Activities of Jiří MAŠTÁLKA related to 2018/0114(COD)
Shadow reports (1)
REPORT 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 PDF (1 MB) DOC (472 KB)
Amendments (97)
Amendment 135 #
Proposal for a directive
Recital 1
Recital 1
(1) The Directive (EU) 2017/1132 of the European Parliament and of the Council41 regulates cross-border mergers of limited liability companies. These rules represent a significant milestone in improving the functioning of the Single Market for companies and firms and to exercise the freedom of establishment on the one hand and on the protection of key stakeholders on the other. However, evaluation of these rules shows that there is a need for modifications in cross-border merger rules. Furthermore, it is appropriate to provide for rules regulating cross-border conversions and divisions. _________________ 41 Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law (codification) (OJ L 169, 30.6.2017, p. 46).
Amendment 137 #
Proposal for a directive
Recital 2
Recital 2
(2) Freedom of establishment is one of the fundamental principles of Union law. Under the second paragraph of Article 49 of the Treaty on the Functioning of the European Union (‘TFEU’), when read in conjunction with Article 54 of the TFEU, the freedom of establishment for companies or firms includes, inter alia, the right to form and manage such companies or firms under the conditions laid down by the legislation of the Member State of establishment. This has been interpreted by the Court of Justice of the European Union extensively beyond the actual meaning of the wording as encompassing the right of a company or firm formed in accordance with the legislation of a Member State to convert itself into a company or firm governed by the law of another Member State, provided that the conditions laid down by the legislation of that other Member State are satisfied and, in particular, that the test adopted by the latter Member State to determine the connection of a company or firm to its national legal order is satisfied.
Amendment 144 #
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 social protection embedded in Art. 3 (3) TEU, Art. 9 and 151 TFEU, the European Pillar of Social Rights and the EU Charter of Fundamental Rights (in particular the protection of workers), the protection of creditors and the protection of shareholders. 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 152 #
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 objectives 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 154 #
Proposal for a directive
Recital 6 b (new)
Recital 6 b (new)
(6b) The definition of ‘consultation’ needs to take account of the goal of allowing for the expression of 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 appropriate
Amendment 156 #
Proposal for a directive
Recital 6 c (new)
Recital 6 c (new)
(6c) One of the purposes 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 158 #
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 freedTherefore it is a fundamental principle and stated aim of this Directive to secure employees' participation rights. This means, that in companies resulting from, the fight against abuses must be interpreted strictly and be basecross border conversion, at least the same level of all elements of employee participation rights should con an individual assessment of all relevant circumstancetinue to apply. The European Court of Justice allows in its case law to set up regulation for the protection of stakeholder interests. 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 171 #
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 pursuant to Article 861 and on the possible options for such arrangements, whether there would be any material change in the employment relationships and on the application on 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 180 #
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 185 #
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 fiunding an amicable solution reconciling the right of the company to carry out a cross-border conversion with thamental principle to secure employees' rights of participation rights. 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 threen years.
Amendment 249 #
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 interests of the members, its employees and other stakeholders, with the objective of sustainable creation of value.
Amendment 252 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 – introductory part
Article 1 – paragraph 1 – point 3 – introductory part
Directive (EU) 2017/1132
Article 86 (new)
Article 86 (new)
(3) in Title II, the following Chapter -I is inserted: New In Title II of the directive before the beginning of Chapter I in Title II the following provision has to be introduced as a new Art. 86a: (1) to safeguard sustainable stakeholder protection, cross-border restructuring measures beyond Art. 86b (2), Art. 119(2) and Art.160b (3) are not allowed. (2) as far as in the relevant company subject to Title II a Company Works Council according to Directive 2009/38/EC does not exist, the management is obliged it the prerequisites of Art. 1(2) Directive 2009/38/EC are fulfilled to initiate negotiations according to Art. 4 and Art. 5Directive 2009/38/EC. The latter directive is applicable in these cases.
