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The European Company: Societas Europaea (SE)

October 2008 - Version 6

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This publication explains the main features of the European Company or ‘Societas Europaea’ (SE). It has been possible to set up this type of legal entity in Great Britain (GB) since 8 October 2004. The guidance in this booklet applies only to European Companies (SEs) registered (or to be registered) in GB.

This is intended as an introductory guide only. It cannot tell you everything you may need to know if you are involved in the formation of an SE, managing an SE, or are a shareholder or an employee of an SE.

If you are considering forming an SE, please seek specialist legal advice or refer to the law governing SEs. You will find the relevant law in the

• European Public Limited-Liability Company Regulations 2004 (Statutory Instrument No. 2326/2004),
• Council Regulation (EC) No 2157/2001 on the Statute for a European Company (the ‘Regulation’), and
• Council Directive 2001/86/EC supplementing the Statute for a European Company with regard to the involvement of employees (the ‘Directive’).

This guidance does not cover in any detail existing company law that applies to both PLCs and SEs; it assumes that the reader is familiar with the regulation of PLCs registered in GB. A glossary of unfamiliar terms is included at the end.

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CHAPTER 1
About SEs

1. What is an SE?

The SE is a European public limited company. An SE may be created on registration in any one of the Member States of the European Economic Area (EEA). Article 10 of the Regulation requires Member States to treat an SE as if it is a public limited company formed in accordance with the law of the Member State in which it has its registered office. GB national laws that apply to public limited companies also apply, in many respects, to SEs registered in GB (Article 9(1)(c)(ii) of the Regulation).

There are several ways of forming an SE: by merger, as a holding company or as a subsidiary. An SE can also be formed by a PLC transforming into an SE. For more information about forming an SE, see chapter 2.

Once registered, an SE has legal personality. It must have a registered office and its head office must be in the same Member State. Some Member States may require the registered office and the head office to be at the same address, not just in the same Member State. GB does not.

An SE must have share capital and shareholders whose liability is limited in a similar manner to that of a PLC. As with a PLC, an SE may denominate its share capital in any currency it chooses provided that at least £50,000 is denominated in Sterling or EUR € 65,600 is denominated in Euros.

Regardless of the currency in which it is expressed, an SE is required to have a minimum amount of subscribed share capital equivalent to at least EUR €120,000. The relevant conversion rate is that for the last day of the month preceding the formation of the SE.

3. Does an SE need a minimum amount of share capital to be paid up before it can commence business and borrow and does it need to file Form 117?

As with a PLC, an SE may only allot shares which are paid up to at least ¼ of their nominal value and the whole of any premium (except as part of an employees’ share scheme). It does not need to file a Form 117 or obtain a certificate to commence business and borrow.

4. Can the share capital of an SE be changed?

In general, Articles 5 and 9(c)(ii) of the Regulation apply the same rules to the maintenance of share capital, allotment, restructuring, etc. as those that apply to PLCs. For information see our guidance publication, 'Share Capital'.

There are two different systems for the structure of managing and controlling SEs. The SE’s statutes may, therefore, require either a one-tier or two-tier system of administration.

• In a one-tier system, management is undertaken by an ‘administrative organ'; and
• In a two-tier system, management is undertaken by a ‘management organ’ and a separate ‘supervisory organ’ supervises the work of the management organ.

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CHAPTER 2
Formation

1. Who can form an SE?

For a list of recognised public and private limited companies in each Member State, see the Annex at the end of this publication.

The ‘commercial’ bodies forming an SE must have their registered offices in the EU. GB has taken advantage of a Member State option in the Regulation under which their head offices need not be in the EU, provided there is a real and continuous link with a Member State’s economy.

Other Member States may require that both the registered office and head office of any commercial bodies involved in the formation of an SE are in the EU.

In addition, at least two of the bodies must have a presence in different Member States; the exception being when an SE is itself forming a subsidiary SE. A PLC transforming into an SE must for 2 years have had a subsidiary company governed by the laws of another Member State.

Once formed the SE’s registered office and head office must be in GB.

The table above lists the 5 ways of forming an SE. Each of these is explained below. How ever an SE is created, it cannot be registered and brought into existence until:

• agreement has been reached for employee involvement in company decisions;
• the special negotiating body has decided to rely on the rules for employee involvement and consultation in force in the Member States where the SE has employees; or
• no agreement has been reached within the relevant period of time, so the standard rules apply.

The fee for registration of an SE is £20. Cheques should be made payable to 'Companies House'.

