Legal provisions of COM(2014)212 - Single-member private limited liability companies - Main contents
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dossier | COM(2014)212 - Single-member private limited liability companies. |
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document | COM(2014)212 ![]() |
date | April 9, 2014 |
Contents
- Part 1 - General Provisions
- Article 1 - Scope
- Article 2 - Definitions
- Article 3 - Disclosure
- Article 4 - General meeting
- Article 5 - Contracts between the single member and the company
- Part 2 - Societas Unius Personae
- Chapter 1 - Legal form and General Principles
- Article 6 - Legal form
- Article 7 - General principles
- Chapter 2 - Formation
- Article 8 - Incorporation
- Article 9 - Conversion into an SUP
- Article 10 - Seat of the SUP
- Chapter 3 - Articles of Association
- Article 11 - Uniform template of articles of association
- Article 12 - Amendments to the articles of association
- Chapter 4 - Registration
- Article 13 - Formalities relating to registration
- Article 14 - Registration
- Chapter 5 - Single share
- Article 15 - Single share
- Chapter 6 - Share Capital
- Article 16 - Share capital
- Article 17 - Consideration for the share
- Article 18 - Distributions
- Article 19 - Recovery of distributions wrongfully made
- Article 20 - Share capital reduction
- Chapter 7 - Organisation
- Article 21 - Decisions of the single member
- Article 22 - Management
- Article 23 - Shareholder’s instructions
- Article 24 - Authority to act and enter into agreements on behalf of an SUP
- Article 25 - Conversion of an SUP into another company law form
- Part 3 - Final Provisions
- Article 26 - Exercise of delegated powers
- Article 27 - Committee procedure
- Article 28 - Penalties
- Article 29 - Repeal
- Article 30 - Amendment to Regulation (EU) No 1024/2012
- Article 31 - Transposition
- Article 32 - Entry into force
- Article 33 - Addressees
Part 1 - General Provisions
Article 1 - Scope
(a) the types of company listed in Annex I;
(b) Societas Unius Personae (SUP) referred to in Article 6.
2. Member States shall inform the Commission within two months of any changes to the types of private limited companies provided for in their national law affecting the contents of Annex I.
In such a case the Commission shall be empowered to adapt, by means of delegated acts in accordance with Article 26, the list of companies contained in Annex I.
3. Where a Member State allows other companies than those listed in Annex I to be established as or become single-member companies, as defined in Article 2 (1), Part 1 of this Directive shall also apply to them.
Article 2 - Definitions
(1) 'single-member company' means a company whose shares are held by a single person;
(2) “conversion” means any process by which an existing company becomes or ceases to be an SUP;
(3) 'distribution' means any financial benefit derived directly or indirectly from the SUP by the single-member, in relation to the single share , including any transfer of money or property. Distributions may take the form of a dividend, and may be made through a purchase or sale of property or by any other means;
(4) 'articles of association' means articles of association or statutes or any other rules or instruments of incorporation establishing a company;
(5) 'director' means any member of the management body either formally appointed or who de facto acts as a director.
Article 3 - Disclosure
Article 4 - General meeting
2. Decisions taken by the single-member exercising powers referred to in paragraph 1 shall be recorded in writing.
Article 5 - Contracts between the single member and the company
2. Member States may decide not to apply paragraph 1 to contracts concluded under market conditions in the ordinary course of business which are not detrimental to the single-member company.
Part 2 - Societas Unius Personae
Chapter 1 - Legal form and General Principles
Article 6 - Legal form
2. Member States shall not hinder SUPs from being single-members in other companies.
Article 7 - General principles
2. Member States shall provide that the single-member shall not be liable for any amount exceeding the subscribed share capital.
3. The name of a company, which has the legal form of an SUP, shall be followed by the abbreviation ‘SUP’. Only an SUP may use the abbreviation ‘SUP’.
4. The SUP, and its articles of association, shall be governed by the national law of the Member State where the SUP is registered (hereinafter ‘applicable national law’).
5. Member States shall provide that the SUP is set up for an unlimited period of time, unless provided otherwise in the articles of association.
Chapter 2 - Formation
Article 8 - Incorporation
Article 9 - Conversion into an SUP
2. The formation of an SUP by conversion shall not result in any winding-up procedures, any loss or interruption of the legal personality or affect any rights or obligations existing prior to the conversion.
3. Member States shall ensure that a company shall not become an SUP unless:
(a) a resolution of its shareholders is passed or a decision of its single-member is taken authorising the conversion of the company into an SUP;
(b) its articles of association comply with the applicable national law; and
(c) its net assets are at least equivalent to the amount of its subscribed share capital plus those reserves which may not be distributed according to its articles of association.
