The European Public Limited-Liability Company Regulations 2004

PART 2E+W+SREGISTRATION OF SEs AND THE REGISTRAR ETC.

The registrarE+W+S

4.  The registrar has the functions conferred by this Part in relation to the registration, or the deletion of the registration, of an SE.

[F1Registration of an SE formed by merger in accordance with Article 2(1)E+W+S

5.—(1) Where it is proposed to register an SE formed by merger in accordance with Article 2(1), there must be delivered to the registrar an application for registration together with—

(a)a copy of the statutes of the proposed SE, and

(b)a copy of a court order from the relevant competent authority under regulation 75(c) confirming compliance with the requirements of Article 26.

(2) The application must contain the following particulars in respect of each public limited-liability company merging to form the proposed SE—

(a)its name;

(b)its registered number (if any);

(c)its registered office address;

(d)the Member State in which it is registered; and

(e)the address of the registry where its documents are filed.

(3) The application must also contain—

(a)a statement of whether the merger is by acquisition or by the formation of a new SE, and in cases where the merger is by acquisition, which of the merging companies is the acquiring company;

(b)a statement of the SE’s name and registered office address (see regulation 10A);

(c)a statement of proposed members (see regulation 10B); F2...

(d)a statement of subscribed capital [F3(see regulation 10C); and

(e)a statement of initial significant control (see section 12A of the 2006 Act).]]

[F4Registration of the formation of a holding SE in accordance with Article 2(2)E+W+S

6.—(1) Where it is proposed to register a holding SE formed in accordance with Article 2(2), there must be delivered to the registrar an application for registration together with—

(a)a copy of the statutes of the proposed holding SE;

(b)copies of the written report or reports by independent experts given in accordance with Article 32(4);

(c)a copy of the resolution of each promoting company approving the draft terms for the formation of the proposed holding SE in accordance with Article 32(6);

(d)if rights are reserved under Article 32(6), a copy of the resolution of each promoting company giving express ratification of the employee involvement arrangements; and

(e)a statement of compliance (see regulation 11A).

(2) The application must contain the following particulars in respect of each company promoting the formation of the proposed holding SE—

(a)its name;

(b)its registered number (if any);

(c)its registered office address;

(d)the Member State in which it is registered; and

(e)the address of the registry where its documents are filed.

(3) The application must also contain—

(a)a statement of the SE’s name and address (see regulation 10A);

(b)a statement of its proposed members (see regulation 10B);

(c)a statement of subscribed capital (see regulation 10C); F5...

(d)an employee involvement statement (see regulation 10D) made—

(i)in the case of a statement under paragraph 10D(2), on behalf of the special negotiating body and by a proposed member of the management or administrative organ of the proposed SE; or

(ii)in the case of a statement under paragraph 10D(3), by a proposed member of the management or administrative organ of the [F6proposed SE; and

(e)a statement of initial significant control (see section 12A of the 2006 Act).]

(4) The application must also contain the following particulars in respect of the formation of the holding SE—

(a)the dates on which the draft terms for the formation of the proposed SE were publicised in accordance with Article 32(3);

(b)the dates on which the written reports delivered with the application in accordance with paragraph (1)(b) were drawn up in accordance with Articles 32(4) and (5) and particulars of who drew them up; and

(c)the dates on which the draft terms of formation of the SE were approved under Article 32(6) in general meetings of the promoting companies and whether such general meetings—

(i)did not reserve the right to make registration of the proposed SE conditional upon its or their express ratification of the employee involvement arrangements in accordance with the EC Directive, or

(ii)did make the reservation set out in sub-paragraph (i) but ratified the employee involvement arrangements (specifying the dates on which such ratifications occurred).]

[F7Registration of the formation of a subsidiary SE in accordance with Article 2(3)E+W+S

7.—(1) Where it is proposed to register a subsidiary SE formed in accordance with Article 2(3), there must be delivered to the registrar an application for registration together with—

(a)a copy of the statutes of the proposed subsidiary SE, and

(b)a statement of compliance (see regulation 11A).

