S.I. No. 433/2009 - European Communities (European Cooperative Society) Regulations 2009

S.I. No. of 2009

EUROPEAN COMMUNITIES (EUROPEAN COOPERATIVE SOCIETY) REGULATIONS 2009

TABLE OF CONTENTS

PART 1

GENERAL

1. Citation and construction

2. Interpretation

PART 2

FORMATION, REGISTRATION AND TRANSFER OF AN SCE

3. Registration authority

4. Applications in respect of registration

5. Registration of SCE on transfer of its registered office from another Member State to the State

6. Participation in formation of an SCE by legal body whose head office is outside the Community

7. Transfer of registered office from the State to another Member State

8. Registration of an SCE

9. Documents sent to Registrar

PART 3

DISCRETIONARY POWERS GIVEN TO MEMBER STATES BY EC REGULATION — PROVISION MADE IN EXERCISE THEREOF

10. Additional forms of publication of transfer proposal (Article 7(2))

11. Extension of protection given by Article 7(7) to liabilities incurred prior to transfer

12. Power to oppose the transfer of a registered office

13. Management or administrative organ of SCE may amend statutes where in conflict with employee involvement arrangements

14. Proposed merger — notification of Registrar

15. Power to oppose the participation of a cooperative in the formation of an SCE by merger

16. Appointment or removal of member or members of management organ by general meeting

17. Minimum number of members of management organ

18. Member of supervisory organ can request information from management organ

19. Minimum number of members of an administrative organ

20. First general meeting to be held within the 18 months following incorporation

21. Distribution

PART 4

PROVISIONS MADE IN FULFILMENT OF OBLIGATION TO ENACT CERTAIN MEASURES

22. Publication of terms of transfer and conversion

23. Publication of completion of merger

24. Conversion of SCE into a cooperative

25. Publication of other documents or information

26. Power to require SCE to take steps to comply with requirements of Article 6

27. Appeals against decisions of competent authority

PART 5

PROVISIONS RELATING TO THE EFFECTIVE APPLICATION OF THE EC REGULATION

28. Application of law

29. Competent authorities

30. Records of an SCE transferred under Article 7(11) or a cooperative ceasing to exist under Article 33(1) and (2)

31. Notification of insolvency events

32. Registrar to prescribe forms

33. Offences

34. Relationship of certain Regulations to EC Regulation

S.I. No. 433 of 2009

EUROPEAN COMMUNITIES (EUROPEAN COOPERATIVE SOCIETY) REGULATIONS 2009

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 3rd November, 2009.

I, MARY COUGHLAN, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving full effect to Council Regulation (EC) No. 1435/2003 of 22 July 2003 1 on the Statute for a European Cooperative Society (SCE) and Corrigendum to Council Regulation (EC) No. 1435/2003 on the Statute for a European Cooperative Society (SCE) of 18 August 2003 2 , hereby make the following regulations:

PART 1 GENERAL

Citation and construction

1. (1) These Regulations may be cited as the European Communities (European Cooperative Society) Regulations 2009.

(2) The Industrial and Provident Societies Acts and these Regulations shall be construed together as one.

Interpretation

2. (1) In these Regulations—

“Act of 1893” means the Industrial and Provident Societies Act 1893 (56 & 57 Vict. c. 39);

“competent authority” means the authority designated by Regulation 29(a) or (b) as appropriate;

“cooperative” for the purposes of these Regulations means a society registered in accordance with the Act of 1893;

“EC Regulation” means Council Regulation (EC) No. 1435/2003 of 22 July 2003 1 on the Statute for a European Cooperative Society (SCE) and the Corrigendum thereto of 18 August 2003 2 (the text of which, for convenience of reference, is set out in the Schedule to these Regulations);

“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as amended for the time being;

“Industrial and Provident Societies Acts” means the Industrial and Provident Societies Acts 1893 to 1978;

“industrial and provident society” means a society registered under the Industrial and Provident Societies Acts;

“Member State” means a state that is a contracting party to the EEA Agreement;

“Minister” means Minister for Enterprise, Trade and Employment;

“Registrar” means Registrar of Friendly Societies;

“prescribed” means prescribed by the Registrar pursuant to Regulation 32;

“SCE formed by merger” means an SCE formed in accordance with the fourth indent of Article 2.1;

“SCE formed by conversion” means an SCE formed in accordance with the fifth indent of Article 2.1.

(2) References in these Regulations to an “SCE” are references to a European Cooperative Society within the meaning of Article 1 of the EC Regulation whose registered office is, or is intended to be, in the State and references to “SCEs” shall be construed accordingly.

