Statute for a European private company * European Parliament legislative resolution of 10 March 2009 on the proposal for a Council regulation on the Statute for a European private company (COM(2008)0396 — C6-0283/2008 — 2008/0130(CNS))
Date: 2009-03-10
Institutions: Committee on Economic and Monetary Affairs, Committee on Employment and Social Affairs, Committee on Legal Affairs, European Parliament
Subjects: European company, amendment, consultation procedure, drafting of EU law, legal status, private sector, resolution of parliament, small business








CE2010087EN.01030001.xml










1.4.2010   


EN


Official Journal of the European Union


CE 87/300





Tuesday 10 March 2009Statute for a European private company *
P6_TA(2009)0094
European Parliament legislative resolution of 10 March 2009 on the proposal for a Council regulation on the Statute for a European private company (COM(2008)0396 — C6-0283/2008 — 2008/0130(CNS))
2010/C 87 E/46
(Consultation procedure)

The European Parliament,

having regard to the Commission proposal to the Council (COM(2008)0396),
having regard to Article 308 of the EC Treaty, pursuant to which the Council consulted Parliament (C6-0283/2008),
having regard to Rule 51 of its Rules of Procedure,
having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Economic and Monetary Affairs and the Committee on Employment and Social Affairs (A6-0044/2009),






1.


Approves the Commission proposal as amended;










2.


Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;










3.


Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;










4.


Calls for initiation of the conciliation procedure under the Joint Declaration of 4 March 1975 if the Council intends to depart from the text approved by Parliament;










5.


Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;










6.


Instructs its President to forward its position to the Council and the Commission.










TEXT PROPOSED BY THE COMMISSION


AMENDMENT





Amendment 1






Proposal for a regulation


Recital 2 a (new)





 










(2a)






Existing Community forms of company have a cross-border component. That cross-border component should not be an obstacle for the founding of a European private company (SPE). The Commission and Member States should, however, without prejudice to the requirements of registration and within two years of registration, conduct ex-post monitoring in order to examine whether the SPE has the required cross-border component;











Amendment 2






Proposal for a regulation


Recital 3











(3)


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.












(3)




Sustainable and steady growth of the internal market requires a comprehensive body of business law tailored to the needs of small and medium-sized enterprises (SMEs).
 Since a private company 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.









Amendment 3






Proposal for a regulation


Recital 4











(4)


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.












(4)


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. 
At the same time, however, steps should be taken to prevent the use of SPEs to circumvent legitimate legal requirements of Member States.











Amendment 4






Proposal for a regulation


Recital 8











(8)


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












(8)


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 
preventive
 verification. For the purposes of registration, it is appropriate to use the registries designated by First Council Regulation 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 companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community.









Amendment 5






Proposal for a regulation


Recital 8 a (new)





 










(8a)






In line with the Council and Commission commitments to the concept of ‘e-justice’, all forms pertinent to the formation and registration of an SPE should be available online. Furthermore, in order to reduce duplicate filing of documents, the Commission should maintain a central registry with electronic links to the discrete national registries of Member States.











Amendment 6






Proposal for a regulation


Recital 8 b (new)





 










(8b)






In order to ensure transparency and disclosure of accurate information about SPEs, the Commission should establish and coordinate a database for SPEs, available on the Internet, for the purpose of collecting, disclosing and disseminating information and particulars concerning their registration, registered office, centre of activity, branches and any transfers of their registered office, transformation, merger, division, or dissolution.











Amendment 7






Proposal for a regulation


Recital 11











(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.












(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 
executive
 management body of the SPE to sign a solvency certificate.









Amendment 74






Proposal for a regulation


Recital 15











(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 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
.












