Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE)

CHAPTER I

GENERAL PROVISIONS

Article 1

Form of the SCE

The number of members and the capital of an SCE shall be variable.

Unless otherwise provided by the statutes of the SCE when that SCE is formed, no member shall be liable for more than the amount he/she has subscribed. Where the members of the SCE have limited liability, the name of the SCE shall end in ‘limited’.

Article 2

Formation

An SCE may be formed as follows:

— by five or more natural persons resident in at least two Member States,

— by five or more natural persons and companies and firms within the meaning of the second paragraph of Article 48 of the Treaty and other legal bodies governed by public or private law, formed under the law of a Member State, resident in, or governed by the law of, at least two different Member States,

— by companies and firms within the meaning of the second paragraph of Article 48 of the Treaty and other legal bodies governed by public or private law formed under the law of a Member State which are governed by the law of at least two different Member States,

— by a merger between cooperatives formed under the law of a Member State with registered offices and head offices within the Community, provided that at least two of them are governed by the law of different Member States,

— by conversion of a cooperative formed under the law of a Member State, which has its registered office and head office within the Community if for at least two years it has had an establishment or subsidiary governed by the law of another Member State.

Article 3

Minimum capital

Variations in the amount of the capital shall not require amendment of the statutes or disclosure.

Article 4

Capital of the SCE

The statutes may provide that different classes of shares shall confer different entitlements with regard to the distribution of surpluses. Shares conferring the same entitlements shall constitute one class.

At the proposal of the administrative or management organ, the subscribed capital may be increased by the capitalisation of all or part of the reserves available for distribution, following a decision of the general meeting, in accordance with the quorum and majority requirements for an amendment of the statutes. New shares shall be awarded to members in proportion to their shares in the previous capital.

An SCE's shares may, however, be accepted as security in the ordinary transactions of SCE credit institutions.

Article 5

Statutes

The statutes of the SCE shall include at least:

— the name of the SCE, preceded or followed by the abbreviation ‘SCE’ and, where appropriate, the word ‘limited’,

— a statement of the objects,

— the names of the natural persons and the names of the entities which are founder members of the SCE, indicating their objects and registered offices in the latter case,

— the address of the SCE's registered office,

— the conditions and procedures for the admission, expulsion and resignation of members,

— the rights and obligations of members, and the different categories of member, if any, and the rights and obligations of members in each category,

— the nominal value of the subscribed shares, the amount of the subscribed capital, and an indication that the capital is variable,

— specific rules concerning the amount to be allocated from the surplus, where appropriate, to the legal reserve,

— the powers and responsibilities of the members of each of the governing organs,

— provisions governing the appointment and removal of the members of the governing organs,

— the majority and quorum requirements,

— the duration of the existence of the society, where this is of limited duration.

Article 6

Registered office

The registered office of an SCE shall be located within the Community, in the same Member State as its head office. A Member State may, in addition, impose on SCEs registered in its territory the obligation of locating the head office and the registered office in the same place.

Article 7

Transfer of registered office

The management or administrative organ shall draw up a transfer proposal and publicise it in accordance with Article 12, without prejudice to any additional forms of publication provided for by the Member State of the registered office. That proposal shall state the current name, the registered office and number of the SCE and shall cover:

(a) the proposed registered office of the SCE;

(b) the proposed statutes of the SCE including, where appropriate, its new name;

(c) the proposed timetable for the transfer;

(d) any implication the transfer may have on employees' involvement;

(e) any rights provided for the protection of members, creditors and holders of other rights.

A Member State may extend the application of the first subparagraph to liabilities that arise, or may arise, prior to the transfer.

The first and second subparagraphs shall apply without prejudice to the application to SCEs of the national legislation of Member States concerning the satisfaction or securing of payments to public bodies.

Where an SCE is supervised by a national financial supervisory authority according to Community directives, the right to oppose the change of registered office applies to this authority as well.

Review by a judicial authority shall be possible.

Article 8

Law applicable

An SCE shall be governed:

(a) by this Regulation;

(b) where expressly authorised by this Regulation, by the provisions of its statutes;

(c) in the case of matters not regulated by this Regulation or, where matters are partly regulated by it, of those aspects not covered by it, by: (i) the laws adopted by Member States in the implementation of Community measures relating specifically to SCEs; (ii) the laws of Member States which would apply to a cooperative formed in accordance with the law of the Member State in which the SCE has its registered office; (iii) the provisions of its statutes, in the same way as for a cooperative formed in accordance with the law of the Member State in which the SCE has its registered office.

Article 9

Principle of non-discrimination

Subject to this Regulation, an SCE shall be treated in every Member State as if it were a cooperative, formed in accordance with the law of the Member State in which it has its registered office.

