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Statutory Instruments

2004 No. 2326

EUROPEAN COMMUNITIES

The European Public Limited-Liability Company Regulations 2004

Made

6th September 2004

Laid before Parliament

13th September 2004

Coming into force

8th October 2004

The Secretary of State, being a Minister designated M1 for the purposes of section 2(2) of the European Communities Act 1972 M2 in relation to measures relating to the registration, operation and regulation of European public limited liability companies, in exercise of the powers conferred on her by section 2(2) of that Act and of all other powers enabling her in that behalf, hereby makes the following Regulations:

Modifications etc. (not altering text)

Marginal Citations

PART 1 E+W+SGENERAL

Citation, commencement and extentE+W+S

1.—(1) These Regulations may be cited as the European Public Limited-Liability Company Regulations 2004.

(2) These Regulations come into force on 8th October 2004.

(3) These Regulations extend to [F1the whole of the United Kingdom].

Textual Amendments

EC Directive and EC RegulationE+W+S

2.  In these Regulations—

“the EC Directive” means Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European Company with regard to the involvement of employees M3;

“the EC Regulation” means Council Regulation 2157/2001/EC of 8 October 2001 on the Statute for a European Company M4;

and references to numbered Articles are, unless otherwise specified, references to Articles in the EC Regulation.

Marginal Citations

M3OJ L 294, 10.11.2001, p. 22.

M4OJ L 294, 10.11.2001, p. 1.

InterpretationE+W+S

3.—(1) In these Regulations—

F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the “1996 Act” means the Employment Rights Act 1996 M5;

[F3the “2006 Act” means the Companies Act 2006;]

[F4“the Companies Acts” has the meaning given by section 2 of [F5the 2006 Act];]

“SE” means a European Public Limited-Liability Company (or Societas Europaea) within the meaning of the EC Regulation and, except as provided in these Regulations, means an SE which is to be, or is, [F6registered in the United Kingdom].

(2) Except as otherwise provided in these Regulations, words and expressions [F7defined for the purposes of the Companies Acts have the same meaning in these Regulations].

(3) Except as otherwise provided in these Regulations, words and expressions which are used in the EC Regulation or the EC Directive have the same meaning as they have in that Regulation or Directive.

(4) Where a word or expression is both [F8defined as mentioned] in paragraph (2) and used in the EC Regulation or the EC Directive, it has the meaning it has in that Regulation or Directive except as otherwise provided in these Regulations.

Textual Amendments

Marginal Citations

PART 2E+W+SREGISTRATION OF SEs AND THE REGISTRAR ETC.

The registrarE+W+S

4.  The registrar has the functions conferred by this Part in relation to the registration, or the deletion of the registration, of an SE.

Registration of an SE formed by merger in accordance with Article 2(1)E+W+S

5.  Where it is proposed to register an SE formed by merger in accordance with Article 2(1) there shall be delivered to the registrar a registration form in [F9Form SE FM01]F10... set out in Schedule 1 together with the documents specified in respect of [F11that Form].

Textual Amendments

Registration of the formation of a holding SE in accordance with Article 2(2)E+W+S

6.  Where it is proposed to register a holding SE formed in accordance with Article 2(2) there shall be delivered to the registrar a registration form in [F12Form SE FM02]F13... set out in Schedule 1 together with the documents specified in respect of [F14that Form].

Textual Amendments

Registration of the formation of a subsidiary SE in accordance with Article 2(3)E+W+S

7.  Where it is proposed to register a subsidiary SE formed in accordance with Article 2(3) there shall be delivered to the registrar a registration form in [F15Form SE FM03]F16... set out in Schedule 1 together with the documents specified in respect of [F17that Form].

Textual Amendments

Registration of an SE by the transformation of a public company in accordance with Article 2(4)E+W+S

8.  Where it is proposed to register an SE by the transformation of a public company in accordance with Article 2(4) there shall be delivered to the registrar a registration form in [F18Form SE FM04]F19... set out in Schedule 1 together with the documents specified in respect of [F20that Form].

Textual Amendments

Registration of an SE formed as the subsidiary of an SE in accordance with Article 3(2)E+W+S

9.—(1) Where it is proposed to register an SE formed as the subsidiary of an SE in accordance with Article 3(2) there shall be delivered to the registrar a registration form in [F21Form SE FM05]F22... set out in Schedule 1 together with the documents specified in respect of [F23that Form].

(2) The reference to an SE, a subsidiary of which is to be registered under this regulation, includes a reference to an SE whose registered office is in another Member State.

Textual Amendments

Registration of an SE on the transfer of its registered office to [F24the United Kingdom] in accordance with Article 8E+W+S

10.  Where it is proposed to transfer to [F25the United Kingdom] the registered office of an SE whose registered office is situated in another Member State there shall be delivered to the registrar a registration form in respect of that SE in [F26Form SE TR02]F27... set out in Schedule 1 together with the documents specified in respect of [F28that Form].

Textual Amendments

Certificate of the competent authority under Article 8(8)E+W+S

11.  Where it is proposed to transfer the registered office of an SE from [F29the United Kingdom] to another Member State there shall be delivered to the Secretary of State for the purposes of applying for the issue of a certificate under Article 8(8), a transfer form in [F30Form SE TR03] set out in Schedule 1 together with the documents specified in that Form.

Textual Amendments

Registration of an SEE+W+S

12.  The registrar shall register an SE formed or transformed under the provisions of Articles 2 and 3 or an SE whose registered office is transferred to [F31the United Kingdom] under Article 8 where she is satisfied that all the requirements of these Regulations and the EC Regulation in respect of such formation, transformation or transfer of an SE, as the case may be, have been complied with in respect of that SE.

Textual Amendments

Documents sent to the registrarE+W+S

13.—[F32(1) The registrar shall retain any document delivered to the registrar under any provision of these Regulations or the EC Regulation.

(1A) Any reference in the 2006 Act to “the register” is to be read as including a reference to—

(a)the documents required to be retained by the registrar under paragraph (1), and

(b)records of the information contained in those documents.

(1B) In the application of the 2006 Act in relation to those documents and records by virtue of paragraph (1A), the provisions specified in Schedule 1A to these Regulations have effect with the modifications specified in relation to each such provision in that Schedule.]