(2) The application must contain the following particulars in respect of each company or firm forming the proposed subsidiary SE—

(a)its name;

(b)its registered number (if any);

(c)its registered office address;

(d)the Member State in which it is registered; and

(e)the address of the registry where its documents are filed.

(3) The application must also contain—

(a)a statement of the SE’s name and registered office address (see regulation 10A);

(b)a statement of its proposed members (see regulation 10B);

(c)a statement of subscribed capital (see regulation 10C); F8...

(d)an employee involvement statement (see regulation 10D) made—

(i)in the case of a statement under paragraph 10D(2), on behalf of the special negotiating body and by a proposed member of the management or administrative organ of the proposed subsidiary SE, or

(ii)in the case of a statement under paragraph 10D(3), by a proposed member of the management or administrative organ of the proposed [F9subsidiary SE; and

(e)a statement of initial significant control (see section 12A of the 2006 Act).]]

[F10Registration of an SE by the transformation of a public company in accordance with Article 2(4)E+W+S

8.—(1) Where it is proposed to register an SE by the transformation of a public company in accordance with Article 2(4), there must be delivered to the registrar an application for registration together with—

(a)a copy of the statutes of the proposed SE;

(b)a copy of the report explaining and justifying the legal and economic aspects of the conversion in accordance with Article 37(4);

(c)copies of the certificates made in accordance with Article 37(6);

(d)a copy of the resolution approving the draft statutes and draft terms of conversion to SE of the public company in accordance with Article 37(7); and

(e)a statement of compliance (see regulation 11A).

(2) The application must state—

(a)the public company’s registered number and name;

(b)the date on which the certificate was prepared in accordance with Article 37(6); and

(c)the date on which the general meeting of the public company approved the draft terms of conversion in accordance with Article 37(7).

(3) The application must also contain —

(a)a statement of the SE’s name and registered office address (see regulation 10A);

(b)a statement of its proposed members (see regulation 10B);

(c)a statement of subscribed capital (see regulation 10C); F11...

(d)an employee involvement statement (see regulation 10D) made—

(i)in the case of a statement under paragraph 10D(2), on behalf of the special negotiating body and by a director of the public company; or

(ii)in the case of a statement under paragraph 10D(3), by a director of the public [F12company; and

(e)a statement of initial significant control (see section 12A of the 2006 Act).]]

[F13Registration of an SE formed as the subsidiary of an SE in accordance with Article 3(2)E+W+S

9.—(1) Where it is proposed to register an SE formed as the subsidiary of an SE in accordance with Article 3(2), there must be delivered to the registrar an application for registration together with—

(a)a copy of the statutes of the proposed subsidiary SE; and

(b)a statement of compliance (see regulation 11A).

(2) The application must contain the following particulars in respect of each subscribing SE—

(a)its name;

(b)its registered number (if any);

(c)its registered office address;

(d)the Member State in which it is registered; and

(e)the address of the registry where its documents are filed.

(3) The application must also contain—

(a)a statement of the new SE’s name and registered office address (see regulation 10A);

(b)a statement of its proposed members (see regulation 10B);

(c)a statement of subscribed capital (see regulation 10C); F14...

(d)an employee involvement statement (see regulation 10D) made—

(i)in the case of a statement under paragraph 10D(2), on behalf of the special negotiating body and by a proposed member of the management or administrative organ of the proposed subsidiary SE; or

(ii)in the case of a statement under paragraph 10D(3), by a proposed member of the management or administrative organ of the proposed [F15subsidiary SE; and

(e)a statement of initial significant control (see section 12A of the 2006 Act).]]

[F16Registration of an SE on the transfer of its registered office to the United Kingdom in accordance with Article 8E+W+S

10.—(1) Where it is proposed to transfer to the United Kingdom the registered office of an SE whose registered office is situated in another Member State, there must be delivered to the registrar an application for registration together with—

(a)a copy of the statutes of the SE; and

(b)a copy of the certificate issued in accordance with Article 8(8).

