Procedure completed
| Role | Committee | Rapporteur | Shadows |
|---|---|---|---|
| Opinion | ECON | ETTL Harald (PSE) | |
| Lead | JURI | LEHNE Klaus-Heiner (PPE-DE) |
Legal Basis RoP 042
Activites
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2009/03/10
Text adopted by Parliament, single reading
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T6-0086/2009
summary
The European Parliament adopted by 608 votes to 51, with 13 abstentions, a resolution with recommendations to the Commission on the cross-border transfer of the registered office of a company (Initiative - Rule 39 of the Rules of Procedure). Undertakings can currently transfer their seat only either by dissolution and establishing a new legal entity in the Member State of destination, or by establishing a new legal entity in the Member State of destination and then merging both undertakings. The resolution notes that this procedure involves administrative obstacles, costs and social consequences and offers no legal certainty. Therefore, Parliament calls on the Commission to submit to Parliament by 31 March 2009, a legislative proposal for a directive laying down measures for coordinating Member States' national legislation in order to facilitate the cross-border transfer within the Community of the registered office of a company formed in accordance with the legislation of a Member State ("14th Company Law Directive"). Parliament proposes that reference be made in the new directive to Directive 94/45/EC and Directive 2005/56/EC, in order to guarantee the coherence and substantive nature of employee participation procedures in the application of EU company law directives. Parliament also takes the view that a transfer of a company's seat must be preceded by the issuing of a transfer plan and a report explaining and justifying the legal and economic aspects and any consequences of the transfer for shareholders and employees. It points out that the transfer plan and the report must be made available in good time to all those involved. According to MEPs, a transfer of a company seat should be tax-neutral and the exchange of information and mutual assistance between tax authorities be improved. Parliament calls for transparency in the application of the new directive in the Member States and therefore proposes a reporting requirement for Member States vis-à-vis the Commission whereby undertakings transferring their registered office under the directive must be entered in a European companies register. It points out that, in the interests of better law-making, excessive information ("overkill") must be avoided when the reporting requirement is transposed into national law, provided that sufficient information is guaranteed. The European Parliament requests the Commission to put forward a proposal for a directive that should contain the following elements: Recommendation 1 (effects of a cross-border transfer of the registered office): cross-border transfers of registered offices shall not give rise to the winding-up of the company concerned or to any interruption or loss of its legal personality. Furthermore, the transfer shall not circumvent legal, social and fiscal conditions. Recommendation 2 (transfer procedure within the company): the management or board of a company planning a transfer shall be required to draw up a transfer proposal. The proposal shall cover, inter alia: (i) the legal form, name and registered office of the company in the home Member State and the envisaged legal form, name and registered office of the company in the host Member State; (ii) the memorandum and articles of association envisaged for the company in the host Member State; (iii) the timetable envisaged for the transfer; (iv) the date from which the transactions of the company intending to transfer its registered office will be treated for accounting purposes as being located in the host Member State; (v) the rights guaranteed to the company's members, employees and creditors or the relevant measures proposed; (vi) if the company is managed on the basis of employee participation and if the national legislation of the host Member States does not impose such a scheme, information on the procedures whereby the arrangements for employee participation are determined. The transfer proposal shall be submitted to the members and employee representatives of the company for examination within an appropriate period prior to the date of the company's meeting of shareholders. A report should be drawn up, explaining and justifying the proposal's legal and economic aspects and indicating the consequences for the company's members, creditors and employees. Recommendation 3 (transfer decision by meeting of the shareholders): the shareholders' meeting shall approve the transfer proposal in accordance with the arrangements laid down and by the majority required to amend the memorandum and articles of association under the legislation applicable to the company in its home Member State. If the company is managed on the basis of employee participation, the shareholders' meeting may make completion of the transfer conditional on its expressly approving the arrangements for employee participation. Recommendation 4 (administrative transfer procedure and verification): the home Member State shall verify the legality of the transfer procedure in accordance with its legislation. The competent authority designated by the home Member State shall issue a certificate conclusively declaring that all the acts and formalities required have been completed. Recommendation 5 (employee participation): employee participation shall be governed by the legislation of the host Member State . However, the legislation of the host Member State shall not be applicable where the host Member State does not provide for at least the same level of participation as operated in the company in the home Member State. Recommendation 6 (third parties concerned by the transfer): any company against which proceedings for winding-up, liquidation, insolvency or suspension of payments or other similar proceedings have been brought shall not be allowed to undertake a cross-border transfer of its registered office within the Community.
- Results of vote in Parliament
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T6-0086/2009
summary
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2009/03/10
Commission response to text adopted in plenary
- SP(2009)3244
- DG Internal Market and Services, MCCREEVY Charlie
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2009/03/09
Debate in Parliament
- 2009/01/29 Committee report tabled for plenary, single reading
- 2009/01/29 Committee report tabled for plenary, single reading
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2009/01/20
Vote in committee, 1st reading/single reading
- 2008/10/17 Committee draft report
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2008/09/23
Referral to associated committees announced in Parliament
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2008/09/23
Committee referral announced in Parliament, 1st reading/single reading
Documents
- Committee draft report: PE414.360
- Committee report tabled for plenary, single reading: A6-0040/2009
- Committee report tabled for plenary, single reading: A6-0040/2009
- Decision by Parliament, 1st reading/single reading: T6-0086/2009
- Results of vote in Parliament: Results of vote in Parliament
- Commission response to text adopted in plenary: SP(2009)3244
| Amendments | Dossier |
| 25 |
2008/2196(INI)
2008/10/15
ECON
10 amendments...
