European society

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The European company , often also European stock corporation (internationally also Latin Societas Europaea , short SE ), is a legal form for stock corporations in the European Union and the European Economic Area . Since the end of 2004, the EU has enabled the establishment of companies according to largely uniform legal principles .

Features of European society

The European company is a form of company under European law. It has the following characteristics:

  • The European company has its own legal personality .
  • It is a corporation . Your minimum capital is 120,000 euros.
  • Your share capital is divided into shares . Each shareholder is only liable up to the amount of the subscribed capital.
  • It must have its seat in an EU or EEA state , but can relocate it to another member state at any time.
  • Your shareholders gather in the general meeting and exercise basic rights (the owner's rights, so to speak ).
  • The management can be carried out in the following two ways:
    • Either the executive board conducts the business and is controlled by the supervisory board ( dualistic system ),
    • or a board of directors takes over the management of the SE on its own responsibility (one- tier system ). The administrative board must appoint managing directors for the management of the current business as well as for the representation of the "one-tier" SE. These can either - as internal managing directors - come from among the members of the administrative board; but then the non-executive board members must be in the majority. Or it can be a matter of persons not belonging to the administrative board, then one speaks of external managing directors.
  • The shares can be transferred according to the respective national regulations. It is not one of the necessary characteristics of a European company that its shares are traded on a stock exchange.

In principle, the following applies: "Subject to the provisions of this Ordinance, an SE is treated in every member state like a stock corporation that was founded in accordance with the law of the country in which the SE has its registered office."

Advantages of a European company

The SE offers European companies the opportunity EU -wide as a legal entity with national offices / business premises occur. The SE enables companies operating across Europe to combine their businesses in a holding company and to set up subsidiaries with European standards. However, certain national differences still exist, as the SE Directive only creates a framework that is specified by national legislation for public limited companies. This way there is more unification, but not complete congruence.

The structure of the SE cross-border are M & A - transactions easier. This enables companies to expand and reorganize across national borders - without the expensive and time-consuming formalities for several subsidiaries in the individual countries.

Since the SE can relocate its registered office to another member state while maintaining its identity, without the need to dissolve in the country of departure or to establish a new one in the country of arrival, companies can choose their seat for purely economic reasons.

Another advantage is seen in the psychological perception, since the establishment of a merger of equal partners is at least suggested, but in the external presentation, a national company is not taken over by another national company (so-called mergers of equals ).

For banks and insurance companies, the point of view that in a permanent establishment group for which the SE is particularly suitable (unlike a group with subsidiaries) only has to deal with one supervisory authority, namely that of the country of domicile.

The SE is also increasingly being used as a legal form by medium-sized companies in order to take account of their international market presence or to make corporate succession more gradual with the help of the one- tier system .

Finally, the trade unions have discovered the SE - which they are also skeptical of because of the negotiable co-determination - according to the report of the Commission as a means of creating pan-European employee awareness.

Company management, participation, accounting and bankruptcy

The management or management of a European company can (as is common in Central Europe) be divided into the board of directors and the supervisory board or, as in the Anglo-Saxon legal area, a board of directors with executive and non-executive managers . In Germany and Austria this board is called the administrative board . The founders have to choose between the dualistic and the monistic model in the statutes .

