Activities of Paloma LÓPEZ BERMEJO related to 2018/0114(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions
Amendments (87)
Amendment 20 #
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 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 socialthe protection (in particularof creditors and the protection of workers), the protection of creditors andshareholders and especially social protection (in particular the protection of shareholdworkers). Such objectives, in the absence of harmonised rules specifically regarding cross-border conversions, are pursued by Member States through a number of multifarious legal provisions and administrative practices. 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 22 #
Proposal for a directive
Recital 6
Recital 6
(6) It is appropriate therefore to provide procedural and substantive rules on cross-border conversions which would contribute to the abolition of restrictions on freedom of establishment and provide at the same time adequate and proportionate protection for stakeholders such as employees, creditors and minority shareholders and, in particular, employees.
Amendment 23 #
Proposal for a directive
Recital 6 a (new)
Recital 6 a (new)
(6a) It is necessary to clarify the concepts of information and consultation of employees with the objective of reinforcing the effectiveness of dialogue at transnational level, permitting suitable linkage between the national and transnational levels of dialogue and ensuring the legal certainty required for the application of this Directive.
Amendment 25 #
Proposal for a directive
Recital 6 b (new)
Recital 6 b (new)
(6b) The definition of consultation needs to take account of the aim of expressing an opinion which will be useful to the decision-making process, which implies that the consultation must take place at such time, in such fashion and with such content as are appropriate.
Amendment 27 #
Proposal for a directive
Recital 6 c (new)
Recital 6 c (new)
(6c) One of the purpose of this directive is to establish minimum requirements applicable throughout the Member States while not preventing Member States from laying down provisions more favourable to employees.
Amendment 30 #
Proposal for a directive
Recital 7
Recital 7
(7) The right to convert an existing company formed in a Member State into a company governed by another Member State may in certain circumstances be used for abusive purposes such as for the circumvention of labour standards, social security payments, tax obligations, creditors', minority shareholders' rights or rules on employees participation. In order to combat such possible abuses, a general principle of Union law, Member States are required to ensure that companies do not use the cross-border conversion procedure in order to create artificial arrangements aimed at obtaining undue tax advantages or at unduly prejudicing the legal or contractual rights of employees, creditors or members. In so far as it constitutes a derogation from a fundamental freedom, the fight against abuses must be interpreted strictly and be based on an individual assessment of all relevant circumstances. A procedural and substantive framework which describes the margin of discretion and allows for the diversity of approach by Member States whilst at the same time setting out the requirements to streamline the actions to be taken by national authorities to fight abuses in conformity with Union law should be laid down.
Amendment 37 #
Proposal for a directive
Recital 11
Recital 11
(11) In order to provide information to its members, the company carrying out the cross-border conversion should prepare a report. The report should explain and substantiate the legal and economic aspects of the proposed cross-border conversion, in particular the implications of the cross- border conversion for members with regard to the future business of the company and the management organ's strategic plan. It should also include potential remedies available to members, where they do not agree with the decision to carry out a cross- border conversion. This report should also be made available to the employees of the company carrying our cross-border conversion and trade union representatives.
Amendment 41 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to provide information to its employees, the company carrying out the cross-border conversion should prepare a report explaining the implications of the proposed cross-border conversion for employees. The report should explain in particular the implications of the proposed cross-border conversion on the safeguarding of the jobs of the employees, whether there would be any material change in the employment relationships, on the application of collective agreements and the locations of the companies’ places of business and how each of these factors would relate to any subsidiaries of the company. This requirement should not however apply where the only employees of the company are in its administrative organ. The provision of the report should be without prejudice to the applicable information and consultation proceedings instituted at national level following the implementation of Directive 2002/14/EC of the European Parliament and of the Council43 or Directive 2009/38/EC of the European Parliament and of the Council44 . __________________ 43 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (OJ L 80, 23.3.2002, p. 29). 44 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (Recast) (OJ L 122, 16.5.2009, p. 28).
Amendment 46 #
Proposal for a directive
Recital 14
Recital 14
Amendment 47 #
Proposal for a directive
Recital 15
Recital 15
(15) On the basis of the draft terms of conversion and the reports, the general meeting of the members of the company should decide on whether or not to approve those draft terms. It is important that the majority requirement for such a vote should be sufficiently high in order to ensure that the decision to convert is a collective one. In addition, members should also have the right to vote on any arrangements concerning employee participation, if they have reserved that right during the general meeting.
