134 Amendments of Andreas SCHWAB related to 2018/0114(COD)
Amendment 109 #
(7) The right to convert an existing company formed in a Member State into a company governed by another Member State may in certain circumstances be used for abusive purposes such as for the circumvention of labour standards, social security payments, tax obligations, creditors', minority shareholders' rights or rules on employees participation. In order to combat such possible abuses, a general principle of Union law, Member States are required to ensure that companies do not use the cross-border conversion procedure in order to create artificial arrangements aimed at obtaining undue tax advantages or at unduly prejudicing the legal or contractual rights of employees, creditors or members. In so far as it constitutes a derogation from a fundamental freedom, the fight against abuses must be interpreted strictly and be based on With the aim of preventing the possibility of such abuses in the field of taxation, and taking into account ECJ case-law on freedom of establishment and the OECD BEPS recommendations, legislation has already been adopted at EU level to combat tax avoidance practices, such as Directive (EU) 2016/1164 of 12 June 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market. In the event of cross- border conversion, Member States must ensure that a company individual assessment of all relevant circumstances. A procedural and substantive framework which describes the margin of discretion and allows for the diversity of approach by Member States whilst at the same time setting out the requirements to streamline the actions to be taken by national authorities to fight abuses in conformity with Union law should be laid downtending to undertake such a conversion complies with these rules. In addition, in order to ensure that the legal or contractual rights of employees, creditors or members are not undermined, further appropriate safeguards are necessary.
Amendment 118 #
Proposal for a directive
Recital 13
Recital 13
(13) In order to assess the planned cross-border conversion, the report of an independent expert should be required, reviewing the accuracy of the information contained in the draft terms of conversion and in the reports addressed to the members and employees and to provid. In order to assess the factual elements necessary to assess whether the proposed conversion constitutes an artificial arrangementcuracy of the information contained in the draft terms of conversion and in the report addressed to the members and employees, an independent expert report should be required to be prepared in order to assess the proposed cross-border conversion. In order to secure the independence of the expert, the expert should be appointed by the competent authority, following an application by the company. In this context, the expert report should present all relevant information to enable the competent authority in the departure Member State to take an informed decision as to whether or not to issue the pre- conversion certificate. To this end, the expert should be able to obtain all the relevant company information and documents and carry out all necessary investigations in order to gather all the evidence required. The expert should use information, in particular net turnover and profit or loss, number of employees and the composition of balance sheet collected by the company in view of the preparation of financial statements in accordance with Union law and the law of Member States. However, in order to protect any confidential information, including business secrets of the company, such information should not form part of the expert’s final report which itself would be publically available.
Amendment 124 #
Proposal for a directive
Recital 16
Recital 16
(16) It is appropriate that those members who held voting rights and who did not vohave explicitly objected to approve the draft terms of conversion and those members without voting rights, who could not present their position, should be afforded the right to exit the company. Those members should be able to leave the company and receive cash compensation for their shares equivalent to the value of their shares. Furthermore, theymembers who have refused the offer of cash compensation because they do not consider the compensation to be adequate should have a right to challenge the calculation and adequacy of that cash compensation offered before a court.
Amendment 130 #
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 participationexceeds 500.
Amendment 133 #
Proposal for a directive
Recital 22
Recital 22
(22) The issue of the pre-conversion certificate by the departure Member State should be scrutinised to ensure the legality of the cross-border conversion of the company. The competent authority of the departure Member State should decide on the issue of the pre-conversion certificate within one month of the application by the company, unless it has serious concerns as to the existence of an artificial arrangement aimed at obtaining undue tax advantages or unduly prejudicing the legal or contractual rights of employees, creditors or members. In such a case, the competent authority should carry out an in-depth assessment. However, this in- depth assessment should not be carried out systematically, but it should be conducted on a case-by-case basis, where there are serious concerns as to the existence of an artificial arrangement. For their assessment, competent authorities should take into account at least a number of factors laid down in this Directive which however should be only considered as indicative factors in the overall assessment and not be considered in isolation. In order not to burden companies with an overly lengthy procedure, this in-depth assessment should in any event be concluded within two months of informing the company that the in-depth assessment will be carried out.
Amendment 140 #
(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 oblige the management or administrative organs of the merging companies to prepare a separate reports detailing the legal and economic aspects of the cross-border merger for both members and for employees. The obligation on the management or administrative organ of the company to prepare the report for the members may however be waived, where those members are already informed about legal and economic aspects of the proposed merger. In this case the report should be limited to the information relevant to the employees. However, the report prepared for employees may only be waived where the merging companies and their subsidiaries do not have any employees other than those who form part of the management or administrative organ.
Amendment 149 #
Proposal for a directive
Recital 32
Recital 32
(32) In order to ensure that members of the companies participating in the cross- border merger are treated equally, it is appropriate that members who held voting rights and who did not voy being acquired who have explicitly objected to approve the common draft terms of merger or those members without voting rights, who could not present their position, should bare afforded the right to exit the company (sic - translator's note). Those members should be able to leave the company and receive cash compensation for their shares equivalent to the value of their shares. Furthermore, theymembers who have refused the offer of cash compensation because they do not consider the compensation to be adequate should have a right to challenge the calculation and adequacy of that cash compensation offered before a court.
