IE
S.I. No. 21/2007 - European Communities (European Public Limited Liability Company) Regulations 2007
Table of Provisions (36)
Statutory Text (36 Articles)
1. The Member States shall make such provision as is appropriate to ensure the effective application of this Regulation.
2. Each Member State shall designate the competent authorities within the meaning of Articles 8, 25, 26, 54, 55 and 64. It shall inform the Commission and the other Member States accordingly.
Article 69
Five years at the latest after the entry into force of this Regulation, the Commission shall forward to the Council and the European Parliament a report on the application of the Regulation and proposals for amendments, where appropriate. The report shall, in particular, analyse the appropriateness of
(
a
) allowing the location of an SE's head office and registered office in different Member States;
(
b
) broadening the concept of merger in Article 17(2) in order to admit also other types of merger than those defined in Articles 3(1) and 4(1) of Directive 78/855/EEC;
(
c
) revising the jurisdiction clause in Article 8(16) in the light of any provision which may have been inserted in the 1968 Brussels Convention or in any text adopted by Member States or by the Council to replace such Convention;
(
d
) allowing provisions in the statutes of an SE adopted by a Member State in execution of authorisations given to the Member States by this Regulation or laws adopted to ensure the effective application of this Regulation in respect to the SE which deviate from or are complementary to these laws, even when such provisions would not be authorised in the statutes of a public limited-liability company having its registered office in the Member State.
Article 70
This Regulation shall enter into force on 8 October 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 8 October 2001.
For the Council
The President
L. Onkelinx
(1) OJ C 263, 16.10.1989, p. 41 and OJ C 176, 8.7.1991, p. 1.
(2) Opinion of 4 September 2001 (not yet published in the Official Journal).
(3) OJ C 124, 21.5.1990, p. 34.
(4) See p. 22 of this Official Journal.
(5) OJ L 395, 30.12.1989, p. 40. Directive as last amended by the 1994 Act of Accession.
(6) OJ L 65, 14.3.1968, p. 8. Directive as last amended by the 1994 Act of Accession.
(7) OJ L 295, 20.10.1978, p. 36. Directive as last amended by the 1994 Act of Accession.
(8) Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (OJ L 26, 31.1.1977, p. 1). Directive as last amended by the 1994 Act of Accession.
(9) OJ L 126, 26.5.2000, p. 1.
(10) OJ L 374, 31.12.1991, p. 7.
(11) OJ L 317, 16.11.1990, p. 57.
ANNEX I
PUBLIC LIMITED-LIABILITY COMPANIES REFERRED TO IN ARTICLE 2(1)
BELGIUM
la société anonyme/de naamloze vennootschap
DENMARK
aktieselskaber
GERMANY
die Aktiengesellschaft
GREECE
áíí áéá
SPAIN
la sociedad annima
FRANCE
la société anonyme
IRELAND
public companies limited by shares
public companies limited by guarantee having a share capital
ITALY
societ per azioni
LUXEMBOURG
la société anonyme
NETHERLANDS
de naamloze vennootschap
AUSTRIA
die Aktiengesellschaft
PORTUGAL
a sociedade annima de responsabilidade limitada
FINLAND
julkinen osakeyhti/publikt aktiebolag
SWEDEN
publikt aktiebolag
UNITED KINGDOM
public companies limited by shares
public companies limited by guarantee having a share capital
ANNEX II
PUBLIC AND PRIVATE LIMITED-LIABILITY COMPANIES REFERRED TO IN ARTICLE 2(2)
BELGIUM
la société anonyme/de naamloze vennootschap,
la société privée responsabilité limitée//besloten vennootschap met beperkte aansprakelijkheid
DENMARK
aktieselskaber,
anpartselskaber
GERMANY
die Aktiengesellschaft,
die Gesellschaft mit beschrnkter Haftung
GREECE
áíí áéá
áéá ééí í
SPAIN
la sociedad annima,
la sociedad de responsabilidad limitada
FRANCE
la société anonyme,
la société responsabilité limitée
IRELAND
public companies limited by shares,
public companies limited by guarantee having a share capital,
private companies limited by shares,
private companies limited by guarantee having a share capital
ITALY
societ per azioni,
societ a responsabilit limitata
LUXEMBOURG
la société anonyme,
la société responsabilité limitée
NETHERLANDS
de naamloze vennootschap,
de besloten vennootschap met beperkte aansprakelijkheid
AUSTRIA
die Aktiengesellschaft,
die Gesellschaft mit beschrnkter Haftung
PORTUGAL
a sociedade annima de responsabilidade limitada,
a sociedade por quotas de responsabilidade limitada
FINLAND
osakeyhti
aktiebolag
SWEDEN
aktiebolag
UNITED KINGDOM
public companies limited by shares,
public companies limited by guarantee having a share capital,
private companies limited by shares,
private companies limited by guarantee having a share capital
GIVEN under my Official Seal,
22 January 2007
MICHEÁL MARTIN
Minister for Enterprise, Trade and Employment.
