36 Amendments of Ieke van den BURG related to 2008/0130(CNS)
Amendment 38 #
Proposal for a regulation
Article 3 – paragraph 1 – point e a (new)
Article 3 – paragraph 1 – point e a (new)
(ea) its purpose shall be to be materially active in more than one Member State, and/or for more than one third of its shares to be held by shareholders in one or more Member States;
Amendment 39 #
Proposal for a regulation
Article 3 – paragraph 1 – point e b (new)
Article 3 – paragraph 1 – point e b (new)
(eb) its objectives shall be clearly stated and shall comprise producing, or trading in, goods and/or providing services.
Amendment 40 #
Proposal for a regulation
Article 7
Article 7
An SPE shall have its registered office and its central administration or principal place of business in the Community. An SPE shall not be under any obligation to have its central administration or principal place of business in the Member State in which it has its registered offica single Member State.
Amendment 43 #
Proposal for a regulation
Article 10 – paragraph 2 – point b a (new)
Article 10 – paragraph 2 – point b a (new)
(ba) a description of its cross-border characteristics, in accordance with Article 3(1)(ea);
Amendment 50 #
Proposal for a regulation
Article 14 – paragraph 4 a (new)
Article 14 – paragraph 4 a (new)
4a. Member States may provide that the share ownership is to be disclosed in a public register.
Amendment 55 #
Proposal for a regulation
Recital 4
Recital 4
(4) In order to enable businesses to reap the full benefits of the internal market, the SPE should be able to have its registered office and principal place of business in different Member States and to transfer its registered office from one Member State to another, with or without also transferring its central administration or principal place of busines; at the same time, however, steps should be taken to prevent SPEs from being misused for regime shopping and circumventing legitimate legal requirements of Member States.
Amendment 55 #
Proposal for a regulation
Article 15 – paragraph 3 a (new)
Article 15 – paragraph 3 a (new)
3a. Member States may provide for disclosure of the list of shareholders in a public register.
Amendment 57 #
Proposal for a regulation
Recital 7
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 and by the relevant Community law. If an SPE created ex nihilo has more than 25 employees, engages in cross-border activities after its creation or transfers its registered office to another Member State, the question whether the company is required to conduct negotiations with its employees on their participation, in line with the rules of the SPE statute, must be examined. If it is so required, a special negotiating body should be set up pursuant to Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees1, in order to reach agreement, in line with Article 5 of that Directive. 1 OJ L 294, 10.11.2001, p. 22.
Amendment 61 #
Proposal for a regulation
Recital 11
Recital 11
(11) The SPE should not be subject to an excessively high mandatory capital requirement since this would be a barrier to the creation of SPEs. Creditors, however, should be protected from excessive contributions to shareholders which could affect 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 and other stakeholders having a significant interest, such as trade unions and the works council, however, should also be free to require the management body of the PSE to sign a solvency certificate and to ask for an independent investigation if necessary.
Amendment 65 #
Proposal for a regulation
Recital 16
Recital 16
(16) Employees’ rights other than rights of participation should remain subject toshould remain subject to Community law and its implementation in Member States, in particular Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees, Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, Council Directive 2001/23/EC of 12 March 2001 on the approximation of the law of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses and Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community.
Amendment 71 #
Proposal for a regulation
Article 35 – paragraph 1 – subparagraph 1
Article 35 – paragraph 1 – subparagraph 1
1. Taking into account Article 9(1) of this Regulation, the registered office of an SPE may be transferred to another Member State, where it effectively carries out its economic activity, in accordance with this Chapter.
Amendment 72 #
Proposal for a regulation
Article 3 - paragraph 1 - point e a (new)
Article 3 - paragraph 1 - point e a (new)
(ea) it shall have as its object significant activity in more than one Member State, and/or than one third of its shares shall be held by shareholders in one or more other Member States.
Amendment 77 #
Proposal for a regulation
Article 3 - paragraph 1 - point e b (new)
Article 3 - paragraph 1 - point e b (new)
(eb) the objectives of the company must be clearly described and consist in producing or trading in goods and/or providing services.
