The European Public Limited-Liability Company Regulations 2004

PART 6 E+W+S PROVISIONS RELATING TO THE EFFECTIVE APPLICATION OF THE EC REGULATION

Competent authorities E+W+S

75.  The competent authorities designated under Article 68(2) are—

(a) in respect of Articles 8, 54, 55 and 64, the Secretary of State;

[F1 (b) in respect of Article 25—

(i) the High Court in England and Wales, in relation to a public company whose registered office is in England and Wales,

(ii) the Court of Session, in relation to a public company whose registered office is in Scotland,

(iii) the High Court in Northern Ireland, in relation to a public company whose registered office is in Northern Ireland; and]

[F2 (c) in respect of Article 26—

(i) the High Court in England and Wales, in relation to an SE where the registered office is proposed to be in England and Wales,

(ii) the Court of Session, in relation to an SE where the registered office is proposed to be in Scotland,

(iii) the High Court in Northern Ireland, in relation to an SE where the registered office is proposed to be in Northern Ireland.]

Textual Amendments

F1 Reg. 75(b) substituted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 26(2) (with reg. 2)

F2 Reg. 75(c) substituted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 26(3) (with reg. 2)

Enforcement of obligation to amend Statutes in conflict with Arrangements for Employee Involvement E+W+S

76.—(1) If it appears to the Secretary of State that—

(a) the statutes of an SE are in conflict with the arrangements for employee involvement determined in accordance with [F3 the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009 or, as the case may be, the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009]; and

(b) the statutes have not, to the necessary extent, been amended she may direct the SE to amend the statutes to that extent within such period as she may specify in the direction.

(2) A direction under this regulation is enforceable on the application of the Secretary of State—

(a) in respect of an SE with its registered office in England and Wales, to the High Court [F4 in England and Wales] by injunction; F5 ...

(b) in respect of an SE with its registered office in Scotland, to the Court of Session by an order under section 45 of the Court of Session Act 1988.

[F6 (c) in respect of an SE with its registered office in Northern Ireland, to the High Court in Northern Ireland by injunction.]

Textual Amendments

F3 Words in reg. 76(1)(a) substituted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 27(2) (with reg. 2)

F4 Words in reg. 76(2)(a) inserted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 27(3)(a) (with reg. 2)

F5 Word in reg. 76(2)(a) omitted (1.10.2009) by virtue of The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 27(3)(b) (with reg. 2)

F6 Reg. 76(2)(c) inserted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 27(3)(c) (with reg. 2)

Records of an SE transferred under Article 8(11) or a public company ceasing to exist under Article 29(1) and (2) E+W+S

77.—(1) Where—

(a) the registration of an SE is deleted under Article 8(11) pursuant to a transfer of its registered office to another Member State; or

(b) a public company ceases to exist under Article 29(1)(c) or (2)(c), the records of that SE or public company, as the case may be, kept by the registrar shall continue to be kept by her for a period of twenty years following such a deletion or cessation of existence.

(2) Where the registration of an SE is deleted, the Form, and the documents accompanying it, delivered to the Secretary of State under regulation 11, together with a copy of the certificate issued under Article 8(8) shall be deemed to be documents to be retained by the registrar under regulation 13 and the provisions of these Regulations apply accordingly.

Application of enactments to members of supervisory, management and administrative organs E+W+S

78.—(1) This regulation applies to enactments relating to public companies to the extent that they are required, by the EC Regulation, in the manner described in paragraph 2, to be applied in relation to SEs.

(2) Enactments are required to be applied for the purposes of paragraph (1) where—

(a) any provision of the EC Regulation, other than Article 9, requires the application of any enactment relating to public companies to determine any question or matter; or

(b) in the case of any matter not regulated by the EC Regulation or, where matters are partly regulated by it, of those aspects not covered by it, Article 9 requires the application of any enactment relating to public companies.

(3) Subject to paragraphs (4), (5) and (6) references to “directors” or “board of directors” in any enactment to which this regulation applies shall have effect as if they were references—

(a) in a one-tier system, to the members of the administrative organ; and

(b) in a two-tier system, to the members of the supervisory and management organs.

(4) Any enactment so applied in relation to a two-tier system shall be applied separately in respect of the members of the supervisory organ and the members of the management organ in relation to the functions of the organ, and in respect of the acts and omissions of the members of those organs.

