Activities of Miroslavs MITROFANOVS 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 (114)
Amendment 19 #
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, in the absence of a level playing field in the form of coherent social and fiscal rules, these developments went hand-in-hand with the proliferation of letterbox companies and abusive practices, constituting artificial arrangements and circumventing fiscal and social security obligations as well as undercutting workers’ rights. 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 particularfor all, the protection of workers)’ rights, the protection of creditors and the protection of shareholders. Such objectives, i, as well as the fight against attacks on financial interests of the EU via for example money laundering and tax evasion. In the absence of harmonised rules specifically regarding cross-border conversions, are pursued by Member States throughMember States have developed 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 21 #
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. Loopholes need to be closed and opportunities for abuses related to tax, social security and the rights of different stakeholders, need to be prevented. It is therefore key to reorient the direction taken by the Court of Justice and clarify that it should not be possible for a company to move its registered office without moving their head office in order to carry out a substantial part of its economic activity in the member state of destination.
Amendment 24 #
Proposal for a directive
Recital 6 a (new)
Recital 6 a (new)
(6a) The concepts of information and consultation of employees need to be clarified with the objectives of reinforcing the effectiveness of dialogue at transnational level. The definition of "consultation" should allow for the expression of an opinion to be properly used in the decision-making process.
Amendment 26 #
Proposal for a directive
Recital 6 b (new)
Recital 6 b (new)
(6b) This directive establishes minimum requirements applicable throughout the Member States while allowing and encouraging Member States to provide more favourable protection of employees.
Amendment 31 #
Proposal for a directive
Recital 7
Recital 7
(7) The right to merge, divide or convert an existing company formed in a Member State into a company governed by another Member State may in certain circumstancesshould never 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, as this is the case for example of letterbox companies. 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, merger or division procedure in order to create artificial arrangements aimed at obtaining undue tax, solely or partially, at obtaining tax or social security 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, tThe fight against abuses must be interpreted strictly and be based on an individual assessment of all relevant circumstances. A common 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 settingsets 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, whilst describing, where strictly necessary, the margin of discretion allowed for Member States.
Amendment 33 #
Proposal for a directive
Recital 9
Recital 9
(9) Given the complexity of cross- border conversions and the multitude of the interests concerned, it is appropriate to provide for an ex-ante control in order to create legal certainty. To that effect, a structured and multi-layered procedure should be set out whereby the competent authorities of both the departure and the destination Member State ensure that a decision on the approval of a cross-border conversion is taken in a fair, objective and non-discriminatory manner on the basis of all relevant elements and by taking into account all legitimate public interests, in particular, the protection of employees, members and creditors. Member States should also perform an ex-post verification in cases where new information has become available only after the finalisation of the procedure to check the legitimate character of the conversion and take appropriate action in case of irregularities.
Amendment 35 #
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 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 and be given this information in due time in order that they can submit comments with regard to the proposed conversion.
Amendment 39 #
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, 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 and on the possible options for such arrangements, whether there would be any material change in the employment relationships 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 43 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12a) The freedom of establishment and the development of the internal market are no stand-alone principles or objectives of the EU. They should always be balanced with, in particular in the context of this Directive, the Union’s principles and objectives regarding social progress, the promotion of a high level of employment and the guarantee of adequate social protection, embedded in Article 3 of the Treaty on the European Union and Article 9 of the TFEU. It is therefore clear that the development of the internal market should contribute to social cohesion and upward social convergence, and should not fuel competition between social systems, putting pressure on those systems to lower their standards.
Amendment 44 #
Proposal for a directive
Recital 12 b (new)
Recital 12 b (new)
(12b) EU policy should also contribute to the promotion and reinforcement of social dialogue, in line with Article 151 TFEU. It is therefore also the objective of this Directive to secure employees’ information, consultation and participation rights and to ensure that any cross-border mobility of companies can never lead to the lowering of these rights. Ensuring information, consultation and participation of employees is essential for all such actions to succeed.
Amendment 45 #
Proposal for a directive
Recital 12 c (new)
Recital 12 c (new)
(12c) The freedom of establishment should also in no way undermine the principles regarding the countering fraud and any other illegal activities affecting the financial interests of the Union included in Article 310 of the TFEU.
