SECOND WORKING DOCUMENT

Transcription

1 European Parliament Committee on Legal Affairs SECOND WORKING DOCUMT on the proposal for a directive of the European Parliament and of the Council on single-member private limited liability companies Committee on Legal Affairs Rapporteur: Luis de Grandes Pascual DT\ doc PE v02-00 United in diversity

2 Proposal for a directive of the European Parliament and of the Council on singlemember private limited liability companies On 9 April 2014 the Commission put forward a proposal for a directive on single-member private limited liability companies. The rapporteur was assigned the task of drawing up the report of the Committee on Legal Affairs in October The initial exchange of views held at the beginning of December 2014 revealed strong opposition to the draft directive on the part of some political groups and created serious doubts as to its viability. The rapporteur then opted to draw up a working document in which he explored the most controversial points and encouraged the shadow rapporteurs to continue the debate and work together to seek acceptable solutions. The working document, submitted in February 2015, was received with interest but did not achieve its goal of encouraging a willingness to consider alternatives. Since then, the rapporteur has devoted a huge amount of time to studying the proposal and listening to the positions of the various stakeholders: industry, trade unions, academics, and Member State authorities. He has also met the shadow rapporteurs on a number of occasions. The opinion of Parliament s Committee on Employment and Social Affairs, which categorically rejects the Commission proposal without providing any reasons, illustrates the ideological nature of the debate surrounding SUPs. For its part, the Committee on the Internal Market and Consumer Protection carried out sterling work in its area of responsibility and succeeded, after much effort, in gathering the necessary majority to adopt a recommendation. The rapporteur believes in the proposal s potential as an instrument that will make it easier to set up companies carrying out cross-border activities, although not on the terms proposed by the Commission, which some believe will open the door to the improper use of SUPs, and not on the terms proposed in the general approach adopted by the Council on 28 May 2015, which is a step in the right direction but is still insufficient, since so many elements are left to subsidiarity that very little remains of the added value offered by the proposal. This second working document contains practical solutions that will allow the cross-border setting-up of companies while maintaining the necessary legal safeguards. The text also provides a sufficient level of harmonisation to ensure that the directive contributes to making life easier for citizens and businesses, simplifying the legal framework, reducing regulatory burdens across the single market and increasing regulatory predictability. 1 The rapporteur is appealing to the shadow rapporteurs, some of whom have formally requested that the proposal be sent back to the Commission, to consider the solutions that have been drawn up in the light of their reservations, and to give a specific and definitive response. 1 Better regulation for better results An EU agenda (COM(2015)0215). PE v /21 DT\ doc

3 This second working document does not simply sketch out solutions to the problems identified. Rather, specific solutions are provided with the aim of checking whether they might be suitable with a view to launching the formal procedure. After the debate, in which the rapporteur will engage with humility but also with determination, we will be in a position to adopt the appropriate decision, having heard the political groups and the Commission. Whereas: DIRECTIVE OF THE EUROPEAN PARLIAMT AND OF THE COUNCIL on single-member private limited liability companies (1) Directive 2009/102/EC of the European Parliament and of the Council of 16 September 2009 in the area of company law on single-member private limitedliability companies 2, has made it possible for individual entrepreneurs to operate under limited liability throughout the Union. (2) Part I of this Directive takes over the provisions of Directive 2009/102/EC as regards all single-member limited liability companies. It requires that in case all shares in a company are held by a single shareholder, the Member State should ensure that that fact, together with the identity of the single member, must either be recorded in the file or entered in the central, commercial or companies register ( the register ) as referred to in Article 3(1) and (3) of Directive 2009/101/EC or be entered in a register kept by the company and accessible to the public. (2a) In order to ensure a high level of transparency, decisions taken by the single member of an SUP exercising the powers of the general meeting should be recorded in minutes and kept for at least five years. Member States should be permitted to provide that documents be stored in a safe and accessible electronic format. (3) Establishing single-member limited liability companies as subsidiaries in other Member States entail costs due to the diverse legal and administrative requirements which must be met in the Member States concerned. Such divergent requirements continue to exist among Member States and create barriers for companies, in particular small companies, as regards setting up and operating at cross-border level. The additional financial and administrative burdens and costs related to setting up companies hamper the full development of business within the internal market. 2 OJ L 258, , p. 20. DT\ doc 3/21 PE v02-00

