The Process of Registration of a European Company (Societas Europaea, SE) in Liechtenstein

Josef Bergt
2023

The process of registering a European Company (Societas Europaea, SE) in Liechtenstein is a complex one that requires careful planning and execution. This article provides a comprehensive guide to the steps that need to be taken before the SE can be registered in the commercial register. It also discusses the various considerations that need to be made, including the formation of the company name, the raising of capital, the drafting of the statutes, the appointment of the board members, and the submission of necessary documents. The article concludes with a summary of the key findings and core statements.

Preparation for the Establishment

Before the European Company (SE) is registered in the commercial register, the following steps need to be taken and considered:

• Formation of the Company Name
• Raising of Capital
• Drafting of the Statutes
• Waiver of the Audit Review
• Organization
• Appointment with the Office of Justice – Commercial Register Department for the Public Notarization of the Founding Act
• Drafting of the Registration Letter
• Possibly Preparation of the Agreement on Employee Participation
• Obtaining of Possibly Required Approvals
• Preparation of the Documents to be Submitted

Formation of the Company Name

European Companies (SE) can generally choose their company name freely; however, there are some restrictions. No identical company name may already be registered in the commercial register; the European Company (SE) must add the suffix "SE" to its company name. Whether a chosen company name is available and eligible should be formally checked with the commercial register.

Raising of Capital

The capital can either be raised in cash or through contributions in kind. At least 25% must be paid in cash for each share or covered by the contributions in kind described in more detail in the statutes. However, this regulation only comes into effect with a share capital equivalent to EUR 480’000.00, as the minimum capital equivalent to at least EUR 120’000.00 must be fully paid in any case. If the capital is raised in cash, this must be proven by a bank certificate of deposit. In the case of contributions in kind, an expert must report in writing to the founding meeting before the resolution is passed (so-called expert report). Contributions in kind must be made in full within five years of the company's entry in the commercial register.

Drafting of the Statutes

The statutes or articles of association of the European Company (SE) must be signed by all founders and must contain the following information or provisions:

• The company name and the seat of registered office;
• The purpose or object;
• The founders;
• The amount of capital and the amount of the contributions made thereto, as well as information concerning any non-cash contributions, naming the contributors, acquisitions in kind stating the acquisition price, acceptance of shares or other services in lieu of payment stating the number of shares, and precise information about any kind of founder benefits;
• If the company has an approved and/or conditional capital, the amount of the approved and/or conditional capital;
• The number, nominal value or quota, and the type of shares, as well as the rights associated with them;
• The convening of the general meeting, the voting rights of the shareholders, and the adoption of resolutions;
• The number and the manner of appointment of the members of the administration, representation, executive and/or supervision respectively control bodies, as well as the distribution of competence between these bodies (insofar as this does not result from the law);
• The manner of exercising representation;
• The manner in which the company's announcements to the shareholders and third parties are made;
• At least approximately the total amount of all costs that the company has to bear on the occasion of its foundation or that will be charged to it, even if they arise before the company commences its business activities;
• The balance sheet date.

Certain other provisions or information are only valid if they are provided for in the statutes. These include, for example, provisions on approved or conditional capital increases, the restriction of transferability of shares, restrictions on the voting and representation rights of shareholders. The statutes (articles of association) of the European Company (SE) must not contradict the (possibly) negotiated agreement with the employees.

Waiver of the Audit Review

If it is a micro-entity conducting a commercial business, the auditor can be waived.

Organization

If the European Company (SE) is organized according to the dualistic system, the members of the board of directors (executive body) and the members of the supervisory board (controlling body) must be appointed. If the European Company (SE) is organized according to the monistic system, the members of the board of directors must be appointed. A member of the board of directors or a member of the board of directors must meet the requirements according to Art. 180a para. 1, 2 or 3 PGR (Liechtenstein Persons and Companies Act), provided that the European Company (SE) is not subject to the supervision of another. An auditor must be appointed for each European Company (SE), unless the audit review is waived and thus the requirement for an auditor is omitted. The auditor is registered in the commercial register. Companies with bearer shares cannot waive the review requirement. If bearer shares are issued, a custodian must be appointed who must meet the requirements according to Art. 326b para. 2 PGR (registered seat or domicile in Liechtenstein and an account of the shareholder in Liechtenstein or another EEA member state if it is a commercially active company with a registered trade or otherwise a person subject to due diligence duties pursuant to the Liechtenstein Due Diligence Act and Ordinance). In addition, a domestic delivery address must be designated. Further persons authorized to represent or procurators can be appointed.

Public Document on the Foundation

The resolutions on the foundation of a European Company (SE) must be recorded in a public document. The content of the public document depends on the form of the foundation of the European Company (SE).

Registration for Entry in the Commercial Register

The registration letter (application) for the entry of a European Company (SE) in the commercial register must contain the following information:

• The company name, the legal form, and the registered office;
• The domestic delivery address;
• The amount of capital and the amount of the contributions made thereto, as well as the number, the nominal value or quota, and the type of shares;
• The purpose or object;
• The date of the statutes;
• The members of the administration (or the board of directors and the supervisory board) or other persons authorized to represent with name, first name, date of birth, nationality, address, and type of signature; if these are legal entities, the company name, the seat, and the type of signature;
• The auditor with address or the waiver of the audit review;
• The custodian (if bearer shares were issued);
• The balance sheet date;
• The form in which the company's announcements to the shareholders are made, as well as the publication organ;
• Any branch offices if applicable;
• Possibly the notification that no agreement on employee participation has been reached or that none of the participating companies has employees.

The signatures on the registration letter must be certified.

