Einde inhoudsopgave
Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/2.4.1
2.4.1 Introduction
mr. dr. P.P. de Vries, datum 03-05-2010
- Datum
03-05-2010
- Auteur
mr. dr. P.P. de Vries
- JCDI
JCDI:ADS410761:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
COM (2008) 396/3.
European Parliament legislative resolution of 10 March 2009 on the proposal for a Council regulation on the Statute for a European private company (COM(2008)0396 — C6-0283/ 2008 — 2008/0130(CNS)).
Proposal for a Council Regulation on a European private company — Political agreement 11252/08 DRS 17 (x) 16115/09 DRS 71 SOC 711 + ADD 1.
Art. 4 of the proposed Council Regulation. As put forward by Boschma/Schutte-Veenstra (2008), p. 603-604, a very difficult question is to what extent national law applies if matters are neither covered by the Council Regulation nor by the articles of association of the SPE concemed.
However, note the restrictions of Recital 4 of the Council Regulation.
Art. 31 paragraph 1 of the compromise proposal for a Council Regulation. Managing directors of a BV can be either naturel or legal persons.
Art. 19 paragraph 1 of the compromise proposal for a Council Regulation. The capital of a BV can also be expressed in foreign currency.
On the 25th of June 2008, the European Commission published its proposal for a Council Regulation on the Statute for a European private company.1 This proposed Council Regulation forms part of a package designed to assist small and medium-sized companies within the European Single Market. It introduces a new kind of legal entity, namely the European private company or Societas Privata Europaea (SPE). On the 10th of March 2009, the European Parliament approved of the Commission's proposal, but in turn proposed several amendments to the initial proposal and called on the European Commission to alter its proposal accordingly.2By the end of 2009, the proposal was further revised by the Presidency and submitted to the European Council. In the following, the revised Presidency compromise proposal for a Council Regulation on a European private company will be discussed.3
The SPE will be a company with legal personality, a capital divided into shares, and its shareholders are not liable for more than the amount they have subscribed for. Because of these features, the SPE can be classified as a private limited company. An SPE can be regarded as the European counterpart of the Dutch BV, German GmbH and English Ltd. The Council Regulation provides for an elaborated framework of mandatory European rules. With respect to some matters, however, rules of national law apply, such as with respect to consequences of directors' liability in the event of negligence of their duties and rules on the accounts of the company. National law governs matters that are not covered by the Council Regulation.4
In comparison with the BV, the SPE seems to be more flexible in several ways. Neither the incorporation of an SPE, nor the transfer of shares in an SPE requires the assistance of a civil-law notary. Distribution of profits to shareholders is achieved somewhat easier, as merely a balance test is required before distribution can take place. Finally, yet importantly, an SPE can transfer its registered office to another EU Member State.5 On the other hand, in some other ways the SPE seems to be less flexible. For instance, managing directors of an SPE can only be natural persons @@6 and the capital of the SPE can only be expressed in euro.7