Amendment 50 #
Proposal for a directive
Recital 19
Recital 19
(19) It is a fundamental principle and stated aim of this Directive to secure employees' participation rights. Therefore, in the company resulting from the cross border conversion, at least the same level of all elements of employee participation rights should continue to apply. In order to ensure that employee participation is not unduly prejudiced as a result of the cross-border conversion, where the company carrying out the cross- border conversion is operating under an employee participation system in the departure Member State, the company should be obliged to take a legal form allowing for the exercise of such participation, including through the presence of representatives of the employees in the appropriate management or supervisory organ of the company in the destination Member State. Moreover, in such a case, a bona fide negotiation between the company and its employees should take place, along the lines of the procedure provided for in Directive 2001/86/EC, with a view to finding an amicable solution reconciling the right of the company to carry out a cross-border conversion withensure the employees' rights of participation. As a result of those negotiations, either a bespoke and agreed solution or, in the absence of an agreement, the application of standard rules as set out in the Annex to Directive 2001/86/EC should apply, mutatis mutandis. In order to protect either the agreed solution or the application of those standard rules, the company should not be able to remove the participation rights through carrying out subsequent domestic or cross-border conversion, merger or division within three years.
Amendment 56 #
Proposal for a directive
Recital 20
Recital 20
(20) In order to prevent the circumvention of employee participation rights by means of a cross-border conversion, the company carrying out a conversion which is registered in the Member State which provides for the employee participation rights, should not be able to perform a cross-border conversion without first entering into negotiations with its employees or their representatives when the average number of employees employed by that company is equivalent to four fifths of the national threshold for triggering such employee participation.
Amendment 70 #
Proposal for a directive
Recital 29
Recital 29
(29) Furthermore, in order to enhance the protection afforded to the employees of the merging company or companies, employees or their representatives may provide, prior to the merge, their opinion on the company report setting out the implications of the cross-border merger for them. The provision of the report should be without prejudice to the applicable information and consultation proceedings instituted at national level following the implementation of Council Directive 2001/23/EC48 , Directive 2002/14/EC or Directive 2009/38/EC. __________________ 48 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ L 82, 22.3.2001, p. 16).
Amendment 83 #
Proposal for a directive
Recital 44
Recital 44
(44) In order to provide information its employees, the company being divided should prepare a report explaining the implications of the proposed cross-border division for employees. The report should explain in particular the implications of the proposed cross-border division on the safeguarding of the jobs of the employees, whether there would be any material change in the conditions of employment, the application of collective agreements and the locations of the companies’ places of business, and how each of these factors would relate to any subsidiaries of the company. The provision of the report should be without prejudice to the applicable information and consultation proceedings instituted at national level following the implementation of Directives 2001/23/EC, 2002/14/EC or 2009/38/EC.
Amendment 84 #
Proposal for a directive
Recital 46
Recital 46
Amendment 89 #
Proposal for a directive
Recital 55
Recital 55
(55) In order to ensure that employee participation is not unduly prejudiced as a result of the cross-border division where the company carrying out the cross-border division is operating under an employee participation system, the companies resulting from the division should be obliged to take a legal form allowing for the exercise of participation, including through the presence of representatives of the employees in the appropriate management or supervisory organs of the companies. Moreover, in such a case, a bona fide negotiation between the company and its employees should take place, along the lines of the procedure provided for in Directive 2001/86/EC, with a view to finding an amicable solution reconciling the right of the company to carry out a cross-border division withensure the employees'' rights of participation. As a result of those negotiations, either a bespoke and agreed solution or, in the absence of an agreement, the application of standard rules as set out in the Annex to Directive 2001/86/EC should apply mutatis mutandis. In order to protect either the agreed solution or the application of those standard rules, the company should not be able to remove the participation rights through carrying out subsequent domestic or cross-border conversions, mergers or divisions within 3 years.
Amendment 93 #
Proposal for a directive
Recital 56
Recital 56
(56) In order to prevent the circumvention of the employee participation rights by means of a cross- border division, the company carrying out a division which is registered in the Member State which provides for the employee participation rights, should not be able to perform a cross-border division without first entering into negotiations with its employees or their representatives when the average number of employees employed by that company is equivalent to four fifths of the national threshold for triggering such employee participation.
