Such  approximation,  however,  does  not  release  persons  seeking  to  create  companies 
from the obligation to adopt in each Member State a company form governed by the 
national law of that Member State.  

Existing Community forms of company, notably the European Company (SE), whose 
legal  form  was  established  by  Council  Regulation  (EC)  No  2157/2001  of  8  October 
2001 on the Statute for a European Company18 are designed for large companies. The 
minimum capital requirement for an SE and the restrictions on its formation make that 
form  of  company  unsuitable  for  many  businesses,  in  particular  of  a  smaller  size.  In 
view of the problems faced by such businesses as a result of the diversity of company 
law  regimes  and  the  unsuitability  of  the  SE  for  small  businesses,  it  is  appropriate  to 
provide  for  a  European  company  form  specifically  designed  for  small  businesses, 
which it is possible to create throughout the Community. 

15 
16 
17 
18 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ L 294, 10.11.2001, p. 1. Regulation as last amended by Regulation (EC) No 1791/2006 (OJ L 363, 
20.12.2006, p. 1). 

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(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

Since  a  private  company  (hereinafter  "SPE")  which  may  be  created  throughout  the 
Community is intended for small businesses, a legal form should be provided which is 
as  uniform  as  possible  throughout  the  Community  and  as  many  matters  as  possible 
should be left to the contractual freedom of shareholders, while a high level of legal 
certainty is ensured for shareholders, creditors, employees and third parties in general. 
Given that a high degree of flexibility and freedom is to be left to the shareholders to 
organise the internal affairs of the SPE, the private nature of the company should also 
be reflected by the fact that its shares may not be offered to the public or negotiated on 
the capital markets, including being admitted to trading or listed on regulated markets.  

In order to enable businesses to reap the full benefits of the internal market, the SPE 
should be able to have its registered office and principal place of business in different 
Member States and to transfer its registered office from one Member State to another, 
with  or  without  also  transferring  its  central  administration  or  principal  place  of 
business. 

To enable businesses to gain efficiencies and save costs, the SPE should be available 
in  every  Member  State,  with  as  few  variations  as  possible  as  regards  the  company 
form.  

To ensure a high degree of uniformity of the SPE, as many matters pertaining to the 
company  form  as  possible  should  be  governed  by  this  Regulation,  either  through 
substantive rules or by reserving matters to the articles of association of the SPE. It is 
therefore  appropriate  to  provide  for  a  list  of  matters,  to  be  set  out  in  an  Annex,  in 
respect  of  which  the  shareholders  of  the  SPE  are  obliged  to  lay  down  rules  in  the 
articles of association. In relation to those matters only Community law should apply, 
and consequently shareholders should be able to set out rules to regulate those matters, 
which are different from the rules prescribed  by the law of the Member State where 
the  SPE  is  registered,  in  relation  to  national  forms  of  private  limited-liability 
companies.  National  law  should  apply  to  matters  where  this  is  provided  for  by  this 
Regulation  and  to  all  other  matters  that  are  not  covered  by  the  articles  of  this 
Regulation, such as insolvency, employment and tax, or are not reserved by it to the 
articles of association.  

In  order  to  make  the  SPE  an  accessible  company  form  for  individuals  and  small 
businesses,  it  should  be  capable  of  being  created  ex  nihilo  or  of  resulting  from  the 
transformation, the merger or the division of existing national companies. The creation 
of  an  SPE  by  way  of  transformation,  merger  or  division  of  companies  should  be 
governed by the applicable national law.  

In  order  to  reduce  the  costs  and  administrative  burdens  associated  with  company 
registration, the formalities for the registration of the SPE should be limited to those 
requirements  which  are  necessary  to  ensure  legal  certainty  and  the  validity  of  the 
documents filed upon the creation of a SPE should be subject to a single verification, 
which  may  take  place  either  before  or  after  registration.  For  the  purposes  of 
registration, it is appropriate to use the registries designated by First Council Directive 
68/151/EEC  of  9  March  1968  on  the  co-ordination  of  safeguards  which,  for  the 
protection  of  the  interests  of  members  and  others,  are  required  by  Member  States  of 

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companies  within  the  meaning  of  the  second  paragraph  of  Article  58  of  the  Treaty, 
with a view to making such safeguards equivalent throughout the Community19.  

(9) 

Since  small  businesses  often  require  long  term  financial  and  personal  commitment, 
they should be able to adapt the structure of their share capital and the rights attached 
to shares to their specific circumstances. SPE shareholders should therefore be free to 
determine  the  rights  attached to their  shares, the  procedure for the  variation of  those 
rights,  the  procedure  to  be  followed  if  shares  are  transferred  and  any  restriction  on 
such transfer.  

(10) 

In order to preserve both the operation of the SPE and the freedom of shareholders, the 
SPE  should  have  the  possibility  of  applying  to  court  to  expel  shareholders  who 
seriously harm its interests and shareholders of the SPE whose interest suffered serious 
harm as a result of specific events should have the right to withdraw from the SPE. 

(11)  The  SPE  should  not  be  subject  to  a  high  mandatory  capital  requirement  since  this 
would  be  a  barrier  to  the  creation  of  SPEs.  Creditors,  however,  should  be  protected 
from excessive distributions to shareholders which could affect the ability of the SPE 
to pay its debts. To this end, distributions that leave the SPE with liabilities exceeding 
the value of the assets of the SPE should be prohibited. Shareholders, however, should 
also be free to require the management body of the SPE to sign a solvency certificate. 

(12)  Since creditors should be granted protection in the event of a reduction of the capital 
of the SPE, certain rules should be laid down concerning when such reductions are to 
take effect.  

(13)  Since small businesses need legal structures that can be adapted to their needs and size 
and are able to evolve as activity develops, shareholders of the SPE should be free to 
determine in their articles of association the internal organisation which is best suited 
to  their  needs.  An  SPE  may  opt  for  one  or  more  individual  managing  directors,  a 
unitary or a dual board structure. However, mandatory rules ensuring the protection of 
minority shareholders should be introduced in order to avoid any unfair treatment of 
shareholders, in particular certain key resolutions should be adopted by a majority of 
no  less  than  two-thirds  of  the  total  voting  rights  attached  to  the  shares  issued  by  the 
SPE. While a limit may be introduced on the right to request a resolution or to request 
an independent expert to investigate abuses, such right may not be made conditional 
on  the  ownership  of  more  than  5%  of  the  voting  rights  of  the  SPE,  although  the 
articles of association of the SPE may provide for a lower threshold. 

(14)  Competent  national  authorities  should  monitor  the  completion  and  legality  of  the 
transfer of the registered office of an SPE to another Member State. The timely access 
of shareholders, creditors and employees to the transfer proposal and to the report of 
the management body should be ensured. 

(15)  Employees’  rights  of  participation  should  be  governed  by  the  legislation  of  the 
Member State in which the SPE has its registered office (the "home Member State"). 
The SPE should not be used for the purpose of circumventing such rights. Where the 
national  legislation  of  the  Member  State  to  which  the  SPE  transfers  its  registered 

19 

OJ L 65, 14.3.1968, p. 8. Directive as last amended by Directive 2006/99/EC (OJ L 363, 20.12.2006, 
p. 137). 