Amendment 83 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
An SPE shall have its registered office and its central administration or principal place of business in the Community. An SPE shall not be under any obligation to have its central administration or principal place of business in the Member State in which it has its registered officeone and the same Member State of the Community.
Amendment 92 #
Proposal for a regulation
Article 8 – paragraph 3 – point b
Article 8 – paragraph 3 – point b
(b) in relation to third parties, in accordance with the provisions of the applicable national law implementing paragraphs 5, 6 and 7 of Article 3 of Directive 68/151/EEC. Reliance in relation to third parties may be subject to disclosure pursuant to Article 3(2) of Directive 68/151/EEC under the national law of the Member State in which the registered office is situated.
Amendment 95 #
Proposal for a regulation
Article 9 – paragraph 3 a (new)
Article 9 – paragraph 3 a (new)
3a. A copy of each registration of an SPE and of all subsequent amendments thereto shall be held in a European register managed by the Commission. The Commission shall monitor the data entered in that register, particularly with a view to avoiding possible abuses and mistakes. Where the Commission, having regard to objective factors, such as the location of the premises, workforce and equipment of the SPE, ascertains that the seat of an SPE is not in conformity with its economic activity, the SPE may be obliged to transfer its seat and be registered in another Member State.
Amendment 96 #
Proposal for a regulation
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Application for registration shall be made by the founding shareholders of the SPE or by any person authorised by them. Such application may be made by electronic means pursuant to Article 3(2) of Directive 68/151/EEC.
Amendment 98 #
Proposal for a regulation
Article 10 – paragraph 2 – point b a (new)
Article 10 – paragraph 2 – point b a (new)
(ba) a description of the cross-border nature of the SPE, as required by Article 3(1)(ea);
Amendment 101 #
Proposal for a regulation
Article 10 – paragraph 2 – point c a (new)
Article 10 – paragraph 2 – point c a (new)
(ca) the list of shareholders in accordance with Article 15;
Amendment 107 #
Proposal for a regulation
Article 10 – paragraph 4 – introductory part
Article 10 – paragraph 4 – introductory part
4. Registration of the SPE mayshall be subject to onlyat least one of the following requirements:
Amendment 112 #
Proposal for a regulation
Article 10 – paragraph 5
Article 10 – paragraph 5
5. The SPE shall submit any change in the particulars or documents referred to in points (a) to (g) of paragraph 2 to the register within 14 calendar days of the day on which the change takes place. After every amendment to the articles of association, the SPE shall submit its complete text to the register as amended to date. Paragraphs 1 and 4 shall apply accordingly. Every amendment shall be disclosed pursuant to Article 3(2) of Directive 68/151/EEC.
Amendment 115 #
Proposal for a regulation
Article 14 – paragraph 4 a (new)
Article 14 – paragraph 4 a (new)
4a. Member States may provide that ownership of shares is to be disclosed in a public register.
Amendment 120 #
Proposal for a regulation
Article 15 – paragraph 3 a (new)
Article 15 – paragraph 3 a (new)
3a. Member States may provide that the list of shareholders is to be disclosed in a public register.
Amendment 123 #
Proposal for a regulation
Article 16
Article 16
1. Subject to Article 27, a decision introducing or amending a restriction on or prohibition of the transfer of shares may be adopted only with the consent of all shareholders affected by the restriction or prohibition in question. 2. All agreements on the transfer of shares shall at least be in written form. Member States may make the entry into force of such agreements conditional on verification of the legality of the transfer by an administrative or judicial body or on their public authentication. 3. On notification of a transfer, the management body shall, without undue delay, enter the shareholder in the list referred to in Article 15, provided that the transfer has been executed in accordance with this Regulation and the articles of association of the SPE and the shareholder submits reasonable evidence as to his lawful ownership of the share. In the circumstances described in Article 14(5), the management body shall be required to file the application for disclosure with the public register without undue delay. 4. Subject to paragraph 3, any transfer of shares shall become effective as follows: (a) in relation to the SPE, on the day the shareholder notifies the SPE of the transfer; (b) in relation to third parties, on the day the shareholder is entered in the list referred to in Article 15 or his share is disclosed in the register referred to in Article 14(5). 5. A transfer of shares shall be valid only if it complies with this Regulation and the articles of association. The provisions of the applicable national law concerning the protection of persons who acquire shares in good faith shall apply. 6a. Article 16(5) shall also apply to cases of pledge and/or usufruct.
