BETA

32 Amendments of Gabriele STAUNER related to 2008/0130(CNS)

Gabriele STAUNER

Proposal for a regulation
Recital 7

(7) In order to make the SPE an accessible company form for individuals and small businesses, it should be capable of being created ex nihilo or of resulting from the transformation, the merger or the division of existing national companies. The creation of an SPE by way of transformation, merger or division of companies should be governed by the applicable national law, without prejudice to the provisions on employees' rights of participation.

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Recital 11

(11) The SPE should not be subject to a high mandatory capital requirement since this would be a barrier to the creation of SPEs. Creditors, however, should be protected from ~~excessive~~ distributions to shareholders which could ~~affect~~undermine the ability of the SPE to pay its debts. To this end, distributions that leave the SPE with liabilities exceeding the value of the assets of the SPE should be prohibited. Shareholders, however, should also be free to require the management body of the SPE to sign a solvency certificate.

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Recital 15

(15) Employees’ rights of participation should be governed by the legislation of the Member State in which the SPE has its registered office (the "home Member State"). The SPE should not be used for the purpose of circumventing such rights. Where the national legislation of the Member State to which the SPE transfers its registered office does not provide for at least the same level of employee participation as the home Member State, the participation of employees in the company ~~following~~prior to the transfer should in certain circumstances be negotiated. Should such negotiations fail, the provisions applying in the company before the transfer should continue to apply after the transfer.

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Article 3 - paragraph 1 - point e a (new)

(ea) its cross-border nature is demonstrated by the fact that it has at least one branch office outside the country in which it was established;

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Article 4 - paragraph 1

1. An SPE shall be governed by this Regulation and also, as regards the matters listed in Annex I, by its articles of association. However, where a ~~matter~~provision is not covered by the articles of this Regulation or by Annex I, an SPE shall be governed by the law, including the provisions implementing Community law, which applies to private limited-liability companies in the Member State in which the SPE has its registered office, hereinafter "applicable national law".

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Article 5 - paragraph 2

2. Formation of the SPE by the transformation, merger or division of existing companies shall be governed by the national law applicable to the transforming company, to each of the merging companies or to the dividing company. Formation by transformation shall not give rise to the winding up of the company or any loss or interruption of its legal personality and shall not affect employees' existing rights of participation.

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Article 5 - paragraph 3

3. For the purposes of paragraphs 1 and 2, 'company' shall mean any form of limited company that may be set up under the law of the Member States, a European Company and, where applicable, an SPE.

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Article 10 - paragraph 2 - point g

(g) the articles of association of the SPE; including any rights of participation enjoyed by employees;

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Article 19 - paragraph 4

4. The capital of the SPE shall be at least EUR 15 000.

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Article 27 – paragraph 2 – subparagraph 1

2. Resolutions on the matters indicated in points (a), (b), (c), (e), (h), (i), (l), (m) (n), (o) and (p) of paragraph 1 shall be taken by a qualified majority.

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Article 30 – paragraph 2

~~2. A person who acts as a director without having been formally appointed shall be considered a director as regards all duties and liabilities to which the latter are subject.~~deleted

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Article 34 – paragraph 1

1. The SPE shall be subject to the rules on employee participation and other employee rights, if any, applicable in the Member State in which it has ~~its registered office~~the most employees, subject to the provisions of this Article.

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Article 34 – paragraph 1 a (new)