Amendment 97 #
Proposal for a directive
Article 1 – paragraph 1 – point 1 a (new)
Article 1 – paragraph 1 – point 1 a (new)
Directive (EU) 2017/1132
Article 1 a (new)
Article 1 a (new)
(1a) Within this directive the management or administrative organ is responsible for managing the company in the interests of the company, that is, taking account of the interest of the members, its employees and other stakeholders, with the objectives of sustainable creation of value.
Amendment 98 #
Proposal for a directive
Article 1 – paragraph 1 – point -1 (new)
Article 1 – paragraph 1 – point -1 (new)
Directive (EU) 2017/1132
Article 1 a (new)
Article 1 a (new)
(-1) In Title I, Chapter I, the following Article 1 a is inserted: “Article 1a Definitions (1) ´information´ means the informing of the representative of the employees and/or employees' representatives at the relevant level by the competent organ of the company on questions which concern the company itself and any of its subsidiaries or establishments situated in another Member State or which exceed the powers of the decision-making organs in a single Member State at a time, in a manner and with a content which allows the employees' representatives to undertake an in-depth assessment of the possible impact and, where appropriate, prepare consultations with the competent organ of the company; (2) ´consultation´ means the establishment of dialogue and exchange of views between the body representative of the employees and/or the employees´ representatives and the competent organ of the company, at the time in a manner and with the content which allows the employees´ representatives, on the basis of information provided to express an opinion on the measures envisaged and to meet with the Executive management and to obtain a response, and the reasons for that response, to any opinion they might formulate by the competent organ before the final decision is adopted. Executive management shall take into account employee´s opinion in the decision- making process within the company; (3) ´artificial arrangement” means a company structure set up for abusive purposes, improperly or fraudulently taking advantage of provisions laid down by law, collective agreements or contracts of, such as the circumvention of rights of employees, creditors´, or minority shareholders, avoidance of rules of employee involvement, social security contributions or tax obligations, such as letter-box companies and ´ front`- companies not carrying out any substantive economic activity supported by staff, equipment, assets and premises, or aimed at obscuring ownership relations; (4) ´head office´ means the place where key management, and commercial decisions that are necessary of the conduct of the entity´s business as a whole are in substance taken;”
Amendment 102 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 b – point 6 a (new)
Article 86 b – point 6 a (new)
(6a) 'employee participation' means the influence of the employees and/or the employees´ representatives in the affairs of a company byway of the right to elect or appoint some of the members of the company´ supervisory or administrative organ.
Amendment 105 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 c – paragraph 2 – point a
Article 86 c – paragraph 2 – point a
(a) proceedings have been instituted for the winding-up, liquidation, or insolvency of that company; or genuine suspicion of not paying social security contributions and/or income taxes and/or of infringement of workers’ rights.
Amendment 107 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 c – paragraph 2 – point e a (new)
Article 86 c – paragraph 2 – point e a (new)
(ea) disciplinary of administrative action or criminal sanctions and decisions have been taken involving fraudulent practices which are directly relevant to the companies´ competences or reliability.
Amendment 110 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 c – paragraph 3
Article 86 c – paragraph 3
3. Member States shall ensure that the competent authority of the departure Member State shall not authorise the cross- border conversion where it determines, after an examination of the specific case and having regard to all relevant facts and circumstances, that it constitutes an artificial arrangement aimed at obtaining undue tax advantages or at unduly prejudic. Companies carrying out the cross-border conversion shall prove to have a real establishment and to pursue genuine and substantial economic activities in the destination Member State according to the following criteria which needs to be met in an ongoing way: (a) the EBITDA generated by the operations of the company in the destination Member State ing the legal or contractual rights of employees, creditors or minority members.ast two fiscal years corresponds at least to 25 % EBIDTA generated by the company in the European Union; (b) the company shall have a fixed establishment performing substantial business activities with material premises, a relevant number of permanent employed workers, and a management body that is materially equipped to negotiate business with third parties; The head office of the converted company shall be located on the destination Member State within 5 months from the date on which the cross-border conversion takes effect according to Article 86r;
Amendment 116 #
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 – introductory part
Article 86 d – paragraph 1 – introductory part
1. The management or administrative organ, including employee board level representatives, of the company which intends to carry out a cross-border conversion shall draw up the draft terms of a cross-border conversion. The draft terms of a cross- border conversion shall include at least the following:
Amendment 120 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
(da) new detailed information on the transfer of the head office;
Amendment 136 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 e – paragraph 2 – point a a (new)
Article 86 e – paragraph 2 – point a a (new)
(aa) the reason of the conversion;
Amendment 146 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 e – paragraph 3
Article 86 e – paragraph 3
3. The report referred to in paragraph 1 of this Article, shall be made available, at least electronically, to the members not less than two months before the date of the general meeting referred to in Article 86i. That report shall also be made similarly available to the representatives of the employees of the company carrying out the cross-border conversion or, where there are no such, to the employees themselves and to the trade union representatives, to in the employees themselvescompany.
