CELEX: 51991PC0273(03)
Language: en
Date: 1992-03-05
Title: Proposal for a COUNCIL REGULATION ( EEC ) on the Statute for a European cooperative society

21.4. 92                                   Official Journal of the European Communities                                  No C 99/ 17
                     Proposal for a Council Regulation on the statute for a European cooperative society
                                                                 (92/C 99/03)
                                                     COM(91) 273final — SYN 388
                                           (Submitted by the Commission on 6 March 1992)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                                  instrument which is suited to the specific features of
                                                                          cooperatives ;
Having regard to the Treaty establishing the European
Economic Community, and in particular Article 100a
thereof,                                                                  Whereas the European Economic Interest Grouping
                                                                          ( EEIG), as provided for in Council Regulation (EEC)
Having regard to the proposal from the Commission,                        No 2137/ 85 (6), does allow undertakings to promote
                                                                          certain of their activities in common , while nevertheless
                                                                          preserving their independence, but it does not meet the
In cooperation with the European Parliament,
                                                                          specific requirements of cooperative enterprise ;
Having regard to the opinion of the Economic and
Social Committee,
                                                                          Whereas respect for the principle of the primacy of the
                                                                          individual is reflected in the specific rules on member­
Whereas the European Parliament adopted resolutions                       ship, resignation and expulsion, where the one man,
on 13 April 1983 on cooperatives in the European                          one vote rule is laid down and the right to vote is
Community (') and on 9 July 1987 on the contribution                      vested in the individual, with the implication that
of cooperatives to regional development (2);                              members cannot exercise any rights over the assets of
                                                                          the cooperative ;
Whereas the Commission adopted a communication to
the Council of 18 December 1989 (3); whereas the
Economic and Social Committee gave its opinion on                         Whereas cooperative societies are essentially groups of
that communication on 19 September 1990 (4);                              persons, operating in accordance with their own princi­
                                                                          ples, which are different from those applying to other
Whereas the completion of the internal market means                       businesses ;
that there must be full freedom of establishment for all
activities which contribute to the objectives of the
Community, irrespective of the form taken by the body                     Whereas cross-border cooperation between coopera­
which carries them on ;                                                   tives in the Community is currently hampered by legal
                                                                          and administrative difficulties which should be elimi­
Whereas, therefore, the Community, which is con­                          nated in a market without frontiers ;
cerned to respect equal terms of competition and to
contribute to its economic development, should pro­
vide cooperatives , which are a form of organization                      Whereas the introduction of a European form of organ­
generally recognized in all Member States, with ade­                      ization which would be available to cooperatives,
quate legal instruments capable of facilitating the                       based on common principles but taking account of
development of their transnational activities ;                           their specific features, should enable them to operate
                                                                          outside their own national borders in all or part of the
Whereas by attainment of their objectives and the form                    territory of the Community ;
of their operations cooperatives play a full part in the
life of the economy ;
                                                                          Whereas the essential aim of the legal rules governing
Whereas the Statute for a European company, as prov­                      the European cooperative society implies that such a
ided for in Regulation (EEC) No . . . (5), is not an                      cooperative may be set up by legal entities established
                                                                          under the laws of different Member States, or by trans­
                                                                          formation of a national cooperative into the new form ,
O    OJ No C 128 , 16 . 5 . 1983 , p. 51 .
O    OJ No C 246, 14. 9 . 1987 , p. 94.                                   without first being wound up, so long as the coopera­
( 3) Businesses in the 'economie sociale' sector — Europe's               tive has its registered office and central administration
     frontier-free market : SEC(89) 2187 final, 18 . 12 . 1989 .
(4)  OJNoC 332 , 31 . 12 . 1990, p . 81 .
(5)  OJ No L . . .                                                        (6)  OJ No L 199, 31.7 . 1985 , p. 1 .
 ---pagebreak--- No C 99 / 18                              Official Journal of the European Communities                                 21.4 . 92
in the Community and an establishment or subsidiary                       tection of the interests of members and others, are
in a Member State other than that in which it has its                     required by Member States of companies within
central administration ; in this last case, the cooperative               the meaning of the second paragraph of Article 58
must engage in genuine and effecive cross-border activ­                   of the Treaty, with a view to making such safe­
ity ;                                                                     guards equivalent throughout the Community (2),
                                                                          as last amended by the Act of Accession of Spain
                                                                          and Portugal,
Whereas cooperatives have a share capital, and may
have among their members some who are also custo­
                                                                     — Council Directive 78/660/ EEC of 25 July 1978
mers or suppliers ; whereas cooperatives may also have
                                                                          based on Article 54 (3) (g) of the Treaty on the
among their members a specified proportion of mem­                        annual accounts of certain types of companies (3),
bers who do not use their services , or of third parties
                                                                          as last amended by Directives 90/604/ EEC (4) and
who benefit by their activities or carry out work for the
                                                                          90/605 / EEC (5),
cooperative's account ;
                                                                     — Council Directive 83 /349/ EEC of 13 June 1983
Whereas the rules on accounting are intended to ensure                    based on Article 54 (3) (g) of the Treaty on consoli­
more effective management and to forestall any possi­                     dated accounts (6), as last amended by Directives
ble difficulty ;                                                          90/604/ EEC and 90/605 / EEC,
Whereas, on matters not covered by this Regulation,                  — Council Directive 84/253 / EEC of 10 April 1984
the provisions of the law of the Member States and of                     based on Article 54 (3) (g) of the Treaty on the
Community law are applicable, for example with                            approval of persons responsible for carrying out
regard to ;                                                               the statutory audits of accounting documents (7),
— rules on employee involvement in the decision­                     — Council Directive 89 /48 / EEC of 21          December
      making process,                                                      1988 on a general system for the recognition of
                                                                          higher-education diplomas awarded on completion
— employment law,                                                         of professional education and training of at least
                                                                          three years ' duration (8),
— taxation law ,
                                                                     — Council Directive 89 /666 / EEC of 21 December
— competition law ,
                                                                           1989 concerning disclosure requirements in respect
— intellectual and industrial property law,                               of branches opened in a Member State by certain
                                                                          types of company governed by the law of another
— rules on insolvency and suspension of payments ;                        State (9);
Whereas the application of this Regulation must be
deferred so as to enable each Member State to incor­                 Whereas the activities in the field of financial services
porate into its national law the provisions of Council               and notably as they concern credit establishments and
 Directive .../... / EEC of supplementing the Statute                insurance enterprises have been the subject of legisla­
 for a European cooperative society with regard to the               tive measures pursuant to the following Directives :
 involvement of employees (') and to put in place in
 advance the necessary machinery for securing the for­               — Council Directive 86 /635 / EEC of 8 December
 mation and operation of European cooperative socie­                       1986 on the annual accounts and consolidated
 ties having their registered office in its territory, so that            accounts of banks and other financial institutions
 the Regulation and the Directive may be applied con­                     ( 10),
comitantly ;
                                                                     — Council Directive 89 /646 / EEC of 15 December
                                                                           1989 on the coordination of laws, regulations and
 Whereas work on the approximation of national com­                       administrative provisions relating to the taking up
pany law has made substantial progress so that refer­                     and pursuit of the business of credit institutions
ence may be made to certain dispositions made by the                      and amending Directive 77/780/ EEC ( n );
 Member State where the European cooperative society
 has its registered office for the purpose of implement­             — Council Directive ../... / EEC on the coordina­
 ing directives on companies, by analogy for the Euro­                    tion of laws, regulations and administrative provi­
 pean cooperative society in areas where the functioning
of the cooperative does not require uniform Com­
 munity rules, such dispositions being appropriate to the            (2)  OJ No L 65, 14. 3 . 1968 , p. 8 .
 arrangements governing the European cooperative                     P)   OJ No L 222, 14. 8 . 1978, p. 11 .
 society ;                                                           (4)  OJ No L 317, 16 . 11 . 1990, p . 57 .
                                                                     O    OJ No L 317, 16. 11 . 1990, p . 60.
— Council Directive 68 / 151 / EEC of 9 March 1968                   (o)  OJ No L 193 , 18 . 7 . 1983 , p. 1 .
                                                                     (7)  OJ No L 126, 12 . 5 . 1984, p. 20 .
      on coordination of safeguards which, for the pro­              (8)  OJNoL 19, 24. 1 . 1989, p. 16 .