1a. If more than 1000 employees of the SPE, corresponding to at least three- quarters of its total workforce, work in a Member State or in Member States which provide for broader employee participation than the Member State in which the SPE has the most employees, the following provisions shall apply: (a) The management or administrative organ shall take the necessary steps to open negotiations with the representatives of the employees of the establishments or subsidiaries on an agreement covering the involvement of employees in the SPE. For this purpose, the management or administrative organ shall set up a special negotiating body to represent the employees of the SPE. (b) The members of the special negotiating body shall be elected or appointed. When the members of the special negotiating body are elected or appointed, it must be ensured that these members are elected or appointed in proportion to the number of employees employed in each Member State by allocating in respect of each Member State one seat per portion of employees employed in that Member State which equals 10%, or a fraction thereof, of the number of employees employed in all the Member States taken together. (c) The management or administrative organ shall determine the method to be used for the election or appointment of the members of the special negotiating body. In that connection, it shall take the necessary measures to ensure that, as far as possible, each subsidiary or each establishment is represented on that body by at least one member. Such measures must not increase the overall number of members. (d) Without prejudice to national rules laying down thresholds for the establishment of a representative body, the SPE shall provide that employees in subsidiaries or establishments in which, irrespective of the employees' wishes, there are no employees' representatives have the right themselves to elect or appoint members of the special negotiating body. (e) The special negotiating body and the competent organ of the SPE shall determine, by written agreement, arrangements for the involvement of employees within the SPE. (f) Subject to the provisions of letter (g), the special negotiating body shall take decisions by a majority of its members. Each member shall have one vote. (g) The special negotiating body may decide, by the majority laid down in sentence 4, not to open negotiations or to terminate negotiations already opened and to rely on the rules on information and consultation of employees in force in the Member States where the SPE has employees. Such a decision shall halt the procedure to conclude the agreement referred to in letter (f). Where such a decision has been taken, none of the provisions of the standard rules (see letter (k)) shall apply. The majority required for the decision not to open or to terminate negotiations shall be the votes of 50% of the members representing at least 51% of the employees, with the proviso that these members must represent employees in at least two Member States. (h) The competent organs of the participating legal persons and the special negotiating body shall negotiate in a spirit of cooperation with a view to reaching an agreement on arrangements for the involvement of employees within the SPE. The agreement between the competent organ of the SPE and the special negotiating body shall specify at least the following: (i) the scope of the agreement; (ii) the composition, number of members and allocation of seats on the representative body which will be the discussion partner of the competent organ of the SPE in connection with arrangements for the information and consultation of the employees of the SPE and its subsidiaries and establishments; (iii) the frequency of meetings of the representative body; (iv) the financial and material resources to be allocated to the representative body; (v) the number of members of the SPE's administrative or supervisory body which the employees shall be entitled to elect, appoint, recommend or oppose, the procedures as to how these members may be elected, appointed, recommended or opposed by the employees, and their rights. (i) Negotiations shall commence as soon as the special negotiating body is established and may continue for six months thereafter. The parties may decide, by joint agreement, to extend negotiations beyond the period referred to in sentence 1, up to a total of nine months from the establishment of the special negotiating body. (j) If, by the end of the period referred to in letter (i), the parties have not reached agreement and the special negotiating body has not taken a decision pursuant to letter (g), the rules laid down in letter (k) (standard rules) shall apply. They shall also apply if the parties agree as much. (k) In keeping with the provisions of letters (g) and (j), the following provisions shall apply in respect of employee involvement in the SPE: (i) the employees of the SPE, its subsidiaries and establishments or their representative body shall have the right to elect, appoint, recommend or oppose the appointment of one-third of the members of the administrative or supervisory body of the SPE. (ii) the representative body shall decide on the allocation of seats within the administrative or supervisory body among the members representing the employees from the various Member States or on the way in which the SPE's employees may recommend or oppose the appointment of the members of these bodies, according to the proportion of the SPE's employees in each Member State. If the employees from one or more Member States are not covered on the basis of this proportional criterion, the representative body shall appoint a member from one of those Member States, if possible – where appropriate – from the Member State in which the SPE has its registered office. (iii) every member of the administrative or supervisory body of the SPE who has been elected, appointed or recommended by the representative body or, depending on the circumstances, by the employees shall be a full member of the body in question with the same rights (including the right to vote) and obligations as the members representing the SPE.

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Article 36 – paragraph 2 – introductory part

2. At least onthree months before the resolution of the shareholders referred to in paragraph 4 is taken, the management body of the SPE shall:

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Article 36 – paragraph 3 – subparagraph 2

~~Where t~~The management body ~~receives in~~shall inform the shareholders in good time of the opinion of the employee representatives on the transfer~~, that opinion shall be submitted to the shareholders~~.