4 (4) The Commission Communication entitled 'Integrated Industrial Policy for the Globalisation Era: Putting Competitiveness and Sustainability at Centre Stage' 3 encourages the creation, growth and internationalisation of small and medium-sized enterprises (SMEs). This is important for the Union economy as SMEs account for two-thirds of employment in the Union and offer significant potential for growth and for the creation of jobs. (5) The improvement of the business environment, especially for SMEs, by reducing transaction costs in Europe, promoting clusters and promoting the internationalisation of SMEs, were the key elements of the initiative Industrial policy for the globalisation era outlined in the Commission Communication on the Europe 2020 strategy 4. (6) In line with the Europe 2020 strategy, the Review of the Small Business Act for Europe 5 advocated further progress in making smart regulation a reality, enhancing market access and promoting entrepreneurship, job creation and inclusive growth. (6a) Large and medium-sized companies do not face the same problems as small companies, and consequently micro and small enterprises should have ad hoc legal instruments that will favour the setting-up of subsidiaries in other Member States in an appropriate manner. (7) In order to facilitate the cross-border activities of micro and small enterprises and the establishment of single-member companies as subsidiaries in other Member States, the costs and administrative burdens involved in setting-up these companies should be reduced, while at the same time guaranteeing the effectiveness of control mechanisms to combat tax evasion and money laundering. (8) The availability of a harmonised legal framework governing the formation of singlemember companies, including the establishment of a uniform instrument for the articles of association should contribute to the progressive abolition of restrictions on freedom of establishment as regards the conditions for setting up subsidiaries in the territories of Member States and lead to a reduction in costs. (9) Single-member private limited liability companies formed and operating in compliance with this Directive should add to their names a common, easily identifiable abbreviation SUP (Societas Unius Personae). In order to reflect that the SUP is a national company law form, all companies of this kind should be required to add to their company name an indication which enables the identification of the Member State of registration. (10) To respect Member States existing traditions of company law, flexibility should be afforded to them as regards the manner and extent to which they wish to apply harmonised rules governing the formation and operation of SUPs. Member States may apply Part 2 of this Directive to all small single-member private limited liability companies (micro and small enterprises) with a clear cross-border focus, so that all COM(2010)614 final, COM(2010)2020 final, COM(2011) 78 final of PE v /21 DT\ doc

5 such companies can operate and function as SUPs. They should provide for the establishment of an SUP as a separate company law form which would exist in parallel with other forms of single-member private limited liability company provided for in national law. (11) Both natural and legal persons should be entitled to form SUPs. Nevertheless, in keeping with the directive s objective of encouraging the creation, growth and internationalisation of small businesses, the possibility of being a member of micro and small enterprises should be restricted in the case of legal persons. (11a) An SUP should be prohibited from being a single member in another limited liability company in cases of cross or circular ownership, in particular in order to prevent situations where an SUP, indirectly, holds its own share, either in a situation where companies hold shares in each other, or where more than two companies holding shares in each other in such a way that the last company in the chain holds the single share of the SUP. (11b) Private limited liability companies that were not formed as SUPs should also be able to benefit from the arrangements applicable to SUPs. They should be able to be converted into SUPs subject to compliance with procedures and conditions in national law and provided that they also provide evidence of one year s business activity. (11c) Given that the legal form of SUP is to be restricted to micro and small enterprises, an SUP should be required to convert into another company law form at the point when its size brings it into the medium-sized enterprise category. (12) To guarantee that the SUP does not become a means of avoiding obligations as regards the protection of workers, it is appropriate to require that the registered office of an SUP and its central administration should be in the same Member State. (13) In order to make it easier and less costly to establish subsidiaries in other Member States, the founders of SUPs should not be obliged to be physically present before any Member State's registration body. The register should be accessible from any Member State and a company founder should be able to make use of existing points of single contact created under Directive 2006/123/EC of the European Parliament and of the Council as a gateway to national on-line registration points 6. It should, therefore, be possible to establish SUPs from distance and fully by electronic means. (13a) The on-line registration should be without prejudice to the Member States' choice of involvement of intermediaries or other bodies in the process of registration of the SUP in order to provide assistance in that process or verify the legality of the registration provided that the whole process can be completed electronically. (13b) To encourage cross-border set-ups of SUPs, Member States should include in their SUP on-line registration point(s) the links to SUP on-line registration point(s) in other Member States. This may be done via a link to a central EU website or portal 6 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, , p. 36). DT\ doc 5/21 PE v02-00