Amendment 149 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 e – paragraph 4
Article 86 e – paragraph 4
Amendment 158 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point a a (new)
Article 86 f – paragraph 2 – point a a (new)
(aa) the reasons for the conversion;
Amendment 160 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point b
Article 86 f – paragraph 2 – point b
(b) the implications of the cross-border conversion on the safeguarding of employment relationships and employee involvement;
Amendment 162 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point c
Article 86 f – paragraph 2 – point c
(c) any material changes in the conditions of employment, the application of collective agreements and in the location of the company’s places of business;
Amendment 165 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point d
Article 86 f – paragraph 2 – point d
(d) whether the factors set out in points (a), (b) and (c) also relate to any subsidiaries of the company, branches or controlled undertakings of the company according to Article 3 of Directive 2009/38/EC.
Amendment 167 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point d a (new)
Article 86 f – paragraph 2 – point d a (new)
(da) where appropriate, information on the procedures by which arrangements for the involvement of employees in the definition of their rights to participation in the converted company are determined pursuant to Article 86l and on the possible options for such arrangements;
Amendment 170 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point d b (new)
Article 86 f – paragraph 2 – point d b (new)
(db) the implications of the cross- border conversion on the future business of the company and on the management´ strategic plan;
Amendment 173 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point d c (new)
Article 86 f – paragraph 2 – point d c (new)
(dc) the implications of the cross- border conversions for members;
Amendment 174 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point d d (new)
Article 86 f – paragraph 2 – point d d (new)
(dd) the rights and remedies available to members opposing the conversion in accordance with Article 86j;
Amendment 177 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 3
Article 86 f – paragraph 3
3. The report referred to in paragraph 1 of this Article, shall be made available, at least electronically, to the European Works Council, the representatives of the employees ofand the trade unions in the company carrying out the cross-border conversion or, where there are no such representatives, to the employees themselves not less than two months before the date of the general meeting referred to in Article 86i. That report shall also be made similarly available to the members of the company carrying out the cross-border conversion.
Amendment 180 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 3 a (new)
Article 86 f – paragraph 3 a (new)
3a. The European Works Councils, where applicable, the national employee’ representation bodies and the trade unions represented in the company shall have appropriate resources to conduct a thorough analysis on the report.
Amendment 194 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – paragraph 1 – subparagraph 2 – point a
Article 86 g – paragraph 1 – subparagraph 2 – point a
(a) the draft terms of the cross-border conversion referred to in Article 86d; The related information of the financial and social security authorities shall be included in the report; The report shall be drafted in cooperation with the social partners; Information of workers representatives shall be declared confidential by the expert; The part of the report which contains information declared as trade secrets shall be put in a separate document which shall not be published;
Amendment 201 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – paragraph 3 – point b
Article 86 g – paragraph 3 – point b
(b) a description of all factual elements necessary for the competent authority, designated in accordance with Article 86m(1), to carry out an in-depth assessment to determine whether the intended cross-border conversion constitutes an artificial arrangement in accordance with Article 86n, including at a minimum the following: the characteristics of the establishment in the destination Member State, including the intent, the sector, the investment, the net turnover and profit or loss, number of employees, the composition of the balance sheet, the tax residence, the assets and their location, the habitual place of work of the employees and of specific groups of employees, the place where social contributions are due and the commercial risks assumed by the converted company in the destination Member State and the departure Member State, the composition of the balance sheet and of the financial statement in the destination Member State and in all Member States in which the company operates in the last two fiscal years.
Amendment 205 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – paragraph 6
Article 86 g – paragraph 6
Amendment 208 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 h – paragraph 1 – point c
Article 86 h – paragraph 1 – point c
(c) a notice informing the members, creditors and employees and/or trade unions which have members in the company carrying of the company carrying out the cross-border conversion that they may submit, before the date of the general meeting, comments concerning the documents referred to in points (a) and (b) of the first subparagraph to the company and to the competent authority designated in accordance with Article 86m(1).