(2) For the purposes of this regulation documents delivered to the Secretary of State under regulation 11 shall be treated as documents delivered to the registrar on the deletion of the registration of the SE making the application under the regulation and the provisions of regulation 14 will apply accordingly.

Textual Amendments

F32Reg. 13(1)-(1B) substituted for reg. 13(1) (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 14 (with reg. 2)

[F33Application of language requirements to documents relating to SEsE+W+S

13A.—(1) The following provisions of the 2006 Act apply in relation to documents required to be delivered to the registrar under these Regulations or the EC Regulation—

(a)section 1103 (documents to be drawn up and delivered in English);

(b)section 1105 (documents that may be drawn up and delivered in other languages);

(c)section 1107 (certified translations).

(2) In the application of the provisions listed in paragraph (1) in relation to the documents referred to in that paragraph—

(a)section 1103 applies as if the reference to section 1104 of the 2006 Act were omitted;

(b)section 1105 applies as if for subsections (2) and (3) there were substituted—

“(2) This section applies to—

(a)documents specified in respect of any of the Forms mentioned in regulations 5 to 11 of the European Public Limited-Liability Company Regulations 2004 (provisions relating to registration etc);

(b)copies of transfer proposals required to be delivered under regulation 68(1)(a) of those Regulations (publication of terms of transfer);

(c)copies of draft terms required to be delivered under regulation 68(2)(a) or (3)(a) of those Regulations (publication of terms for formation of holding SE or conversion of company into SE);

(d)copies of amendments to statutes required to be delivered under regulation 82(1)(a) of those Regulations (notification of amendments to statutes);

(e)documents required to be delivered with Form SE CV01 under regulation 85 of those Regulations (registration of a public company by conversion of SE);

(f)copies of draft terms required to be delivered under regulation 86 of those Regulations (publication of draft terms of conversion).”;

(c)section 1107 applies as if any reference to a company were a reference to an SE.

(3) Section 1106(1) and (4) of the 2006 Act (voluntary filing of translations), and any provision of regulations made under section 1106(2) which specifies the languages in relation to which the facility in section 1106(1) is available, apply in relation to documents within paragraph (4), as if any reference to a company were a reference to an SE.

(4) The documents referred to in paragraph (3) are documents that are or have been delivered to the registrar under these Regulations or the EC Regulation on or after 1st January 2007.

(5) For the purposes of this regulation documents required to be delivered to the Secretary of State under regulation 11 shall be treated as documents required to be delivered to the registrar under that regulation.]

Textual Amendments

[F34Application of the 2006 Act to the registration of SEs]E+W+S

14.—[F35(1)] The provisions of [F36the 2006 Act] specified in Schedule 2 to these Regulations shall apply in respect of

(a)the registration or the deletion of registration of SEs under these Regulations and the EC Regulation;

(b)the functions of the registrar in respect of such registrations or deletions.

Those provisions shall apply under this regulation subject to any limitations or qualifications specified in relation to each such provision in that Schedule.

[F37(2) This regulation does not affect the application of provisions of the 2006 Act in respect of the matters referred to in paragraph (1)(a) or (b) otherwise than by virtue of this regulation.]

Textual Amendments

False statements in documents sent to the registrar or the Secretary of StateE+W+S

15.  Any person who makes a false statement:

(a)in any registration form sent to the registrar under regulations 5 to 10 and regulation 85,

(b)in any transfer form sent to the Secretary of State under regulation 11,

(c)in any document, specified in such a form, or

(d)in any other document required to be sent to the registrar under these Regulations,

which he knows to be false or does not believe to be true is liable, on conviction on indictment to imprisonment not exceeding two years, or to a fine, or to both, and on summary conviction to imprisonment not exceeding three months, or to a fine not exceeding the statutory maximum or to both.

F38PART 3E+W+SEMPLOYEE INVOLVEMENT

Textual Amendments

F38CHAPTER 1E+W+SINTERPRETATION OF PART 3

Interpretation of Part 3E+W+S

F3816.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F38CHAPTER 2E+W+SPARTICIPATING COMPANIES AND THE SPECIAL NEGOTIATING BODY

Circumstances in which certain provisions of Part 3 applyE+W+S

F3817.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duty on participating company to provide informationE+W+S

F3818.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Complaint of failure to provide informationE+W+S

F3819.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Function of the special negotiating bodyE+W+S

F3820.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Composition of the special negotiating bodyE+W+S

F3821.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Complaint about establishment of special negotiating bodyE+W+S

F3822.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F38CHAPTER 3E+W+SELECTION OR APPOINTMENT OF UK MEMBERS OF THE SPECIAL NEGOTIATING BODY

Ballot arrangementsE+W+S

F3823.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Conduct of the ballotE+W+S

F3824.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appointment of UK members by a consultative committeeE+W+S

F3825.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Representation of employeesE+W+S

F3826.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F38CHAPTER 4E+W+SNEGOTIATION OF THE EMPLOYEE INVOLVEMENT AGREEMENT

Negotiations to reach an employee involvement agreementE+W+S

F3827.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The employee involvement agreementE+W+S

F3828.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Decisions of the special negotiating bodyE+W+S

F3829.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Decision not to open or to terminate negotiationsE+W+S

F3830.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Complaint about decisions of special negotiating bodyE+W+S

F3831.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F38CHAPTER 5E+W+SSTANDARD RULES ON EMPLOYEE INVOLVEMENT

Standard rules on employee involvementE+W+S

F3832.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F38CHAPTER 6E+W+SCOMPLIANCE AND ENFORCEMENT

Disputes about operation of an employee involvement agreement or the standard rules on employee involvementE+W+S

F3833.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PenaltiesE+W+S

F3834.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Misuse of proceduresE+W+S

F3835.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exclusivity of remedyE+W+S

F3836.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F38CHAPTER 7E+W+SCONFIDENTIAL INFORMATION

Breach of statutory dutyE+W+S

F3837.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Withholding of information by the competent organE+W+S

F3838.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F38CHAPTER 8E+W+SPROTECTION FOR MEMBERS OF SPECIAL NEGOTIATING BODY, ETC.