Amendment 158 #
Proposal for a directive
Recital 40
Recital 40
(40) The right of companies to carry out a cross-border division maycould 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 must be based on an individual assessment of all relevant circumstances. A procedural and substantive framework which describes the margin of discretion and allows for the diversity of approaches 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 downWith the aim of preventing the possibility of such abuses in the field of taxation, and taking into account ECJ case-law on freedom of establishment and the OECD BEPS recommendations, legislation has already been adopted at EU level to combat tax avoidance practices, such as Directive (EU) 2016/1164 of 12 June 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market. In the event of cross- border divisions, Member States must ensure that a company intending to divide in this way complies with these rules. In addition, in order to ensure that the legal or contractual rights of employees, creditors or members are not undermined, further appropriate safeguards are necessary.
Amendment 169 #
Proposal for a directive
Recital 45
Recital 45
(45) In order to ensure the accuracy of the information contained in the draft terms of division and in the reports addressed to the members and employees and to provide factual elements necessary to assess whether the proposed division constitutes an artificial arrangement which could not be authorised, an independent expert report to assess the division plan should be required to be prepared, it is appropriate to require the report of an independent expert to evaluate the draft terms of division. In order to secure the independence of the expert, the expert should be appointed by the competent authority, following an application by the company. In this context, the expert report should present all relevant information to enable the competent authority of the Member State of the company being divided to take an informed decision as to whether or not to issue the pre-division certificate. To this end, the expert should be able to obtain all the relevant company information and documents and carry out all necessary investigations in order to gather all the evidence required. The expert should use information, in particular net turnover and profit or loss, number of employees and the composition of balance sheet collected by the company in view of the preparation of financial statements in accordance with Union law and the law of Member States. However, in order to protect any confidential information, including business secrets of the company, such information should not form part of the expert’s final report which itself would be publically available.
Amendment 175 #
Proposal for a directive
Recital 48
Recital 48
(48) It is appropriate that members who held voting rights and who did not vohave explicitly objected to approve the draft terms of the cross- border division and those members without voting rights, who could not present their position, should be afforded the right to exit the company. Those members should be able to leave the company and receive cash compensation for their shares equivalent to the value of their shares. Furthermore, they should have a right to challenge the calculation and adequacy of that cash compensation offered and also the share exchange ratio where they wish to remain members of any of the recipient companiesMoreover, members who have refused the offer of cash compensation because they do not consider the compensation to be adequate should have a right to challenge the calculation and adequacy of that cash compensation before a court. As part of those proceedings, the court should be able to order any company involved in the cross- border division either to pay additional cash compensation or to issue additional shares.
Amendment 181 #
Proposal for a directive
Recital 52
Recital 52
(52) The issue of the pre-division certificate by the Member State of the company being divided should be scrutinised to ensure the legality of the cross-border division. The competent authority should decide whether to issue a pre-division certificate within one month of the application by the company has been submitted, unless it has serious concerns as to the existence of an artificial arrangement aimed at obtaining undue tax advantages or at unduly prejudicing the legal or contractual rights of employees, creditors or members. In such a case, the competent authority should carry out an in-depth assessment. However, this in-depth assessment should not be carried out systematically but it should be conducted on a case-by-case basis where there are serious concerns as to the existence of an artificial arrangement. For their assessment, competent authorities should take into account at least a number of factors laid down in this Directive which however should be only considered as indicative factors in the overall assessment and not be considered in isolation. In order not to burden companies with an overly lengthy procedure, this in-depth assessment should in any event be concluded within two months informing the company that the in-depth assessment will be carried out.
Amendment 189 #
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 participationexceeds 500.
Amendment 201 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 c
Article 86 c
Amendment 202 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 c a (new)
Article 86 c a (new)
Article 86ca Compliance with rules against tax avoidance practices Member States shall ensure that a company that intends to make a cross- border conversion complies with the national rules implementing Directive (EU) No 2016/1164.
Amendment 221 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 e – title
Article 86 e – title
Article 86e Report of the management or administrative organ to the members and employees
Amendment 224 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 e – paragraph 2 – point c a (new)
Article 86 e – paragraph 2 – point c a (new)
(ca) the implications of the cross- border conversion on the safeguarding of employment relationships;
Amendment 225 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 e – paragraph 2 – point c b (new)
Article 86 e – paragraph 2 – point c b (new)
Amendment 226 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 e – paragraph 2 – point c (new)
Article 86 e – paragraph 2 – point c (new)
(cc) how the factors set out in points (a), (d) and (e) relate to any subsidiaries of the company.
Amendment 228 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 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 thand two months before the date of the general meeting referred to in Article 86i. That report shall also be made similarly availablhe representatives of the employees of the company or, where there are tno thesuch representatives of, to the employees of the company carrying out the cross-border conversion or, where there are no such representatives, to the employees themselvesthemselves, not less than one month before the date of the general meeting referred to in Article 86i.
Amendment 230 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 e – paragraph 3 a (new)
Article 86 e – paragraph 3 a (new)
3a. Where the management or administrative organ of the company carrying out the cross-border conversion receives, in good time, an opinion from the representatives of their employees or, where there are no such representatives, from the employees themselves, as provided for under national law, the members shall be informed thereof and that opinion shall be appended to that report.
Amendment 234 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 e – paragraph 4
Article 86 e – paragraph 4
4. However, that report shall not be required where all the members of the company carrying out the cross-border conversion have agreed to waive this requirementWhere all the members of the company carrying out the cross-border conversion have agreed to waive the requirement for this report, it only needs to pertain to the factors listed in paragraph 2(a), (d), (e) and (f) and to be made 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.
