BETA

Activities of Klaus-Heiner LEHNE related to 2008/0130(CNS)

Legal basis opinions (0)

Amendments (13)

Amendment 1 #
Proposal for a regulation
Recital 2 a (new)
(2a) Community forms of company imply of a cross-border component. On the other hand, the required cross-border component should not be an obstacle for the founding of a European private company (hereinafter "SPE"). However, Member States should, without prejudice to the requirements of registration, have the option of an ex-post check in order to examine, after a period of two years, whether the SPE fulfils the condition of a cross-border component;
2008/11/24
Committee: JURI
Amendment 2 #
Proposal for a regulation
Recital 4
(4) In order to enable businesses to reap the full benefits of the internal market, the SPE should be able to have its registered office and principal place of business in different Member States and to transfer its registered office from one Member State to another, with or without also transferring its central administration or principal place of business. ; at the same time, however, steps should be taken to prevent SPEs from being misused for regime shopping and circumventing legitimate legal requirements of Member States.
2008/11/24
Committee: JURI
Amendment 3 #
Proposal for a regulation
Article 3 – paragraph 1 – point e a (new)
(ea) it shall have a business objective which must be clearly defined and consist in producing or trading in goods and/or providing services;
2008/11/24
Committee: JURI
Amendment 4 #
Proposal for a regulation
Article 3 - paragraph 1 - point e b (new)
(eb) it shall have a cross-border component through – a corresponding cross-border business intention or business objective, or – the fact of having as its objective significant activity in more than one Member State, or – the fact that founding members are resident in different Member States, or – the fact that its registered office and its central administration or principal place of business are in different Member States, or – the fact of having subsidiaries in different Member States, or – the fact that it is a subsidiary of a parent company which is registered in another Member State, or – the fact that a foreign founding member is entitled to more than one third of the voting rights.
2008/11/24
Committee: JURI
Amendment 5 #
Proposal for a regulation
Article 7
An SPE shall have its registered office and its central administration or principal place of business in the Community. An SPE shall not be under any obligation to have its central administration or principal place of business in the Member State in which it has its registered office. If the central administration or principal place of business is located in a Member State other than that in which it has its registered office, the SPE shall be required to lodge in the register of the place where the central administration or principal place of business is located the particulars prescribed by Article 10(2), points (a), (b) and (c). The information recorded in the register shall be deemed to be accurate.
2008/11/24
Committee: JURI
Amendment 6 #
Proposal for a regulation
Article 8
1. An SPE shall have articles of association that cover at least the matters set out in this Regulation, as provided for in Annex I. 2. The articles of association of a SPE shall be in writing and signed by every founding shareholder. Further formalities may be prescribed by the existing applicable national law, unless the SPE uses model articles of association. 3. The articles of association and any amendments thereto may be relied upon as follows: a) in relation to the shareholders and the management body of the SPE and its supervisory body, if any, from the date on which they are signed or, in the case of amendments, adopted; b) in relation to third parties, in accordance with the provisions of the applicable national law implementing paragraphs 2, 5, 6 and 7 of Article 3 of Directive 68/151/EEC.
2008/11/24
Committee: JURI
Amendment 7 #
Proposal for a regulation
Article 9 – paragraph 3 a (new)
3a. A copy of each registration of an SPE and copies of all subsequent amendments thereto shall be sent by the respective national registers to a European register managed by the Commission and held in that European register. The Commission shall monitor the data entered in that register, particularly with a view to avoiding possible abuses and mistakes.
2008/11/24
Committee: JURI
Amendment 8 #
Proposal for a regulation
Article 10
1. Application for registration shall be made by the founding shareholders of the SPE or by any person authorised by them. Such application may be made by electronic means in accordance with the provisions of the applicable national law implementing Article 3(2) of Directive 68/151/EEC. 2. Member States shall not require any particulars and documents to be supplied upon application for the registration of a SPE other than the following: a) the name of the SPE and the address of its registered office; b) the names, addresses and any other information necessary to identify the persons who are authorised to represent the SPE in dealings with third parties and in legal proceedings, or take part in the administration, supervision or control of the SPE; c) the share capital of the SPE; (ca) the list of shareholders in accordance with Article 15; d) the share classes and the number of shares in each share class; e) the total number of shares; f) the nominal value or accountable par of the shares; g) the articles of association of the SPE; h) where the SPE was formed as a result of a transformation, merger or division of companies, the resolution on the transformation, merger or division that led to the creation of the SPE. 3. The documents and particulars referred to in paragraph 2 shall be provided in the language required by the applicable national law. 4. Registration of the SPE mayshall be subject to only one of the following requirements: (a) a control by an administrative or judicial body of the legality of the documents and particulars of the SPE; (b) the certification of the documents and particulars of the SPE. 5. The SPE shall submit any change in the particulars or documents referred to in points (a) to (g) of paragraph 2 to the register within 14 calendar days of the day on which the change takes place. After every amendment to the articles of association, the SPE shall submit its complete text to the register as amended to date. The second sentence of paragraph 1 and paragraph 4 shall apply mutatis mutandis. 6. The registration of an SPE shall be disclosed.