Amendment 48 #
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 51 #
Proposal for a directive
Recital 19
Recital 19
(19) 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 theto ensure the employees' rights of the company to carry out a cross-border conversion with the employees' rights of participationinformation, consultation and participation. The agreement should ensure that at least the same level of all elements of employee involvement as applicable in the company before the conversion, continues to apply. 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 information, consultation and participation rights through carrying out subsequent domestic or cross-border conversion, merger or division within three en years.
Amendment 57 #
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 64 #
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. However, this evaluation has also revealed certain shortcomings in relation specifically to creditor protectionemployee, creditor and shareholder protection as well as to the lack of simplified procedures which impede the full effectiveness and efficiency of those cross-border merger rules.
Amendment 65 #
Proposal for a directive
Recital 28
Recital 28
(28) In order to further enhance the existing cross-border merger procedure, it is necessary to simplify those merger rules, where appropriate, whilst at the same time ensuring that stakeholders, and in particular employees, are adequately protected. Therefore, the existing cross- border merger rules should be modified in order to obaligen the management or administrative organs of the merging companies to prepare separate reports detailing the legal and economic aspects of the cross-border merger for both members and for employees. The obligation onrules for cross-border mergers with those on cross-border conversions and divisions, and to oblige the management or administrative organs of the merging companyies to prepare the report for the members may however be waived, where those members are already informed aboutseparate reports detailing the legal and economic aspects of the pcroposed merger. However, the report prepared for employees may only be waived where the merging companies and their subsidiaries do not havess-border merger for members, creditors anyd employees other than those who form part of the management or administrative organ.
Amendment 72 #
Proposal for a directive
Recital 31
Recital 31
(31) The lack of harmonisation of safeguards for employees, members or creditors has been identified an obstacle for cross-border mergers by different stakeholders. MEmployees, members and creditors should be offered at least the same level of protection regardless of the Member States in which the merging companies are situated. This is without prejudice to the Member States’ rules on protecting employees, creditors or shareholders which are outside the scope of the harmonised measures, such as transparency requirements.
Amendment 73 #
Proposal for a directive
Recital 40
Recital 40
(40) The right of companies to carry out a cross-border division may in certain circumstances be used for abusive purposes such as for the circumvention of labour standards, social security payments, tax obligations, creditors' or members' rights or rules on employees participation. In order to combat such abuses, as a general principle of Union law, Member States are required to ensure that companies do not use the cross-border division 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. The fight against abuses must be based on an individual assessment of all relevant circumstances. A common procedural and substantive framework which describes the margin of discretion and allows for the diversity of approaches by Member States whilst at the same time settingsets 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, whilst describing, where strictly necessary, the margin of discretion allowed for Member States.
Amendment 81 #
Proposal for a directive
Recital 44
Recital 44
(44) In order to provide information to 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, 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 and on the possible options for such arrangements, whether there would be any material change in the conditions of employment 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 88 #
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 with the employees'' rights of participationinformation, consultation and participation. The agreement should ensure that at least the same level of all elements of employee involvement as applicable in the company before the conversion, continues to apply. 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 information, consultation and participation rights through carrying out subsequent domestic or cross-border conversions, mergers or divisions within 310 years.
Amendment 92 #
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 101 #
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) "information" means the transmission by the employer to the employees and/or employees' representatives at the relevant level, of data which concern the company itself and any of its subsidiaries or establishments situated in another Member State, in order to enable them to acquaint themselves with the subject matter and to examine it. This shall take place at a time, in a manner and with a content which allows the employees and representatives to undertake an in-depth assessment of the possible impact and, where appropriate, prepare consultations with the competent organ of the company;
Amendment 103 #
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 b (new)
Article 86 b – point 6 b (new)
(6b) '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's supervisory or administrative organ;
Amendment 104 #
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 c (new)
Article 86 b – point 6 c (new)
(6c) 'consultation' means the exchange of views and establishment of dialogue between the employees and/or the employees' representatives and the employer, with the employee’s opinion being taken into account in the decision- making process within the company. This shall take place at a time, in a manner and with a content which allows the employees and representatives, on the basis of information provided, to express an opinion on the measures envisaged. It shall allow to meet with the Executive management and obtain a reasoned and exhaustive response before the final decision is adopted;
Amendment 106 #
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) the company is under investigation, is being prosecuted or has been convicted in the last 3 years for infringements of employment legislation or workers’ rights, social or tax fraud, tax evasion, tax avoidance or money laundering or any other financial crime;
Amendment 108 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
(eb) the company has a backlog in tax or social security payments;
Amendment 109 #
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 c (new)
Article 86 c – paragraph 2 – point e c (new)
(ec) the company is under investigation, is being prosecuted or has been convicted in the last 3 years for violations of fundamental or human rights;
Amendment 114 #
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 a (new)
Article 86 c – paragraph 3 a (new)
3a. The company carrying out the cross-border conversions shall provide substantive information to demonstrate it has an actual establishment and pursues genuine and substantial economic activity in the destination Member State. To this end, at least the following conditions have to be met: (a) the EBIDTA generated by the operations of the company in the destination Member State in the last two fiscal years corresponds at least to 25% EBITDA 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 workers employed on permanent basis, and a management body that is materially equipped to negotiate business with third parties. In any case, the head office of the converted company shall be relocated to the destination Member State within 5 months from the date on which the cross- border conversion takes effect, according to Article 86r.