6 such as the E-Justice portal which could provide the links to all SUP on-line registration points in Member States. (14) In order to ensure a high level of transparency, all documents registered at the register of companies should be made publicly available via the system of interconnection of registers referred to in Article 4a(2) of Directive 2009/101/EC of the European Parliament and of the Council 7. (15) To ensure a high level of uniformity and on-line accessibility, the documents used to register SUPs should follow a uniform format available in all official languages of the Union. Each Member State may require registration to be completed in an official language of the Member State concerned, but are also encouraged to allow for registration in other official languages of the Union. (15a) Member States should be able to request by registration more information from the founder which is outside the scope of this Directive, in particular for tax, social, anti-money laundering and other purposes. Member States should also be able to require the founder to submit appropriate items of evidence with a view to proving the information required for the purpose of registration under this directive. Appropriate items of evidence should be those that are necessary and suitable for proving the respective items without imposing a disproportionate burden on the founder. (16) In line with the recommendations set out in the European Commission s 2011 Review of the Small Business Act 8 to reduce the start-up time for new enterprises, national authorities should complete the on-line registration process within five working days. This facility should only be available to the newly created companies and not to existing entities that wish to convert to SUPs as the registration of such entities by their very nature, may take more time. (17) Each Member State should designate a competent electronic registration point, which should be supported by the professionals and means established by national law for that purpose. To support the designated bodies in exchanging information about the identity of the founder, Member States may use the means provided for under Regulation (EU) No 1024/2012 of the European Parliament and of the Council 9. (18) Provisions concerning the establishment of SUPs should not affect the right of Member States to maintain existing rules or enact new rules concerning possible ex ante and ex post verification of the legality of the registration process, including rules on the verification of identification and legal capacity in order to provide for safeguards for the reliability and trustworthiness of registers. Such rules may Directive 2009/101/EC Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent (OJ L 258, , p. 11). COM(2011) 78 final of Regulation (EU) No 1024/2012 of the European Parliament and of the Council of 25 October 2012 on administrative cooperation through the Internal Market Information System and repealing Commission Decision 2008/49/EC ('the IMI Regulation') (OJ L 316, , p. 1). PE v /21 DT\ doc

7 include, for example, the legality check via a video-conference or other on-line means that provide a real-time audio-visual connection. In any event, national rules should not affect the possibility of completing the whole registration procedure online. (18a) In the event that fraud is suspected, it should be possible to require the founder to appear in person before the competent authority. (18b) To ensure a high level of security and trust in the context of on-line cross-border identification of the founder of an SUP, the authorities of the Member State of registration should be able to determine the legal effects of the electronic identification means issued in other Member States, in accordance with recital 49 and Article 25 of Regulation (EU) No 910/2014. (19) The minimum capital required for the formation of a single-member private limited liability company varies among the Member States. The SUPs should not be subject to a high mandatory capital requirement, since this would act as a barrier to their formation. Creditors, however, should be protected from excessive distributions to single-members, which could affect the capacity of an SUP to pay its debts. Accordingly, it is appropriate to require the SUP to build up legal reserves, defined as a percentage of the company's profits and/or up to a maximum amount equivalent to the minimum share capital required for limited liability companies listed in Annex I. (19b) In order to protect creditors and other stakeholders, Member States should ensure that their national law provides for mechanisms in preventing SUPs from being unable to pay their debts after making distributions. The form and methods to ensure compliance with this requirement are left to Member States. (20) In order to prevent abuse and simplify control SUPs should neither issue any further shares nor should the single share be split. Nor should SUPs acquire or own their single share whether directly or indirectly. Rights attached to the single share should only be exercised by one person. Where a Member State allows for co-ownership of a single share, only one representative should be entitled to act on behalf of the coowners and be considered as a single-member for the purpose of this Directive. All the co-owners should nevertheless be identified. (21) deleted (22) The management body of an SUP should be composed of one or more directors. Only natural persons should be appointed as directors, unless the Member State of registration allows legal persons to act as directors. (23) deleted (24) The Member States should lay down rules on penalties applicable to the infringements of the provisions of this Directive, with particular regard to the actual conducting of business by the SUP in the Member State of registration, and should ensure that they are implemented. Those penalties should be effective, proportionate and dissuasive. DT\ doc 7/21 PE v02-00