Article 10 - Seat of the SUP
Chapter 3 - Articles of Association
Article 11 - Uniform template of articles of association
2. The uniform template of articles of association shall cover the questions of formation, shares, share capital, organisation, accounts and the dissolution of an SUP.
It shall be made available by electronic means.
3. The Commission shall adopt the uniform template of articles of association by an implementing act. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 27.
Article 12 - Amendments to the articles of association
2. The amended articles of association of the SUP shall cover at least the subject matters provided for in the uniform template referred to in Article 11(2).
Chapter 4 - Registration
Article 13 - Formalities relating to registration
(a) the name of the SUP;
(b) the address of the registered office, the central administration and/or the principal place of business of the SUP;
(c) the business object of the SUP;
(d) the names, the addresses and any other information necessary to identify the founding member and, where applicable, the beneficial owner and a representative that registers the SUP on the member’s behalf;
(e) the names, addresses and any other information necessary to identify the persons who are authorised to represent the SUP in dealings with third parties and in legal proceedings and whether they have not been disqualified by laws of Member States referred to in Article 22;
(f) the share capital of the SUP;
(g) the nominal value of the single-share, where relevant;
(h) the articles of association of the SUP;
(i) where applicable, the decision authorising the company's conversion into an SUP.
2. The Commission shall establish, by means of an implementing act, a template to be used for the registration of SUPs in the registers of companies of the Member States in accordance with paragraph 1. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 27.
Article 14 - Registration
2. An SUP shall acquire legal personality on the date on which it is entered in the register of companies of the Member State of registration.
3. Member States shall ensure that the registration procedure for newly incorporated SUPs may be completed electronically in its entirety without it being necessary for the founding member to appear before any authority in the Member State of registration (on-line registration).
4. National on-line registration web-sites shall include links to the registration web-sites in other Member States. Member States shall ensure that the following templates are used for on-line registration:
(a) the uniform template of articles of association referred to in Article 11, and
(b) the registration template referred to in Article 13.
Member States shall issue a certificate of registration confirming that the registration procedure has been completed. The certificate of registration shall be issued no later than three working days from the receipt of all the necessary documentation by the competent authority.
5. Member States may lay down rules for verifying the identity of the founding member, and any other person making the registration on the member's behalf, and the acceptability of the documents and other information submitted to the registration body. Any identification issued in another Member State by the authorities of that State or on their behalf, including identification issued electronically, shall be recognised and accepted for the purposes of the verification by the Member State of registration.
Where, for the purposes of the first subparagraph, it is necessary for Member States to have recourse to administrative cooperation between them, they shall apply Regulation (EU) No 1024/2012.
6. Member States shall not make the registration of an SUP conditional on obtaining any licence or authorisation. The registration of the SUP, all documents provided during the process of registration and subsequent changes to them, shall be disclosed in the relevant register of companies immediately after registration.
Chapter 5 - Single share
Article 15 - Single share
2. An SUP shall not, directly or indirectly, acquire or own its single share.
3. Where in accordance with the applicable national law, a single share of an SUP is owned by more than one person, those persons shall be regarded as one member in relation to the SUP. They shall exercise their rights through one representative and shall notify the management body of the SUP, without undue delay, of the name of that representative and any change thereto. Until such notification, the exercise of their rights in the SUP shall be suspended. The owners of the single share shall be jointly and severally liable for the commitments made by the representative.
The identity of the representative shall be recorded in the relevant register of companies.
Chapter 6 - Share Capital
Article 16 - Share capital
2. The capital of the SUP shall be fully subscribed.
3. Member States shall not impose any maximum value on the single share.
4. Member States shall ensure that the SUP is not subject to rules requiring the company to build up legal reserves. Member States shall allow companies to build reserves in accordance with their articles of association.
5. Member States shall require letter and order forms whether in paper form or in any other medium, to state the capital subscribed and paid up. If the company has a website, that information shall also be made available on it.
Article 17 - Consideration for the share
2. In case of on-line registration, the consideration shall be paid into the bank account of the SUP. The subsequent increase or decrease of share capital shall be allowed at least in cash and in kind.
3. In case of cash payment, the Member State of registration of an SUP shall accept payment into a bank account of a bank operating in the Union as evidence of payment or increase in the share capital.
Article 18 - Distributions
2. An SUP shall not make a distribution to the single-member if on the closing date of the last financial year the net assets as set out in the SUP's annual accounts are, or following such a distribution would become, lower than the amount of the share capital plus those reserves which may not be distributed under the articles of association of the SUP. The calculation shall be based on the most recently adopted balance sheet. Any change in the share capital or in the part of the reserves which may not be distributed occurring subsequently to the closing date of the financial year shall also be taken into account.
