Council Regulation (EC) No 1435/2003Show full title

Council Regulation (EC) No 1435/2003

of 22 July 2003

on the Statute for a European Cooperative Society (SCE)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 308 thereof,

Having regard to the proposal from the Commission(1),

Having regard to the opinion of the European Parliament(2),

Having regard to the opinion of the European Economic and Social Committee(3),

Whereas:

(1) The European Parliament adopted resolutions on 13 April 1983 on cooperatives in the European Community(4), on 9 July 1987 on the contribution of cooperatives to regional development(5), on 26 May 1989 on the role of women in cooperatives and local employment initiatives(6), on 11 February 1994 on the contribution of cooperatives to regional development(7) and on 18 September 1998 on the role of cooperatives in the growth of women's employment(8).

(2) The completion of the internal market and the improvement it brings about in the economic and social situation throughout the Community mean not only that barriers to trade should be removed, but also that the structures of production should be adapted to the Community dimension. For that purpose it is essential that companies of all types the business of which is not limited to satisfying purely local needs should be able to plan and carry out the reorganisation of their business on a Community scale.

(3) The legal framework within which business should be carried on in the Community is still based largely on national laws and therefore does not correspond to the economic framework within which it should develop if the objectives set out in Article 18 of the Treaty are to be achieved. That situation forms a considerable obstacle to the creation of groups of companies from different Member States.

(4) The Council has adopted Regulation (EC) No 2157/2001(9) establishing the legal form of the European Company (SE) according to the general principles of the public limited-liability company. This is not an instrument which is suited to the specific features of cooperatives.

(5) The European Economic Interest Grouping (EEIG), as provided for in Regulation (EEC) No 2137/85(10), allows undertakings to promote certain of their activities in common, while nevertheless preserving their independence, but does not meet the specific requirements of cooperative enterprise.

(6) The Community, anxious to ensure equal terms of competition and to contribute to its economic development, should provide cooperatives, which are a form of organisation generally recognised in all Member States, with adequate legal instruments capable of facilitating the development of their cross-border activities. The United Nations has encouraged all governments to ensure a supportive environment in which cooperatives can participate on an equal footing with other forms of enterprise(11).

(7) Cooperatives are primarily groups of persons or legal entities with particular operating principles that are different from those of other economic agents. These include the principles of democratic structure and control and the distribution of the net profit for the financial year on an equitable basis.

(8) These particular principles include notably the principle of the primacy of the individual which is reflected in the specific rules on membership, resignation and expulsion, where the ‘one man, one vote’ rule is laid down and the right to vote is vested in the individual, with the implication that members cannot exercise any rights over the assets of the cooperative.

(9) Cooperatives have a share capital and their members may be either individuals or enterprises. These members may consist wholly or partly of customers, employees or suppliers. Where a cooperative is constituted of members who are themselves cooperative enterprises, it is known as a ‘secondary’ or ‘second-degree’ cooperative. In some circumstances cooperatives may also have among their members a specified proportion of investor members who do not use their services, or of third parties who benefit by their activities or carry out work on their behalf.

(10) A European cooperative society (hereinafter referred to as ‘SCE’) should have as its principal object the satisfaction of its members' needs and/or the development of their economic and/or social activities, in compliance with the following principles:

• its activities should be conducted for the mutual benefit of the members so that each member benefits from the activities of the SCE in accordance with his/her participation,

• members of the SCE should also be customers, employees or suppliers or should be otherwise involved in the activities of the SCE,

• control should be vested equally in members, although weighted voting may be allowed, in order to reflect each member's contribution to the SCE,

• there should be limited interest on loan and share capital,

• profits should be distributed according to business done with the SCE or retained to meet the needs of members,

• there should be no artificial restrictions on membership,

• net assets and reserves should be distributed on winding-up according to the principle of disinterested distribution, that is to say to another cooperative body pursuing similar aims or general interest purposes.

(11) Cross-border cooperation between cooperatives in the Community is currently hampered by legal and administrative difficulties which should be eliminated in a market without frontiers.