8 (25) deleted (26) In order to accommodate future changes to the laws of Member States and to Union legislation concerning company types, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission to update the list of undertakings contained in Annex I. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at experts' level. The Commission, when preparing and drawing-up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and Council. (27) In accordance with the Joint Political Declaration of Member States and the Commission of 28 September 2011 on explanatory documents 10, Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified, (28) Since the objectives of this Directive, namely, to facilitate the establishment of singlemember private limited liability companies, including SUPs cannot be sufficiently achieved by the Member States, but can rather, by reason of their scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve those objectives. (29) Since substantial amendments are being made to Directive 2009/102/EC, in the interests of clarity and legal certainty that Directive should be repealed. HAVE ADOPTED THIS DIRECTIVE: 10 OJ C 369, , p. 14. PE v /21 DT\ doc

9 Part 1 General provisions Article 1 Scope 1. Part 1 of this Directive shall apply to the laws, regulations and administrative provisions of the Member States relating to: (a) the types of company listed in Annex I; (b) Societas Unius Personae (SUP) referred to in Article Member States shall inform the Commission within two months of any changes to the types of private limited companies provided for in their national law affecting the contents of Annex I. In such a case the Commission shall be empowered to adapt, by means of delegated acts in accordance with Article 26, the list of companies contained in Annex I. 3. Where a Member State allows other companies than those listed in Annex I to be established as or become single-member companies, as defined in Article 2(1), Part 1 of this Directive shall also apply to them. 3a. This Directive is without prejudice to national and Union law governing matters outside its scope, such as matters related to labour law, workers participation in the management or supervisory bodies of companies, and the right to information and consultation, taxation, accounting, or insolvency proceedings. Article 2 Definitions For the purposes of this Directive, the following definitions shall apply: (1) single-member company means a company whose shares are held by a single person; (2) conversion means any process by which an existing company becomes or ceases to be an SUP; (3) distribution means any financial benefit derived directly or indirectly from the SUP by the single member, in relation to the single share, including any transfer of money or property. Distributions may take the form of a dividend, and may be made through a purchase or sale of property or by any other means; (4) articles of association means articles of association or statutes or any other rules or instruments of incorporation establishing a company; DT\ doc 9/21 PE v02-00

10 (5) director means any member of the management body either formally appointed or who de facto acts as a director. Article 3 Publicity Where a company becomes a single-member company because all its shares come to be held by a single person, that fact, together with the identity of the single member, must either be recorded in the file or entered in the register as referred to in Article 3(1) and (3) of Directive 2009/101/EC or be entered in a register kept by the company and accessible to the public. Article 4 General meeting and decisions of the single member 1. The single member shall exercise the powers of the general meeting of the company. 2. Decisions taken by the single member exercising powers referred to in paragraph 1 shall be recorded in minutes and kept for at least five years. Member States may provide that it is sufficient for the decisions to be stored electronically by the company, in a safe and accessible format preventing any loss of their integrity. Article 5 Contracts between the single member and the company 1. Contracts between the single-member and the company shall be recorded in minutes and kept for at least five years. Member States may provide that it is sufficient for the decisions to be stored electronically by the company, in a safe and accessible format preventing any loss of their integrity. 2. Member States may decide not to apply paragraph 1 to contracts concluded under market conditions in the ordinary course of business which are not detrimental to the single-member company. PE v /21 DT\ doc

11 Part 2 Societas Unius Personae Chapter 1 Legal form and general principles Article 6 Scope and legal form 1. Part 2 of this Directive shall apply to the laws, regulations and administrative provisions of the Member States relating to the possibility of establishing private single-member limited liability companies in the form referred to as SUP. 2. Member States may not prohibit SUPs from being single members in other limited liability companies except where this might lead to cross- or circular ownership. Article 7 General principles 1. Member States shall grant SUPs full legal personality. 2. Member States shall provide that SUPs are a type of single-member private limited liability company applicable only to micro- or small enterprises in accordance with Article 3(1) and (2) of Directive 2013/34/EU. 3. The name of a company which has the legal form of an SUP shall be followed by the abbreviation SUP. Only an SUP may use the abbreviation SUP. The Member State of registration shall require SUPs to add to the company name an indication that the company is registered in that Member State. Such an indication may include an abbreviation applicable to private limited liability companies in accordance with national laws. For the purposes of conversion into an SUP, company names shall be adapted to comply with those requirements. 4. The SUP and its articles of association shall be governed by the national law of the Member State where the SUP is registered (hereinafter applicable national law ). 5. Member States shall provide that the SUP is set up for an unlimited period of time, unless provided otherwise in the articles of association. DT\ doc 11/21 PE v02-00