The involvement of the employees in the SE is based on the national implementation acts implementing Directive 2001/86 / EC (cf. Art. 288 (3) TFEU). In Germany, the implementation took place through the law on the participation of employees in a European company (SE-Beteiligungsgesetz - SEBG) of December 22, 2004, which is to be interpreted in conformity with EU law in accordance with the directive. The guideline provides that a special negotiating body (BVG) elected by the employees and representatives of the founding company (s) regulate the employee participation in a participation agreement ( Section 21 SEBG, Art. 4 Directive 2001/86 / EC). If no agreement is reached during the six-month negotiations, which can be extended to up to a year, a so-called fallback solution ( §§ 22 ff. , 34 ff. SEBG, Art. 7 Directive 2001/86 / EC in conjunction with with the appendices), which is measured in principle by the highest previous degree of co-determination in one of the companies involved, from which the SE emerged. Employee participation includes both a procedure for information and consultation (in Germany generally implemented by the SE works council) as well as participation in the bodies of the SE. National co-determination law (in Germany e.g. MitbestG, Third Party Act) applies according to § 47 Paragraph 1 No. 1 SEBG, Art. 13 Paragraph 3 lit. a) Directive 2001/86 / EC does not apply to the SE. In Germany, Allianz (since October 13, 2006), Fresenius (since July 13, 2007) and BASF (since January 14, 2008) operate as SEs among the large companies , whereby all three companies use the dual management system while maintaining the quasi - have decided on parity co-determination in the supervisory board as a management model. In the course of the conversion into an SE, however, the supervisory boards were reduced to 12 members and it was agreed that the executive office would no longer be based. The conversion of Puma AG into a one-tier SE took effect on July 25, 2011.

First empirical studies show that, contrary to the reservations that have been expressed many times, codetermination does not prevent the conversion into an SE.

The accounting and handling of insolvencies will continue to be carried out under national law.

founding

According to Council Regulation (EC) No. 2157/2001 of October 8, 2001 on the Statute for a European Company (SE), there are four different options for establishing an SE: 1. Merger (merger) of existing companies, 2. Establishment of a holding company, 3. Establishment of a joint subsidiary by several companies or an existing SE, 4. Conversion of a national stock corporation.

The following conditions must also be met:

  • In principle, only companies from EU and EEA member states can participate in the establishment. The inclusion of the EEA companies results from the resolution of the Joint EEA Committee No. 93/2002 of June 25, 2002 amending Annex XXII (company law) of the EEA Agreement, OJ L 266 of October 3, 2002, p. 69.
  • An essential prerequisite for the formation of an SE is a cross-border element, depending on the respective form of formation (cf. Art. 2 SE Regulation for the following explanations).
    • Merger: The joint-stock companies involved must come from at least two member states (so-called multi-state reference)
    • Holding SE: Either, as in the case of the merger, at least two of the companies involved are resident in different member states and have limited liability, but there is also the possibility of a merger of companies from the same member state, provided that at least two of these companies have been through a subsidiary or a subsidiary for at least two years Have a branch in another Member State.
    • Subsidiary SE: Same as Holding SE with the additional option that non-limited liability companies can also establish an SE subsidiary.
    • Conversion SE: The corporation to be converted must have had a subsidiary in another Member State for at least two years; a branch is not sufficient.
    • Subsidiary SE of an existing SE: no cross-border element necessary because this was already fulfilled when the original SE was founded.
  • The capital must be at least 120,000 euros.
  • Which legal entities are entitled to establish a Societas Europaea depends on the respective form of incorporation. Only stock corporations are entitled to found an SE through merger, a holding SE can be founded by stock corporations and limited liability companies , a joint subsidiary SE can be founded by all companies in accordance with Art. 54 (2) TFEU (this includes corporations and partnerships as well as other legal entities ), the conversion into an SE is only available to stock corporations. As a fifth formation variant, the SE Regulation provides for the establishment of a subsidiary SE by an existing SE. An SE that has already been established can participate in all forms of formation.

Information and funding

An amount has been earmarked in the EU budget to prepare workers for the changeover negotiations. In budget line B3-4003 it is stated: A priority objective is the "exchange of information and experience in order to prepare employees in the European company for information, consultation and participation."

Legal basis

European Union

The legal basis for the European stock corporation is the EC regulation 2157/2001 on the statute for a European company (SE) of October 8, 2001. The regulation came into force on October 8, 2004 after a transition period of three years. Like all regulations of the European Union , the SE regulation is directly applicable law, i. In other words, it did not have to be transposed separately into national law by the EU member states.