                                                                     (9)   OJ No L 395, 30. 12 . 1989, p. 36.
                                                                     0°)   OJNoL.372, 31 . 12 . 1986, p. 1 .
 (')  See page 37 of this Official Journal-Proposal.                 (»)   OJNoL386, 30 . 12 . 1989 , p . 1 .
 ---pagebreak--- 21.4. 92                                Official Journal of the European Communities                               No C 99 / 19
     sions relating to direct insurance other than life            Whereas this form of organization should be optional,
     insurance and amending Directives 73 /239/ EEC
     and 88/357/ EEC ; ( ! )                                       HAS ADOPTED THIS REGULATION :
                                                             TITLE I
                                                   GENERAL PROVISIONS
                          CHAPTER I                                                           Article 3
   FORMATION OF THE EUROPEAN COOPERATIVE
                           SOCIETY                                                (Transfer of registered office)
                            Article 1
                                                                   1 . The registered office of an SCE may be tranferred
       ( Form of the European cooperative society)                 within the Community. Such transfer shall not result in
                                                                   the SCE being wound up or in the creation of a new
1 . Cooperative societies may be formed throughout                 legal person .
the Community in the form of a European cooperative
society (SCE) on the conditions and in the manner set
out in this Regulation .                                           2 . Where the transfer of the registered office results in
                                                                   a change of the law applicable pursuant to Article 4(1 )
2 . The capital of the SCE shall be divided into shares.           (b), a transfer proposal shall be published in accord­
                                                                   ance with Article 6 .
3 . The SCE shall have as its object to satisfy its mem­
bers ' needs and to develop their activities, economic,
social or both .
                                                                   No decision to transfer may be taken for two months
                                                                   after publication of the proposal. Any such decision
                                                                   must be taken under the conditions laid down for the
4. The number of members and the capital of the SCE
shall be variable.
                                                                   amendment of the statutes. The transfer of the regis­
                                                                   tered office of the SCE and the resulting amendment to
                                                                   its statutes shall take effect from the date of registration
5 . The liability of the members for the debts and obli­           for the SCE, in accordance with Article 5 (3 ), in the
gations of the SCE shall be limited to their shares in the         register for the new registered office.    That registration
capital . Its statutes may extend this liability to a multi­       may not be effected until evidence has been produced
ple of the capital subscribed or to another stated                 that the proposed transfer of the registered office has
amount .
                                                                   been published.
6. An SCE may not extend the benefits of its activi­
ties to non-members or allow them to participate in its            3 . The removal of the SCE from the register for its
business, except where its statutes provide otherwise.             previous registered office may not be effected until evi­
                                                                   dence has been produced that the SCE has been regis­
7 . An SCE shall have legal personality. It shall                  tered in the register for its new registered office .
acquire it on the day of its registration in the Member
State in which it has its registered office,   in the register
designated by that State in accordance with Article 5              4. The fact of the new registration and the fact of the
(3).                                                               termination of the old registration shall both be pub­
                                                                   lished in the Member States concerned, in accordance
                            Article 2                              with Article 6 .
                      ( Registered office)
                                                                   5 . The new registration of the registered office of the
The registered office of an SCE shall be situated at the
                                                                   SCE may be relied on as against third parties from pub­
place specified in its statutes, which must be within the          lication. However, until the removal of the SCE from
Community. It shall be the same as the place where the
SCE has its central administration .                               the register for its previous registered office has been
                                                                   published third parties may continue to rely on the old
                                                                   registered office unless the SCE proves that such third
(0   CQM(90) 348 final — SYN 291 .                                 parties were aware of the new registered office.
 ---pagebreak--- No C 99 /20                             Official Journal of the European Communities                                   21.4. 92
                            Article 4                              3 . Member States shall designate the register in which
                                                                   SCEs must be registered and shall determine the rules
                       (Applicable law)                            governing it. They shall lay down the procedures for fil­
                                                                   ing the SCE's statutes. No SCE may be registered until
 1.  An SCE shall be governed :                                    the measures required by Directive             / EEC [sup­
                                                                   plementing the Statute for a European cooperative
(a) — by the provisions of this Regulation ,                       society with regard to the involvement of employees]
                                                                   have been adopted .
     — where expressly authorized by this Regulation,
          by the provisions freely determined by the par­
          ties in the statutes of the SCE ;                        4. Member States shall take the measures required to
                                                                   ensure that the following documents and particulars
     failing this :                                                are disclosed as provided for in paragraph 3 :
(b) — by the provisions of the law governing cooper­               (a) the statutes of the SCE, any amendments to them,
          ative societies in the Member State in which
                                                                        and the complete text of the statutes in its up-to­
          the SCE has its registered office,                            date form ;
     — by the provisions freely determined by the par­             (b) the opening or closing of any establishment ;
          ties in the statutes of the SCE, in accordance
          with the same conditions as for cooperative              (c) the appointment, termination of office and particu­
          societies governed by the law of the Member                   lars of the persons who either as a body constituted
          State in which the SCE has its registered office .            pursuant to law or as members of any such body :
2 . Where a State comprises several territorial units,
                                                                        — are authorized to represent the SCE in dealings
each of which has its own rules of law applicable to the
                                                                             with third parties and in legal proceedings,
matters referred to in paragraph 1 , each territorial unit              — take part in the administration, supervision or
shall be considered a State for the purposes of identify­                    control of the SCE ;
ing the law applicable under point (b) of paragraph 1 .
                                                                   (d) at least once a year, the amount of the capital sub­
                                                                        scribed ;
3 . In each Member State and subject to the express
provisions of this regulation, an SCE shall have the               (e) the balance sheet and the profit and loss account
same rights, powers and obligations as a cooperative                    for each financial year; the document containing
society formed under the law of the State in which the                  the balance sheet shall give particulars of the per­
SCE has its registered office .                                         sons who are required by law to certify it ;
4.   The following shall apply to an SCE :                         (f) any proposal to transfer the registered office as
                                                                        referred to in Article 3 (2);
— the provisions of Community law and national law
     adopted in conformity with them,                              (g) the winding up and liquidation of the SCE and the
                                                                        decision to continue the SCE 's activities taken
     and                                                                under Article 61 ;
— in the absence of Community legislation, national                (h) any declaration of nullity of the SCE by a court ;
     provisions regulating access or the exercise of cer­
     tain activities such as credit or insurance .                 (i) the appointment of liquidators, particulars of such
                                                                        liquidators and their respective powers, the termi­
                                                                        nation of their office ;
                            Article 5
                                                                   (j) the conclusion of the liquidation of the SCE and
        (Registration and disclosure requirements)
                                                                        the removal of the SCE from the register.
1 . The founder members shall draw up the statutes of              5 . If, prior to its acquisition of legal personality, steps
                                                                   have been taken in the name of an SCE and the SCE
the SCE in accordance with the provisions for the for­
mation of cooperative societies laid down by the law of            does not assume the obligations arising from those
the State in which the SCE has its registered office     The .     steps, the persons who took them shall be jointly and
statutes must at least be in writing and signed by the             severally liable therefor, unless otherwise agreed.
founder members .
                                                                                              Article 6
2 . In those Member States whose legislation does not
provide for any precautionary supervision, whether
administrative or judicial, at the time of formation, the             (Publication of documents and particulars relating to
statutes shall be adopted by notarial act. The supervi­                           the SCE in the Member States)
sory authority shall ensure that this act complies with
the requirements for the formation of an SCE, and in               1.   Member States shall ensure that the documents and
particular those set out in Articles 1 , 2, 9 and 10.              particulars referred to in Article 5 (4) are published in
 ---pagebreak--- 21.4 . 92                                Official Journal of the European Communities                                  No C 99 /21
the appropriate official gazette in the Member State in             forwarded to the Office for Official Publications of the
which the SCE has its registered office, and shall deter­           European Communities within one month of the date
mine by which persons the disclosure formalities are to             of the publication in the official gazette of the Member
be carried out. Disclosure shall be effected by publica­            State in which the SCE has its registered office under
tion either of an extract or of a reference to the entry in         Article 6(1 ).
the register.