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13 

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office  does  not  provide  for  at  least  the  same  level  of  employee  participation  as  the 
home  Member  State,  the  participation  of  employees  in  the  company  following  the 
transfer should in certain circumstances be negotiated. Should such negotiations fail, 
the  provisions  applying  in  the  company  before  the  transfer  should  continue  to  apply 
after the transfer. 

(16)  Employees’ rights other than rights of participation should remain subject to Council 
Directive 94/45/EC of 22 September 1994 on the establishment of a European Works 
Council  or  a  procedure  in  Community-scale  undertakings  and  Community-scale 
groups  of  undertakings  for  the  purposes  of  informing  and  consulting  employees20, 
Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the 
Member States relating to collective redundancies21, Council Directive 2001/23/EC of 
12 March 2001 on the approximation of the law of the Member States relating to the 
safeguarding of employees' rights in the event of transfers of undertakings, businesses 
or  parts  of  undertakings  or  businesses22  and  Directive  2002/14/EC  of  the  European 
Parliament and of the Council of 11 March 2002 establishing a general framework for 
informing and consulting employees in the European Community23. 

(17)  The Member States should lay down rules on penalties applicable to infringements of 
the provisions of this Regulation, including infringements of the obligation to regulate 
in the articles of association of the SPE the matters prescribed by this Regulation, and 
should  ensure  that  they  are  implemented.  Those  penalties  must  be  effective, 
proportionate and dissuasive. 

(18)  The  Treaty  does  not  provide,  for  the  adoption  of  this  Regulation,  powers  other  than 

those under Article 308. 

(19)  Since  the  objectives  of  the  proposed  action  cannot  be  sufficiently  achieved  by  the 
Member States in so far as they involve the creation of a company form with common 
features  throughout  the  Community  and  can  therefore,  by  reason  of  the  scale  of  the 
action, be better achieved at Community level, the Community may adopt measures, 
in accordance with the principle of subsidiarity laid down in Article 5 of the Treaty. In 
accordance  with  the  principle  of  proportionality  as  set  out  in  that  Article,  this 
Regulation does not go beyond what is necessary to achieve those objectives, 

20 

21 
22 
23 

OJ  L  254,  30.9.1994,  p.  64.  Directive  as  last  amended  by  Directive  2006/109/EC  (OJ  L  363, 
20.12.2006, p. 416). 
OJ L 225, 12.8.1998, p. 16. 
OJ L 82. 22.3.2001, p. 16. 
OJ L 80, 23.3.2002, p. 29. 

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HAS ADOPTED THIS REGULATION: 

CHAPTER I 
GENERAL PROVISIONS 

Article 1 
Subject matter 

This Regulation lays down  the  conditions  governing the establishment and operation  within 
the  Community  of  companies  in  the  form  of  a  European  private  company  with  limited 
liability (Societas Privata Europaea, hereinafter "SPE"). 

1. 

For the purposes of this Regulation, the following definitions shall apply: 

Article 2 
Definitions 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

'shareholder'  means  the  founding  shareholder  and  any  other  person  whose 
name is entered in the list of shareholders in accordance with Articles 15-16; 

'distribution' means any financial benefit derived directly or indirectly from the 
SPE  by  a  shareholder,  in  relation  to  the  shares  held  by  him,  including  any 
transfer of money or property, as well as the incurring of a debt;  

'director'  means  any  individual  managing  director,  any  member  of  the 
management, administrative board or supervisory body of an SPE; 

'management  body'  means  one  or  more  individual  managing  directors,  the 
management  board  (dual  board)  or  the  administrative  board  (unitary  board), 
designated in the articles of association of the SPE as being responsible for the 
management of the SPE; 

'supervisory body' means the supervisory board (dual board), designated in the 
articles of association of the SPE as being responsible for the supervision of the 
management body; 

'home  Member  State'  means  the  Member  State  in  which  the  SPE  has  its 
registered  office  immediately  before  any  transfer  of  its  registered  office  to 
another Member State; 

(g) 

'host Member State' means the Member State to which the registered office of 
the SPE is transferred. 

2. 

For  the  purposes  of  point  (b)  of  paragraph  1,  distributions  may  be  made  through  a 
purchase of property, the redemption or other kind of acquisition of shares or by any 
other means. 

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Article 3 
Requirements for the establishment of an SPE 

1. 

An SPE shall comply with the following requirements: 

(a) 

(b) 

its capital shall be divided into shares, 

a shareholder shall not be liable for more than the amount he has subscribed or 
agreed to subscribe,  

(c) 

it shall have legal personality, 

(d) 

(e) 

its shares shall not be offered to the public and shall not be publicly traded, 

it  may  be  formed  by  one  or  more  natural  persons  and/or  legal  entities, 
hereinafter "founding shareholders".  

2. 

3. 

For the purposes of point (d) of paragraph 1, shares shall be regarded as 'offered to 
the public' where a communication is addressed to persons in any form and by any 
means, and it presents sufficient information on the terms of the offer and the shares 
to be offered so as to enable an investor to decide to purchase or subscribe to these 
shares, including when shares are placed through financial intermediaries. 

For the purposes of point (e) of paragraph 1, 'legal entities' shall mean any company 
or  firm  within  the  meaning  of  the  second  paragraph  of  Article  48  of  the  Treaty,  a 
European  public  limited-liability  company  as  provided  for  in  Regulation  (EC)  No 
2001/2157,  hereinafter  "European  Company",  a  European  Co-operative  Society  as 
provided  for  in  Council  Regulation  (EC)  No  1435/2003,  a  European  Economic 
Interest Grouping as provided for in Council Regulation (EEC) No 2137/85 and an 
SPE. 

Article 4  
Rules applicable to an SPE  

1. 

An SPE shall be governed by this Regulation and also, as regards the matters listed 
in Annex I, by its articles of association. 

However,  where  a  matter  is  not  covered  by  the  articles  of  this  Regulation  or  by 
Annex  I,  an  SPE  shall  be  governed  by  the  law,  including  the  provisions 
implementing  Community  law,  which  applies to  private  limited-liability  companies 
in  the  Member  State  in  which  the  SPE  has  its  registered  office,  hereinafter 
"applicable national law".  

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CHAPTER II 
FORMATION 

Article 5  
Method of formation 

1. 

Member States shall allow the formation of an SPE by any of the following methods: 

(a) 

the creation of a SPE in accordance with this Regulation; 

(b) 

the transformation of an existing company; 

(c) 

the merger of existing companies;  

(d) 

the division of an existing company. 

2. 

3. 

Formation  of  the  SPE  by  the  transformation,  merger  or  division  of  existing 
companies  shall  be  governed  by  the  national  law  applicable  to  the  transforming 
company, to each of the merging companies or to the dividing company. Formation 
by transformation shall not give rise to the winding up of the company or any loss or 
interruption of its legal personality.  

For the purposes of paragraphs 1 and 2, 'company' shall mean any form of company 
that may be set up under the law of the Member States, a European Company and, 
where applicable, an SPE. 