The SE Regulation is supplemented by Directive 2001/86 / EC supplementing the Statute for a European Company with regard to the involvement of employees of October 8, 2001. The Directive has no direct legal effect. It must therefore be implemented in national law by the EC member states.

On November 17, 2010, the European Commission presented a report to the European Parliament and the Council on the application of the regulation of October 8, 2001, in which it summarizes the experience gained so far with the SE and suggests some legal improvements and prospects for proposals represents. In particular, she proposes a simplification of the time-consuming and complex start-up procedure.

German-speaking area

Germany

In Germany , the Bundestag passed the law introducing the European Company (SE Introductory Act) , which came into force on December 29, 2004. The SE Introductory Act essentially consists of two separate acts: the Act on the Implementation of the EC Regulation on the Statute of a European Company (SEAG) and the Act on the Participation of Employees in a European Company (SEBG) . The SEAG supplements Council Regulation (EC) No. 2157/2001 of October 8, 2001 on the Statute for a European Company (SE Regulation); the SEBG implements Council Directive 2001/86 / EC of October 8, 2001 Amendment of the statute of the European company with regard to the involvement of employees (SE Directive) in German law.

Austria

In Austria , the SE law was published in the Federal Law Gazette on June 24, 2004.

Belgium

In Belgium , the corporate form was transposed into national law by the Royal Decree implementing the Regulation on the Statute for a European Company of September 1, 2004; this was done by changing the company code, in which the relevant provisions can now be found. The first European companies were founded in Belgium at the end of 2004.

Liechtenstein

Since Liechtenstein is a member of the EEA, it is possible to set up an SE with a company domiciled in Liechtenstein or companies in Liechtenstein. The Liechtenstein SE law is dated November 25, 2005.

Switzerland

The Switzerland is neither a member of the EU or the EEA. It is therefore currently not possible to set up an SE with a company domiciled in Switzerland or by companies in Switzerland.

Statute law of the SE

European stock corporations are obliged to issue statutes . The specialty of the SE is that the Articles of Association even take precedence over national laws where the SE Regulation expressly gives it scope for regulations. However, in areas that the SE Regulation does not regulate or only partially regulates, it must fit into the then additionally applicable national legal framework. This hierarchy of norms, unusual at first glance, is laid down in Article 9 of the SE Regulation; it is based on the fact that the SE is a legal form of European law to which the national law of the country of domicile is only applicable as a supplement.

Tax treatment

The regulatory content of the SE Regulation does not include the tax law relationships of the European stock corporation. Therefore, the tax treatment of the SE according to Art. 10 SE-VO does not differ from that of a national stock corporation in the country of domicile. It basically follows the local tax laws. In view of the typically - within the internal market - cross-border activities of the SE, European legal provisions must also be taken into account. On the one hand, all national regulations must be measured against primary Community law. The point of reference for judgments by the European Court of Justice are often the fundamental freedoms codified in the EC Treaty. Secondly, secondary Community law, in particular in the form of the Merger Directive and the Parent / Subsidiary Directive, has a considerable influence on the tax treatment of the SE. The European Community has recently expressis verbis extended the personal areas of application of these legal acts to the SE. After h. M. , however, the guidelines are already applicable due to the principle of equal treatment with national companies.

Practical meaning

The European Trade Union Institute for Research , an institution of the European Trade Union Confederation , has observed the number of SEs established since the EU regulation came into force on October 8, 2004. The statistical evaluations up to 2014 have been published on its website.

Accordingly, in the first few years after the EU regulation came into force, the number of SEs founded was initially low, but then increased significantly over the years. It was noticeable that the number of SE foundations differed significantly from one another in the various countries.

In 2007 only 70 SE formations were registered, in 2010 around 500, in 2013 around 2052 and in March 2017 2695 SE formations were registered.

