The European Public Limited-Liability Company (Register of People with Significant Control) Regulations 2016

Statutory Instruments

2016 No. 375

Companies

The European Public Limited-Liability Company (Register of People with Significant Control) Regulations 2016

Made

15th March 2016

Laid before Parliament

16th March 2016

Coming into force in accordance with regulation 1(2)

The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972(1) in relation to the creation, operation, regulation or dissolution of companies and other forms of business organisation(2).

The Secretary of States makes the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972.

PART 1 GENERAL INTRODUCTORY PROVISIONS

Citation and commencement

1.—(1) These Regulations may be cited as the European Public Limited-Liability Company (Register of People with Significant Control) Regulations 2016.

(2) These Regulations come into force on 6th April 2016 other than Parts 2 and 3 which come into force on 30th June 2016.

Interpretation

2.  In these Regulations—

“the Act” means the Companies Act 2006(3);

“the SE Regulations” means the European Public Limited-Liability Company Regulations 2004(4);

“the 2016 Regulations” means the Register of People with Significant Control Regulations 2016(5); and

“SE” means a European Public Limited-Liability Company (or Societas Europaea) within the meaning of the Council Regulation 2157/2001/EC of 8 October 2001 on the Statute for a European Company which is to be, or is, registered in the United Kingdom.

PART 2 AMENDMENTS TO THE SE REGULATIONS

3.—(1) The SE Regulations are amended as follows.

(2) In regulation 5(3)—

(a) in sub-paragraph (c), omit “and”; and

(b) in sub-paragraph (d), for “(see regulation 10C).” substitute—

“(see regulation 10C); and

(e) a statement of initial significant control (see section 12A of the 2006 Act).”

(3) In regulation 6(3)—

(a) in sub-paragraph (c), omit “and”; and

(b) in sub-paragraph (d)(ii), for “proposed SE.” substitute—

• “proposed SE; and

(e) a statement of initial significant control (see section 12A of the 2006 Act).”

(4) In regulation 7(3)—

(a) in sub-paragraph (c), omit “and”; and

(b) in sub-paragraph (d)(ii), for “subsidiary SE.” substitute—

• “subsidiary SE; and

(e) a statement of initial significant control (see section 12A of the 2006 Act).”

(5) In regulation 8(3)—

(a) in sub-paragraph (c), omit “and”; and

(b) in sub-paragraph (d)(ii), for “company.” substitute—

• “company; and

(e) a statement of initial significant control (see section 12A of the 2006 Act).”

(6) In regulation 9(3)—

(a) in sub-paragraph (c), omit “and”; and

(b) in sub-paragraph (d)(ii), for “subsidiary SE.” substitute—

• “subsidiary SE; and

(e) a statement of initial significant control (see section 12A of the 2006 Act).”

(7) In regulation 10(3)—

(a) in sub-paragraph (a), omit “and”; and

(b) in sub-paragraph (b), for “(see regulation 10B).” substitute—

“(see regulation 10B); and

(c) a statement of initial significant control (see section 12A of the 2006 Act).”

(8) After regulation 80D insert—

“Information within section 790ZF(2): restriction on use or disclosure by an SE

80DA.   In the application to an SE of section 241(1)(b) of the 2006 Act as applied by section 790ZF of that Act, the reference to any requirement of the Companies Acts includes a reference to any requirement in regulations 5 to 10 and 85.”

(9) In regulation 85(2)—

(a) in sub-paragraph (c), in the second place where it appears, omit “and”; and

(b) in sub-paragraph (d), for “Northern Ireland.” substitute—

“Northern Ireland; and

(e) a statement of initial significant control (see section 12A of the 2006 Act).”

PART 3 MODIFICATION OF THE ACT IN ITS APPLICATION TO SEs

4.  Section 12A of the Act is modified in its application to SEs so that the references to “incorporation” are read as “registration”.

5.  Section 790M(9)(c) of the Act is modified in its application to SEs so that it reads as follows—

“(c) they were included in a statement of initial significant control delivered to the registrar under regulations 5 to 10 or 85 of the European Public Limited-Liability Company Regulations 2004.”