                                                                    Where the registered office of the SCE is transferred in
                                                                    accordance with Article 3 a notice shall be published
Member States shall also ensure that anyone may con­                containing the information provided for in the first par­
sult the documents referred to in Article 5 (4) in the              agraph, together with that relating to the new registra­
register referred to in Article 5 (3 ), and may obtain a            tion .
copy of the whole or any part, by post if requested .
                                                                                               Article 8
Member States shall take the necessary measures to
avoid any discrepancy between what is disclosed by                       (Particulars to be stated in the SCE's documents)
publication and what appears in the register. However,
in cases of discrepancy, the text published may not be
relied on as against third parties ; the latter may never­          Letters and documents sent to third parties shall state
theless rely thereon, unless the SCE proves that they               legibly :
had knowledge of the text entered in the register.
                                                                    (a) the name of the SCE, preceded or followed by the
                                                                          abbreviation SCE ;
Member States may require payment of a fee for the                  (b) the place of the register in which the SCE is regis­
services referred to in the preceding subparagraphs, but                 tered in accordance with Article 5 (3 ), and the num­
the fee may not exceed the administrative cost.                           ber of the SCE 's entry in that register ;
                                                                    (c) the address of the SCE 's registered office ;
2. The national rules adopted pursuant to Directive
                                                                    (d) the fact that the SCE is in liquidation or under the
89/666/ EEC shall apply to branches of an SCE                             administration of the courts if that is so .
opened in a Member State other than that in which it
has its registered office .
                                                                                               Article 9
3 . Documents and particulars may be relied on by the
SCE as against third parties only after they have been                                       (Formation)
disclosed in accordance with paragraph 1 , unless the
SCE proves that the third party had knowledge thereof.              1 . An SCE may be formed by any two or more of the
However, they may not be relied on in respect of tran­              legal entities formed under the law of a Member State
sactions which take place before the 16th day after                 which are listed in the Annex provided at least two of
publication as against third parties who prove that they            them have their registered office and central adminis­
could not have had knowledge thereof.                               tration in different Member States .
                                                                    2.    A cooperative society which has been formed in
4. Third parties may rely on any documents and parti­               accordance with the law of a member State and has its
culars in respect of which the disclosure formalities               registered office and central administration in the
have not yet been completed, save where non-disclo­                 Community may form an SCE by converting into SCE
sure causes them not to have effect .
                                                                    form if it has an establishment or subsidiary in a Mem­
                                                                    ber State other than that of its central administration,
                                                                    and can demonstrate that it is carrying on genuine and
                                                                    effective cross-border activities .
                            Article 7
                                                                    Such conversion shall not result in the society being
               ( Notice in the Official Journal)                    wound up or in the creation of a new legal person .
Member States shall ensure that a notice stating that an            The administrative or management board of such a
SCE has been registered or that the liquidation of an               society shall draw up a proposal for conversion cover­
SCE has been concluded is published for information                 ing the legal and economic aspects of the conversion .
purposes in the Official Journal of the European Com­
munities, stating the number, date and place of registra­           The conversion to SCE form and the SCE's statutes
tion of the SCE, the date and place of publication and              shall be approved by the general meeting in accordance
the title of the publication , the address of the SCE and           with the requirements laid down for amendment of its
a summary of its objects, and that these particulars are            statutes in Article 24.
 ---pagebreak--- No C 99 /22                            Official Journal of the European Communities                                 21.4. 92
                          Article 10                              investor (non-user) members. The acquisition of such
                                                                  membership shall be subject to approval by the general
                  (The statutes of the SCE)                       meeting, to be decided by the majority required for
                                                                  amendment of the statutes .
1.   The statutes of the SCE must include :
                                                                  Members who are legal entities shall be deemed to be
— the name of the SCE, preceded or followed by the                users by virtue of the fact that they represent their own
     abbreviation SCE,                                            members .
— a precise statement of the objects of the SCE,
                                                                  2. In view of the special nature of the relationship
— the name, objects and registered offices of the                 between a cooperative society and its members, the sta­
     founder members of the SCE , where these are legal           tutes may make admission subject to other conditions,
     entities ,                                                   in particular :
— the address of the SCE's registered office,                     — subscription of a minimum amount to the capital,
— the conditions and procedures for the admission,                — conditions related to the objects of the SCE .
     expulsion and resignation of members,
— the rights and obligations of members, and the dif­             3 . Except where the statutes provide otherwise, appli­
     ferent categories of member if any, and the rights           cations for a supplementary stake in the capital shall
     and obligations of members in each category,                 also require the approval of the management or admin­
                                                                  istrative board .
— the nominal value of the shares and the amount of
     the capital, an indication that the capital is varia­
     ble, and the extent of the liability of members of           4. An alphabetical index of all members holding
     governing bodies and officials,                              shares shall be kept at the registered office of the SCE,
                                                                  showing their addresses and the number and class, if
— the management structure,                                       any, of the shares they hold . Any interested party may
                                                                  inspect the index on request, and may obtain a copy of
— the powers and responsibilities of each of the gov­             the whole or any part at a price not exceeding the
     erning bodies of the SCE ,                                   administrative cost thereof.
— provisions governing the appointment and removal
     of the members of the governing bodies,                      5 . Any transaction which affects the manner in which
                                                                  the capital is ascribed or allotted, or increased or
— the majority and quorum requirements,                           reduced, shall be entered on the index of members
— a definition of the governing bodies, or members of             referred to in paragraph 4 no later than the month fol­
     those bodies, having authority to represent the SCE          lowing that in which the change occurs .
     in dealings with third parties,
                                                                  6. The transactions referred to in paragraph 5 shall
— the conditions for the initiation of proceedings on
                                                                  not take effect with respect to the SCE or third parties
     behalf of the SCE under Article 47 ,
                                                                  until they are entered on the index referred to in para­
— the grounds for winding up.                                     graph 4.
2 . For the purposes of this Regulation the statutes of           7. The holders of the shares affected shall on request
the SCE comprise both the instrument of incorporation             be given a written statement certifying that the change
and, where they are set out in a separate document, the           has been entered .
SCE's statutes properly so-called.
                                                                                          Article 12
                          Article 11
                                                                                    (Loss of membership)
                (Acquisition of membership)
                                                                   1.  Membership shall be lost :
1 . The acquisition of membership in the SCE shall be
                                                                  — upon resignation,
subject to the approval of the management or adminis­
trative board. Applications for admission shall be in             — upon expulsion,
writing, and shall include an undertaking to hold a
stake in the capital and to accept the statutes without           — upon assignment of all shares held, where this is
reservation .                                                          authorized by the statutes,
                                                                  — upon winding up in the case of a legal entity,
The statutes may provide that persons who do not
expect to use the SCE 's services may be admitted as              — and in any other cases provided for in the statutes.
 ---pagebreak--- 21.4. 92                              Official Journal of the European Communities                              No C 99/23
2. The decision to expel a member shall be taken by                                        Article 14
the administrative or management body, after the mem­
ber has been heard. The member may appeal against                                     ( Minimum capital)
the decision to the general meeting.
                                                                 1.   The capital of the SCE shall be denominated in
                                                                 ecus or in national currency.
3 . Where a legal entity is wound up, its membership
shall terminate at the end of the financial year in which
it took place, unless the statutes provide otherwise.            2 . The capital of an SCE shall amount to not less
                                                                 than ECU 100 000 or the equivalent in national cur­
                                                                 rency .
4. Shares may be assigned or sold with the agreement
either of the general meeting or of the management or            3 . The statutes shall lay down a sum below which the
administrative body, and in accordance with the sta­             capital may not be allowed to fall as a result of the
tutes .
                                                                 withdrawal of the capital previously subscribed by
                                                                 members who resign or are expelled.
5 . The SCE may not subscribe for its own shares, pur­
chase them or accept them as security, either directly or        4. The sum referred to in paragraph 3 shall be no less
through a person acting in his own name but on behalf            than the sum laid down by the law of the Member State
of the SCE .                                                     in which the SCE has its registered office,    and, failing
                                                                 any such legal provision, no less than one tenth of the
                                                                 highest figure reached by the capital since the SCE was
 However, the SCE 's own shares may be accepted as
                                                                 formed . In no case may it be less than the sum required
security in the ordinary transactions of credit institu­         by paragraph 2.
tions .