(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’). 
Where the law of the home Member State provides for participation rights, the entire workforce of the SPE should have the right to elect, appoint, recommend or oppose the appointment of a number of members of the administrative or supervisory organ of the SPE.
 The SPE should not be used for the purpose of circumventing 
employees’
 rights 
of participation
. 
In particular, appropriate safeguards should be put in place so that the SPE Statute cannot be used by large companies as a way to circumvent existing obligations under national and Community law, without overburdening small and medium-sized enterprises wishing to form an SPE for genuine business reasons. Where a significant part of the workforce is habitually employed in a Member State or Member States with employee participation that is more extensive than the level of participation of the home Member State, the company should start negotiations with the employees on a uniform system of participation at the level of the SPE, in line with the provisions of Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees (1). Tailored rules should, however, apply to SPEs formed ex nihilo and employing altogether fewer than 500 employees. Negotiations on employee participations should only be initiated where a dominant part of the workforce habitually works under a more favourable participation regime than that applying in the home Member State. The place where an employee is habitually employed should be understood as the Member State where he normally carries on his working activities, even if he is temporarily seconded to another place.











Amendment 75






Proposal for a regulation


Recital 15 a (new)





 










(15a)






The rules on the possible negotiation of participation arrangements should not impair the dynamism of the SPE by being too rigid. Where the size and/or the deployment of the workforce of an SPE changes significantly, for example by reason of a major acquisition or transfer of activities between Member States, the existing participation arrangements should be adapted whilst respecting the will of the parties. If the existing participation arrangements do not permit the requisite adaptation to be carried out, the need for, and, where applicable, the content of, participation arrangements should be reassessed in the light of the rules applicable in the case of the formation of an SPE.











Amendment 76






Proposal for a regulation


Recital 15 b (new)





 










(15b)






Where the national legislation of the Member State to which the SPE transfers its registered office does not provide for at least the same level of employee participation as that applying in the home Member State, the participation of employees in the company following the transfer should in certain circumstances be negotiated. For reasons of consistency and to avoid creating loopholes, the rules concerning possible negotiations on participation rights in the event of transfer of the registered office should be the same as those applicable in the case of the formation of an SPE.











Amendment 9






Proposal for a regulation


Recital 16











(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 employees, Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, 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 businesses 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 Community.












(16)


Employees’ rights should remain subject to 
Community law and its implementation in Member States, in particular
 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 employees, Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, 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 businesses 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 Community.









Amendment 77






Proposal for a regulation


Recital 17











(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.












(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 the rules applicable to employee participation,
 and should ensure that they are implemented. Those penalties must be effective, proportionate and dissuasive.









Amendment 10






Proposal for a regulation


Article 2 – paragraph 1 – point b











(b)


‘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;












(b)


‘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, 
that is not balanced by a full claim to compensation or reimbursement
;









Amendment 12






Proposal for a regulation


Article 2 – paragraph 1 – point d











(d)


‘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;












(d)


‘
executive
 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;









Amendment 13






Proposal for a regulation


Article 2 – paragraph 1 – point e











(e)


‘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;












(e)


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









Amendment 14






Proposal for a regulation


Article 2 – paragraph 1 – point e a (new)





 










(ea)






‘level of employee participation’ means the proportion of employee 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;











Amendment 15






Proposal for a regulation


Article 3 – paragraph 1





1.   An SPE shall comply with the following requirements:


1.   An SPE 
shall be a corporate body possessing legal personality and
 shall comply with the following requirements:










(a)


its capital shall be divided into shares,












(a)


its capital must be divided into shares,














(b)



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












(b)



its shareholders must not be liable for more than the amount they have subscribed or have agreed to subscribe,
















(c)






it shall have legal personality,








 










(d)


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












(d)


its shares must not be 
made the subject of general public offers,
 and must not be publicly traded
; this shall not, however, prohibit offers to employees
,














(e)


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












(e)


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









Amendment 70






Proposal for a regulation


Article 3 – paragraph 1 – point e a (new)





 










(ea)






it shall have a cross-border component demonstrated by one of the following:








—




a cross-border business intention or corporate object,












—




an objective to be significantly active in more than one Member State,












—




establishments in different Member States, or












—




a parent company registered in another Member State.















Amendment 18






Proposal for a regulation


Article 7





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


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.


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. 
If the central administration or principal place of business is located in a Member State other than that in which it has its registered office, the SPE shall lodge in the register of the Member State where the central administration or principal place of business is located the particulars referred to in points (a), (b) and (c) of Article 10(2). The information recorded in the register shall be deemed to be accurate.




The lodging of documents in a European central register will fulfil the requirements for lodging documents in accordance with the second paragraph.