6.  Section 790M(10) of the Act is modified in its application to SEs so that references to “incorporation” are read as “registration”.

PART 4 MODIFICATION OF THE 2016 REGULATIONS IN THEIR APPLICATION TO SEs

7.  Regulation 27 of the 2016 Regulations is modified in its application to SEs so that it reads as follows—

“Application by a signatory to a statement of proposed members requiring the registrar to refrain from disclosing an individual’s usual residential address information to a credit reference agency

27.— (1) Where it is proposed to register an SE in the United Kingdom under regulations 5 to 10 of the European Public Limited-Liability Company Regulations 2004, a signatory to the statement of proposed members (“the applicant”) may make an application requiring the registrar to refrain from disclosing to a credit reference agency information within section 790ZF(2) of the Act relating to an individual (“R”) who proposes to become, on or after the registration of the SE to which the statement relates, a registrable person in relation to the SE.

(2) A signatory to a statement of proposed members may only make an application under paragraph (1) where R has given consent for the signatory to make the application on R’s behalf.

(3) The grounds on which an application may be made are that—

(a) the applicant reasonably believes that there is a serious risk that R, or a person who lives with R, will be subjected to violence or intimidation as a result of the proposed activities of the SE to which the statement of proposed members relates; or

(b) a section 243 decision has been made in respect of R which has not ceased to have effect under regulation 15 of the 2009 Regulations.

(4) Where the grounds of the application are those described in paragraph (3)(b), the application must only relate to one individual who proposes to become a registrable person in relation to the proposed SE.

(5) The application must contain—

(a) a statement of the grounds on which the application is made;

(b) confirmation that R consents to the making of the application;

(c) the name and any former name of the applicant;

(d) the usual residential address of the applicant;

(e) the e-mail address of the applicant, if any;

(f) the name of the proposed SE to which the statement of proposed members relates;

(g) the name and any former name of R;

(h) the date of birth of R;

(i) the usual residential address of R;

(j) the e-mail address of R, if any;

(k) where R is a registrable person in relation to another company, the name and registered number of that company; and

(l) where the grounds of the application are those described in paragraph (3)(b), the name and registered number of the company in relation to which the section 243 decision was made, unless the section 243 decision relates to a proposed company which was never incorporated.

(6) Where the grounds of the application are those described in (3)(a), the application must be accompanied by evidence which supports the applicant’s statement of the grounds on which the application is made.

(7) The registrar must determine the application and, within 7 days beginning with the date that the determination is made, send to the applicant and to R notice of the determination.

(8) Where the application is unsuccessful, the notice under paragraph (7) must inform the applicant of the applicant’s right to apply for permission to appeal against the determination within 28 days beginning with the date of the notice.”

8.  Regulation 38 of the 2016 Regulations is modified in its application to SEs so that it reads as follows—

“Application by a signatory to a statement of proposed members requiring the registrar to refrain from using or disclosing an individual’s secured information

38.— (1) Where it is proposed to register an SE in the United Kingdom under regulations 5 to 10 of the European Public Limited-Liability Company Regulations 2004, a signatory to the statement of proposed members may make an application to the registrar requiring the registrar to refrain from using or disclosing secured information relating to an individual (“S”) who proposes to become, on or after the registration of the SE to which the statement of proposed members relates, a registrable person in relation to the SE.

(2) A signatory to a statement of proposed members may only make an application under paragraph (1) where S has given consent for the signatory to make the application on S’s behalf.

(3) The grounds on which an application may be made are that the applicant reasonably believes that if the secured information is disclosed by the registrar—

(a) the proposed activities of the SE to which the statement of proposed members relates; or

(b) one or more characteristics or personal attributes of S when associated with the SE to which the statement of proposed members relates,

will put S or a person living with S at serious risk of being subjected to violence or intimidation.

(4) The application must—

(a) contain—

(i) a statement of the grounds on which the application is made;

(ii) confirmation that S consents to the making of the application;

(iii) the name and any former name of the applicant;

(iv) the usual residential address of the applicant;

(v) the e-mail address of the applicant, if any;

(vi) the name of the SE to which the statement of proposed members relates;

(vii) the name and any former name of S;

(viii) the date of birth of S;

(ix) the usual residential address of S; and

(x) the e-mail address of S, if any; and

(b) be accompanied by evidence which supports the applicant’s statement of the grounds on which the application is made.