Amendment 235 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 e – paragraph 4 a (new)
Article 86 e – paragraph 4 a (new)
4a. However, where a company carrying out the cross-border conversion and its subsidiaries, if any, have no employees other than those who form part of the management or administrative organ, the report may be limited to the factors listed in paragraph 2(a), (b) and (c).
Amendment 236 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 e – paragraph 4 b (new)
Article 86 e – paragraph 4 b (new)
4b. Paragraphs 1 to 6 are without prejudice to the applicable information and consultation rights and proceedings instituted at national level following the transposition of Directives 2002/14/EC or 2009/38/EC.
Amendment 237 #
Amendment 246 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 g – paragraph 1 – subparagraph 1
Article 86 g – paragraph 1 – subparagraph 1
Member States shall ensure that the company carrying out the cross-border conversion applies not less than two 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 249 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 g – paragraph 1 – subparagraph 2 – point b
Article 86 g – paragraph 1 – subparagraph 2 – point b
(b) the reports referred to in Articles 86e and 86f.,
Amendment 251 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 g – paragraph 2
Article 86 g – paragraph 2
2. The competent authority shall appoint an independent expert within five working days of the application referred to in paragraph 1 and the receipt of the draft terms and reports. The expert shall be independent from the company carrying out the cross-border conversion and may be a natural or a legal person depending upon the law of the departure Member State. Member States shall take into account, in assessing the independence of the expert, the framework established in Articles 22 and 22b of Directive 2006/43/EC.
Amendment 253 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 g – paragraph 3 – introductory part
Article 86 g – paragraph 3 – introductory part
3. The expert shall draw up a written report providing at least:which includes an examination of the report made available under Article 86e and the draft terms of conversion.
Amendment 255 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 g – paragraph 3 – point a
Article 86 g – paragraph 3 – point a
Amendment 257 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 g – paragraph 3 – point b
Article 86 g – paragraph 3 – point b
Amendment 262 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 g – paragraph 4
Article 86 g – paragraph 4
4. Member States shall ensure that the independent expert shall be entitled to obtain, from the company carrying out the cross-border conversion, all relevant information and documents and to carry out all necessary investigations to verify all elements of the draft terms or management reports. The expert shall also be entitled to receive comments and opinions from the representatives of the employees of the company, or, where there are no such representatives, from the employees themselves and also from the creditors and members of the company.
Amendment 271 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 h – paragraph 4 – subparagraph 1
Article 86 h – paragraph 4 – subparagraph 1
Member States shall ensure that the requirements referred to in paragraphs 1 and 3 can be completed online in their entirety without the necessity to appear in person before any competent authority or any other person or authority entrusted with processing the application in the departure Member State.
Amendment 272 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 h – paragraph 4 – subparagraph 2
Article 86 h – paragraph 4 – subparagraph 2
However, Member States may, in cases of genuine suspicion of fraud based on reasonable grounds, require a physical presence before a competent authority where the public interest provides a compelling reason to do so.
Amendment 275 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 h – paragraph 6 a (new)
Article 86 h – paragraph 6 a (new)
6 a. Member States shall ensure that confidential information, including business secrets, shall not be disclosed.
Amendment 278 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 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. The company shall inform the competent authority designated in accordance with Article 86m(1) of the decision of the general meeting.
Amendment 280 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 i – paragraph 4
Article 86 i – paragraph 4
Amendment 281 #
1. Member States shall ensure that the following members of a company carryingmembers opposing a cross-border conversion have the right to dispose of their shareholdings under the conditions laid down in paragraphs 2 to 6:
Amendment 282 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 j – paragraph 1 – point a
Article 86 j – paragraph 1 – point a
Amendment 283 #
Amendment 284 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 j – paragraph 3 – subparagraph 1
Article 86 j – paragraph 3 – subparagraph 1
Member States shall ensure that a company carrying out a cross-border conversion makes an offer of adequate compensation in the draft terms of the cross-border conversion as specified in the Article 86d(1)(i) to the members, referred to in paragraph 1 of this Article, who wish to exercise their right to dispose of their shareholdings. Member States shall also establish the period for the acceptance of the offer which shall not in any event exceed one month after the general meeting referred to in Article 86i.day on which the registration of the new legal form is published in the register. Without prejudice to formal national requirements for the transfer of shares, Member States shall further ensure that the company is able to accept an offer communicated electronically to an address provided by the company for that purpose.
Amendment 285 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 j – paragraph 5
Article 86 j – paragraph 5
5. Member States shall provide that any member who has not accepted the offer of cash compensation referred to in paragraph 3, butand who considers that the compensation has not been adequately set, is entitled to demand the recalculation of the cash compensation offered before a national court within one month of the time limit set for the acceptance of the offer.
Amendment 287 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 k – paragraph 2
Article 86 k – paragraph 2
2. Member States shall ensure that creditors who are dissatisfied with the protection of their interests provided for in the draft terms of the cross-border conversion, as provided for in Article 86d(f), may apply to the appropriate administrative or judicial authority for adequate safeguards within one month of the disclosure referred to in Article 86h if they are of the opinion that they have been prejudiced despite the protection of their interests set down in Article 86d(f).