Amendment 140 #
Proposal for a regulation
Article 19 – paragraph 4
Article 19 – paragraph 4
4. The capital of the SPE shall be at least EUR 10.000.
Amendment 154 #
Proposal for a regulation
Article 26 – paragraph 2 a (new)
Article 26 – paragraph 2 a (new)
(2a) If the annual average number of its employees exceeds 250, the SPE shall be obliged to establish a supervisory board or, in Member States that have only a one-tier system, to appoint one or more non-executive members of the management body. The supervisory board or, as the case may be, the non-executive members of the management body shall be responsible for the supervision of the functioning of the management. Their exact duties and competences shall depend on the national provisions applicable to such bodies or non-executive directors under the company law and practice of the Member State in which the company’s registered office is situated and shall be set out in the articles of association. Where the thresholds for any of the above requirements are lower in the home Member State, those lower thresholds shall apply.
Amendment 156 #
Proposal for a regulation
Article 29 – paragraph 2
Article 29 – paragraph 2
2. In the case of suspicion of serious breach of law or of the articles of association of the SPE, shareholders holding 5% of the voting rights attached to the shares of the SPE and/or other stakeholders having a significant interest therein shall have the right to request the competent court or administrative authority to appoint an independent expert to investigate and report on the findings of the investigation to shareholders and/or other stakeholders having a significant interest in the SPE.
Amendment 158 #
Proposal for a regulation
Article 31 – paragraph 2
Article 31 – paragraph 2
2. The duties of directors shall be owed to the SPE and its bodies, such as the supervisory board and the works council.
Amendment 159 #
Proposal for a regulation
Article 31 – paragraph 3 a (new)
Article 31 – paragraph 3 a (new)
(3a) An SPE shall have an internal and balanced conflict resolution mechanism, in which the interests of all stakeholders are properly represented, designed to resolve possible conflicts within the management body and/or with other stakeholders having a significant interest in the SPE.
Amendment 163 #
Proposal for a regulation
Article 33 – paragraph 3 a (new)
Article 33 – paragraph 3 a (new)
3a. The appointment, termination of office and particulars of those directors who are authorised to represent the company in relation to third parties and in legal proceedings shall be disclosed in the register referred to in Article 9(1).
Amendment 165 #
Proposal for a regulation
Article 34
Article 34
1. The SPE shallIn the case of an SPE in which the annual average number of employees exceeds 250, the SPE shall, in accordance with Article 26, be subject to the rules on employee participation, ifn any, applicableccordance with the rules applying in the Member State in which it has its registered office, subject to the provisions of this Article. 2. In the case of the transfer of the registered office of an SPE Article 38 shall apply. 3. In the case of a cross-border merger of an SPE with an SPE or other company registered in another Member State, the provisions of the laws of the Member States implementing Directive 2005/56/EC of the European Parliament and of the Council28 shall apply. 1a. In the case of an SPE which, in the aggregate, employs fewer than 50 employees, employee participation shall be governed by the following: – in the SPE as a whole, the legislation of the Member State where its registered office is situated which is applicable to other entities of the same type; – in its subsidiaries and establishments, the legislation of the Member State where those subsidiaries and establishments are situated which is applicable to other entities of the same type. 1b. If at least one third of the total number of employees of the SPE and its subsidiaries and establishments in at least two different Member States so request, or if the total number of employees is equal to or exceeds 50 employees, the following provisions of Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees1 shall apply, mutatis mutandis: – Articles 3 to 7, – Articles 11 to 15, – the Annex. 2. In the case of the transfer of the registered office of an SPE Article 38 shall apply. 2a. Supervisory board members or non- executive members of the management board, alternatively at least 2/5 of the members of the supervisory board or of the non-executive members of the management board in a one-tier system, shall be nominated on a recommendation by, and after approval by, the employees´ representative body. 2b. Where there is a change in the structure of the SPE which significantly affects existing arrangements governing employees' participation rights, Article 38(3) to (6a) shall apply mutatis mutandis. The first subparagraph shall apply, in particular, to cases involving the transfer of the registered office of the SPE, changes in its administrative arrangements, the closure, cutting back or transfer of any of its undertakings or establishments, the merger of any of its establishments or undertakings, and the acquisition by the SPE of substantial holdings in other companies in so far as this has a significant effect on its overall structure, as well as significant changes in the number of persons employed by the SPE and its subsidiaries. 