Legal provisions of COM(2008)396 - Statute for a European private company

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dossier COM(2008)396 - Statute for a European private company.
document COM(2008)396 EN
date June 25, 2008

Contents

Chapter I - General provisions

Article 1 - Subject matter

This Regulation lays down the conditions governing the establishment and operation within the Community of companies in the form of a European private company with limited liability (Societas Privata Europaea, hereinafter 'SPE').

Article 2 - Definitions

1. For the purposes of this Regulation, the following definitions shall apply:

(a) shareholder means the founding shareholder and any other person whose name is entered in the list of shareholders in accordance with Articles 15-16;

(b) distribution means any financial benefit derived directly or indirectly from the SPE by a shareholder, in relation to the shares held by him, including any transfer of money or property, as well as the incurring of a debt;

(c) director means any individual managing director, any member of the management, administrative board or supervisory body of an SPE;

(d) management body means one or more individual managing directors, the management board (dual board) or the administrative board (unitary board), designated in the articles of association of the SPE as being responsible for the management of the SPE;

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

(f) home Member State means the Member State in which the SPE has its registered office immediately before any transfer of its registered office to another Member State;

(g) host Member State means the Member State to which the registered office of the SPE is transferred.

2. For the purposes of point (b) of paragraph 1, distributions may be made through a purchase of property, the redemption or other kind of acquisition of shares or by any other means.

Article 3 - Requirements for the establishment of an SPE

1. An SPE shall comply with the following requirements:

(a) its capital shall be divided into shares,

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

(c) it shall have legal personality,

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

(e) it may be formed by one or more natural persons and/or legal entities, hereinafter 'founding shareholders'.

2. For the purposes of point (d) of paragraph 1, shares shall be regarded as offered to the public where a communication is addressed to persons in any form and by any means, and it presents sufficient information on the terms of the offer and the shares to be offered so as to enable an investor to decide to purchase or subscribe to these shares, including when shares are placed through financial intermediaries.

3. For the purposes of point (e) of paragraph 1, legal entities shall mean any company or firm within the meaning of the second paragraph of Article 48 of the Treaty, a European public limited-liability company as provided for in Regulation (EC) No 2001/2157, hereinafter 'European Company', a European Co-operative Society as provided for in Council Regulation (EC) No 1435/2003, a European Economic Interest Grouping as provided for in Council Regulation (EEC) No 2137/85 and an SPE.

Article 4 - Rules applicable to an SPE

1. An SPE shall be governed by this Regulation and also, as regards the matters listed in Annex I, by its articles of association.

However, where a matter is not covered by the articles of this Regulation or by Annex I, an SPE shall be governed by the law, including the provisions implementing Community law, which applies to private limited-liability companies in the Member State in which the SPE has its registered office, hereinafter 'applicable national law'.

Chapter II - Formation

Article 5 - Method of formation

1. Member States shall allow the formation of an SPE by any of the following methods:

(a) the creation of a SPE in accordance with this Regulation;

(b) the transformation of an existing company;

(c) the merger of existing companies;

(d) the division of an existing company.

2. Formation of the SPE by the transformation, merger or division of existing companies shall be governed by the national law applicable to the transforming company, to each of the merging companies or to the dividing company. Formation by transformation shall not give rise to the winding up of the company or any loss or interruption of its legal personality.

3. For the purposes of paragraphs 1 and 2, company shall mean any form of company that may be set up under the law of the Member States, a European Company and, where applicable, an SPE.

Article 6 - Name of the company

The name of an SPE shall be followed by the abbreviation 'SPE'.

Only an SPE may add the abbreviation 'SPE' to its name.

Article 7 - Seat of the company

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

An SPE shall not be under any obligation to have its central administration or principal place of business in the Member State in which it has its registered office.

Article 8 - Articles of association

1. An SPE shall have articles of association that cover at least the matters set out in this Regulation, as provided for in Annex I.