(5) The registrar must determine the application and, within 7 days beginning with the date that the determination is made, send to the applicant and to S notice of the determination.

(6) Where the application is unsuccessful, the notice under paragraph (5) must inform the applicant of the applicant’s right to apply for permission to appeal against the determination within 28 days beginning with the date of the notice.”

9.—(1) Regulation 45 is modified in its application to SEs as follows.

(2) For paragraph (2)(b) substitute—

“(b) in order to comply with any requirement of the Act or the European Public Limited-Liability Company Regulations 2004 as to particulars or statements to be sent to the registrar; or”

(3) For paragraph (3)(d) substitute—

“(d) under regulation 38 when the signatory to the statement of proposed members sends an application to the registrar.”

PART 5

Review

10.—(1) The Secretary of State must from time to time—

(a) carry out a review of these Regulations;

(b) set out the conclusions of the review in a report; and

(c) publish the report.

(2) The report must in particular—

(a) set out the objectives intended to be achieved by the regulatory system established by these Regulations;

(b) assess the extent to which those objectives have been achieved; and

(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved in another way that imposed less regulation.

(3) The first report under this regulation must be published within the period in which the Secretary of State is required to publish a report under section 82 of the Small Business, Enterprise and Employment Act 2015(6).

(4) Reports under this regulation are afterwards to be published at intervals not exceeding five years.

Neville-Rolfe

Parliamentary Under Secretary of State for Business, Innovation and Skills

Department for Business, Innovation and Skills

15th March 2016

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision in relation to European public limited- liability companies (or “Societas Europaea” (“SEs”)) and modify aspects of the people with significant control (“PSC”) regime in its application to SEs. The PSC regime applies to SEs to the extent that it applies to public limited-liability companies. The PSC regime can be found in Part 21A of and Schedules 1A and 1B to the Companies Act 2006 and the Register of People with Significant Control Regulations 2016.

Part 2 amends the European Public Limited-Liability Company Regulations 2004 (“the SE regulations”) which implement Council Regulation 2157/2001/EC and make provision for the creation and registration of an SE in the United Kingdom. Regulation 3 amends the SE regulations so that those persons seeking to register an SE with the registrar of companies will be required to submit a statement of initial significant control alongside other documentation required to form an SE.

Part 3 modifies sections 12A and 790M of the Companies Act 2006 in their application to SEs. Section 12A is modified so that references to ‘incorporation’ are to be read in their application to SEs as ‘registration’. This allows for methods of formation of an SE which do not result in the incorporation of a new company but rather a change from one type of company to another. All methods of formation require registration of an SE with the registrar and therefore this modification enables sections 12A and 790M to be read consistently in their application to SEs.

Part 4 modifies regulations 27 and 38 of the Register of People with Significant Control Regulations 2016 so that in their application to SEs references to subscribers to a memorandum of association are to be read as references to a signatory to the statement of proposed members. The effect is that on formation of an SE, a signatory to a statement of proposed members can make an application to the registrar for the registrar to refrain from disclosing either information within section 790ZF(2) of the Companies Act 2006 or secured information.

Part 5 of these Regulations (regulation 10) also requires the Secretary of State to review the operation and effect of these Regulations and publish a report within the period that the Secretary of State is obliged to review and report on Part 21A of the Companies Act 2006 by section 82 of the Small Business, Enterprise and Employment Act 2015. These Regulations must then be reviewed within every five years after that.

A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.

(1)

1972 c.68. Section 2(2) was amended by section 27(1) of the Legislative and Regulatory Reform Act 2006 (c.51) and by section 3 of and Part 1 of the Schedule to, the European Union (Amendment) Act 2008 (c.7).

(2)

S.I. 2007/193.

(3)

2006 c.46.

(4)

S.I. 2004/2326; relevant amending instruments are S.I. 2015/1695; 2014/2382 and 2009/2300.

(5)

S.I. 2016/339.

(6)

2015 c.26.