Amendment 290 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 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 triggersof over 500 employees and this company has a system for the participation of employees within the meaning of point (k) of Article 2 of Directive 2001/86/EC, or where the national law of the destination Member State does not:
Amendment 295 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
(a) shall confer on the special negotiating body the right to decide, by a majority of two thirds of its members representing at least two thirds of the employees, not to open negotiations or to terminate negotiations already opened and to rely on the rules on participation in force in the destination Member State;(Does not affect the English version.)
Amendment 298 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 m – paragraph 1
Article 86 m – paragraph 1
1. Member States shall designate the court, notary or other authority competent to scrutinise the legality of the cross-border conversion as regards that part of the procedure which is governed by the law of the departure Member State and to issue a pre- conversion certificate attesting compliance with all the relevant conditions and the proper completion of all procedures and formalities in the departure Member State.
Amendment 299 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 m – paragraph 2 – subparagraph 1 – point b
Article 86 m – paragraph 2 – subparagraph 1 – point b
(b) the reports referred to in Articles 86e, 86f and 86g, as appropriate;
Amendment 302 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 m – paragraph 2 – subparagraph 2
Article 86 m – paragraph 2 – subparagraph 2
The draft terms and reports submitted under Article 86gh do not have to be re- submitted to the competent authority.
Amendment 303 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 m – paragraph 3 – subparagraph 1
Article 86 m – paragraph 3 – subparagraph 1
Member States shall ensure that the application referred to in paragraph 2, including submission of any information and documents may be completed online in its entirety without the necessity to appear in person before the competent authority referred to in paragraph 1or any other person or authority entrusted with processing the application.
Amendment 304 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 m – paragraph 3 – subparagraph 2
Article 86 m – paragraph 3 – subparagraph 2
However, in cases of genuine suspicion of fraud based on reasonable grounds, Member States may require a physical presence before a competent authority where relevant information and documents are required to be submitted where the public interest provides a compelling reason to do so.
Amendment 307 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 m – paragraph 4
Article 86 m – paragraph 4
Amendment 312 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 m – paragraph 7 – point c
Article 86 m – paragraph 7 – point c
Amendment 314 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 n
Article 86 n
Amendment 319 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 o – paragraph 1
Article 86 o – paragraph 1
1. Member States shall ensure that, where the competent authority of the departure Member State is not a court, the decision of the competent authority to issue or to refuse to issue a pre-conversion certificate, is subject to judicial review in accordance with national law. In addition, Member States shall ensure that a pre- conversion certificate shall not be effective before the expiry of a certain period to allow partiesthe company to bring an action before the competent court and to obtain, if appropriate, interim measures.
Amendment 321 #
2. Member States shall ensure that the decision to issue the pre-conversion certificate is sent to the competent authorities referred to in Article 86m(1)of the destination Member State and that the decisions to issue or refuse to issue a pre-conversion certificate are available through the system of interconnection of registers set up in accordance with Article 22.
Amendment 322 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 p – paragraph 1 – subparagraph 1
Article 86 p – paragraph 1 – subparagraph 1
Member States shall designate anthe court, notary or other authority competent to scrutinise the legality of the cross-border conversion as regards that part of the procedure which is governed by the law of the destination Member State and to approve the cross-border conversion where the conversion complies with all the relevant conditions and the proper completion of all procedures and formalities in the destination Member State.
Amendment 324 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 p – paragraph 3 – subparagraph 1
Article 86 p – paragraph 3 – subparagraph 1
Each Member State shall ensure that the application referred to in paragraph 1, by the company carrying out the cross-border conversion, which includes the submission of any information and documents, may be completed online in its entirety without the necessity to appear in person before the competent authority referred to in paragraph 1or any other person or authority entrusted with processing the application.
Amendment 325 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 p – paragraph 3 – subparagraph 2
Article 86 p – paragraph 3 – subparagraph 2
However, in cases of genuine suspicion of fraud based on reasonable grounds, Member States may require a physical presence before a competent authority of a Member State where relevant information and documents are required to be submitted where the public interest provides a compelling reason to do so.
Amendment 329 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 s – paragraph 1 – point a
Article 86 s – paragraph 1 – point a
(a) all the assets and liabilities of the company carrying out the cross-border conversion including all contracts, credits, rights and obligations shall be transferred to and shall continue with the converted companypersist in the legal form stipulated in the draft terms for the cross-border conversion.
Amendment 330 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 s – paragraph 1 – point b
Article 86 s – paragraph 1 – point b
(b) the members of the company which carried out the conversion shall becomeremain members of the converted companylegal form stipulated in the draft terms for the cross-border conversion pursuant to Article 86d, unless they exercise the exit right referred to in Article 86j(2);
Amendment 331 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 s – paragraph 1 – point c
Article 86 s – paragraph 1 – point c
(c) the rights and obligations of the company carrying out the cross-border conversion arising from contracts of employment or from employment relationships and existing at the date on which the cross-border conversion takes effect shall, by reason of that cross-border conversion taking effect, bshall persist in the legal form stipulated in the tdransferred to the company resulting fromft terms for the cross- border conversion oin the date on which the cross-border conversion takes effectaccordance with Article 86d.
Amendment 332 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 s – paragraph 3
Article 86 s – paragraph 3
Amendment 335 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 t
Article 86 t
Member States shall lay down rules governing at least the civil liability, towards the shareholders and creditors, of the independent experts responsible for drawing up the reports referred to in Articles 86g and 86k(2)(a), including in respect of any misconduct on their part in the performance of their duties.