(2) The application must contain the following particulars—

(a)the SE’s name and registered number (if any);

(b)the date of the SE’s current registration;

(c)the SE’s current registered office address and the Member State in which this is situated;

(d)the name and address of the SE’s current registry;

(e)the SE’s principal business activities; and

(f)the date of the last balance sheet drawn up prior to the proposed transfer to the United Kingdom or, where no such balance sheet was drawn up, the date of formation of the SE.

(3) The application must also contain—

(a)a statement of the SE’s registered office address on transfer and any new name (see regulation 10A);F17...

(b)a statement of its proposed members [F18(see regulation 10B); and

(c)a statement of initial significant control (see section 12A of the 2006 Act).]

(4) For the purpose of paragraph (2)(e), the information as to the SE’s principal business activities may be given by reference to one or more categories of any system of classifying business activities prescribed pursuant to section 855(3) of the 2006 Act.]

[F19Statement of SE’s name and registered office addressE+W+S

10A.—(1) Any statement of the SE’s name and registered office address required to be delivered to the registrar under regulations 5 to 10 must, in cases where a duty arises under section 56 of the 2006 Act to seek the view of a specified government department or other body regarding the SE’s name, contain a statement that such a request has been made and a copy of any response received.

(2) In the case of an application under regulation 10, it is not obligatory to propose a new name on transfer of the SE.

Statement of proposed membersE+W+S

10B.—(1) The statement of proposed members required to be delivered to the registrar under regulations 5 to 10 must contain the following particulars in respect of the persons who are to be (or in the case of regulation 10, are) the members of the SE—

(a)in the case of an individual, the particulars specified in section 163 of the 2006 Act and the member’s usual residential address;

(b)in the case of body corporate, or a firm that is a legal person under the law by which it is governed, the particulars specified in section 164 of the 2006 Act.

(2) The statement must also contain—

(a)an indication, where applicable, that an application is being made, or has been granted, for an exemption to the disclosure of a usual residential address under section 243 of the 2006 Act; and

(b)a [F20statement that] each of the persons named a proposed member [F21has consented] to act as a member of the SE.

(3) Subsections (2) to (4) of section 163 of the 2006 Act apply for the purposes of paragraph (1)(a) above as they apply for the purposes of that section.

(4) For the purposes of paragraph (1) a person’s service address may be stated to be “The SE’s Registered Office”.

(5) Any [F22statement] under paragraph (2)(b) must state—

(a)in the case of an SE which has adopted the form of a two-tier system in its statutes, whether the consent [F23was given] to act as a member of—

(i)the supervisory organ, or

(ii)the management organ; and

(b)in the case of an SE which has adopted the form of a one-tier system in its statutes, that the consent [F23was given] to act as a member of the administrative organ.

Statement of subscribed capitalE+W+S

10C.—(1) The statement of subscribed capital required to be delivered to the registrar under regulations 5 to 9 must contain the following particulars in respect of the subscribed capital of the proposed SE—

(a)the subscribed capital in pounds sterling or in euros;

(b)the subscribed capital in other currencies, specifying any such currencies;

(c)confirmation that the total subscribed capital is in accordance with Article 4(2); and

(d)the principal business activities of the proposed SE.

(2) For the purpose of paragraph (1)(d), the information as to the principal business activities of the proposed SE may be given by reference to one or more categories of any system of classifying business activities prescribed pursuant to section 855(3) of the 2006 Act.

Employee involvement statementE+W+S

10D.—(1) The employee involvement statement required to be delivered to the registrar under regulations 6 to 9 must contain either a statement under paragraph (2) or a statement under paragraph (3) of this regulation.