Article 6  
Name of the company 

The name of an SPE shall be followed by the abbreviation "SPE".  

Only an SPE may add the abbreviation "SPE" to its name.  

Article 7  
Seat of the company 

An  SPE  shall  have  its  registered  office  and  its  central  administration  or  principal  place  of 
business in the Community.  

An SPE shall not be under any obligation to have its central administration or principal place 
of business in the Member State in which it has its registered office. 

Article 8  
Articles of association 

1. 

An SPE shall have articles of association that cover at least the matters set out in this 
Regulation, as provided for in Annex I. 

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17 

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2. 

3. 

1. 

2. 

3. 

1. 

2. 

The articles of association of a SPE shall be in writing and signed by every founding 
shareholder. 

The  articles  of  association  and  any  amendments  thereto  may  be  relied  upon  as 
follows:  

(a) 

(b) 

in  relation  to  the  shareholders  and  the  management  body  of  the  SPE  and  its 
supervisory body, if any, from the date on which they are signed or, in the case 
of amendments, adopted; 

in relation to third parties, in accordance with the provisions of the applicable 
national  law  implementing  paragraphs  5,  6  and  7  of  Article  3  of  Directive 
68/151/EEC.  

Article 9 
Registration 

Each SPE shall be registered in the Member State in which it has its registered office 
in a register designated by the applicable national law in accordance with Article 3 of 
Directive 68/151/EEC24.  

The  SPE  shall  acquire  legal  personality  on  the  date  on  which  it  is  entered  in  the 
register.  

In the case of a merger by acquisition, the acquiring company shall adopt the form of 
an SPE on the day the merger is registered.  

In the case of a division by acquisition, the recipient company shall adopt the form of 
an SPE on the day the division is registered. 

Article 10 
Formalities relating to registration 

Application for registration shall be made by the founding shareholders of the SPE or 
by  any  person  authorised  by  them.  Such  application  may  be  made  by  electronic 
means. 

Member States shall not require any particulars and documents to be supplied upon 
application for the registration of a SPE other than the following: 

(a) 

(b) 

the name of the SPE and the address of its registered office; 

the  names,  addresses  and  any  other  information  necessary  to  identify  the 
persons who are authorised to represent the SPE in dealings with third parties 
and  in  legal  proceedings,  or  take  part  in  the  administration,  supervision  or 
control of the SPE; 

(c) 

the share capital of the SPE; 

24 

OJ L 65, 14.3.1968, p. 8. 

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18 

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(d) 

the share classes and the number of shares in each share class; 

(e) 

the total number of shares; 

(f) 

(g) 

(h) 

the nominal value or accountable par of the shares; 

the articles of association of the SPE; 

where the SPE was formed as a result of a transformation, merger or division 
of companies, the resolution on the transformation, merger or division that led 
to the creation of the SPE. 

3. 

4. 

5. 

The  documents  and  particulars  referred  to  in  paragraph  2  shall  be  provided  in  the 
language required by the applicable national law. 

Registration of the SPE may be subject to only one of the following requirements: 

(a) 

a control by an administrative or judicial body of the legality of the documents 
and particulars of the SPE; 

(b) 

the certification of the documents and particulars of the SPE.  

The SPE shall submit any change in the particulars or documents referred to in points 
(a) to (g) of paragraph 2 to the register within 14 calendar days of the day on which 
the change takes place. After every amendment to the articles of association, the SPE 
shall submit its complete text to the register as amended to date. 

6. 

The registration of an SPE shall be disclosed. 

Article 11  
Disclosure 

1. 

2. 

The disclosure of the documents and particulars concerning an SPE which must be 
disclosed  under  this  Regulation  shall  be  effected  in  accordance  with  the  applicable 
national law implementing Article 3 of Directive 68/151/EEC. 

The letters and order forms of an SPE, whether they are in paper or electronic form, 
as well as its website, if any, shall state the following particulars: 

(a) 

(b) 

the information necessary to identify the register referred to in Article 9, with 
the number of entry of the SPE in that register; 

the name of the SPE, the address of its registered office and, where appropriate, 
the fact that the company is being wound up. 

Article 12  
Liability for acts undertaken before the registration of an SPE  

Where acts were performed on behalf of an SPE before its registration, the SPE may assume 
the obligations arising out of such acts after its registration. Where the SPE does not assume 

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19 

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those obligations, the persons who performed those acts shall be jointly and severally liable, 
without limit. 

Article 13  
Branches 

Branches of an SPE shall be governed by the law of the Member State in which the 
branch is located, including the relevant provisions implementing Council Directive 
89/666/EEC25.  

CHAPTER III 
SHARES 

Article 14 
Shares 

1. 

2. 

3. 

4. 

The shares of the SPE shall be entered in the list of shareholders. 

Shares carrying the same rights and obligations shall constitute one class.  

Subject to Article 27, the adoption of an amendment to the articles of association of 
the SPE which varies the rights attached to a class of shares (including any change to 
the  procedure  for  varying  the  rights  attached  to  a  class  of  share)  shall  require  the 
consent of a majority of not less than two-thirds of the voting rights attached to the 
shares issued in that class. 

Where a share is owned by more than one person, those persons shall be regarded as 
one  shareholder  in  relation  to  the  SPE.  They  shall  exercise  their  rights  through  a 
common representative, who in the absence of any  notification to the SPE shall be 
the person whose name appears first in the list of shareholders for that share. They 
shall be jointly and severally liable for the commitments attached to the share. 

Article 15  
List of shareholders 

1. 

The management body of the SPE shall draw up a list of shareholders. The list shall 
contain at least the following: 

(a) 

(b) 

(c) 

the name and address of each shareholder; 

the number of shares held by the shareholder concerned, their nominal value or 
accountable par; 

where a share is owned by more than one person, the names and addresses of 
the co-owners and of the common representative; 

25 

OJ L 395, 30.12.1989, p. 36. 

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20 

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(d) 

the date of acquisition of the shares; 

(e) 

(f) 

the  amount  of  each  consideration  in  cash,  if  any,  paid  or  to  be  paid  by  the 
shareholder concerned; 

the  value  and  nature  of  each  consideration  in  kind,  if  any,  provided  or  to  be 
provided by the shareholder concerned; 

(g) 

the date on which a shareholder ceases to be a member of the SPE. 

The  list  of  shareholders  shall,  unless  proven  otherwise,  constitute  evidence  of  the 
authenticity of the matters listed in points (a) to (g) of paragraph 1.  

The  list  of  shareholders  and  any  amendments  thereto  shall  be  kept  by  the 
management  body  and  may  be  inspected  by  the  shareholders  or  third  parties  on 
request. 

Article 16 
Transfer of shares 

Subject  to  Article  27,  a  decision  introducing  or  amending  a  restriction  on  or 
prohibition  of  the  transfer  of  shares  may  be  adopted  only  with  the  consent  of  all 
shareholders affected by the restriction or prohibition in question.  

All agreements on the transfer of shares shall be in written form. 