Right to time off for members of special negotiating body, etc.E+W+S

F3839.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Right to remuneration for time off under regulation 39E+W+S

F3840.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Right to time off: complaints to tribunalsE+W+S

F3841.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Unfair dismissalE+W+S

F3842.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Subsidiary provisions relating to unfair dismissalE+W+S

F3843.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DetrimentE+W+S

F3844.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Detriment: enforcement and subsidiary provisionsE+W+S

F3845.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ConciliationE+W+S

F3846.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F38CHAPTER 9E+W+SMISCELLANEOUS

CAC proceedingsE+W+S

F3847.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeal Tribunal: location of certain proceedings under these RegulationsE+W+S

F3848.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeal Tribunal: appeals from employment tribunalsE+W+S

F3849.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ACASE+W+S

F3850.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Restrictions on contracting out: generalE+W+S

F3851.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Restrictions on contracting out: Chapter 8 of this PartE+W+S

F3852.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of the Transnational Information and Consultation of Employees Regulations 1999E+W+S

F3853.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Existing employee involvement rightsE+W+S

F3854.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 4 E+W+SEXERCISE OF MEMBER STATES OPTIONS UNDER THE EC REGULATION

Participation in the formation of an SE by a company formed under the law of a Member State whose head office is not in the Community (Article 2(5))E+W+S

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

Additional forms of publication of transfer proposal (Article 8(2))E+W+S

56.—(1) The SE shall notify in writing its shareholders, and every creditor of whose claim and address it is aware, of the right to examine the transfer proposal and the report drawn up under Article 8(3), at its registered office and, on request, to obtain copies of those documents free of charge, not later than one month before the general meeting called to decide on the transfer.

(2) Every invoice, order for goods or business letter, which, at any time between the date on which the transfer proposal and report become available for inspection at the registered office of the SE and the deletion of its registration on transfer, is issued by or on behalf of the SE, shall contain a statement that the SE is proposing to transfer its registered office to another Member State under Article 8 and identifying that Member State.

(3) If default is made in complying with [F39paragraph (1) or (2)] above the SE is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Textual Amendments

Extension of protection given by Article 8(7) to liabilities incurred prior to transfer (Article 8(7))E+W+S

57.  The first sub-paragraph of Article 8(7) shall apply to liabilities that arise (or may arise) prior to the transfer.

Power of the competent authorities of a Member State to oppose a transfer on public interest grounds (Article 8(14))E+W+S

58.  If a transfer of a registered office of an SE would result in a change in the law applicable to the SE, the competent authorities may, within the two month period referred to within Article 8(6), oppose the transfer, on public interest grounds.

Power of the management or administrative organ of an SE to amend statutes where in conflict with employee involvement arrangements (Article 12(4))E+W+S

59.  Where there is a conflict between the arrangements for employee involvement and the existing statutes the management or administrative organ of the SE may amend the statutes to the extent necessary to resolve the conflict without any further decision from the general shareholders meeting.

Power of the competent authorities of a Member State to oppose the participation of a merging company governed by its law on public interest grounds (Article 19)E+W+S

F4060.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Minimum number of members of the management organ (Article 39(4))E+W+S

61.  The minimum number of the members of the management organ of an SE is two.

Minimum number of members of the supervisory organ (Article 40(3))E+W+S

62.  The minimum number of the members of the supervisory organ of an SE is two.

Members of the supervisory organ to be entitled to require the management organ to provide certain information (Article 41(3))E+W+S

63.  Each member of the supervisory organ is entitled to require the management organ to provide to that member information of a kind which the supervisory organ needs to exercise supervision in accordance with Article 40(1).

Minimum number of members of an administrative organ (Article 43(2))E+W+S

64.  The minimum number of the members of the administrative organ of an SE is two.

Timing of the first general meeting of an SE (Article 54(1))E+W+S

65.  The first general meeting of an SE may be held at any time in the 18 months following an SE’s incorporation.

Proportion of shareholders of an SE who may require one or more additional items to be put on the agenda of any general meeting (Article 56)E+W+S

66.  The proportion of the shareholders of an SE who may require one or more additional items put on the agenda of any general meeting is to be the holders of at least 5% of the SE’s subscribed capital.

SEs subject to law on public limited liability companies as regard the expression of their capital (Article 67(1))E+W+S

67.  An SE shall be subject to the provisions of the enactments and rules of law applying to a public company as regards the expression of its capital.

PART 5 E+W+SPROVISIONS REQUIRED BY THE EC REGULATION

Publication of terms of transfer, formation and conversion (Articles 8(2), 32(3) and 37(5))E+W+S

68.—(1) Where a transfer proposal is drawn up under Article 8(2)—

(a)a copy of the proposal shall be delivered to the registrar together with [F41Form SE TR01], and

(b)the registrar shall cause notice of the receipt of the copy of the proposal to be published in the Gazette.

(2) Where draft terms for the formation of a holding SE, whether or not its registered office is to be in [F42the United Kingdom], are drawn up under Article 32(2)—

(a)a copy of the draft terms shall be delivered to the registrar together with [F43Form SE DT01], and

(b)the registrar shall cause notice of the receipt of the copy of the draft terms to be published in the Gazette.

(3) Where draft terms for the conversion of a public limited-liability company into an SE are drawn up under Article 37(4)—

(a)a copy of the draft terms shall be delivered to the registrar together with [F44Form SE DT02], and

(b)the registrar shall cause notice of the receipt of the copy of the draft terms to be published in the Gazette.

(4) The Forms referred to in paragraphs (1) to (3) are those set out in Schedule 1.

Textual Amendments

Publication of completion of merger (Article 28)E+W+S

69.  Where an SE is formed by merger, whether its registered office is in [F45the United Kingdom] or not, and a public company has taken part in that procedure, the registrar shall cause to be published in the Gazette notice that the merger has been completed.

Textual Amendments

Publication of fulfilment of conditions for the formation of a holding SE (Article 33(3))E+W+S

70.—(1) Where, in respect of a company of a type specified in relation to the United Kingdom in Annex II to the EC Regulation, the conditions for the formation of a holding SE, whether or not it is to be [F46registered in the United Kingdom], are fulfilled, the company shall deliver to the registrar within 14 days of such fulfilment notice of that event in the [F47Form SE SC01] set out in Schedule 1 and the registrar shall cause to be published in the Gazette notice that these conditions have been fulfilled.

