And not least, it is proven that the creditors prefer to request other types of guarantees,
individual and enforceable, to that offered by the registered capital, the assets being those value of
which grants solidity to the company
There is, in the light of the decisions of the Court of Justice of the European Union, the
tendency to waive, for the future, the requirements related to the minimum capital. Therefore,
Germany has recently entered Unternehmergesellschaft with a minimum capital of EUR 1 and The
Netherlands is in full progress of removing the capital related requirements for Besloten
Despite such tendencies, a minimum registered capital of EUR 1 represents a level which
cannot be accepted by the legal traditions of all the member states of the European Union, for which
reason, politically speaking, the opinions are still divergent regarding the capital of the SPE.
Neither the European Parliament agreed this new conception and, in order to make a balanced
compromise, the last version of the regulation includes the possibility of each and every state to be
able to establish for the SPE registered on its territory, a minimum registered capital higher than
EUR 1, but not more than EUR 8000.
The large interval between the two minimum thresholds of the registered capital of the SPE
shows the difference existing between the member states of the European Union. Poland requests a
minimum registered capital of limited liability companies of: EUR 13,869, United Kingdom EUR
1.5, France EUR 1, Hungary, EUR 11,760, Austria EUR 35,000, the Netherlands EUR 18,000,
Bulgaria EUR 2,500
, Romania EUR 45 etc.
We do not believe that the establishment of the minimum capital of SPE by each and every
member state, within the interval established by the regulation: 1 Euro- 8,000 Euro, shall lead to
the success of the SPE, the minimum share of EUR 1 regarded by the initial proposal being that
which, amongst other arguments, may represent an important criterion in choosing this type of
Additionally, the creditors of the SPE are guaranteed as well by its obligation not to distribute
the dividends of its associates if, on the date of the last tax year end, the net assets resulted from the
annual accounts of the SPE is, or after such a distribution, may decrease below the share of the
capital plus that of the reserves which cannot be distributed according to the articles of association
of the SPE. The member states have the possibility to enter as well the requirements related to the
"certificate of good standing" by which the management body of the SPE certifies that the company
is able to pay its debts on the maturity term, in one year’s term from the dividends distribution date.
And not least, the capital of the SPE is integrally subscribed by the associates who can
contribute by contributions in cash and in kind, and divided in shares. The labour and service
contributions are not allowed.
Regarding the payment of the registered capital, the regulation proposal contains provisions,
by establishing that on formation, at least an amount that is equivalent to the minimum capital
requirement set by the Member State in which the SPE has its registered office shall be paid up at
the time of acquisition of the units. Where the capital of the SPE is higher than the minimum capital
requirement in that Member State, 25% of the amount by which the minimum capital requirement is
exceeded shall also be paid up.
On such grounds, seeing these conditions and the associates’ decision, the articles of
association of the SPE must include the share of the capital which is to be paid upon its
Drury, Robert/Hicks, Andrew: The proposal for a European Private Company, The Journal of Business Law,
p.441, 1999, :"But the provisi ons of a minimum capital has not always the e ffect of providing any sort of guarantee that
the business is sufficiently capitalised to protect third parties dealing with it";
Sandra van den Braa k, The European Private Company, its share holders and its creditors, Utrecht law Review,
Volume 6, Issue 1 (January), 2010, available at:<<http://utr echtlawreview.org>>;
Source: Impact Assessment, Working Document accompanying the Proposal for a Council Regulation on the
Statute for a European Private Company (EPC), op. cit., Annex A 3;