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Appendix A - List of public and private limited companies in each Member State


Formation


1. Who can form an SE?

There are several ways of forming an SE and different types of bodies may be involved in each (see the table below):

Method of formation Commercial bodies that may be involved
Merger Two or more public limited companies (including SEs)
Holding SE Two or more private or public limited companies (including SEs)
Subsidiary SE - Article 2(3) Two or more companies (including SEs), firms or other legal bodies
Subsidiary SE - Article 3(2)> An existing SE
Transformation An existing public limited company
For a list of recognised public and private limited companies in each Member State, see the Annex at the end of this publication.

The ‘commercial’ bodies forming an SE must have their registered offices in the EU. The UK has taken advantage of a Member State option in the Regulation under which their head offices need not be in the EU, provided there is a real and continuous link with a Member State’s economy.

Other Member States may require that both the registered office and head office of any commercial bodies involved in the formation of an SE are in the EU.

In addition, at least two of the bodies must have a presence in different Member States; the exception being when an SE is itself forming a subsidiary SE. A PLC transforming into an SE must for 2 years have had a subsidiary company governed by the laws of another Member State.

Once formed, the SE’s registered office and head office must be in the UK.

2. How is an SE formed?

The table above lists the 5 ways of forming an SE. Each of these is explained below.

How ever an SE is created, it cannot be registered and brought into existence until:

agreement has been reached for employee involvement in company decisions;
the special negotiating body has decided to rely on the rules for employee involvement and consultation in force in the Member States where the SE has employees; or
no agreement has been reached within the relevant period of time, so the standard rules apply.
The fee for registration of an SE is £20. Cheques should be made payable to ‘Companies House’.

Formation by Merger

Two or more public limited companies or existing SEs may merge to form an SE provided at least two of them are governed by the laws of different Member States. The merger may be conducted by acquisition (with the acquiring company becoming an SE) or by the formation of a new company (with the merging companies ceasing to exist).

Before the merger can take effect, draft terms for the merger must be drawn up by the merging companies and presented to general meetings of their shareholders for approval. In the UK, the Secretary of State for Business, Innovation and Skills and the High Court (or the Court of Session in Scotland) may oppose the merger if it is in the public interest to do so.

Once all the pre-merger acts and formalities have been completed, the High Court in England & Wales (if the registered office of the merging company is in England or Wales), the Court of Session (if the registered office of the merging company is in Scotland) or the High Court in Northern Ireland (if the registered office of the merging company is in Northern Ireland) must issue a certificate confirming that fact.

The High Court in England & Wales (if the SE is to be registered in England or Wales), the Court of Session (if the SE is to be registered in Scotland) and the High Court in Northern Ireland (if the registered office of the merging company is in Northern Ireland) are responsible for scrutinising the legality of the merger and, if satisfied, approving the merger. It is possible for two or more PLCs registered outside the UK to merge to form an SE registered in England, Wales, Scotland or Northern Ireland.

If the merger involves the creation of a new SE to be registered in the UK, the registration must be affected in the part of the UK in which the SE will have its registered office address. The form that needs to be completed and filed at Companies House is:

Formation by merger of SE to be registered in the UK Form SEFM 01
The registration fee is £20.

Formation of a Holding SE

Two or more private or public limited companies (including existing SEs) formed under the law of a Member State and with a registered office in a Member State may form an SE by promoting the formation of a holding SE. The companies promoting the formation must become majority-owned by the SE. At least 2 of the companies must be:
governed by the laws of a different Member State, or,
have had a subsidiary company governed by the laws of another Member State for 2 years, or
had a branch in another Member State.
Before forming a holding SE, draft terms for the formation and an explanatory report must be drawn up by the companies promoting the formation and presented to general meetings of their shareholders. The explanatory report must explain and justify the legal and economic aspects of the formation and indicate the implications for the shareholders and for the employees of adopting the form of a holding SE.

Regardless of where the holding SE will be registered, any UK registered company involved in its formation must file the draft terms for its formation at Companies House at least one month before the company’s general meeting.

Once the draft terms have been approved, shareholders have 3 months to notify the company whether they intend to contribute their shares to the formation of the Holding SE. If the minimum proportions of shares are not assigned within that time, the SE cannot be formed.

Where the conditions are fulfilled, a notice to that effect must be delivered to Companies House within 14 days on Form SE SC01. Shareholders who have not previously indicated they intend to make their shares available have a further month in which to indicate whether they intend to make their shares available for the purposes of forming the holding SE.

If the Holding SE is to be registered in the UK, the registration must be affected in the part of the UK in which the SE will have its registered office address.

The forms that need to be completed and filed at Companies House are:

For companies promoting the formation:
Draft terms of formation of a holding SE Form SEDT01
Notice of satisfaction of conditions for the formation of a holding SE Form SESC01
For the registration of the SE in UK:
Formation of a holding SE Form SEFM02
The registration fee is £20.