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Article 37 – paragraph 3 – point (b)

(b) the proposed articles of association, and any rules governing employees' rights of participation, for the SPE in the host Member State, as approved by the shareholders;

2008/10/20
Committee: EMPL

Gabriele STAUNER

Proposal for a regulation
Recital 7

(7) In order to make the SPE an accessible company form for individuals and small businesses, it should be capable of being created ex nihilo or of resulting from the transformation, the merger or the division of existing national companies. The creation of an SPE by way of transformation, merger or division of companies should be governed by the applicable national law, without prejudice to the provisions on employee participation.

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Recital 11

(11) The SPE should not be subject to a high mandatory capital requirement since this would be a barrier to the creation of SPEs. Creditors, however, should be protected from ~~excessive~~ distributions to shareholders which could ~~affect~~undermine the ability of the SPE to pay its debts. To this end, distributions that leave the SPE with liabilities exceeding the value of the assets of the SPE should be prohibited. Shareholders, however, should also be free to require the management body of the SPE to sign a solvency certificate.

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Recital 15

(15) Employees’ rights of participation should be governed by the legislation of the Member State in which the SPE has its registered office (the ‘home Member State’). The SPE should not be used for the purpose of circumventing such rights. Where the national legislation of the Member State to which the SPE transfers its registered office does not provide for at least the same level of employee participation as the home Member State, the participation of employees in the company ~~following the transfer~~ should in certain circumstances be negotiated prior to the transfer. Should such negotiations fail, the provisions applying in the company before the transfer should continue to apply after the transfer.

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Article 3 – paragraph 1 – point e a (new)

(ea) it has a cross-border component in that it has at least one establishment outside its home Member State;

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Article 4 – paragraph 1 – subparagraph 2

However, where a ~~matter~~provision is not covered by the articles of this Regulation or by Annex I, an SPE shall be governed by the law, including the provisions implementing Community law, which applies to private limited-liability companies in the Member State in which the SPE has its registered office, hereinafter ‘applicable national law’.

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Article 5 – paragraph 2

2. Formation of the SPE by the transformation, merger or division of existing companies shall be governed by the national law applicable to the transforming company, to each of the merging companies or to the dividing company. Formation by transformation shall not give rise to the winding up of the company or any loss or interruption of its legal personality and shall not affect employees’ existing rights of participation.

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Article 5 – paragraph 3

3. For the purposes of paragraphs 1 and 2, ‘company’ shall mean any form of company with share capital that may be set up under the law of the Member States, a European Company and, where applicable, an SPE.

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Article 10 – paragraph 2 – point g

(g) the articles of association of the SPE; including any rights of participation enjoyed by employees;

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Article 19 – paragraph 4

4. The capital of the SPE shall be at least EUR 15 000.

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Article 27 – paragraph 2 – subparagraph 1

2. Resolutions on the matters indicated in points (a), (b), (c), (e), (h), (i), (l), (m) (n), (o) and (p) of paragraph 1 shall be taken by a qualified majority.

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Article 30 – paragraph 2

~~2. A person who acts as a director without having been formally appointed shall be considered a director as regards all duties and liabilities to which the latter are subject.~~deleted

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Article 34 – paragraph 1

1. The SPE shall be subject to the rules on employee participation and employee rights other than participation, if any, applicable in the Member State in which it has ~~its registered office~~the most employees, subject to the provisions of this Article.

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Article 34 – paragraph 1 a (new)