On notification of a transfer, the management body shall, without undue delay, enter 
the shareholder in the list referred to in Article 15, provided that the transfer has been 
executed  in  accordance  with  this  Regulation  and  the  articles  of  association  of  the 
SPE and the shareholder submits reasonable evidence as to his lawful ownership of 
the share. 

2. 

3. 

1. 

2. 

3. 

4. 

Subject to paragraph 3, any transfer of shares shall become effective as follows: 

(a) 

(b) 

in  relation  to  the  SPE,  on  the  day  the  shareholder  notifies  the  SPE  of  the 
transfer;  

in  relation  to  third  parties,  on  the  day  the  shareholder  is  entered  in  the  list 
referred to in Article 15.  

A  transfer  of  shares  shall  be  valid  only  if  it  complies  with  this  Regulation  and  the 
articles of association. The provisions of the applicable national law concerning the 
protection of persons who acquire shares in good faith shall apply. 

Article 17 
Expulsion of a shareholder 

On the basis of a resolution of the shareholders and on an application by the SPE, the 
competent  court  may  order  the  expulsion  of a  shareholder  if  he  has  caused  serious 
harm to the SPE's interest or the continuation of the shareholder as a member of the 

5. 

1. 

EN 

21 

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2. 

3. 

1. 

2. 

3. 

4. 

5. 

6. 

SPE is detrimental to its proper operation. An application to the court shall be made 
within 60 calendar days of the resolution of the shareholders. 

The  court  shall  decide  whether,  as  an  interim  measure,  the  voting  and  other  non-
pecuniary  rights  of  such  shareholder  should  be  suspended  until  a  final  decision  is 
taken. 

If the court orders the expulsion of a shareholder, it shall decide whether his shares 
are to be acquired by the other shareholders and/or by the SPE itself and on payment 
of the price of the shares.  

Article 18 
Withdrawal of a shareholder  

A shareholder shall have the right to withdraw from the SPE if the activities of the 
SPE are being or have been conducted in a manner which causes serious harm to the 
interests of the shareholder as a result of one or more of the following events: 

(a) 

(b) 

(c) 

(d) 

the SPE has been deprived of a significant part of its assets;  

the registered office of the SPE has been transferred to another Member State; 

the activities of the SPE have changed substantially; 

no  dividend  has  been  distributed  for  at  least  3  years  even  though  the  SPE's 
financial position would have permitted such distribution. 

The shareholder shall submit his withdrawal in writing to the SPE stating his reasons 
for the withdrawal. 

The  management  body  of  the  SPE  shall,  on  receipt  of  the  notice  referred  to  in 
paragraph  2,  without  undue  delay,  request  a  resolution  of  the  shareholders  on  the 
purchase of the shareholder's shares by the other shareholders or by the SPE itself.  

Where the shareholders of the SPE fail to adopt a resolution referred to in paragraph 
3 or do not accept the shareholder's reasons for withdrawal within 30 calendar days 
of the submission of the notice referred to in paragraph 2, the management body shall 
notify the shareholder of that fact without undue delay.  

In  the  case  of  a  dispute  regarding  the  price  of  the  shares,  their  value  shall  be 
determined  by  an  independent  expert  appointed  by  the  parties  or,  failing  an 
agreement between them, by the competent court or administrative authority. 

On  an  application  of  the  shareholder,  the  competent  court  may,  if  satisfied  that  the 
interests of the shareholder have suffered serious harm, order the acquisition of his 
shares by the other shareholders or by the SPE itself and the payment of the price of 
the shares.  

An  application  to  the  court  shall  be  made  either  within  60  calendar  days  of  the 
resolution  of  the  shareholders  referred  to  in  paragraph  3  or,  where  no  resolution  is 

EN 

22 

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adopted  within  30  calendar  days  of  the  shareholder  submitting  his  notice  of 
withdrawal to the SPE, within 60 calendar days of the expiry of that period. 

CHAPTER IV 
CAPITAL 

Article 19 
Share capital 

1. 

2. 

3. 

4. 

1. 

2. 

3. 

1. 

2. 

Without prejudice to Article 42, the capital of the SPE shall be expressed in euro.  

The capital of the SPE shall be fully subscribed. 

The shares of the SPE do not need to be fully paid on issue. 

The capital of the SPE shall be at least EUR 1. 

Article 20 
Consideration for shares 

Shareholders  must  pay  the  agreed  consideration  in  cash  or  provide  the  agreed 
consideration in kind in accordance with the articles of association of the SPE.  

Except  in  the  case  of  a  reduction  of  the  share  capital,  shareholders  may  not  be 
released from the obligation to pay or provide the agreed consideration. 

Without  prejudice  to  paragraphs  1  and  2,  the  liability  of  shareholders  for  the 
consideration paid or provided shall be governed by the applicable national law. 

Article 21  
Distributions 

Without  prejudice  to  Article  24,  the  SPE  may,  on  the  basis  of  a  proposal  of  the 
management  body,  make  a  distribution  to  shareholders  provided  that,  after  the 
distribution,  the  assets  of  the  SPE  fully  cover  its  liabilities.  The  SPE  may  not 
distribute those reserves that may not be distributed under its articles of association.  

If the articles of association so require, the management body of the SPE, in addition 
to  complying  with  paragraph  1,  shall  sign  a  statement,  hereinafter  a  'solvency 
certificate', before a distribution is made, certifying that the SPE will be able to pay 
its debts as they become due in the normal course of business within one year of the 
date of the distribution. Shareholders shall be provided with the solvency certificate 
before the resolution on the distribution referred to in Article 27 is taken.  

The solvency certificate shall be disclosed. 

EN 

23 

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Article 22  
Recovery of distributions 

Any shareholder who has received distributions made contrary to Article 21 must return those 
distributions to the SPE, provided that the SPE proves that the shareholder knew or in view of 
the circumstances should have been aware of the irregularities.  

1. 

2. 

3. 

4. 

5. 

6. 

7. 

1. 

2. 

3. 

Article 23  
Own shares 

The SPE shall not, directly or indirectly, subscribe for its own shares. 

In the case of acquisition by the SPE of its own shares, Articles 21 and 22 shall apply 
mutatis  mutandis.  Shares  may  not  be  purchased  by  the  SPE  unless  they  are  fully 
paid. The SPE shall always have at least one issued share. 

The  right  to  vote  and  other  non-pecuniary  rights  attached  to  the  SPE's  own  shares 
shall be suspended, while the SPE is the registered owner of its own shares.  

Where the SPE cancels its own shares, its share capital shall be reduced accordingly.  

Shares  acquired  by  the  SPE  in  contravention  of  this  Regulation  or  the  articles  of 
association shall be sold or cancelled within one year of their acquisition. 

Subject to paragraph 5 and to the articles of association of the SPE, the cancellation 
of shares shall be governed by the applicable national law. 

This Article shall apply mutatis mutandis to any shares acquired by a person acting 
in his own name but on behalf of the SPE. 

Article 24 
Capital reduction 

In  the  case  of  a  reduction  of  the  share  capital  of  the  SPE,  Articles  21  and  22  shall 
apply mutatis mutandis. 