3. In the case of a cross-border merger of an SPE with an SPE or other company registered in another Member State, the provisions of the laws of the Member States implementing Directive 2005/56/EC of the European Parliament and of the Council28 shall apply. In those circumstances, the opening wording of Article 16(2) of that Directive shall read as follows 'However, the rules in force concerning employee participation, if any, in the Member State where the company resulting from the cross-border merger has its registered office shall not apply, where at least one of the merging companies has, in the six months before the publication of the draft terms of the cross-border merger as referred to in Article 6, an average number of workers that exceeds 50 and is operating under an employee participation system within the meaning of Article 2(k) of Directive 2001/86/EC, or where the national law applicable to the company resulting from the cross-border merger does not'. 1 OJ L 207, 18.8.2003, p. 25.
Amendment 172 #
Proposal for a regulation
Article 35 – paragraph 1 – subparagraph 1
Article 35 – paragraph 1 – subparagraph 1
1. Taking into account Article 9(1a) of this Regulation, the registered office of an SPE may be transferred to another Member State where it effectively carries on its economic activity, in accordance with this Chapter.
Amendment 176 #
Proposal for a regulation
Article 38
Article 38
1. The SPE shall be subject, as from the date of registration, to the rules in force in the host Member State, if any, concerning arrangements for the participation of employees. 2. Paragraph 1 shall not apply where the employees of the SPE in the home Member State account for at least one third of the total number of employees of the SPE including subsidiaries or branches of the SPE in any Member State, and where one of the following conditions is met: (a) the legislation of the host Member State does not provide for at least the same level of participation as that operated in the SPE in the home Member State prior to its registration in the host Member State. The level of employee participation shall be measured by reference to the proportion of employee representatives amongst the members of the administrative or supervisory body or their committees or of the management group which covers the profit units of the SPE, subject to employee representation; (b) the legislation of the host Member State does not confer on the employees of establishments of the SPE that are situated in other Member States the same entitlement to exercise participation rights as such employees enjoyed before the transfer. 3. Where one of the conditions set out in points a) or b) of paragraph 2 is met, the management body of the SPE shall take the necessary steps, as soon as possible, after disclosure of the transfer proposal, to start negotiations with the representatives of the SPE’s employees with a view to reaching an agreement on arrangements for the participation of the employees. 4. The agreement between the management body of the SPE and the representatives of the employees shall specify: a) the scope of the agreement; b) where, during the negotiations, the parties decide to establish arrangements for participation in the SPE following the transfer, the substance of those arrangements including, where applicable, the number of members in the company's administrative or supervisory body employees will be entitled to elect, appoint, recommend or oppose, the procedures as to how these members may be elected, appointed, recommended or opposed by employees, and their rights; c) the date of entry into force of the agreement and its duration, and any cases in which the agreement should be renegotiated and the procedure for its renegotiation. 5. Negotiations shall be limited to a period of six months. The parties may agree to extend negotiations beyond this period for an additional six-month period. The negotiations shall otherwise be governed by the law of the home Member State. 6. In the absence of an agreement, the participation arrangements existing in the home Member State shall be maintainedone of the following conditions is met: (a) the legislation of the host Member State does not provide for at least the same level of participation as that operated in the SPE in the home Member State prior to its registration in the host Member State. The level of employee participation shall be measured by reference to the proportion of employee representatives amongst the members of the administrative or supervisory body or their committees or of the management group which covers the profit units of the SPE, subject to employee representation; (b) the legislation of the host Member State does not confer on the employees of establishments of the SPE that are situated in other Member States the same entitlement to exercise participation rights as such employees enjoyed before the transfer. 