Amendment 340 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive (EU) No 2017/1132
Article 120 – paragraph 4
Article 120 – paragraph 4
Amendment 344 #
Proposal for a directive
Article 1 – paragraph 1 – point 6 a (new)
Article 1 – paragraph 1 – point 6 a (new)
Directive (EU) No 2017/1132
Article 121 a (new)
Article 121 a (new)
(6 a) the following Article 121a is inserted: "Article 121a Compliance with rules against tax avoidance practices Member States shall ensure that a company that intends to make a cross- border merger complies with the national rules implementing Directive (EU) 2016/1164."
Amendment 347 #
Proposal for a directive
Article 1 – paragraph 1 – point 8
Article 1 – paragraph 1 – point 8
Directive (EU) No 2017/1132
Article 122 a – paragraph 1 – subparagraph 2 – introductory part
Article 122 a – paragraph 1 – subparagraph 2 – introductory part
Notwithstanding the first subparagraph, the accounting date provided in the common draft terms of the cross-border merger, shall be the date on which the cross-border merger takes effect, as referred to in Article 129ompany which is changing form makes its final financial report, unless the merging companies determine another date in order to facilitate the merger process. In that case each accounting date shall comply with the following requirements:
Amendment 349 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Member States shall ensure that the requirements referred to in paragraphs 1 and 3 can be completed online in their entirety without the necessity to appear in person before any competent authority or any other person or authority entrusted with processing the application in any of the Member States concerned.
Amendment 350 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) No 2017/1132
Article 123 – paragraph 4 – subparagraph 2
Article 123 – paragraph 4 – subparagraph 2
However, Member States may, in cases of genuine suspicion of fraud based on reasonable grounds, require a physical presence before a competent authority require a physical presence before a competent authority where the public interest provides a compelling reason to do so.
Amendment 353 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) No 2017/1132
Article 124 – title
Article 124 – title
Article 124 Report of the management or administrative organ to the members and employees
Amendment 354 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) No 2017/1132
Article 124 – paragraph 2 – point e a (new)
Article 124 – paragraph 2 – point e a (new)
(e a) the implications of the cross- border merger on the safeguarding of the employment relationships;
Amendment 355 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) No 2017/1132
Article 124 – paragraph 2 – point e b (new)
Article 124 – paragraph 2 – point e b (new)
(e b) any material change in the conditions of employment and the locations of the companies’ places of business;
Amendment 356 #
(e c) how the factors set out in points (a), (f) and (g) also relate to any subsidiaries of the merging companies.
Amendment 357 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) No 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 toand the representatives of the employees of each of the merging companies, or where there are no such representatives, to the employees themselves, not less than one month before the date of the general meeting referred to in Article 126. 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 359 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) No 2017/1132
Article 124 – paragraph 3 a (new)
Article 124 – paragraph 3 a (new)
3 a. Where the management or administrative organ of one or more of the merging companies receives, in good time, an opinion from the representatives of their employees, or, where there are no such representatives, from the employees themselves, as provided for under national law, the members shall be informed thereof and that opinion shall be appended to the report.
Amendment 362 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) No 2017/1132
Article 124 – paragraph 4
Article 124 – paragraph 4
4. However, the report referrWhere all the members of the merging companies have agreed to waive the requirement for this report, it only needs to in paragraph 1, shall not be required wpertain to the factors listed in paragraph 2(a), (d), (e) and (f) and to be made available to the re all the memberpresentatives of the employees of the merging companies havor, where there agreed to waive this requirement no such representatives, to the employees themselves.
Amendment 363 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) No 2017/1132
Article 124 – paragraph 4 a (new)
Article 124 – paragraph 4 a (new)
4 a. However, where the merging companies and their subsidiaries, if any, have no employees, other than those who form part of the management or administrative organ, the report may be limited to the factors listed in paragraph 2(a), (f) and (g).
Amendment 364 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) No 2017/1132
Article 124 – paragraph 4 b (new)
Article 124 – paragraph 4 b (new)
4 b. The submission of the report is without prejudice to the applicable information and consultation rights and proceedings instituted at national level following the implementation of Directives 2001/23/EC, 2002/14/EC or 2009/38/EC.
Amendment 366 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) No 2017/1132
Article 124 a
Article 124 a
Amendment 374 #
Proposal for a directive
Article 1 – paragraph 1 – point 12 – point a
Article 1 – paragraph 1 – point 12 – point a
Directive (EU) No 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.
Amendment 375 #
Proposal for a directive
Article 1 – paragraph 1 – point 13
Article 1 – paragraph 1 – point 13
Directive (EU) No 2017/1132
Article 126 a – paragraph 1 – introductory part
Article 126 a – paragraph 1 – introductory part
1. Member States shall ensure that the following members of the mergabsorbing companiesy who oppose the cross-border merger have the right to dispose of their shareholding under the conditions laid down in paragraphs 2 to 6;.
