9 - Germany

Summary

Introduction

1. The rules governing the formation and structure of an SE are set forth in Regulation No. 2157/2001 of 8 October 2001 on the Statute for a European company (SE) (the ‘Regulation’) and Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees (the ‘Directive’). Whereas the Regulation automatically entered into force on 8 October 2004 in all Member States, the Directive had to be transposed into national law. Although a regulation generally does not necessitate implementation, in this case the Regulation required action on the part of the national legislatures. In some cases, the Regulation expressly allows the Member States to enact national rules applicable only to SEs. In other instances, it requires the Member States to do so. In some areas, the Regulation is incomplete and additional provisions will be necessary in order to ensure effective application (particularly since many national rules do not cover cross-border transactions), in which case Article 68(1) of the Regulation provides a legal basis for enacting such legislation The issues raised by implementation of the Regulation were addressed by the German legislature in a discussion draft published in March 2003. A revised version of this draft was subsequently enacted as the SE Implementation Act (‘Gesetz zur Ausführung der Verordnung (EG) 2157/2001 des Rates vom 8 Oktober 2001über das Statut der Europäischen Gesellschaft (SE) – SE-Ausführungsgesetz’ or ‘SEAG’), which forms the first part of the SE Introductory Act (‘Gesetz zur Einführung der Euroäischen Gesellschaft’ or ‘SEEG’).