Amendment 19






Proposal for a regulation


Article 7 – paragraph 3 a (new)





 




The registered office shall be the address at which all legal documents relating to the SPE are to be served.







Amendments 20 and 79






Proposal for a regulation


Article 8 – paragraphs 2 and 3





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


2.   The articles of association of a SPE shall be in writing and signed by every founding shareholder. 
Further formalities may be prescribed by the existing applicable national law, unless the SPE uses official model articles of association.






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


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










(a)


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;












(a)


in relation to the shareholders and the 
executive
 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;














(b)


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.












(b)


in relation to third parties, in accordance with the provisions of the applicable national law implementing 
paragraphs 2, 5, 6 and 7
 of Article 3 of Directive 68/151/EEC.









Amendment 21






Proposal for a regulation


Article 9 – paragraph 3 a (new)





 




3a.
   
A copy of each registration of an SPE and copies of all subsequent amendments thereto shall be sent by the respective national registers to a European register managed by the Commission and the competent national authorities and held in that European register. The Commission shall monitor the data entered in that register, particularly with a view to avoiding possible abuses and mistakes. If the SPE is unable to demonstrate that it complies with point (ea) of Article 3(1) within two years of registration, it shall be converted into the appropriate national legal form.







Amendment 22






Proposal for a regulation


Article 10





1.   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.


1.   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
, in accordance with the provisions of the applicable national law implementing Article 3(2) of Directive 68/151/EEC
.




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


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










(a)


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












(a)


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














(b)


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;












(b)


the names, addresses and any other information necessary to identify the persons who are 
members of the executive management body, and those 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;








 










(ba)






the corporate object, including an explanation of the cross-border component of the business objective of the SPE, where appropriate;
















(c)


the share capital of the SPE;












(c)


the share capital of the SPE;








 










(ca)






the list of shareholders in accordance with Article 15;
















(d)


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












(d)


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














(e)


the total number of shares;












(e)


the total number of shares;














(f)


the nominal value or accountable par of the shares;












(f)


the nominal value or accountable par of the shares;














(g)


the articles of association of the SPE;












(g)


the articles of association of the SPE;














(h)


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.












(h)


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


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




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


4.   Registration of the SPE 
shall
 be subject to 
at least
 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;












(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.












(b)


the certification 
or legal authentication
 of the documents and particulars of the SPE.








5.   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.


5.   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. 
The second sentence of paragraph 1 and paragraph 4 shall apply mutatis mutandis.






6.   The registration of an SPE shall be disclosed.


6.   The registration of an SPE shall be disclosed.





Amendment 23






Proposal for a regulation


Article 11 – paragraph 2 – point b











(b)


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












(b)


the name of the SPE, the address of its registered office and, where appropriate, 
details of its central administration or principal place of business, the existence of any branches and
 the fact that the company is being wound up;










Amendment 24






Proposal for a regulation


Article 11 – paragraph 2 – point b a (new)





 










(ba)






details of the members of the executive management body of the SPE.











Amendment 25






Proposal for a regulation


Article 15





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


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










(a)


the name and address 
of
 each shareholder;












(a)


the name 
of,
 and 
a postal
 address 
for,
 each shareholder;














(b)


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












(b)


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














(c)


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












(c)


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














(d)


the date of acquisition of the shares;












(d)


the date of acquisition of the shares;














(e)


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












(e)


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














(f)


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












(f)


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.












(g)


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








2.   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.


2.   The list of shareholders 
registered in accordance with Article 10
 shall, unless proven otherwise, constitute evidence of the 
accuracy
 of the matters listed in points (a) to (g) of paragraph 1.




3.   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.


3.   The list of shareholders 
registered in accordance with Article 10
 and any amendments thereto shall be kept by the 
executive
 management body and may be inspected by the shareholders or third parties on request.





Amendment 27






Proposal for a regulation


Article 16 – paragraph 3





3.   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.


3.   On notification 
by the shareholder
 of a transfer, the 
executive
 management body shall, without undue delay, enter the shareholder in the list referred to in Article 15 
and registered in accordance with Article 10
, 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.