                                                                                           Article 15
                          Article 13
                                                                                     (Capital of the SCE)
    ( Financial entitlements of members in the event of
                  resignation or expulsion)                       1 . The capital of the SCE shall be represented by the
                                                                 members' shares referred to in paragraphs 3 and 4,
                                                                 denominated in ecus or in national currency, and,
 1 . Except where shares are assigned, loss of member­           where appropriate, by other forms of own capital and
 ship shall entitle the member to repayment of the capi­         quasi-equity. More than one class of share may be
 tal he has subscribed, reduced in proportion to any             issued .
 losses charged against the capital of the SCE.
                                                                 The statutes may provide that different classes of share
 The statutes may provide that a member leaving the              are to carry different entitlements with regard to the
 SCE shall be entitled to a payment in proportion to his         distribution of surpluses . Shares carrying the same enti­
 share in the capital from a reserve established for the         tlements shall constitute one class .
 purpose .
                                                                 2. Shares must be held by named persons . The nom­
 2. The value of shares shall be calculated by reference         inal value of shares in a single class shall be identical .
 to the balance sheet for the financial year in which the         It shall be laid down in the statutes . Shares may not be
 entitlement to repayment arose.                                 issued at a price lower than their nominal value .
                                                                 3 . Shares issued for cash must be paid up on the day
 3 . The statutes shall lay down the time in which               of the subscription to not less than 25 % of their nom­
 repayment is to be made.                                        inal value . The balance must be paid up within a
                                                                  period of no more than five years .
 4. Paragraphs 1 , 2 and 3 shall apply where only a part
 of a member's shareholding is to be repaid.                      4. Shares issued otherwise than for cash must be fully
                                                                  paid up at the time of subscription .
 5.   A member who has left the SCE or who has exer­
 cised his entitlement to partial repayment shall con­            5 . The statutes shall lay down the minimum number
 tinue to be bound by all the obligations towards the             of shares which must be subscribed for in order to qual­
 SCE and towards third parties which were incumbent               ify for membership, and may lay down the maximum
 upon him at the end of the financial year by reference           proportion of the capital which any one member is
                                                                  entitled to hold .
 to which his entitlements were calculated, up to his pre­
 vious shareholding and any sums received from the
 reserves, until the approval of the accounts of the fifth        6. The capital shall be variable . It may be increased
 financial year following the financial year of reference .       by successive subscriptions by members or on the
 ---pagebreak---  No C 99 /24                           Official Journal of the European Communities                                21.4. 92
admission of new members, and it may be reduced by                                         Article 1 7
the total or partial repayment of subscriptions, subject
to Article 14 (2).                                                               (Holding of general meeting)
Variations in the amount of the capital shall not require          1 . A general meeting shall be held at least once a
amendment of the statutes or disclosure .                         year, not later than six months after the end of the
                                                                   SCE's financial year.
When it considers the accounts for the financial year,
the general meeting shall by resolution record the                2 . General meetings may be convened at any time by
amount of the capital at the end of the financial year            the management board or the administrative board .
and the variation by reference to the preceding finan­            The management board is bound to convene the gen­
                                                                  eral meeting at the request of the supervisory board.
cial year.
                                                                  3 . The agenda for the general meeting held after the
The capital may be increased by the capitalization of             end of the financial year shall include at least the
all or part of the reserves available for distribution, by        approval of the annual accounts and of the appropria­
decision of the general meeting, in accordance with the           tion of the profit or treatment of the loss and the
quorum and majority requirements for an amendment                 approval of the annual report referred to in Article 46
of the statutes .
                                                                  of Directive 78/660/ EEC, to be submitted by the man­
                                                                  agement or administrative board .
7.   The nominal value of shares may be increased by
consolidating the shares issued. Where such an increase           4. The statutes of an SCE with a management board
necessitates a call for supplementary payments from               and a supervisory board may provide that a decision on
the members under provisions laid down in the sta­                approval of the annual accounts is to be taken jointly
tutes, the decision shall be taken by the general meet­           by the two boards in separate votes, and that the gen­
ing, in accordance with the quorum and majority                   eral meeting is to pass a resolution only if the boards
requirements for an amendment of the statutes .                   are unable to reach agreement.
Members voting against the decision may exercise their
right to resign, in which case their shares shall be repaid                               Article 18
in accordance with Articles 13(1 ) and 14 (3 ).
                                                                          (Meeting called by a minority of members)
8 . The nominal value of shares may be reduced by
                                                                  1.   Not less than 25 % of the members of the SCE,
subdividing the shares issued .
                                                                  which proportion may be reduced by the statutes, may
                                                                 request that the general meeting be convened and its
                                                                  agenda set.
                        CHAPTER II
                                                                  2. The request for a meeting shall give the reasons for
                    GENERAL MEETING                               convening it and the items to be included on the
                                                                  agenda.
                          Article 16
                                                                  3 . If, following a request made under paragraph 1 , the
                                                                  necessary steps have not been taken within one month,
                       (Competence)                               the court or competent authority within the State where
                                                                  the SCE 's registered office is situated may order the
The general meeting shall decide on :                             convening of a general meeting or authorize either the
                                                                  members who have requested it or their representative
(a) matters for which it has sole responsibility under           to convene the meeting.
     this Regulation ;
(b) matters for which the management board, supervi­              4. A general meeting may during a meeting decide
     sory board or administrative board does not have             that a further meeting be convened and set the date and
     sole responsibility as a result of:                          the agenda.
     — this Regulation ,
                                                                                          Article 19
     — Directive              / EEC [supplementing the
          Statute for a European cooperative society                                 (Notice of meeting)
          with regard to the involvement of employees],
     — the law of the State where the SCE has its                 1 . The general meeting shall be convened :
          registered office,
                                                                 — by a notice published in the national gazette
     — the statutes of the SCE .                                       appointed by the Member State in which the SCE
 ---pagebreak---  2.4. 92                               Official Journal of the European Communities                              No C 99/25
     has its registered office in accordance with Article 3       4. The statutes may permit postal voting, in which
     (4) of Directive 68/ 151 /EEC ,                               case they shall lay down the necessary procedures .
— by a notice published in one or more newspapers
     with a large circulation in the Member States,                                           Article 22
— or by a notice in writing sent to every member of                                        (Voting rights)
     the SCE by any available means .
                                                                   1 . Each member of the SCE shall have one vote, irres­
2. The notice calling the general meeting shall contain           pective of the number of shares he holds .
the following particulars , at least :
                                                                  2. The statutes may allow members to have more than
— the name and the registered office of the SCE,
                                                                  one vote. The statutes shall, in that event, lay down the
— the place and date of the meeting,                              circumstances in which a member may have more than
                                                                  one vote ; this must depend on the measure to which
— the type of general meeting (ordinary, extraordi­               the member takes part in the SCE's activities . The sta­
     nary or special),                                            tutes must lay down limits on the number of votes
                                                                  which may be cast by a single member and the number
— a statement of the formalities, if any, prescribed by           of other members for whom a member may act as
     the rules for attendance at the general meeting and          proxy.
     for the exercise of the right to vote,
— the agenda, showing the subjects to be discussed                3 . Members who do not expect to use the services of
     and the proposals for resolutions .                          the SCE ('non-user' members) may together have vot­
                                                                  ing rights amounting to no more than one third of those
                                                                  of all the members .
3 . The period between the date of publication of the
notice or the date of dispatch of the communication
referred to in paragraph 1 and the date of the opening                                       Article 23
of the general meeting shall be not less than 30 days .
                                                                                        ( Rules of conduct)
                          Article 20                              The detailed rules governing the conduct of general
                                                                  meetings shall be laid down in the statutes .
             (Addition of items to the agenda)
                                                                                             Article 24
Not less than 25 % of the members of the SCE, which
proportion may be reduced by the statutes, may, within                               ( Right to information)
ten days of receipt of the notice convening a general
meeting, request the addition of one or more items to             1 . Every member who so requests at a general meet­
the agenda.                                                       ing shall be entitled to obtain information from the
                                                                  management or administrative board on the affairs of
                                                                  the SCE arising from items on the agenda or concern­
                          Article 21                              ing matters on which the general meeting may take a
                                                                  decision in accordance with Article 25 (2).