Following the disclosure of the resolution of the shareholders to reduce the capital of 
the SPE, those creditors whose claims antedate the disclosure of the resolution shall 
have the right to apply to the competent court for an order that the SPE provide them 
with adequate safeguards.  

An  application  shall  be  made  within  30  calendar  days  of  the  disclosure  of  the 
resolution.  

The  court  may  order  the  SPE  to  provide  safeguards  only  if  the  creditor  credibly 
demonstrates that due to the reduction in the capital the satisfaction of his claims is at 
stake, and that no adequate safeguards have been obtained from the SPE.  

EN 

24 

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4. 

A capital reduction shall take effect as follows: 

(a) 

(b) 

(c) 

where the SPE has no creditors at the time when the resolution is adopted, on 
its adoption; 

where the SPE has creditors at the time when the resolution is adopted and no 
creditor  has made an  application within 30 calendar days of the disclosure of 
the resolution of the shareholders, on the thirty-first calendar day following that 
disclosure;  

where the SPE has creditors at the time when the resolution is adopted and an 
application is made by a creditor within 30 calendar days of the disclosure of 
the resolution of shareholders, on the first date on which the SPE has complied 
with  all  orders  by  the  competent  court  to  provide  adequate  safeguards  or,  if 
earlier,  the  first  date  on  which  the  court  has  determined,  in  relation  to  all 
applications that the SPE need not provide any safeguards.  

If the purpose of a reduction of the capital is to offset losses incurred by the SPE, the 
reduced amount may be used only for this purpose and shall not be distributed to the 
shareholders.  

A capital reduction shall be disclosed. 

In  the  case  of  a  capital  reduction,  the  equal  treatment  of  shareholders  in  the  same 
position shall be ensured. 

Article 25 
Accounts 

An SPE shall be subject to the requirements of the applicable national law as regards 
preparation, filing, auditing and publication of accounts. 

The management body shall keep the books of the SPE. The bookkeeping of the SPE 
shall be governed by the applicable national law. 

CHAPTER V 
ORGANISATION OF THE SPE 

Article 26 
General provisions 

The  SPE  shall  have  a  management  body,  which  shall  be  responsible  for  the 
management of the SPE. The management body may exercise all the powers of the 
SPE not required by this Regulation or the articles of association to be exercised by 
the shareholders. 

The  shareholders  shall  determine  the  organisation  of  the  SPE,  subject  to  this 
Regulation. 

5. 

6. 

7. 

1. 

2. 

1. 

2. 

EN 

25 

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Article 27 
Resolutions of shareholders 

1. 

Without prejudice to paragraph 2, at least the following matters shall be decided by a 
resolution of the shareholders by a majority as defined in the articles of association 
of the SPE: 

(a) 

variation of rights attaching to shares;  

(b) 

expulsion of a shareholder; 

(c) 

withdrawal of a shareholder; 

(d) 

approval of the annual accounts;  

(e) 

(f) 

distribution to the shareholders; 

acquisition of own shares; 

(g) 

redemption of shares; 

(h) 

increase of share capital; 

(i) 

(j) 

reduction of share capital; 

appointment and removal of directors and their terms of office; 

(k) 

where the SPE has an auditor, appointment and removal of the auditor; 

(l) 

transfer of the registered office of the SPE to another Member State; 

(m) 

transformation of the SPE; 

(n)  mergers and divisions; 

(o) 

winding up; 

(p) 

amendments  to  the  articles  of  association,  not  covering  matters  mentioned  in 
points (a) to (o). 

2. 

3. 

Resolutions on the matters indicated in points (a), (b), (c), (i), (l), (m) (n), (o) and (p) 
of paragraph 1 shall be taken by a qualified majority. 

For  the  purposes  of  the  first  subparagraph,  the  qualified  majority  may  not  be  less 
than two-thirds of the total voting rights attached to the shares issued by the SPE.  

The adoption of resolutions shall not require the organisation of a general meeting. 
The  management  body  shall  provide  all  shareholders  with  the  proposals  for 
resolutions  together  with  sufficient  information  to  enable  them  to  take  an  informed 
decision. Resolutions shall be recorded in writing. Copies of the decisions taken shall 
be sent to every shareholder.  

EN 

26 

   EN 

4. 

5. 

6. 

7. 

1. 

2. 

1. 

2. 

Resolutions of the shareholders shall comply with this Regulation and the articles of 
association of the SPE.  

The right of shareholders to challenge resolutions shall be governed by the applicable 
national law. 

If  the  SPE  has  only  one  shareholder,  he  shall  exercise  the  rights  and  fulfill  the 
obligations of the shareholders of the SPE set out in this Regulation and the articles 
of association of the SPE.  

Resolutions on matters indicated in paragraph 1 shall be disclosed.  

Resolutions may be relied on as follows: 

(a) 

(b) 

in  relation  to  the  shareholders,  the  management  body  of  the  SPE  and  its 
supervisory body, if any, on the date they are adopted, 

in relation to third parties, in accordance with the provisions of the applicable 
national  law  implementing  paragraphs  5,  6  and  7  of  Article  3  of  Directive 
68/151/EEC. 

Article 28 
Information rights of shareholders 

Shareholders  shall  have  the  right  to  be  duly  informed  and  to  ask  questions  to  the 
management body about resolutions, annual accounts and all other matters relating to 
the activities of the SPE.  

The management body may refuse to give access to the information only if doing so 
could cause serious harm to the business interests of the SPE. 

Article 29 
Right to request a resolution and right to request an independent expert 

Shareholders holding 5% of the voting rights attached to the shares of the SPE shall 
have the right to request the management body to submit a proposal for a resolution 
to the shareholders.  

The request must state the reasons and indicate the matters that should be subject to 
such resolution.  

If the request is refused or if the management body does not submit a proposal within 
14  calendar  days  of  receiving  the  request,  the  shareholders  concerned  may  then 
submit  a  proposal  for  a  resolution  to  the  shareholders  regarding  the  matters  in 
question. 

In the case of suspicion of serious breach of law or of the articles of association of 
the SPE, shareholders holding 5% of the voting rights attached to the shares of the 
SPE shall have the right to request the competent court or administrative authority to 
appoint  an  independent  expert  to  investigate  and  report  on  the  findings  of  the 
investigation to shareholders.  

EN 

27 

   EN 

The expert shall be allowed access to the documents and records of the SPE and to 
require information from the management body. 

The  articles  of  association  may  grant  the  rights  set  out  in  paragraphs  1  and  2  to 
individual shareholders or to shareholders holding less than 5% of the voting rights 
attached to the shares of the SPE. 

Article 30 
Directors 

Only a natural person may be a director of an SPE. 

A  person  who  acts  as  a  director  without  having  been  formally  appointed  shall  be 
considered  a  director  as  regards  all  duties  and  liabilities  to  which  the  latter  are 
subject. 

A  person  who  is  disqualified  under  national  law  from  serving  as  a  director  of  a 
company by a judicial or administrative decision of a Member State may not become 
or serve as a director of an SPE.  

Disqualification of a person serving as a director of the SPE shall be governed by the 
applicable national law.  