Amendment 256 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 a – paragraph 3
Article 86 a – paragraph 3
Amendment 258 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 Directive (EU) 2017/1132
Article 1 – paragraph 1 – point 3 Directive (EU) 2017/1132
(6a) new (7) "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´s supervisory or administrative organ.
Amendment 265 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 c – paragraph 1
Article 86 c – paragraph 1
1. Member States shall ensure that where a company intends to carry out a cross-border conversion, the court, notary or other authority competent of the departure and destination Member States verify that the cross-border conversion complies with the conditions laid down in paragraph 2.
Amendment 266 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 Directive (EU) 2017/1132
Article 1 – paragraph 1 – point 3 Directive (EU) 2017/1132
(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 271 #
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 c a (new)
Article 86 c – paragraph 2 – point c a (new)
(ca) the company is subject to proceedings related to not paying social security contributions and/or income taxes and/or infringements of workers´ rights or there is a of suspicion that such fraud or infringement of workers´ rights have taken place
Amendment 274 #
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 or administrative actions or criminal sanctions and decisions have been taken involving fraudulent practices which are directly relevant to the companies´ competence or reliability
Amendment 281 #
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 constitutCompanies 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 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, an artificial arrangement aimed at obtaining undue tax advantages or at unduly prejudicing the legal or contractual rights of employees, creditors or minority members. relevant number of permanent employed workers, and a management body that is materially equipped to negotiate business with third parties; (c) The head office of the converted company shall be located of the destination Member State within 5 months from the date on which the cross-border conversion takes effect according to Article 86r;
Amendment 291 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
1. The management or administrative organ of the company, including employee board level representatives, 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 292 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 Directive (EU) 2017/1132
Article 1 – paragraph 1 – point 3 Directive (EU) 2017/1132
(a) the legal form, name and the place of registered office of the company in the departure Member State;
Amendment 296 #
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 300 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 Directive (EU) 2017/1132
Article 1 – paragraph 1 – point 3 Directive (EU) 2017/1132
(h) any special advantages, salaries and bonuses, especially in relation to the conversion granted to members of the administrative, management, supervisory or controlling organ of the converted company;
Amendment 302 #
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 i a (new)
Article 86 d – paragraph 1 – point i a (new)
(ia) concrete description and likely changes of the organisation of the workers as a result of the conversion, including figures of the workers and posts including its subsidiaries and likely changes of the organisation of the workers as a result of the conversion, including figures of the workers and posts including its subsidiaries;
Amendment 325 #
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 reasons of the conversion
Amendment 339 #
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 the trade unions in the company.
Amendment 345 #
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 Council, where applicable, the national employees´ representative bodies and the trade unions represented in the company shall have appropriate resources to conduct an analysis of the report;
Amendment 347 #
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
Article 86 f – paragraph 4
Amendment 367 #
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 of the conversion
Amendment 369 #
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 372 #
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 laid down by law and collective agreements and transnational company agreements (TCAs) and in the location of the company’´s places of business;,
Amendment 375 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive on cross border mergers
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, branches or controlled undertaking according to Article 3 of Directive2009/38/EC of the company.
Amendment 379 #
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 381 #
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´s strategic plan
Amendment 383 #
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 385 #
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 Art. 86j
Amendment 390 #
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 of the company and 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 393 #
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 398 #
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 response on the opinion provided by employee before the date of the general meeting referred to in Article 86i .
Amendment 410 #
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 expertthe competent authority
Amendment 416 #
Member States shall ensure that the company carrying out the cross-border conversion applies not less than twofour months before the date of the general meeting referred to in Article 86i to the competent authority designated in accordance with Article 86m(1), to appoint an expert to examine and assess the draft terms of the cross-border conversion and the reports referred to in Articles 86e and 86f, subject to the proviso set out in paragraph 6 of this Article.
