One-person company (European Union)

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The European one-person company (SUP), Latin Societas Unius Personae , is a legal form currently being planned in the European Union and in the European Economic Area . This is a company with a single shareholder ( single-member ), in which the liability is limited to the corporate assets, such as in the limited liability company .

With this legal form, the EU wants to enable and promote the establishment of Europe-wide, cost-effective, fully legal and operational one - man companies with a minimum share capital of only one euro and according to largely uniform legal principles (see also: European integration ) with its own directive (SEA directive ) .

Preliminary projects

Before this proposal by a one-person company (SUP), the Commission tried to establish the European private company . However, despite the approval of the economy, this did not succeed against the resistance of the EU member states. The provisions of Directive 2009/102 / EC of September 16, 2009 have been taken over in Part 1 of this proposal for a directive (see Annex 2 of the proposal for a directive with a comparison table).

Objective and purpose of the directive

In the European Union there are " around 21 million SMEs , of which around 12 million are limited liability companies, of which already today around half (5.2 million) are single-partner limited liability companies ". In the opinion of the European Commission and the expert groups consulted on this, there is therefore considerable potential for this legal form in the EU.

The overarching aim and purpose of this proposal by the Commission for a one-person company mbH is to " make it easier for potential company founders and especially SMEs to set up companies abroad " (to remove restrictions on freedom of establishment ). Its aim is to encourage, support and “ bring about more growth, innovation and jobs in the Union ” to cross-border entrepreneurship, as well as reducing set-up and operating costs by harmonizing rules.

The proposal for the SUP does not provide for a new supranational legal form for one-person companies (as was previously the case with the European private company . See also the planned supranational European Foundation - FE). Limited liability companies with a single partner that already exist under company law in all EU member states are referred to as SUP if they are set up or converted as such in accordance with the SUP Directive. This harmonization of national company law regulations, e.g. B. via the proposed SEA Directive, it should be achieved that existing restrictions in the internal market for the cross-border activities of companies are removed.

Advantages of the SUP

The planned possibility that the SUP can be founded online and with a standard form relatively informally, should result in considerable savings for the founders. The SUP also offers natural and legal persons the opportunity to appear as a legal entity across Europe. However, national differences still exist, as the SUP is only a legal framework that is superimposed on the national corporate form of the limited liability company (GmbH, GesmbH). The aim is deliberately only to harmonize the national provisions and not to standardize them (e.g. through a European regulation ).

Due to the very low requirement for the amount of the initial capital of one euro, the SUP will be of particular interest as a legal form for small companies.

Incorporation and incorporation requirements

The foundation of the SUP should be possible with a minimum capital of only one euro and get along without any formal registration procedure. The EU member state in which the SUP is registered (seat state) should also not necessarily be the state in which the actual conduct of business (head office) takes place. This should enable companies to better and fully take advantage of the internal market.

The protection of creditors, which may no longer be given by the minimum share capital of just one euro, is to be protected by the duty to control the profit distributions imposed on the managing directors or the sole shareholder of the SUP.

The SUP should generally be set up online using a standard form. In addition, a balance sheet test and a solvency certificate should be required.

founder

A natural or legal person can act as the founder of a SUP, even if this legal person is itself a one-man partnership with limited liability.

Establishment or transformation

According to the proposed directive, a SUP can only

  • by founding a new company (ex nihilo) or
  • by converting a company that already has a different legal form

arise. A company converted into a SUP retains its legal personality. The conversion should take place in accordance with the national law of the state in which the previous company existed. An existing SUP should be able to be converted into a different legal form under national law. If the SUP no longer meets the requirements of the directive, then it must either be converted into another corporate form or it must be dissolved.

statute

The Commission's proposal for a directive contains a standard specification for a SEA founding statute. When registering online, these standard specifications should be mandatory by the member states. The minimum content of the template is still to be determined.

The statutes can be changed after the SUP has been registered, provided that these changes are compatible with the SUP Directive and national law. The national law of the member state in which the SUP is registered is decisive for the SUP and its statutes.

registration

The provisions in the proposal for a directive on the registration process and registration are at the heart of the directive. These provisions make the possibility of having the SUP operate across borders and to use the advantages of the internal market only legally binding. Online registration and the possibility of using any official EU language are essential elements. The founder of an SUP should no longer be obliged to appear physically in the relevant EU member state or through an authorized representative and, under certain circumstances, translate all documents and entries. The documents that the SUP founder has to submit for the establishment in the relevant Union member state are also conclusively listed and regulated. If the SUP is not registered online, the advantages described above should not apply unless the Union member state voluntarily provides for relief.

The SUP is registered in the EU member state in which it is to have its registered office. The registration of the SUP must be completed within three working days (registration certificate). The SUP acquires legal personality on the day of its entry in the commercial register of the entry member state .