(2) If default is made in complying with paragraph (1), the company is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Textual Amendments

Publication of other documents or information (Articles 8(12), 15(2), 59(3) and 65)E+W+S

71.—(1) Where, under the Articles of the EC Regulation listed in paragraph (2), the occurrence of an event is required to be publicised, the registrar shall cause to be published in the Gazette notice of receipt of the particulars of that event described in those Articles.

(2) The Articles referred to in paragraph (1) above are:

(3) Where, under the Articles listed in paragraph (4), the registration of an SE, whether on formation under Title II of the EC Regulation, 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 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.

(4) The Articles referred to in paragraph (3) are:

Protection of creditors and others on a transfer (Article 8(7))E+W+S

72.—(1) Where an SE proposes to transfer its registered office to another Member State under Article 8 the SE shall satisfy the Secretary of State that the interests of creditors and holders of other rights in respect of the SE (including those of public bodies) have been adequately protected in respect of any liabilities arising (or that may arise) prior to the transfer by the making of a statement of solvency in the terms set out in paragraphs (4) and (5).

(2) The statement of solvency must be made by all the members of the administrative organ in the case of an SE within the one-tier system and by all the members of the management organ in the case of an SE within the two-tier system.

(3) In the case of an SE within the two-tier system the statement of solvency may not be made unless authorised by the supervisory organ.

(4) The statement shall state that the members of the administrative or management organ, as the case may be, have formed the opinion—

(a)as regards its financial situation immediately following the date on which the transfer is proposed to be made, that there will be no grounds on which the SE could then be found to be unable to pay its debts, and

(b)as regards its prospects for the year immediately following that date, that, having regard to their intentions with respect to the management of the SE’s business during that year and to the amount and character of the financial resources which will in their view be available to the SE during that year, the SE will be able to carry on business as a going concern (and will accordingly be able to pay its debts as they fall due throughout that year).

(5) In forming their opinion for the purposes of paragraph (4)(a), the members of the administrative or the management organ, as the case may be, shall take into account the same liabilities (including prospective and contingent liabilities) as would be relevant under section 122 of the Insolvency Act 1986 M6 [F48or, as the case may be, Article 102 of the Insolvency (Northern Ireland) Order 1989] (winding up by the court) to the question whether a company is unable to pay its debts.

(6) The statement required by this regulation shall be in the [F49Form SE SS01] set out in Schedule 1.

(7) A member of an administrative or management organ who makes a statement under this regulation without having reasonable grounds for the opinion expressed in the statement is liable, on conviction on indictment, to imprisonment not exceeding two years, or to a fine, or to both, and on summary conviction to imprisonment not exceeding three months, or to a fine not exceeding the statutory maximum, or to both.

Textual Amendments

Marginal Citations

Power of Secretary of State where an SE no longer complies with the requirements of Article 7E+W+S

73.—(1) If it appears that an SE no longer complies with the requirements laid down in Article 7, the Secretary of State may direct the SE to regularise its position in accordance with Article 64(1)(a) or (b) within such period as may be specified in the direction.

(2) A direction under paragraph (1) is enforceable by the Secretary of State—

(a)in the case of an SE whose registered office is in England and Wales, by an application to the High Court [F50in England and Wales] for an injunction; F51...

(b)in the case of an SE whose registered office is in Scotland, by an application to the Court of Session for an order under section 45 of the Court of Session Act 1988 M7.

[F52(c)in the case of an SE whose registered office is in Northern Ireland, by an application to the High Court in Northern Ireland for an injunction.]

(3) After section 124A of the Insolvency Act 1986 insert—

    “124B Petition for winding up of SE

 

(“(1)) Where—

(a)an SE whose registered office is in Great Britain is not in compliance with Article 7 of Council Regulation (EC) No 2157/2001 on the Statute for a European company (the “EC Regulation”) (location of head office and registered office), and

(b)it appears to the Secretary of State that the SE should be wound up, he may present a petition for it to be wound up if the court thinks it is just and equitable for it to be so.

(2) This section does not apply if the SE is already being wound up by the court.

(3) In this section “SE” has the same meaning as in the EC Regulation.”

(4) The Insolvency Act 1986 is consequentially amended as follows—

(a)in section 124 (application for winding up), in subsection (4)(b) after “124A” insert “ or 124B ”;

(b)in Schedule A1 (moratorium where directors propose voluntary arrangement), in paragraph 12(5)(a), after “124A” insert “ or 124B ”;

(c)in Schedule B1 (administration), in paragraphs 40(2)(a), 42(4)(a) and 82(1)(a) after “124A (public interest),” insert

“(aa)section 124B (SEs),”.

Textual Amendments

Marginal Citations

Review of decisions of a competent authority (Articles 8(14) and 19)E+W+S

74.—(1) Where any competent authority or competent authorities oppose—

(a)the transfer of the registered office of an SE under Article 8(14); or

(b)the taking part by a company of the type specified in relation to the United Kingdom in Annex 1 to the EC Regulation in the formation of an SE by merger under Article 19 whether or not its registered office is to be in [F53the United Kingdom],

the provisions of paragraphs (2) to (5) shall apply.

(2) An SE, the transfer of whose registered office is opposed by a competent authority or authorities under Article 8(14) or a company whose taking part in the formation of an SE by merger, whether or not its registered office is to be in [F54the United Kingdom], is opposed by a competent authority or competent authorities under Article 19, may appeal to the relevant court on the grounds that the opposition:

(a)is unlawful; or

(b)is irrational or unreasonable; or

(c)has been made on the basis of a procedural impropriety or otherwise contravenes the rules of natural justice.

(3) For the purposes of this regulation the “relevant court” is in the case of—

(a)an SE, or a company, whose registered office is in England or Wales, the High Court [F55in England and Wales]; F56...

(b)an SE, or a company, whose registered office is in Scotland, the Court of Session.

[F57(c)an SE, or a company, whose registered office is in Northern Ireland, the High Court in Northern Ireland.]

(4) An appeal may only be brought under this regulation with the permission of the court.