Amendment 28






Proposal for a regulation


Article 16 – paragraph 4 – point a











(a)


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












(a)


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









Amendment 29






Proposal for a regulation


Article 16 – paragraph 4 – point b











(b)


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












(b)


in relation to third parties, on the day the shareholder is entered in the list referred to in Article 15 
or his status as shareholder is published in the register in accordance with Article 9
.









Amendment 30






Proposal for a regulation


Article 18 – paragraph 1





1.   
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
:


1.   
The right of withdrawal shall be exercisable by shareholders who do not subscribe to resolutions concerning
:










(a)




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












(a)




operations which deprive the SPE of a significant part of its assets
;














(b)




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














(b)




operations which bring about a substantial change in the activities of the SPE;
















(c)




the activities of the SPE have changed substantially;














(c)




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
















(d)




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












(d)




non-distribution of dividends
 for at least three years, even though the SPE’s financial position would have permitted such distribution.








 




The articles of association of the SPE may provide for additional grounds for withdrawal.







Amendment 31






Proposal for a regulation


Article 18 – paragraph 3





3.   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.


3.   The 
executive
 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.





Amendment 32






Proposal for a regulation


Article 18 – paragraph 4





4.   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.


4.   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 
executive
 management body shall notify the shareholder of that fact without undue delay.





Amendment 33






Proposal for a regulation


Article 19 – paragraph 4





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


4.   The capital of the SPE shall be at least EUR 1
, provided that the articles of association require that the executive management body sign a solvency certificate as referred to in Article 21. Where the articles of association contain no provision to that effect, the capital of the SPE shall be at least EUR 8 000
.





Amendment 34






Proposal for a regulation


Article 20 – paragraph 3





3.   
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
.


3.   
Where the value of the consideration in kind falls short of the value of the share acquired, the shareholder shall pay a consideration in cash equal to the shortfall. The company’s claim to payment shall lapse eight years after the company’s registration.







Amendment 35






Proposal for a regulation


Article 21 – paragraph 1





1.   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.


1.   Without prejudice to Article 24, the SPE may, on the basis of a proposal of the 
executive
 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. 
A distribution shall be permissible only where the remaining amount of the deposit does not fall below the minimum amount referred to in Article 19(4).







Amendment 36






Proposal for a regulation


Article 21 – paragraph 2





2.   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.


2.   If the articles of association so require, the 
executive
 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.





Amendment 37






Proposal for a regulation


Article 22





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
.


Any shareholder who has received distributions made contrary to Article 21 must return those distributions to the SPE.





Amendment 38






Proposal for a regulation


Article 24 – paragraph 1





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


1.   In the case of a reduction of the share capital of the SPE, Articles 21 and 22 shall apply mutatis mutandis. 
A reduction of the share capital shall be permissible only where the remaining amount of the deposit does not fall below the minimum amount referred to in Article 19(4).







Amendment 39






Proposal for a regulation


Article 25 – paragraph 1





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


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





Amendment 40






Proposal for a regulation


Article 25 – paragraph 2





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


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





Amendment 41






Proposal for a regulation


Article 26 – paragraph 1





1.   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.


1.   The SPE shall have 
an executive
 management body, which shall be responsible for the management of the SPE. The 
executive
 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. 
Members’ resolutions shall be internally binding on the executive management body.







Amendment 42






Proposal for a regulation


Article 27 – paragraph 2





2.   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.


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





Amendment 43






Proposal for a regulation


Article 27 – paragraph 3





3.   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.


3.   The adoption of resolutions shall not require the organisation of a general meeting. The 
executive
 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.





Amendment 44






Proposal for a regulation


Article 27 – paragraph 4





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


4.   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.


Resolutions 
of the shareholders may be declared ineffective on the grounds of an infringement of the provisions of the articles of association, of this Regulation or of
 the applicable law 
only by means of an action before the court that has jurisdiction in relation to the SPE’s registered office
.


An action may be brought within one month from the date of the resolution by any shareholder who did not vote in favour of the resolution, provided that the company does not remedy the deficiency in the resolution and the complainant does not give his or her subsequent agreement. The articles of association may allow a longer time for appeal.







Amendment 45






Proposal for a regulation


Article 27 – paragraph 7 – point (a)











(a)


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












(a)


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









Amendment 46






Proposal for a regulation


Article 28 – paragraph 1





1.   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.


