Dear Luis,
Thanks again for having organised the shadows‘ meeting during the last SBG week before the summer break on the SUP. We really appreciate that you are consulting us as shadows and also that you are trying to keep a constructive approach even with regard to this COM proposal. As explained in the shadows‘ meeting, we and our groups usually try to help building European projects, which is why we deeply regret that we have to take such a rejective stance on this COM proposal.
In this special case we are afraid, that we will have no room for manoeuvre, which is why we would like to reiterate that we cannot commit ourselves to any negotiations on the matter.
Firstly, we do not want any division of seats, be it explicit as foreseen in the COM proposal or implicit (=up to MS law/ jurisprudence) as agreed in the Council General Approach. There should be no approval of ‘seat splitting’ under secondary law. Like Art. 7 of the SE-Regulation the split of company seats should therefore be explicitly forbidden in Art. 10 status quo should be maintained. National legal forms without the addition of ‘SUP’ retain the mobility given to them under their national law in compliance with ECJ case-law.
Secondly, we do not believe in the scope and do not even think that a limitation to SMEs or even small and micro companies and natural persons would suffice.
Thirdly, we believe that companies should be obliged to build up legal reserves. Yet, the solution reached by MS in the Council General Approach is absolutely unsatisfactory: Referral to MS law destroys the idea of a European concept and does not contribute to the „Europeanisation“ of company law. To the contrary, it adds another 28 company law forms (instead of 1) and any creditor of such a SUP would need to check the law of the MS where that SUP is registered. In contrary to the intention officially underlined it will increase legal uncertainty instead of reducing overall burdens on SMEs. This is definitely not the signal we should send to entrepreneurs and the economy in general. The obligation to form reserves would be also necessary to protect claims of the employees, for instance employees should have preferential rights in case of insolvency. The impingement of the directive on national codetermination law must be prevented.
The above points bring us and our groups to the conclusion that we will not enter into negotiations on this file. We want this proposal to at least be significantly amended by the COM as we do not believe that its shortcomings can be remedied in an EP report or that they have been remedied in the Council General Approach. Also, we believe that any such proposal should be anticipated by a proposal on the 14th company law directive and a satisfactory solution of the underlying problems. We would therefore once again kindly ask you to draft a letter to the Commission instead of presenting a draft report or a working document.
We would be glad to discuss with you about this issue and our offices remains fully at your disposal for any further information or clarification you may need.
Best regards and thank you very much for the your understanding,
Evelyn Regner
Heidi Hautala
Jiří Maštálka