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

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

(a) in relation to the shareholders and the management body of the SPE and its supervisory body, if any, from the date on which they are signed or, in the case of amendments, adopted;

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

Article 9 - Registration

1. Each SPE shall be registered in the Member State in which it has its registered office in a register designated by the applicable national law in accordance with Article 3 of Directive 68/151/EEC .

2. The SPE shall acquire legal personality on the date on which it is entered in the register.

3. In the case of a merger by acquisition, the acquiring company shall adopt the form of an SPE on the day the merger is registered.

In the case of a division by acquisition, the recipient company shall adopt the form of an SPE on the day the division is registered.

Article 10 - Formalities relating to registration

1. Application for registration shall be made by the founding shareholders of the SPE or by any person authorised by them. Such application may be made by electronic means.

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

(a) the name of the SPE and the address of its registered office;

(b) the names, addresses and any other information necessary to identify the persons who are authorised to represent the SPE in dealings with third parties and in legal proceedings, or take part in the administration, supervision or control of the SPE;

(c) the share capital of the SPE;

(d) the share classes and the number of shares in each share class;

(e) the total number of shares;

(f) the nominal value or accountable par of the shares;

(g) the articles of association of the SPE;

(h) where the SPE was formed as a result of a transformation, merger or division of companies, the resolution on the transformation, merger or division that led to the creation of the SPE.

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

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

(a) a control by an administrative or judicial body of the legality of the documents and particulars of the SPE;

(b) the certification of the documents and particulars of the SPE.

5. The SPE shall submit any change in the particulars or documents referred to in points (a) to (g) of paragraph 2 to the register within 14 calendar days of the day on which the change takes place. After every amendment to the articles of association, the SPE shall submit its complete text to the register as amended to date.

6. The registration of an SPE shall be disclosed.

Article 11 - Disclosure

1. The disclosure of the documents and particulars concerning an SPE which must be disclosed under this Regulation shall be effected in accordance with the applicable national law implementing Article 3 of Directive 68/151/EEC.

2. The letters and order forms of an SPE, whether they are in paper or electronic form, as well as its website, if any, shall state the following particulars:

(a) the information necessary to identify the register referred to in Article 9, with the number of entry of the SPE in that register;

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

Article 12 - Liability for acts undertaken before the registration of an SPE

Where acts were performed on behalf of an SPE before its registration, the SPE may assume the obligations arising out of such acts after its registration. Where the SPE does not assume those obligations, the persons who performed those acts shall be jointly and severally liable, without limit.

Article 13 - Branches

Branches of an SPE shall be governed by the law of the Member State in which the branch is located, including the relevant provisions implementing Council Directive 89/666/EEC .

Chapter III - Shares

Article 14 - Shares

1. The shares of the SPE shall be entered in the list of shareholders.

2. Shares carrying the same rights and obligations shall constitute one class.

3. Subject to Article 27, the adoption of an amendment to the articles of association of the SPE which varies the rights attached to a class of shares (including any change to the procedure for varying the rights attached to a class of share) shall require the consent of a majority of not less than two-thirds of the voting rights attached to the shares issued in that class.

4. Where a share is owned by more than one person, those persons shall be regarded as one shareholder in relation to the SPE. They shall exercise their rights through a common representative, who in the absence of any notification to the SPE shall be the person whose name appears first in the list of shareholders for that share. They shall be jointly and severally liable for the commitments attached to the share.

Article 15 - List of shareholders

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

(a) the name and address of each shareholder;

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

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

(d) the date of acquisition of the shares;

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

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

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

2. The list of shareholders shall, unless proven otherwise, constitute evidence of the authenticity of the matters listed in points (a) to (g) of paragraph 1.

3. The list of shareholders and any amendments thereto shall be kept by the management body and may be inspected by the shareholders or third parties on request.

Article 16 - Transfer of shares

1. Subject to Article 27, a decision introducing or amending a restriction on or prohibition of the transfer of shares may be adopted only with the consent of all shareholders affected by the restriction or prohibition in question.

2. All agreements on the transfer of shares shall be in written form.

3. On notification of a transfer, the management body shall, without undue delay, enter the shareholder in the list referred to in Article 15, provided that the transfer has been executed in accordance with this Regulation and the articles of association of the SPE and the shareholder submits reasonable evidence as to his lawful ownership of the share.