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





Amendment 47






Proposal for a regulation


Article 28 – paragraph 2





2.   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.


2.   The 
executive
 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.





Amendment 48






Proposal for a regulation


Article 29 – paragraph 1





1.   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.


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





Amendment 49






Proposal for a regulation


Article 29 – paragraph 1 – subparagraph 3





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.


If the request is refused or if the 
executive
 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.





Amendment 50






Proposal for a regulation


Article 29 – paragraph 2 – subparagraph 2





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


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





Amendment 51






Proposal for a regulation


Article 31 – paragraph 4





4.   
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
.


4.   
The directors
 shall be 
jointly and severally
 liable 
in respect of
 the company for any 
prejudice to the SPE
 deriving from 
a failure to fulfil the duties incumbent on them under
 this Regulation, 
the articles of association
 of the SPE or a resolution of shareholders. 
Such liability shall not extend to directors who are able to demonstrate their blamelessness and who made known their disagreement with the failure to fulfil duties
.





Amendment 52






Proposal for a regulation


Article 31 – paragraph 5





5.   
Without prejudice to the provisions of this Regulation, the liability of directors shall be governed by the applicable national law
.


5.   
Directors shall pay compensation in particular where payments have been made in breach of Article 21 or own shares in the company have been acquired in breach of Article 23(2). A requirement on the part of the directors to compensate the company’s creditors shall not be waived on the grounds that they acted in accordance with a resolution of the shareholders.







Amendment 53






Proposal for a regulation


Article 31 – paragraph 5 a (new)





 




5a.
   
Any right of action pursuant to this Article shall lapse within four years of the date when it arose.







Amendment 54






Proposal for a regulation


Article 33





1.   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.


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




2.   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.


2.   The articles of association of the SPE may provide that 
members of the executive management body
 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.




3.   
Directors
 may delegate the right to represent the SPE in accordance with the articles of association.


3.   
Members of the executive management body
 may delegate the right to represent the SPE in accordance with the articles of association.





Amendment 71






Proposal for a regulation


Article 34 – paragraph 1





1.   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.


1.   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. 
Those rules, if any, shall apply to the entire workforce of the SPE.






 




1a.
   
Paragraph 1 shall not apply where:










(a)






the SPE employs altogether more than 1 000 employees and more than one quarter (25 %) of the total workforce habitually works in a Member State or Member States which provide for a greater level of employee participation than the Member State in which the SPE has its registered office. In that event, the provisions on employee participation of Directive 2001/86/EC shall apply mutatis mutandis. In addition, the SPE may also apply Article 16(4) of Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies (2);














(b)






the SPE employs altogether between 500 and 1 000 employees and more than one third (33⅓ %) of the total workforce habitually works in a Member State or Member States which provide for a greater level of employee participation than the Member State in which the SPE has its registered office. In that event, the provisions on employee participation of Directive 2001/86/EC and of Article 16(3)(e), (4) and (5) of Directive 2005/56/EC shall apply mutatis mutandis;














(c)






the SPE has been founded pursuant to point (b), (c) or (d) of Article 5(1) and employs altogether fewer than 500 employees, and more than one third (33⅓ %) of the total workforce habitually works in a Member State or Member States which provide for a greater level of employee participation than the Member State in which the SPE has its registered office. In that event, the provisions on employee participation of Directive 2001/86/EC and of Article 16(3)(e), (4) and (5) of Directive 2005/56/EC shall apply mutatis mutandis;














(d)






the SPE has been founded pursuant to point (a) of Article 5(1) and employs altogether fewer than 500 employees, and more than half (50 %) of the total workforce habitually works in a Member State or Member States which provide for a greater level of employee participation than the Member State in which the SPE has its registered office. In that event, the provisions on employee participation of Directive 2001/86/EC and of Article 16(3)(e), (4) and (5) of Directive 2005/56/EC shall apply mutatis mutandis.











Amendment 72






Proposal for a regulation


Article 34 a (new)





 



Article 34a


Adaptation clause



In the absence of provisions on employee participation, Article 34(1a) shall apply if, due to changes in the number of employees, the conditions laid down therein are fulfilled.