Formation by Merger

Two or more public limited companies or existing SEs may merge to form an SE provided at least two of them are governed by the laws of different Member States. The merger may be conducted by acquisition (with the acquiring company becoming an SE) or by the formation of a new company (with the merging companies ceasing to exist).

Before the merger can take effect, draft terms for the merger must be drawn up by the merging companies and presented to general meetings of their shareholders for approval. In GB, the Secretary of State for Business, Enterprise and Regulatory Reform and the High Court (or the Court of Session in Scotland) may oppose the merger if it is in the public interest to do so.

Once all the pre-merger acts and formalities have been completed, the High Court (if the registered office of the merging company is in England or Wales) or the Court of Session (if the registered office of the merging company is in Scotland) must issue a certificate confirming that fact.

The High Court (if the SE is to be registered in England or Wales) and the Court of Session (if the SE is to be registered in Scotland) are responsible for scrutinising the legality of the merger and, if satisfied, approving the merger. It is possible for two or more PLCs registered outside the UK to merge to form an SE registered in England, Wales or Scotland.

If the merger involves the creation of a new SE to be registered in GB, the registration must be affected in the part of GB in which the SE will have its registered office address. The form that needs to be completed and filed at Companies House is:

Two or more private or public limited companies (including existing SEs) formed under the law of a Member State and with a registered office in a Member State may form an SE by promoting the formation of a holding SE. The companies promoting the formation must become majority-owned by the SE. At least 2 of the companies must be:

• governed by the laws of a different Member State, or,
• have had a subsidiary company governed by the laws of another Member State for 2 years, or
• had a branch in another Member State.

Before forming a holding SE, draft terms for the formation and an explanatory report must be drawn up by the companies promoting the formation and presented to general meetings of their shareholders. The explanatory report must explain and justify the legal and economic aspects of the formation and indicate the implications for the shareholders and for the employees of adopting the form of a holding SE.

Regardless of where the holding SE will be registered, any GB registered company involved in its formation must file the draft terms for its formation at Companies House at least one month before the company’s general meeting.

Once the draft terms have been approved, shareholders have 3 months to notify the company whether they intend to contribute their shares to the formation of the Holding SE. If the minimum proportions of shares are not assigned within that time, the SE cannot be formed.

Where the conditions are fulfilled, a notice to that effect must be delivered to Companies House within 14 days on Form SE70(1) . Shareholders who have not previously indicated they intend to make their shares available have a further month in which to indicate whether they intend to make their shares available for the purposes of forming the holding SE.

If the Holding SE is to be registered in GB, the registration must be affected in the part of GB in which the SE will have its registered office address.

The forms that need to be completed and filed at Companies House are:

The registration fee is £20.

The registration fee is £20.

Subsidiary SE formed by an existing SE

An existing SE may itself form another SE as a subsidiary company, in which it may be the sole shareholder. The form that needs to be completed and filed at Companies House is:

The registration fee is £20.

Formation by transformation of a PLC

A PLC registered in GB may transform into an SE registered in GB provided the PLC has for 2 years had a subsidiary governed by the laws of another Member State. The PLC cannot simultaneously transform to an SE and move its registered office to another Member State.

This process does not involve the winding up of the PLC or the creation of a new legal person in the form of an SE.

Before the transformation can take effect, the PLC must prepare draft terms of conversion along with an explanatory report and present them for approval to a general meeting of shareholders. The explanatory report must explain and justify the legal and economic aspects of the conversion and indicate the implications for the shareholders and employees of adopting the form of an SE. In order to be approved, ¾ of the votes cast must be in favour.

The forms that need to be completed and filed at Companies House are:

The registration fee is £20.

3. Can an SE convert to a PLC?

An SE may convert to a PLC provided that it has been either registered for at least 2 years or that the first 2 sets of annual accounts have been approved.

The management or administrative organ of the SE must draw up draft terms of conversion along with an explanatory report and present them for approval to a general meeting of shareholders. The explanatory report must explain and justify the legal and economic aspects of the conversion and indicate the implications of the adoption of the public limited liability company for the shareholders and for the employees. In order to be approved, ¾ of the votes cast must be in favour.

The forms that need to be completed and filed at Companies House are:

The registration fee is £20.

4. Are there restrictions on the names an SE can adopt?

There are some restrictions on the choice of name, which are similar to the controls applied to other companies registered in GB. These are explained in chapter 3

There is no standard format prescribed for the statutes of an SE, they will depend to some extent on how the SE is formed. However, the Regulation sets out certain matters concerning the management and administration of the SE that must be laid out in the statutes.

The statutes can normally only be changed by a decision of the shareholders, in a general meeting. In order to be approved, ¾ of the votes cast must be in favour.