Considered in sections of three years, after a maximum between the years 2010 and 2013, the frequency of SE start-ups declined in the observation period between the years 2013 to 2016.

literature

  • Werner Altmeyer / Thomas Diekmann / Ulrich Zachert: European stock corporation: Negotiation of a co-determination agreement for tesa SE . In: AiB . 30.Jg., Issue 5, 2009, p. 260–263 ( Download [PDF; 72 kB ]).
  • Gregor Bachmann: The Societas Europaea and European private law . In: ZEuP . 16. Vol. 1, 2008, pp. 32-58 .
  • Roberto Bartone, Ralf Klapdor (Hrsg.): The European stock corporation. Law, tax, business administration . Erich Schmidt Verlag, Berlin 2005, ISBN 3-503-08709-5 .
  • Ulrike Binder, Michael Jünemann, Friedrich Merz, Patrick Sinewe: European stock corporation (SE) - law, taxes, advice . Gabler Verlag, Wiesbaden 2007, ISBN 978-3-8349-0444-7 .
  • Peter Theodor Breit: Societas Europaea (SE) and Societas Cooperativa Europaea (SCE): Assessment of the legal bases and their effects from the point of view of the employees of German companies . LIT Verlag, Münster 2010, ISBN 978-3-643-10889-0 .
  • Andreas Engert: The area of ​​application of the law of the European stock corporation under international private law and substantive law . In: Journal for Comparative Law (ZVglRWiss), 104th Vol. (2005), pp. 444–460.
  • Gülsen Erkis: The taxation of the European (stock) company - Societas Europaea (SE) . Publishing house Dr. Kovac, Hamburg 2006, ISBN 3-8300-2613-7 .
  • Mathias Habersack and Florian Drinhusen (eds.): SE law: with cross-border merger . Beck, Munich 2013, ISBN 978-3-406-61710-2 .
  • Andreas Hoger: Continuity with the change of legal form after the UmwG and the cross-border transfer of the seat of an SE . Carl Heymanns Verlag, Cologne 2008, ISBN 978-3-452-26831-0 .
  • Manz, Mayer, Schröder (eds.): European stock corporation - SE, commentary on company law, labor law and taxation of the SE . 2nd Edition. Nomos Verlagsgesellschaft, Baden-Baden 2010, ISBN 978-3-8329-5548-9 .
  • Krzysztof Oplustil, Christoph Teichmann (Ed.): The European Company - all over Europe: A state-by-state account of the introduction of the European Company . De Gruyter Verlag, Berlin 2004, ISBN 3-89949-096-7 .
  • Nico Raabe: Codetermination on the Supervisory Board - Theory and Reality in German Stock Companies . Erich-Schmidt-Verlag, Berlin 2011, ISBN 978-3-503-12619-4 .
  • Wolf-Georg rings : The relocation of the European stock corporation . Mohr Siebeck, Tübingen 2006, ISBN 3-16-149102-5 .
  • Edgar Rose, Roland Köstler: Codetermination in the European Stock Corporation (SE) . Bund-Verlag, Frankfurt am Main 2011, ISBN 978-3-7663-6088-5 (in the series "Works and Service Agreements" of the Hans Böckler Foundation).
  • Marc Schreiner: Admissibility and economic re-establishment of a shelf SE . Publishing house Dr. Kovac, Hamburg 2009, ISBN 978-3-8300-3902-0 .
  • Manuel René Theisen, Martin Wenz (ed.): The European stock corporation. Law, tax and business administration at Societas Europaea (SE) . 2nd Edition. Brussels 2005, ISBN 3-7910-2266-0 (with a foreword by Frits Bolkestein, former EU Commissioner).
  • Roderich C. Thümmel: The European stock corporation (SE) - a guide for corporate and consulting practice . Frankfurt am Main 2001, ISBN 3-8005-1357-9 .
  • Dirk Jannott, Jürgen Frodermann (ed.): Manual of the European stock corporation - Societas Europaea (SE) . CF Müller, Heidelberg 2014, ISBN 978-3-8114-3756-2 .
  • Lutter, Marcus / Bayer, Walter / Schmidt, Jessica: European corporate and capital market law. Basics, status and development along with texts and materials. Section 45 European stock corporation (Societas Europaea - SE), De Gruyter, Berlin 2017, ISBN 978-3-11-045625-7 .
  • Jung, Stefanie / Krebs, Peter / Stiegler, Sascha: Company law in Europe. Manual. § 4 European stock corporation (SE - Societas Europaea), Nomos, Baden-Baden 2019, ISBN 978-3-8329-7539-5 .