(5) The court determining an appeal may—

(a)dismiss the appeal; or

(b)quash the opposition, and where the court quashes an opposition it may refer the matter to the opposing competent authority or authorities with a direction to reconsider it and to make a determination in accordance with the findings of the court.

Textual Amendments

PART 6E+W+SPROVISIONS RELATING TO THE EFFECTIVE APPLICATION OF THE EC REGULATION

Competent authoritiesE+W+S

75.  The competent authorities designated under Article 68(2) are—

(a)in respect of Articles 8, 54, 55 and 64, the Secretary of State;

[F58(b)in respect of Article 25—

(i)the High Court in England and Wales, in relation to a public company whose registered office is in England and Wales,

(ii)the Court of Session, in relation to a public company whose registered office is in Scotland,

(iii)the High Court in Northern Ireland, in relation to a public company whose registered office is in Northern Ireland; and]

[F59(c)in respect of Article 26—

(i)the High Court in England and Wales, in relation to an SE where the registered office is proposed to be in England and Wales,

(ii)the Court of Session, in relation to an SE where the registered office is proposed to be in Scotland,

(iii)the High Court in Northern Ireland, in relation to an SE where the registered office is proposed to be in Northern Ireland.]

Textual Amendments

Enforcement of obligation to amend Statutes in conflict with Arrangements for Employee InvolvementE+W+S

76.—(1) If it appears to the Secretary of State that—

(a)the statutes of an SE are in conflict with the arrangements for employee involvement determined in accordance with [F60the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009 or, as the case may be, the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009]; and

(b)the statutes have not, to the necessary extent, been amended she may direct the SE to amend the statutes to that extent within such period as she may specify in the direction.

(2) A direction under this regulation is enforceable on the application of the Secretary of State—

(a)in respect of an SE with its registered office in England and Wales, to the High Court [F61in England and Wales] by injunction; F62...

(b)in respect of an SE with its registered office in Scotland, to the Court of Session by an order under section 45 of the Court of Session Act 1988.

[F63(c)in respect of an SE with its registered office in Northern Ireland, to the High Court in Northern Ireland by injunction.]

Textual Amendments

Records of an SE transferred under Article 8(11) or a public company ceasing to exist under Article 29(1) and (2)E+W+S

77.—(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 company ceases to exist under Article 29(1)(c) or (2)(c), the records of that SE or public company, as the case may be, kept by the registrar shall continue to be kept by 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 accompanying it, delivered to the Secretary of State under regulation 11, 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 13 and the provisions of these Regulations apply accordingly.

Application of enactments to members of supervisory, management and administrative organsE+W+S

78.—(1) This regulation applies to enactments relating to public companies to the extent that they are required, by the EC Regulation, in the manner described in paragraph 2, to be applied in relation to SEs.

(2) Enactments are required to be applied for the purposes of paragraph (1) where—

(a)any provision of the EC Regulation, other than Article 9, requires the application of any enactment relating to public companies to determine any question or matter; or

(b)in the case of any matter not regulated by the EC Regulation or, where matters are partly regulated by it, of those aspects not covered by it, Article 9 requires the application of any enactment relating to public companies.

(3) Subject to paragraphs (4), (5) and (6) references to “directors” or “board of directors” in any enactment to which this regulation applies shall have effect as if they were references—

(a)in a one-tier system, to the members of the administrative organ; and

(b)in a two-tier system, to the members of the supervisory and management organs.

(4) Any enactment so applied in relation to a two-tier system shall be applied separately in respect of the members of the supervisory organ and the members of the management organ in relation to the functions of the organ, and in respect of the acts and omissions of the members of those organs.

(5) Where, in a two-tier system, any function relates to the management of the SE and, by virtue of Articles 39(1) or 40(1), is a function that cannot be carried out by the supervisory organ, nothing in paragraph (3) has the effect of permitting or requiring the members of the supervisory organ to carry out any such functions.

(6) Where, by virtue of any provision in the EC Regulation or in the statutes, any transaction or function carried out by the management organ in a two-tier system requires the authorisation of the supervisory organ, nothing in paragraph (3) affects, or removes, the requirement for such authorisation.

[F64Register of members of supervisory organE+W+S

79.—(1) Every SE which has adopted the form of a two-tier system in its statutes must keep a register of the members of its supervisory organ (“the register of SO members”).

(2) The register must contain the required particulars (see regulations 80 and 80A) of each of the members of the supervisory organ.

(3) The register must be kept available for inspection—

(a)at the SE’s registered office, or

(b)at such place as may for the time being be specified in regulations under section 1136 of the 2006 Act in the case of a company and its register of directors under section 162 of that Act.

(4) The SE must give notice to the registrar—

(a)of the place at which the register is kept available for inspection, and

(b)of any change in that place,

unless the register has at all times been kept at the SE’s registered office.

(5) The register must be open to the inspection—

(a)of any shareholder of the SE without charge, and

(b)of any other person on payment of a fee of £3.50 for each hour or part of an hour during which the right of inspection is exercised.

(6) If—

(a)default is made in complying with paragraph (1), (2) or (3),

(b)default is made for 14 days in complying with paragraph (4), or

(c)an inspection required under paragraph (5) is refused,

an offence is committed by the SE and by every officer of the SE who is in default.

For this purpose a person who, by virtue of section 251 of the 2006 Act (shadow directors) as it applies in relation to an SE, is a shadow director of the SE is treated as an officer of the SE.

(7) A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(8) In the case of a refusal of inspection of the register, the court may by order compel an immediate inspection of it.

(9) For the meaning of “the court” in this regulation see section 1156 of the 2006 Act.

(10) Where an SE is required by this regulation to keep a register of SO members, the application of regulation 78 to that SE does not require particulars of members of the supervisory organ to be kept on any register under section 162 of the 2006 Act (register of directors).

Textual Amendments

Particulars of members to be registered under regulation 79: individualsE+W+S

80.—(1) An SE’s register of SO members must contain the following particulars in the case of any member of the supervisory organ who is an individual—

(a)name and any former name;

(b)a service address;

(c)the country or state (or part of the United Kingdom) in which the member is usually resident;

(d)nationality;

(e)business occupation (if any);

(f)date of birth.