(3) A reference in these Regulations to a numbered Article is a reference to the Article so numbered of the EC Regulation.

(4) A reference in these Regulations to a numbered Chapter is a reference to the Chapter so numbered of the EC Regulation.

(5) A word or expression used in these Regulations which is also used in the EC Regulation has the same meaning as it has in that Regulation.

PART 2 FORMATION, REGISTRATION AND TRANSFER OF AN SCE

Registration authority

3. (1) The Registrar shall maintain a register of SCEs which is designated for the purposes of Article 11(1).

(2) For the purposes of the registration of an SCE in the State, the Registrar shall be subject to the duties, and shall perform the functions, specified in this Part.

Applications in respect of registration

4. Where it is proposed to register any of the following:

(a) an SCE formed by 5 or more natural persons in accordance with the first indent of Article 2(1),

(b) an SCE formed by 5 or more natural persons and companies and firms in accordance with the second indent of Article 2(1),

(c) an SCE formed by companies and firms and other legal bodies in accordance with the third indent of Article 2(1),

(d) an SCE formed by merger, or

(e) an SCE formed by conversion,

there shall be delivered to the Registrar an application in the prescribed form together with the documents, if any, specified in that form.

Registration of SCE on transfer of its registered office from another Member State to the State

5. Where it is proposed to transfer to the State the registered office of an SCE whose registered office is situated in another Member State, there shall be delivered to the Registrar an application in respect of that SCE in the prescribed form together with the documents, if any, specified in that form.

Participation in formation of an SCE by legal body whose head office is outside the Community

6. (1) A legal body (the “first-mentioned legal body”) which is registered in a Member State, but which has its head office outside any of the Member States, may participate in the formation of an SCE where the Registrar is satisfied that the first-mentioned legal body has a real and continuous link with the State’s economy.

(2) The Registrar shall not be satisfied that the first-mentioned legal body has such a link unless that legal body furnishes a statement in writing to him or her—

(a) that has been given to it by the Revenue Commissioners within the period specified in paragraph (3), and

(b) which states that the Revenue Commissioners have reasonable grounds to believe that the legal body has a real and continuous link with the State’s economy.

(3) The period mentioned in subparagraph (a) of paragraph (2) is the period of 2 months ending on the date on which the statement referred to in that paragraph is furnished, pursuant to that paragraph, by the first-mentioned legal body to the Registrar.

Transfer of registered office from the State to another Member State

7. (1) Where it is proposed to transfer the registered office of an SCE from the State to another Member State there shall be delivered to the Registrar, for the purposes of applying for the issue of a certificate under Article 7(8), an application in the prescribed form together with the documents, if any, specified in that form.

(2) Without prejudice to the generality of paragraph (1), a statement of solvency in the prescribed form made by—

(a) in the case of an SCE falling within the one-tier system, all the members of the administrative organ, and

(b) in the case of an SCE falling within the two-tier system, all the members of the management organ, together with the written authority of the supervisory authority given to the making of the statement,

shall be delivered to the Registrar together with—

(i) accounts of the SCE made up to a date falling within the period specified in paragraph (4), and

(ii) subject to paragraph (3) a report, (the terms of which shall be unqualified) in relation to those accounts made by the auditors of the SCE.

(3) Section 193 of the Companies Act 1990 (No. 33 of 1990) shall, subject to any necessary modifications, apply to a report referred to in paragraph (2)(ii) as if an SCE were a company.

(4) The period mentioned in subparagraph (i) of paragraph (2) is the period of 2 months ending on the date on which the accounts referred to in that subparagraph are delivered to the Registrar.

(5) In determining whether it is proper to issue a certificate to an SCE under Article 7(8) on foot of an application under paragraph (1), it shall be sufficient for the Registrar to have regard to each document (including the application and any statement, report and account) delivered to the Registrar in that behalf under this Regulation.

Registration of an SCE

8. The Registrar shall register an SCE formed under the provisions of Article 2, or an SCE whose registered office is transferred to the State under Article 7, where he or she is satisfied that the requirements of these Regulations and the EC Regulation in respect of such formation or transfer of an SCE, as the case may be, have been complied with in respect of that SCE.

Documents sent to Registrar

9. (1) The Registrar shall retain any document delivered to him or her under any provision of these Regulations or the EC Regulation.

(2) For the purposes of this Regulation, documents delivered to the Registrar under Regulation 7 shall be treated as documents delivered to the Registrar on the deletion of the registration of the SCE making the application under that Regulation.

