28 Amendments of Daniel BUDA related to 2018/0114(COD)
Amendment 134 #
Proposal for a directive
Recital 1
Recital 1
(1) The Directive (EU) 2017/1132 of the European Parliament and of the Council41 regulates cross-border mergers of limited liability companies. These rules represent a significant milestone in improving the functioning of the Single Market for companies and firms and to exercise the freedom of establishment. However, evaluation of these rules shows that there is a need for modifications in cross-border merger rules. Furthermore, it is appropriate to provide for rules regulating cross-border conversions and division, especially with a view to ensuring adequate protection for workers, creditors and minority shareholders. Furthermore, it is appropriate to provide for rules regulating cross-border conversions and divisions with a view to fostering cross-border company mobility, so as to provide a clear, predictable, adequate up-to-date, inclusive and equitable EU legal framework regarding companies. _________________ 41 Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law (codification) (OJ L 169, 30.6.2017, p. 46).
Amendment 136 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1a) In order to ensure sound and prosperous companies that offer economic and social added value to the community, the European Union must lay the foundations for a growth-friendly legal and administrative environment adapted to the new economic and social challenges of globalisation and digitisation, while at the same time upholding legitimate public interests such as the protection of employees, creditors and minority shareholders and giving the authorities the necessary guarantees to counter fraud or wrongdoing.
Amendment 143 #
Proposal for a directive
Recital 4
Recital 4
(4) These developments in the case-law have opened up new opportunities for companies and firms in the Single Market to step up their business activities in order to foster economic growth, effective competition and productivity. At the same time, the objective of a Single Market without internal borders for companies must also be reconciled with other objectives of European integration such as social protection (in particular the protection of workers), the protection of creditors and the protection of shareholders. Such objectives, in the absence of harmonised EU rules specifically regarding cross-border conversions, are pursued by Member States through a number of multifarious legal provisions and administrative practices, creating an unsatisfactory climate in terms of legal certainty, adversely affecting both companies and stakeholders and Member States. As a result, whereas companies are already able to merge cross-border, they experience a number of legal and practical difficulties when wishing to perform a cross-border conversion. Moreover, the national legislation of many Member States provides for the procedure of domestic conversions without offering an equivalent procedure for converting cross-border.
Amendment 146 #
Proposal for a directive
Recital 5
Recital 5
(5) This leads to legal fragmentation and legal uncertainty, and thus to barriers to the exercise of the freedom of establishment and to the exploration of new opportunities on the internal market, especially for SMEs. It also leads to a suboptimal and unequal protection of employees, creditors and minority shareholders within the Single Market.
Amendment 150 #
Proposal for a directive
Recital 6
Recital 6
(6) It is appropriate therefore to provide harmonised EU procedural and substantive rules on cross-border conversions which would contribute to the abolition of restrictions on freedom of establishment and providguarantee at the same time adequatethe right to adequate, uniform and proportionate protection for stakeholders such as employees, creditors and minority shareholders.
Amendment 163 #
Proposal for a directive
Recital 8
Recital 8
(8) The carrying out of a cross-border conversion entails a change of legal form for a company without losing its legal personality and without the need for renegotiation of business contracts. However, it should not lead to the circumvention of the requirements for incorporation in the destination Member State. Such conditions, including the requirements to have a head office in the destination Member State and those relating to the disqualification of directors, should be fully respected by the company. However, the application of such conditions by the destination Member State may not affect the continuity of the converted company's legal personality. A company may convert into any regulated legal form which exists in the destination Member State, in accordance with Article 49 of the TFEU.
Amendment 165 #
Proposal for a directive
Recital 10
Recital 10
(10) To allow all stakeholders' legitimate interests to be taken into account in the procedure governing a cross-border conversion, the company should disclose at the proper time the draft terms of the cross-border conversion containing the most important information about the proposed cross- border conversion, including the envisaged new company form, the instrument of constitution and the proposed timetable for the conversion. Members, creditors and employees of the company carrying out the cross-border conversion should be notified in order that they can, without unjustified delay in order that they can have sufficient time to submit comments with regard to the proposed conversion.