Agreement on Employee Participation

A European Company (SE) can only be registered in the commercial register if an agreement on employee participation has been concluded, a resolution on the termination or non-initiation of negotiations has been passed, or the negotiation period for concluding an agreement on employee participation has expired without an agreement being reached.

Obtaining of Possibly Required Approvals or Permits

If a commercial business is conducted in a commercial manner, a trade license or registration or another special statutory license (for example, from the Financial Market Authority Liechtenstein (FMA) or another authority) must usually be obtained.

Submission of Documents

With the registration for entry in the commercial register, the following documents or evidence must be submitted to the Office of Justice – Commercial Register Department:

• In the case of foundation by merger for absorption, the publicly notarized merger plan, in the case of foundation by merger for new foundation additionally the publicly notarized founding act (public document on the resolution of the general meeting(s) for the foundation of the company as a result of the merger); as well as for the involved foreign company a legality certificate of the competent foreign authority;
• In the case of foundation of a holding SE: the foundation plan and the publicly notarized founding act;
• In the case of foundation of a subsidiary SE: the publicly notarized founding act;
• In the case of foundation by conversion: the conversion plan and the public document on the conversion resolution;
• The agreement on employee participation;
• The resolution on the termination or non-initiation of negotiations or a declaration of all members of the management or administrative body that the negotiation period has expired without an agreement being reached;
• A copy of the statutes (articles of association) signed by all founders (members or members of the administration);
• The bank certificate about the deposit of the legally or statutorily determined deposits on the capital;
• The declaration of the elected members of the board of directors or possibly the executive board and the supervisory board as well as possibly the custodian that the election is accepted, if this does not result from the founding act or the registration (if it is a legal entity and its seat is not in the country, a corresponding official commercial register extract must be provided, which may have to be translated);
• The declaration of the auditor that the election is accepted, if this does not result from the founding act; otherwise the declaration that the audit review according to Art. 1058a PGR is waived;
• Possibly the declaration of the founders that no contributions in kind, acquisitions in kind or offsetting were made, or that no other contributions in kind, acquisitions in kind or offsetting were made than those mentioned in the statutes or the special list (in practice, this declaration is made in the founding act);
• The so-called company signature declaration (sample drawing) of the persons authorized to represent, whereby their (sample) signatures must be certified;
• Possibly approvals for example of the Financial Market Authority Liechtenstein (FMA) or other authorities.

In the case of foundation with contributions in kind, acquisitions in kind, offsetting facts or special advantages, the following must additionally be submitted with the registration:

• The complete expert report;
• The contracts for contributions in kind and, if available, the contracts for acquisitions in kind with attachments.

Fees

The fee for the new registration of a European Company (SE) is CHF 700.00. This fee increases by 0.2 ‰ for the share capital sum exceeding CHF 200’000.00, but at most may be up to CHF 10’000.00. In addition, fees of CHF 30.00 are charged for each signature authorization to be registered and CHF 20.00 for the registration of a function, as well as CHF 30.00 for the delivery address. The fee for the creation of the public document about the foundation for a European Company (SE) with a share capital of up to CHF 500’000.00 is 1 ‰ of the capital, but at least CHF 300.00; for each further installment of up to CHF 100’000.00 an additional CHF 100.00 incurs, but at most CHF 15’000.00.

Legal Basis

• Regulation (EC) No. 2157/2001 of the Council of 8 October 2001 on the Statute of the European Company (SE);
• Liechtenstein Law of 25 November 2005 on the Statute of the European Company (Societas Europaea, SE) (SE Act; SEG);
• Liechtenstein Law of 25 November 2005 on the Involvement of Employees in the European Company (SE Involvement Act; SEBG);
• Liechtenstein Persons and Companies Act (PGR) of 20 January 1926;
• Liechtenstein Ordinance of 19 December 2000 on the Persons and Companies Act (PGV);
• Liechtenstein Ordinance of 11 February 2003 on the Commercial Register (Commercial Register Ordinance; HRV);
• Liechtenstein Ordinance of 11 February 2003 on the Land Register and Commercial Register Fees.

Source: Factsheet AJU/ h80.028.01; Art. 10-11 SE Regulation ((EC) No 2157/2001); Art. 70a HRV (Liechtenstein Commercial Register Ordinance); Art. 288 PGR (Liechtenstein Persons and Companies Law); Art. 280 PGR; Art 286b PGR; Art. 279 PGR; Art 2 SEG (Liechtenstein Act on the European Company); Art. 280 PGR; Art. 1058a PGR; Art 17 SEG; Art 35 SEG; Art. 326a et seqq PGR; Art. 180a PGR; Art. 31 HRV; Art. 55 et seqq HRV; Art 15 SEBG (SE Employee Involvement Act); Art 20 SEBG; Art 22 et seqq SEBG.

Executive Summary:

• The process of registering a European Company (SE) in Liechtenstein involves several steps, including the formation of the company name, the raising of capital, the drafting of the statutes, the appointment of the board members, and the submission of necessary documents.
• The company name must not already be registered in the commercial register, and the company must append "SE" to its name.
• The capital can be raised either in cash or through contributions in kind. The minimum capital is EUR 120’000.- which must be fully paid in.
• If the company is a micro-entity conducting a commercial business, it can waive the audit review.
• The resolutions on the foundation of a European Company (SE) must be recorded in a public document.
• A European Company (SE) can only be registered in the commercial register if an agreement on employee participation respectively involvement has been concluded, a resolution on the termination or non-initiation of negotiations has been passed, or the negotiation period for concluding an agreement on employee participation has expired without an agreement being reached.
• If a commercial business is conducted in a commercial manner, a trade license or another special statutory license must usually be obtained.
• The fee for the new registration of a European Company (SE) is in general CHF 700.00 depending on the share capital.