2008/11/24
Committee: JURI
Amendment 9 #
Proposal for a regulation
Article 15
1. The management body of the SPE shall draw up a list of shareholders. The list shall contain at least the following: a) the name of, and a postal address ofor, each shareholder; b) the number of shares held by the shareholder concerned, their nominal value or accountable par; c) where a share is owned by more than one person, the names and addresses of the co-owners and of the common representative; d) the date of acquisition of the shares; e) the amount of each consideration in cash, if any, paid or to be paid by the shareholder concerned; f) the value and nature of each consideration in kind, if any, provided or to be provided by the shareholder concerned; g) the date on which a shareholder ceases to be a member of the SPE. 2. The list of shareholders as registered in accordance with Article 10 shall, unless proven otherwise, constitute evidence of the authenticitccuracy of the matters listed in points (a) to (g) of paragraph 1. 3. The list of shareholders as registered in accordance with Article 10 and any amendments thereto shall be kept by the management body and may be inspected by the shareholders or third parties on request.
2008/11/24
Committee: JURI
Amendment 10 #
Proposal for a regulation
Article 16 – paragraph 3
3. On notification by the shareholder of a transfer, the management body shall, without undue delay, enter the shareholder in the list referred to in Article 15 and registered in accordance with Article 10, provided that the transfer has been executed in accordance with this Regulation and the articles of association of the SPE and the shareholder submits reasonable evidence as to his lawful ownership of the share.
2008/11/24
Committee: JURI
Amendment 11 #
Proposal for a regulation
Article 16 – paragraph 4
4. The capital of the SPE shall be at least EUR 1, provided that the articles of association require that the management body sign a solvency certificate as referred to in Article 21. Where the articles of association contain no provision to that effect, the capital of the SPE shall be at least EUR 8 000.
2008/11/24
Committee: JURI
Amendment 12 #
Proposal for a regulation
Article 34 – paragraph 1 a (new)
Where more than 250 employees of the SPE, corresponding to at least two-thirds of its employees, work in a Member State or Member States which provide for a greater degree of employee participation than the Member State in which the SPE has its registered office, the following provisions shall apply: (a) the management body shall take the necessary steps to start negotiations with the representatives of the employees of the SPE or its subsidiaries or establishments on arrangements for the participation of employees of the SPE. For this purpose, a special negotiating body shall be created in accordance with points (b) to (d); (b) members of the special negotiating body shall be elected or appointed. In the election or appointment of members of the special negotiating body, steps must be taken to ensure that those members are elected or appointed in proportion to the number of employees employed in each Member State, by allocating in respect of a Member State one seat per portion of employees employed in that Member State which equals 10 %, or a fraction thereof, of the number of employees employed in all the Member States taken together; (c) Member States shall determine the method to be used for the election or appointment of the members of the special negotiating body. Each Member State shall ensure that, as far as possible, the membership includes at least one member representing each subsidiary or each establishment. Such measures must not increase the overall number of members; (d) without prejudice to national rules on thresholds for the establishment of a representative body, Member States shall ensure that employees employed in subsidiaries or establishments in which, through no fault of their own, there are no employees' representatives have the right to elect or appoint members of the special negotiating body; (e) the special negotiating body and the competent organ of the SPE shall determine, by written agreement, arrangements for the participation of employees within the SPE; (f) subject to point (g), the special negotiating body shall take decisions by a majority of its members. Each member shall have one vote; (g) the special negotiating body may decide by the majority prescribed in the third sentence not to open negotiations or to terminate negotiations already opened, and to rely on the rules of the law which are applicable pursuant to paragraph 1. Such a decision shall terminate the procedure to conclude the agreement referred to in point (e). The majority required to decide not to open or to terminate negotiations shall be the majority of the votes cast by the members representing at least 50% of the employees; (h) the competent organ of the SPE and the special negotiating body shall negotiate in a spirit of cooperation with a view to reaching an agreement on arrangements for the participation of employees within the SPE; The agreement between the competent organ of the SPE and the special negotiating body shall include at least the following: (i) the scope of the agreement; (ii) the number of members in the SPE's administrative or supervisory body whom the employees will be entitled to elect, appoint, recommend or oppose, the procedure as to how those members may be elected, appointed, recommended or opposed by the employees, and their rights; (iii) the date of entry into force of the agreement and its duration, circumstances in which the agreement should be renegotiated and the procedure for