Amendment 437 #
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 a
Article 86 g – paragraph 3 – point a
(a) a detailed assessment of the accuracy of the reports andboth the draft terms and the reports as well as the information submitted by the company carrying out the cross-border conversion;
Amendment 441 #
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 452 #
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 454 #
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 a (new)
Article 86 g – paragraph 6 a (new)
6a. The procedure and the decision to issue a pre-conversion certificate by the competent authorities of the departure state or any approval of the destination Member State does not preclude any others investigations, procedures or decisions of other competent authorities on their fields of competence;
Amendment 458 #
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 of the company or trade unions which have members in 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 464 #
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 485 #
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 (new)
Article 86 l – paragraph 1 (new)
1a. It is a fundamental principle and stated aim of this Article to secure employees´ participation rights. Therefore, in the company resulting from the cross border restructuring, at least the same level of all elements of employee participation rights should continue to apply.
Amendment 487 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l– paragraph 2
Article 86 l– paragraph 2
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 488 #
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
Article 86 l– paragraph 3
3. The 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 492 #
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 495 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 – paragraph 3 – point g
Article 86 – paragraph 3 – point g
(g) point (a) of Part 3 of the Annex. In the interest of the enterprise an agreement must be sought with the workforce as represented by recognised trade unions (a) on the establishment of a European works council and (b) workers board level representation. These negotiations must lead to an agreement before the merger, transfer of seat, conversion or division or other company law instrument will take effect. In the case that the negotiations do not reach an agreement, the subsidiary requirements apply. Subsidiary requirements (a) for the establishment of an EWC the Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees applies. (b) for the establishment of workers representation in the company boardrooms the following proportion of workers representatives in company boardrooms or supervisory boards applies related to the number of workers: 2 representatives in companies up from 50 workers, one third up from 250 workers and half up from 1000 workers.
Amendment 499 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l – paragraph 4
Article 86 l – paragraph 4
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 (a) of Part 3 of the Annex.
Amendment 500 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l – paragraph 4 – point a
Article 86 l – paragraph 4 – point a
Amendment 502 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l – paragraph 4 – point a
Article 86 l – paragraph 4 – point a
Amendment 504 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l – paragraph 4 – point c
Article 86 l – paragraph 4 – point c
Amendment 508 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l – paragraph 7
Article 86 l – 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 517 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 m – paragraph 4
Article 86 m – paragraph 4
4. In respect of compliance with the rules concerning employee participation as laid down in Article 86l, the departure Member State shall verify that the draft terms and reports of cross-border conversion, referred to in paragraph 2 of this Article, include information on the procedures by which the relevant arrangements are determined and on the possible options for such arrangements.
Amendment 518 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 m – paragraph 5 – point a a (new)
Article 86 m – paragraph 5 – point a a (new)
(aa) the opinion of the employees representation’s opinion according to Article 86f (4)
Amendment 520 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 m – paragraph 5 – point b a (new)
Article 86 m – paragraph 5 – point b a (new)
(ba) the opinion of the employees representation’s opinion according to Article 86f (4)
Amendment 523 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 m – paragraph 7 – point a
Article 86 m – 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 524 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 m – paragraph 7 – point a (new)
Article 86 m – paragraph 7 – point a (new)
(aa) Member States shall ensure, in accordance with Article 6of Directive 2002/14/EC that employees´ representatives enjoy adequate protection to enable them to perform properly their duties.
Amendment 525 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 m – paragraph 8 a (new)
Article 86 m – paragraph 8 a (new)
(ca) Member States shall provide for appropriate measures to support the implementation of this rules, to provide for the necessary procedures in case of non-compliance, provide for the necessary instruments to enforce the obligations of the converting company, and establish a set of administrative and judicial procedures in case of breach of the rules of this Article. Establishing prima facie evidence is applied in case of non-respect of the workers´ representative rights.