12 Article 7a Conversion of an SUP into another company law form 1. Member States shall ensure that their national law requires SUPs to be dissolved or converted into another form of company if they cease to comply with the requirements laid down in this Directive. If an SUP exceeds the limits laid down in Article 3(2) of Directive 2013/34/EU, it must adopt another legal form. 1a If an SUP fails to take appropriate steps to convert into another company law form, the competent authority shall be granted the powers necessary to dissolve the SUP. 2. An SUP may, at any moment, decide to convert into another company law form following the procedure laid down by applicable national law. 3. An SUP that has converted into another company law form or been dissolved in accordance with paragraph 1 or 2 shall cease to use the abbreviation SUP. Chapter 2 Formation Article 8 Incorporation An SUP may be incorporated by a natural or a legal person. If an SUP is incorporated by a legal person, the founding member may be only: (a) (b) a microenterprise within the meaning of Article 3(1) of Directive 2013/34/EU or a small enterprise within the meaning of Article 3(2) of Directive 2013/34/EU. Article 9 Conversation into an SUP 1. Member States shall ensure that all micro and small enterprises which have been carrying on their business for one year may convert into SUPs under the procedure and conditions laid down by national law. 1a. Conversion under this Article may not serve to transfer the registered office of a company from one Member State to another, unless such a transfer is intended to comply with Article The formation of an SUP by conversion shall not result in any winding-up procedures or any loss or interruption of legal personality, nor shall it affect any rights or obligations existing prior to the conversion. PE v /21 DT\ doc

13 3. deleted Article 10 Seat of the SUP The registered office and the central administration of the SUP shall be in the same place as its real seat. Chapter 3 Articles of association Article 11 Standard template for articles of association 1. Member States shall require articles of association of SUPs to include the following: (a) name of the SUP; (b) full name of, and other information necessary to identify, or otherwise related to, the SUP s single member; (c) full names of, and other information necessary to identify, or otherwise related to, the members of the management body and, if there is a supervisory body, the members of that body; (d) number of members of the management body and of the supervisory body, if the latter exists; (e) business object of the SUP; (f) registered office of the SUP; (g) duration of the SUP; (h) share capital of the SUP, type of single share, form of consideration for the share, and form and procedure to create legal reserves; (i) provisions concerning the absence of members of the management body or their inability to act; (j) legal value of decisions made by a company being formed; (k) financial year. 1a. Member States shall make a standard template available online. The template shall be provided in the official language or languages of the Member States. Member DT\ doc 13/21 PE v02-00

14 2. deleted 3. deleted States shall also endeavour to supply the template in other languages, especially those used in international business. Article 12 Amendment of articles of association 1. An SUP may, after registration, amend its articles of association by electronic or other means in accordance with applicable national law. This information shall be entered in the register of companies in the Member State of registration. 2. The amended articles of association of the SUP shall cover at least the subject matters provided for in the uniform template referred to in Article 11(1). Article 12a Information for the founder 1. Before registration, Member States shall provide founders of SUPs with up-todate, clear, concise, and user-friendly information about national law governing at least the following points concerning SUPs: (a) powers and responsibilities of the management body, including representation of the SUP in relation to third parties; (b) requirements for member(s) of the management body and, where applicable, the supervisory body; (c) decision-making by the management body and, where applicable, the supervisory body; (d) powers of the single member; (e) dividends and other forms of distributions; (f) legal reserves; (g) all formalities related to registration referred to in Article 13. Member States shall also make available the relevant provisions of default national laws governing at least the above aspects of the functioning and registration of SUPs, if any, or references to those provisions. 2. Member States shall provide the information and default national laws, or references to them, in the national template(s) of the instrument(s) of constitution or on the national SUP registration websites or by any other means which would PE v /21 DT\ doc