(2) An employee involvement statement under this paragraph is a statement that—

(a)there are no outstanding disputes concerning employee involvement under the Great Britain Regulations or, where applicable, the Northern Ireland Regulations, or any equivalent legislation of any other relevant Member State implementing the EC Directive; and

(b)where applicable, the relevant entities have fulfilled their obligations in accordance with the Great Britain Regulations or the Northern Ireland Regulations as appropriate, and that—

(i)an employee involvement agreement has been reached in accordance with regulation 15 of the Great Britain Regulations or, as the case may be, regulation 15 of the Northern Ireland Regulations;

(ii)the special negotiating body established under regulations 8 to 41 of the Great Britain Regulations or, as the case may be, regulations 8 to 39 of the Northern Ireland Regulations, has taken the decision in accordance with regulation 17 of the Great Britain Regulations or, as the case may be, regulation 17 of the Northern Ireland Regulations, not to open, or to terminate, the negotiations but instead to rely upon national rules for information and consultation; or

(iii)it has been agreed to apply the standard rules on employee involvement in accordance with regulation 19 of the Great Britain Regulations or, as the case may be, regulation 19 of the Northern Ireland Regulations.

(3) An employee involvement statement under this paragraph is a statement that—

(a)there are no outstanding disputes concerning employee involvement under the Great Britain Regulations, Northern Ireland Regulations, or any equivalent legislation of any other relevant Member State implementing the EC Directive;

(b)the relevant companies or SEs have fulfilled their obligations under these Regulations;

(c)no employee involvement agreement has been reached in the timeframe specified in regulation 14 of the Great Britain Regulations, or as the case may be, regulation 14 of the Northern Ireland Regulations, and no decision has been taken in accordance with regulation 17 of the Great Britain Regulations or, as the case may be, regulation 17 of the Northern Ireland Regulations, not to open, or to terminate, negotiations; and

(d)that the standard rules on employee involvement in accordance with regulation 19 of the Great Britain Regulations or, as the case may be, regulation 19 of the Northern Ireland Regulations, will therefore apply.

(4) In this regulation—

(a)“Great Britain Regulations” means the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009; and

(b)“Northern Ireland Regulations” means the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009.]

[F24Certificate of the competent authority under Article 8(8)E+W+S

11.—(1) Where it is proposed to transfer the registered office of an SE from the United Kingdom to another Member State, there must be delivered to the registrar an application for the issue by the Secretary of State of a certificate under Article 8(8), together with—

(a)a copy of the general meeting resolution approving the transfer of the SE;

(b)the statement of solvency required by regulation 72;

(c)a copy of the report required by Article 8(3); and

(d)a statement of compliance.

(2) The application must contain the following particulars—

(a)the SE’s name and registered number;

(b)any proposed new name for the SE on transfer;

(c)the name of the Member State to which it is proposed that the SE transfer and the address of that Member State’s registry;

(d)the proposed registered office address of the SE on transfer;

(e)the principal business activities of the SE;

(f)the date on which the report required by Article 8(3) was drawn up in accordance with that Article; and

(g)the date on which the general meeting of the SE approved the transfer proposal in accordance with Article 59.

(3) The registrar must deliver any application and other documents received under paragraph (1) to the Secretary of State for the Secretary of State to consider the issue of a certificate under Article 8(8).

(4) For the purpose of paragraph (2)(e), the information as to the principal business activities of the SE may be given by reference to one or more categories of any system of classifying business activities prescribed pursuant to section 855(3) of the 2006 Act.]

[F25Statement of complianceE+W+S

11A.—(1) The statement of compliance required to be delivered to the registrar with an application for registration of a formation, transformation or transfer of an SE under regulations 6, 7, 8, 9 and 11 is a statement that all the requirements of these Regulations and the EC Regulation in respect of such formation, transformation or transfer (including as to registration) have been complied with.

(2) The registrar and Secretary of State may accept the statement of compliance as sufficient evidence of compliance.]

Registration of an SEE+W+S

12.  The registrar shall register an SE formed or transformed under the provisions of Articles 2 and 3 or an SE whose registered office is transferred to [F26the United Kingdom] under Article 8 where she is satisfied that all 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 the registrarE+W+S

13.—[F27(1) The registrar shall retain any document delivered to the registrar under any provision of these Regulations or the EC Regulation.

