72.—(1) Where an SE proposes to transfer its registered office to another Member State under Article 8 the SE shall satisfy the Secretary of State that the interests of creditors and holders of other rights in respect of the SE (including those of public bodies) have been adequately protected in respect of any liabilities arising (or that may arise) prior to the transfer by the making of a statement of solvency in the terms set out in paragraphs (4) and (5).
(2) The statement of solvency must be made by all the members of the administrative organ in the case of an SE within the one-tier system and by all the members of the management organ in the case of an SE within the two-tier system.
(3) In the case of an SE within the two-tier system the statement of solvency may not be made unless authorised by the supervisory organ.
(4) The statement shall state that the members of the administrative or management organ, as the case may be, have formed the opinion—
(a)as regards its financial situation immediately following the date on which the transfer is proposed to be made, that there will be no grounds on which the SE could then be found to be unable to pay its debts, and
(b)as regards its prospects for the year immediately following that date, that, having regard to their intentions with respect to the management of the SE’s business during that year and to the amount and character of the financial resources which will in their view be available to the SE during that year, the SE will be able to carry on business as a going concern (and will accordingly be able to pay its debts as they fall due throughout that year).
(5) In forming their opinion for the purposes of paragraph (4)(a), the members of the administrative or the management organ, as the case may be, shall take into account the same liabilities (including prospective and contingent liabilities) as would be relevant under section 122 of the Insolvency Act 1986 M1 [F1or, as the case may be, Article 102 of the Insolvency (Northern Ireland) Order 1989] (winding up by the court) to the question whether a company is unable to pay its debts.
[F2(6) The statement required by this regulation must contain the following particulars—
(a)details of the SE’s name and registered number;
(b)any proposed new name of the SE;
(c)the proposed date of transfer of the SE; and
(d)confirmation that the liabilities referred to in paragraph (5) were taken into account in forming the statement.]
(7) A member of an administrative or management organ who makes a statement under this regulation without having reasonable grounds for the opinion expressed in the statement 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.
Textual Amendments
F1Words in reg. 72(5) inserted (1.10.2009) by The European Public Limited-Liability Company (Amendment) Regulations 2009 (S.I. 2009/2400), regs. 1(2), 23(a) (with reg. 2)
F2Reg. 72(6) substituted (1.10.2014) by The European Economic Interest Grouping and European Public Limited-Liability Company (Amendment) Regulations 2014 (S.I. 2014/2382), regs. 1, 25
Marginal Citations