(5) Where, in a two-tier system, any function relates to the management of the SE and, by virtue of Articles 39(1) or 40(1), is a function that cannot be carried out by the supervisory organ, nothing in paragraph (3) has the effect of permitting or requiring the members of the supervisory organ to carry out any such functions.

(6) Where, by virtue of any provision in the EC Regulation or in the statutes, any transaction or function carried out by the management organ in a two-tier system requires the authorisation of the supervisory organ, nothing in paragraph (3) affects, or removes, the requirement for such authorisation.

[F7 Register of members of supervisory organ E+W+S

79.— (1) Every SE which has adopted the form of a two-tier system in its statutes must keep a register of the members of its supervisory organ (“the register of SO members”).

(2) The register must contain the required particulars (see regulations 80 and 80A) of each of the members of the supervisory organ.

(3) The register must be kept available for inspection—

(a) at the SE’s registered office, or

(b) at such place as may for the time being be specified in regulations under section 1136 of the 2006 Act in the case of a company and its register of directors under section 162 of that Act.

(4) The SE must give notice to the registrar—

(a) of the place at which the register is kept available for inspection, and

(b) of any change in that place,

unless the register has at all times been kept at the SE’s registered office.

(5) The register must be open to the inspection—

(a) of any shareholder of the SE without charge, and

(b) of any other person on payment of a fee of £3.50 for each hour or part of an hour during which the right of inspection is exercised.

(6) If—

(a) default is made in complying with paragraph (1), (2) or (3),

(b) default is made for 14 days in complying with paragraph (4), or

(c) an inspection required under paragraph (5) is refused,

an offence is committed by the SE and by every officer of the SE who is in default.

For this purpose a person who, by virtue of section 251 of the 2006 Act (shadow directors) as it applies in relation to an SE, is a shadow director of the SE is treated as an officer of the SE.

(7) A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(8) In the case of a refusal of inspection of the register, the court may by order compel an immediate inspection of it.

(9) For the meaning of “the court” in this regulation see section 1156 of the 2006 Act.

(10) Where an SE is required by this regulation to keep a register of SO members, the application of regulation 78 to that SE does not require particulars of members of the supervisory organ to be kept on any register under section 162 of the 2006 Act (register of directors).

Textual Amendments

F7 Regs. 79-80E substituted for regs. 79, 80 (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 28 (with reg. 2, Sch. 2)

Particulars of members to be registered under regulation 79: individuals E+W+S

80.— (1) An SE’s register of SO members must contain the following particulars in the case of any member of the supervisory organ who is an individual—

(a) name and any former name;

(b) a service address;

(c) the country or state (or part of the United Kingdom) in which the member is usually resident;

(d) nationality;

(e) business occupation (if any);

(f) date of birth.

(2) For the purposes of this regulation “name” means a person’s Christian name (or other forename) and surname, except that in the case of—

(a) a peer, or

(b) an individual usually known by a title,

the title may be stated instead of the person’s Christian name (or other forename) and surname or in addition to either or both of them.

(3) For the purposes of this regulation a “former name” means a name by which the individual was formerly known for business purposes.

Where a person is or was formerly known by more than one such name, each of them must be stated.

(4) It is not necessary for the register to contain particulars of a former name in the following cases—

(a) in the case of a peer or an individual normally known by a British title, where the name is one by which the person was known previous to the adoption of, or succession to, the title;

(b) in the case of any person, where the former name—

(i) was changed or disused before the person attained the age of 16 years, or

(ii) has been changed or disused for 20 years or more.

(5) A person’s service address may be stated to be “The SE’s registered office”.

(6) For the meaning of “service address” see section 1141 of the 2006 Act.

Textual Amendments

F7 Regs. 79-80E substituted for regs. 79, 80 (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 28 (with reg. 2, Sch. 2)

Particulars of members to be registered under regulation 79: corporate members and firms E+W+S

80A.   An SE’s register of SO members must contain the following particulars in the case of a body corporate, or a firm that is a legal person under the law by which it is governed,—

(a) corporate or firm name;

(b) registered or principal office;

(c) in the case of an EEA company to which the First Company Law Directive (68/151/EEC) applies, particulars of—

(i) the register in which the company file mentioned in Article 3 of that Directive is kept (including details of the relevant state), and

(ii) the registration number in that register;

(d) in any other case, particulars of—

(i) the legal form of the company or firm and the law by which it is governed, and

(ii) if applicable, the register in which it is entered (including details of the state) and its registration number in that register.