Amendment 121 #
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;
Amendment 124 #
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 j
Article 86 d – paragraph 1 – point j
(j) the likely repercussions of the cross-border conversion on employment, wage development and company level social dialogue including board level representation of employee representatives
Amendment 127 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
(ka) the name of the ultimate undertaking and, where applicable, the list of all its subsidiaries, a brief description of the nature of their activities and their respective geographic allocation;
Amendment 128 #
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
(kb) the number of employees on a full- time equivalent basis;
Amendment 130 #
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 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. Members, employees or creditors shall have the possibility to comment on these draft terms. The comments shall be included in the final report and be made public.
Amendment 143 #
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 representatives, to the employees themselves, and to the European Works Council, where applicable.
Amendment 161 #
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, including the conditions laid down in law and collective agreements, and in the location of the company’s places of business;
Amendment 166 #
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
(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 171 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
(db) the rights and remedies available to members opposing the conversion in accordance with Article 86j;
Amendment 178 #
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 representatives of the employees of the company carrying out the cross-border conversion or, where there are no such representatives, to the employees themselves and to the European Works Council, where applicable, 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 181 #
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 183 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 4 a (new)
Article 86 f – paragraph 4 a (new)
4a. The executive management or the administrative organ of the company which intends to carry out the cross- border conversion, shall provide a motivated and written response to the employee opinion before the date of the general meeting referred to in Article 86i.
Amendment 185 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 5
Article 86 f – paragraph 5
Amendment 189 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – title
Article 86 g – title
Article 86g Examination by an independent experts
Amendment 196 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – paragraph 2
Article 86 g – paragraph 2
2. The competent authority shall appoint antwo independent experts within five working daysone month from the application referred to in paragraph 1 and the receipt of the draft terms and reports. The experts shall be independent from the company carrying out the cross-border conversion and may be a naturappointed on the basis of a pre-selected list that was specifically established for the purpose of assessing cross-border conversions. The list shall include natural persons on the basis of their personal expertise. The fields of expertise to be reflected in the list shall include at least company law, taxation and fiscal law, social security and workers’ rights. Together, the two independent experts shall cover all of the fields of expertise mentioned in this paragraph. An expert may operate on their own behalf or on behalf of a legal person depending upon the law of. Member States shall define fixed rates for the fees paid to the indeparture Member Stateendent experts, which shall be paid by the company applying for the conversion. The experts shall be independent from the company carrying out the cross-border conversion . Member States shall take into account, in assessing the independence of the experts, the framework established in Articles 22 and to22b of Directive 2006/43/EC. In addition: (a) the experts or the legal person on whose behalf they are operating, shall not have performed work, in whatever capacity, for the company applying for the conversion in the five years prior to his or her appointment or vice versa; and (b) the two experts appointed shall not operate on behalf of the same legal person.
Amendment 200 #
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: (i) the characteristics of the establishment in the destination Member State, including the intent, the sector, the investment, the net turnover and profit or loss, (ii) the number of employees, the composition of the balance sheet, working in the country of destination, the number of employees working in another country grouped according to the country of work, the number of employees posted or sent in the year prior to the conversion within the meanings of Regulation (EC) No 883/2004andDirective96/71/EC, the number of employees working simultaneously in more than one Member State within the meaning of Regulation (EC) No883/2004, (iii) the tax residence, (iv) the assets and their location, (v) the habitual place of work of the employees and of specific groups of employees, (vi) the places where social contributions are due and; (vii) the commercial risks assumed by the converted company in the destination Member State and the departure Member State, (viii) 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 202 #
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 a
Article 86 g – paragraph 3 a
3a. Whenever relevant, the independent experts shall ask questions to and receive information from the competent authority of the destination Member State. The competent authority shall ensure communication between the independent expert and other authorities in that Member State responsible for any of the areas touched upon by this Directive.
