2018/0114(COD) Cross-border conversions, mergers and divisions
Lead committee dossier:
Progress: Procedure completed
| Role | Committee | Rapporteur | Shadows |
|---|---|---|---|
| Lead | JURI |
REGNER Evelyn ( S&D)
|
DE GRANDES PASCUAL Luis ( PPE),
DZHAMBAZKI Angel ( ECR),
KARIM Sajjad ( ECR),
ROHDE Jens ( ALDE),
DURAND Pascal ( Verts/ALE)
|
| Committee Opinion | EMPL |
MCINTYRE Anthea ( ECR)
|
Paloma LÓPEZ BERMEJO ( GUE/NGL),
Jasenko SELIMOVIC ( ALDE),
Csaba SÓGOR ( PPE)
|
| Committee Opinion | IMCO | ||
| Committee Opinion | ECON |
LUDVIGSSON Olle ( S&D)
|
Barbara KAPPEL ( ENF),
Stanisław OŻÓG ( ECR),
Ramon TREMOSA i BALCELLS ( ALDE)
|
Lead committee dossier:
Legal Basis:
TFEU 050-p1, TFEU 050-p2
Legal Basis:
TFEU 050-p1, TFEU 050-p2Subjects
Events
2019/12/12
Final act published in Official Journal
Details
PURPOSE: to facilitate cross-border transformations, mergers and divisions of EU companies with a view to ensuring greater cross-border mobility of companies.
LEGISLATIVE ACT: Directive (EU) 2019/2121 of the European Parliament and of the Council amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions.
CONTENT: the Directive amends Directive (EU) 2017/1132 and aims to eliminate unjustified barriers to the freedom of establishment of EU companies in the single market by facilitating cross-border transformations, mergers and divisions of EU companies.
The European Parliament has called on the Commission to adopt harmonised rules on cross-border transformations and divisions. The Court of Justice of the European Union also stressed the need to adopt harmonised rules on the transfer of the seat of companies within the internal market that provide adequate protection of the legitimate interests of shareholders, creditors and employees.
This Directive introduces comprehensive procedures for cross-border transformations and divisions and provides for additional rules on cross-border mergers of limited liability companies established in an EU Member State.
The main elements of the amending Directive are as follows:
Cross-border operations
To allow all stakeholders’ legitimate interests to be taken into account in the procedure governing a cross-border operation, the company shall draw up and disclose the draft terms of the proposed operation, containing the most important information about it. Such information shall at least include the legal form envisaged for the company or companies, the instrument of constitution where applicable, the statutes, the proposed indicative timetable for the operation and details of any safeguards offered to members and creditors.
The company carrying out the cross-border operation shall draw up a report in order to provide information to its members and employees. It shall explain and justify the legal and economic aspects of the proposed cross-border operation and the implications of the proposed cross-border operation for employees. In particular, the report shall explain the implications of the cross-border operation with regard to the future business of the company, including its subsidiaries.
The Directive include the possibility of speeding up the procedure by waiving reports for members and employees in the event that shareholders agree, or if the company or any of its subsidiaries do not have any employees.
Protection of shareholders, creditors and employee participation
The Directive provides for similar rules concerning employees' participation rights in cross-border conversions, mergers and divisions. It shall also ensure that workers are properly informed and consulted about the expected effects of the operation. The rights of minority or non-voting shareholders shall be better protected. At the same time, the creditors of the company concerned should benefit from clearer and more adequate guarantees.
Scrutiny of the legality of operations
The Directive establishes procedures for verifying the legality of cross-border transactions and introduces a mandatory monitoring procedure that shall allow national authorities to block a cross-border transaction when it is carried out for abusive or fraudulent purposes, such as circumventing workers' rights, the payment of social security contributions or tax obligations, or for criminal purposes. In particular, the aim is to prevent the creation of shell companies or mailboxes aimed at evading Union or national law.
Such completion of procedures and formalities may comprise the satisfaction of payments, or securing payments or non-pecuniary obligations due to public bodies or the compliance with special sectorial requirements, including securing payments or obligations arising from ongoing proceedings.
Member States may require that the application to obtain a pre-conversion certificate is accompanied by additional information, such as, in particular on the number of employees at the time of the drawing up of the draft terms of the conversion; on subsidiaries and their respective geographic allocation; regarding the fulfilment of obligations due to public bodies by the company.
Use of digital tools
Member States shall ensure that the completion of certain procedural steps, namely, the disclosure of the draft terms, the application for pre-conversion, pre-merger or pre-division certificate (pre-operation certificate) as well as the submission of any information and documents for the scrutiny of the legality of the cross-border conversion, merger or division by the destination Member State, may be completed online in their entirety without the necessity for the applicants to appear in person before any competent authority in the Member States.