Textual Amendments

F7 Regs. 79-80E substituted for regs. 79, 80 (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 28 (with reg. 2, Sch. 2)

Register of residential addresses of members of an SE’s supervisory organ E+W+S

80B.— (1) Every SE which has adopted the form of a two-tier system in its statutes must keep a register of the residential addresses of the members of its supervisory organ (the “register of SO members’ residential addresses”).

(2) The register must state the usual residential address of each of those members.

(3) If a member’s usual residential address is the same as the member’s service address, as stated in the SE’s register of SO members, the register of SO members’ residential addresses need only contain an entry to that effect.

This does not apply if the member’s service address is stated to be “The SE’s registered office”.

(4) If default is made in complying with this regulation, an offence is committed by—

(a) the SE, and

(b) every officer of the SE who is in default.

For this purpose a person who, by virtue of section 251 of the 2006 Act (shadow directors) as it applies in relation to an SE, is a shadow director of the SE is treated as an officer of the SE.

(5) A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(6) This regulation applies only to members who are individuals, not where the member is a body corporate or a firm that is a legal person under the law by which it is governed.

(7) Where an SE is required by this regulation to keep a register of SO members’ residential addresses, the application of regulation 78 to that SE does not require particulars of members of the supervisory organ to be kept on any register under section 165 of the 2006 Act (register of directors’ usual residential addresses).

Textual Amendments

F7 Regs. 79-80E substituted for regs. 79, 80 (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 28 (with reg. 2, Sch. 2)

Duty to notify registrar of changes E+W+S

80C.— (1) An SE which has adopted the form of a two-tier system in its statutes must, within the period of 14 days from—

(a) a person becoming or ceasing to be a member of the supervisory organ of the SE, or

(b) the occurrence of any change in the particulars contained in its register of SO members or its register of SO members’ residential addresses,

give to the registrar notice of the change, and the date when it occurred, in whichever of the Forms SE AP01, SE AP02, SE TM01, SE CH01 or SE CH02 set out in Schedule 1 is appropriate.

(2) Notice of a person having become a member of the supervisory organ must—

(a) contain a statement of the particulars of the new member which are required to be included in the SE’s register of SO members and those which are required to be included in its register of SO members’ residential addresses,

(b) be accompanied by a consent by that person to act in that capacity.

(3) Where—

(a) an SE gives notice of a change of a member of its supervisory organ’s service address as stated in the SE’s register of SO members, and

(b) the notice is not accompanied by notice of any resulting change in the particulars contained in the SE’s register of SO members’ residential addresses,

the notice must be accompanied by a statement that no such change is required.

(4) If default is made in complying with this regulation, an offence is committed by—

(a) the SE, and

(b) every officer of the SE who is in default.

For this purpose a person who, by virtue of section 251 of the 2006 Act (shadow directors) as it applies in relation to an SE, is a shadow director of the SE is treated as an officer of the SE.

(5) A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Textual Amendments

F7 Regs. 79-80E substituted for regs. 79, 80 (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 28 (with reg. 2, Sch. 2)

Protected information: restriction on use or disclosure by SE E+W+S

80D.   In the application of section 241(1)(b) of the 2006 Act in relation to an SE, the reference to any requirement of the Companies Acts includes a reference to any requirement of regulation 80C.

Textual Amendments

F7 Regs. 79-80E substituted for regs. 79, 80 (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 28 (with reg. 2, Sch. 2)

Putting a member of the supervisory organ’s address on the public record E+W+S

80E.— (1) In the application of section 246 of the 2006 Act (putting a director’s usual residential address on the public record) in relation to a member of the supervisory organ of an SE—

(a) the references in subsections (3)(a) and (4)(a) to the company’s register of directors are references to the SE’s register of SO members, and

(b) the reference in subsection (3)(b) to the company’s register of directors’ residential addresses is a reference to the SE’s register of SO members’ residential addresses.

(2) Paragraph (1) is without prejudice to the generality of regulation 78.]

Textual Amendments

F7 Regs. 79-80E substituted for regs. 79, 80 (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 28 (with reg. 2, Sch. 2)

The SE as a body corporate E+W+S

81.—(1) Where—

(a) any enactment is applied in the manner described in regulation 78(2); or

(b) any enactment applies to an SE otherwise than in the manner described in regulation 78(2)

and those enactments are expressed to apply to, or in respect of, a body corporate, an SE, [F8 whether or not registered in the United Kingdom], shall be treated for the purposes of the application of those enactments as if it were a body corporate.