EXPLANATORY NOTE
(This note is not part of the instrument and does not purport to be a legal interpretation).
These Regulations along with the European Communities (European Public Limited-Liability Company) Forms Regulations 2006 give full effect to Council Regulation (EC) No. 2157/2001 of 8 October 2001 on the Statute for a European company (SE).
It is a new legal instrument based on European Community law that gives companies with commercial interests in more than one Member State the option of forming a European Company known formally by its Latin name of ‘Societas Europaea’ (SE). The European Company Statute makes it easier for companies to expand and to manage cross-border operations without the red tape of having to set up a network of subsidiaries.
1 OJ L294, 10.11.2001
2 OJ L294, 10.11.2001
3. The management or administrative organ of the SE shall draw up draft terms of conversion and a report explaining and justifying the legal and economic aspects of the conversion and indicating the implications of the adoption of the public limited-liability company for the shareholders and for the employees.
4. The draft terms of conversion shall be publicised in the manner laid down in each Member State's law in accordance with Article 3 of Directive 68/151/EEC at least one month before the general meeting called to decide thereon.
5. Before the general meeting referred to in paragraph 6, one or more independent experts appointed or approved, in accordance with the national provisions adopted in implementation of Article 10 of Directive 78/855/EEC, by a judicial or administrative authority in the Member State to which the SE being converted into a public limited-liability company is subject shall certify that the company has assets at least equivalent to its capital.
6. The general meeting of the SE shall approve the draft terms of conversion together with the statutes of the public limited-liability company. The decision of the general meeting shall be passed as laid down in the provisions of national law adopted in implementation of Article 7 of Directive 78/855/EEC.
TITLE VI
ADDITIONAL AND TRANSITIONAL PROVISIONS
Article 67
7. The general meeting of the company in question shall approve the draft terms of conversion together with the statutes of the SE. The decision of the general meeting shall be passed as laid down in the provisions of national law adopted in implementation of Article 7 of Directive 78/855/EEC.
8. Member States may condition a conversion to a favourable vote of a qualified majority or unanimity in the organ of the company to be converted within which employee participation is organised.
9. The rights and obligations of the company to be converted on terms and conditions of employment arising from national law, practice and individual employment contracts or employment relationships and existing at the date of the registration shall, by reason of such registration be transferred to the SE.
TITLE III
STRUCTURE OF THE SE
Article 38
Under the conditions laid down by this Regulation an SE shall comprise
(
a
) a general meeting of shareholders and
(
b
) either a supervisory organ and a management organ (two-tier system) or an administrative organ (one-tier system) depending on the form adopted in the statutes.
Section 1
Two-tier system
Article 39
10. The transfer of an SE's registered office and the consequent amendment of its statutes shall take effect on the date on which the SE is registered, in accordance with Article 12, in the register for its new registered office.
11. When the SE's new registration has been effected, the registry for its new registration shall notify the registry for its old registration. Deletion of the old registration shall be effected on receipt of that notification, but not before.
12. The new registration and the deletion of the old registration shall be publicised in the Member States concerned in accordance with Article 13.
13. On publication of an SE's new registration, the new registered office may be relied on as against third parties. However, as long as the deletion of the SE's registration from the register for its previous registered office has not been publicised, third parties may continue to rely on the previous registered office unless the SE proves that such third parties were aware of the new registered office.