Amendment 212 #
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. Prior to taking a decision, all applicable information and consultation rights have to be met in a way and at such a time that an opinion by the employees 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 223 #
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
Amendment 226 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 2
Article 86l – paragraph 2
Amendment 235 #
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. In the cases referred to in paragraph 2 of this Article, theThe information, consultation and participation of employees in the converted company and their involvement in the definition of such rights shall be the object of an agreement between the employees and the management and 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 239 #
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 b
Article 86l – paragraph 3 – point b
(b) Article 4(1), Article 4(2)(a), (b),(c) (g) and (h), Article 4(3) and Article 4(4);
Amendment 241 #
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 243 #
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 g
Article 86l – paragraph 3 – point g
(g) the Annex, with the exclusion of points (a) of Part 3 of the Annex. and (b) and paragraph 2 of Part 3, instead of which the following will apply as a minimum: The employees of the company, its subsidiaries and establishments and/or the representative body shall have the right to elect and appoint a number of members of the administrative or supervisory body of the converted company equal to two representatives in companies up from 50 employees, one third in companies having from 250 employees to 1000 employees and parity in companies with more than 1000 employees.
Amendment 248 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 3a (new)
Article 86l – paragraph 3a (new)
3a. The agreement reached shall provide for at least the same level of employee participation as operated in the company prior to the conversion as well as at least the level that would apply following the rules in force concerning employee participation, if any, in the destination Member State. This level shall be measured by reference to the proportion of employee representatives amongst the members of the administrative or supervisory organ or their committees or of the management group which covers the profit units of the company, subject to employee representation.
Amendment 251 #
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 255 #
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 261 #
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 c
Article 86l – paragraph 4 – point c
(c) shall ensure that the rules on employee participation that applied prior to the cross-border conversion continue to apply until the date of application of any subsequently agreed rules or in the absence of agreed rules until the application of default rules in accordance with point (ag) of Ppart 3 of the Annexagraph 3.
Amendment 264 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 5
Article 86l – paragraph 5
Amendment 267 #
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 threen years after the cross- border conversion has taken effect, by applying mutatis mutandis the rules laid down in paragraphs 1 to 6.
Amendment 277 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86m – paragraph 2 – point b
Article 86m – paragraph 2 – point b
(b) the reports referred to in Articles 86e, 86f and 86g, as appropriate, and including the employees’ opinion and response of the management referred to in article 86f, (4) and (4a);
Amendment 281 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86m – paragraph 7 – introductory part
Article 86m – paragraph 7 – introductory part
7. Member States shall ensure that the assessment by the competent authority is carried out within one month of the date of receipt of the information concerning the approval of the conversion by the general meeting of the companyreport by the independent expert. It shall have one of the following outcomes:
Amendment 283 #
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: (i) the characteristics of the establishment in the destination Member State, including the intent, the sector, the investment, the net turnover and profit or loss, (ii) the number of employees working in the country of destination, the number of employees working in another country grouped according to the country of work, the number of employees posted in the year prior to the conversion within the meanings of Regulation (EC) No 883/2004 and Directive 96/71/EC, the number of employees working simultaneously in more than one Member State within the meaning of Regulation (EC) No 883/2004, the composition of the balance sheet, (iii) the tax residence, (iv) the assets and their location, (v) the habitual place of work of the employees and of specific groups of employees, (vi) the places where social contributions are due, (vii) and the commercial risks assumed by the converted company in the destination Member State and the departure Member State. , and (viii) 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 288 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 a (new)
Article 1 – paragraph 1 – point 4 a (new)
Directive (EU) 2017/1132
Article 119 – point 2 a (new)
Article 119 – point 2 a (new)