Article 10

Particulars to be stated in the documents

Article 11

Registration and disclosure requirements

In this case, a Member State may provide that the management organ or the administrative organ of the SCE shall be entitled to amend the statutes without any further decision from the general meeting.

Article 12

Publication of documents in the Member States

Article 13

Notice in the Official Journal of the European Union

Article 14

Acquisition of membership

Where the laws of the Member State of the SCE's registered office so permit, the statutes may provide that persons who do not expect to use or produce the SCE's goods and services may be admitted as investor (non-user) members. The acquisition of such membership shall be subject to approval by the general meeting or any other organ delegated to give approval by the general meeting or the statutes.

Members who are legal bodies shall be deemed to be users by virtue of the fact that they represent their own members provided that their members who are natural persons are users.

Unless the statutes provide otherwise, membership of an SCE may be acquired by natural persons or legal bodies.

The statutes may make admission subject to other conditions, in particular:

— subscription of a minimum amount of capital,

— conditions related to the objects of the SCE.

Article 15

Loss of membership

Membership shall be lost:

— upon resignation,

— upon expulsion, where the member commits a serious breach of his/her obligations or acts contrary to the interests of the SCE,

— where authorised by the statutes, upon the transfer of all shares held to a member or a natural person or legal entity which has acquired membership,

— upon winding-up in the case of a member that is not a natural person,

— upon bankruptcy,

— upon death,

— in any other situation provided for in the statutes or in the legislation on cooperatives of the Member State in which the SCE has its registered office.

Any minority member who opposed an amendment to the statutes at the general meeting whereby:

(i) new obligations in respect of payments or other services were introduced; or

(ii) existing obligations for members were substantially extended; or

(iii) the period of notice for resignation from the SCE was extended to more than five years;

may tender his/her resignation within two months of the general meeting's decision.

Membership shall terminate at the end of the current financial year in the cases referred to in points (i) and (ii) of the first subparagraph and at the end of the period of notice which applied before the statutes were amended in the case referred to in point (iii) thereof. The amendment to the statutes shall not take effect in respect of that member. Resignation shall entitle the member to repayment of shares on the conditions laid down in Articles 3(4) and 16.

Article 16

Financial entitlements of members in the event of resignation or expulsion

CHAPTER II

FORMATION

Section 1

General

Article 17

Law applicable during formation

Article 18

Acquisition of legal personality

Section 2

Formation by merger

Article 19

Procedures for formation by merger

An SCE may be formed by means of a merger carried out in accordance with:

— the procedure for merger by acquisition,

— the procedure for merger by the formation of a new legal person.

In the case of a merger by acquisition, the acquiring cooperative shall take the form of an SCE when the merger takes place. In the case of a merger by the formation of a new legal person, the latter shall take the form of an SCE.

Article 20

Law applicable in the case of merger

For matters not covered by this section or, where a matter is partly covered by it, for aspects not covered by it, each cooperative involved in the formation of an SCE by merger shall be governed by the provisions of the law of the Member State to which it is subject that apply to mergers of cooperatives and, failing that, the provisions applicable to internal mergers of public limited-liability companies under the law of that State.

Article 21

Grounds for opposition to a merger

The laws of a Member State may provide that a cooperative governed by the law of that Member State may not take part in the formation of an SCE by merger if any of that Member State's competent authorities opposes it before the issue of the certificate referred to in Article 29(2).

Such opposition may be based only on grounds of public interest. Review by a judicial authority shall be possible.

Article 22

Conditions of merger

The management or administrative organ of merging cooperatives shall draw up draft terms of merger. The draft terms of merger shall include the following particulars:

(a) the name and registered office of each of the merging cooperatives together with those proposed for the SCE;

(b) the share-exchange ratio of the subscribed capital and the amount of any cash payment. If there are no shares, a precise division of the assets and its equivalent value in shares;

(c) the terms for the allotment of shares in the SCE;

(d) the date from which the holding of shares in the SCE will entitle the holders to share in surplus and any special conditions affecting that entitlement;

(e) the date from which the transactions of the merging cooperatives will be treated for accounting purposes as being those of the SCE;

(f) the special conditions or advantages attached to debentures or securities other than shares which, according to Article 64, do not confer the status of members;

(g) the rights conferred by the SCE on the holders of shares to which special rights are attached and on the holders of securities other than shares, or the measures proposed concerning them;

(h) the forms of protection of the rights of creditors of the merging cooperatives;

(i) any special advantage granted to the experts who examine the draft terms of merger or to members of the administrative, management, supervisory or controlling organs of the merging cooperatives;

(j) the statutes of the SCE;

(k) information on the procedures by which arrangements for employee involvement are determined pursuant to Directive 2003/72/EC.