Company forms that can be founded or converted as SUP

The SUP builds on national company law. Annex 1 of the proposed directive lists the national companies that can in principle be founded as SUPs. In Germany and Austria this should be the limited liability company. The EEA states are not yet listed in Annex 2 to the proposal for a directive. B. for Liechtenstein probably also the company with limited liability, possibly also the institution under private law . Switzerland is neither a member of the European Union nor of the European Economic Area. Therefore, according to the previous draft directive, a SUP with its registered office and head office in Switzerland is not possible (but it is possible that the statutory seat or the head office or the main office is outside the EU). However, Swiss companies can presumably own or participate in an SUP through subsidiaries based in the EU or the EEA.

If a Member State also allows joint-stock companies or other forms of company to have a single shareholder, the provisions of Part 1 of the Directive should also apply to these companies (with restrictions on conversion).

Organization and procedure of the SUP

Shareholder

The SUP consists of only one partner. " The sole shareholder exercises the powers of the shareholders' meeting ".

Company shares

A SUP has only one partner and can therefore only issue one share. This may not be further subdivided. The sole share of the SUP should not be able to be acquired directly or indirectly by them and should not be directly or indirectly owned by them. The rights associated with the single share should only be exercised by one person. If co-ownership of a share is possible due to national regulations , only one representative should be authorized to act on behalf of the co-owner (as the SUP partner).

The share capital should be at least one euro (or the equivalent of 1 in the local currency - e.g. one Swiss franc in Liechtenstein). No maximum values ​​should be introduced for a share or the paid-in capital should be limited differently. Likewise, there should be no mandatory regulations for the formation of statutory reserves. The sole shareholder of the SUP is only liable up to the amount of the subscribed share capital. The increase or decrease of the share capital should be possible in cash or in kind. The subscribed and paid-in capital should be indicated in letter and order forms on paper or other media and, if the company has a website, also there.

Decision making

The decision-making powers of the sole shareholder are basically possible without their own shareholders' meeting (since there is only one shareholder). The scope of the mandatory resolutions by the sole shareholder is specified by the proposed directive. Resolutions of the sole shareholder should in principle be documented in writing. Retention period at least five years.

Managing directors

Managing directors of a SUP (management body) should only be able to be natural persons. Exception: If the national law of the member state of registration allows it, legal persons can also be appointed as managing directors (e.g. in Liechtenstein). A de facto managing director can also work for the SUP .

The guideline contains further provisions e.g. B. on the authority of one shareholder, the appointment and dismissal of the managing director, etc.

Managing directors of the SUP should be personally liable for the recommendation or order of a profit distribution “ if they knew or should have known in view of the circumstances that the profit distribution would violate paragraph 2 or 3 (of Article 18) . This also applies to the sole shareholder in relation to the resolutions referred to in Article 21 regarding the distribution of profits ”.

Profit distribution

A profit distribution (e.g. dividend ) to the sole shareholder of the SUP is permitted:

  • if the balance sheet test has shown that the SUP's remaining assets after the profit distribution are sufficient to cover its liabilities in full and
  • when a solvency certificate has been presented by the management body to the sole shareholder before a profit distribution is made.

Legal basis

The Commission's proposal is based on Article 50 TFEU (EU action in the area of ​​company law). For the one-person company (SUP), the company law provisions within the meaning of the planned directive are to be harmonized to the extent that the same provisions for the establishment and operation of the SUP would apply in all member states.

Structure of the proposal for a directive

The Commission's proposal for a directive for the SEA consists of three parts with a total of seven chapters with 33 articles.

  • Part 1: General rules for single-member limited liability companies that apply to all companies listed in Annex I, including those listed in Part 2 of the Directive.
  • Part 2: Special regulations for the Societas Unius Personae (SUP)
    • Chapter 1: General Provisions
    • Chapter 2: Establishing a SUP
    • Chapter 3: Bylaws
    • Chapter 4: Registration of an SUP
    • Chapter 5: Sole Part
    • Chapter 6: Share Capital
    • Chapter 7: Organization and procedures of the SUP
  • Part 3: Final provisions

Criticism and withdrawal of the proposal

The SUP has already been criticized, in particular:

  • Adequate accompanying measures to protect creditors (e.g. to build up sufficient reserves);
  • sufficient measures to reliably verify the identity of the founding shareholder;
  • sufficient measures to reliably verify the identity of the beneficial owner;
  • adequate protection of national tax, social security and labor law regulations.

required. In the Legal Affairs Committee of the European Parliament (JURI) and the Committee on the Internal Market and Consumer Protection (IMCO), the proposal for a directive was criticized several times at the beginning of December 2014 because of the lack of creditor protection, lack of employee participation and the preferential treatment of tax fraud through the separation of the statutory and administrative headquarters.