(4a) In article 119, the following point 2 a is inserted: (2a) "information" means the transmission by the employer to the employees and/or employees' representatives at the relevant level, of data which concern the company itself and any of its subsidiaries or establishments situated in another Member State, in order to enable them to acquaint themselves with the subject matter and to examine it. This shall take place at a time, in a manner and with a content which allows the employees and representatives to undertake an in-depth assessment of the possible impact and, where appropriate, prepare consultations with the competent organ of the company;
Amendment 289 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 b (new)
Article 1 – paragraph 1 – point 4 b (new)
Directive (EU) 2017/1132
Article 119 – point 2 b (new)
Article 119 – point 2 b (new)
(4b) In article 119, the following point 2 b is inserted: (2b) “consultation" means the exchange of views and establishment of dialogue between the employees and/or the employees' representatives and the employer, with the employee’s opinion being taken into account in the decision- making process within the company. This shall take place at a time, in a manner and with a content which allows the employees and representatives ,on the basis of information provided, to express an opinion on the measures envisaged. It shall allow to meet with the Executive management and obtain a reasoned and exhaustive response before the final decision is adopted;
Amendment 290 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 c (new)
Article 1 – paragraph 1 – point 4 c (new)
Directive (EU) 2017/1132
Article 119 – point 2 c (new)
Article 119 – point 2 c (new)
(4c) In article 119, the following point 2 c is inserted: (2c) "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's supervisory or administrative organ
Amendment 291 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 d (new)
Article 1 – paragraph 1 – point 4 d (new)
(4d) In article 119, the following point 2 d is inserted: (2d) “head office” means the place where key management, and commercial decisions are made that are necessary for the conduct of the entity’s business as a whole;
Amendment 292 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive (EU) 2017/1132
Article 120 – paragraph 4 – introductory part
Article 120 – paragraph 4 – introductory part
4. Member States shall ensure that this Chapter does not apply to the company or companies wherewhere a company intends to carry out a cross-border merger, the Member States concerned verify that the cross-border merger complies with the conditions laid down in this paragraph. A company shall not be entitled to carry out a cross-border merger in any of the following circumstances:
Amendment 293 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive (EU) 2017/1132
Article 120 – paragraph 4 – point e a (new)
Article 120 – paragraph 4 – point e a (new)
(ea) a company is under investigation, is being prosecuted or has been convicted in the last 3years for infringements of employment legislation or workers’ rights, social or tax fraud, tax evasion, tax avoidance or money laundering or any other financial crime;
Amendment 294 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive (EU) 2017/1132
Article 120 – paragraph 4 – point e b (new)
Article 120 – paragraph 4 – point e b (new)
(eb) a company has a backlog in tax or social security payments;
Amendment 295 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive (EU) 2017/1132
Article 120 – paragraph 4 – point e c (new)
Article 120 – paragraph 4 – point e c (new)
(ec) the company is under investigation, is being prosecuted or has been convicted in the last 3 years for violations of fundamental or human rights;
Amendment 299 #
Proposal for a directive
Article 1 – paragraph 1 – point 7 – point b a (new)
Article 1 – paragraph 1 – point 7 – point b a (new)
Directive (EU) 2017/1132
Article 122 – paragraph 7 – point o (new)
Article 122 – paragraph 7 – point o (new)
(ba) the following points (o) and (p) are added: (o) detailed information on the head office; (p) the reasons for the merger;
Amendment 300 #
Proposal for a directive
Article 1 – paragraph 1 – point 7 – point b b (new)
Article 1 – paragraph 1 – point 7 – point b b (new)
Directive (EU) 2017/1132
Article 122 – paragraph 7 – point q (new)
Article 122 – paragraph 7 – point q (new)
(bb) the following points (q) to (y) are added: (q) the name of the ultimate undertaking and, where applicable, the list of all its subsidiaries, a brief description of the nature of their activities and their respective geographic allocation; (r) the number of employees on a full-time equivalent basis; (s) fixed assets other than cash or cash equivalents; the amount of the net turnover, including a distinction between the turnover made with related parties and the turnover made with unrelated parties; (t) the amount of profit or loss before income tax; (u) the amount of income tax accrued (current year)which is the current tax expense recognised on taxable profits or losses of the financial year by undertakings and branches resident for tax purposes in the relevant tax jurisdiction; (v) the amount of income tax paid which is the amount of income tax paid during the relevant financial year by undertakings and branches resident for tax purposes in the relevant tax jurisdiction; (w) the amount of accumulated earnings; stated capital; (x) details of public subsidies received and any donations made to politicians, political organisations or political foundations; (y) whether undertakings, subsidiaries or branches benefit from preferential tax treatment, from a patent box or equivalent regimes.