Amendment 376 #
Proposal for a directive
Article 1 – paragraph 1 – point 13
Article 1 – paragraph 1 – point 13
Directive (EU) No 2017/1132
Article 126 a – paragraph 1 – point a
Article 126 a – paragraph 1 – point a
Amendment 377 #
Proposal for a directive
Article 1 – paragraph 1 – point 13
Article 1 – paragraph 1 – point 13
Directive (EU) No 2017/1132
Article 126 a – paragraph 1 – point b
Article 126 a – paragraph 1 – point b
Amendment 378 #
Proposal for a directive
Article 1 – paragraph 1 – point 13
Article 1 – paragraph 1 – point 13
Directive (EU) No 2017/1132
Article 126 a – paragraph 3
Article 126 a – paragraph 3
Member States shall ensure that each of the merging companies makes an offer of adequate cash compensation in the common draft terms of the cross-border merger, as specified in Article 122(1)(m), to those members referred to in paragraph 1 of this Article who wish to exercise their right to dispose of their shareholdings. Member States shall also establish the period for the acceptance of the offer, which shall not in any event exceed one month after the general meeting referred to in Article 126 or, in cases where the approval of the general meeting is not required, within two months after the disclosure of the common draft terms of merger referred to in Article 123.day on which the registration of the resulting company is published in the register. Without prejudice to formal national requirements for the transfer of shares, Member States shall further ensure that the merging companies arecompany is able to accept an offer communicated electronically to an address provided by those companiesy for that purpose.
Amendment 379 #
Proposal for a directive
Article 1 – paragraph 1 – point 13
Article 1 – paragraph 1 – point 13
Directive (EU) No 2017/1132
Article 126 a – paragraph 6
Article 126 a – paragraph 6
6. Member States shall ensure that any member who has not accepted the offer of cash compensation referred to in paragraph 3, butand who considers that the cash compensation has not been adequately set, is entitled to demand the recalculation of the cash compensation offered before a national court within one month of the time limit set for the acceptance of the offer.
Amendment 381 #
Proposal for a directive
Article 1 – paragraph 1 – point 13
Article 1 – paragraph 1 – point 13
Directive (EU) No 2017/1132
Article 126 b – paragraph 1 – subparagraph 2
Article 126 b – paragraph 1 – subparagraph 2
2. Member States shall ensure that creditors of the merging companies who are dissatisfied with the protection of their interests as provided for in the common draft terms of the cross-border merger, as provided for in Article 122(1)(n), may apply to the appropriate administrative or judicial authority for adequate safeguards within one month of the disclosure referred to in Article 123 if they are of the opinion that they have been prejudiced despite the protection of their interests set down in Article 122(1)(n).
Amendment 383 #
Proposal for a directive
Article 1 – paragraph 1 – point 14 – point a
Article 1 – paragraph 1 – point 14 – point a
Directive (EU) No 2017/1132
Article 127 – paragraph 1 – subparagraph 2
Article 127 – paragraph 1 – subparagraph 2
Member States shall ensure that the application for obtaining a pre-merger certificate by the merging companies including submission of any information and documents may be completed online in its entirety without the necessity to appear in person before the competent authority or any other person or authority entrusted with processing the application referred to in paragraph 1.
Amendment 384 #
Proposal for a directive
Article 1 – paragraph 1 – point 14 – point a
Article 1 – paragraph 1 – point 14 – point a
However, in cases of genuine suspicion of fraud based on reasonable grounds, Member States may require a physical presence before a competent authority where relevant information and documents are required to be submitted where the public interest provides a compelling reason to do so.
Amendment 386 #
Proposal for a directive
Article 1 – paragraph 1 – point 15 – point b
Article 1 – paragraph 1 – point 15 – point b
Directive (EU) No 2017/1132
Article 128 – paragraph 3 – subparagraph 1
Article 128 – paragraph 3 – subparagraph 1
Each Member State shall ensure that the application for the completion of the procedure, referred to in paragraph 1, by any of the merging companies, which includes the submission of any information and documents may be completed online in its entirety without the necessity to appear in person before any competent authority, or any other person or authority entrusted with processing the application.
Amendment 387 #
Proposal for a directive
Article 1 – paragraph 1 – point 15 – point b
Article 1 – paragraph 1 – point 15 – point b
Directive (EU) No 2017/1132
Article 128 – paragraph 3 – subparagraph 2
Article 128 – paragraph 3 – subparagraph 2
However, Member States may take measures in cases of genuine suspicion of fraud based on reasonable grounds which could require a physical presence before a competent authority of a Member State in which thwhere relevant information and documents are required to be submitted where the public interest provides a compelling reason to do so.
Amendment 389 #
Proposal for a directive
Article 1 – paragraph 1 – point 17 – point b
Article 1 – paragraph 1 – point 17 – point b
Directive (EU) No 2017/1132
Article 132 – paragraph 3
Article 132 – paragraph 3
3. Where the laws of Member States of all of the merging companies provide for the exemption from the approval by general meeting in accordance with Article 126(3) and paragraph 1 of this Article, the common draft terms of cross-border merger or the information referred to in paragraphs 1 to 3 of Article 123 respectively and the reports referred to in Articles 124 and 124a, shall be made available at least one month before the decision on the merger is taken by the company in accordance with the national law.
Amendment 395 #
Proposal for a directive
Article 1 – paragraph 1 – point 19
Article 1 – paragraph 1 – point 19
Directive (EU) No 2017/1132
Article 133 a (new)
Article 133 a (new)
Member States shall lay down rules governing the civil liability, towards the shareholders and creditors, of the independent experts responsible for drawing up the report referred to in Articles 125 and 126b(2)(a), including in respect of misconduct on their part in the performance of their duties.