14. The laws of a Member State may provide that, as regards SEs registered in that Member State, the transfer of a registered office which would result in a change of the law applicable shall not take effect if any of that Member State's competent authorities opposes it within the two-month period referred to in paragraph 6. Such opposition may be based only on grounds of public interest.
Where an SE is supervised by a national financial supervisory authority according to Community directives the right to oppose the change of registered office applies to this authority as well.
Review by a judicial authority shall be possible.
15. An SE may not transfer its registered office if proceedings for winding up, liquidation, insolvency or suspension of payments or other similar proceedings have been brought against it.
16. An SE which has transferred its registered office to another Member State shall be considered, in respect of any cause of action arising prior to the transfer as determined in paragraph 10, as having its registered office in the Member States where the SE was registered prior to the transfer, even if the SE is sued after the transfer.
Article 9
17. (1) The statutes of an SE may permit the member or members of the management organ to be appointed and removed by the general meeting in accordance with Article 39(2).
(2) Paragraph (1) is without prejudice to the application (by virtue of Regulation 27) of section 182 of the Act of 1963.
Member of supervisory organ can request information from management organ (Article 41(3))
18. Each member of a supervisory organ is entitled to require the management organ to provide information of any kind which he or she needs to exercise supervision in accordance with Article 40(1).
Minimum number of members of an administrative organ (Article 43(2))
19. The minimum number of the members of the administrative organ of an SE shall be two.
First general meeting to be held within the 18 months following incorporation (Article 54(1))
20. So long as an SE holds its first annual general meeting within 18 months of its registration in the State, it need not hold such a meeting in the year of its registration or in the following year.
PART 4 PROVISIONS MADE IN FULFILMENT OF OBLIGATION TO ENACT CERTAIN MEASURES
Publication of terms of transfer, formation and conversion
21. (1) Where in respect of Article 8(2), 32(3) or 37(5), terms or draft terms of formation or conversion, or a transfer proposal are required to be publicised, there shall be delivered to the Registrar a copy of the terms, draft terms or the proposal, as the case may be, accompanied by the prescribed form specified in relation to each Article.
(2) The Registrar shall cause to be published in the CRO Gazette notice of the receipt by him or her of the copy of those terms or draft terms or such proposal, as the case may be.
Publication of completion of merger (Article 28)
22. Where an SE is formed by merger, whether its registered office is in the State or not, and a public limited company registered in this jurisdiction has taken part in that formation, the Registrar shall cause to be published in the CRO Gazette notice that the merger has been completed.
Publication of fulfilment of conditions for formation of a holding SE (Article 33(3))
23. Where, in respect of a company, the conditions for the formation of a holding SE, whether or not it is to be registered in the State, are fulfilled, the company shall deliver to the Registrar, within 14 days from such fulfilment, notice of that event in the prescribed form and the Registrar shall cause to be published in the CRO Gazette notice that those conditions have been fulfilled.
Publication of other documents or information
24. (1) Where, in respect of Article 59(3) or 65 of the EC Regulation, the occurrence of an event is required to be publicised, the Registrar shall cause to be published in the CRO Gazette notice of the receipt by him or her of the particulars of the event mentioned in that Article.
(2) Where, in respect of Article 8(12) or 15(2) of the EC Regulation, the registration of an SE, whether on formation under Title II, or on the transfer of the registered office of an SE under Article 8 or the deletion of a registration under that Article is required to be publicised, the Registrar shall cause to be published in the CRO Gazette notice of that registration or the deletion of that registration and of the receipt of the documents and particulars related to that registration or deletion required to be delivered to the registrar by the EC Regulation or these Regulations.
Power to require SE to take steps to comply with requirements of Article 7
25. (1) If it appears to the Director that an SE no longer complies with the requirements specified in Article 7, he or she may give a direction in writing to the SE to take steps, in accordance with Article 64(1)(
a
) or (
b
), to ensure that it complies with those requirements.
(2) Such a direction shall—
(
a
) include a statement of the reasons upon which the direction is being given,
and
(
b
) specify the period within which steps concerned are to be taken.
(3) Where an SE has failed to comply with a direction under paragraph (1), the Director may apply to the High Court for an order directing the SE to comply with the direction and, on the hearing of the application, the Court may make such order as it sees fit and may provide that all costs of and incidental to the application shall be borne by the SE.
