Will the SE Incentive the Process of Harmonization or Determine the Opposite Outcome?

Abstract: In the beginning of the October 2004 a new legal entity made its debut in the European Community system: the SE or Societas Europaea. The content of the regulation introducing this corporate form clearly shows how the SE project has been concretised in reality. First of all, it is possible to ascertain that the landmark legal framework is constituted essentially by two texts: the EC regulation 2157/2001 establishing the Statute of the Company and the EC directive 86/2001 which completes the latter regulating the employees' involvement. The scheme adopted for the SE, together with the cross-reference operated towards the corporate disciplines of the single Member States, seems to have reintroduced the competitiveness of the national systems in relation to the higher or lower degree of facility of putting into practice the directives within each one of them. In conclusion, the impression is that the SE represents a missed chance to unify the European Company Law&semic the legislator has in fact failed in the creation of a completely self-sufficient statute and, therefore a company regulated in a uniform manner in all the Member States' legal systems. Through this dissertation, after an initial depiction of the functioning of the SE, it will be possible to comprehend the leading reasons for affirming that its construction, as it was conceived, appears to be inappropriate in the light of the desirable growth of the Common Market (at least in a direction leaning towards an higher degree of harmonisation). The main structural problems in the actual SE model have different nature and consistency&semic what appears to be most cogent is the subsistence of a fiscal discipline which has been proven profoundly inadequate. The consequent subjection to the national taxation provisions is a relevant drawback in due to the fact that the SE might not be considered more appealing than other forms of companies regulated by national legislations. The fiscal issue has to be added to the broader field of the European legal cultures. The differences between the concepts of corporate governance are very well rooted in the legal tradition of the Member States and the SE regulation and directives have not been capable to surmount this obstacles. The European character of the SE appears to be very inconsistent: too much weight and influence is granted to the Member States. Hence, the leading question regards the consistency of the SE supranational nature together with the most plausible consequence of the ongoing orientation, namely, the possible growth of legal uncertainty tied to the unpleasant developments of the SE's discipline. This is witnessing a heavy defeat concerning the harmonisation process, in the light of the growing proliferation of the corporate disciplines delegated to govern the SE's affairs. The forthcoming investigations will try to clear some of the reasons for the unfortunate shift of legal balance towards the Member States which is putting the SE's European essence in serious peril.