PART 3 DISCRETIONARY POWERS GIVEN TO MEMBER STATES BY EC REGULATION — PROVISION MADE IN EXERCISE THEREOF

Additional forms of publication of transfer proposal (Article 7(2))

10. (1) An SCE in respect of which there is a transfer proposal referred to in Article 7(2) shall notify in writing its members and every creditor (including the Revenue Commissioners) of whose claim and address it is aware of the proposal and of the right to examine the transfer proposal and the report drawn up under Article 7(3), at its registered office and on request, to obtain copies of those documents free of charge, not later than one month before the general meeting called to decide on the transfer.

(2) Every invoice, order for goods or business letter, which, at any time between the date on which the transfer proposal and report become available for inspection at the registered office of the SCE and the deletion of the SCE’s registration on transfer, is issued by or on behalf of the SCE, shall contain a statement that the SCE is proposing to transfer its registered office to another Member State under Article 7 and identifying that Member State.

Extension of protection given by Article 7(7) to liabilities incurred prior to transfer

11. The first subparagraph of Article 7(7) shall apply to liabilities that arise (or may arise) prior to the transfer.

Power to oppose the transfer of a registered office

12. (1) The Registrar may decide, following consultation with such parties as he or she considers appropriate, to oppose the transfer of an SCE’s registered office to another Member State on grounds of public interest if the transfer would result in a change of the law applicable to the SCE.

(2) Where the Registrar decides in accordance with paragraph (1), he or she shall so notify the SCE in writing within 2 months of the publication of the draft transfer proposal which notification shall contain the reasons for the decision.

(3) Subject to the determination of any appeal under Regulation 27 against the Registrar’s decision, the SCE shall not transfer its registered office to another Member State following receipt by it of the notification of the decision pursuant to paragraph (2).

Management or administrative organ of SCE may amend statutes where in conflict with employee involvement arrangements

13. Where there is a conflict between the arrangements for employee involvement made pursuant to the European Communities (European Cooperative Society) (Employee Involvement) Regulations 2007 ( S.I. No. 259 of 2007 ) and the existing statutes of an SCE, the management or administrative organ of the SCE may amend those statutes in accordance with Article 11(4) without any further decision of a general meeting of members.

Proposed merger — notification of Registrar

14. (1) Each of the merging cooperatives shall—

(a) deliver for registration to the Registrar a copy of the draft terms of merger, and

(b) publish in Iris Oifigiúil and once in at least 2 daily newspapers circulating in the district where the registered office or principal place of business of the cooperative is situate notice of delivery to the Registrar of the draft terms of merger.

(2) The requirements of paragraph (1) shall be fulfilled by each of the merging cooperatives at least one month before the date of the general meeting of each such cooperative which by virtue of Article 27 is to consider the draft terms of merger.

Power to oppose the participation of a cooperative in the formation of an SCE by merger

15. (1) The Registrar may decide, following consultation with such parties as he or she considers appropriate, to oppose the participation of a cooperative that has its registered office in the State in the formation in any Member State of an SCE by merger on the grounds of public interest.

(2) Where the Registrar decides in accordance with paragraph (1), he or she shall so notify the cooperative in writing before the issue of the certificate referred to in Article 29(2), which notification shall contain the reasons for the decision.

(3) Subject to the determination of any appeal under Regulation 27 against the Registrar’s decision, the cooperative shall not participate in the formation in any Member State of an SCE by merger following receipt by it of the notification of the decision pursuant to paragraph (2).

Appointment or removal of member or members of management organ by general meeting

16. The statutes of an SCE may permit the member or members of the management organ to be appointed and removed by the general meeting in accordance with Article 37(2).

Minimum number of members of management organ

17. The minimum number of the members of the management organ of an SCE shall be two, one of whom may also be Secretary.

Member of supervisory organ can request information from management organ

18. Each member of a supervisory organ is entitled to require the management organ to provide information of any kind which he or she needs to exercise supervision in accordance with Article 39(1).

Minimum number of members of an administrative organ

19. The minimum number of the members of the administrative organ of an SCE shall be two.

First general meeting to be held within the 18 months following incorporation

20. So long as an SCE holds its first annual general meeting within 18 months of its registration in the State, it need not hold such a meeting in the year of its registration or in the following year.

Distribution

21. For the purposes of Article 75, the statutes of an SCE may provide for the distribution of its net assets as set out in its statutes otherwise than in accordance with the principle of disinterested distribution.