4. Subject to paragraph 3, any transfer of shares shall become effective as follows:

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

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

5. A transfer of shares shall be valid only if it complies with this Regulation and the articles of association. The provisions of the applicable national law concerning the protection of persons who acquire shares in good faith shall apply.

Article 17 - Expulsion of a shareholder

1. On the basis of a resolution of the shareholders and on an application by the SPE, the competent court may order the expulsion of a shareholder if he has caused serious harm to the SPE's interest or the continuation of the shareholder as a member of the SPE is detrimental to its proper operation. An application to the court shall be made within 60 calendar days of the resolution of the shareholders.

2. The court shall decide whether, as an interim measure, the voting and other non-pecuniary rights of such shareholder should be suspended until a final decision is taken.

3. If the court orders the expulsion of a shareholder, it shall decide whether his shares are to be acquired by the other shareholders and/or by the SPE itself and on payment of the price of the shares.

Article 18 - Withdrawal of a shareholder

1. A shareholder shall have the right to withdraw from the SPE if the activities of the SPE are being or have been conducted in a manner which causes serious harm to the interests of the shareholder as a result of one or more of the following events:

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

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

(c) the activities of the SPE have changed substantially;

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

2. The shareholder shall submit his withdrawal in writing to the SPE stating his reasons for the withdrawal.

3. The management body of the SPE shall, on receipt of the notice referred to in paragraph 2, without undue delay, request a resolution of the shareholders on the purchase of the shareholder's shares by the other shareholders or by the SPE itself.

4. Where the shareholders of the SPE fail to adopt a resolution referred to in paragraph 3 or do not accept the shareholder's reasons for withdrawal within 30 calendar days of the submission of the notice referred to in paragraph 2, the management body shall notify the shareholder of that fact without undue delay.

5. In the case of a dispute regarding the price of the shares, their value shall be determined by an independent expert appointed by the parties or, failing an agreement between them, by the competent court or administrative authority.

6. On an application of the shareholder, the competent court may, if satisfied that the interests of the shareholder have suffered serious harm, order the acquisition of his shares by the other shareholders or by the SPE itself and the payment of the price of the shares.

An application to the court shall be made either within 60 calendar days of the resolution of the shareholders referred to in paragraph 3 or, where no resolution is adopted within 30 calendar days of the shareholder submitting his notice of withdrawal to the SPE, within 60 calendar days of the expiry of that period.

Chapter IV - Capital

Article 19 - Share capital

1. Without prejudice to Article 42, the capital of the SPE shall be expressed in euro.

2. The capital of the SPE shall be fully subscribed.

3. The shares of the SPE do not need to be fully paid on issue.

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

Article 20 - Consideration for shares

1. Shareholders must pay the agreed consideration in cash or provide the agreed consideration in kind in accordance with the articles of association of the SPE.

2. Except in the case of a reduction of the share capital, shareholders may not be released from the obligation to pay or provide the agreed consideration.

3. Without prejudice to paragraphs 1 and 2, the liability of shareholders for the consideration paid or provided shall be governed by the applicable national law.

Article 21 - Distributions

1. Without prejudice to Article 24, the SPE may, on the basis of a proposal of the management body, make a distribution to shareholders provided that, after the distribution, the assets of the SPE fully cover its liabilities. The SPE may not distribute those reserves that may not be distributed under its articles of association.

2. If the articles of association so require, the management body of the SPE, in addition to complying with paragraph 1, shall sign a statement, hereinafter a solvency certificate, before a distribution is made, certifying that the SPE will be able to pay its debts as they become due in the normal course of business within one year of the date of the distribution. Shareholders shall be provided with the solvency certificate before the resolution on the distribution referred to in Article 27 is taken.

The solvency certificate shall be disclosed.

Article 22 - Recovery of distributions

Any shareholder who has received distributions made contrary to Article 21 must return those distributions to the SPE, provided that the SPE proves that the shareholder knew or in view of the circumstances should have been aware of the irregularities.