If the conditions laid down in Article 34(1a) cease to be fulfilled, the management board of the SPE may apply Article 34(1).




Existing participation arrangements, if any, shall remain in place until the new arrangements enter into force.







Amendment 56






Proposal for a regulation


Article 36 – paragraph 1 – introduction





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


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





Amendment 57






Proposal for a regulation


Article 36 – paragraph 2 – introduction





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:


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





Amendment 58






Proposal for a regulation


Article 36 – paragraph 3





3.   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.


3.   The 
executive
 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.





Amendment 59






Proposal for a regulation


Article 36 – paragraph 3 – subparagraph 2





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


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





Amendment 73






Proposal for a regulation


Article 38





1.   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.


1.   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.




2.   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 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.








3.
   
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.




4.
   
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.








5.
   
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.




6.
   
In the absence of an agreement, the participation arrangements existing in the home Member State shall be maintained.




2.   Paragraph 1 shall not apply where the 
conditions laid down in Article 34(1a) are fulfilled. In that event, Article 34(1a) shall apply mutatis mutandis.







Amendment 60






Proposal for a regulation


Article 42 – paragraph 1





1.   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.


1.   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. 
Such SPEs shall, in addition,
 express 
their
 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.





Amendment 61






Proposal for a regulation


Article 42 – paragraph 2





2.   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.




2.   An SPE 
shall
 prepare and publish its annual and, where applicable, consolidated accounts 
both in the national currency and
 in euro in Member States where the third phase of the economic and monetary union (EMU) does not apply.





Amendment 62






Proposal for a regulation


Article 42 a (new)





 



Article 42a


Arbitration clause



1.
   
The articles of association may, in the form of an arbitration clause, provide for the referral to arbitrators of any disputes arising between shareholders, or between shareholders and the SPE, concerning its corporate relations. The articles of association may also provide that the arbitration clause cover disputes with the directors. In that case, the arbitration clause shall be binding on the directors upon their acceptance of the post.




2.
   
Any amendment of the constituent act, introducing or removing the arbitration clause by a resolution of the shareholders under Article 27 must be approved by shareholders representing at least two-thirds of the share capital.







Amendment 63






Proposal for a regulation


Article 43 a (new)





 



Article 43a


Severability clause



Any clause of the articles of association that is ineffective shall be severable and the remaining clauses of the articles of association shall continue to be effective. The ineffective clause shall be replaced by the corresponding clause of the model articles of association until they have been corrected by a resolution of the shareholders. Where the sample articles of association make no provision for a corresponding clause, the ineffective clause shall be replaced by the law relating to limited-liability companies of the Member State in which the registered office of the SPE is situated.







Amendment 64






Proposal for a regulation


Article 45





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.


Member States shall notify 
the Commission by 1 July 2010 of
 the form of private limited-liability 
companies
 referred to in the second paragraph of Article 4
, of the consequences under their national law of failure to comply with any provisions of this Regulation, and of any additional provisions of their company law which apply to an SPE
.
The Commission shall publish this information in the Official Journal of the European Union.


Furthermore, Member States shall maintain web pages listing SPEs registered in their territory and any court judgments relating to the operation of SPEs in their territory. The Commission shall maintain a web page which provides an electronic link to those discrete national web pages.







Amendment 65






Proposal for a regulation


Annex I – Chapter IV – Capital – indent 7











—


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












—


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









Amendment 66






Proposal for a regulation


Annex I – Chapter V – Organisation of the SPE – indent 10











—


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),












—


whether the SPE’s 
executive
 management body is composed of one or more managing directors, a management board (dual board) or an administrative board (unitary board),









Amendment 67






Proposal for a regulation


Annex I – Chapter V – Organisation of the SPE – indent 13











—


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,












—


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 
executive
 management body,









Amendment 68






Proposal for a regulation


Annex I – Chapter V – Organisation of the SPE – indent 20











—


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









Amendment 69






Proposal for a regulation


Annex I – Chapter V – Organisation of the SPE – indent 21











—


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












—


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










(1)  

OJ L 294, 10.11.2001, p. 22.



(2)  

OJ L 310, 25.11.2005, p. 1.