Other Member States may require a lower majority of ⅔ or, provided the shareholders present represent at least half of the subscribed capital, a simple majority of votes cast.

If the statutes conflict with the arrangements made for employee involvement, they may be amended by the management or administrative organ without a decision of shareholders but only to the extent needed to resolve the conflict.

Amendments to the statutes must be sent to Companies House within 14 days of the adoption of the amendment. The form that needs to be filed at Companies House is:

6. Can an SE transfer its registration from one Member State to another?

One of the aims of the Regulation is that an SE should be able to transfer its registered office to another Member State without being wound up. An SE registered in GB may transfer its registered office to another Member State and, conversely, an SE registered in another Member State may transfer its registered office to GB. The formalities for doing this are not covered in detail here. The principal requirement is the need to obtain shareholder approval.

No decision to transfer can be taken for 2 months after a proposal for the transfer has been published. During this time, the relevant authorities in the Member State where the SE is registered can oppose the transfer.

The transfer can only take place once the authorities in both Member States are satisfied that all the acts and formalities have been completed. The registry to which the SE is transferring relies on a certificate issued by the ‘old’ registry confirming that they are complete.  When an SE is transferring out of GB, the certificate will be supplied by the Secretary of State for Business, Enterprise and Regulatory Reform, following the correct completion and delivery to Companies House of the forms listed below.  The fee is £20. Cheques should be made payable to ‘Companies House’.

The effective date of the transfer is the date on which the SE is registered in the Member State to which it is transferring. The forms that need to be completed and filed at Companies House are:

• the anniversary of the last balance sheet date required to be drawn up before the date of registration of the transfer; or
• if no balance sheet has been required to be drawn up under the laws of the Member State where it had its registered office or was first registered, the anniversary of the last day in the month in which the SE was first registered on formation.

7. Does an SE registered in another Member State need to register any branch or place of business that it establishes in GB?

No. Part XXIII of the Companies Act 1985 does not apply. An SE registered in another Member State may establish branches or places of business in GB without needing to register them here.

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CHAPTER 3
Names

1. Can an SE register under any name that it chooses?

There are some restrictions on the choice of name, which are similar to the controls applied to other companies registered in GB.

Company type designators

The name of an SE must be preceded or followed by the abbreviation SE.

Use of the term ‘SE’ at the beginning or end of the name designates that it is a European Company. It must be in the exact form, SE, as required by Article 11(1) of the Regulation. It will not be acceptable to use, for example, S.E. or se or (SE) as the designator at the beginning or end of the name, although all these would be acceptable if they appeared within the name (i.e. not as the company type designator).

Other company type designators cannot be used by an SE. This means that an SE may not include anywhere in its name any of the following:

• “limited”, “unlimited”, “public limited company”, their Welsh equivalents or any abbreviation of those words or expressions;
• “investment company with variable capital” or “open-ended investment company” or their Welsh equivalents;
• “limited liability partnership” or its Welsh equivalent.

Some names need the approval of the Secretary of State for Business, Enterprise and Regulatory Reform before they can be registered. These are names that suggest a connection with central or local government and names that include words or expressions that have been prescribed by regulations as needing approval. These are called ‘sensitive words’ and a full list is available at www.companieshouse.gov.uk/about/gbhtml/gbllp1.shtml

• If the difference amounts to only one or two letters, especially when these represent the plural of a word included in an otherwise identical name on the register.
• If the names differ by short words, particularly when these words are of a generic nature such as "GB" or "UK" or "com".
• If the names differ by slightly longer words when they have substantial or very distinctive elements in common.
• If they differ in the use of symbols.

For more information on directions to change company names, see chapter 5 of our publication on  ‘Company Names’.

3. When an SE transfers its place of registration to GB, do the same restrictions on its name apply?

Every SE’s name will be subject to the rules of the jurisdiction in which it first registered. On transfer to GB, an SE may choose to retain its existing name or it may choose to change its name. If it wishes to change its name, it will be subject to the GB rules over company names.

4. What effect does the SE designator have on the names of bodies other than SEs?

Bodies other than SEs (that is, companies, firms, and other legal entities registered in the Member State) cannot use the abbreviation SE in their names (including their corporate name or business name) unless they were already using the abbreviation in their name before 8 October 2004. This includes using the abbreviation bracketed as (SE) or with other punctuation marks before or after the abbreviation, for example, .SE. (with full stops before and after the abbreviation). However, other bodies may use other abbreviations such as S.E., se or (S.E.) in their names. They may also use the letters ‘SE’ linked to other letters or words such as ‘Service’ or ‘SE10’ or ‘SSE’ or ‘S East’.