Article 31 
General duties and liabilities of directors 

A director shall have a duty to act in the best interests of the SPE. He shall act with 
the care and skill that can reasonably be required in the conduct of the business. 

The duties of directors shall be owed to the SPE. 

Subject to the articles of association of the SPE, a director shall avoid any situation 
that can be reasonably regarded as likely to give rise to an actual or potential conflict 
between  his  personal  interests  and  those  of  the  SPE  or  between  his  obligations 
towards the SPE and his duty to any other legal or natural person.  

A director of the SPE shall be liable to the company for any act or omission in breach 
of his duties deriving from this Regulation, the articles of association of the SPE or a 
resolution  of  shareholders  which  causes  loss  or  damage  to  the  SPE.  Where  such 
breach has been committed by more than one director, all directors concerned shall 
be jointly and severally liable.  

Without prejudice to the provisions of this Regulation, the liability of directors shall 
be governed by the applicable national law.  

3. 

1. 

2. 

3. 

4. 

1. 

2. 

3. 

4. 

5. 

EN 

28 

   EN 

Article 32 
Related party transactions 

Related party transactions shall be governed by the provisions of the applicable national law 
implementing Council Directives 78/660/EEC26 and 83/349/EEC27. 

1. 

2. 

3. 

1. 

2. 

3. 

Article 33 
Representation of the SPE in relation to third parties 

The  SPE  shall  be  represented  in  relation  to  third  parties  by  one  or  more  directors. 
Acts  undertaken  by  the  directors  shall  be  binding  on  the  SPE  even  if  they  are  not 
within the objects of the SPE.  

The  articles  of  association  of  the  SPE  may  provide  that  directors  are  to  exercise 
jointly the general power of representation. Any other limitation of the powers of the 
directors, following from the articles of association, a resolution of shareholders or a 
decision of the management or supervisory body, if any, may not be relied on against 
third parties even if they have been disclosed.  

Directors may delegate the right to represent the SPE in accordance with the articles 
of association. 

CHAPTER VI 
EMPLOYEE PARTICIPATION 

Article 34 
General provisions 

The SPE shall be subject to the rules on employee participation, if any, applicable in 
the Member State in which it has its registered office, subject to the provisions of this 
Article. 

In the case of the transfer of the registered office of an SPE Article 38 shall apply.  

In  the  case  of  a  cross-border  merger  of  an  SPE  with  an  SPE  or  other  company 
registered in another Member State, the provisions of the laws of the Member States 
implementing Directive 2005/56/EC of the European Parliament and of the Council28 
shall apply. 

26 
27 
28 

OJ L 222, 14.8.1978, p. 11. 
OJ L 193, 18.7.1983, p. 1. 
OJ L 310, 25.11.2005, p. 1. 

EN 

29 

   EN 

                                                 
CHAPTER VII 
TRANSFER OF THE REGISTERED OFFICE OF THE SPE 

Article 35 
General provisions 

1. 

The  registered  office  of  an  SPE  may  be  transferred  to  another  Member  State  in 
accordance with this Chapter.  

The transfer of the registered office of an SPE shall not result in the winding-up of 
the  SPE  or  in  any  interruption  or  loss  of  the  SPE's  legal  personality  or  affect  any 
right  or  obligation  under  any  contract  entered  into  by  the  SPE  existing  before  the 
transfer. 

Paragraph  1  shall  not  apply  to  SPEs  against  which  proceedings  for  winding-up, 
liquidation, insolvency or suspension of payments have been brought, or in respect of 
which preventive measures have been taken by the competent authorities to avoid the 
opening of such proceedings.  

A transfer shall take effect on the date of registration of the SPE in the host Member 
State. From that date, for matters covered by the second paragraph of Article 4, the 
SPE shall be regulated by the law of the host Member State.  

For  the  purpose  of  judicial  or  administrative  proceedings  commenced  before  the 
transfer  of  the  registered  office,  the  SPE  shall  be  considered,  following  the 
registration  referred  to  in  paragraph  3,  as  having  its  registered  office  in  the  home 
Member State.  

2. 

3. 

4. 

Article 36 
Transfer procedure 

1. 

The  management  body  of  an  SPE  planning  a  transfer  shall  draw  up  a  transfer 
proposal, which shall include at least the following particulars: 

(a) 

(b) 

the  name  of  the  SPE  and  the  address  of  its  registered  office  in  the  home 
Member State; 

the  name  of  the  SPE  and  the  address  of  its  proposed  registered  office  in  the 
host Member State; 

(c) 

the proposed articles of association for the SPE in the host Member State; 

(d) 

the proposed timetable for the transfer; 

(e) 

the  date  from  which  it  is  proposed  that  the  transactions  of  the  SPE  are  to  be 
regarded  for  accounting  purposes  as  having  been  carried  out  in  the  host 
Member State; 

EN 

30 

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(f) 

(g) 

the  consequences  of  the  transfer  for  employees,  and  the  proposed  measures 
concerning them;  

where  appropriate,  detailed  information  on  the  transfer  of  the  central 
administration or principal place of business of the SPE. 

2. 

At least one month before the resolution of the shareholders referred to in paragraph 
4 is taken, the management body of the SPE shall:  

(a) 

submit the transfer proposal to the shareholders and employee representatives, 
or  where  there  are  no  such  representatives,  to  the  employees  of  the  SPE  for 
examination and make it available to the creditors for inspection; 

(b) 

disclose the transfer proposal. 

3. 

4. 

5. 

6. 

1. 

2. 

The  management  body  of  the  SPE  shall  draw  up  a  report  to  the  shareholders 
explaining and justifying the legal and economic aspects of the proposed transfer and 
setting out the implications of the transfer for shareholders, creditors and employees. 
The report shall be submitted to the shareholders and the employee representatives, 
or  where  there  are  no  such  representatives,  to  the  employees  themselves  together 
with the transfer proposal. 

Where  the  management  body  receives  in  time  the  opinion  of  the  employee 
representatives on the transfer, that opinion shall be submitted to the shareholders. 

The  transfer  proposal  shall  be  submitted  to  the  shareholders  for  approval  in 
accordance  with  the  rules  of  the  articles  of  association  of  the  SPE  relating  to  the 
amendment of the articles of association.  

Where  the  SPE  is  subject  to  an  employee  participation  regime,  shareholders  may 
reserve  the  right  to  make  the  implementation  of  the  transfer  conditional  on  their 
express  ratification  of  the  arrangements  with  respect  to  the  participation  of 
employees in the host Member State. 

The  protection  of  any  minority  shareholders  who  oppose  the  transfer  and  of  the 
creditors of the SPE shall be governed by the law of the home Member State. 

Article 37 
Scrutiny of the legality of the transfer 

Each Member State shall designate a competent authority to scrutinise the legality of 
the transfer by verifying compliance with the transfer procedure laid down in Article 
36.  

The  competent  authority  of  the  home  Member  State  shall  verify,  without  undue 
delay, that the requirements of Article 36 have been met and, if that is found to be the 
case,  shall  issue  a  certificate  confirming  that  all  the  formalities  required  under  the 
transfer procedure have been completed in the home Member State.  