Amendment 211 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 i – paragraph 1
Article 86 i – paragraph 1
1. After taking note of the reports referred to in Articles 86e, 86f and 86g, where applicable, the general meeting of the company carrying out the conversion shall decide, by means of a resolution, whether to approve the draft terms of the cross-border conversion. Before a decision is taken, any preceding applicable information and consultation rights have to be met in such a way and at such a time that an opinion by the employee representatives can be taken into consideration. The company shall inform the competent authority designated in accordance with Article 86m(1) of the decision of the general meeting.
Amendment 222 #
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 a (new)
Article 86 l – paragraph 1 a (new)
Amendment 230 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 2 – introductory part
Article 86l – paragraph 2 – introductory part
2. However, the rules in force concerning employee participation, if any, in the destination Member State shall not apply, where the company carrying out the conversion has, in the six months prior to the publication of the draft terms of the cross-border conversion as referred to in Article 86d of this Directive, an average number of employees equivalent to four fifths of the applicable threshold, laid down in the law of the departure Member State, which triggers the participation of employees within the meaning of point (k) of Article 2 of Directive 2001/86/ECArticle 86b (7), or where the national law of the destination Member State does not:
Amendment 234 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 3 – introductory part
Article 86l – paragraph 3 – introductory part
3. IThe information, consultation and participation of employees in the converted company and their involvement in the definition of such rights and in the cases referred to in paragraph 2 of this Article, the participation of employees in the converted company and their involvement in the definition of such rights shall be regulated by the Member States, mutatis mutandis and subject to paragraphs 4 to 7 of this Article, in accordance with the principles and procedures laid down in Article 12(2), (3) and (4) of Regulation (EC) No 2157/2001 and the following provisions of Directive 2001/86/EC:
Amendment 242 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 3 – point e
Article 86l – paragraph 3 – point e
(e) the first subparagraph of Article 7(1);
Amendment 246 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 3 a (new)
Article 86l – paragraph 3 a (new)
Amendment 253 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 4 – point a
Article 86l – paragraph 4 – point a
Amendment 256 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 4 – point b
Article 86l – paragraph 4 – point b
Amendment 269 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 7
Article 86l – paragraph 7
7. Where the converted company is operating under an employee participation system, that company shall be obliged to take measures to ensure that employees' participation rights are protected in the event of any subsequent cross-border or domestic merger, division or conversion for a period of threfive years after the cross- border conversion has taken effect, by applying mutatis mutandis the rules laid down in paragraphs 1 to 6.
Amendment 273 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 8 a (new)
Article 86l – paragraph 8 a (new)
8a. Where the converted company is operating under an employee participation system, that company shall be obliged to take measures to ensure that employees participation rights are protected in the event of any subsequent cross-border or domestic merger, division or conversion for a period of 10 years after the cross-border conversion has taken effect, by applying mutatis mutandis the rules laid down in paragraph 1 to 6.
Amendment 279 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86m – paragraph 1 – point b a (new)
Article 86m – paragraph 1 – point b a (new)
(ba) the opinion of the employees’ representation in accordance with Article 86f (4).
Amendment 282 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86m – paragraph 7 – point a
Article 86m – paragraph 7 – point a
(a) where the competent authority determines that the cross-border conversion falls within the scope of the national provisions transposing this Directive, that it complies with all the relevant conditions and that all necessary procedures and formalities have been completed and if there are no indications for circumventing employee participation rules, the competent authority shall issue the pre-conversion certificate;
Amendment 284 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86n – paragraph 1
Article 86n – paragraph 1
1. Member States shall ensure in order to assess whether the cross-border conversion constitutes an artificial arrangement within the meaning of Article 86c(3), that the competent authority of the departure Member State carries out an in- depth assessment of all relevant facts and circumstances and shall take into account at a minimum the following: the characteristics of the establishment in the destination Member State, including the intent, the sector, the investment, the net turnover and profit or loss, number of employees, the composition of the balance sheet, the tax residence, the assets and their location, the habitual place of work of the employees and of specific groups of employees, the place where social contributions are due and the commercial risks assumed by the converted company in the destination Member State and the departure Member State the composition of the balance sheet and of the financial statement in the destination Member State and in all Member States in which the company operates in the last two fiscal years. The competent authority shall be able to ask questions and to request information to the competent authority of the destination Member State.