15 enable the founder to become easily acquainted with them. This information and the default national laws shall be available in the official language(s) of the Member State of registration and be made available free of charge. Member States shall also endeavour to make them available in other languages, in particular in languages used in international business. 3. National online registration websites for SUPs shall include links to the online registration websites for SUPs in other Member States. Chapter 4 Registration Article 13 Registration formalities 1. In addition to the information contained in the articles of association, Member States may require for the registration of an SUP the following information or documentation: (a) information necessary to identify or otherwise relating to: (i) means of communication with the SUP; (ii) the representative that establishes the SUP on the member s behalf, where applicable; (iii) persons authorised to certify the accounts of the SUP (auditor); (iv) persons authorised to represent the SUP in dealings with third parties, alone or jointly, including in legal proceedings, together with the powers of representation; (v) any beneficial owner of the SUP; (b) information stating whether the directors and, where applicable, the members of the supervisory body are disqualified either by law or by a judicial or administrative decision from acting as directors or members of a supervisory body in the Member State of registration or in any other Member State; (c) the nominal value of the single share and the amount unpaid on the share, if any; (d) information relating to the conversion into an SUP; (e) a bank account into which the consideration for the share may be paid. DT\ doc 15/21 PE v02-00

16 Member States shall require the founder of an SUP to furnish evidence necessary to demonstrate or support the truthfulness of information supplied pursuant to the preceding subparagraph. 1a. The above paragraph is without prejudice to Articles 2 and 2a of Directive 2009/101/EC and the right of Member States to request additional information or items of evidence from the founder of an SUP by the moment of registration in relation to requirements outside the scope of this Directive. 2. deleted 2a. If any item of evidence is required to be signed or sealed, it may be signed or sealed electronically in accordance with Regulation (EU) No 910/ b. Where fraud is suspected, the founder shall be required to appear in person before the competent authority. Article 14 Registration 1. An SUP shall be registered in a Member State in which it is to have its registered office and shall comply with the rules of that Member State. 2. An SUP shall acquire legal personality on the date on which it is entered in the register of companies of the Member State of registration. 3. Member States shall ensure that the registration procedure for newly incorporated SUPs may be completed electronically in its entirety without it being necessary for the founding member to appear before any authority in the Member State of registration (online registration). Online registration is without prejudice to verification of the legality of registration, including, but not limited to, verification of the identity and legal capacity of the founding member and/or a representative that establishes the SUP on the founding member s behalf, carried out in the Member State of registration by appropriate authorities, provided that the whole procedure is carried out online. 3a. For SUPs created ex nihilo with the use of the national templates referred to in Articles 11 and 13, Member States shall complete the registration process within five working days from the receipt of all the necessary documentation and information by the competent authority, except where there are exceptional circumstances that would make it impossible to comply with this deadline. 4. deleted The obligations in this paragraph are without prejudice to the registration fee and any other formalities an SUP has to fulfil to start operations in accordance with national law. PE v /21 DT\ doc

17 5. Member States shall lay down rules for verifying the identity of the founding member, and any other person making the registration on the member's behalf, and the acceptability of the documents and other information submitted to the registration body. Member states shall lay down the procedural rules, including the rules on the acceptability of the documents and other information submitted to the registration body. Where, for the purposes of the first subparagraph, it is necessary for Member States to have recourse to administrative cooperation between them, they shall apply Regulation (EU) No 1024/ Member States shall not make the registration of an SUP conditional on obtaining any licence or authorisation. This is without prejudice to provisions of national law that make carrying out certain activities after registration conditional on obtaining a licence or authorisation. Such activities shall be listed in national on-line registration websites. The registration of the SUP, all documents provided during the process of registration and subsequent changes to them, shall be disclosed in the relevant register of companies immediately after registration. Article 14a Recognition of identification means for the purposes of on-line registration 1. For the purposes of on-line registration of an SUP, the registration authorities shall recognise: (a) electronic identification means issued under an electronic identification scheme approved for the purpose of on-line registration of SUPs by the Member State of registration; and (b) an electronic identification means issued in another Member State complying with Article 6 of Regulation (EU) No 910/2014 of the European Parliament and of the Council The registration authorities may also recognise other electronic or non-electronic identification means. When non-electronic identification means, issued in the Member State of registration, are recognised by the registration authorities for the 11 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (OJ L 257, , p. 73.). DT\ doc 17/21 PE v02-00