Amendment 526 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 m – paragraph 8 b (new)
Article 86 m – paragraph 8 b (new)
(cb) If the threshold according to Article 86l(3), para 2, of the departure Member State is exceeded, new negotiations needs to be initiated following the provisions of this Article. In deviation of Article 86l(5) the standard rules refer to the level of employee participation that would be foreseen for the country of origin above the threshold if the company had not undergone a cross-border conversion.
Amendment 530 #
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 and receive information to the competent authority of the destination Member State
Amendment 549 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 t – title
Article 86 t – title
Amendment 551 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 – point b – point i (new)
Article 1 – paragraph 1 – point 4 – point b – point i (new)
Directive (EU) 2017/1132
Article 119 – paragraph 2 a (new)
Article 119 – paragraph 2 a (new)
(i) In article 119, the new paragraph is inserted: "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´s supervisory od administrative organ;
Amendment 559 #
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 a
Article 120 – paragraph 4 – point a
(a) proceedings have been instituted for the winding-up, liquidation, or insolvency of that company or companies;genuine suspicion of social fraud or infringements of workers’ rights
Amendment 561 #
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) disciplinary or administrative actions or criminal sanctions and decisions have been taken involving fraudulent practices which are directly relevant to the companies´ competence or reliability
Amendment 571 #
(a) point (i) is replaced byIn Article 122, 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 a cross-border merger. The common draft terms of a cross-border merger shall include at least the following information:
Amendment 593 #
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 themselvesEuropean 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 599 #
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 609 #
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 611 #
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 laid down by law, collective agreements and Transnational Company Agreements (TCAs) and in the locations of the companies’ places of business;
Amendment 620 #
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, 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 632 #
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.; Before a decision is taken, any preceding applicable to information and consultation rights have to be met in such a way and such a time that an opinion by the employee representatives can be taken into consideration
Amendment 650 #
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
Article 133
Amendment 658 #
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)
(3 a) "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´s supervisory or administrative organ
Amendment 664 #
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 social fraud or infringements of workers’ rights
Amendment 668 #
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)
(e a) disciplinary or administrative actions or criminal sanctions and decisions have been taken involving fraudulent practices which are directly relevant to the companies´ competence or reliability
Amendment 677 #
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 695 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160g – paragraph 1
Article 160g – paragraph 1
1. The management or administrative organ, including employee board level representatives, of the company being divided shall draw up a report explaining and justifying the legal and economic aspects of the cross-border division.
Amendment 705 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
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 710 #
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 724 #
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 726 #
Proposal for a directive
Article 1 – paragraph 1 – point 20 Directive (EU) 2017/1132
Article 1 – paragraph 1 – point 20 Directive (EU) 2017/1132
(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 728 #
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)
(d a) 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 731 #
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)
(d b) the implications of the cross- border conversion on the future business of the company and on the management´s strategic plan
Amendment 733 #
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)
(d c) the implications of the cross- border conversions for members
Amendment 734 #
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)
(d d) the rights and remedies available to members opposing the conversion in accordance with Article 160l
Amendment 738 #
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 769 #
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 780 #
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 a. 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 783 #
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 4, or where the national law applicable to each of the recipient companies does not:
Amendment 788 #
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) point (a) of part 3 of the Annex. In the cases referred to in paragraph 2 the national employee participation rules, which have been in force in the company which has been divided, are applicable as standard rules automatically, if the relevant thresholds of these rules are met within a time period of ten years after the conversion
Amendment 811 #
Proposal for a directive
Article 1 a (new)
Article 1 a (new)
Amendment 812 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. The Commission shall, no later than fivthree years after [OP please insert the date of the end of the transposition period of this Directive], carry out an evaluation of this Directive and present a Report on the findings to the European Parliament, the Council and the European Economic and Social Committee accompanied, where appropriate, by a legislative proposal. Member States shall provide the Commission with the information necessary for the preparation of that report, in particular by providing data on the number of cross-border conversions, mergers and divisions, their duration and related costs.