Amendment 183 #
Proposal for a directive
Recital 16
Recital 16
(16) It is appropriatenecessary that those members who held voting rights and who did not vote to approve the draft terms of conversion and those members without voting rights, who could not present their position, should be afforded the right to exit the company. Those members should be able to leave the company and receive adequate cash compensation for their shares equivalent to the value of their shares. Furthermore, they should have a right to challenge the calculation and adequacy of that cash compensation offered before a court.
Amendment 184 #
Proposal for a directive
Recital 17
Recital 17
(17) The company carrying a cross- border conversion should also set out in the draft terms of conversion measures to ensure the adequate protection of creditors. In addition, in order to strengthen the protection of creditors in the case of insolvency of the company following the cross-border conversion, Member States should be allowed to require the company to make a declaration of solvency stating that it is not aware of any reason why the converted company should not be able to meet its liabilities following the cross- border conversion. In those circumstances, Member States should be able to make the members of the management organ personally liable for the accuracy of that declaration. As legal traditions vary amongst Member States with regard to the use of solvency declarations and their possible consequences, it should be up to Member States to draw appropriate consequences for inaccurate or misleading declarations, including effective and proportionate sanctions and liabilities in compliance with Union law.
Amendment 199 #
Proposal for a directive
Recital 25
Recital 25
(25) The exercise of the freedom of establishment by a company includes also the possibility of a company merge cross- border. Directive 2017/1132 of the European Parliament and of the Council provides, amongst other matters, for harmonised rules to enable the cross- border mergers of limited liability companies established in different Member States. These rules represent a significant milestone in improving the functioning of the Single Market for companies by enabling them to exercise the freedom of establishment through the mechanism of cross-border merger promoting increased company mobility and the exploitation of new internal market opportunities.
Amendment 200 #
Proposal for a directive
Recital 26
Recital 26
(26) The evaluation of the implementation of the cross-border merger rules in Member States has shown that the number of cross-border mergers in the Union has significantly increased (by 173% between 2008 and 2012), accompanied by reduced costs and less cumbersome administrative proceedings. However, this evaluation has also revealed certain shortcomings in relation specifically to creditor protection and minority shareholder protection as well as to the lack of simplified proceduresand employee protection, especially when it comes to the disclosure of details regarding mergers and the implications thereof, as well as to the lack of simplified or streamlined procedures and the insufficient assimilation of digital tools and procedures, which impede the full effectiveness and efficiency of those cross-border merger rules.
Amendment 210 #
Proposal for a directive
Recital 34
Recital 34
(34) Companies involved in a cross- border merger should propose adequate measures to protect their creditors in the common draft terms of merger. In addition, in order to strengthen the protection of those creditors in case of insolvency following the cross-border merger, Member States should be allowed to require the merging companies to make a declaration of solvency stating that they are not aware of any reason why the company resulting from the merger should not be able to meet its liabilities following the cross-border merger. In those circumstances, Member States should be able to make the members of the management organ personally liable for the accuracy of that declaration statement. As legal traditions vary amongst Member States with regard to the use of solvency declarations and their possible consequences, it should be up to Member States to draw appropriate consequences for inaccurate or misleading declarations, including effective and proportionate sanctions and liabilities in compliance with Union law.
Amendment 241 #
Proposal for a directive
Recital 61
Recital 61
(61) This Directive ensures full respects for the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including the right to establishment in any Member State (Article 15(2), freedom to conduct a business (Article 16), workers’ right to information and consultation within the undertaking (Article 27), the right of collective bargaining and action (Article 28), protection in the event of unjustified dismissal (Article 30), fair and just working conditions (Article 31), the right to an effective remedy and to a fair trial (Article 47) and the right to protection of personal data (Article 8).
