Brussels, 26/01/2009 (Agence Europe) - On Tuesday 20 January, the legal affairs parliamentary committee adopted a draft advisory report by Klaus-Heiner Lehne (EPP-ED, Germany) on the draft regulation introducing a European Private Company (SPE) (EUROPE 9680). MEPs accept the rapporteur's idea of making it compulsory for companies that want to become an SPE to demonstrate their cross-border character. This cross-border factor could take several forms, such as the future SPE demonstrating the intention to develop activities in several member states or subsidiaries in several EU countries. The vote in plenary on the draft regulation is planned for March. The Czech Presidency is seeking an agreement at the May Competitiveness Council. Unanimity from member states is required for this dossier.
The rapporteur proposed the following seven criteria to work out the cross-border character of a European Private Company: - the cross-border aim of the social objective of the SPE; - the SPE intending to exercise a significant number of activities in more than one member state; - its founding members having residency in different EU countries; - the SPE having subsidiaries in several member states; - the company being a branch of a parent company registered in another member state; - a founding member of the SPE coming from a country that is not the same as the one where the company was set up; - and it having more than a third of all voting rights.
MEPs supported the introduction of a cross-border factor and finally adopted the oral amendment from the Socialist, which simply withdrew two elements from the “Lehne” amended list. They consider that the fact that a) founding member of the SPE are resident in different member states and b) that a founding member of the SPE is a foreigner with more than a third of voting rights, does not constitute the company's cross-border factor. Out of fear of damaging the attractiveness of the SPE's status, the European Commission did not propose a cross-border element that aimed to characterise the SPE. SME organisations are supporting it. Certain member states at the Council want the introduction of such an element. In hope of obtaining a compromise, the previous French Presidency proposed at the end of 2008 to include a reference to the cross-border element in the SPE's significant objective. This might simply result from the intention to exercise cross-border activities or the shareholders' countries of residency. If this reference disappeared, the SPE would not be under threat.
The legal committee admits that the minimum capital of an SPE should be set in Euro, as proposed by the Commission. The committee, however, makes this minimum amount conditional on the awarding of a solvability certificate by the board of the SPE. Failing which, the capital will have to be more than €8000.
Another difficult aspect of the proposal involves workers' information and participation. MEPs were unable to find a compromise and amendments from the EPP-ED and PS groups were rejected. In the text adopted, it is the provisions contained in the initial proposal that prevail. As a general rule, the legislation of the member states where the SPE is registered applies. When there is a transfer to another member state, legislation in the new host country applies, unless a third of all personnel are from the country of origin and where the legislation is more favourable to the employees. In this case, negotiations will be required with management. When more than 500 employees in an SPE work in a member state providing a degree of information and higher level of participation, directive 2001/86/EC applies. (M.B./transl.rh)