156	5  Cross-Border Corporate Activities

States)82, prohibited from moving their registered office to another member state, a SE can freely transfer its registered office from one Member State to another.83

5.3  The European Private Company (SPE)

5.3.1  The Commission Proposal on the Statute for a SPE

As the SE is a stock-corporation, requiring a comparatively high minimum statutory capital of EUR 120,00084 it is suited mainly for large corporations, in particular as a holding company in an international group structure. However, small and mediumsized enterprises (SMEs), accounting for more than 99% of companies in the EU, will not be able to benefit from this company form.

In order to provide another pan-European business vehicle, the EU Commission, in 2008, submitted to the EU Council a proposal for a Council Regulation on the Statute for a European Private Company (Societas Privata Europaea, SPE).85 This proposal aims at the introduction of a new European company form tailor-made for the specific need of SMEs intending to conduct cross-border business, allowing entrepreneurs to establish a SPE following the same simple and flexible company law provisions across all Member States. The proposal thereby intends to reduce compliance costs arising from the disparities between national rules, both on the formation and on the operation of companies.

In contrast to the corresponding statute for the SE, which sets out basic rules on the European level and relies on national company laws to fill in the gaps, the EU Commission’s proposal for the SPE took a rather radical emphasis of contractual freedom. The proposal sets out only a basic set of rules regarding the general characteristics of the SPE, its formation, its capital, its internal organization and the transfer of the company’s seat. For all other issues, however, the proposal relies on the shareholders to provide for the necessary rules themselves. To this end, the proposal contains an extensive list of subject matters, which shall be regulated by the shareholders in the articles of association, thus taking an approach perhaps best characterized as ‘mandatory self-regulation’.

82  For the UK see See Gasque v. Commissioners of Inland Revenue [1940] 2 K.B. 80 (84): “It is not disputed that a company, formed under the Companies Act., has British nationality, though, unlike a natural person, it cannot change its nationality. So, too, I think such a company has a domicile—an English domicile if registered in England, and a Scottish domicile if registered in Scotland. The domicile of origin, or the domicile of birth, using with respect to a company a familiar metaphor, clings to it throughout its existence.”; Carl Zeiss Stiftung v. Rayner & Keeler Ltd. et al. (No. 3) [1970] 1 Ch. 506 (544): “Acorporation cannot, I think, of its own volition and apart from its proper law, abandon one domicile and adopt another, as a natural person can. Its primary domicile must be under the law under which it was incorporated.”

83  SeeArt. 8 SE Regulation.

84  SeeArt. 4 para. 2 SE Regulation. 85  COM (2008) 396/3.