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Document 02003R1435-20030821
Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE)
Consolidated text: Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE)
Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE)
02003R1435 — EN — 21.08.2003 — 000.001
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COUNCIL REGULATION (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE) (OJ L 207 18.8.2003, p. 1) |
Corrected by:
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:
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:
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:
the proposed registered office of the SCE;
the proposed statutes of the SCE including, where appropriate, its new name;
the proposed timetable for the transfer;
any implication the transfer may have on employees' involvement;
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:
by this Regulation;
where expressly authorised by this Regulation, by the provisions of its statutes;
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:
the laws adopted by Member States in the implementation of Community measures relating specifically to SCEs;
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;
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:
Article 15
Loss of membership
Membership shall be lost:
Any minority member who opposed an amendment to the statutes at the general meeting whereby:
new obligations in respect of payments or other services were introduced; or
existing obligations for members were substantially extended; or
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:
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:
the name and registered office of each of the merging cooperatives together with those proposed for the SCE;
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;
the terms for the allotment of shares in the SCE;
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;
the date from which the transactions of the merging cooperatives will be treated for accounting purposes as being those of the SCE;
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;
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;
the forms of protection of the rights of creditors of the merging cooperatives;
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;
the statutes of the SCE;
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:
the type, name and registered office of each merging cooperative;
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;
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;
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;
the name and registered office proposed for the SCE;
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:
the draft terms of merger mentioned in Article 22;
the annual accounts and management reports of the merging cooperatives for the three preceding financial years;
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;
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;
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:
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:
all the assets and liabilities of each cooperative being acquired are transferred to the acquiring legal person;
the members of each cooperative being acquired become members of the acquiring legal person;
the cooperatives being acquired cease to exist;
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:
all the assets and liabilities of the merging cooperatives are transferred to the SCE;
the members of the merging cooperatives become members of the SCE;
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 general meeting; and
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
That company shall designate a natural person as its representative to exercise its functions on the organ in question. The representative shall be subject to the same conditions and obligations as if he/she were personally a member of the organ.
No person may be a member of any SCE organ or a representative of a member within the meaning of paragraph 1 who:
Article 47
Power of representation and liability of the SCE
Member States may, however, provide that the SCE shall not be bound where such acts are outside the objects of the SCE, if it proves that the third party knew that the act was outside those objects or could not in the circumstances have been unaware of it; disclosure of the statutes shall not of itself be sufficient proof thereof.
Article 48
Operations requiring authorisation
An SCE's statutes shall list the categories of transactions requiring:
Article 49
Confidentiality
The members of an SCE's organs shall be under a duty, even after they have ceased to hold office, not to divulge any information which they have concerning the SCE the disclosure of which might be prejudicial to the cooperative's interests or those of its members, except where such disclosure is required or permitted under national law provisions applicable to cooperatives or companies or is in the public interest.
Article 50
Conduct of the business of organs
Unless otherwise provided by this Regulation or the statutes, the internal rules relating to quorums and decision-taking in SCE organs shall be as follows:
quorum: at least half of the members with voting rights must be present or represented;
decision-taking: a majority of the members with voting rights present or represented.
Members who are absent may take part in decisions by authorising another member of the organ or the alternate members who were appointed at the same time to represent them.
Article 51
Civil liability
Members of management, supervisory and administrative organs shall be liable, in accordance with the provisions applicable to cooperatives in the Member State in which the SCE's registered office is situated, for loss or damage sustained by the SCE following any breach on their part of the legal, statutory or other obligations inherent in their duties.
Section 4
General meeting
Article 52
Competence
The general meeting shall decide on matters for which it is given sole responsibility by:
this Regulation; or
the legislation of the Member State in which the SCE's registered office is situated, adopted under Directive 2003/72/EC.
Furthermore, the general meeting shall decide on matters for which responsibility is given to the general meeting of a cooperative governed by the law of the Member State in which the SCE's registered office is situated, either by the law of that Member State or by the SCE's statutes in accordance with that law.
Article 53
Conduct of general meetings
Without prejudice to the rules laid down in this section, the organisation and conduct of general meetings together with voting procedures shall be governed by the law applicable to cooperatives in the Member State in which the SCE's registered office is situated.