Amendment 301 #
Proposal for a directive
Article 1 – paragraph 1 – point 7 – point c
Article 1 – paragraph 1 – point 7 – point c
Directive (EU) 2017/1132
Article 122 – second subparagraph
Article 122 – second subparagraph
In addition to the official language of each Member State of the merging companies, Member States shall allow the merging companies to use a language customary in the sphere of international business and finance to draw up the common draft terms of a cross-border merger 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.; Members, employees or creditors shall have the possibility to comment on these draft terms. The comments shall be included in the final report and be made public.
Amendment 310 #
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 themselves and to the European Works Council, where applicable. 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 319 #
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, including the conditions laid down in law and collective agreements, and in the locations of the companies’ places of business;
Amendment 324 #
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 a (new)
Article 124a – paragraph 2 – point d a (new)
(da) the rights and remedies available to members opposing the conversion in accordance with Article 126a;
Amendment 325 #
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 b (new)
Article 124a – paragraph 2 – point d b (new)
(db) 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 328 #
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 the representatives of the employees of each of the merging companies or, where there are no such representatives, to the employees themselves, and to the European Works Council, where applicable, 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 329 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 3 a
Article 124a – paragraph 3 a
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 330 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 4 a
Article 124a – paragraph 4 a
4a. The Executive management or the administrative organ of the company which intends to carry out the cross- border merger, shall provide a motivated and written response to the employee opinion before the date of the general meeting referred to in Article 126.
Amendment 331 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 5
Article 124a – paragraph 5
Amendment 336 #
Proposal for a directive
Article 1 – paragraph 1 – point 12 – point a
Article 1 – paragraph 1 – point 12 – point a
Directive (EU) 2017/1132
Article 126 – paragraph 1
Article 126 – paragraph 1
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.; Prior to taking a decision, all applicable information and consultation rights have to be met in a way and at such a time that an opinion by the employees can be taken into consideration.
Amendment 344 #
Proposal for a directive
Article 1 – paragraph 1 – point 18
Article 1 – paragraph 1 – point 18
Directive (EU) 2017/1132
Article 133
Article 133
(18) Article 133 is amended as follows: replaced by the following: “1. The information, consultation and participation of employees in the converted company and their involvement in the definition of such rights shall be the object of an agreement between the employees and the management and shall be regulated by the Member States, mutatis mutandis and subject to paragraphs 2 to 5 of this Article, in accordance with the principles and procedures laid down in Article 12(2) and (4) of Regulation (EC) No2157/2001and the following provisions of Directive 2001/86/EC: (a) Article 3(1),(2)(a)(i), 2(b) and (3), the first indent of the first subparagraph of Article3(4), the second subparagraph of Article 3(4), Article 3(5), the third subparagraph of Article 3(6) and Article3(7); (b) Article 4(1),Article 4(2)(a),(b) (c)(g) and (h),Article 4(3) and Article 4(4); (c) Article 5; (d) Article 6; (e) Article 7(1); (f) Articles 8, 9, 10 and 12; (g) the Annex, with the exclusion of points (a) and (b) and paragraph 2 of Part 3, instead of which the following will apply as a minimum: The employees of the Company, its subsidiaries and establishments and/or the representative body shall have the right to elect and appoint a number of members of the administrative or supervisory body of the converted company equal to two representatives in companies up from 50employees, one third in companies having from 250 employees to 1000 employees and parity in companies with more than 1000 employees. 2. The agreement reached shall provide for at least the same level of employee participation as operated in the company prior to the conversion as well as at least the level that would apply following the rules in force concerning employee participation, if any, in the destination Member State. This level shall be measured by reference to the proportion of employee representatives amongst the members of the administrative or supervisory organ or their committees or of the management group which covers the profit units of the company, subject to employee representation. 3. When regulating the principles and procedures referred to in paragraph 1, Member States shall ensure that the rules on employee participation that applied prior to the cross-border conversion continue to apply until the date of application of any subsequently agreed rules or in the absence of agreed rules until the application of default rules in accordance with point (g) of paragraph 1. 4. When regulating the principles and procedures referred to in paragraph 3, Member States shall ensure that the rules on employee participation that applied prior to the cross-border conversion continue to apply until the date of application of any subsequently agreed rules or in the absence of agreed rules until the application of default rules in accordance with point (g) of paragraph 1. 5. Where the company carrying out the conversion is operating under an employee participation system, that company shall be obliged to take a legal form allowing for the exercise of participation rights. 6. 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 three ten years after the cross-border conversion has taken effect, by applying mutatis mutandis the rules laid down in paragraphs 1 to 4. 7. A company shall communicate to its employees the outcome of the negotiations concerning employee participation without undue delay.