(4) Section 213 of the Act of 1963 is amended by inserting the following after paragraph (
e
)
“(
ea
) the company is an SE, within the meaning of the European Communities (European Public Limited — Liability Company) Regulations 2007, that no longer complies with the requirements specified in Article 7 of Council Regulation (EC) No 2157/2001 on the Statute for a European company;”.
(5) Section 215 of the Act of 1963 is amended—
(
a
) by deleting “and” where it occurs immediately before paragraph (
g
),
(
b
) in paragraph (
g
), by substituting “paragraph; and” for “paragraph.” where it lastly occurs, and
(
c
) by inserting the following after paragraph (
g
)
“(
h
) a petition for winding-up on the grounds mentioned in paragraph (ea) of section 213 may be presented by the Director.”.
Appeals against decisions of competent authority (Articles 8(14) and 19)
26. (1) This Regulation applies where—
(
a
) the transfer of the registered office of an SE under Article 8(14),
or
(
b
) the taking part by a public limited company in the formation of an SE by merger under Article 19,
is opposed by the Director as competent authority under Article 8(14) or 19, as the case may be.
(2) Where this Regulation applies, the SE or the public limited company, as appropriate, may, within 21 days from being informed of the Director’s decision to oppose the transfer or the taking part in the formation of an SE by merger, appeal against the Director’s decision to the High Court.
(3) On the hearing of an appeal under paragraph (2), the High Court may either confirm or cancel the decision of the Director.
(4) A decision of the High Court under paragraph (3) shall be final, save that, by leave of the Court, an appeal from the decision shall lie to the Supreme Court on a specified question of law.
(5) The High Court may, on application made by the SE or the public limited company, extend the period referred to in paragraph (2) within which an appeal may be made in relation to the matter referred to in that paragraph (the “appeal period”) if, but only if, it is satisfied that—
(
a
) where the application for the extension is made before the end of the appeal period, there is good reason for the SE or the company being unable to make the appeal within that period, or
(
b
) where the application for the extension is made after the end of the appeal period, that there was a good reason for the failure of the SE or the company to make the appeal within that period and for any delay in applying for the extension.
PART 5 PROVISIONS RELATING TO THE EFFECTIVE APPLICATION OF THE EC REGULATION
Application of law
27. (1) Any enactment or rule of law which applies in relation to a public limited company incorporated under the Companies Acts shall, in the absence of any express provision to the contrary in these Regulations, apply with any necessary modifications in relation to an SE as it applies in relation to such a company.
(2) Without prejudice to the generality of paragraph (1), the Companies Acts shall, in their application to SEs, have effect with the modifications specified in these Regulations.
Members of organs to be treated as directors, etc.
28. (1) For the purposes of the application to an SE of the provisions of the Companies Acts which apply to public limited companies, the members of—
(
a
) the administrative organ in the case of an SE within the one-tier system,
and
(
b
) the supervisory organ and of the management organ in the case of an SE within the two-tier system,
shall be regarded and treated as if they were directors of a public limited company and shall have and shall discharge the responsibilities of such directors accordingly.
(2) For the purposes of the application to an SE of the provisions of the Companies Acts which apply to public limited companies, the members of—
(
a
) the administrative organ in the case of an SE within the one-tier system,
and
(
b
) the supervisory organ and of the management organ in the case of an SE within the two-tier system,
shall designate one of their members to discharge the responsibilities that would be required to be discharged by a company secretary were the SE a public limited company and the person so designated shall have and shall discharge such responsibilities and shall be regarded and treated as if he or she were a secretary of a public limited company accordingly.
(3) For the purposes of the application to an SE of the provisions of the Companies Acts that require a document prepared by a public limited company to be signed or certified—
(
a
) by the secretary of the company acting alone,
or
(
b
) jointly by that secretary and a director or, as the case may be, a specified number (which number is referred to subsequently in this Regulation as “the requisite number”) of directors of the company,
then that requirement shall be regarded as satisfied, in the case of an SE, if the document concerned is signed or certified by the member of the SE designated pursuant to paragraph (2) acting alone or, as appropriate, signed or certified jointly by that member and—
(i) in the case of an SE within the one-tier system, a member or, as the case may require, the requisite number of members of the administrative organ of the SE,
or
(ii) in the case of an SE within the two-tier system, a member or, as the case may require, the requisite number of members of the supervisory organ or the management organ of the SE.