Article 54
Holding of general meetings
Article 55
Meeting called by a minority of members
Members of the SCE who together number more than 5 000 , or who have at least 10 % of the total number of the votes, may require the SCE to convene a general meeting and may draw up its agenda. The above proportions may be reduced by the statutes.
Article 56
Notice of meeting
The notice calling a general meeting shall give at least the following particulars:
Article 57
Additions to the agenda
Members of the SCE who together number more than 5 000 , or who have at least 10 % of the total number of the votes, may require that one or more additional items be put on the agenda of any general meeting. The above proportions may be reduced by the statutes.
Article 58
Attendance and proxies
The statutes shall lay down the maximum number of persons for whom a proxy may act.
Article 59
Voting rights
If the law of the Member State in which the SCE has its registered office so permits, SCEs involved in financial or insurance activities may provide in their statutes for the number of votes to be determined by the members' participation in the cooperative activity including participation in the capital of the SCE. This attribution shall not exceed five votes per member or 20 % of total voting rights, whichever is the lower.
In SCEs the majority of members of which are cooperatives, if the law of the Member State in which the SCE has its registered office so permits, the statutes may provide for the number of votes to be determined in accordance with the members' participation in the cooperative activity including participation in the capital of the SCE and/or by the number of members of each comprising entity.
Article 60
Right to information
The management or administrative organ may refuse to supply such information only where:
Article 61
Decisions
Where the statutes provide for the possibility of an SCE to admit investor (non-user) members, or to allocate votes according to capital contribution in SCEs involved in financial or insurance activities, the statutes shall also lay down special quorum requirements with relation to members other than investor (non-user) members or members that have voting rights according to capital contribution in SCEs involved in financial or insurance activities. Member States shall be free to set the minimum level of such special quorum requirements for those SCEs having their registered office in their territory.
In the cases referred to in the first subparagraph, at least two thirds of the votes cast validly must be cast in favour, unless the law applicable to cooperatives in the Member State in which the SCE's registered office is situated requires a greater majority.
Article 62
Minutes
Minutes shall be drawn up for every general meeting. The minutes shall include at least the following particulars:
Article 63
Sectorial or section meetings
CHAPTER IV
ISSUE OF SHARES CONFERRING SPECIAL ADVANTAGE
Article 64
Securities other than shares and debentures conferring special advantages
The opinion referred to in the first subparagraph shall be recorded in the minutes of the general meeting.
CHAPTER V
ALLOCATION OF PROFITS
Article 65
Legal reserve
Until such time as the legal reserve is equal to the capital referred to in Article 3(2), the amount allocated to it may not be less than 15 % of the surplus for the financial year after deduction of any losses carried over.
Article 66
Dividend
The statutes may provide for the payment of a dividend to members in proportion to their business with the SCE, or the services they have performed for it.
Article 67
Allocation of available surplus
The general meeting which considers the accounts for the financial year may allocate the surplus in the order and proportions laid down in the statutes, and in particular:
CHAPTER VI
ANNUAL ACCOUNTS AND CONSOLIDATED ACCOUNTS
Article 68
Preparation of annual accounts and consolidated accounts
Article 69
Accounts of SCEs with credit or financial activities
Article 70
Auditing
The statutory audit of an SCE's annual accounts and its consolidated accounts if any shall be carried out by one or more persons authorised to do so in the Member State in which the SCE has its registered office in accordance with the measures adopted in that State pursuant to Directives 84/253/EEC and 89/48/EEC.
Article 71
System of auditing
Where the law of a Member State requires all cooperatives, or a certain type of them, covered by the law of that State to join a legally authorised external body and to submit to a specific system of auditing carried out by that body, the arrangements shall automatically apply to an SCE with its registered office in that Member State provided that this body meets the requirements of Directive 84/253/EEC.
CHAPTER VII
WINDING UP; LIQUIDATION; INSOLVENCY AND CESSATION OF PAYMENTS
Article 72
Winding-up, insolvency and similar procedures
As regards winding-up, liquidation, insolvency, cessation of payments and similar procedures, an SCE shall be governed by the legal provisions which would apply to a cooperative formed in accordance with the law of the Member State in which its registered office is situated, including provisions relating to decision-making by the general meeting.