Amendment 243 #
Proposal for a directive
Recital 63
Recital 63
(63) The Commission should carry out an evaluation of this Directive. Pursuant to paragraph 22 of the Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making of 13 April 201652 that evaluation should be based on the five criteria of efficiency, effectiveness, relevance, coherence and value added and should provide the basis for impact assessments of possible further measures. In its assessment, the Commission should also take into account the level of protection afforded to employees, creditors and minority shareholders in the implementation of this Directive. _________________ 52 OJ L123, 12.5. 2016, p. 1.
Amendment 247 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive (EU) 2017/1132
Article 1 – paragraph 1 – point e a (new)
Article 1 – paragraph 1 – point e a (new)
(ea) cross-border conversions of companies with liability limited to the amount of the subscribed share capital (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 255 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 a – paragraph 2
Article 86 a – paragraph 2
2. Member States shall take the necessary measures to establish a harmonised procedure for cross-border conversion referred to in paragraph 1. (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 293 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 d – paragraph 1 – point a
Article 86 d – paragraph 1 – point a
(a) the legal form, name and location of the registered office, of the company in the departure Member State; (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 304 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 d – paragraph 1 – point k
Article 86 d – paragraph 1 – point k
(k) where appropriate, information on the procedures by which arrangements for the involvement of employees in the definition of their rights to be informed and consulted and, where appropriate, to participation in the converted company are determined pursuant to Article 86l and on the possible options for such arrangements. (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 315 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 d – paragraph 2
Article 86 d – paragraph 2
2. In addition to the official languages of the departure and destination Member States, Member States may indicate that the company shall allow the company carrying out the cross-border conversion to use a language customary in the sphere of international business and finance in order to draw up the draft terms of a cross-border conversion and all other related documents. Member States shall specify which language will prevail in the case of discrepancies identified between the different linguistic versions of those documents. (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 370 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 1 – paragraph 2 – point b
Article 1 – paragraph 2 – point b
(b) the implications of the cross-border conversionmerger on employees and on the safeguarding of employment relationships; (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 378 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 1 – paragraph 2 – point d
Article 1 – paragraph 2 – point d
(d) whether the factors set out in points (a), (b) and (c) also relate to any subsidiaries or branches of the company.
Amendment 463 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 h – paragraph 5
Article 86 h – paragraph 5
5. Member States may require, in addition to the disclosure referred to in paragraphs 1, 2 and 3, that the draft terms of the cross-border conversion, or the information referred to in paragraph 3 is published in their national gazette. In that instance, in accordance with the principle of the once-only transmission of information in the EU, Member States shall ensure that the register transmits the relevant information to the national gazette. (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 482 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l – title
Article 86 l – title
Article 86l: Employee participation information, consultation and participation (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 484 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l – paragraph 1
Article 86 l – paragraph 1
1. Without prejudice to paragraph 2, the company resulting from the cross- border conversion shall be subject to the rules in force concerning employee participation, if any, in the destination Member State.at EU level, and under the legislation of the destination Member State, concerning employee information and consultation, as well as those concerning employee participation, if any, in the destination Member State. (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 580 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) 2017/1132
Article 123 – paragraph 3 – point a
Article 123 – paragraph 3 – point a
(a) the legal form, name and address of the registered office of each of the merging companies and the legal form, name and registered office proposed for any newly created company; (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 583 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) 2017/1132
Article 123 – paragraph 6
Article 123 – paragraph 6
6. Member States may require, in addition to the disclosure referred to in paragraphs 1, 2 and 3 that the common draft terms of the cross-border merger, or the information referred to in paragraph 3, is published in their national gazette. In that instance, in accordance with the principle of the once-only transmission of information in the EU, Member States shall ensure that the registers referred to in Article 16 transmit the relevant information to the national gazette. (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 610 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 2 – point b
Article 124a – paragraph 2 – point b
(b) the implications of the cross-border merger on employees and on the safeguarding of the employment relationships; (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 614 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 2 – point d
Article 124a – paragraph 2 – point d
(d) whether the factors set out in points (a), (b) and (c) also relate to any subsidiaries or branches of the merging companies. (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)