(4) For the purposes of paragraph (3)(ii), it shall be solely at the discretion of the SE whether the requisite number is counted from amongst one alone of the organs there mentioned or partly from the one of them and partly from the other.
Competent authorities
29. The competent authorities designated under Article 68(2) are
(
a
) in respect of Articles 8(7) and 8(8), the Registrar,
(
b
) in respect of Articles 8(14), 19, 54, 55 and 64, the Director, and
(
c
) in respect of Articles 25 and 26, the High Court.
National Gazette
30. For the purposes of Article 21, publication may be made in the CRO Gazette.
Records of an SE transferred under Article 8(11) or a public limited company ceasing to exist under Article 29(1) and (2)
31. (1) Where—
(
a
) the registration of an SE is deleted under Article 8(11) pursuant to a transfer of its registered office to another Member State; or
(
b
) a public limited company ceases to exist under Article 29(1)(
c
) or (2)(
c
),
the records kept by the Registrar in relation to that SE or public limited company, as the case may be, shall continue to be kept by him or her for a period of twenty years following such a deletion or cessation of existence.
(2) Where the registration of an SE is deleted, the form, and the documents, if any, accompanying it, delivered to the Registrar under Regulation 7 together with a copy of the certificate issued under Article 8(8) shall be deemed to be documents to be retained by the Registrar under Regulation 9 and the provisions of these Regulations shall apply accordingly.
Notification of amendments to statutes and insolvency events (Articles 59(3) and 65)
32. Where, under Article 59(3) or 65, publication by the Registrar in the CRO Gazette of the events mentioned in that Article is required by Article 13—
(
a
) in the case of Article 59(3), the amendments to the statutes shall be delivered to the Registrar by the SE accompanied by the prescribed form within 14 days from the adoption of those amendments, and
(
b
) in the case of Article 65, notice of the relevant event set out in the prescribed form shall be delivered to the Registrar by the SE within 14 days from the occurrence of the event.
Annual return date
33. (1) On the registration of an SE, the Registrar shall assign to the SE an annual return date for the purposes of section 127 of the Act of 1963 (inserted by the
Company Law Enforcement Act 2001
(No.28 of 2001) and amended by the
Companies (Auditing and Accounting) Act 2003
(No.44 of 2003)) and that date shall, subject to paragraphs (3) and (5), be the annual return date of the SE for those purposes accordingly.
(2) The secretary of the SE may serve on the Registrar, not later than 6 weeks from its date of registration, a notice in the prescribed form—
(
a
) requesting the Registrar to assign, as an annual return date in respect of the SE, a date specified in the notice and which is different from that assigned under paragraph (1),
and
(
b
) stating the reason or reasons why, in the secretary’s opinion, the date so specified is more suitable than that assigned under paragraph (1).
(3) The Registrar shall consider such a notice and, if the Registrar is of the opinion that the reason or reasons (or any of them) referred to in paragraph (2)(
b
) and stated in the notice disclose good and substantial grounds for the secretary’s opinion that the date specified in the notice is more suitable than that assigned under paragraph (1), the Registrar shall assign that date as the annual return date of the SE in place of that assigned under paragraph (1).Upon service of the notice referred to in paragraph (4) on the secretary of the SE the date so assigned shall have effect in place of the date assigned under paragraph (1) and,accordingly, shall,subject to paragraph (5), be the annual return date of the SE for the purposes of section 127 of the Act of 1963.
(4) The Registrar shall, by notice in writing served on the secretary of the SE, inform him or her whether the request made by the secretary in the notice served under paragraph (2) has been acceded to.
(5) The annual return date assigned by the Registrar under paragraph (1) or, as the case may be, paragraph (3) may be altered by the SE in accordance with the provisions of section 127 of the Act of 1963 as to the establishment of a new annual return date.
Offences
34. (1) If an SE or any of its officers fails to comply with Regulation 7, 11, 23 or 32 or Article 11 or 13, the SE and every officer who is in default shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000.