Article 23

Explanation and justification of the terms of merger

The administrative or management organs of each merging cooperative shall draw up a detailed written report explaining and justifying the draft terms of merger from a legal and economic viewpoint and in particular the share-exchange ratio. The report shall also indicate any special valuation difficulties.

Article 24

Publication

Publication of the draft terms of merger in the national gazette shall, however, include the following particulars for each of the merging cooperatives:

(a) the type, name and registered office of each merging cooperative;

(b) the address of the place or of the register in which the statutes and all other documents and particulars are filed in respect of each merging cooperative, and the number of the entry in that register;

(c) an indication of the arrangements made in accordance with Article 28 for the exercise of the rights of the creditors of the cooperative in question and the address at which complete information on those arrangements may be obtained free of charge;

(d) an indication of the arrangements made in accordance with Article 28 for the exercise of the rights of members of the cooperative in question and the address at which complete information on those arrangements may be obtained free of charge;

(e) the name and registered office proposed for the SCE;

(f) the conditions determining the date on which the merger will take effect pursuant to Article 31.

Article 25

Disclosure requirements

Any member shall be entitled, at least one month before the date of the general meeting required to decide on the merger, to inspect at the registered office the following documents:

(a) the draft terms of merger mentioned in Article 22;

(b) the annual accounts and management reports of the merging cooperatives for the three preceding financial years;

(c) an accounting statement drafted in accordance with the provisions applicable to the internal mergers of public limited-liability companies, to the extent that such a statement is required by these provisions;

(d) the experts' report on the value of shares to be distributed in exchange for the assets for the merging cooperatives or the share exchange ratio as provided for in Article 26;

(e) the report from the cooperative's administrative or management organs as provided for in Article 23.

Article 26

Report of independent experts

Article 27

Approval of the terms of merger

Article 28

Laws applicable to formation by merger

The law of the Member State governing each merging cooperative shall apply as in the case of a merger of public limited-liability companies, taking into account the cross-border nature of the merger, with regard to the protection of the interests of:

— creditors of the merging cooperatives,

— holders of bonds in the merging cooperatives.

Article 29

Scrutiny of merger procedure

Article 30

Scrutiny of legality of merger

Article 31

Registration of merger

Article 32

Publication

For each of the merging cooperatives the completion of the merger shall be made public as laid down by the law of the Member State concerned in accordance with the laws governing mergers of public companies limited by shares.

Article 33

Consequences of merger

A merger carried out as laid down in the first indent of the first subparagraph of Article 19 shall have the following consequences ipso jure and simultaneously:

(a) all the assets and liabilities of each cooperative being acquired are transferred to the acquiring legal person;

(b) the members of each cooperative being acquired become members of the acquiring legal person;

(c) the cooperatives being acquired cease to exist;

(d) the acquiring legal person assumes the form of an SCE.

A merger carried out as laid down in the second indent of the first subparagraph of Article 19 shall have the following consequences ipso jure and simultaneously:

(a) all the assets and liabilities of the merging cooperatives are transferred to the SCE;

(b) the members of the merging cooperatives become members of the SCE;

(c) the merging cooperatives cease to exist.

The first subparagraph shall not apply to the right of workers' representatives to participate in general or section or sectorial meetings provided for in Article 59(4).

Article 34

Legality of the merger

Section 3

Conversion of an existing cooperative into an SCE

Article 35

Procedures for formation by conversion

CHAPTER III

STRUCTURE OF THE SCE

Article 36

Structure of organs

Under the conditions laid down by this Regulation an SCE shall comprise:

(a) a general meeting; and

(b) either a supervisory organ and a management organ (two-tier system) or an administrative organ (one-tier system) depending on the form adopted in the statutes.

Section 1

Two-tier system

Article 37

Functions of the management organ; appointment of members

However, a Member State may require or permit the statutes to provide that the member or members of the management organ are appointed and removed by the general meeting under the same conditions as for cooperatives that have registered offices within its territory.

Article 38

Chairmanship and the calling of meetings of the management organ

Article 39

Functions of the supervisory organ; appointment of members

Article 40

Right to information

Article 41

Chairmanship and the calling of meetings of the supervisory organ

Section 2

The one-tier system

Article 42

Functions of the administrative organ; appointment of members

The administrative organ shall, however, consist of at least three members where employee participation is regulated in accordance with Directive 2003/72/EC.

Article 43

Intervals between meetings and the right to information

Article 44

Chairmanship and the calling of meetings of the administrative organ

Section 3

Rules common to the one-tier and two-tier systems

Article 45

Term of office

Article 46

Conditions of membership