The European Public Limited Company
SE (Societas Europaea)

With taking effect of the corresponding law at 29.12.2004 the European public company (Societas Europaea, or short: SE) is been established.

Aim of this new supranational public limited company,it is to be relieved international business-unions, concern-educational processes and business-co-operations within the European Union. Through the creation one of singles-state society-laws and largely independend social system as business-bearers should be reduced the existing society-legal, fiscal and psychological impediments.

Formation

Basis of the regulations to introduction of the SE is two legal acts of the European union:

• “The ordinance over the SE...” and  the complementary
• “Guidline over the participation of the employees in the SE...”

The foundation of an European public company can take place in form of society-legally:

• Amalgamation

A SE can according to type 2 VO through amalgamation is established

• either through inclusion
• or through formation of a new company.

• Holding-SE

A SE can originate according to type 32 VO in form  of a Holding-SE.

The foundation can from at least two companies (Plc or Ltd.) with their seat in a member state, is enforced.

• Subsidiary-SE

Societies and legal persons (public and private right), that have been founded after right of a member state, with seat and headquarters in the EC, can establish a subsidiary-SE according type 35 VO.

• Conversion

A Plc, that has been founded by the right of a member state and has its seat and headquarters in the EC, can be tranformated into a SE according type 37 VO, if it has had a subsidiary subject to the right of another member state for at least two years happens.

All the foundation-forms common is an international element.

At least two of the originator-societies must be subject to the right of different member states.

Still it is to be heeded with the foundation-possibilities, that there is not a bar- or fact-foundation through natural persons.

The minimum capital amounts to 120.000 Euro.

The SE  is written down into the register of the member state, in which it has its statuory certain seat. This seat must correspond to the seat of the headquarters. Supplementary the registration is published in the official gazette of the EC.

The inner organization-form can be chosen optional: the dual system with separation of executive and supervisory board (Germany) or the monistic model (England, France).

Characteristic for the monistic system is that a administrative council, a “board of directors”, that SE leads and decides the baselines of the activities and oversees their transposition. The board consists only of not business-leading members . At least 3 members must be chosen for 5 years. At least 6 meetings must  be determined per year. The administrative council orders   one or several managing directors for the current management. These are not members of the directors board, at the decisions of the administrative council bound and can be recalled anytime.

The taxation of the current business activity, the profit-investigation an the preparation of the tax-explanation of the SE takes place after the national tax-right of the respective seat-state. The SE draws up a annual account. It consists of balance-sheet, profit- and loss calculation, the appendix, just as the progress report. The founders have the possibility to determine the board as well as the executive and the board for the observation of the annual account.

A study of the European commission of 05.10.2001 over the possibility of an EC-far of uniform fiscal allocation-basis could not yet be moved until now.

 

The entrepreneurial co-determination was the biggest obstacle that was valid to overcome it to the creation of an European public company.

First, employers and employees can agree on an any co-determination-model. Remains the model behind the co-determination-level one of the

foundation-businesses, it, according to degree of the deviation, needs a

certain qualified consent-majority of the employees.

With these negotiations over an agreement between employers and employees, primarily following points are to be regulated:

• the composition of the agency-organ of the employees and his authorities
• the procedure over the instruction and hearing
• the co-determination of the employees in the board or administration-organ.

The negotiation-duration is restricted on 6 months, can be extended by agreement of the negotiation-partners on 1 years however.

Also union-representatives, that are not busy in the business, can belong the negotiation-committee.

Achieve the special negotiation-committee (BVG) within the negotiation-time period with the organs of the involved societies no unification, the so-called “Auffangregelung” finds application for the employee-participation.

Be subject to rules over the business-co-determination one of the involved societies after national right, must admit also the SE employee-representatives to its supervisory - or administration-organ after the “Auffangregelung” so, in fact in accordance with the numerical relationship, that was decisive for it, the nation-state-like co-determination-right subject to society.

In the case of the conversion of a society into a SE, all co-determination-rules current before the conversion find application also after the conversion unchanged. No one of the participant was subject to after national right, regulations over the co-determination, so, also the SE is not committed to admit employee-representatives to its supervisory - or administration - organs.

Outlooks

It will turn out which word this new social system will find in the near future. Interestingly, this could be for businesses, wants to bring in the miscellaneous subsidiary into a SE, about this way the administration-expenditure one everyone daughter considerably reduces and, to manage expenses-decrease consequently.

For legal and tax-law reasons, also a seat-publishing can be into another EC-member state of advantage.

On the other hand, another prosecution of the construction of an EC-uniform fiscal allocation-basis could on basis of IAS/IFRS of the 4. EC-balance-guideline to an aligned taxation of the member states leads.

Whether with the European public company (SE) the long called in, from nation-state-like regulations relieved social system to the disposal is joined, seems quite doubtful in view of the numerous areas, in which the society is subject to the respective national rules over public companies. One thinks of problem with co-determination-right only of it and at the country-specific tax collection. 

© ESI 2005