EN 

31 

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3. 

Within one month of the receipt of the certificate referred to in paragraph 2, the SPE 
shall present the following documents to the competent authority in the host Member 
State: 

(a) 

(b) 

the certificate provided for in paragraph 2;  

the  proposed  articles  of  association  for  the  SPE  in  the  host  Member  State,  as 
approved by the shareholders;  

(c) 

the transfer proposal, as approved by the shareholders.  

Those  documents  shall  be  deemed  to  be  sufficient  to  enable  the  registration  of  the 
SPE in the host Member State.  

The competent authority in the host Member State shall, within 14 calendar days of 
receipt  of  the  documents  referred  to  in  paragraph  3,  verify  that  the  substantive  and 
formal conditions required for the transfer of the registered office are met and if that 
is found to be the case, take the measures necessary for the registration of the SPE.  

The  competent  authority  of  the  host  Member  State  may  refuse  to  register  an  SPE 
only  on  the  grounds  that  the  SPE  does  not  meet  all  the  substantive  or  formal 
requirements under this Chapter. The SPE shall be registered when it has fulfilled all 
requirements under this Chapter. 

Using the notification form set out in Annex II, the competent authority of the host 
Member State shall, without undue delay, notify the competent authority responsible 
for removing the SPE from the register in the home Member State of the registration 
of the SPE in the host Member State.  

Removal from the register shall be effected as soon as, but not before, a notification 
has been received. 

Registrations in the host Member State and removals from the register in the home 
Member State shall be disclosed. 

Article 38 
Arrangements for the participation of employees 

The SPE shall be subject, as from the date of registration, to the rules in force in the 
host  Member State,  if  any,  concerning  arrangements  for  the  participation  of 
employees.  

Paragraph  1  shall  not  apply  where  the  employees  of  the  SPE  in  the  home  Member 
State  account  for  at  least  one  third  of  the  total  number  of  employees  of  the  SPE 
including subsidiaries or branches of the SPE in any Member State, and where one of 
the following conditions is met: 

(a) 

the legislation of the host Member State does not provide for at least the same 
level  of  participation  as  that  operated  in  the SPE  in  the  home  Member  State 
prior  to  its  registration  in  the  host  Member  State.  The  level  of  employee 
participation  shall  be  measured  by  reference  to  the  proportion  of  employee 

4. 

5. 

6. 

7. 

1. 

2. 

EN 

32 

   EN 

representatives amongst the members of the administrative or supervisory body 
or their committees or of the management group which covers the profit units 
of the SPE, subject to employee representation; 

(b) 

the legislation of the host Member State does not confer on the employees of 
establishments  of  the  SPE  that  are  situated  in  other  Member States  the  same 
entitlement  to  exercise  participation  rights  as  such  employees  enjoyed  before 
the transfer. 

Where  one  of  the  conditions  set  out  in  points  a)  or  b)  of  paragraph  2  is  met,  the 
management body of the SPE shall take the necessary steps, as soon as possible, after 
disclosure  of  the  transfer  proposal,  to  start  negotiations  with  the  representatives  of 
the SPE’s employees with a view to reaching an agreement on arrangements for the 
participation of the employees.  

The agreement between the management body of the SPE and the representatives of 
the employees shall specify: 

(a) 

the scope of the agreement; 

(b) 

where, during the negotiations, the parties decide to establish arrangements for 
participation  in  the  SPE  following  the  transfer,  the  substance  of  those 
arrangements  including,  where  applicable,  the  number  of  members  in  the 
company's  administrative  or  supervisory  body  employees  will  be  entitled  to 
elect, appoint, recommend or oppose, the procedures as to how these members 
may be elected, appointed, recommended or opposed by employees, and their 
rights; 

(c) 

the date of entry into force of the agreement and its duration, and any cases in 
which  the  agreement  should  be  renegotiated  and  the  procedure  for  its 
renegotiation. 

Negotiations  shall  be  limited  to  a  period  of  six  months.  The  parties  may  agree  to 
extend  negotiations  beyond  this  period  for  an  additional  six-month  period.  The 
negotiations shall otherwise be governed by the law of the home Member State. 

In the absence of an agreement, the participation arrangements existing in the home 
Member State shall be maintained. 

CHAPTER VIII 
RESTRUCTURING, DISSOLUTION AND NULLITY 

3. 

4. 

5. 

6. 

Article 39 
Restructuring  

The  transformation,  merger  and  division  of  the  SPE  shall  be  governed  by  the  applicable 
national law. 

EN 

33 

   EN 

Article 40  
Dissolution  

1. 

The SPE shall be dissolved in the following circumstances: 

(a) 

by expiry of the period for which it was established; 

(b) 

by the resolution of the shareholders; 

(c) 

in cases set out in the applicable national law. 

Winding-up shall be governed by the applicable national law.  

Liquidation,  insolvency,  suspension  of  payments  and  similar  procedures  shall  be 
governed  by  the  applicable  national  law  and  by  Council  Regulation  (EC)  No 
1346/200029. 

2. 

3. 

4. 

Dissolution of the SPE shall be disclosed. 

Article 41  
Nullity 

The  nullity  of  the  SPE  shall  be  governed  by  the  provisions  of  the  applicable  national  law 
implementing  Article  11(1)  of  Directive  68/151/EEC,  points  (a),  (b),  (c)  and  (e),  except  for 
the reference in point (c) to the objects of the company, of Article 11(2) and Article 12 of that 
Directive. 

CHAPTER IX 
ADDITIONAL AND TRANSITIONAL PROVISIONS 

Article 42 
Use of national currency 

1. 

2. 

Member States in which the third phase of the economic and monetary union (EMU) 
does  not  apply  may  require  SPEs  having  their  registered  office  in  their  territory  to 
express their capital in the national currency. An SPE may also express its capital in 
euro.  The  national  currency/euro  conversion  rate  shall  be  as  on  the  last  day  of  the 
month preceding the registration of the SPE. 

An  SPE  may  prepare  and  publish  its  annual  and,  where  applicable,  consolidated 
accounts  in  euro  in  Member  States  where  the  third  phase  of  the  economic  and 
monetary  union  (EMU)  does  not  apply.  However  such  Member  States  may  also 
require SPEs to prepare and publish their annual and, where applicable, consolidated 
accounts in the national currency in accordance with the applicable national law. 

29 

OJ L 160, 30.6.2000, p. 1. 

EN 

34 

   EN 

                                                 
CHAPTER X 
FINAL PROVISIONS 

Article 43 
Effective application 

Member States shall make such provision as is appropriate to ensure the effective application 
of this Regulation. 

Article 44 
Penalties 

The Member States shall  lay  down  the rules on penalties  applicable to  infringements  of the 
provisions  of  this  Regulation  and  shall  take  all  measures  necessary  to  ensure  that  they  are 
implemented. The penalties provided for must be effective, proportionate and dissuasive. The 
Member States shall notify those provisions to the Commission by 1 July 2010 at the latest 
and shall notify it without delay of any subsequent amendment affecting them.  