On January 28, 2016, the Legal Committee of the EU Parliament (JURI) discussed a second working document on the SEA Directive. The rapporteur Luis de Grandes Pascual (EPP) is now proposing, among other things, a restriction of the scope of the directive to small and micro-enterprises ( SMEs ) and a new regulation on the seat unit of the SUP. However, MEPs' approval of the SEA directive proposal is still cautious to critical.

On July 4, 2018, the European Commission withdrew the proposal for the directive. After several years of negotiations with the Legal Affairs Committee of the European Parliament, it was clear that there would be no majority for the adoption of the directive.

Act to be repealed

Directive 2009/102 / EC of September 16, 2009 enabled limited liability companies with a single partner that already existed under national law to operate throughout the Union. This directive is to be repealed when the SEA directive comes into force.

See also

Web links

literature

  • Lutter, Marcus / Bayer, Walter / Schmidt, Jessica: European corporate and capital market law. Basics, status and development along with texts and materials. Section 47 SPE and SUP, De Gruyter, Berlin 2017, ISBN 978-3-11-045625-7 .
  • Jung, Stefanie / Krebs, Peter / Stiegler, Sascha: Company law in Europe. Manual. § 9 European one-person society project (SUP - Societas Unius Personae), Nomos, Baden-Baden 2019, ISBN 978-3-8329-7539-5 .
  • Priest, Hans-Joachim / Mayer, Hartmut / Wicke, Dieter: Munich manual of corporate law. Volume 3: Limited Liability Company. Section 76 SUP. Modifications made by Habighorst, Oliver. CH Beck, Munich 2018, ISBN 9783406705038 .

Individual evidence

  1. The name of a one-person company that has the legal form of a SUP must be followed by the abbreviation “SUP” - Art. 7 para. 3 and 25 para. 3 proposed directive. Only one SUP may use the abbreviation "SUP".
  2. Article 7 (1) proposed directive.
  3. ^ Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on limited liability companies with a single partner , COM (2014) 212 final of April 9, 2014, p. 2 f.
  4. OJ. L 258 of October 1, 2009, p. 20.
  5. ↑ Proposal for a directive COM (2014) 212 final of April 9, 2014, p. 5.
  6. This also in view of the fact that SMEs in the EU secure two thirds of jobs and have significant and stable growth and employment potential, which industry often cannot guarantee ( hire and fire personnel policy depending on the economic situation ).
  7. ↑ Proposal for a directive COM (2014) 212 final of April 9, 2014, p. 3.
  8. Article 6 (1) proposed directive.
  9. Article 10 proposed directive.
  10. Article 6 (2) and Article 8 proposed directive.
  11. Article 9 (1) proposed directive.
  12. Article 9 (2) proposal for a directive.
  13. Article 25 (1) of the proposed directive.
  14. See proposed directive Article 25.
  15. See proposed directive Article 11 and Recital 15 and Article 11 (3) proposed directive.
  16. See proposed directive Article 12.
  17. Article 7 (4) proposed directive.
  18. See proposed directive Article 13 (1) and recitals 13 and 19. After the entry, however, any change with regard to the documents to be submitted must be assessed according to national law.
  19. Article 14 (1) proposed directive.
  20. See the proposed directive Article 14 and Recital 16.
  21. Article 14 (2) proposed directive.
  22. See proposed directive Article 10.
  23. Article 1 (3) proposed directive.
  24. Art 4 para. 1 proposal for a directive.
  25. See the proposed directive Article 15 and Recital 20.
  26. Article 16 (1) proposed directive.
  27. Article 16 (3) proposed directive.
  28. Article 16 (4) proposed directive.
  29. Article 7 (2) proposed directive.
  30. Article 17 (2) proposed directive.
  31. Article 16 (5) of the proposed directive.
  32. Article 21 (3) proposed directive.
  33. Art. 4 para. 2 and 21 para. 1 proposed directive.
  34. See Article 21 (2) proposed directive and recital 21.
  35. Article 22 (4) proposed directive.
  36. Art. 2 para. 5 and 22 para. 7 proposed directive.
  37. See Article 23 proposed directive and also recital 23.
  38. See the proposed directive Article 22 and Recital 22.
  39. Article 18 (5) proposed directive.
  40. See Article 18 proposed directive and recital 19. The solvency certificate must also be made available on the company's website.
  41. See e.g. B. the criticism of the German Bar Association 58/2014 ( Memento from December 28, 2014 in the Internet Archive )
  42. PE575.031v02-00 .
  43. Ulrich Noack: Movement in matters of SUP in the European Parliament Handelsblatt , January 25, 2016
  44. Withdrawal of Commission proposals. (PDF) Official Journal of the European Union (2018 / C 233/05). In: eur-lex.europa.eu. European Commission, July 4, 2018, accessed January 21, 2020 .
  45. OJ. L 258 of October 1, 2009, p. 20.