(2) For the purposes of this regulation “name” means a person’s Christian name (or other forename) and surname, except that in the case of—

(a)a peer, or

(b)an individual usually known by a title,

the title may be stated instead of the person’s Christian name (or other forename) and surname or in addition to either or both of them.

(3) For the purposes of this regulation a “former name” means a name by which the individual was formerly known for business purposes.

Where a person is or was formerly known by more than one such name, each of them must be stated.

(4) It is not necessary for the register to contain particulars of a former name in the following cases—

(a)in the case of a peer or an individual normally known by a British title, where the name is one by which the person was known previous to the adoption of, or succession to, the title;

(b)in the case of any person, where the former name—

(i)was changed or disused before the person attained the age of 16 years, or

(ii)has been changed or disused for 20 years or more.

(5) A person’s service address may be stated to be “The SE’s registered office”.

(6) For the meaning of “service address” see section 1141 of the 2006 Act.

Textual Amendments

Particulars of members to be registered under regulation 79: corporate members and firmsE+W+S

80A.  An SE’s register of SO members must contain the following particulars in the case of a body corporate, or a firm that is a legal person under the law by which it is governed,—

(a)corporate or firm name;

(b)registered or principal office;

(c)in the case of an EEA company to which the First Company Law Directive (68/151/EEC) applies, particulars of—

(i)the register in which the company file mentioned in Article 3 of that Directive is kept (including details of the relevant state), and

(ii)the registration number in that register;

(d)in any other case, particulars of—

(i)the legal form of the company or firm and the law by which it is governed, and

(ii)if applicable, the register in which it is entered (including details of the state) and its registration number in that register.

Textual Amendments

Register of residential addresses of members of an SE’s supervisory organE+W+S

80B.—(1) Every SE which has adopted the form of a two-tier system in its statutes must keep a register of the residential addresses of the members of its supervisory organ (the “register of SO members’ residential addresses”).

(2) The register must state the usual residential address of each of those members.

(3) If a member’s usual residential address is the same as the member’s service address, as stated in the SE’s register of SO members, the register of SO members’ residential addresses need only contain an entry to that effect.

This does not apply if the member’s service address is stated to be “The SE’s registered office”.

(4) If default is made in complying with this regulation, an offence is committed by—

(a)the SE, and

(b)every officer of the SE who is in default.

For this purpose a person who, by virtue of section 251 of the 2006 Act (shadow directors) as it applies in relation to an SE, is a shadow director of the SE is treated as an officer of the SE.

(5) A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(6) This regulation applies only to members who are individuals, not where the member is a body corporate or a firm that is a legal person under the law by which it is governed.

(7) Where an SE is required by this regulation to keep a register of SO members’ residential addresses, the application of regulation 78 to that SE does not require particulars of members of the supervisory organ to be kept on any register under section 165 of the 2006 Act (register of directors’ usual residential addresses).

Textual Amendments

Duty to notify registrar of changesE+W+S

80C.—(1) An SE which has adopted the form of a two-tier system in its statutes must, within the period of 14 days from—

(a)a person becoming or ceasing to be a member of the supervisory organ of the SE, or

(b)the occurrence of any change in the particulars contained in its register of SO members or its register of SO members’ residential addresses,

give to the registrar notice of the change, and the date when it occurred, in whichever of the Forms SE AP01, SE AP02, SE TM01, SE CH01 or SE CH02 set out in Schedule 1 is appropriate.

(2) Notice of a person having become a member of the supervisory organ must—

(a)contain a statement of the particulars of the new member which are required to be included in the SE’s register of SO members and those which are required to be included in its register of SO members’ residential addresses,

(b)be accompanied by a consent by that person to act in that capacity.

(3) Where—

(a)an SE gives notice of a change of a member of its supervisory organ’s service address as stated in the SE’s register of SO members, and

(b)the notice is not accompanied by notice of any resulting change in the particulars contained in the SE’s register of SO members’ residential addresses,

the notice must be accompanied by a statement that no such change is required.

(4) If default is made in complying with this regulation, an offence is committed by—

(a)the SE, and

(b)every officer of the SE who is in default.

For this purpose a person who, by virtue of section 251 of the 2006 Act (shadow directors) as it applies in relation to an SE, is a shadow director of the SE is treated as an officer of the SE.

(5) A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Textual Amendments

Protected information: restriction on use or disclosure by SEE+W+S

80D.  In the application of section 241(1)(b) of the 2006 Act in relation to an SE, the reference to any requirement of the Companies Acts includes a reference to any requirement of regulation 80C.

Textual Amendments

Putting a member of the supervisory organ’s address on the public recordE+W+S

80E.—(1) In the application of section 246 of the 2006 Act (putting a director’s usual residential address on the public record) in relation to a member of the supervisory organ of an SE—

(a)the references in subsections (3)(a) and (4)(a) to the company’s register of directors are references to the SE’s register of SO members, and

(b)the reference in subsection (3)(b) to the company’s register of directors’ residential addresses is a reference to the SE’s register of SO members’ residential addresses.

(2) Paragraph (1) is without prejudice to the generality of regulation 78.]

Textual Amendments

The SE as a body corporateE+W+S

81.—(1) Where—

(a)any enactment is applied in the manner described in regulation 78(2); or

(b)any enactment applies to an SE otherwise than in the manner described in regulation 78(2)

and those enactments are expressed to apply to, or in respect of, a body corporate, an SE, [F65whether or not registered in the United Kingdom], shall be treated for the purposes of the application of those enactments as if it were a body corporate.

(2) Nothing in this regulation has the effect of constituting an SE as a body corporate [F66incorporated in, or formed under the law of, the United Kingdom (or any part of the United Kingdom)].

Textual Amendments

Notification of Amendments to Statutes and Insolvency Events (Articles 59(3) and 65)E+W+S

82.—(1) Where, under Articles 59(3) and 65, publication by the registrar in the Gazette of the events described in those Articles is required by regulation 71(1)—

(a)in the case of Article 59(3), the amendments to the statutes shall be delivered to the registrar by the SE accompanied by [F67Form SE AS01] in Schedule 1 within 14 days of the adoption of those amendments; and

(b)in the case of Article 65, notice of the relevant event set out in [F68Form SE WU01] in Schedule 1 shall be delivered to the registrar by the SE within 14 days of the occurrence of the event.

