The Business Forms and Controlling Shareholders of ‘Notified Bodies’ Under the New Approach Regulations: A Preliminary Assessment to Implement the Statute of ‘European Company’

Abstract

Conformity assessment bodies functioning within the field of New Approach Directives (Notified bodies (NBs)), may provide a fertile research subject concerning the field of corporate law since many variables – not only in terms of their business field and activity, but also the importance attested to them by the European Commission – are already harmonised throughout the EU. There are mainly two stages in this study. The first stage is about what the business forms and ownership structures of those NBs are. This is done by inventorying the business forms of NBs in a sample of five European jurisdictions (France, Germany, Italy, the Netherlands and the UK), and also their largest shareholders’ business forms, investor groups, primary and secondary activities, and country of origin until the ultimate controlling shareholder. Subsequently, as the second stage, it is discussed what the statute of European Company – as an alleged single common European business form – could offer for these NBs. The challenges ahead with respect to tax issues are also reviewed generally to see the complete picture. In the end, it is argued that SE does not seem to be an especially attractive business form for all NBs, not only because of corporate law reasons but also tax law ambiguities. On the other hand, it is argued that its employment could provide the national competent authorities (notifying bodies) with some side-benefits like reduced surveillance costs in case parent companies/NBs (controlling several subsidiary NBs) decide to re-structure the group via branches. Besides, certain NBs in Germany and the Netherlands may opt for the SE form to circumvent national employee participation rules. Last but not least, it is argued that a more flexible business form, like European Private Company would probably lead to a much more extensive use by NBs, particularly by the ones resembling to SMEs.