Amendment 399 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 d
Article 160 d
Amendment 400 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 d a (new)
Article 160 d a (new)
Amendment 412 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 f – paragraph 1 – subparagraph 2
Article 160 f – paragraph 1 – subparagraph 2
The accounting date provided in the draft terms of the cross-border division shall be the date on which the cross-border division takes effect, as referred to in Article 160ompany being divided makes its final financial report unless the company determines other dates in order to facilitate the division process.
Amendment 414 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 g – title
Article 160 g – title
Article 160g Report of the management or administrative organ to the members and employees
Amendment 417 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 g – paragraph 2 – point e a (new)
Article 160 g – paragraph 2 – point e a (new)
(e a) the implications of the cross- border division on the safeguarding of the employment relationships;
Amendment 418 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 g – paragraph 2 – point e b (new)
Article 160 g – paragraph 2 – point e b (new)
(e b) any material change in the conditions of employment and the locations of the companies’ places of business;
Amendment 419 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 g – paragraph 2 – point e c (new)
Article 160 g – paragraph 2 – point e c (new)
(e c) how the factors set out in points (a), (f) and (g) also relate to any subsidiaries of the company being divided.
Amendment 421 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 g – paragraph 3
Article 160 g – 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 toand the representatives of the employees of the company being divided or, where there are no such representatives, to the employees themselves, not less than one month before the date of the general meeting referred to in Article 160k.
Amendment 422 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 g – paragraph 3 a (new)
Article 160 g – paragraph 3 a (new)
3 a. Where the management or administrative organ of the company being divided receives, in good time, an opinion from the representatives of their employees, or, where there are no such representatives, from the employees themselves, as provided for under national law, the members shall be informed thereof and that opinion shall be appended to that report.
Amendment 425 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 g – paragraph 4
Article 160 g – paragraph 4
4. However, the report referred to in paragraph 1, shall not be required wWhere all the members of the company undergoing the cross-border division have agreed to waive the requirement for this report, it only needs to pertain to the factors listed in paragraph 2(a), (f), (g) and (h) and to be made available to the re all the members of the company being divided havpresentatives of the employees of the company or, where there agreed to waive this document no such representatives, to the employees themselves.
Amendment 426 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 g – paragraph 4 a (new)
Article 160 g – paragraph 4 a (new)
4 a. However, where a company being divided and all of its subsidiaries, if any, have no employees other than those who form part of the management or administrative organ, the report may be limited to the factors listed in paragraph 2(a), (f), (g) and (h).
Amendment 427 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 g – paragraph 4 b (new)
Article 160 g – paragraph 4 b (new)
4 b. Paragraphs 1 to 5 are without prejudice to the applicable information and consultation rights and proceedings instituted at national level following the implementation of Directives 2001/23/EC, 2002/14/EC or 2009/38/EC.
Amendment 428 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 h
Article 160 h
Amendment 432 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 i – paragraph 1 – subparagraph 1
Article 160 i – paragraph 1 – subparagraph 1
Member States shall ensure that the company being divided applies to the competent authority, designated in accordance with Article 160o(1), not less than two months before the date of the general meeting referred to in Article 160k, to appoint an expert to examine and assess the draft terms of cross-border division and the reports referred to in Articles 160g and 160h, subject to the proviso set out in paragraph 6 of this Article.
Amendment 435 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 i – paragraph 1 – subparagraph 2 – point b
Article 160 i – paragraph 1 – subparagraph 2 – point b
(b) the reports referred to in Articles 160g and 160h.
Amendment 437 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 i – paragraph 2
Article 160 i – paragraph 2
2. The competent authority shall appoint an independent expert within five working days of the application referred to in paragraph 1 and the receipt of the draft terms and reports. The expert shall be independent from the company being divided and may be a natural or a legal person depending upon the law of the Member State concerned. Member States shall take into account, in assessing the independence of the expert, the framework established in Articles 22 and 22b of Directive 2006/43/EC.
Amendment 439 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 i – paragraph 3 – point f
Article 160 i – paragraph 3 – point f
Amendment 443 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 i – paragraph 4
Article 160 i – paragraph 4
4. Member States shall ensure that the independent expert shall be entitled to obtain from the company being divided all relevant information and documents and to carry out all necessary investigations to verify all elements of the draft terms or management reports. The independent expert shall also be entitled to receive comments and opinions from the representatives of the employees of the company, or, where there are no such representatives, employees themselves and also from the creditors and members of the company.
Amendment 447 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 j – paragraph 4 – subparagraph 1
Article 160 j – paragraph 4 – subparagraph 1
Member States shall ensure that the requirements referred to in paragraphs 1 and 3 can be completed online in their entirety without the necessity to appear in person before any competent authority or any other person or authority entrusted with processing the application in the Member State concerned.
Amendment 448 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 j – paragraph 4 – subparagraph 2
Article 160 j – paragraph 4 – subparagraph 2
However, Member States may in cases of genuine suspicion of fraud based on reasonable grounds, require a physical presence before a competent authorityrequire a physical presence before a competent authority where the public interest provides a compelling reason to do so.
Amendment 450 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 j – paragraph 6 a (new)
Article 160 j – paragraph 6 a (new)
6 a. Member States shall ensure that confidential information, including business secrets, shall not be disclosed.
Amendment 453 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 k – paragraph 1
Article 160 k – 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. The company shall inform the competent authority designated in accordance with Article 160o(1) of the decision of the general meeting.