Article 73
Winding-up by the court or other competent authority of the Member State where the SCE has its registered office
The court or the competent administrative authority may allow the SCE time to rectify the situation. If it fails to do so within the time allowed, the court or the competent administrative authority shall order it to be wound up.
When an SCE no longer complies with the requirement laid down in Article 6, the Member State in which the SCE's registered office is situated shall take appropriate measures to oblige the SCE to regularise its situation within a specified period either:
Article 74
Publication of winding-up
Without prejudice to provisions of national law requiring additional publication, the initiation and termination of winding-up including voluntary winding-up, liquidation, insolvency or suspension of payment procedures and any decision to continue operating shall be publicised in accordance with Article 12.
Article 75
Distribution
Net assets shall be distributed in accordance with the principle of disinterested distribution, or, where permitted by the law of the Member State in which the SCE has its registered office, in accordance with an alternative arrangement set out in the statutes of the SCE. For the purposes of this Article, net assets shall comprise residual assets after payment of all amounts due to creditors and reimbursement of members' capital contributions.
Article 76
Conversion into a cooperative
CHAPTER VIII
ADDITIONAL AND TRANSITIONAL PROVISIONS
Article 77
Economic and monetary union
CHAPTER IX
FINAL PROVISIONS
Article 78
National implementing rules
Article 79
Review of the Regulation
Five years at the latest after the entry into force of this Regulation, the Commission shall forward to the European Parliament and to the Council a report on the application of the Regulation and proposals for amendments, where appropriate. The report shall, in particular, analyse the appropriateness of:
allowing the location of an SCE's head office and registered office in different Member States;
allowing provisions in the statutes of an SCE adopted by a Member State in execution of authorisations given to the Member States by this Regulation or laws adopted to ensure the effective application of this Regulation with regard to the SCE which deviate from, or are complementary to, these laws, even when such provisions would not be authorised in the statutes of a cooperative having its registered office in the Member State;
allowing provisions which enable the SCE to split into two or more national cooperatives;
allowing for specific legal remedies in the case of fraud or error during the registration of an SCE established by way of merger.
Article 80
Entry into force
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.
It shall apply from 18 August 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
( 1 ) OJ C 99, 21.4.1992, p. 17 and OJ C 236, 31.8.1993, p. 17.
( 2 ) OJ C 42, 15.2.1993, p. 75 and opinion delivered on 14 May 2003 (not yet published in the Official Journal).
( 3 ) OJ C 223, 31.8.1992, p. 42.
( 4 ) OJ C 128, 16.5.1983, p. 51.
( 5 ) OJ C 246, 14.9.1987, p. 94.
( 6 ) OJ C 158, 26.6.1989, p. 380.
( 7 ) OJ C 61, 28.2.1994, p. 231.
( 8 ) OJ C 313, 12.10.1998, p. 234.
( 9 ) OJ L 294, 10.11.2001, p. 1.
( 10 ) OJ L 199, 31.7.1985, p. 1.
( 11 ) Resolution adopted by the General Assembly of the 88th plenary meeting of the United Nations, 19 December 2001 (A/RES/56/114).
( 12 ) See page 25 of this Official Journal.
( 13 ) OJ L 65, 14.3.1968, p. 8; Directive as last amended by the 1994 Act of Accession.
( 14 ) OJ L 222, 14.8.1978, p. 11; Directive as last amended by Directive 2001/65/EC (OJ L 283, 27.10.2001, p. 28).
( 15 ) OJ L 193, 18.7.1983, p. 1; Directive as last amended by Directive 2001/65/EC.
( 16 ) OJ L 126, 12.5.1984, p. 20.
( 17 ) OJ L 395, 30.12.1989, p. 36.
( 18 ) OJ L 372, 31.12.1986; Directive as last amended by Directive 2001/65/EC.
( 19 ) OJ L 228, 11.8.1992, p. 1; Directive as last amended by Directive 2002/13/EC (OJ L 77, 20.3.2002, p. 17).
( 20 ) OJ L 317, 16.11.1990, p. 57.