(2) Proceedings for an offence under paragraph (1) may be brought and prosecuted by the Director or the Registrar, save in the case of proceedings in respect of an offence under that paragraph consisting of a failure to comply with Article 11 or 13 which may only be brought and prosecuted by the Director.
Relationship of certain Regulations to Council Regulation
35. Regulations 10, 17(2) and 27 are made in consequence of, and are to be construed as being supplemental to, Article 9 and, accordingly, do not affect the direct application in the State of Article 9 or any other provision of the EC Regulation.
Regulation 2(1)
SCHEDULE COUNCIL REGULATION (EC) NO 2157/2001 of 8 October 2001 on the Statute for a European company (SE)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 308 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Having regard to the opinion of the Economic and Social Committee(3),
Whereas
(1) The completion of the internal market and the improvement it brings about in the economic and social situation throughout the Community mean not only that barriers to trade must be removed, but also that the structures of production must be adapted to the Community dimension. For that purpose it is essential that companies the business of which is not limited to satisfying purely local needs should be able to plan and carry out the reorganisation of their business on a Community scale.
(2) Such reorganisation presupposes that existing companies from different Member States are given the option of combining their potential by means of mergers. Such operations can be carried out only with due regard to the rules of competition laid down in the Treaty.
(3) Restructuring and cooperation operations involving companies from different Member States give rise to legal and psychological difficulties and tax problems. The approximation of Member States' company law by means of Directives based on Article 44 of the Treaty can overcome some of those difficulties. Such approximation does not, however, release companies governed by different legal systems from the obligation to choose a form of company governed by a particular national law.
(4) The legal framework within which business must be carried on in the Community is still based largely on national laws and therefore no longer corresponds to the economic framework within which it must develop if the objectives set out in Article 18 of the Treaty are to be achieved. That situation forms a considerable obstacle to the creation of groups of companies from different Member States.
(5) Member States are obliged to ensure that the provisions applicable to European companies under this Regulation do not result either in discrimination arising out of unjustified different treatment of European companies compared with public limited-liability companies or in disproportionate restrictions on the formation of a European company or on the transfer of its registered office.
(6) It is essential to ensure as far as possible that the economic unit and the legal unit of business in the Community coincide. For that purpose, provision should be made for the creation, side by side with companies governed by a particular national law, of companies formed and carrying on business under the law created by a Community Regulation directly applicable in all Member States.
(7) The provisions of such a Regulation will permit the creation and management of companies with a European dimension, free from the obstacles arising from the disparity and the limited territorial application of national company law.
(8) The Statute for a European public limited-liability company (hereafter referred to as "SE") is among the measures to be adopted by the Council before 1992 listed in the Commission's White Paper on completing the internal market, approved by the European Council that met in Milan in June 1985. The European Council that met in Brussels in 1987 expressed the wish to see such a Statute created swiftly.
(9) Since the Commission's submission in 1970 of a proposal for a Regulation on the Statute for a European public limited-liability company, amended in 1975, work on the approximation of national company law has made substantial progress, so that on those points where the functioning of an SE does not need uniform Community rules reference may be made to the law governing public limited-liability companies in the Member State where it has its registered office.
(10) Without prejudice to any economic needs that may arise in the future, if the essential objective of legal rules governing SEs is to be attained, it must be possible at least to create such a company as a means both of enabling companies from different Member States to merge or to create a holding company and of enabling companies and other legal persons carrying on economic activities and governed by the laws of different Member States to form joint subsidiaries.
(11) In the same context it should be possible for a public limited-liability company with a registered office and head office within the Community to transform itself into an SE without going into liquidation, provided it has a subsidiary in a Member State other than that of its registered office.
(12) National provisions applying to public limited-liability companies that offer their securities to the public and to securities transactions should also apply where an SE is formed by means of an offer of securities to the public and to SEs wishing to utilise such financial instruments.
(13) The SE itself must take the form of a company with share capital, that being the form most suited, in terms of both financing and management, to the needs of a company carrying on business on a European scale. In order to ensure that such companies are of reasonable size, a minimum amount of capital should be set so that they have sufficient assets without making it difficult for small and medium-sized undertakings to form SEs.