Article 23 - Own shares

1. The SPE shall not, directly or indirectly, subscribe for its own shares.

2. In the case of acquisition by the SPE of its own shares, Articles 21 and 22 shall apply mutatis mutandis. Shares may not be purchased by the SPE unless they are fully paid. The SPE shall always have at least one issued share.

3. The right to vote and other non-pecuniary rights attached to the SPE's own shares shall be suspended, while the SPE is the registered owner of its own shares.

4. Where the SPE cancels its own shares, its share capital shall be reduced accordingly.

5. Shares acquired by the SPE in contravention of this Regulation or the articles of association shall be sold or cancelled within one year of their acquisition.

6. Subject to paragraph 5 and to the articles of association of the SPE, the cancellation of shares shall be governed by the applicable national law.

7. This Article shall apply mutatis mutandis to any shares acquired by a person acting in his own name but on behalf of the SPE.

Article 24 - Capital reduction

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

2. Following the disclosure of the resolution of the shareholders to reduce the capital of the SPE, those creditors whose claims antedate the disclosure of the resolution shall have the right to apply to the competent court for an order that the SPE provide them with adequate safeguards.

An application shall be made within 30 calendar days of the disclosure of the resolution.

3. The court may order the SPE to provide safeguards only if the creditor credibly demonstrates that due to the reduction in the capital the satisfaction of his claims is at stake, and that no adequate safeguards have been obtained from the SPE.


4. A capital reduction shall take effect as follows:

(a) where the SPE has no creditors at the time when the resolution is adopted, on its adoption;

(b) where the SPE has creditors at the time when the resolution is adopted and no creditor has made an application within 30 calendar days of the disclosure of the resolution of the shareholders, on the thirty-first calendar day following that disclosure;

(c) where the SPE has creditors at the time when the resolution is adopted and an application is made by a creditor within 30 calendar days of the disclosure of the resolution of shareholders, on the first date on which the SPE has complied with all orders by the competent court to provide adequate safeguards or, if earlier, the first date on which the court has determined, in relation to all applications that the SPE need not provide any safeguards.

5. If the purpose of a reduction of the capital is to offset losses incurred by the SPE, the reduced amount may be used only for this purpose and shall not be distributed to the shareholders.

6. A capital reduction shall be disclosed.

7. In the case of a capital reduction, the equal treatment of shareholders in the same position shall be ensured.

Article 25 - Accounts

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

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

Chapter V - Organisation of the SPE

Article 26 - General provisions

1. The SPE shall have a management body, which shall be responsible for the management of the SPE. The management body may exercise all the powers of the SPE not required by this Regulation or the articles of association to be exercised by the shareholders.

2. The shareholders shall determine the organisation of the SPE, subject to this Regulation.

Article 27 - Resolutions of shareholders

1. Without prejudice to paragraph 2, at least the following matters shall be decided by a resolution of the shareholders by a majority as defined in the articles of association of the SPE:

(a) variation of rights attaching to shares;

(b) expulsion of a shareholder;

(c) withdrawal of a shareholder;

(d) approval of the annual accounts;

(e) distribution to the shareholders;

(f) acquisition of own shares;

(g) redemption of shares;

(h) increase of share capital;

(i) reduction of share capital;

(j) appointment and removal of directors and their terms of office;

(k) where the SPE has an auditor, appointment and removal of the auditor;

(l) transfer of the registered office of the SPE to another Member State;

(m) transformation of the SPE;

(n) mergers and divisions;

(o) winding up;

(p) amendments to the articles of association, not covering matters mentioned in points (a) to (o).

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

For the purposes of the first subparagraph, the qualified majority may not be less than two-thirds of the total voting rights attached to the shares issued by the SPE.

3. The adoption of resolutions shall not require the organisation of a general meeting. The management body shall provide all shareholders with the proposals for resolutions together with sufficient information to enable them to take an informed decision. Resolutions shall be recorded in writing. Copies of the decisions taken shall be sent to every shareholder.