ENTRY INTO FORCE: 1.1.2020.
TRANSPOSITION: no later than 31.1.2023.
2019/11/27
CSL - Draft final act
Documents
2019/11/27
CSL - Final act signed
2019/11/25
EP - End of procedure in Parliament
2019/10/17
EP/CSL - Act adopted by Council after Parliament's 1st reading
2019/08/08
EC - Commission response to text adopted in plenary
Documents
2019/04/18
EP - Decision by Parliament, 1st reading
Details
The European Parliament adopted by 511 votes to 54, with 16 abstentions, a legislative resolution on the proposal for a directive of the European Parliament and of the Council amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions.
The proposed Directive shall aim to remove unjustified obstacles to the freedom of establishment of EU companies in the Single Market by facilitating cross-border conversions, mergers and divisions of EU companies. It shall introduce comprehensive procedures for cross-border conversions and divisions and provide additional rules for cross-border mergers of limited liability companies established in an EU Member State.
The European Parliament’s position adopted at first reading under the ordinary legislative procedure amended the Commission proposal as follows:
Cross-border conversion
The Directive shall specify the minimum range of information to be provided in the cross-border conversions that will be made available to any person interested in the operation. The conversions shall thus provide information on, for example:
- the legal form, name and location of its registered office of the company in the departure Member State as well as the legal form, name and location of its registered office proposed for the converted company in the destination Member State;
- the instrument of constitution, where applicable, and the statutes if they are contained in a separate instrument, of a company in the destination Member State;
- the proposed indicative timetable for the cross-border conversion;
- the rights conferred by the converted company on members enjoying special rights or on holders of securities other than shares representing the company capital, or the measures proposed concerning them;
- safeguards, such as guarantees or pledges, where offered to creditors;
- if any incentive or subsidies were received by the company in the departure Member State in the last 5 years.
The management or administrative organ of the company shall draw up a report to members and employees explaining and justifying the legal and economic aspects of the cross-border conversion as well as explaining the implications of the cross-border conversion for employees.
Independent expert report
Member States shall ensure that an independent expert examines the draft terms of the cross-border conversion and draws up a report intended for members which is made available to them not less than one month before the date of the general meeting.
The expert shall be entitled to secure from the company all the necessary information for the discharge of his/her duties.
Member States shall have rules in place to ensure that the expert or the legal person on whose behalf the expert is operating, is independent and has no conflict of interest from the company applying for the pre-conversion certificate.
After taking note of the reports and the employees’ opinions, the general meeting of the company shall decide, by means of a resolution, whether to approve the draft terms of the cross-border conversion and whether to adapt the instrument of constitution, and the statutes if they are contained in a separate instrument.
Protection of shareholders, creditors and employee participation
The amended text provides for similar rules concerning employees' participation rights in cross-border conversions, mergers and divisions. It shall also ensure that workers are properly informed and consulted about the expected effects of the operation. The rights of minority or non-voting shareholders shall be better protected. At the same time, the creditors of the company concerned should benefit from clearer and more adequate guarantees.
Scrutiny of the legality of operations
Member States shall designate the court, notary or other authority or authorities 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.
Such completion of procedures and formalities may comprise the satisfaction of payments, or securing payments or non-pecuniary obligations due to public bodies or the compliance with special sectorial requirements, including securing payments or obligations arising from ongoing proceedings.
Member States may require that the application to obtain a pre-conversion certificate is accompanied by additional information, such as, in particular on the number of employees at the time of the drawing up of the draft terms of the conversion; on subsidiaries and their respective geographic allocation; regarding the fulfilment of obligations due to public bodies by the company.
The assessment by the competent authority shall be carried out within three months of the date of receipt of the documents and information concerning the approval of the cross-border transformation by the company's general meeting. This period may be extended by an additional three months if the competent authority has serious doubts as to whether the cross-border processing is being carried out for abusive or fraudulent purposes.
If the competent authority, through the scrutiny of legality, has serious doubts that the cross-border conversion is set up for abusive or fraudulent purposes leading or aimed to lead to evasion or circumvention of national or EU law, or for criminal purposes, it shall not authorise the transaction in question.
Use of digital tools
Member States shall ensure that the completion of certain procedural steps, namely, the disclosure of the draft terms, the application for pre-conversion, pre-merger or pre-division certificate (pre-operation certificate) as well as the submission of any information and documents for the scrutiny of the legality of the cross-border conversion, merger or division by the destination Member State, may be completed online in their entirety without the necessity for the applicants to appear in person before any competent authority in the Member States.