PART 4 PROVISIONS MADE IN FULFILMENT OF OBLIGATION TO ENACT CERTAIN MEASURES

Publication of terms of transfer and conversion

22. (1) Where in respect of Article 7(2) or 35(4), a transfer proposal or draft terms of conversion are required to be publicised, there shall be delivered to the Registrar a copy of the proposal or draft terms of conversion, as the case may be, accompanied by the prescribed form specified in relation to each Article.

(2) The Registrar shall cause to be published in Iris Oifigiúil notice of the receipt by him or her of the copy of such proposal or draft terms of conversion, as the case may be.

Publication of completion of merger

23. Where an SCE is formed by merger, whether its registered office is in the State or not, and a cooperative registered in this jurisdiction has taken part in that formation, the Registrar shall cause to be published in Iris Oifigiúil notice that the merger has been completed.

Conversion of SCE into a cooperative

24. (1) Where a registered SCE proposes to convert into a cooperative in accordance with Article 76, there shall be delivered to the Registrar an application in respect of that SCE in the prescribed form together with the documents, if any, specified in that form.

(2) Where the SCE proposes to convert it shall notify in writing its members and every creditor (including the Revenue Commissioners) of whose claim and address it is aware of the proposal and of the right to examine the terms of conversion and the report drawn up under Article 76, at its registered office and, on request, to obtain copies of those documents free of charge, not later than one month before the general meeting called to decide on the conversion.

(3) Every invoice, order for goods or business letter, which, at any time between the date on which the conversion proposal and report become available for inspection at the registered office of the SCE and the deletion of the SCE’s registration on conversion, is issued by or on behalf of the SCE, shall contain a statement that the SCE is proposing to convert into a cooperative under Article 76.

(4) Before the general meeting mentioned in paragraph (5) may be held, the Registrar shall, if he or she is satisfied to do so, approve an independent expert, appointed by the SCE, who shall certify that the SCE has assets at least equivalent to its capital in accordance with Article 76(5).

(5) The draft terms of conversion and the statutes of the cooperative shall be approved by a majority of not less than two-thirds of the votes validly cast at a general meeting of the SCE at which the members present or represented make up at least half of the total number of members on the date the general meeting is convened.

Publication of other documents or information

25. (1) Where in respect of Article 74 the occurrence of an event is required to be publicised, the Registrar shall cause to be published in Iris Oifigiúil notice of the receipt by him or her of the particulars of the event mentioned in that Article.

(2) Where in respect of Article 7(12) or 17(2) the registration of an SCE, whether on formation under Chapter II, or on the transfer of the registered office of an SCE under Article 7 or the deletion of a registration under that Article is required to be publicised, the Registrar shall cause to be published in Iris Oifigiúil notice of that registration or the deletion of that registration and of the receipt of the documents and particulars related to that registration or deletion required to be delivered to the Registrar by the EC Regulation or these Regulations.

Power to require SCE to take steps to comply with requirements of Article 6

26. (1) If it appears to the Registrar that an SCE no longer complies with the requirements specified in Article 6, he or she may, following consultation with such other parties as he or she considers appropriate, give a direction in writing to the SCE to take steps, in accordance with Article 73(2), to ensure that it complies with those requirements.

(2) Such direction shall—

(a) include a statement of the reasons upon which the direction is being given, and

(b) specify the period within which steps concerned are to be taken.

(3) Where an SCE has failed to comply with a direction under paragraph (1), the Registrar may apply to the High Court for an order directing the SCE to comply with the direction and, on the hearing of the application, the Court may make such order including, subject to paragraph (4), an order to wind up the SCE as it sees fit and may provide that all costs of and incidental to the application shall be borne by the SCE.

(4) An SCE may be wound up only in accordance with Part VI of the Companies Act 1963 (No. 33 of 1963) and accordingly, that Part of that Act shall, subject to any necessary modifications, apply as if the SCE were a company.

Appeals against decisions of competent authority

27. (1) This Regulation applies where—

(a) the transfer of the registered office of an SCE under Article 7(14),

or

(b) the taking part by a cooperative in the formation of an SCE by merger under Article 21,

is opposed, under Article 7(14) or 21, as the case may be, by the Registrar following consultation with such parties as he or she considers appropriate.

(2) Where this Regulation applies, the SCE or the cooperative, as appropriate, may, within 21 days of being informed of the Registrar’s decision to oppose the transfer or the taking part in the formation of an SCE by merger, appeal against the Registrar’s decision to the High Court.

(3) On the hearing of an appeal under paragraph (2), the High Court may either confirm or cancel the decision of the Registrar.

(4) A decision of the High Court under paragraph (3) shall be final, save that, by leave of the Court, an appeal from the decision shall lie to the Supreme Court on a specified question of law.