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

The right of shareholders to challenge resolutions shall be governed by the applicable national law.

5. If the SPE has only one shareholder, he shall exercise the rights and fulfill the obligations of the shareholders of the SPE set out in this Regulation and the articles of association of the SPE.

6. Resolutions on matters indicated in paragraph 1 shall be disclosed.

7. Resolutions may be relied on as follows:

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

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

Article 28 - Information rights of shareholders

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

2. The management body may refuse to give access to the information only if doing so could cause serious harm to the business interests of the SPE.

Article 29 - Right to request a resolution and right to request an independent expert

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

The request must state the reasons and indicate the matters that should be subject to such resolution.

If the request is refused or if the management body does not submit a proposal within 14 calendar days of receiving the request, the shareholders concerned may then submit a proposal for a resolution to the shareholders regarding the matters in question.

2. In the case of suspicion of serious breach of law or of the articles of association of the SPE, shareholders holding 5% of the voting rights attached to the shares of the SPE shall have the right to request the competent court or administrative authority to appoint an independent expert to investigate and report on the findings of the investigation to shareholders.

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

3. The articles of association may grant the rights set out in paragraphs 1 and 2 to individual shareholders or to shareholders holding less than 5% of the voting rights attached to the shares of the SPE.

Article 30 - Directors

1. Only a natural person may be a director of an SPE.

2. A person who acts as a director without having been formally appointed shall be considered a director as regards all duties and liabilities to which the latter are subject.

3. A person who is disqualified under national law from serving as a director of a company by a judicial or administrative decision of a Member State may not become or serve as a director of an SPE.

4. Disqualification of a person serving as a director of the SPE shall be governed by the applicable national law.

Article 31 - General duties and liabilities of directors

1. A director shall have a duty to act in the best interests of the SPE. He shall act with the care and skill that can reasonably be required in the conduct of the business.

2. The duties of directors shall be owed to the SPE.

3. Subject to the articles of association of the SPE, a director shall avoid any situation that can be reasonably regarded as likely to give rise to an actual or potential conflict between his personal interests and those of the SPE or between his obligations towards the SPE and his duty to any other legal or natural person.

4. A director of the SPE shall be liable to the company for any act or omission in breach of his duties deriving from this Regulation, the articles of association of the SPE or a resolution of shareholders which causes loss or damage to the SPE. Where such breach has been committed by more than one director, all directors concerned shall be jointly and severally liable.

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

Article 32 - Related party transactions

Related party transactions shall be governed by the provisions of the applicable national law implementing Council Directives 78/660/EEC and 83/349/EEC .

Article 33 - Representation of the SPE in relation to third parties

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

2. The articles of association of the SPE may provide that directors are to exercise jointly the general power of representation. Any other limitation of the powers of the directors, following from the articles of association, a resolution of shareholders or a decision of the management or supervisory body, if any, may not be relied on against third parties even if they have been disclosed.

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

Chapter VI - Employee participation

Article 34 - General provisions

1. The SPE shall be subject to the rules on employee participation, if any, applicable in the Member State in which it has its registered office, subject to the provisions of this Article.

2. In the case of the transfer of the registered office of an SPE Article 38 shall apply.

3. In the case of a cross-border merger of an SPE with an SPE or other company registered in another Member State, the provisions of the laws of the Member States implementing Directive 2005/56/EC of the European Parliament and of the Council shall apply.

Chapter VII - Transfer of the registered office of the SPE

Article 35 - General provisions

1. The registered office of an SPE may be transferred to another Member State in accordance with this Chapter.

The transfer of the registered office of an SPE shall not result in the winding-up of the SPE or in any interruption or loss of the SPE's legal personality or affect any right or obligation under any contract entered into by the SPE existing before the transfer.

2. Paragraph 1 shall not apply to SPEs against which proceedings for winding-up, liquidation, insolvency or suspension of payments have been brought, or in respect of which preventive measures have been taken by the competent authorities to avoid the opening of such proceedings.