Amendment 287 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
'employee participation´ means the influence of the employees and/or the employees representatives in the affairs of a company by way of the right to elect or appoint some of the members of the company´ supervisory or administrative organ.
Amendment 296 #
Proposal for a directive
Article 1 – paragraph 1 – point -a (new)
Article 1 – paragraph 1 – point -a (new)
(-a) the introductory part is replaced by the following: “The management or administrative organ, including employee board level representatives, of each of the merging companies shall draw up the common draft terms of the cross-border merger. The common draft terms of a cross-border merger shall include at least the following information:”
Amendment 308 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) 2017/1132
Article 124 – paragraph 3
Article 124 – paragraph 3
3. The report shall be made available, at least electronically, to the members of each of the merging companies not less than one month before the date of the general meeting referred to in Article 126. The report shall also be made similarly available to the representatives of the employees of each of the merging companies, or where there are no such representatives, to the employees themselvesrepresentatives, to the European Works Council, the representatives of the employees of each of the merging companies, or where there are no such representatives, to employees themselves and the trade unions in the company. However, where the approval of the merger is not required by general meeting of the acquiring company in accordance with Article 126(3), the report shall be made available, at least one month before the date of the general meeting of the other merging company or companies.
Amendment 313 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) 2017/1132
Article 124 – paragraph 4
Article 124 – paragraph 4
Amendment 318 #
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 the safeguarding of the employment relationships and employee involvement;
Amendment 320 #
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 c
Article 124a – paragraph 2 – point c
(c) any material changes in the conditions of employment, the application of collective agreements and in the locations of the companies’ places of business;
Amendment 327 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 3 – subparagraph 1
Article 124a – paragraph 3 – subparagraph 1
The report referred to in paragraph 1 of this Article, shall be made available, at least electronically, to European Works Council, to the representatives of the employees of each of the merging companies or, where there are no such representatives, to the employees themselves and the trade unions in the company, not less than one month before the date of the general meeting referred to in Article 126. The report shall also be made similarly available to the members of each of the merging companies.
Amendment 335 #
Proposal for a directive
Article 1 – paragraph 1 – point 12 – point a
Article 1 – paragraph 1 – point 12 – point a
1. After taking note of the reports referred to in Articles 124, 124a and 125, as appropriate, the general meeting of each of the merging companies shall decide, by means of a resolution, on the approval of the common draft terms of the cross-border merger. Before a decision is taken, any preceding applicable information and consultation rights have to be met in such a way and at such a time that an opinion by the employee representatives can be taken into consideration;
Amendment 346 #
Proposal for a directive
Article 1 – paragraph 1 – point 18 (new)
Article 1 – paragraph 1 – point 18 (new)
Directive (EU) 2017/1132
Article 133
Article 133
Amendment 349 #
Proposal for a directive
Article 1 – paragraph 1 – point 18 – point a
Article 1 – paragraph 1 – point 18 – point a
Directive (EU) 2017/1132
Article 1 – paragraph 1 – point 18
Article 1 – paragraph 1 – point 18
7. Where the company resulting from the cross-border merger is operating under an employee participation system, that company shall be obliged to take measures to ensure that employees' participation rights are protected in the event of any subsequent cross-border or domestic mergers, divisions or conversions for a period of threen years after the cross-border merger has taken effect, by applying mutatis mutandis the rules laid down in paragraphs 1 to 6.
Amendment 355 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160b – point 3 a (new)
Article 160b – point 3 a (new)
(3a) 'employee participation` means the influence of the employees and/ or the employees´ representatives in the affairs of a company by way of the right to elector appoint some of the members of the company´s supervisory or administrative organ.
Amendment 359 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160d – paragraph 2 – point a
Article 160d – paragraph 2 – point a
(a) proceedings have been instituted for the winding-up, liquidation, or insolvency of that company or genuine suspicion of not paying social security contributions and/or income taxes and/ or of infringement of workers’ rights;
Amendment 361 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160d – paragraph 2 – point e a (new)
Article 160d – paragraph 2 – point e a (new)
(ea) disciplinary or administrative actions or criminal sanctions and decisions have been taken involving fraudulent practices which are directly relevant to the companies´ competences or reliability;
Amendment 365 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160d – paragraph 3
Article 160d – paragraph 3
3. The Member State of the company being divided shall ensure that the competent authority shall not authorise the division when it determines, after an examination of the specific case and having regard to all relevant facts and circumstances, that it constitutes an artificial arrangement aimed at obtaining undue tax advantages or at unduly prejudicing the legal or contractual rights of employees, creditors or members.