1a. If more than 1000 employees of the SPE, corresponding to at least three- quarters of its total workforce, work in a Member State or in Member States which provide for broader employee participation than the Member State in which the SPE has the most employees, the following provisions shall apply: a) The management or administrative organ shall take the necessary steps to open negotiations with the representatives of the employees of the establishments or subsidiaries on an agreement covering the involvement of employees in the SPE. For this purpose, the management or administrative organ shall set up a special negotiating body to represent the employees of the SPE. b) The members of the special negotiating body shall be elected or appointed. When the members of the special negotiating body are elected or appointed, it must be ensured that these members are elected or appointed in proportion to the number of employees employed in each Member State by allocating in respect of each Member State one seat per portion of employees employed in that Member State which equals 10%, or a fraction thereof, of the number of employees employed in all the Member States taken together. c) The management or administrative organ shall determine the method to be used for the election or appointment of the members of the special negotiating body. In that connection, it shall take the necessary measures to ensure that, as far as possible, each subsidiary or each establishment is represented on that body by at least one member. Such measures must not increase the overall number of members. d) Without prejudice to national rules laying down thresholds for the establishment of a representative body, the SPE shall provide that employees in subsidiaries or establishments in which, irrespective of the employees' wishes, there are no employees' representatives have the right themselves to elect or appoint members of the special negotiating body. e) The special negotiating body and the competent organ of the SPE shall determine, by written agreement, arrangements for the involvement of employees within the SPE. f) Subject to the provisions of point (g), the special negotiating body shall take decisions by a majority of its members. Each member shall have one vote. g) The special negotiating body may decide, by the majority laid down in sentence 4, not to open negotiations or to terminate negotiations already opened and to rely on the rules on information and consultation of employees in force in the Member States where the SPE has employees. Such a decision shall halt the procedure to conclude the agreement referred to in point (f). Where such a decision has been taken, none of the provisions of the standard rules (see point (k)) shall apply. The majority required for the decision not to open or to terminate negotiations shall be the votes of 50% of the members representing at least 51% of the employees, with the proviso that these members must represent employees in at least two Member States. h) The competent organs of the participating legal persons and the special negotiating body shall negotiate in a spirit of cooperation with a view to reaching an agreement on arrangements for the involvement of employees within the SPE. The agreement between the competent organ of the SPE and the special negotiating body shall specify at least the following: (i) the scope of the agreement, (ii) the composition, number of members and allocation of seats on the representative body which will be the discussion partner of the competent organ of the SPE in the context of the agreement on the information and consultation of the employees of the SPE and its subsidiaries and establishments, (iii) the frequency of meetings of the representative body, (iv) the financial and material resources to be allocated to the representative body, (v) the number of members of the SPE's administrative or supervisory body which the employees shall be entitled to elect, appoint, recommend or oppose, the procedures as to how these members may be elected, appointed, recommended or opposed by the employees, and their rights. i) Negotiations shall commence as soon as the special negotiating body is established and may continue for six months thereafter. The parties may decide, by joint agreement, to extend negotiations beyond the period referred to in sentence 1, up to a total of nine months from the establishment of the special negotiating body. j) If, by the end of the period referred to in point (i), the parties have not reached agreement and the special negotiating body has not taken a decision pursuant to point (g), the rules laid down in point (k) (standard rules) shall apply. They shall also apply if the parties agree as much. k) In keeping with the provisions of points (g) and (j), the following provisions shall apply in respect of employee involvement in the SPE: (i) the employees of the SPE, its subsidiaries and establishments or their representative body shall have the right to elect, appoint, recommend or oppose the appointment of one-third of the members of the administrative or supervisory body of the SPE; (ii) the representative body shall decide on the allocation of seats within the administrative or supervisory body among the members representing the employees from the various Member States or on the way in which the SPE's employees may recommend or oppose the appointment of the members of these bodies, according to the proportion of the SPE's employees in each Member State. If the employees from one or more Member States are not covered on the basis of this proportional criterion, the representative body shall appoint a member from one of those Member States, if possible – where appropriate – from the Member State in which the SPE has its registered office; (iii) every member of the administrative or supervisory body of the SPE who has been elected, appointed or recommended by the representative body or, depending on the circumstances, by the employees shall be a full member of the body in question with the same rights (including the right to vote) and obligations as the members representing the SPE.

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Article 36 – paragraph 2 – Introductory part

At least onthree months before the resolution of the shareholders referred to in paragraph 4 is taken, the management body of the SPE shall:

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Article 36 – paragraph 3 – subparagraph 2

~~Where t~~The management body ~~receives in~~shall inform the shareholders in good time of the opinion of the employee representatives on the transfer~~, that opinion shall be submitted to the shareholders~~.

2008/11/04
Committee: JURI

Gabriele STAUNER

Proposal for a regulation
Article 37 – paragraph 3 – point b

(b) the proposed articles of association, and any rules governing employees' rights of participation, for the SPE in the host Member State, as approved by the shareholders;

2008/11/04
Committee: JURI