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CHAPTER 4
Administration and management

1. Who is responsible for the day-to-day administration of an SE?

An SE may operate under either a one-tier or two-tier system of administration, as laid down in its statutes. Each is outlined below.

One-tier system

In this system an ‘administrative organ’ manages the SE. The administrative organ must meet at least once every three months. A chairman must be appointed from amongst its members.

However, the SE must have at least two members (unless employee participation is regulated in accordance with Directive 2001/86/EC with regard to the involvement of employees, in which case the minimum number of members is 3). There is no upper limit on the number of members.

Two-tier system

In this system a ‘management organ’ manages the SE and a separate ‘supervisory organ’ supervises the work of the management organ. In general, no person may be a member of both.

The supervisory organ may not exercise management powers. It must appoint a chairman from amongst its members. Members of the management organ may be appointed by the supervisory organ. The management organ must report to the supervisory organ at least every 3 months.

The number of members of each organ or the rules for determining it must be laid down in the SE’s statutes. However, both the management and supervisory organs must have at least two members. There is no upper limit on the number of members of either organ.

Other Member States may set different lower and upper limits on the number of members of an SE’s administrative, management and supervisory organs.

2. What is the period of appointment to a SE’s organs?

The period of appointment must be laid down in the SE’s statutes but cannot be for a period of more than 6 years. However, members may be reappointed for one or more further periods of office, subject to any restrictions imposed by the SE’s statutes.

3. Who can be a member of a SE organ?

As well as natural persons, the statutes may allow members of the SE’s organs to be companies or other legal entities but, in this case, a natural person must be designated to exercise the functions of the organ. Persons disqualified from taking part in the management of a public limited company are, likewise, not permitted to take part in the management of an SE.

4. Does the SE have to register details of the members of its organs?

Yes, in the same way that a PLC is required to register its director’s details, an SE must register the members of its organs.

• For members of an administrative organ or a management organ, the forms that need to be completed are the same as those for a PLC. That is:

• For members of a supervisory organ the forms that need to be completed are:

No, there is no requirement in the EU Regulation for any company officers to be appointed other than those appointed to the SE’s organs.

General meetings may be convened at any time by the administrative organ, management organ or supervisory organ. Shareholders holding at least 10% of the SE’s subscribed capital (or some lesser percentage, if this is set down in the statutes) may request that the SE convene a general meeting, stating in the request the items to be put on the agenda. Shareholders holding at least 5% of the SE’s subscribed share capital may request that additional items be placed on the agenda of a general meeting.

Yes, the same requirements apply to an SE as to a PLC. For more information see our guidance on, Annual Returns.

In matters not covered by the Regulation or the Statutory Instrument, an SE registered in GB must deliver to Companies House the same forms or documents that a PLC is required to register at Companies House. These include copies of certain resolutions, the location of certain statutory registers if not kept at the registered office address, a change of accounting reference date, changes made to the share capital (e.g. increases to the share capital, allotment of shares, changes to the share capital structure or class rights), prospectuses and listing particulars, details of mortgages and charges created by the SE.

The winding up, liquidation, insolvency, cessation of payment and similar procedures that apply to a PLC also apply to an SE. For more information see our guidance on, ‘Liquidation and Insolvency’ or ‘Liquidation and Insolvency (Scotland)’ for SEs registered in Scotland.

In addition, the initiation and termination of any of the above procedures or any decision to continue operating must be notified to Companies House for publication. The form that needs to be completed and filed at Companies House is:

The Secretary of State has the power to petition the Court for an SE to be wound up if it appears that it does not have both its head office and registered office in GB.

For more information on winding up, liquidation and insolvency please refer to our guidance on Liquidation and Insolvency.

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CHAPTER 5
Further Information

1. Where can I go for help?

Our staff in Cardiff and Edinburgh are able to provide general guidance on public disclosure of information by SEs.

However, for legal advice about SEs, please consult a solicitor. For information and guidance about employee involvement in an SE, contact the:

Employment Relations Directorate
BERR
1 Victoria Street
London
SW1H 0ET

2. How do I send information to Companies House?

You may deliver documents to the Registrar by hand (personally or by courier), including outside office hours, bank holidays and weekends to our Cardiff, London and Edinburgh offices. You may also send documents by post or by the Document Exchange Service (DX), or by Legal Post (LP) in Scotland. If you send documents please address them to:

We will only acknowledge receipt of documents at Companies House if you provide a stamped addressed envelope.

Please note: Companies House does not accept accounts or any other statutory documents by fax.

Forms can also be obtained from company law  stationers, accountants, solicitors and company formation agents - addresses are available in business phone books.

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