Amendment 354 #
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) "information" means the transmission by the employer to the employees and/or employees' representatives at the relevant level, of data which concern the company itself and any of its subsidiaries or establishments situated in another Member State, in order to enable them to acquaint themselves with the subject matter and to examine it. This shall take place at a time, in a manner and with a content which allows the employees and representatives to undertake an in-depth assessment of the possible impact and, where appropriate, prepare consultations with the competent organ of the company;
Amendment 356 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160b – point 3 b (new)
Article 160b – point 3 b (new)
(3b) "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's supervisory or administrative organ;
Amendment 357 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160b – point 3 c (new)
Article 160b – point 3 c (new)
(3c) “consultation" means the exchange of views and establishment of dialogue between the employees and/or the employees' representatives and the employer, with the employee’s opinion being taken into account in the decision- making process within the company. This shall take place at a time, in a manner and with a content which allows the employees and representatives, on the basis of information provided, to express an opinion on the measures envisaged. It shall allow to meet with the Executive management and obtain a reasoned and exhaustive response before the final decision is adopted;
Amendment 358 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160b – point 3 d (new)
Article 160b – point 3 d (new)
(3d) “head office" means the place where key management, and commercial decisions are made that are necessary for the conduct of the entity’s business as a whole;
Amendment 360 #
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) the company is under investigation, is being prosecuted or has been convicted in the last 3 years for infringements of employment legislation or workers’ rights, social or tax fraud, tax evasion, tax avoidance or money laundering or any other financial crime;
Amendment 362 #
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 b (new)
Article 160d – paragraph 2 – point e b (new)
(eb) the company has a backlog in tax or social security payments;
Amendment 363 #
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 c (new)
Article 160d – paragraph 2 – point e c (new)
(ec) the company is under investigation, is being prosecuted or has been convicted in the last 3 years for violations of fundamental or human rights;
Amendment 369 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160e – paragraph 1 – point d a (new)
Article 160e – paragraph 1 – point d a (new)
(da) detailed information on the head office;
Amendment 370 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160 – paragraph 1 – point e
Article 160 – paragraph 1 – point e
(e) the likely repercussions of the cross-border division on employment, wage development and company level social dialogue including board level representation of employee representatives;
Amendment 372 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160e – paragraph 4
Article 160e – paragraph 4
4. In addition to the official languages of the Member States of the recipient companies and the one being divided, Member States shall allow the company to use a language customary in the sphere of international business and finance in order to draw up the draft terms of cross-border division and all other related documents. Member States shall specify which language will prevail in case of discrepancies among different linguistic versions of those documents. Members, employees or creditors shall have the possibility to comment on these draft terms. The comments shall be included in the final report and be made public.
Amendment 379 #
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 representatives of the employees of the company being divided or, where there are no such representatives, to the employees themselves, and to the European Works Council, where applicable.
Amendment 386 #
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, including the conditions laid down in law and collective agreements, and the locations of the companies’ places of business;
Amendment 388 #
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 160j and on the possible options for such arrangements;
Amendment 394 #
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 representatives of the employees of the company being divided or, where there are no such representatives, to the employees themselves, and to the European Works Council, where applicable, 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 395 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
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 396 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 4 a ( new)
Article 160h – paragraph 4 a ( new)
4a. The Executive management or the administrative organ of the company which intends to carry out the cross- border conversion, shall provide a motivated and written response to the employee opinion before the date of the general meeting referred to in Article 160k.