                 (Attendance and proxies)
                                                                  2. The management or administrative board may
                                                                  refuse to supply such information only where :
 1 . Only members shall be entitled to speak and vote
at the general meeting .                                         — it would be likely to be seriously prejudicial to the
                                                                       SCE,
2 . Members of the management board, authorized                  — its disclosure would be incompatible with a legal
representatives acting for the holders of non-voting,                  obligation of confidentiality.
shares, members of the administrative board to whom
management responsibilities have been delegated and               3 . A member to whom information is refused may
salaried managers may attend the general meeting, and            require that his question and the grounds for refusal be
shall be entitled to speak but not to vote unless they are        entered in the minutes of the general meeting.
members of the SCE .
                                                                  4. A member to whom information is refused may
3 . Persons entitled to vote shall be entitled to appoint         challenge the validity of the refusal in the court within
a proxy to represent them at the general meeting in               whose jurisdiction the SCE has its registered office .
accordance with procedures to be laid down in the sta­            Application to the court shall be made within two
tutes .                                                           weeks of the closure of the general meeting.
 ---pagebreak--- No C 99/26                            Official Journal of the European Communities                                  21.4 . 92
5 . In particular, before the general meeting that fol­          the general meeting, and the reports submitted to the
lows the end of the financial year members may exam­             members on the items on the agenda.
ine any accounting documents that must be drawn up
in accordance with the national measures adopted pur­
suant to Directives 78 /660/ EEC and 83 /349/ EEC                3.   The minutes and the documents annexed thereto
                                                                 shall be retained for at least five years. A copy of the
                                                                 minutes and the documents annexed thereto may be
                          Article 25                             obtained by any member, free of charge, upon request.
                        ( Decisions)
                                                                                           Article 27
1 . The general meeting shall not pass any resolution
concerning items which have not been communicated                (Actions to have resolutions of general meeting declared
or published in accordance with Article 19 (2).                                             void)
2. Paragraph 1 shall not apply when all the members
are present or represented at the general meeting and            1 . Resolutions of the general meeting may be
no member objects to the matter in question being dis­           declared void on the grounds that they infringe this
cussed .                                                         Regulation or the statutes of the SCE in the following
                                                                 manner :
3 . The statutes shall lay down the quorum and major­            — an action for such a declaration may be brought by
ity requirements which are to apply to ordinary general               any member provided he can show that he has an
meetings .                                                            interest in having the infringed provision observed,
4.   The calculation of votes cast shall not include             — the action for such a declaration shall be brought
                                                                      within three months before the court within whose
abstentions or spoilt or blank votes.
                                                                      jurisdiction the SCE has its registered office     the ;
                                                                      procedure in the action shall be governed by the
5 . A general meeting may amend the statutes the first                law of the State in which the SCE has its registered
time it is convened only if the members present or                    office,
represented represent at least half of the number of
members on the date the general meeting is convened,             — having heard the SCE, the court may suspend
and the second time it is convened only if they make                  application of the contested resolution ; it may also
up or represent at least one quarter of that number. At               require the applicant to lodge security for the dam­
least two thirds of the votes of the members present or               age which may result from the suspension of appli­
represented must be cast in favour. A general meeting                 cation of the resolution, if the application is ulti­
may pass a resolution to wind up the SCE only in                      mately dismissed as inadmissible or unfounded,
accordance with the same requirements.
                                                                 — judgments declaring a resolution void or ordering
The third time the meeting is convened no quorum                      that its application be suspended shall be effective
shall be necessary .                                                   erga omnes, without prejudice to claims on the
                                                                      SCE acquired in good faith by third parties .
The general meeting shall act by majority of the votes
held by the members present or represented.                      2.   Decisions of a court declaring a resolution of the
                                                                 general meeting void or non-existent shall be the sub­
                                                                 ject of disclosure in accordance with Article 6.
                           Article 26
                          ( Minutes)
                                                                                           Article 28
 1.    Minutes shall be drawn up for every general meet­
                                                                                     (Sectional meetings)
ing. The minutes shall contain the following particu­
lars :
— the place and date of the meeting,                             Where the SCE carries on several distinct activities, or
                                                                 where it has several establishments, or where its activi­
— the resolutions passed,                                        ties span more than one territorial unit, or where it has
                                                                 more than 500 members, the statutes may provide for
— the result of the voting.                                      the holding of sectional meetings to consider the same
                                                                 agenda separately before the general meeting is held.
2.    There shall be annexed to the minutes the attend­          These meetings shall elect delegates, who shall in their
 ance list, the documents relating to the convening of           turn be convened as the general meeting. The statutes
 ---pagebreak--- 2 . 4. 92                              Official Journal of the European Communities                              No C 99 /27
shall lay down the division into sections, the number of          2 . The member or members of the management board
delegates for each section, and the procedures to be fol­         shall be appointed and removed by the supervisory
lowed .                                                           board .
                                                                  3 . No person may at the same time be a member of
                           Article 29
                                                                  the management board and of the supervisory board.
  (Resolutions adversely affecting the rights of a class of
                           member)                                However, the supervisory board may nominate one of
                                                                  its members to exercise the function of member of the
                                                                  management board in the event of a vacancy. During
Where a resolution of the general meeting would                   such a period the function of the person concerned as
adversely affect the rights of a particular class of mem­         member of the supervisory board shall be suspended.
ber, it must be approved by those members by a separ­
ate vote, to which the voting rules referred to in Article
22 shall apply mutatis mutandis.                                  4. The number of members of the management board
                                                                  shall be laid down in the statutes of the SCE .
Where the statutes are to be amended in a way which
adversely affects a particular class of member, those                                       Article 32
members shall vote according to the majority rules
referred to in Article 25 (5).
                                                                            (Chairmanship, convening of meetings)
                         CHAPTER III                              1 . The statutes may provide that the management
                                                                  board is to elect a chairman from among its members .
          MANAGEMENT, SUPERVISORY AND
                ADMINISTRATIVE BODIES
                                                                  2.    Meetings of the management board shall be con­
                                                                  vened in accordance with the statutes of the SCE or the
                           Article 30                             rules of procedure of the board . In any event any mem­
                                                                  ber of the board may convene a meeting where urgency
                          (Structure)                             requires, stating his reasons .
Under the conditions laid down by this Regulation the
                                                                                          Subsection 2
statutes of the SCE shall organize the structure of the
SCE either according to a two-tier system (management
board and supervisory board) or according to a one-tier                                  Supervisory board
system (administrative board). A Member State may,
however, require that SCEs having their registered off­                                     Article 33
ice on its territory adopt either the two-tier or the one­
tier system as it shall determine .
                                                                      (Functions of the supervisory board ; appointment of
                                                                                            members)
                          Section I
                                                                   1 . The supervisory board shall supervise the duties
                                                                  performed by the management board. It may not itself
                        Two-tier system
                                                                  exercise the power to manage the SCE. The supervisory
                                                                  board may not represent the SCE in dealings with third
                         Subsection 1                             parties. It shall represent the SCE in dealings with
                                                                  members of the management board, or one of them, in
                        Management board                          respect of litigation or the conclusion of contracts .
                           Article 31                             2. The members of the supervisory board shall be
                                                                  appointed and removed by the general meeting. How­
  ( Functions of the management board ; appointment of            ever, the members of the first supervisory board may be
                           members)                               appointed in the statutes . This provision shall apply
                                                                  without prejudice to national law permitting a minority
                                                                  of shareholders to appoint some of the members of a
 1 . The management board shall manage the SCE . The              board .
member or members of the management board shall
have the power to represent the SCE in dealings with
third parties and in legal proceedings in accordance              3.    The number of members of the supervisory board
with the measures adopted pursuant to Directive 68/               shall be laid down in the statutes . A Member State
 151 / EEC by the Member State in which the SCE has               may, however, stipulate the number of members of the
its registered office .                                           supervisory board for SCEs registered in its territory .
 ---pagebreak---  No C 99/28                            Official Journal of the European Communities                                   21.4. 92
                          Article 34                               ance with the measures adopted pursuant to Directive
                                                                   68/ 15 1 / EEC by the Member State in which the SCE
                   ( Right to information)                         has its registered office .
 1 . The management board shall report to the supervi­             2.  The administrative board shall have at least three
sory board at least once every three months on the pro­            members within limits fixed by the statutes . Non-user
gress and foreseeable prospects of the SCE's affairs,              members may be appointed to the administrative
taking particular account of any information relating to          board, but may not form a majority.
undertakings controlled by the SCE that may signifi­
cantly affect the progress of the SCE .