Amendment 1 #
Draft opinion Paragraph 1 a (new) 1a. Draws attention to the freedom of establishment that is guaranteed for companies under Article 48 of the EC Treaty and has been interpreted by the Court of Justice of the European Communities1;
Amendment 10 #
Draft opinion Paragraph 8 8. Calls for transparency in the application of the new directive in the Member States and therefore proposes a reporting requirement for Member States vis-à-vis the Commission, whereby firms transferring their seat in application of the directive must be listed in a European companies register; points out that, in the interest of better law-making, excessive information (‘overkill’) must be avoided when transposing the reporting requirement into national law.
Amendment 2 #
Draft opinion Paragraph 2 2. Notes that the transfer of a company’s seat goes hand in hand with the transfer of supervision
Amendment 3 #
Draft opinion Paragraph 2 2. Notes that the transfer of a company’s seat goes hand in hand with the transfer of supervision, and that a 14th Directive must
Amendment 4 #
Draft opinion Paragraph 3 3. Proposes that reference be made to
Amendment 5 #
Draft opinion Paragraph 4 4. Takes the view that the transfer of a company seat must be preceded by the issuing of a transfer plan and of a report
Amendment 6 #
Draft opinion Paragraph 4 a (new) 4a. Draws attention to the special responsibility of the social partners at European level for the proper treatment of employees’ existing participation rights in the internal market and accordingly proposes to notify the relevant employees’ and employers’ associations of the start of negotiations on co-determination;
Amendment 7 #
Draft opinion Paragraph 4 b (new) 4b. Takes the view that the Member State of origin should grant certain groups of people, particularly minority shareholders and creditors, special protective measures;
Amendment 8 #
Draft opinion Paragraph 5 5.
Amendment 9 #
Draft opinion Paragraph 5 5. Stresses that decisions on the transfer of a company seat may be taken for reasons
source: PE-414.288
2008/12/15
JURI
15 amendments...
Amendment 1 #
Motion for a resolution Citation 2 a (new) – having regard to Article 293 of the EC Treaty,
Amendment 10 #
Motion for a resolution Recommendation 1 Cross-border transfers of registered offices shall not give rise to the winding-up of the company concerned or to any interruption or loss of its legal personality; consequently, the company shall retain its legal identity and all its assets, liabilities and contractual relations shall remain unaffected. The transfer shall take effect on the date of registration in the host Member State. From the date of registration in the host Member State, the company shall be governed by the legislation of that State.
Amendment 11 #
Motion for a resolution Recommendation 2 – paragraph 1 – point g (g) the rights guaranteed to the company’s members, employees and creditors or the relevant measures proposed;
Amendment 12 #
Motion for a resolution Recommendation 2 – paragraph 1 – point h (h) if the company is managed on the basis of employee participation and if the national legislation of the host Member States does not impose such a scheme, information on the procedures whereby the arrangements for employee participation are to be determined in accordance with the procedures set out in recommendation 5.
Amendment 13 #
Motion for a resolution Recommendation 3 The general meeting shall approve the transfer proposal in accordance with the arrangements laid down and by the majority required to amend the memorandum and articles of association under the legislation applicable to the company in its home Member State.
Amendment 14 #
Motion for a resolution Recommendation 4 – paragraph 1 The home Member State shall verify, in accordance with its legislation, the legality of the transfer procedure. The competent authority designated by the home Member State shall issue a certificate conclusively declaring that all the acts and formalities required have been completed. The home Member State shall make available to companies registered within its territory a legal procedure whereby the applicable company law can be changed without any interruption or loss of legal personality whilst retaining the rules governing the internal decision to reincorporate, in such a way as to prevent the board from being able to exert influence on the shareholders’ decision to reincorporate abroad and thereby maximise the board’s interest at the expense of the shareholders.
Amendment 15 #
Motion for a resolution Recommendation 4 – paragraph 4 Registration in the host Member State and removal from the register in the home Member State shall be published.
Amendment 2 #
Motion for a resolution Recital A a (new) Aa. whereas cross-border company migration is one of the crucial elements in the completion of the internal market,
Amendment 3 #
Motion for a resolution Recital B B. whereas a cross-border transfer of the registered office of a company should not circumvent legal, social and fiscal conditions and should not give rise to its winding-up or any other interruption or loss of legal personality,
Amendment 4 #
Motion for a resolution Recital C C. whereas the rights of third parties concerned by the transfer, such as minority shareholders, employees and creditors, etc, should be
Amendment 5 #
Motion for a resolution Recital C C. whereas the rights of oth
Amendment 6 #
Motion for a resolution Recital D a (new) Da. whereas the rule requiring a company to maintain its head office and its registered office in the same Member State runs counter to the case-law of the Court of Justice on freedom of establishment and therefore infringes EC law,
Amendment 7 #
Motion for a resolution Recital E a (new) Ea. whereas the directive hereby proposed should take into account all interests affected by companies’ mobility and should harmonise the rules governing the timing of, and procedures for, the transfer of a registered office,
Amendment 8 #
Motion for a resolution Paragraph 1 1. Requests the Commission to submit to Parliament
Amendment 9 #
Motion for a resolution Recommendation 1 Cross-border transfers of registered offices shall not circumvent legal, social and fiscal conditions and shall not give rise to the winding-up of the company concerned or to any interruption or loss of its legal personality. The transfer shall take effect on the date of registration in the host Member State. From the date of registration in the host Member State, the company shall be governed by the legislation of that State.
source: PE-416.459
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