its renegotiation; (i) negotiations shall commence as soon as the special negotiating body is established and may continue for six months thereafter. The parties may decide, by joint agreement, to extend negotiations beyond the period referred to in the first sentence, up to a total of nine months from the establishment of the special negotiating body; (j) where the parties have failed to conclude an agreement by the deadline laid down in point (i) and the special negotiating body has not taken a decision pursuant to point (g), the rules laid down in point (k) (standard rules) shall apply. They shall also apply where the parties so agree; (k) in accordance with point (j), the following provisions shall apply to employee participation in the SPE: (i) the employees of the SPE and its subsidiaries or establishments shall have the right to elect, appoint, recommend or oppose the appointment of one third of the members of the administrative or supervisory body of the SPE; (ii) the special negotiating body shall decide on the allocation of seats within the administrative or supervisory body among the members representing the employees from the various Member States or on the way in which the SPE's employees may recommend or oppose the appointment of the members of those bodies according to the proportion of the SPE's employees employed in each Member State. If the employees employed in one or more Member States are not covered by this proportional criterion, the special negotiating body shall appoint a member from one of those Member States, in particular the Member State in which the SPE's registered office is located, where this is appropriate; (iii) every member of the administrative or supervisory body of the SPE who has been elected, appointed or recommended by the special negotiating body or, depending on the circumstances, by the employees shall be a full member having the same rights and obligations as the members representing the members of the SPE, including the right to vote.
2008/11/24
Committee: JURI
Amendment 13 #
Proposal for a regulation
Article 38
1. The SPE shall be subject, as from the date of registration, to the rules in force in the host Member State, if any, concerning arrangements for the participation of employees. 2. Paragraph 1 shall not apply where themore than 250 employees of the SPE , corresponding the home Member State account for at least one third of the total number of employees of the SPE including subsidiaries or branches of the SPE in anyo at least two-thirds of its employees, work in a Member State or Member States which provide for a greater degree of employee participation than the host Member State, and where one of the following conditions is met: (a) the legislation of the host Member State does not provide for at least the same level of participation as that operated in the SPE in the home Member State prior to its registration in the host Member State. The level of employee participation shall be measured by reference to the proportion of employee representatives amongst the members of the administrative or supervisory body or their committees or of the management group which covers the profit units of the SPE, subject to employee representation; (b) the legislation of the host Member State does not confer on the employees of establishments of the SPE that are situated in other Member States the same entitlement to exercise participation rights as such employees enjoyed before the transfer. 3. Where one of the conditions set out in points a) or b) of paragraph 2 is met, the management body of the SPE shall take the necessary steps, as soon as possible, after disclosure of the transfer proposal, to start negotiations with the representatives of the SPE’s employees with a view to reaching an agreement on arrangements for the participation of the employees. 4. The agreement between the management body of the SPE and the representatives of the employees shall specify: (a) the scope of the agreement; (b) where, during the negotiations, the parties decide to establish arrangements for participation in the SPE following the transfer, the substance of those arrangements including, where applicable, the number of members in the company's administrative or supervisory body employees will be entitled to elect, appoint, recommend or oppose, the procedures as to how these members may be elected, appointed, recommended or opposed by employees, and their rights; (c) the date of entry into force of the agreement and its duration, and any cases in which the agreement should be renegotiated and the procedure for its renegotiation. 5. Negotiations shall be limited to a period of six months. The parties may agree to extend negotiations beyond this period for an additional six-month period. The negotiations shall otherwise be governed by the law of the home Member State. 6. In the absence of an agreementwhich applied in the SPE prior to the transfer; (b) the legislation of the host Member State does not confer on the employees of establishments of the SPE that are situated in other Member States the same entitlement to exercise participation rights as such employees enjoyed before the transfer. 3. Where, pursuant to paragraph 2, paragraph 1 does not apply, points (a) to (i) of Article 34(1a) shall apply mutatis mutandis. 4. Where the parties have failed to conclude an agreement by the end of the period referred to in point (i) of Article 34(1a) and the special negotiating body has not taken any decision pursuant to point (g) of Article 34(1a), the participation arrangements existing in the homeSPE prior to its registration in the host Member State shall be maintained.
2008/11/24
Committee: JURI