                                                                  3 . The administrative board may delegate to one or
                                                                  more of its members the power of management. It may
2 . The management board shall communicate to the                 also delegate certain management responsibilities to
supervisory board without delay any information which             one or more persons not members of the board ; such
may have an appreciable effect on the SCE .                       management responsibilities may be revoked at any
                                                                  time. The statutes, or if the statutes are silent, the gen­
3 . The supervisory board may at any time require the             eral meeting shall lay down the conditions within
management board to provide information or a special              which such delegation shall operate.
report on any matter concerning the SCE .
                                                                  4.   The member or members of the administrative
4. The supervisory board may undertake all investiga­             board shall be appointed and removed by the general
tions necessary for the performance of its duties . It may        meeting.
appoint one or more of its members to carry out this
task and may call in the help of experts.
                                                                                           Article 37
5 . Each member of the supervisory board shall be
entitled to examine all information communicated by                     (Holding of meetings and right to information)
the management board to the supervisory board .
                                                                   1.  The management board shall meet at least once
                          Article 35                              every three months, at intervals laid down by the sta­
                                                                  tutes, to discuss the progress and foreseeable prospects
                                                                  of the SCE's affairs, taking particular account of any
           (Chairmanship, calling of meetings)
                                                                  information relating to undertakings controlled by the
                                                                  SCE that may significantly affect the progress of the
1 . The supervisory board shall elect a chairman from             SCE .
among its members .
                                                                  2.   The administrative board shall meet to deliberate
2 . The chairman shall convene a meeting of the                   on the operations referred to in Article 43 .
supervisory board under the conditions laid down in
the statutes , on his own initiative, or at the request of at
least one third of the members of the supervisory                 3.   Each member of the administrative board shall be
board , or at the request of the management board . The           entitled to examine all reports, documents and infor­
request must indicate the reasons for calling the meet­           mation supplied to the board concerning the matters
ing. If no action has been taken in respect of such a             referred to in paragraph 1 .
request within 15 days the meeting of the supervisory
board may be called by those who made the request.
                                                                                           Article 38
                        Section II                                             (Chairmanship, calling of meetings)
                     The one-tier system                          1.   The administrative board shall elect a chairman
                                                                  from among its members.
                          Article 36
                                                                  2.   The chairman shall convene a meeting of the
( Functions of the administrative board ; appointment of          administrative board under the conditions laid down in
                          members)                               the statutes, either on his own initiative or at the
                                                                 request of at least one third of the members. The
1.   The administrative board shall manage the SCE.              request must indicate the reasons for calling the meet­
The member or members of the administrative board                 ing. If the request is not satisfied within 15 days the
shall have the power to represent the SCE in dealings             meeting of the administrative board may be called by
with third parties and in legal proceedings in accord­           those who made the request.
 ---pagebreak--- 21.4. 92                               Official Journal of the European Communities                                No C 99 /29
                       Section III                                                             Article 42
  Rules common to the one-tier and two-tier board systems                (Power of representation ; liability of the SCE)
                          Article 39                               1 . Where the authority to represent the SCE in deal­
                                                                  ings with third parties, in accordance with Articles 31
                      (Term of office)                            ( 1 ) and 36 ( 1 ), is conferred on two or more members of
                                                                  governing bodies, those persons shall exercise that
                                                                  authority collectively.
 1 . Members of the governing bodies shall be
appointed for a period laid down in the statutes not
exceeding six years.                                              2 . However, the statutes of the SCE may provide that
                                                                  the SCE shall be validly bound either by each of the
2 . Board members may be reappointed one or more                  members acting individually or by two or more of them
times for the period laid down in accordance with para­           acting jointly. Such a clause may be relied upon against
graph 1 .                                                         third parties where it has been disclosed in accordance
                                                                  with Article 6 .
                         Article 40
                                                                  3 . Acts performed by members of the governing bod­
                                                                  ies of the SCE shall bind the SCE vis-a-vis third parties,
               ( Conditions of membership)                        even where the acts in question are not in accordance
                                                                  with the objects of the SCE, providing they do not
 1.  The statutes of the SCE may permit a legal person            exceed the powers conferred on them by law or which
                                                                  the law allows to be conferred on them .
or any other legal entity to be a member of a board,
provided that the law of the State in which the SCE has
its registered office does not provide otherwise in res­
pect of domestic cooperative societies.                           However, Member States may provide that the SCE
                                                                  shall not be bound where such acts are outside the
                                                                  objects of the SCE, if it proves that the third party
That legal person or other legal entity shall designate a         knew that the act was outside those objects or could
natural person as its representative to exercise its func­        not in view of the circumstances have been unaware of
tions on the board in question . The representative shall         it ; disclosure of the statutes shall not of itself be suffi­
be subject to the same conditions and obligations as if           cient proof thereof.
he were personally a member of the board .
2 . No person may be a member of a management,                    4. The appointment, termination of office and parti­
supervisory or administrative board nor a representa­             culars of the persons who may represent an SCE must
                                                                  be disclosed in accordance with Article 6 . The informa­
tive of a member within the meaning of paragraph 1 ,
nor have conferred on him powers of management or                 tion disclosed must state whether these persons are
representation , who :                                            authorized to bind the SCE individually or whether
                                                                  they must act jointly.
— under the law applicable to him, or
— under the law of the State in which the SCE has its
     registered office or ,                                                                    Article 43
— as a result of a judicial or administrative decision
     delivered or recognized in a Member State,                               (Operations requiring authorization)
is disqualified from serving on the management, super­            1 . The following operations shall require the authori­
visory or administrative board of any legal person.               zation of the supervisory board or the deliberation of
                                                                  the administrative board :
                         Article 41                               (a) any investment project requiring an amount more
                                                                        than the percentage of subscribed capital fixed in
                                                                        accordance with (e) ;
                   ( Rules of procedure)
                                                                  (b) the setting up, acquisition, disposal or closing
Each governing body may draw up rules of procedure                      down of undertakings, establishments or parts of
under the conditions laid down by the statutes of the                   establishments where the purchase price or dis­
SCE. Any member of the SCE or competent authority                       posal proceeds account for more than the percen­
may consult those rules of procedure at the registered                  tage of subscribed capital fixed in accordance with
office of the SCE .                                                     (e);
 ---pagebreak---   No C 99/30                           Official Journal of the European Communities                                 21.4. 92
 (c) the raising or granting of loans, the issue of debt                                    Article 45
     securities and the assumption of liabilities of a
     third party or suretyship for a third party where the                      (Conduct of business on boards)
     total money value in each case is more than the
     percentage of subscribed capital fixed in accord­             1 . Boards of the SCE shall conduct business under
     ance with (e) ;                                              the conditions and in the manner set out in the statutes
                                                                   of the SCE .
 (d) the conclusion of supply and performance con­
     tracts where the total turnover provided for therein
     is more than the percentage of turnover for the pre­         Where the statutes are silent, a board shall not conduct
     vious financial year fixed in accordance with (e);           business validly unless at least half of its members are
                                                                  present at the discussions. Decisions shall be taken by
                                                                  majority of the members present or represented.
 (e) the percentage referred to in (a) to (d) shall be
     determined by the statutes of the SCE. It shall not
     be less than 5 nor more than 25 % .                          2. The chairman of each board shall have a casting
                                                                  vote in the event of a tie .
 2. The statutes of the SCE may provide that para­                                          Article 46
graph 1 shall also apply to other types of decisions.
                                                                                         (Civil liability)
 3 . A Member State may determine the categories of                1 . Members of the management, supervisory or
operation referred to in paragraph 1 for SCEs registered          administrative board shall be liable for loss or damage
in its territory under the same conditions as those               sustained by the SCE as a result of breach of the obli­
applying to cooperative societies governed by the law             gations attaching to their functions .
of that State .
                                                                  2 . Where the board concerned is composed of more
                                                                  than one member, all the members shall be jointly and
4. A Member State may provide that the supervisory                severally liable for loss or damage sustained by the
or administrative board of SCEs registered in its terri­          SCE ; however, a member may be relieved of liability if
tory may itself make certain categories of operation              he can prove that he is not in breach of the obligations
subject to authorization or deliberation under the same           attaching to his functions .
conditions as those applying to cooperative societies
governed by the law of that State .
