General
As mentioned earlier, SEs are not created following the procedure laid down in Directive 2009/101/EC, but only:
(i) by merger of at least two companies originating in different EU countries;
(ii) by establishment of a holding company or subsidiary by at least two companies originating in different EU countries or having had a subsidiary or branch in another EU country for at least 2 years;
(iii) by conversion of a company having had a subsidiary in another EU country for at least 2 years;
(iv) by formation of a subsidiary by an SE or division of an existing SE (SE incubator).
Article 2 Regulation 2001/2157/EC
1. Public limited-liability companies such as referred to in Annex I, formed under the law of a Member State, with registered offices and head offices within the Community may form an SE by means of a merger provided that at least two of them are governed by the law of different Member States.
2. Public and private limited-liability companies such as referred to in Annex II, formed under the law of a Member State, with registered offices and head offices within the Community may promote the formation of a holding SE provided that each of at least two of them:
(a) is governed by the law of a different Member State, or
(b) has for at least two years had a subsidiary company governed by the law of another Member State or a branch situated in another Member State.
3. Companies and firms within the meaning of the second paragraph of Article 48 of the Treaty and other legal bodies governed by public or private law, formed under the law of a Member State, with registered offices and head offices within the Community may form a subsidiary SE by subscribing for its shares, provided that each of at least two of them:
(a) is governed by the law of a different Member State, or
(b) has for at least two years had a subsidiary company governed by the law of another Member State or a branch situated in another Member State.
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