18 purpose of on-line registration, the same type of non-electronic identification issued in other Member States shall be equally recognised. 3. Member States shall ensure that any measures taken to comply with this Article or Article 14 do not affect the possibility of on-line registration referred to in Article 14(3). Chapter 5 Single share Article 15 Single share 1. An SUP shall not issue more than one share. This single share shall not be split. 2. An SUP shall not, directly or indirectly, acquire or own its single share. 3. Where in accordance with the applicable national law, a single share of an SUP is owned by more than one person, those persons shall be regarded as one member in relation to the SUP. They shall exercise their rights through one representative and shall notify the management body of the SUP, without undue delay, of the name of that representative and any change thereto. Until such notification, the exercise of their rights in the SUP shall be suspended. The owners of the single share shall be jointly and severally liable for the commitments made by the representative. The representative must prove his or her identity in the same manner as the founder or founders, and his or her name must be shall be recorded in the relevant register of companies. 4. In the event of the transfer of the share, the identity of the new shareholder must be recorded in the relevant register of companies. Chapter 6 Share capital Article 16 Share capital 1. The share capital of an SUP is to be at least EUR 1. In Member States in which the euro is not the national currency, the share capital is to be at least equivalent to one unit of that Member State's currency. 2. The capital of the SUP shall be fully subscribed. PE v /21 DT\ doc

19 3. Member States shall not impose any maximum value on the single share. 4. Without prejudice to paragraph 1, Member States shall require the SUP to build up legal reserves as a percentage of the profits of the SUP and/or up to the amount of minimum share capital required for private limited liability companies listed in Annex I. 5. deleted Article 17 Consideration for the share 1. The consideration for the share shall be fully paid up at the moment of registration of an SUP. 2. In case of on-line registration, the consideration shall be paid into the bank account of the SUP. The subsequent increase or decrease of share capital shall be allowed at least in cash and in kind. 3. In case of cash payment, the Member State of registration of an SUP shall accept payment into a bank account of a bank operating in the Union as evidence of payment or increase in the share capital. Article 18 Distributions 1. An SUP may, on the basis of a recommendation from the management body, make a distribution to the single-member provided that it complies with paragraphs 2 and An SUP shall not make a distribution to the single-member if on the closing date of the last financial year the net assets as set out in the SUP's annual accounts are, or following such a distribution would become, lower than the amount of the share capital plus those reserves which may not be distributed under the articles of association of the SUP. The calculation shall be based on the most recently adopted balance sheet. Any change in the share capital or in the part of the reserves which may not be distributed occurring subsequently to the closing date of the financial year shall also be taken into account. 3. The SUP shall not make a distribution to the single-member if it results in the SUP being unable to pay its debts as they become due and payable after distribution. The management body must certify in writing that, having made full inquiry into the affairs and prospects of the SUP, it has formed a reasonable opinion that the SUP will be able to pay its debts as they fall due in the normal course of business in the year following the date of the proposed distribution (a "solvency statement"). The solvency statement must be signed by the management body and a copy of it must be provided to the single member 15 days before the resolution on the distribution is adopted. DT\ doc 19/21 PE v02-00

20 4. The solvency statement shall be disclosed. If the company has a website, this information shall also be made available on it. 5. The directors shall be jointly and personally liable for recommending or ordering a distribution if that director knew, or, in view of the circumstances, ought to have known that the distribution would be contrary to paragraph 2 or 3. The same applies to the single-member with regard to any decision to make a distribution referred to in Article 21. 5a. Member States shall require that any distributions, or share capital reductions leading to a distribution to the single-member made contrary to this Article, are refunded to the SUP. deleted Article 19 Article 20 deleted Chapter 7 Organisation deleted PE v /21 DT\ doc

21 Part 3 Final provisions Article 26 Exercise of delegated powers 1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The delegation of power referred to in Article 1(2) shall be conferred on the Commission for an indeterminate period of time. 3. The delegation of powers referred to in Article 1 (2) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 5. A delegated act adopted pursuant to Article 1(2) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or the Council. Article 27 deleted Article 28 Penalties and dissolution Member States shall provide for penalties applicable to infringements of the national provisions adopted to implement this Directive and shall take all the measures necessary to ensure that those penalties are enforced. The penalties provided for must be effective, proportionate and dissuasive. Member States shall ensure that the relevant authorities can dissolve an SUP if it has been established that it engages in no economic activity whatsoever (in the event it is a 'letterbox company'). DT\ doc 21/21 PE v02-00