(1A) Any reference in the 2006 Act to “the register” is to be read as including a reference to—

(a)the documents required to be retained by the registrar under paragraph (1), and

(b)records of the information contained in those documents.

(1B) In the application of the 2006 Act in relation to those documents and records by virtue of paragraph (1A), the provisions specified in Schedule 1A to these Regulations have effect with the modifications specified in relation to each such provision in that Schedule.]

(2) For the purposes of this regulation documents delivered to the Secretary of State under regulation 11 shall be treated as documents delivered to the registrar on the deletion of the registration of the SE making the application under the regulation and the provisions of regulation 14 will apply accordingly.

[F28Application of language requirements to documents relating to SEsE+W+S

13A.—(1) The following provisions of the 2006 Act apply in relation to documents required to be delivered to the registrar under these Regulations or the EC Regulation—

(a)section 1103 (documents to be drawn up and delivered in English);

(b)section 1105 (documents that may be drawn up and delivered in other languages);

(c)section 1107 (certified translations).

(2) In the application of the provisions listed in paragraph (1) in relation to the documents referred to in that paragraph—

(a)section 1103 applies as if the reference to section 1104 of the 2006 Act were omitted;

(b)section 1105 applies as if for subsections (2) and (3) there were substituted—

“(2) This section applies to—

(a)documents specified F29... in regulations 5 to 11 of the European Public Limited-Liability Company Regulations 2004 (provisions relating to registration etc);

(b)copies of transfer proposals required to be delivered under regulation 68(1)(a) of those Regulations (publication of terms of transfer);

(c)copies of draft terms required to be delivered under regulation 68(2)(a) or (3)(a) of those Regulations (publication of terms for formation of holding SE or conversion of company into SE);

(d)copies of amendments to statutes required to be delivered under regulation 82(1)(a) of those Regulations (notification of amendments to statutes);

(e)documents required to be delivered F30... under regulation 85 of those Regulations (registration of a public company by conversion of SE);

(f)copies of draft terms required to be delivered under regulation 86 of those Regulations (publication of draft terms of conversion).”;

(c)section 1107 applies as if any reference to a company were a reference to an SE.

(3) Section 1106(1) and (4) of the 2006 Act (voluntary filing of translations), and any provision of regulations made under section 1106(2) which specifies the languages in relation to which the facility in section 1106(1) is available, apply in relation to documents within paragraph (4), as if any reference to a company were a reference to an SE.

(4) The documents referred to in paragraph (3) are documents that are or have been delivered to the registrar under these Regulations or the EC Regulation on or after 1st January 2007.

(5) For the purposes of this regulation documents required to be delivered to the Secretary of State under regulation 11 shall be treated as documents required to be delivered to the registrar under that regulation.]

[F31Application of the 2006 Act to the registration of SEs]E+W+S

14.—[F32(1)] The provisions of [F33the 2006 Act] specified in Schedule 2 to these Regulations shall apply in respect of

(a)the registration or the deletion of registration of SEs under these Regulations and the EC Regulation;

(b)the functions of the registrar in respect of such registrations or deletions.

Those provisions shall apply under this regulation subject to any limitations or qualifications specified in relation to each such provision in that Schedule.

[F34(2) This regulation does not affect the application of provisions of the 2006 Act in respect of the matters referred to in paragraph (1)(a) or (b) otherwise than by virtue of this regulation.]

False statements in documents [F35delivered to the registrar] E+W+S

15.  Any person who makes a false statement:

(a)in any [F36application for registration delivered] to the registrar under regulations 5 to 10 and regulation 85,

(b)in any [F37application delivered to the registrar] under regulation 11,

(c)in any document [F38required to be delivered with such an application], or

(d)in any other document required to be [F39delivered] to the registrar under these Regulations,

which he knows to be false or does not believe to be true is liable, on conviction on indictment to imprisonment not exceeding two years, or to a fine, or to both, and on summary conviction to imprisonment not exceeding three months, or to a fine not exceeding the statutory maximum or to both.