(2) If default is made in complying with paragraph (1)(a) or (b) the SE is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Textual Amendments

Accounting Reference Period and Financial Year of Transferring SEE+W+S

83.—(1) Where an SE transfers its registered office to [F69the United Kingdom] under Article 8—

(a)its first accounting reference period, for the purposes of [F70section 391 of [F71the 2006 Act]], is the period of twelve months beginning with its last balance sheet date before the registration of the transfer and the date on which that period ends is its accounting reference date for those purposes; and

(b)its first financial year for the purposes of [F72section 390 of [F71the 2006 Act]] begins with the first day of its first accounting reference period and ends with the last day of that period or such other date, not more than seven days before or after the end of that period as the SE may determine.

(2) For purposes of this regulation “the last balance sheet date” is the date as at which the balance sheet of the transferring SE was required to be drawn up under the provisions of the law of the Member State in which it had its registered office, where the balance sheet was the last one required to be drawn up before the registration of the transfer in [F73the United Kingdom].

(3) Where the transferring SE has not been required to draw up a balance sheet under the provisions of the law of the Member State where it had its registered office, or, if different, of the Member State where it was first registered, before the registration of the transfer in [F74the United Kingdom], its accounting reference date for the purposes of [F75section 391 of [F76the 2006 Act]] is the last day of the month in which the anniversary of its registration on formation falls and its first accounting reference period is the period beginning with its date of registration on formation and ending with its accounting reference date; and paragraph (1)(b) above applies in respect of its first financial year accordingly.

Textual Amendments

Penalties for Breach of Article 11 (use of SE in name)E+W+S

84.  Where:

(a)an SE fails to comply with Article 11(1); or

(b)any person fails to comply with Article 11(2)

the SE or that person is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

PART 7E+W+SPROVISIONS RELATING TO THE CONVERSION OF AN SE TO A PUBLIC COMPANY IN ACCORDANCE WITH ARTICLE 66 OF THE EC REGULATION

Registration of a public company by the conversion of an SEE+W+S

85.—[F77(1)] Where it is proposed to convert an SE to a public company in accordance with Article 66 there shall be delivered to the registrar a registration form in [F78Form SE CV01] set out in Schedule 1 together with the documents specified in that Form; F79...

[F80(2) In this Part the SE is referred to as the “converting SE”.]

Textual Amendments

Publication of draft terms of conversionE+W+S

86.  Where under Article 66(4) draft terms of conversion are required to be publicised there shall be delivered to the registrar a copy of such draft terms accompanied by [F81Form SE DT03] set out in Schedule 1 and the registrar shall cause to be published in the Gazette notice of the receipt by her of the copy of the draft terms.

Textual Amendments

[F82Registration under the 2006 Act]E+W+S

87.—[F83(1) On and after the day on which Form SE CV01 is delivered to the registrar section 14 of the 2006 Act (registration) shall apply in relation to the documents delivered with Form SE CV01 as if—

(a)they have been delivered under section 9 of that Act (registration), and

(b)the requirements of that Act in respect of registration had been complied with.]

F84(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) On registration of [F85the documents referred to in paragraph (1)] the registrar shall give a certificate—

(a)that the converting SE is incorporated and retains the legal personality it had when an SE;

[F86(b)that those documents are registered under the 2006 Act; and]

(c)that it is a public company limited by shares.

(4) The certificate is conclusive evidence—

(a)that the requirements of [F87the 2006 Act] in respect of registration F88... have been complied with, and

(b)that on and after the registration the converting SE is a public company limited by shares.

Textual Amendments

Effect of registrationE+W+S

88.—(1) In its application to a converting SE on or after registration [F89the Companies Acts] shall have effect with the modifications set out in [F90paragraphs 2 to 9] of Schedule 4 to these Regulations.

(2) On and after registration a converting SE shall be known by the name contained in [F91the certificate given under regulation 87(3)] (subject to [F92any change of name by the converting SE]).

(3) The persons named in [F93Form SE CV01] shall be deemed to have been appointed as the first directors or secretaries of a converting SE on registration.

Textual Amendments

Records of a converting SEE+W+S

89.  The records of a converting SE, when the converting SE has been registered as a public company limited by shares under the provisions of this Part, relating to any period before its registration as a public company shall be treated for the purposes of [F94the Companies Acts] as if they were records of that public company.

Textual Amendments

Gerry Sutcliffe,

Parliamentary Under Secretary of State for Employment Relations, Competition and Consumers,

Department of Trade and Industry

[F95SCHEDULE 1E+W+SForms relating to SEs

Textual Amendments

 ]

Regulation 13(1B)

[F96SCHEDULE 1AE+W+SModifications of provisions of the 2006 Act applying in relation to documents sent to the registrar etc

Textual Amendments

1.  Section 1081 (annotation of the register), as if after subsection (1) there were inserted—E+W+S

“(1A) Where it appears to the registrar that material on the register is misleading or confusing, the registrar may place a note in the register containing such information as appears to the registrar to be necessary to remedy, as far as possible, the misleading or confusing nature of the material.”

2.  Section 1085 (inspection of the register), as if in subsection (2) the second sentence were omitted.E+W+S

3.  Section 1093 (registrar’s notice to resolve inconsistency on the register), as if—E+W+S

(a)any reference to a company were a reference to an SE, and

(b)the reference in subsection (3)(b) to an officer of a company were a reference—

(i)in a one-tier system, to a member of the administrative organ of an SE, and

(ii)in a two-tier system, to a member of the supervisory or management organ of an SE.

4.  Section 1094 (administrative removal of material from the register), as if—E+W+S

(a)for paragraph (a) of subsection (3) there were substituted—

“(a)anything whose registration has had legal consequences in relation to the SE as regards its registration;”, and

(b)any reference in subsection (4) to a company were a reference to an SE.