3. Where one of the conditions set out in points a) or b) of paragraph 2 is met, the participation of workers in the SPE and their involvement in the definition of their participation rights shall be regulated in accordance with the following rules: (a) a special negotiating body representing the employees of the participating companies and of the subsidiaries or establishments concerned shall be set up in accordance with the following provisions: – the members of the special negotiating body must be elected or appointed in proportion to the number of employees employed in each Member State by the participating companies and subsidiaries or establishments concerned, by allocating in respect of a 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 by the participating companies and subsidiaries or establishments concerned in all the Member States taken together; – Member States shall determine the method to be used for the election or appointment of the members of the special negotiating body who are to be elected or appointed in their territories. They shall adopt the necessary measures to ensure that, as far as possible, such members include at least one member representing each participating company which has employees in the Member State concerned. Such measures must not increase the overall number of members. Member States may provide that such members may include representatives of trade unions whether or not they are employees of a participating company or subsidiary or establishment concerned. Without prejudice to national legislation and/or practice laying down thresholds for the establishment of a representative body, Member States shall provide that employees in undertakings or establishments in which, through no fault of their own, there is no employee representation have the right to elect or appoint members of the special negotiating body; (b) the special negotiating body and the competent organs of the participating companies shall determine, by written agreement, arrangements for the involvement of employees within the SPE; (c) subject to point (e), the special negotiating body shall take decisions by an absolute majority of its members, provided that such majority also represents an absolute majority of the employees. Each member shall have one vote. However, should the result of the negotiations lead to a reduction of participation rights, the majority required for a decision to approve such an agreement shall be the votes of two thirds of the members of the special negotiating body representing at least two thirds of the employees, including the votes of members representing employees employed in at least two Member States. Reduction of participation rights means a proportion of members of the organs of the SPE within the meaning of Article 2(k) of Directive 2003/72/EC which is lower than the highest proportion existing within the participating companies; (d) for the purpose of the negotiations, the special negotiating body may request experts of its choice, for example representatives of appropriate Community-level trade union organisations, to assist it with its work. Such experts may be present at negotiation meetings in an advisory capacity at the request of the special negotiating body, in order where appropriate to promote coherence and consistency at Community level. The special negotiating body may decide to inform the representatives of appropriate external organisations, including trade unions, of the start of the negotiations; (e) the special negotiating body may decide by the majority set out below not to open negotiations or to terminate negotiations already opened, and to rely instead on the rules in force in the home Member State which provide for employees to be informed and consulted. The majority required to decide not to open or to terminate negotiations shall be the votes of two thirds of the members representing at least two thirds of the employees, including the votes of members representing employees employed in at least two Member States. The special negotiating body shall be reconvened at the written request of at least 10% of the employees of the SPE, its subsidiaries and establishments, or their representatives, at the earliest two years after the above-mentioned decision, unless the parties agree to negotiations being reopened sooner. If the special negotiating body decides to reopen negotiations with the management but no agreement is reached as a result of those negotiations, the participation arrangements in the home Member State shall be maintained; (f) any expenses relating to the functioning of the special negotiating body and, in general, to negotiations shall be borne by the participating companies so as to enable the special negotiating body to carry out its task in an appropriate manner. 