European Communities (European Public Limited Liability Company) Regulations, 2007

• Jurisdiction: Ireland
• Citation: IR SI 21/2007
• Year: 2007

Notice of the making of this Statutory Instrument was published in “Iris Oifigiúil” of 30th January, 2007.

I, Micheál Martin, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving full effect to Council Regulation (EC) No. 2157/2001 of 8 October 2001 1 on the Statute for a European company (SE), hereby make the following regulations—

PART 1 GENERAL

Citation and construction

1. (1) These Regulations may be cited as the European Communities (European Public Limited-Liability Company) Regulations 2007.

(2) The Companies Acts and these Regulations shall be construed together as one.

Interpretation

2. (1) In these Regulations—

“Act of 1963” means the Companies Act 1963 (No.33 of 1963);

“competent authority” means the authority designated by Regulation 29 (a), (b) or (c), as appropriate;

“CRO Gazette” means the electronic gazette maintained by the Registrar on the website of the Companies Registration Office pursuant to Regulation 4 of the European Communities (Companies) Regulations 2004 ( S.I. No.839 of 2004 );

“Director” means the Director of Corporate Enforcement;

“EC Regulation” means Council Regulation 2157/2001/EC of 8 October 2001 2 on the Statute for a European company (SE) (the text of which, for convenience of reference, is set out in the Schedule);

“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as amended for the time being;

“Member State” means a state that is a contracting party to the EEA Agreement;

“Registrar” means the Registrar of Companies;

“prescribed” means prescribed by regulations made under section 3 of the European

Communities Act 1972 (No.27 of 1972);

“SE established by merger” means an SE established in accordance with Article 2(1);

“SE established by formation of a holding company or subsidiary company” means an SE established in accordance with Article 2(2) or 2(3), as the case may be;

“SE established by transformation” means an SE established in accordance with Article 2(4) and for the purposes of these Regulations and the European Communities (European Public Limited-Liability Company) (Forms) Regulations 2007 and any forms prescribed thereunder, it is immaterial whether the word “transformation” or “conversion” is used.

(2) References in these Regulations to an “SE” are references to a European public limited liability company within the meaning of Article 1 of the EC Regulation whose registered office is, or is to be, in the State and references to “SEs” shall be construed accordingly;

(3) A reference in these Regulations to a numbered Article is a reference to the Article so numbered of the EC Regulation.

(4) A reference in these Regulations to a numbered Title is a reference to the Title so numbered of the EC Regulation.

(5) A word or expression used in these Regulations which is also used in the EC Regulation has the same meaning as it has in that Regulation.

PART 2 REGISTRATION AUTHORITY FOR AN SE, ETC.

Registration authority

3. For the purposes of the registration of an SE in the State, the Registrar shall be subject to the duties, and shall perform the functions, specified in this Part.

Applications in respect of registration (Articles 2 and 3(2))

4. (1) Where it is proposed to register any of the following-

(a) an SE formed by merger in accordance with Article 2(1),

(b) a holding SE formed in accordance with Article 2(2),

(c) a subsidiary SE formed in accordance with Article 2(3),

(d) an SE formed in accordance with Article 2(4) by the conversion of a public limited company,

or

(e) an SE formed as the subsidiary of an SE in accordance with Article 3(2),

there shall be delivered to the Registrar an application in the prescribed form together with the documents, if any, specified in that form.

(2) In paragraph (1)(e) the reference to an SE, a subsidiary of which is to be registered under that provision, includes a reference to an SE whose registered office is in another Member State.

Registration of SE on transfer of its registered office to the State

5. Where it is proposed to transfer to the State the registered office of an SE whose registered office is situated in another Member State, there shall be delivered to the Registrar an application in respect of that SE in the prescribed form together with the documents, if any, specified in that form.

Participation in formation of an SE by company whose head office is outside the Community

6. (1) A company (the “first-mentioned company”) which is registered in a Member State, but which has its head office outside any of the Member States, may participate in the formation of an SE where the Registrar is satisfied that the first-mentioned company has a real and continuous link with the State’s economy.

(2) The Registrar shall not be satisfied that the first-mentioned company has such a link unless that company furnishes a statement in writing to him or her—

(a) that has been given to it by the Revenue Commissioners within the period specified in paragraph (3), and

(b) which states that the Revenue Commissioners have reasonable grounds to believe that the company has a real and continuous link with the State’s economy.

(3) The period mentioned in subparagraph (a) of paragraph (2) is the period of 2 months ending on the date on which the statement referred to in that paragraph is furnished, pursuant to that paragraph, by the first-mentioned company to the Registrar.

Transfer of registered office from the State to another Member State

7. (1) Where it is proposed to transfer the registered office of an SE from the State to another Member State there shall be delivered to the Registrar, for the purposes of applying for the issue of a certificate under Article 8(8), an application in the prescribed form together with the documents, if any, specified in that form.

(2) Without prejudice to the generality of paragraph (1), a statement of solvency in the prescribed form made by—

(a) in the case of an SE falling within the one-tier system, all the members of the administrative organ, and

(b) in the case of an SE falling within the two-tier system, all the members of the management organ, together with the written authority of the supervisory organ given to the making of the statement,

shall be delivered to the Registrar, together with—

(i) accounts of the SE made up to a date falling within the period specified in paragraph (3) and

(ii) a report (the terms of which shall be unqualified) in relation to those accounts made by the auditors of the SE pursuant to section 193 of the Companies Act 1990 (No. 33 of 1990).

(3) The period mentioned in subparagraph (i) of paragraph (2) is the period of 2 months ending on the date on which the accounts referred to in that subparagraph are delivered to the Registrar.

(4) In determining whether it is proper to issue a certificate to an SE under Article 8(8) on foot of an application under paragraph (1), it shall be sufficient for the Registrar to have regard to each document (including the application and any statement, report and account) delivered to the Registrar in that behalf under this Regulation.

Registration of an SE

8. The Registrar shall register an SE formed or transformed under the provisions of Article 2 or 3, or an SE whose registered office is transferred to the State under Article 8, where he or she is satisfied that 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.

Documents sent to Registrar

9. (1) The Registrar shall retain any document delivered to him or her under any provision of these Regulations or the EC Regulation.

(2) For the purposes of this Regulation, documents delivered to the Registrar under Regulation 7 shall be treated as documents delivered to the Registrar on the deletion of the registration of the SE making the application under that Regulation and the provisions of Regulation 10 shall apply accordingly.

Application of Companies Acts with regard to registration of SEs

10. The provisions of the Companies Acts which apply in relation to the registration of companies and the functions and other duties of the Registrar shall also apply, with any necessary modifications, to SEs.

PART 3 DISCRETIONARY POWERS GIVEN TO MEMBER STATES BY EC REGULATION— PROVISIONS MADE IN EXERCISE THEREOF

Additional forms of publication of transfer proposal (Article 8(2))

11. (1) An SE in respect of which there is a transfer proposal referred to in Article 8(2) 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 the SE’s 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.

Protection of minority shareholders- right to apply to Court (Articles 8(5) and 24(2))

12. (1) Where it is proposed to transfer the registered office of an SE from the State to another Member State, then, notwithstanding any other provision in the Companies Acts, any member or members holding, in the aggregate, not less than 10 per cent in nominal value of the issued share...