3. A transfer shall take effect on the date of registration of the SPE in the host Member State. From that date, for matters covered by the second paragraph of Article 4, the SPE shall be regulated by the law of the host Member State.

4. For the purpose of judicial or administrative proceedings commenced before the transfer of the registered office, the SPE shall be considered, following the registration referred to in paragraph 3, as having its registered office in the home Member State.

Article 36 - Transfer procedure

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

(a) the name of the SPE and the address of its registered office in the home Member State;

(b) the name of the SPE and the address of its proposed registered office in the host Member State;

(c) the proposed articles of association for the SPE in the host Member State;

(d) the proposed timetable for the transfer;

(e) the date from which it is proposed that the transactions of the SPE are to be regarded for accounting purposes as having been carried out in the host Member State;

(f) the consequences of the transfer for employees, and the proposed measures concerning them;

(g) where appropriate, detailed information on the transfer of the central administration or principal place of business of the SPE.

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

(a) submit the transfer proposal to the shareholders and employee representatives, or where there are no such representatives, to the employees of the SPE for examination and make it available to the creditors for inspection;

(b) disclose the transfer proposal.

3. The management body of the SPE shall draw up a report to the shareholders explaining and justifying the legal and economic aspects of the proposed transfer and setting out the implications of the transfer for shareholders, creditors and employees. The report shall be submitted to the shareholders and the employee representatives, or where there are no such representatives, to the employees themselves together with the transfer proposal.

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

4. The transfer proposal shall be submitted to the shareholders for approval in accordance with the rules of the articles of association of the SPE relating to the amendment of the articles of association.

5. Where the SPE is subject to an employee participation regime, shareholders may reserve the right to make the implementation of the transfer conditional on their express ratification of the arrangements with respect to the participation of employees in the host Member State.

6. The protection of any minority shareholders who oppose the transfer and of the creditors of the SPE shall be governed by the law of the home Member State.

Article 37 - Scrutiny of the legality of the transfer

1. Each Member State shall designate a competent authority to scrutinise the legality of the transfer by verifying compliance with the transfer procedure laid down in Article 36.

2. The competent authority of the home Member State shall verify, without undue delay, that the requirements of Article 36 have been met and, if that is found to be the case, shall issue a certificate confirming that all the formalities required under the transfer procedure have been completed in the home Member State.

3. Within one month of the receipt of the certificate referred to in paragraph 2, the SPE shall present the following documents to the competent authority in the host Member State:

(a) the certificate provided for in paragraph 2;

(b) the proposed articles of association for the SPE in the host Member State, as approved by the shareholders;

(c) the transfer proposal, as approved by the shareholders.

Those documents shall be deemed to be sufficient to enable the registration of the SPE in the host Member State.

4. The competent authority in the host Member State shall, within 14 calendar days of receipt of the documents referred to in paragraph 3, verify that the substantive and formal conditions required for the transfer of the registered office are met and if that is found to be the case, take the measures necessary for the registration of the SPE.

5. The competent authority of the host Member State may refuse to register an SPE only on the grounds that the SPE does not meet all the substantive or formal requirements under this Chapter. The SPE shall be registered when it has fulfilled all requirements under this Chapter.

6. Using the notification form set out in Annex II, the competent authority of the host Member State shall, without undue delay, notify the competent authority responsible for removing the SPE from the register in the home Member State of the registration of the SPE in the host Member State.

Removal from the register shall be effected as soon as, but not before, a notification has been received.

7. Registrations in the host Member State and removals from the register in the home Member State shall be disclosed.

Article 38 - Arrangements for the participation of employees

1. The SPE shall be subject, as from the date of registration, to the rules in force in the host Member State, if any, concerning arrangements for the participation of employees.

2. Paragraph 1 shall not apply where the employees of the SPE in the home Member State account for at least one third of the total number of employees of the SPE including subsidiaries or branches of the SPE in any Member State, and where one of the following conditions is met:

(a) the legislation of the host Member State does not provide for at least the same level of participation as that operated in the SPE in the home Member State prior to its registration in the host Member State. The level of employee participation shall be measured by reference to the proportion of employee representatives amongst the members of the administrative or supervisory body or their committees or of the management group which covers the profit units of the SPE, subject to employee representation;

(b) the legislation of the host Member State does not confer on the employees of establishments of the SPE that are situated in other Member States the same entitlement to exercise participation rights as such employees enjoyed before the transfer.

