17 Amendments of Evelyne GEBHARDT related to 2018/0114(COD)
Amendment 161 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) The concept of establishment within the meaning of the Treaty provisions on freedom of establishment involves the actual pursuit of an economic activity through a fixed establishment in the host Member State for an indefinite period and it presupposes the pursuit of genuine economic activity there. It is therefore appropriate to ensure that the company carrying out the cross-border conversion or the merging companies, in case of a cross-border merger, are required to demonstrate on the basis of ascertainable objective factors, to have a fixed establishment and to pursuit genuine and substantial economic activity in the destination Member State for an indefinite period. In order to combat abuses and to avoid the use of cross- border company restructuring processes to create artificial arrangements, it is also necessary to ensure that the companies resulting from cross-border conversions or cross-border mergers have their head office in the destination Member State.
Amendment 248 #
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) After Article 1, the following Article 1a (new) is inserted: Article 1a Procedures for cross-border company restructuring The measures laid down in this Directive shall constitute the only legally admissible procedures for cross-border company restructuring. Cross-border company restructuring measures beyond those defined in points (2) and (9) of Article 1b (new) are not permitted.
Amendment 250 #
Proposal for a directive
Article 1 – paragraph 1 – point 1 b (new)
Article 1 – paragraph 1 – point 1 b (new)
Directive (EU) 2017/1132
Article 1 b (new)
Article 1 b (new)
(1b) After Article 1a (new), the following Article 1b (new) is inserted: Article 1b Definitions For the purposes of this Directive [...] (15) 'head office' means the place where key management and commercial decisions that are necessary for the conduct of the company’s business as a whole are in substance made.
Amendment 251 #
Proposal for a directive
Article 1 – paragraph 1 – point 1 c (new) Directive (EU) 2017/1132
Article 1 – paragraph 1 – point 1 c (new) Directive (EU) 2017/1132
(1c) After Article 1b (new), the following Article 1c (new) is inserted: Article 1c Sanctions and judicial review Member States shall provide for adequate sanctions in the event of infringements of this Directive. Those sanctions shall be effective, proportionate and dissuasive and shall include, inter alia, the possibility to declare the relevant conversion, merger or division null and void. Member States shall introduce into their national legal systems such measures as are necessary to enable all employees and representatives of employees who consider themselves wronged by failure to comply with the obligations arising from this Directive to pursue their claims by judicial process.
Amendment 280 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive 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 prejudicing the legal or contractual rights of employees, creditors or minority members. . The company carrying out the cross- border conversion shall demonstrate on the basis of ascertainable objective factors, to have a fixed establishment and to pursuit genuine and substantial economic activity in the destination Member State for an indefinite period. The company carrying out the cross- border conversion shall not be considered to have a fixed establishment and to pursue genuine and substantial economic activity in the destination Member State unless it can demonstrate that: – the company has a fixed establishment in the destination Member State which has the objective appearance of permanency and performs substantial business activities, conducts its business in relevant premises, with a relevant number of employees employed on a permanent basis, and has a management body that is materially equipped to negotiate business with third parties; and – the consolidated EBIDTA generated by the operations of the company in the destination Member State in the last two fiscal years corresponds at least to 25% of the consolidated EBIDTA generated by the company in the European Union. The head office of the converted company shall be located in the destination Member State within 5 months from the date on which the cross-border conversion takes effect according to Article 86r. In case this condition has not been complied with, the cross-border conversion shall be declared null and void. The competent authority of the destination Member State shall verify that this condition has been respected and shall communicate the result of such verification to the competent authority of the departure Member State.
Amendment 295 #
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 d a (new)
Article 86 d – paragraph 1 – point d a (new)
(da) detailed information on the transfer of the head office of the company to the destination Member State, in case it is not already located there;
Amendment 442 #
(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 455 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 h a (new)
Article 86 h a (new)
After Article 86h the following Article 86ha (new) is inserted: Article 86h Approval by the employees After taking note of the reports referred to in Articles 86e, 86f and 86g, the representatives of the employees of the company carrying out the cross-border conversion or, if there are no representatives, the employees themselves, shall decide, by simple majority, whether to approve the draft terms of the cross- border conversion. In case the representatives of the employees or, where applicable, the employees themselves, reject the draft terms, the general meeting of the company shall not proceed to vote on the resolution referred to in Article 86i.
Amendment 483 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l a (new)
Article 86 l a (new)
After Article 86l the following Article 86la (new) is inserted: Article 86la Collective agreements Following the cross-border conversion, the company carrying out the cross- border conversion shall continue to observe the terms and conditions agreed in any collective agreements on the same terms applicable to the company before the conversion under such agreements, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.