4. The competent organs of the participating companies 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 the employees within the SPE. Without prejudice to the autonomy of the parties, the agreement between the management body of the SPE and the special negotiating body shall specify: a) the scope of the agreement; aa) 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 provision of information to, and consultation of, the employees of the SPE and its subsidiaries and establishments; ab) the functions and the procedure for the provision of information to, and consultation of, the representative body; ac) the frequency of meetings of the representative body; ad) the financial and material resources to be allocated to the representative body; ae) where, during negotiations, the parties decide to establish one or more information and consultation procedures instead of a representative body, the arrangements for implementing those procedures; b) where, during the negotiations, the parties decide to establish arrangements for participation, the substance of those arrangements including, where applicable, the number of members in the SPE's administrative or supervisory body which the employees will be entitled to elect, appoint, recommend or oppose, the procedures as to how those members may be elected, appointed, recommended or opposed by the employees, and their rights; c) the date of entry into force of the agreement and its duration, and any cases in which the agreement should be renegotiated and the procedure for its renegotiation. 5. Negotiations shall be limited to a period of six months. The parties may agree to extend negotiations beyond this period for an additional six-month period. 6. Protection of employees' representatives: the members of the special negotiating body, the members of the representative body, any employees' representatives exercising functions under the information and consultation procedure and any employees' representatives within the supervisory or administrative organ of an SPE who are employees of the SPE, its subsidiaries or establishments, or of a participating company shall, in the exercise of their functions, enjoy the same protection and guarantees as those afforded to employees' representatives by the national legislation and/or practice in force in their country of employment. This shall apply in particular to attendance at meetings of the special negotiating body or representative body, any other meeting held pursuant to the agreement referred to in point (ae) of paragraph 4 or any meeting of the administrative or supervisory organ, and to the payment of wages for members employed by a participating company or the SPE or its subsidiaries or establishments during a period of absence necessary for the performance of their duties.
Amendment 178 #
Proposal for a regulation
Article 38 a (new)
Article 38 a (new)
Article 38a Misuse of procedures Member States shall take appropriate measures in conformity with Community law to prevent the misuse of an SPE for the purpose of depriving employees of rights to employee involvement or withholding such rights.
Amendment 179 #
Proposal for a regulation
Article 38 b (new)
Article 38 b (new)
Article 38b Compliance with this Regulation 1. Each Member State shall ensure that the management of establishments of an SPE and the supervisory or administrative organs of subsidiaries and of participating companies which are situated within its territory and the employees' representatives or, as the case may be, the employees themselves comply with the obligations laid down by this Regulation, regardless of whether or not the SPE has its registered office within its territory. 2. Member States shall provide for appropriate measures in the event of failure to comply with this Regulation. In particular, they shall ensure that administrative or legal procedures are available to enable the obligations laid down by this Regulation to be enforced.
Amendment 180 #
Proposal for a regulation
Article 38 c (new)
Article 38 c (new)
Article 38c Link between this Regulation and other provisions 1. Where an SPE is a Community-scale undertaking or a controlling undertaking of a Community-scale group of undertakings within the meaning of Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees1 or of Directive 97/74/EC of 15 December 1997 extending Directive 94/45/EC to the United Kingdom2, the provisions of those Directives and the provisions transposing them into national legislation shall not apply to the SPE in question or to its subsidiaries. However, where the special negotiating body decides in accordance with point (f) of Article 38(3) not to open negotiations or to terminate negotiations already opened, Directive 94/45/EC or Directive 97/74/EC and the provisions transposing them into national legislation shall apply. 2. This Regulation shall not prejudice: (a) the existing rights to involvement of employees provided for by national legislation and/or practice in the Member States as enjoyed by employees of the SPE and its subsidiaries and establishments, other than participation in the bodies of the SPE; (b) the provisions on participation in the bodies laid down by national legislation and/or practice applicable to the subsidiaries of the SPE. 3. 3. Member States may take the necessary measures to guarantee that the structures of employee representation in participating companies which will cease to exist as separate legal entities are maintained after the registration of the SPE. 1 OJ L 254, 30.9.1994, p. 64. 2 OJ L 10, 16.1.1998, p. 22.