(12) The introduction of a European legal form for cooperatives, based on common principles but taking account of their specific features, should enable them to operate outside their own national borders in all or part of the territory of the Community.

(13) The essential aim of this Regulation is to enable the establishment of an SCE by physical persons resident in different Member States or legal entities established under the laws of different Member States. It will also make possible the establishment of an SCE by merger of two existing cooperatives, or by conversion of a national cooperative into the new form without first being wound up, where that cooperative has its registered office and head office within one Member State and an establishment or subsidiary in another Member State.

(14) In view of the specific Community character of an SCE, the ‘real seat’ arrangement adopted by this Regulation in respect of SCEs is without prejudice to Member States' laws and does not pre-empt the choices to be made for other Community texts on company law.

(15) References to capital in this Regulation should comprise solely the subscribed capital. This should not affect any undistributed joint assets/equity capital in the SCE.

(16) This Regulation does not cover other areas of law such as taxation, competition, intellectual property or insolvency. The provisions of the Member States' law and of Community law are therefore applicable in the above areas and in other areas not covered by this Regulation.

(17) The rules on the involvement of employees in the European cooperative society are laid down in Directive 2003/72/EC(12), and those provisions thus form an indissociable complement to this Regulation and are to be applied concomitantly.

(18) Work on the approximation of national company law has made substantial progress so that certain provisions adopted by the Member State where the SCE has its registered office for the purpose of implementing directives on companies may be referred to by analogy for the SCE in areas where the functioning of the cooperative does not require uniform Community rules, such provisions being appropriate to the arrangements governing the SCE, especially:

• first Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent throughout the Community(13),

• fourth Council Directive 78/660/EEC of 25 July 1978 on the annual accounts of certain types of companies(14),

• seventh Council Directive 83/349/EEC of 13 June 1983 on consolidated accounts(15),

• eighth Council Directive 84/253/EEC of 10 April 1984 on the approval of persons responsible for carrying out the statutory audits of accounting documents(16),

• 11th Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State(17).

(19) Activities in the field of financial services in particular in so far as they concern credit establishments and insurance undertakings have been the subject of legislative measures pursuant to the following Directives:

• Council Directive 86/635/EEC of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial institutions(18),

• Council Directive 92/49/EEC on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance (third non-life insurance Directive)(19).

(20) This form of organisation should be optional,

HAS ADOPTED THIS REGULATION:

(1)

OJ C 99, 21.4.1992, p. 17 and OJ C 236, 31.8.1993, p. 17.

(2)

OJ C 42, 15.2.1993, p. 75 and opinion delivered on 14 May 2003 (not yet published in the Official Journal).

(3)

OJ C 223, 31.8.1992, p. 42.

(4)

OJ C 128, 16.5.1983, p. 51.

(5)

OJ C 246, 14.9.1987, p. 94.

(6)

OJ C 158, 26.6.1989, p. 380.

(7)

OJ C 61, 28.2.1994, p. 231.

(8)

OJ C 313, 12.10.1998, p. 234.

(9)

OJ L 294, 10.11.2001, p. 1.

(10)

OJ L 199, 31.7.1985, p. 1.

(11)

Resolution adopted by the General Assembly of the 88th plenary meeting of the United Nations, 19 December 2001 (A/RES/56/114).

(12)

See page 25 of this Official Journal.

(13)

OJ L 65, 14.3.1968, p. 8; Directive as last amended by the 1994 Act of Accession.

(14)

OJ L 222, 14.8.1978, p. 11; Directive as last amended by Directive 2001/65/EC (OJ L 283, 27.10.2001, p. 28).

(15)

OJ L 193, 18.7.1983, p. 1; Directive as last amended by Directive 2001/65/EC.

(16)

OJ L 126, 12.5.1984, p. 20.

(17)

OJ L 395, 30.12.1989, p. 36.

(18)

OJ L 372, 31.12.1986; Directive as last amended by Directive 2001/65/EC.

(19)

OJ L 228, 11.8.1992, p. 1; Directive as last amended by Directive 2002/13/EC (OJ L 77, 20.3.2002, p. 17).