Amendment 493 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l – paragraph 3 – point e
Article 86 l – paragraph 3 – point e
(e) the first subparagraph of Article 7(1);
Amendment 506 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l – paragraph 5
Article 86 l – paragraph 5
Amendment 531 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 n – paragraph 1 – subparagraph 1
Article 86 n – paragraph 1 – subparagraph 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 and 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 to and receive information from the competent authority of the destination Member State.
Amendment 572 #
Proposal for a directive
Article 1 – paragraph 1 – point 7 – point a a (new)
Article 1 – paragraph 1 – point 7 – point a a (new)
Directive (EU) 2017/1132
Article 122 – point (a a) (new)
Article 122 – point (a a) (new)
(aa) After point (a) the following point is added: detailed information the transfer of the head office of the company to the destination Member State, in case it is not already located there;
Amendment 631 #
Proposal for a directive
Article 1 – paragraph 1 – point 11 a (new)
Article 1 – paragraph 1 – point 11 a (new)
Directive (EU) 2017/1132
Article 125a (new)
Article 125a (new)
(11 a) After Article 125 the following Article 125a (new) is inserted: Article 125a Approval by the employees After taking note of the reports referred to in Articles 124, 124a and 125, the representatives of the employees of each merging company or, if there are no representatives, the employees themselves, shall decide, by simple majority, whether to approve the draft terms of the cross- border merger. In case the representatives of the employees or, where applicable, the employees themselves, of at least one of the merging companies reject the draft terms, the general meeting of the merging companies shall not proceed to vote on the resolution referred to in Article 126.
Amendment 646 #
Proposal for a directive
Article 1 – paragraph 1 – point 14 – point a – introductory part
Article 1 – paragraph 1 – point 14 – point a – introductory part
Directive (EU) 2017/1132
Article 127 – paragraph 1
Article 127 – paragraph 1
(a) in paragraph, 1, the following subparagraphs are added: paragraph 1 is replaced by the following: 1. Each Member State shall designate the court, notary or other authority competent to scrutinise the legality of the cross- border merger as regards that part of the procedure which concerns each merging company subject to its national law and the provisions of this Directive. Member States shall ensure that the authority referred to in the first subparagraph shall not authorise the cross-border merger 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. This examination shall be carried out by the authority in accordance with the procedures in Article 86g, Article 86m(7)(c) and Article 86n, mutatis mutandis. The authorities of the Member States of the merging companies shall cooperate and exchange information during this process. The merging companies shall demonstrate on the basis of ascertainable objective factors, to have a fixed establishment and to pursuit genuine and substantial economic activity in the destination Member State for an indefinite period. The merging companies shall not be considered to have a fixed establishment and to pursue genuine and substantial economic activity in the destination Member State unless they can demonstrate that: - they have a fixed establishment in the destination Member State which has the objective appearance of permanency and performs substantial business activities, conducts its business in relevant premises, with a relevant number of employees employed on a permanent basis, and has a management body that is materially equipped to negotiate business with third parties; and - the consolidated combined EBIDTA generated by the operations of the merging companies in the destination Member State in the last two fiscal years corresponds at least to 25% of the combined consolidated EBIDTA generated by the merging companies in the European Union. The head office of the company resulting from the cross-border merger shall be located in the destination Member State within 5 months from the date on which the cross-border merger takes effect according to Article 129. In case this condition has not been complied with, the cross-border merger shall be declared null and void. The authority referred to in the first subparagraph of the destination Member State shall verify that this condition has been respected and shall communicate the result of such verification to the authorities of the Member States of the merging companies.
Amendment 651 #
Proposal for a directive
Article 1 – paragraph 1 – point 18 – point a a (new)
Article 1 – paragraph 1 – point 18 – point a a (new)
Directive (EU) 2017/1132
Article 133 – paragraph 3 – point (e)
Article 133 – paragraph 3 – point (e)
(a a) Point (e) of paragraph 3 is amended as follows: (e) Article 7(1);
Amendment 656 #
Proposal for a directive
Article 1 – paragraph 1 – point 19 a (new)
Article 1 – paragraph 1 – point 19 a (new)
Directive (EU) 2017/1132
Article 134a (new)
Article 134a (new)
(19 a) After Article 133 the following Article 134a (new) is inserted: Article 134a Collective agreements following the cross- border merger, the company resulting from the cross-border merger shall continue to observe the terms and conditions agreed in any collective agreements on the same terms applicable to the merging companies before the cross-border merger, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.