Web links

Individual evidence

  1. ↑ EC Regulation No. 2157/2001, Title I, Art. 1, Paragraph 3.
  2. ↑ EC Regulation No. 2157/2001, Title I, Art. 4, Paragraph 2 and Paragraph 3.
  3. ↑ EC Regulation No. 2157/2001, Title I, Art. 1, Paragraph 2.
  4. ↑ Decision of the EEA Joint Committee No. 93/2002 of June 25, 2002 amending Annex XXII (Company Law) of the EEA Agreement, ABl. L 266/69 of October 3, 2002
  5. ↑ EC Regulation No. 2157/2001, Title I, Art. 7 and Art. 8.
  6. ↑ EC Regulation No. 2157/2001, Title III, Articles 38, 39 and 43.
  7. ↑ The EC Regulation No. 2157/2001 makes no statements about trading in shares.
  8. ↑ EC Regulation No. 2157/2001, Title I, Art. 10.
  9. ↑ Report from the Commission to the European Parliament and the Council on the application of Regulation (EC) No. 2157/2001 of the Council of 8 October 2001 on the Statute for a European Company (SE) (PDF) , p. 4 there
  10. ↑ Heckschen FS Westermann, 999, 1000
  11. ↑ Report from the Commission to the European Parliament and the Council on the application of Regulation (EC) No. 2157/2001 of the Council of 8 October 2001 on the Statute for a European Company (SE) (PDF) , p. 4
  12. ↑ Directive 2001/86 / EC of the Council of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees, OJ. No. L-294, November 10, 2001, pp. 22-32.
  13. ↑ BGBl. I p. 3675, 3686
  14. ↑ In addition, monograph Gerrit Forst, The Participation Agreement according to § 21 SEBG, Carl Heymann Verlag, Cologne 2010 (also Bonn, Univ., Diss. 2009)
  15. ^ Nico Raabe: Codetermination in the Supervisory Board - Theory and Reality in German Stock Companies. Erich-Schmidt-Verlag, Berlin 2011, ISBN 978-3-503-12619-4 , p. 303 ff.
  16. ↑ Regulation (EC) No. 2157/2001
  17. ↑ Report from the Commission to the European Parliament and the Council on the application of Regulation (EC) No. 2157/2001 of the Council of 8 October 2001 on the Statute for a European Company (SE) (PDF)
  18. ↑ BGBl. I p. 3675 (PDF; 255 kB)
  19. ↑ SE Implementation Act - SEAG
  20. ↑ SE Participation Act - SEBG
  21. ↑ OJ. EG No. L 294 of November 10, 2001, pp. 1–21
  22. ↑ OJ. L 294 of November 10, 2001, pp. 22-32
  23. ↑ http://www.ejustice.just.fgov.be/mopdf/2005/10/12_1.pdf#Page28
  24. ↑ Company Code , official translation by the ZDDÜ .
  25. ↑ https://www.gesetze.li/chrono/2006026000
  26. ↑ cf. Art. 20 para. 1 letter h, Art. 32 para. 2 and Art. 37 para. 7 SE Regulation; in the case of the "founding of a subsidiary SE" variant, however, this only follows from the applicable national law.
  27. ↑ http://www.worker-participation.eu/European-Company-SE/History
  28. ↑ http://www.worker-participation.eu/European-Company-SE/History
  29. ↑ http://www.worker-participation.eu/European-Company-SE/Facts-Figures
  30. ↑ http://ecdb.worker-participation.eu/