Documents
2019/04/17
EP - Debate in Parliament
Documents
2019/03/31
EP - Approval in committee of the text agreed at 1st reading interinstitutional negotiations
Documents
2019/03/27
CSL - Coreper letter confirming interinstitutional agreement
Documents
2019/01/17
EP - Results of vote in Parliament
Documents
2019/01/17
EP - Committee decision to enter into interinstitutional negotiations confirmed by plenary (Rule 71 - vote)
2019/01/14
EP - Committee decision to enter into interinstitutional negotiations announced in plenary (Rule 71)
2019/01/10
EP - Committee report tabled for plenary, 1st reading
Details
The Committee on Legal Affairs adopted the report by Evelyn REGNER (S&D, AT) on the proposal for a directive of the European Parliament and of the Council amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions.
The Committee on Employment and Social Affairs, exercising its prerogatives as an associated committee, also gave its opinion on this report.
The committee responsible recommended that the European Parliament's position adopted at first reading under the ordinary legislative procedure should amend the Commission's proposal as follows:
Compliance with the conditions for cross-border conversions
Members specified that the court, notary or any other competent authority designated by the Member States of departure and destination should check that cross-border processing complies with the conditions laid down in the directive. Conversion would not be authorised where the competent authority of the Member State of departure discovers, having assessed the case in question, the existence of an artificial arrangement.
Members specified the minimum range of information to be provided in the cross-border conversion project that will be made available to anyone interested in the operation. The cross-border conversion project should thus provide information concerning, for example:
- the location and date of transfer of the company's registered office to the Member State of destination, as well as information on the management body and, where applicable, on staff, equipment, premises and assets;
- the number of employees on a full-time equivalent basis;
- the likely effects of cross-border conversion on employment and the expected consequences for employees;
- the name of the ultimate company and, where applicable, the list of all its subsidiaries, a brief description of the nature of their activities and their respective geographical distribution;
- the total turnover and the total taxable turnover of the converting company for the last reporting period;
- the amount of income tax paid by the converting company and its subsidiaries and branches.
Assessment by the competent authority
The competent authority should start processing the application within 10 working days of receiving the documents and information on the company and the proposed cross-border conversion. Members have removed the requirement to consult an independent expert when carrying out an in-depth assessment. If, however, the competent authority calls upon an independent expert, this expert should be appointed within one month on the basis of a pre-established list.
The competent authority should draw up a report after consulting, if necessary, third parties with a legitimate interest in the conversion of the company, in particular the tax, labour and social security authorities. The competent authority would be entitled to obtain from the company carrying out the cross-border conversion all relevant information and documents. It would also be able to put questions to the competent authority of the destination Member State as well as be entitled to receive further comments and opinions from the representatives of the company's employees.
A company would not be allowed to carry out a cross-border conversion:
- where the competent authority has serious concerns that the cross-border conversion constitutes an artificial arrangement;
- if the company is subject to a preventive restructuring proceedings initiated because of the likelihood of insolvency or is subject to checks, inspections or investigations provided for in Chapter VI of Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market, or in Directive 2014/67/EU of the European Parliament and of the Council concerning the posting of workers in the framework of the provision of services;
- if the company has been convicted by a court in the last three years or is subject to ongoing legal proceedings due to infringements of social, taxation, environmental and labour law, or concerning fundamental and human rights violations.
Genuine economic activity
Member States should also be required to ensure that cross-border conversions correspond to the actual pursuit of a genuine economic activity, including in the digital sector, through a fixed establishment in the destination Member State for an indefinite period, in order to avoid the setting up of ‘letterbox’ or ‘front’ companies with the purpose of evading, circumventing or infringing national and/or EU law.
Strengthening employee participation
In order to protect employees’ interests, especially worker’ board level representation, existing under national laws in 17 Member States in different forms, Members propose to further protect workers' rights to participation, information and consultation in order to ensure that the cross-border mobility of companies never leads to a restriction of these rights.
Following the conversion, the company carrying out the cross-border conversion should thus continue to observe the terms and conditions agreed in any collective agreement on the same terms as those applicable under that agreement to the company prior to the conversion.
The Directive would thus complement the requirements already contained in Council Directives 2002/14/EC, 2001/23/EC and 2009/38/EC which ensure that unnecessary administrative burdens do not undermine the current provisions in place for information, consultation and participation of employees.