Amendment 397 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 5
Article 160h – paragraph 5
Amendment 403 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160i – paragraph 3 – point f
Article 160i – paragraph 3 – point f
(f) a description of all factual elements necessary for the competent authority designated in accordance with Article 160o(1), to carry out an in-depth assessment to determine whether the intended cross-border division constitutes an artificial arrangement in accordance with Article 160p, at a minimum the following: (i) the characteristics of the establishments in the Member States concerned of the recipient companies, destination Member State, including the intent, the sector, the investment, the net turnover and profit or loss, (ii) the number of employees, the composition of the balance sheet, working in the country of destination, the number of employees working in another country grouped according to the country of work, the number of employees posted or sent in the year prior to the conversion within the meanings of Regulation (EC) No883/2004 and Directive96/71/EC, the number of employees working simultaneously in more than one Member State within the meaning of Regulation (EC) No883/2004, (iii) the tax residence, (iv) the assets and their location, (v) the habitual place of work of the employees and of specific groups of employees, (vi) the places where social contributions are due and; (vii) the commercial risks assumed by the company being divided in the Member States of the recipient companienverted company in the destination Member State and the departure Member State (viii) 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 406 #
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. Prior to taking a decision, all applicable information and consultation rights have to be met in a way and at such a time that an opinion by the employees 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 412 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160n – paragraph 1
Article 160n – paragraph 1
Amendment 414 #
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
Amendment 418 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160n – paragraph 3
Article 160n – paragraph 3
Amendment 421 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160n – paragraph 3 – point b
Article 160n – paragraph 3 – point b
(b) Article 4(1), Article 4(2)(a), (b), (c), (g) and (h), Article 4(3) and Article 4(4);
Amendment 423 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160n – paragraph 3 – point e
Article 160n – paragraph 3 – point e
(e) the first subparagraph of Article 7(1);
Amendment 424 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160n – paragraph 3 – point g
Article 160n – paragraph 3 – point g
(g) the Annex, with the exclusion of points (a) of part 3 of the Annexen (b) and paragraph 2 of part 3, instead of which the following will apply as a minimum: The employees of the company, its subsidiaries and establishments and/or the representative body shall have the right to elect and appoint a number of members of the administrative or supervisory body of the converted company equal to two representatives in companies up from 50 employees, one third in companies having from 250 employees to 1000 employees and parity in companies with more than 1000 employees.
Amendment 427 #
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
Article 160n – paragraph 3 a
3a. The agreement reached shall provide for at least the same level of employee participation as operated in the company prior to the division as well as at least the level that would apply following the rules in force concerning employee participation, if any, in the destination Member State. This level shall be measured by reference to the proportion of employee representatives amongst the members of the administrative or supervisory organ or their committees or of the management group which covers the profit units of the company, subject to employee representation.
Amendment 431 #
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 a
Article 160n – paragraph 4 – point a
Amendment 434 #
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 437 #
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 c
Article 160n – paragraph 4 – point c
(c) shall ensure that the rules on participation that applied prior to the cross- border division continue to apply until the date of application of any subsequently agreed rules or in the absence of agreed rules until the application of default rules in accordance with point (ag) of Part 3 of the Annexparagraph 3.
Amendment 441 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160n – paragraph 5
Article 160n – paragraph 5
Amendment 446 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160o – paragraph 2 – point b
Article 160o – paragraph 2 – point b
(b) the reports referred to in Articles 160g, 160h and 160i, as appropriate, and including the employees’ opinion and response of the management;
Amendment 448 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160p – paragraph 1
Article 160p – paragraph 1
1. Member States shall ensure in order to assess whether the cross-border division constitutes an artificial arrangement within the meaning of Article 160d(3) of this Directive, the competent authority of the company being divided shall carry out an in-depth assessment of all relevant facts and circumstances and shall take into account at a minimum the following: (i) the characteristics of the establishment in the destination Member States concerned, including the intent, the sector, the investment, the net turnover and profit or loss, (ii) the number of employees, the working in the country of destination, the number of employees working in another country grouped according to the country of work, the number of employees posted in the year prior to the conversion within the meanings of Regulation (EC) No 883/2004andDirective 96/71/EC, the number of employees working simultaneously in more than one Member State within the meaning of Regulation (EC) No 883/2004,thecomposition of the balance sheet, (iii) the tax residence, (iv) the assets and their location, (v) the habitual place of work of the employees and of specific groups of employees, (vi) the places where social contributions are due, (vii) and the commercial risks assumed by the company being divided in the Member State of that company and Mnverted company in the destination Member State and the departure Member State, and (viii) the composition of the balance sheet and of the financial statement in the destination member Sstates of recipient companie and in all member States in which the company operates in the last two fiscal years.