(5) The High Court may, on application made by the SCE or cooperative, extend the period referred to in paragraph (2) within which an appeal may be made in relation to the matter referred to in that paragraph (the “appeal period”) if, but only if, it is satisfied that—

(a) where the application for the extension is made before the end of the appeal period, there is good reason for the SCE or the cooperative being unable to make the appeal within that period, or

(b) where the application for the extension is made after the end of the appeal period, that there was a good reason for the failure of the SCE or the cooperative to make the appeal within that period and for any delay in applying for the extension.

PART 5 PROVISIONS RELATING TO THE EFFECTIVE APPLICATION OF THE EC REGULATION

Application of law

28. (1) Any enactment or rule of law which applies in relation to an industrial and provident society shall, in the absence of any express provision to the contrary in these Regulations, where it is required by the EC Regulation, apply with any necessary modifications in relation to an SCE as it applies in relation to such an industrial and provident society.

(2) Any enactment or rule of law which applies in relation to a public limited company incorporated under the Companies Acts shall, in the absence of any express provision to the contrary in these Regulations, where it is required by the EC Regulation, apply with any necessary modifications in relation to an SCE as it applies in relation to such a company.

(3) Without prejudice to the generality of paragraph (1), the Industrial and Provident Societies Acts shall, in their application to SCEs, have effect with the modifications specified in these Regulations.

(4) Without prejudice to the generality of paragraph (2), the Companies Acts shall, in their application to SCEs, have effect with the modifications specified in these Regulations.

Competent authorities

29. The competent authorities designated under Article 78(2) are:

(a) in respect of Articles 7, 21, 54 and making an application under Article 73(1), the Registrar, and

(b) in respect of Articles 29, 30 and making an order under Article 73(1), the High Court.

Records of an SCE transferred under Article 7(11) or a cooperative ceasing to exist under Article 33(1) and (2)

30. (1) Where—

(a) the registration of an SCE is deleted under Article 7(11) pursuant to a transfer of its registered office to another Member State; or

(b) a cooperative ceases to exist under Article 33(1)(c) or (2)(c),

the records kept by the Registrar in relation to that SCE or cooperative, as the case may be, shall continue to be kept by him or her for a period of twenty years following such a deletion or cessation of existence.

(2) Where the registration of an SCE is deleted, the form, and the documents, if any, accompanying it, delivered to the Registrar under Regulation 7 together with a copy of the certificate issued under Article 7(8) shall be deemed to be documents to be retained by the Registrar under Regulation 9 and the provisions of these Regulations shall apply accordingly.

Notification of insolvency events

31. Where, under Article 74, publication by the Registrar in Iris Oifigiúil of the events mentioned in that Article is required by Article 12, notice of the relevant event set out in the prescribed form shall be delivered to the Registrar by the SCE within 14 days from the occurrence of the event.

Registrar to prescribe forms

32. (1) The Registrar, where in his or her opinion it is required for the purposes of Regulation 4, 5, 7, 22, 24 or 31, may prescribe forms and in so prescribing may prescribe any information required to be placed on, and documents to accompany, such forms.

(2) The Registrar, from time to time for a purpose referred to in paragraph (1), may prescribe forms that amend forms prescribed pursuant to that paragraph.

(3) Notice of the prescribing of a form pursuant to paragraph (1) or (2) shall be published in Iris Oifigiúil, which notice shall include a copy of the form concerned as soon as may be after it is prescribed.

Offences

33. (1) If an SCE or any of its officers fails to comply with Regulations 7, 10, 31 or Article 10, the SCE and every officer who is in default shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000.

(2) Proceedings for an offence under paragraph (1) may be brought and prosecuted by the Registrar.

Relationship of certain Regulations to EC Regulation

34. Regulations 10, 32 and 33 are made in consequence of, and are to be construed as being supplemental to, Article 8 and, accordingly, do not affect the direct application in the State of Article 8 or any other provision of the EC Regulation.

GIVEN under my Official Seal,

29 October 2009.

MARY COUGHLAN,

Minister for Enterprise, Trade and Employment.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation).

These Regulations give effect to Council Regulation (EC) No. 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE).

The Council Regulation provides for the establishment of a European Cooperative Society to be known as an “SCE”. The objective of the Statute is to facilitate cross-border activities by cooperative entities.

Employee involvement in SCE’s was provided for separately under EU Directive 2003/72/EC which was transposed by S.I. No. 259/2007.

1 OJ No. L207, 18.08.2003, p 01–24

2 OJ No. L049, 17.02.2007, p 35