                                                                                           Article 47
                                                                             (Proceedings on behalf of the SCE)
                           Article 44
                                                                  1 . The general meeting, by a majority of the votes of
                                                                 the members present or represented, shall take the deci­
                  ( Rights and obligations)                      sion to initiate proceedings, in the name and on behalf
                                                                 of the SCE, to establish liability under Article 46 ( 1 ).
                                                                 The general meeting shall appoint a special representa­
 1 . Within the scope of the functions attributed to             tive to conduct the action .
them by this Regulation each of the members of a
board shall have the same rights and obligations as the
other members of the board of which he is a member.              2. Not less than one fifth of the members may like­
                                                                 wise decide to initiate proceedings to establish liability
                                                                 in the name and on behalf of the SCE. They shall
                                                                 appoint a special representative to conduct the action .
2. All board members shall carry out their functions
in the interests of the SCE, having regard in particular
to the interests of the members and the employees .                                        Article 48
                                                                                    ( Limitation of actions)
3 . All board members shall exercise a proper discre­
tion, even after they have ceased to hold office,    in res­     No proceedings on the SCE's behalf to establish liabil­
pect of information of a confidential nature concerning          ity may be initiated more than five years after the act
the SCE .                                                        giving rise to loss or damage.
 ---pagebreak--- 21.4. 92                              Official Journal of the European Communities                              No C 99/31
                      CHAPTER IV                                                           Article 52
                                                                                          (Dividend)
      CAPITAL, OWN FUNDS AND BORROWING
                                                                 The statutes may provide for the payment of a dividend
                         Article 49
                                                                 to members in proportion to their business with the
                                                                 SCE, or the services they have performed for it, in
             ( Holders of non-voting shares)                     accordance with the law governing cooperative socie­
                                                                 ties in the State in which the SCE has its registered off­
                                                                 ice .
1 . The statutes may provide for the issue of shares
whose holders are to have no voting rights, to be sub­
scribed for by members or by non-members interested
in the progress of the SCE .                                                               Article 53
                                                                                        (Legal reserve)
2 . Holders of shares which do not carry voting rights
may be given special advantages .
                                                                 1 . The statutes shall provide for the mode of applica­
                                                                 tion of the surplus for each financial year.
3 . The total nominal value of such shares held may
not exceed a figure laid down in the statutes .
                                                                 2. Where there is a surplus the statutes shall require
                                                                 the establishment of a legal reserve funded out of the
4. The statutes must include provisions ensuring that            surplus before any further allocation .
the interests of holders of non-voting shares can be
represented and defended .
                                                                 Until such time as the legal reserve is equal to the capi­
                                                                 tal of the SCE, the amount allocated to it may not be
In particular, the statutes shall provide for special            less than 15 % of the surplus .
meetings of such shareholders . Before any decision of
the general meeting is taken, a special meeting may
state its opinion, which shall be brought to the atten­          3 . Members leaving the SCE shall have no claim
tion of the general meeting by the representatives               against the sums thus allocated to the legal reserve.
which the special meeting appoints .
This opinion shall be recorded in the minutes of the                                       Article 54
general meeting.
                                                                             (Allocation of the available surplus)
                         Article 50                              1 . The balance of the surplus after deduction of the
                                                                 allocation to the legal reserve and of any sums paid out
               ( Non-user investor members)                      in dividends, with the addition of any surpluses carried
                                                                 over from previous years, shall constitute the surplus
                                                                 available for distribution .
Where the statutes authorize persons who do not expect
to use the SCE 's services to subscribe for voting shares,
the statutes may lay down special provisions for the             2. The general meeting which considers the accounts
benefit of such non-user members with regard to the              for the financial year may allocate the surplus in the
distribution of surpluses.                                       order and proportions laid down by the statutes, and in
                                                                 particular :
                                                                 — carry them forward to the next account,
                         Article 51
                                                                 — appropriate them to any ordinary or extraordinary
                                                                       non-statutory reserve fund,
                        (Financing)
                                                                 — provide a return on paid-up capital and own funds
                                                                       and quasi-equity, payment being made in cash or
An SCE may make use of all forms of financing in the                   shares .
State in which it has its registered office under the same
conditions as those applying to the legal entities which
founded it .                                                     3.    The statutes may also prohibit any distribution .
 ---pagebreak--- No C 99 /32                            Official Journal of the European Communities                                  21.4. 92
                         CHAPTER V                                has its registered office requires such a system for all
                                                                  cooperatives covered by the law of that State .
  ANNUAL ACCOUNTS, CONSOLIDATED ACCOUNTS
                       AND AUDITING
                                                                  2 . In Member States where the law governing
                                                                  national cooperative societies requires an audit by one
                           Article 55                             or more audit bodies, those bodies shall be authorized
                                                                  to audit the consolidated accounts provided the parent
     (Preparation of annual accounts and consolidated             society has its registered office in one of those States .
                           accounts)
                                                                                             Article 59
 1 . For the purposes of drawing up its annual accounts
and its consolidated accounts if any, including the
annual report accompanying them and their auditing                                  ( Disclosure of accounts)
and publication, the SCE shall be subject to the mea­
sures adopted in the State in which it has its registered         The annual accounts, the consolidated accounts if any,
office pursuant to Directives 78 /660/ EEC and 83 /               duly approved, and the annual report and audit report
349 / EEC .                                                       shall be disclosed in accordance with the measures
                                                                  adopted by the Member State in which the SCE has its
2 . The SCE may draw up its annual accounts, and its              registered office pursuant to Article 3 of Directive 68 /
                                                                  151 / EEC .
consolidated accounts if any, in ecus . In this event the
bases of conversion used to express in ecus those items
included in the accounts which are or were originally
                                                                                             Article 60
expressed in another currency must be disclosed in the
notes to the accounts .
                                                                        (Credit or financial institutions and insurance
                                                                                          undertakings)
                           Article 56
                                                                  SCEs which are credit or financial institutions or insur­
                          (Auditing)                              ance undertakings shall comply, as regards the draw­
                                                                  ing-up, auditing and disclosure of annual accounts and
The annual accounts of the SCE , and its consolidated             consolidated accounts, with the rules laid down by the
accounts, if any, shall be audited by one or more per­            measures adopted in the Member State in which the
sons authorized to do so in the Member State in which             SCE has its registered office pursuant to Directive 86/
the SCE has its registered office in accordance with the          635/ EEC , or, as the case may be, pursuant to Council
measures adopted in that State pursuant to Directives             Directive .../... / EEC of . . . [on the annual accounts
84/ 253 / EEC and 89 /48 / EEC . Those persons shall also         and consolidated accounts of insurance undertakings]
verify that the annual report is consistent with the              (')•
annual accounts, and the consolidated accounts if any,
for the same financial year.
                                                                                          CHAPTER VI
                           Article 57
                                                                              WINDING UP AND LIQUIDATION
                   ( Internal audit body)
                                                                                            Section I
The statutes may provide for the establishment of an
internal body whose members, elected from among the                                        Winding up
members of the SCE, shall be responsible for auditing
the SCE 's accounts and monitoring its management on                                         Article 61
a continuous basis . They shall report on their activities
each year to the general meeting . Where the law of the                      (Winding up by the general meeting)
State in which the SCE has its registered office requires
that the accounts of cooperative societies be audited by
                                                                  1 . An SCE may be wound up by a decision of the
persons outside the society, an internal audit body can­
                                                                  general meeting ordering its winding up, taken in
not replace the persons provided for by law.
                                                                  accordance with the rules laid down in Article 25 (5 ).
                           Article 58                             However, the general meeting may decide, in accord­
                                                                  ance with the same rules, to annul the decision to wind
                    ( System of auditing)                         up, as long as there has been no distribution on the
                                                                  basis of the liquidation .