Amendment 368 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160e – paragraph 1 – introductory part
Article 160e – paragraph 1 – introductory part
1. The management or administrative organ, including employee board level representatives, of the company being divided shall draw up the draft terms of cross-border division. The draft terms of cross-border division shall include at least the following:
Amendment 378 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160g – paragraph 3
Article 160g – paragraph 3
3. The report referred to in paragraph 1 of this Article shall be made available, at least electronically, to the members of the company being divided not less than two months before the date of the general meeting referred to in Article 160k. That report shall also be made similarly available to the European Works Council, the representatives of the employees of the company being divided or, where there are no such representatives, to the employees themselves and the trade unions in the company.
Amendment 381 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160g – paragraph 4
Article 160g – paragraph 4
Amendment 385 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 2 – point b
Article 160h – paragraph 2 – point b
(b) the implications of the cross-border division on the safeguarding of the employment relationships and the employee involvement;
Amendment 387 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 2 – point c
Article 160h – paragraph 2 – point c
(c) any material change in the conditions of employment andlaid down by law and collective agreements and in the locations of the companies’ places of business;;
Amendment 389 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 2 – point d a (new)
Article 160h – paragraph 2 – point d a (new)
(da) where appropriate information on the procedures by which arrangements for the involvement of employees in the definition of their rights to participation in the converted company are determined pursuant to Article 86l and on the possible options for such arrangements.
Amendment 390 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 2 – point d b (new)
Article 160h – paragraph 2 – point d b (new)
(db) the implications of the cross- border conversion on the future business of the company and on the management´ strategic plan;
Amendment 391 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 2 – point d c (new)
Article 160h – paragraph 2 – point d c (new)
(dc) the implications of the cross- border conversions for members.
Amendment 392 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 2 – point d d (new)
Article 160h – paragraph 2 – point d d (new)
(dd) the rights and remedies available to members opposing the conversion in accordance with Article 160l.
Amendment 393 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 3
Article 160h – paragraph 3
3. The report referred to in paragraph 1 shall be made available, at least electronically, to the European Works Council, the representatives of the employees of the company and the trade unions in the company being divided or, where there are no such representatives, to the employees themselves not less than two months before the date of the general meeting referred to in Article 160k. The report shall also be made similarly available to the members of the company being divided.
Amendment 405 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160k – paragraph 1
Article 160k – paragraph 1
1. After taking note of the reports referred to in Articles 160g, 160h and 160i, where applicable, the general meeting of the company being divided shall decide by means of a resolution, whether to approve the draft terms of cross-border division. Before a decision is taken, any preceding applicable information and consultation rights have to be met in such a way and at such a time that an opinion by the employee representatives can be taken into consideration. The company shall inform the competent authority designated in accordance with Article 160o(1) of the decision of the general meeting.
Amendment 410 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160n – paragraph -1 (new)
Article 160n – paragraph -1 (new)
-1. It is a fundamental principle and stated aim of this Article to secure employees´ participation rights. Therefore, in companies resulting from the cross border division, at least the same level of all elements of employee participation rights should continue to apply.
Amendment 417 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160n – paragraph 2
Article 160n – paragraph 2
2. However, the rules in force concerning employee participation, if any, in the Member State where the company resulting from the cross-border division has its registered office shall not apply, where the company being divided, in the six months prior to the publication of the draft terms of the cross-border division as referred to in Article 160e of this Directive, has an average number of employees equivalent to four fifths of the applicable threshold, laid down in the law of the Member State of the company being divided, which triggers the participation of employees within the meaning of point (k) of Article 2 of Directive 2001/86/ECArticle 160b paragraph 3a, or where the national law applicable to each of the recipient companies does not:
Amendment 426 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160n – paragraph 3 a (new)
Article 160n – paragraph 3 a (new)
Amendment 432 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Amendment 433 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160n – paragraph 4 – point b
Article 160n – paragraph 4 – point b
Amendment 439 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160n – paragraph 4 a (new)
Article 160n – paragraph 4 a (new)
Amendment 444 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160n – paragraph 7
Article 160n – paragraph 7