Amendment 455 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 k – paragraph 4
Article 160 k – paragraph 4
Amendment 457 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 l – paragraph 1
Article 160 l – paragraph 1
1. Member States shall ensure that the following members of a company beingmembers who oppose the dividedsion have the right to dispose of their shareholdings under the conditions laid down in paragraphs 2 to 6:
Amendment 458 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 l – paragraph 1 – point a
Article 160 l – paragraph 1 – point a
Amendment 459 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 l – paragraph 1 – point b
Article 160 l – paragraph 1 – point b
Amendment 460 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 l – paragraph 3 – subparagraph 1
Article 160 l – paragraph 3 – subparagraph 1
Member States shall ensure that a company being divided makes an offer of adequate cash compensation in the draft terms of the cross-border division as specified in Article 160e(1)(q) to the members, referred to in paragraph 1 of this Article, who wish to exercise their right to dispose of their shareholdings. Member States shall also establish the period for the acceptance of the offer which shall not in any event exceed one month after the general meeting referred to in Article 160k.day on which the registration of the new legal form is published in the register. Without prejudice to formal national requirements for the transfer of shares, Member States shall further ensure that athe company is able to accept an offer communicated electronically to an address provided by the company for that purpose.
Amendment 461 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 l – paragraph 5
Article 160 l – paragraph 5
5. Member States shall provide that any member who has not accepted the offer of cash compensation referred to in paragraph 3, butand who considers that the compensation has not been adequately set, is entitled to demand the recalculation of the cash compensation offered before a national court within one month of the time limit set for the acceptance of the offer.
Amendment 462 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 m – paragraph 2
Article 160 m – paragraph 2
2. Member States shall ensure that creditors, who are dissatisfied with the protection of their interests provided for in the draft terms of the cross-border division, as provided for in Article 160e, may apply to the appropriate administrative or judicial authority for adequate safeguards within one month of the disclosure referred to in Article 160j if they are of the opinion that they have been prejudiced despite the protection of their interests set down in Article 160e.
Amendment 464 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 n – paragraph 2 – introductory part
Article 160 n – paragraph 2 – introductory part
Amendment 466 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 o – paragraph 1
Article 160 o – paragraph 1
1. Member States shall designate the nationalcourt, notary or other authority competent to scrutinise the legality of the cross-border divisions as regards the part of the procedure which is governed by the law of the Member State of the company being divided, and to issue a pre-division certificate attesting compliance with all relevant conditions, and the proper completion of all procedures and formalities in that Member State.
Amendment 467 #
(b) the reports referred to in Articles 160g, 160h and 160i, as appropriate;
Amendment 470 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 o – paragraph 2 – subparagraph 2
Article 160 o – paragraph 2 – subparagraph 2
The draft terms and reports submitted under Article 160ij do not have to be re- submitted to the competent authority.
Amendment 471 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 o – paragraph 3 – subparagraph 1
Article 160 o – paragraph 3 – subparagraph 1
Member States shall ensure that the application referred to in paragraph 2, including submission of any company information and documents, may be completed online in its entirety without the necessity to appear in person before the competent authority referred to in paragraph 1or any other person or authority entrusted with processing the application.
Amendment 472 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 o – paragraph 3 – subparagraph 2
Article 160 o – paragraph 3 – subparagraph 2
However, in cases of genuine suspicion of fraud based on reasonable grounds, Member States may require a physical presence before a competent authority where relevant information and documents are required to be submitted where the public interest provides a compelling reason to do so.
Amendment 473 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 o – paragraph 4
Article 160 o – paragraph 4
Amendment 476 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 o – paragraph 7 – point c
Article 160 o – paragraph 7 – point c
Amendment 477 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Amendment 479 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 q – paragraph 1
Article 160 q – paragraph 1
1. Member States shall ensure that, where the competent authority is not a court, the decision of the competent authority to issue or to refuse to issue a pre-division certificate, is subject to judicial review in accordance with national law. In addition, Member States shall ensure that a pre- division certificate shall not be effective before the expiry of a certain period to allow partiesthe company to bring an action before the competent court and to obtain, if appropriate, interim measures.
Amendment 480 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 r – paragraph 1 – subparagraph 1
Article 160 r – paragraph 1 – subparagraph 1
Member States shall designate anthe court, notary or other authority competent to scrutinise the legality of the cross-border divisions as regards that part of the procedure which concerns the completion of the cross-border division governed by the law of the Member States of the recipient companies and to approve the cross-border division where it complies with all the relevant conditions and all the procedures and formalities in that Member State have been properly completed.
Amendment 482 #
Each Member State shall ensure that the application referred to in paragraph 1, by any of the recipient companies which includes submission of any information and documents may be completed online in its entirety without the necessity to appear in person before the competent authority referred to in paragraph 1or any other person or authority entrusted with processing the application.
Amendment 483 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 r – paragraph 3 – subparagraph 2
Article 160 r – paragraph 3 – subparagraph 2
However, in cases of genuine suspicion of fraud based on reasonable grounds, Member States may require a physical presence before a competent authority of a Member State where relevant information and documents are required to be submitted where the public interest provides a compelling reason to do so.
Amendment 486 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 u – paragraph 2 – subparagaph 2
Article 160 u – paragraph 2 – subparagaph 2
Amendment 491 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 v
Article 160 v
Member States shall lay down rules governing at least the civil liability, towards the shareholders and creditors, of the independent experts responsible for drawing up the report referred to in Articles 160i and 160m(2)(a), including in respect of any misconduct on their part in the performance of their duties.