Formation of a Subsidiary SE

Two or more companies, firms, or other legal bodies formed under the law of a Member State, with registered offices and head offices within the Community, may form an SE by subscribing for its shares. At least 2 of the companies or firms must be governed by the laws of a different Member State or for 2 years have had a subsidiary company governed by the laws of another Member State or had a branch in another Member State.
The form that needs to be filed at Companies House is:

Formation of a subsidiary SE under Article 2(3) Form SEFM03
The registration fee is £20.

Subsidiary SE formed by an existing SE

An existing SE may itself form another SE as a subsidiary company, in which it may be the sole shareholder. The form that needs to be completed and filed at Companies House is:

Formation of a subsidiary SE under Article 3(2) Form SEFM05
The registration fee is £20.

Formation by transformation of a PLC

A PLC registered in UK may transform into an SE registered in UK provided the PLC has for 2 years had a subsidiary governed by the laws of another Member State. The PLC cannot simultaneously transform to an SE and move its registered office to another Member State.

This process does not involve the winding up of the PLC or the creation of a new legal person in the form of an SE.

Before the transformation can take effect, the PLC must prepare draft terms of conversion along with an explanatory report and present them for approval to a general meeting of shareholders. The explanatory report must explain and justify the legal and economic aspects of the conversion and indicate the implications for the shareholders and employees of adopting the form of an SE. In order to be approved, ¾ of the votes cast must be in favour.

The forms that need to be completed and filed at Companies House are:

Draft terms of conversion of a PLC to an SE Form SEDT02
Conversion of a PLC to an SE Form SEFM 04
The registration fee is £20.

3. Can an SE convert to a PLC?

An SE may convert to a PLC provided that it has been either registered for at least 2 years or that the first 2 sets of annual accounts have been approved.

The management or administrative organ of the SE must draw up draft terms of conversion along with an explanatory report and present them for approval to a general meeting of shareholders. The explanatory report must explain and justify the legal and economic aspects of the conversion and indicate the implications of the adoption of the public limited liability company for the shareholders and for the employees. In order to be approved, ¾ of the votes cast must be in favour.

The forms that need to be completed and filed at Companies House are:

Notification of Draft Terms of Conversion of SE to PLC Form SEDT03
Conversion of SE to PLC Form SECV01
The registration fee is £20.

4. Are there restrictions on the names an SE can adopt?

There are some restrictions on the choice of name, which are similar to the controls applied to other companies registered in the UK. These are explained in chapter 3.

5. What must the SE’s statutes contain?

There is no standard format prescribed for the statutes of an SE, they will depend to some extent on how the SE is formed. However, the Regulation sets out certain matters concerning the management and administration of the SE that must be laid out in the statutes.

The statutes can normally only be changed by a decision of the shareholders, in a general meeting. In order to be approved, ¾ of the votes cast must be in favour.

Other Member States may require a lower majority of ⅔ or, provided the shareholders present represent at least half of the subscribed capital, a simple majority of votes cast.

If the statutes conflict with the arrangements made for employee involvement, they may be amended by the management or administrative organ without a decision of shareholders but only to the extent needed to resolve the conflict.

Amendments to the statutes must be sent to Companies House within 14 days of the adoption of the amendment. The form that needs to be filed at Companies House is:

Amendment of Statutes of SE Form SEWU01


6. Can an SE transfer its registration from one Member State to another?

One of the aims of the Regulation is that an SE should be able to transfer its registered office to another Member State without being wound up. An SE registered in the UK may transfer its registered office to another Member State and, conversely, an SE registered in another Member State may transfer its registered office to the UK. The formalities for doing this are not covered in detail here. The principal requirement is the need to obtain shareholder approval.

No decision to transfer can be taken for 2 months after a proposal for the transfer has been published. During this time, the relevant authorities in the Member State where the SE is registered can oppose the transfer.

The transfer can only take place once the authorities in both Member States are satisfied that all the acts and formalities have been completed. The registry to which the SE is transferring relies on a certificate issued by the court, notary or other competent authority confirming that they are complete. When an SE is transferring out of the UK, the certificate will be supplied by the Secretary of State for Business, Innovation and Skills , following the correct completion and delivery to Companies House of the forms listed below. The fee is £20. Cheques should be made payable to ‘Companies House’.

The effective date of the transfer is the date on which the SE is registered in the Member State to which it is transferring. The forms that need to be completed and filed at Companies House are:

Transfer out of the UK
Proposed transfer from UK of an SE Form SETR01
Transfer from UK of an SE Form SETR03
Statement of solvency by the members of the relevant organ of the SE From SESS01
Transfer into UK
Transfer to UK of an SE Form SETR02
An SE cannot transfer its registered office from England/Wales to Scotland or Northern Ireland or vice versa.

When an SE transfers its registered office to the UK, an accounting reference date will be set by Companies House in preparation for delivery of annual accounts. This date will be:

the anniversary of the last balance sheet date required to be drawn up before the date of registration of the transfer; or
if no balance sheet has been required to be drawn up under the laws of the Member State where it had its registered office or was first registered, the anniversary of the last day in the month in which the SE was first registered.


7. Does an SE registered in another Member State need to register any branch or place of business that it establishes in the UK?

No. The Overseas Companies Regulations 2009 does not apply. An SE registered in another Member State may establish UK establishments without needing to register them