3. Where one of the conditions set out in points a) or b) of paragraph 2 is met, the management body of the SPE shall take the necessary steps, as soon as possible, after disclosure of the transfer proposal, to start negotiations with the representatives of the SPE’s employees with a view to reaching an agreement on arrangements for the participation of the employees.

4. The agreement between the management body of the SPE and the representatives of the employees shall specify:

(a) the scope of the agreement;

(b) where, during the negotiations, the parties decide to establish arrangements for participation in the SPE following the transfer, the substance of those arrangements including, where applicable, the number of members in the company's administrative or supervisory body employees will be entitled to elect, appoint, recommend or oppose, the procedures as to how these members may be elected, appointed, recommended or opposed by employees, and their rights;

(c) the date of entry into force of the agreement and its duration, and any cases in which the agreement should be renegotiated and the procedure for its renegotiation.

5. Negotiations shall be limited to a period of six months. The parties may agree to extend negotiations beyond this period for an additional six-month period. The negotiations shall otherwise be governed by the law of the home Member State.

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

Chapter VIII - Restructuring, dissolution and nullity

Article 39 - Restructuring

The transformation, merger and division of the SPE shall be governed by the applicable national law.

Article 40 - Dissolution

1. The SPE shall be dissolved in the following circumstances:

(a) by expiry of the period for which it was established;

(b) by the resolution of the shareholders;

(c) in cases set out in the applicable national law.

2. Winding-up shall be governed by the applicable national law.

3. Liquidation, insolvency, suspension of payments and similar procedures shall be governed by the applicable national law and by Council Regulation (EC) No 1346/2000 .

4. Dissolution of the SPE shall be disclosed.

Article 41 - Nullity

The nullity of the SPE shall be governed by the provisions of the applicable national law implementing Article 11(1) of Directive 68/151/EEC, points (a), (b), (c) and (e), except for the reference in point (c) to the objects of the company, of Article 11(2) and Article 12 of that Directive.

Chapter IX - Additional and transitional provisions

Article 42 - Use of national currency

1. Member States in which the third phase of the economic and monetary union (EMU) does not apply may require SPEs having their registered office in their territory to express their capital in the national currency. An SPE may also express its capital in euro. The national currency/euro conversion rate shall be as on the last day of the month preceding the registration of the SPE.

2. An SPE may prepare and publish its annual and, where applicable, consolidated accounts in euro in Member States where the third phase of the economic and monetary union (EMU) does not apply. However such Member States may also require SPEs to prepare and publish their annual and, where applicable, consolidated accounts in the national currency in accordance with the applicable national law.

Chapter X - Final provisions

Article 43 - Effective application

Member States shall make such provision as is appropriate to ensure the effective application of this Regulation.

Article 44 - Penalties

The Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by 1 July 2010 at the latest and shall notify it without delay of any subsequent amendment affecting them.

Article 45 - Notification of private limited-liability companies

Member States shall notify the form of private limited-liability company referred to in the second paragraph of Article 4 to the Commission by 1 July 2010 at the latest.

The Commission shall publish this information in the Official Journal of the European Union.

Article 46 - Obligations of authorities responsible for registers

1. The authorities responsible for the register referred to in Article 9(1) shall notify the Commission before 31 March each year, of the name, registered office and registration number of the SPEs registered in and removed from the register in the preceding year as well as the total number of registered SPEs.

2. The authorities referred to in paragraph 1 shall cooperate with each other to ensure that the documents and particulars of the SPEs listed in Article 10(2) are also accessible through the registers of all other Member States.

Article 47 - Review

The Commission shall, no later than 30 June 2015, review the application of this Regulation.

Article 48 - Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

It shall apply from 1 July 2010.

This Regulation shall be binding in its entirety and directly applicable in all Member States.