(2) Nothing in this regulation has the effect of constituting an SE as a body corporate [F9 incorporated in, or formed under the law of, the United Kingdom (or any part of the United Kingdom)].

Textual Amendments

F8 Words in reg. 81(1) substituted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 29(a) (with reg. 2)

F9 Words in reg. 81(2) substituted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 29(b) (with reg. 2)

Notification of Amendments to Statutes and Insolvency Events (Articles 59(3) and 65) E+W+S

82.—(1) Where, under Articles 59(3) and 65, publication by the registrar in the Gazette of the events described in those Articles is required by regulation 71(1)—

(a) in the case of Article 59(3), the amendments to the statutes shall be delivered to the registrar by the SE accompanied by [F10 Form SE AS01] in Schedule 1 within 14 days of the adoption of those amendments; and

(b) in the case of Article 65, notice of the relevant event set out in [F11 Form SE WU01] in Schedule 1 shall be delivered to the registrar by the SE within 14 days of the occurrence of the event.

(2) If default is made in complying with paragraph (1)(a) or (b) the SE is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Textual Amendments

F10 Words in reg. 82(1)(a) substituted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 30(a) (with reg. 2)

F11 Words in reg. 82(1)(b) substituted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 30(b) (with reg. 2)

Accounting Reference Period and Financial Year of Transferring SE E+W+S

83.—(1) Where an SE transfers its registered office to [F12 the United Kingdom] under Article 8—

(a) its first accounting reference period, for the purposes of [F13 section 391 of [F14 the 2006 Act]], is the period of twelve months beginning with its last balance sheet date before the registration of the transfer and the date on which that period ends is its accounting reference date for those purposes; and

(b) its first financial year for the purposes of [F15 section 390 of [F14 the 2006 Act]] begins with the first day of its first accounting reference period and ends with the last day of that period or such other date, not more than seven days before or after the end of that period as the SE may determine.

(2) For purposes of this regulation “the last balance sheet date” is the date as at which the balance sheet of the transferring SE was required to be drawn up under the provisions of the law of the Member State in which it had its registered office, where the balance sheet was the last one required to be drawn up before the registration of the transfer in [F16 the United Kingdom].

(3) Where the transferring SE has not been required to draw up a balance sheet under the provisions of the law of the Member State where it had its registered office, or, if different, of the Member State where it was first registered, before the registration of the transfer in [F17 the United Kingdom], its accounting reference date for the purposes of [F18 section 391 of [F19 the 2006 Act]] is the last day of the month in which the anniversary of its registration on formation falls and its first accounting reference period is the period beginning with its date of registration on formation and ending with its accounting reference date; and paragraph (1)(b) above applies in respect of its first financial year accordingly.

Textual Amendments

F12 Words in reg. 83(1) substituted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 31(2)(a) (with reg. 2)

F13 Words in reg. 83(1)(a) substituted (6.4.2008) by The Companies Act 2006 (Consequential Amendments etc) Order 2008 (S.I. 2008/948), art. 2(2), Sch. 1 para. 235(6)(a) (with arts. 6, 11, 12)

F14 Words in reg. 83(1) substituted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 31(2)(b) (with reg. 2)

F15 Words in reg. 83(1)(b) substituted (6.4.2008) by The Companies Act 2006 (Consequential Amendments etc) Order 2008 (S.I. 2008/948), art. 2(2), Sch. 1 para. 235(6)(b) (with arts. 6, 11, 12)

F16 Words in reg. 83(2) substituted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 31(3) (with reg. 2)

F17 Words in reg. 83(3) substituted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 31(4)(a) (with reg. 2)

F18 Words in reg. 83(3) substituted (6.4.2008) by The Companies Act 2006 (Consequential Amendments etc) Order 2008 (S.I. 2008/948), art. 2(2), Sch. 1 para. 235(6)(a) (with arts. 6, 11, 12)

F19 Words in reg. 83(3) substituted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 31(4)(b) (with reg. 2)

Penalties for Breach of Article 11 (use of SE in name) E+W+S

84.  Where:

(a) an SE fails to comply with Article 11(1); or

(b) any person fails to comply with Article 11(2)

the SE or that person is liable on summary conviction to a fine not exceeding level 3 on the standard scale.