5.  Section 1095 (rectification of register on application to registrar), as if any reference to a company were a reference to an SE.E+W+S

6.  Sections 1096(1) to (5) and 1097 (rectification of register under court order), as if any reference to a company were a reference to an SE.]E+W+S

Regulation 14

SCHEDULE 2E+W+S[F97Provisions of the 2006 Act applying to the registration of SEs]

Textual Amendments

[F971.  Section 1066(1) to (5) (registered numbers), as if any reference to a company were a reference to an SE.E+W+S

2.  Section 1082 (allocation of unique identifiers), as if—E+W+S

(a)the reference in subsection (1)(a) to a director of a company were a reference—

(i)in a one-tier system, to a member of the administrative organ of an SE, and

(ii)in a two-tier system, to a member of the supervisory or management organ of an SE,

and

(b)paragraphs (b) and (c) of subsection (1) were omitted.

3.  Section 1084 (records relating to companies that have been dissolved etc), as if—E+W+S

(a)any reference to a company being dissolved were a reference to an SE being dissolved,

(b)the reference in subsection (2) to records relating to a company included a reference to—

(i)the documents required to be retained by the registrar under regulation 13(1), and

(ii)records of the information contained in those documents,

and

(c)subsection (4) were omitted.

4.  Section 1113 (enforcement of company’s filing obligations), as if—E+W+S

(a)any reference to a company were a reference to an SE,

(b)any reference to an obligation under the Companies Acts were a reference to an obligation under these Regulations,

(c)any reference to a member of a company were a reference to a shareholder of an SE, and

(d)any reference to an officer of a company were a reference—

(i)in a one-tier system, to a member of the administrative organ of an SE, and

(ii)in a two-tier system, to a member of the supervisory or management organ of an SE.

5.  Section 1117 (registrar’s rules), so far as relating to section 1066(2).]E+W+S

Regulation 32

F98SCHEDULE 3E+W+SSTANDARD RULES ON EMPLOYEE INVOLVEMENT

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Regulations 85 and 88

SCHEDULE 4E+W+S[F99Modifications of the Companies Acts etc]

Textual Amendments

F1001.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Textual Amendments

Modifications applying on or after registrationE+W+S

2.  A reference to a company’s incorporation shall be construed as a reference to the registration of [F101the documents delivered with Form SE CV01 under regulation 85].E+W+S

Textual Amendments

3.  A reference to documents delivered under [F102the 2006 Act] shall be taken to include a reference to documents delivered under regulation 85.E+W+S

Textual Amendments

4.—(1) A reference to a company’s certificate of incorporation shall be construed as a reference to the certificate given under regulation 87(3).E+W+S

(2) A requirement for the registrar of companies to issue a certificate of incorporation to a company shall—

(a)be construed as a requirement to issue a certificate of registration similar to the certificate under regulation 87(3), and

(b)apply with such other modifications as the registrar considers necessary in consequence of paragraph (a).

[F1035.  The converting SE is treated as if it had been formed (as well as registered) under the 2006 Act.]E+W+S

Textual Amendments

Effect of registrationE+W+S

6.  [F104Section 16 of the 2006 Act] (effect of registration) shall not apply.

Textual Amendments

7.  [F105Section 112(1) of the 2006 Act] (definition of “member”) shall not apply.

Textual Amendments

F1068.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Textual Amendments

Certificate as to share capitalE+W+S

9.  The following provisions shall not apply—

(a)[F107section 761 of [F108the 2006 Act]] (public company share capital requirements), F109...

(b)section 122(1)(b) of the Insolvency Act 1986 (winding up by the court: lack of certificate under [F107section 761 of [F108the 2006 Act).

[F110(c)Article 102(1)(b) of the Insolvency (Northern Ireland) Order 1989 (which corresponds to section 122(1)(b) of the Insolvency Act 1986).]

Textual Amendments

F11110.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Accounting Reference DateE+W+S

11.  No modification made under this Schedule shall affect the determination of the accounting reference date of a converting SE by the application of [F112section 391(4) of [F113the 2006 Act]], by virtue of Article 61 of the EC Regulation, or of regulation 83 prior to the registration of the converting SE under regulation 87.]]

Textual Amendments

Explanatory Note

(This note is not part of the Regulations)

These Regulations implement Council Directive 2001/86/EC supplementing the Statute for a European Company with regard to the involvement of employees (“the Directive”) and also make provision for the parts of Council Regulation 2157/2001 on the Statute for a European Company (“the Regulation”) which permit or oblige the Member States to make certain provisions in their national law including provision for the effective application of the Regulation.

The Regulation provides for the creation of a new form of public limited-liability company, the Societas Europaea, known as the “SE”. This type of company can be formed in a number of ways set out in the Regulation. It will be governed by the Regulation and, in respect of matters where the Regulation so provides, by the law applying to public limited-liability companies of the Member State in which it is, or is proposed to be, registered. The Regulation, although directly applicable in the territory of the Community, obliges Member States to make arrangements in relation to SEs which register in their territory. The Regulations therefore:

1

make provision as to the registration and transfer of SEs and the registration authority (Part 2);

2

contain provisions required by the Regulation that Member States enact particular measures (Part 5);

3

contain provisions needed to achieve the effective application of the Regulation (Part 6); and

4

provide for an SE to convert to a public company (Part 7).

The Regulation also gives Member States the discretion as to whether to implement options set out in the Regulation and which is exercised in Part 4 of the Regulations.

Part 3 of the Regulations implements the Directive and sets out the provisions relating to employee involvement in the SE. The principal provisions are:

1

the establishment of a special negotiating body (Chapter 2);

2

election or appointment of UK members of the special negotiating body (Chapter 3);

3

negotiation of an employee involvement agreement (Chapter 4);

4

standard rules on employee involvement (Chapter 5);

5

compliance and enforcement (Chapter 6);

6

treatment of confidential information (Chapter 7); and

7

employee protection (Chapter 8).

A full Regulatory Impact Assessment of the effect that this instrument will have on the costs of business has been prepared and placed in the library of both Houses of Parliament. This document can be obtained from the Department of Trade and Industry, Corporate Law and Governance Directorate, 1 Victoria Street, London SW1H 0ET and can be downloaded from http://www.dti.gov.uk/cld/condocs.htm. Transposition notes setting out how these Regulations implement the Directive have been placed in the libraries of both Houses of Parliament and are also available from the above address.