1 . An SCE must accept and submit to a system of
auditing where the law of the State in which the SCE              (')  OJ No L
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2. The management or administrative board must                     3 . An SCE in liquidation shall continue to have legal
convene a general meeting to take a decision on the                personality until the conclusion of the liquidation .
winding up of the SCE :
— where the period fixed in the statutes has expired,              4. Following the liquidation, the books and records
                                                                   relating to the liquidation shall be lodged at the register
— where the subscribed capital has been reduced                    referred to in Article 5 (3). Any interested party may
      below the minimum capital laid down in the sta­              examine such books and records .
      tutes ,
— where the disclosure of accounts has not taken                                             Article 64
      place in the SCE 's last three financial years,
                                                                                          (Distribution)
— where the number of members is below the mini­
      mum required by this Regulation or by the SCE's
      statutes ,                                                   After the creditors have been paid in full, and anything
                                                                   due to designated beneficiaries has been distributed,
— on any grounds laid down either in the law govern­               the assets of the SCE shall, except where otherwise
      ing the legal entities which founded the SCE, in the         stated in the statutes, be distributed by decision of the
      State in which the SCE has its registered office, or         general meeting either to other SCEs or cooperative
      in the statutes .                                            societies governed by the law of a Member State or to
                                                                   one or more bodies having as their object the support
The general meeting shall decide :                                 and promotion of cooperative societies .
— either to wind up the SCE in accordance with
      Article 25 (7),
                                                                                          CHAPTER VII
— or, in accordance with Article 25 (5), that the SCE
      shall continue its activities .                                  INSOLVENCY AND SUSPENSION OF PAYMENTS
                                                                                             Article 65
                            Article 62
                                                                            ( Insolvency and suspension of payments)
                  (Winding up by the court)
                                                                    1 . The SCE shall be subject to the law of the State in
On an application by any person concerned or any                   which it has its registered office in respect of insol­
competent authority, the court of the place where the              vency and suspension of payments .
SCE has its registered office must order the SCE to be
wound up where it finds that the registered office has             2. The opening of insolvency or suspension of pay­
been transferred outside the Community, or that the                ments proceedings shall be notified by the person
SCE's activities are being carried on contrary to public           appointed to conduct the proceedings for entry in the
policy in the Member State in which the SCE has its                register referred to in Article 5 (3). The entry in the
registered office,   or in breach of Article 1 (2) or (3) or of    register shall show the following :
Article 9 ( 1 ).
                                                                   (a) the nature of the proceedings, the date of the order,
                                                                         and the court making it ;
The court may grant the SCE a period of time to rectify
the situation . If it fails to do so within the time allowed       (b) the date on which payments were suspended, if the
the court shall order it to be wound up .                                court order provides for this ;
                                                                   (c) the name and address of the administrator, trustee,
                          Section II
                                                                         receiver, liquidator or any other person having
                                                                         power to conduct the proceedings, or of each of
                                                                         them where there are more than one ;
                           Liquidation
                                                                   (d) any other information considered necessary.
                            Article 63
                                                                   3 . Where the court finally dismisses an application for
                                                                   the opening of the proceedings referred to in paragraph
                         ( Liquidation)
                                                                   2 owing to want of sufficient assets, it shall, either of its
                                                                   own motion or on application by any interested party,
1.    The winding up of an SCE shall entail its liquida­           order its decision to be noted in the register referred to
tion .                                                             in Article 5 (3).
2 . The liquidation of an SCE and the conclusion of                4. Particulars registered pursuant to paragraphs 2 and
its liquidation shall be governed by the law of the State          3 shall be published in the manner referred to in
in which it has its registered office.                             Article 6.
 ---pagebreak--- No C 99/34                         Official Journal of the European Communities                            21.4. 92
                                                       TITLE II
                                                FINAL PROVISIONS
                        Article 66                                                     Article 67
                       (Penalties)
Each Member State shall specify the penalties to be
imposed in the case of breach of the provisions of this       This Regulation shall enter into force on 1 January
Regulation and, where appropriate, of any relevant            1993 .
national measures ; the penalties must be effective, pro­
portionate and dissuasive .
Each Member State shall take the necessary measures
before 1 January 1993 and shall forthwith inform the          This Regulation shall be binding in its entirety and
Commission thereof.                                           directly applicable in all Member States.
 ---pagebreak--- 21.4. 92                             Official Journal of the European Communities                                    No C 99/35
                                                             ANNEX
                                              Legal entities referred to in Article 9
         In Belgium
         cooperative societies governed by Sections 141 to 164 of the Consolidated Commercial Companies Act ;
         mutual insurance associations within the scope of Section 2 of the Insurance Act of 11 June 1874 and
         Section 1 1 of the Act of 9 July 1975 on the Supervision of Insurance Undertakings ; and mutual societies
         within the scope of the Act of 6 August 1990 on Mutual Societies and National Unions of Mutual Socie­
         ties
         In Denmark
         cooperative societies and associations as defined and recognized under the principles formulated by the
         International Cooperative Alliance (ICA), and entities such as the Supplementary Health Insurance
         Fund and mutual societies
         In Spain
         cooperatives within the scope of Act No 3/ 1987 of 2 April 1987 ; credit cooperatives within the scope of
         the Act of 26 May 1989 ; workers limited companies within the scope of the Act of 25 April 1986 ; coop­
         eratives within the scope of the following legislation of the autonomous communities :
         — Basque country : the Act of 1 1 February 1982,
         —     Catalonia : the Act of 9 March 1983 ,
         —     Andalusia : the Act of May 1985 ,
         —     Valencia : the Act of 25 October 1985 ,
         and the social providence bodies, industrial accident mutual societies and mutual societies governed by
         the Act of 2 August 1984 on the Regulation of Private Insurance
          In France
         cooperatives within the scope of the Cooperative Statute of 10 September 1947 ; mutual insurance socie­
         ties governed by R. 322-42 et seq. of the Insurance Code ; and mutual societies governed by the Mutual
         Societies Code of 25 July 1985
         In Greece
         cooperatives within the scope of Act No 1541 of 1985 ; and entities within the scope of the law on
         mutual societies
          In Ireland
         cooperatives and other societies within the scope of the Industrial and Provident Societies Acts of 1893 ,
         the Friendly Societies Acts, the amendment to the 1893 Industrial and Provident Societies Act 1978, the
         Credit Union Act 1966, public limited companies, and the Voluntary Health Insurance Board governed
         by the Voluntary Health Insurance Act 1957
          In Italy
         cooperative societies and mutual insurance societies governed by Title VI of the Civil Code ; the cooper­
         atives referred to by legislation and regulations specific to certain categories ; and the mutual insurance
         societies and mutual societies within the scope of the Mutual Societies Code of 15 April 1886
 ---pagebreak--- No C 99 /36                            Official Journal of the European Communities                                    21.4. 92
            In Luxembourg
            cooperative societies governed by Sections 113 et seq. of the Commercial Companies Act of 10 August
            1915 ; mutual insurance associations governed by Section 2 of the Act of 16 May 1891 ; mutual assist­
            ance societies and mutual societies governed by the Act of 7 July 1961 and the Grand-Ducal Regulation
            of 31 July 1961
            In the Netherlands
            cooperative unions governed by Title III on associations, of the Second Book of the Civil Code ; mutual
            guarantee societies provided for in the regulations on mutual guarantee societies ; and the health insur­
            ance funds (Association of Dutch Health Insurers (VNZ) and the Silver Cross (Zilverenkruis), within the
            scope of the Act of 1 January 1966 or of the General Act on Special Health Expenses
            In Portugal
            cooperatives governed by Decree-Law No 454/80 of 9 October 1980, and cooperatives referred to by the
            Code and governed by laws dealing specifically with certain sectors ; mutual societies and associations
            within the scope of Decree-Law No 72/90 of 3 March 1990 ; charitable institutions (misericordias) within
            the scope of Sections 167 to 194 of the Civil Code, on associations and foundations ; and mutual insur­
            ance societies
            In Germany
            cooperatives governed by the Act of 1 May 1889 (RGB1. S. 55) published on 20 May 1898 (RGB1. S. 369,
            810) as amended in particular by the Amending Act of 8 October 1973 ( BGB1 . I S. 1451 ) and the Com­
            pany Accounts Directives Transposition Act of 19 December 1985 ( BGB1 . I S. 2355); mutual insurance
            associations within the scope of the Insurance Undertakings Supervision Act of 6 June 1931 , as
            amended on 1 July 1990
            In the United Kingdom
            cooperatives governed by the Industrial and Provident Societies Acts 1876 ; all other forms of company
            or partnership recognized under the cooperative principles laid down by the International Cooperative
            Alliance ; and societies within the scope of the Friendly Societies Acts, the Building Societies Acts, and
            the Credit Unions Act 1979