3. The SUP shall not make a distribution to the single-member if it results in the SUP being unable to pay its debts as they become due and payable after distribution. The management body must certify in writing that, having made full inquiry into the affairs and prospects of the SUP, it has formed a reasonable opinion that the SUP will be able to pay its debts as they fall due in the normal course of business in the year following the date of the proposed distribution (a 'solvency statement'). The solvency statement must be signed by the management body and a copy of it must be provided to the single member 15 days before the resolution on the distribution is adopted.
4. The solvency statement shall be disclosed. If the company has a website, this information shall also be made available on it.
5. Any director shall be personally liable for recommending or ordering a distribution if that director knew, or, in view of the circumstances, ought to have known that the distribution would be contrary to paragraph 2 or 3. The same applies to the single-member with regard to any decision to make a distribution referred to in Article 21.
Article 19 - Recovery of distributions wrongfully made
Article 20 - Share capital reduction
Chapter 7 - Organisation
Article 21 - Decisions of the single member
2. A single member shall decide on the following:
(a) approval of the annual accounts;
(b) distribution to the member;
(c) increase of share capital;
(d) reduction of share capital;
(e) appointment and removal of directors;
(f) remuneration, if any, of directors, including when the single member is a director;
(g) change of the registered office;
(h) appointment and removal of the auditor, where applicable;
(i) conversion of the SUP into another company form;
(j) dissolution of the SUP;
(k) any amendments to the articles of association.
The single member may not delegate the decisions referred to in the first subparagraph to the management body.
3. The single-member shall be allowed to take decisions without calling a general meeting. No formal restrictions shall be imposed by Member States on the power of the single member to take decisions, including as regards the place and the time at which such decisions may be taken.
Article 22 - Management
2. The number of directors shall be specified in the articles of association.
3. The management body may exercise all the powers of the SUP that are not exercised by the single member or, where applicable, by the supervisory board.
4. The directors shall be natural persons, or legal persons, where allowed by applicable national law. They shall be appointed for an unlimited period of time, unless otherwise specified in the single-member’s decision appointing them or in the articles of association. The single member may become a director.
5. The single-member may remove a director, by means of a decision, at any time. Once removed from the office, a director shall be immediately deprived of the authority and power to act as a director on behalf of the SUP. Any other rights or obligations under the applicable national law shall not be affected.
6. A natural person who is disqualified by either the law or a judicial or administrative decision of the Member State of registration cannot serve as a director. If the director has been disqualified by a judicial or administrative decision taken in another Member State and this decision remains in force, the decision must be disclosed upon registration in accordance with Article 13. A Member State may refuse, as a matter of public policy, the registration of a company if a director is the subject of an outstanding disqualification in another Member State.
Where, for the purposes of this paragraph, Member States need to have recourse to administrative cooperation between them, they shall apply Regulation (EU) No 1024/2012.
7. Any person, whose directions or instructions the directors of the company are accustomed to follow, without having been formally appointed, shall be considered a director as regards all duties and liabilities to which directors are subject. A person shall not be considered a director solely on the grounds that the management body acts on advice given by him or her in a professional capacity.
Article 23 - Shareholder’s instructions
2. Instructions given by the single-member shall not be binding for any director insofar as they violate the articles of association or the applicable national law.
Article 24 - Authority to act and enter into agreements on behalf of an SUP
2. Directors may represent the SUP individually, including when entering into agreements with third parties and in legal proceedings, unless the articles of association provide for joint representation. Any other limitation of the powers of the directors, by the articles of association, by a decision of the single-member or by a decision of the management body, may not be relied upon in any dispute with third parties, even if that limitation has been disclosed. Acts undertaken by the management body shall be binding on the SUP, even if they are not within the object of the SUP.
3. The management body may delegate the right to represent the SUP insofar as it is allowed by the articles of association. The duty of the management body to file for bankruptcy or to commence any similar insolvency procedure shall not be delegated.
Article 25 - Conversion of an SUP into another company law form
2. An SUP may, at any moment, decide to convert into another company law form following the procedure laid down by applicable national law.
3. A SUP that has been converted into another company law form or dissolved in accordance with paragraphs 1 or 2, shall cease to use the abbreviation SUP.
Part 3 - Final Provisions
Article 26 - Exercise of delegated powers
2. The delegation of power referred to in Article 1(2) shall be conferred on the Commission for an indeterminate period of time.
3. The delegation of power referred to in Article 1(2) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
5. A delegated act adopted pursuant to Article 1(2) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or the Council.
Article 27 - Committee procedure
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 28 - Penalties
Article 29 - Repeal
2. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.
Article 30 - Amendment to Regulation (EU) No 1024/2012
"6. Directive […/…/EU] of the European Parliament and of the Council of […] on Single-Member Private Limited Liability Companies*: Articles 14 and 22.
_________
* OJ L […]."
Article 31 - Transposition
2. They shall apply those provisions from 24 months after the date of adoption of this Directive plus one day.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 32 - Entry into force
Article 33 - Addressees