Article 45 
Notification of private limited-liability companies 

Member  States  shall  notify  the  form  of  private  limited-liability  company  referred  to  in  the 
second paragraph of Article 4 to the Commission by 1 July 2010 at the latest.  

The Commission shall publish this information in the Official Journal of the European Union. 

Article 46 
Obligations of authorities responsible for registers 

1. 

2. 

The authorities responsible for the register referred to in Article 9(1) shall notify the 
Commission  before  31  March  each  year,  of  the  name,  registered  office  and 
registration  number  of  the  SPEs  registered  in  and  removed  from  the  register  in  the 
preceding year as well as the total number of registered SPEs. 

The authorities referred to in paragraph 1 shall cooperate with each other to ensure 
that  the  documents  and  particulars  of  the  SPEs  listed  in  Article  10(2)  are  also 
accessible through the registers of all other Member States.  

The Commission shall, no later than 30 June 2015, review the application of this Regulation. 

Article 47 
Review 

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Article 48 
Entry into force 

This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

It shall apply from 1 July 2010. 

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

Done at Brussels,  

For the Council 
The President 

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The articles of association of an SPE shall regulate at least the following: 

ANNEX I 

Chapter II – Formation 

– 

the name of the SPE, 

– 

the names and addresses of the founding shareholders of the SPE and the nominal value or accountable par of 
the shares held by them, 

– 

the initial capital of the SPE, 

Chapter III - Shares 

–  whether  sub-division,  consolidation  or  redenomination  of  the  shares  is  permitted  and  any  applicable 

requirements,  

– 

the pecuniary and non-pecuniary rights and the obligations attached to the shares (share classes), in particular  

–  (a) the participation in the assets and profits of the company, if any,  

–  (b) the votes attached to the shares, if any,  

– 

the procedure for agreeing on any variation of the rights and obligations attached to the shares (share classes), 
and, subject to Article 14(3), the required majority of voting rights,  

–  any pre-emption rights either on issue or on transfer of shares, if any, and any applicable requirements, 

–  where  the  transfer  of  shares  is  restricted  or  prohibited,  the  details  of  the  restriction  or  prohibition,  in 
particular the form, time limit, the applicable procedure, and the rules applicable in the event of the death or 
dissolution of a shareholder, 

–  where  the  approval  of  the  share  transfer  by  the  SPE  or  by  the  shareholders  is  required  or  other  rights  are 
provided  for  shareholders  or  for  the  SPE  on  the  transfer  of  shares  (for  example,  right  of  first  refusal),  a 
deadline by which the transferor is to be notified of the decision, 

–  whether,  in  addition  to  Article  17,  shareholders  have  any  rights  to  require  other  shareholders  to  sell  their 

shares, and any applicable requirements,  

–  whether, in addition to Article 18, shareholders have the right to sell their shares to other shareholders or to 

the SPE, who are obliged to buy those shares, and the applicable requirements,  

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Chapter IV – Capital 

– 

the financial year of the SPE and how it may be changed, 

–  whether the SPE is required to establish reserves and if so, the type of reserve, the circumstances in which it 

is to be established and whether it is distributable, 

–  whether consideration in kind are to be evaluated by an independent expert and any formalities that must be 

complied with, 

– 

the time when the payment or provision of the consideration is to be made and any conditions relating to such 
payment or provision, 

–  whether or not the SPE can provide financial assistance, in particular advance funds, make loans or provide 

security, with a view to the acquisition of its shares by a third party, 

–  whether interim dividends can be paid and any applicable requirements,  

–  whether the management body is required to sign a solvency certificate before a distribution is made, and the 

applicable requirements, 

– 

the procedure the SPE must follow to recover any unlawful distribution, 

–  whether the acquisition of own shares is permitted and, if permitted, the procedure to be followed, including 

the conditions under which the shares may be held, transferred or cancelled,  

– 

the  procedure  for  increasing,  reducing  or  otherwise  changing  the  share  capital,  and  any  applicable 
requirements, 

Chapter V – Organisation of the SPE 

– 

the method of adopting shareholder resolutions,  

–  subject to the provisions of this Regulation, the majority required to adopt shareholder resolutions,  

– 

the resolutions to be adopted by the shareholders, in addition to those listed in Article 27(1), the quorum and 
the required majority of voting rights, 

–  subject to Articles 21, 27 and 29, the rules on proposing resolutions,  

– 

– 

the period of time and the manner in which the shareholders are to be informed of proposals for shareholder 
resolutions and, if the articles of association provide for general meetings, general meetings,  

the  way  in  which  the  shareholders  obtain  the  text  of  any  proposed  shareholder  resolution  and  any  other 
preparatory documents in relation to the adoption of a resolution, 

– 

the manner in which copies of an adopted resolution are made available to the shareholders, 

–  where the articles of association provide for the adoption of some or all resolutions at a general meeting, the 

manner of convening the general meeting, the working methods and the rules on voting by proxy, 

– 

the procedure and time limits for the SPE to respond to requests from shareholders for information, to grant 
access to the documents of the SPE, and to notify resolutions that have been adopted by shareholders, 

–  whether the SPE's management body is composed of one or more managing directors, a management board 

(dual board) or an administrative board (unitary board), 

–  where there is an administrative board (unitary board), its composition and organisation, 

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–  where there is a management board (dual board), its composition and organisation, 

–  where there is a management board (dual board) or one or more managing directors, whether the SPE has a 
supervisory body, and if so, its composition and organisation and its relationship with the management body, 

–  any eligibility criterion of directors, 

– 

the procedure for appointing and removing directors,  

–  whether  the  SPE  has  an  auditor  and  where  the  articles  of  association provide  that  the  SPE  should  have an 

auditor, the procedure for his appointment, removal and resignation, 

–  any specific duties of directors other than those mentioned in this Regulation,  

–  whether situations involving an actual or potential conflict of interest by a director may be authorised and, if 
so, an indication of who may authorise such a conflict and the applicable requirements and procedures for the 
authorisation of such a conflict, 

–  whether  related  party  transactions  as  referred  to  in  Article  32  need  to  be  authorised  and  the  applicable 

requirements, 

– 

the rules on representation of the SPE by the management body, in particular if the directors have the right to 
represent the SPE jointly or separately and any delegation of this right,  

– 

the rules on delegation of any management power to another person. 

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ANNEX II 

NOTIFICATION FORM CONCERNING THE REGISTRATION OF THE 
TRANSFER OF THE REGISTERED OFFICE OF AN SPE  

NOTIFICATION 

concerning the registration of the transfer of the registered office of a European private 
company (SPE) 

[Name and address of the new register/competent authority] 

hereby informs 

[Name and address of the former register/competent authority] 

that the following transfer of the registered office of an SPE has been registered: 

[Name of the SPE] 

[New registered office of the SPE] 

[New number of entry in the register] 

[Date of registration of the transfer] 

In accordance with Regulation … on the Statute for a European private company, the 
following SPE is to be removed from its former register on receipt of this notification: 

[Name of the SPE] 

[Former registered office of the SPE] 

[Former number of entry in the register] 

Done at…, […] 

[signed] 

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