(14) An SE must be efficiently managed and properly supervised. It must be borne in mind that there are at present in the Community two different systems for the administration of public limited-liability companies. Although an SE should be allowed to choose between the two systems, the respective responsibilities of those responsible for management and those responsible for supervision should be clearly defined.
(15) Under the rules and general principles of private international law, where one undertaking controls another governed by a different legal system, its ensuing rights and obligations as regards the protection of minority shareholders and third parties are governed by the law governing the controlled undertaking, without prejudice to the obligations imposed on the controlling undertaking by its own law, for example the requirement to prepare consolidated accounts.
(16) Without prejudice to the consequences of any subsequent coordination of the laws of the Member States, specific rules for SEs are not at present required in this field. The rules and general principles of private international law should therefore be applied both where an SE exercises control and where it is the controlled company.
(17) The rule thus applicable where an SE is controlled by another undertaking should be specified, and for this purpose reference should be made to the law governing public limited-liability companies in the Member State in which the SE has its registered office.
(18) Each Member State must be required to apply the sanctions applicable to public limited-liability companies governed by its law in respect of infringements of this Regulation.
(19) The rules on the involvement of employees in the European company are laid down in Directive 2001/86/EC(4), and those provisions thus form an indissociable complement to this Regulation and must be applied concomitantly.
(20) This Regulation does not cover other areas of law such as taxation, competition, intellectual property or insolvency. The provisions of the Member States' law and of Community law are therefore applicable in the above areas and in other areas not covered by this Regulation.
(21) Directive 2001/86/EC is designed to ensure that employees have a right of involvement in issues and decisions affecting the life of their SE. Other social and labour legislation questions, in particular the right of employees to information and consultation as regulated in the Member States, are governed by the national provisions applicable, under the same conditions, to public limited-liability companies.
(22) The entry into force of this Regulation must be deferred so that each Member State may incorporate into its national law the provisions of Directive 2001/86/EC and set up in advance the necessary machinery for the formation and operation of SEs with registered offices within its territory, so that the Regulation and the Directive may be applied concomitantly.
(23) A company the head office of which is not in the Community should be allowed to participate in the formation of an SE provided that company is formed under the law of a Member State, has its registered office in that Member State and has a real and continuous link with a Member State's economy according to the principles established in the 1962 General Programme for the abolition of restrictions on freedom of establishment. Such a link exists in particular if a company has an establishment in that Member State and conducts operations therefrom.
(24) The SE should be enabled to transfer its registered office to another Member State. Adequate protection of the interests of minority shareholders who oppose the transfer, of creditors and of holders of other rights should be proportionate. Such transfer should not affect the rights originating before the transfer.
(25) This Regulation is without prejudice to any provision which may be inserted in the 1968 Brussels Convention or in any text adopted by Member States or by the Council to replace such Convention, relating to the rules of jurisdiction applicable in the case of transfer of the registered offices of a public limited-liability company from one Member State to another.
(26) Activities by financial institutions are regulated by specific directives and the national law implementing those directives and additional national rules regulating those activities apply in full to an SE.
(27) In view of the specific Community character of an SE, the "real seat" arrangement adopted by this Regulation in respect of SEs is without prejudice to Member States' laws and does not pre-empt any choices to be made for other Community texts on company law.
(28) The Treaty does not provide, for the adoption of this Regulation, powers of action other than those of Article 308 thereof.
(29) Since the objectives of the intended action, as outlined above, cannot be adequately attained by the Member States in as much as a European public limited-liability company is being established at European level and can therefore, because of the scale and impact of such company, be better attained at Community level, the Community may take measures in accordance with the principle of subsidiarity enshrined in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in the said Article, this Regulation does not go beyond what is necessary to attain these objectives,
HAS ADOPTED THIS REGULATION
TITLE I
GENERAL PROVISIONS
Article 1
Notice of the making of this Statutory Instrument was published in “Iris Oifigiúil” of
30
th January
, 2007.
I, Micheál Martin, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by
section 3
of the
European Communities Act 1972
(No. 27 of 1972) and for the purpose of giving full effect to Council Regulation (EC) No. 2157/2001 of 8 October 2001
1
on the Statute for a European company (SE), hereby make the following regulations—
PART 1 GENERAL
Citation and construction