6 Utrecht L. Rev. 1 (2010)

handle is hein.journals/utrecht6 and id is 1 raw text is: The European Private Company, its shareholders and its creditors
Sandra van den Braak*
1. Introduction
In June 2008, the European Commission presented a Proposal for a Council Regulation on the
Statute for a European Private Company (Societas Privata Europaea, SPE).1 The SPE will be a
new legal form for small and medium-sized companies, allowing them to set up the same
European legal entity across the Member States. The SPE will not be the first legal entity based
on a European Regulation. There are already three others: the European Economic Interest
Grouping, the European Public Company (Societas Europaea, SE) and the European Cooperative
Society.2
The history of the SPE goes back to the 1990s. In the beginning it was an initiative by
academics but over time it gained support in Brussels and it ended up as a 'priority initiative' of
the European Commission's 2008 Work Programme.3 The SPE project is not to be confused with
a project of a group of company law experts from different Member States. This group is working
on a Model Company Law Act for Europe (EMCLA).4 Whereas after its adoption the Council
Regulation on the SPE Statute is directly applicable in all Member States, the EMCLA will only
present Member States with a model which they may or may not use when drafting their own
national company law. This paper deals with the Commission's SPE Proposal, not with the
EMCLA.
According to the SPE Proposal, the SPE Statute shall apply from July 2010 onwards.
However, the adoption of the Proposal is not without problems. The Proposal is based on Article
308 EC Treaty, which means that its adoption requires the unanimous consent of all 27 Member
States. As the Proposal is not undisputed, it may be difficult to reach unanimity.! In March 2009,
the European Parliament adopted a legislative resolution with regard to the SPE proposing quite
* Lecturer in Commercial Law at the Molengraafflnstitute ofPrivate Law, Utrecht University School ofLaw, Utrecht (the Netherlands), email:
S.M.vandenBraak@uu.nl
1  COM(2008)396, Interinstitutional File 2008/0130 (CNS).
2  See respectively Council Regulation (EEC) 2137/85 of 25 July 1985, Council Regulation (EC) 2157/2001 of 8 October 2001, Council
Regulation (EC) 1435/2003 of 22 July 2003.
3  For an overview of the history and background of the SPE see 0. Uziahu-Santcroos, 'The SPE: A Necessary Tool for SMES?', in:
D.F.M.M. Zaman et al. (eds.), The European Private Company (SPE). A Critical Analysis of the EUDraft Statute, 2009, pp. 4-6.
4  On this project see T. Baums & P. Kruger Andersen, The European Model Company Law Project, ECGI Working Paper Series in Law,
No. 097/2008, March 2008. In the group of experts the Netherlands is represented by Harm-Jan de Kluiver, who apparently does not fully
support the SPE Proposal. See H.J. de Kluiver, '(Re)Considering the SPE', 2008 European Company Law, no. 3, pp. 112-113.
5  A conference on the SPE, held by the European Commission in Brussels on 10' March 2008, revealed several controversial issues. For the
report on this conference see M.L. Lennarts & 0. Uziahu-Santcroos, 'Report on the Conference on the European Private Company, Societas
Privata Europaea (SPE), held in Brussels, 10 March 2008', 2008 Ondernemingsrecht, no. 7, pp. 263-268.

http://www.utrechtlawreview.org/ Volume 6, Issue 1 (January) 2010

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