Documents
2018/12/06
EP - Vote in committee, 1st reading
2018/12/06
EP - Committee decision to open interinstitutional negotiations with report adopted in committee
2018/12/06
EP - Committee decision to open interinstitutional negotiations with report adopted in committee
2018/11/21
EP - Committee opinion
Documents
2018/11/14
EP - Committee opinion
Documents
2018/10/17
ESC - Economic and Social Committee: opinion, report
Documents
2018/10/04
EP - Referral to associated committees announced in Parliament
2018/09/26
EP - Amendments tabled in committee
Documents
2018/09/26
EP - Amendments tabled in committee
Documents
2018/09/25
EP - Amendments tabled in committee
Documents
2018/09/24
DE_BUNDESRAT - Contribution
Documents
2018/08/21
EP - Committee draft report
Documents
2018/07/26
EDPS - For information
Documents
2018/07/15
PT_PARLIAMENT - Contribution
Documents
2018/07/11
EP - MCINTYRE Anthea (ECR) appointed as rapporteur in EMPL
2018/05/31
EP - LUDVIGSSON Olle (S&D) appointed as rapporteur in ECON
2018/05/28
EP - Committee referral announced in Parliament, 1st reading
2018/05/15
EP - REGNER Evelyn (S&D) appointed as rapporteur in JURI
2018/04/26
EC - Document attached to the procedure
Documents
2018/04/26
EC - Document attached to the procedure
Documents
2018/04/25
EC - Legislative proposal published
Details
PURPOSE: to propose new company law rules to facilitate the conversions, mergers and divisions of companies within the Single Market.
PROPOSED ACT: Directive of the European Parliament and of the Council.
ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with the Council.
BACKGROUND: there are around 24 million companies in the EU, out of which approximately 80% are limited liability companies. Around 98-99% of limited liability companies are SMEs. The freedom of establishment plays a crucial role in the development of the Single Market as it allows corporate entities to pursue economic activities in other Member States on a stable basis. However, in practice the exercise of the freedom of establishment by companies remains difficult , in particular because company law is not sufficiently adapted to cross-border mobility in the EU.
The Court of Justice of the European Union (ECJ) has considered that the freedom of establishment enshrined in Article 49 TFEU entails the right, for companies established in a Member State, to transfer their seat to another Member State through a cross-border conversion without losing their legal personality. In particular in its recent judgement Polbud, the ECJ confirmed the right of companies to carry out cross-border conversions on the basis of the freedom of establishment .
Currently, companies wishing to move their registered offices cross-border need to rely on Member States' laws. Such laws, where they exist, are often incompatible or difficult to combine with each other. Moreover, more than half of the Member States do not provide any specific rules allowing for cross-border conversions. SMEs are in particular negatively impacted since often they lack resources to perform cross-border procedures through costly and complicated alternative methods. This also means that the protection of stakeholders such as employees, creditors or minority shareholders is often ineffective or insufficient due to the lack of, overlapping or contradictory rules.
Therefore, the Commission considers that the EU legislator needs to step in and provide for rules on cross-border conversion with adequate and proportionate safeguards for employees, creditors and shareholders to create a dynamic and fair Single Market.
IMPACT ASSESSMENT: the chosen options consist in introducing:
harmonised EU procedures to enable companies to carry-out direct cross-border conversions and divisions; harmonised rules throughout the single market to protect minority shareholders and creditors with the possibility for Member States to provide additional safeguards; targeted amendments to provide workers with the necessary protection, information, consultation and participation; rules and procedures whereby Member States would assess on a case-by-case basis whether the cross-border conversion constitutes an artificial arrangement designed to obtain undue tax advantages or to undermine the rights of employees, minority shareholders or creditors.
According to the Commission, the new common rules on cross-border conversions and divisions would result in savings of between EUR 12 000 and EUR 37 000 (for divisions) and between EUR 12 000 and 19 000 (for conversions) depending on the size of the companies and Member States concerned.
CONTENT: this proposal to amend Directive (EU) 2017/1132 of the European Parliament and of the Council on cross-border mergers of limited liability companies introduces a new European legal framework for cross-border divisions of companies and firms.
The objective of this proposal is two-fold: provide specific and comprehensive procedures for cross-border conversions, divisions and mergers to foster cross-border mobility in the EU while, at the same time, offering company stakeholders adequate protection in order to safeguard the fairness of the Single Market.
(1) Cross-border conversions : the proposal should allow companies to carry out a cross-border conversion by converting the legal form they have in one Member State into a similar legal form in another Member State. This process should ensure: (i) that companies retain their legal personality throughout the procedure, without being obliged to dissolve or wind up in the departure Member State, and (ii) that they constitute a new entity in the Member State of destination.
A crucial element of the procedure is that it would prevent a cross-border conversion where it is determined that it constitutes an abuse , namely in cases where it constitutes an artificial arrangement aimed at obtaining undue tax advantages or at unduly prejudicing the legal or contractual rights of employees, creditors or minority members.
The first step in the procedure would be the preparation of the draft terms of the cross-border conversion and two targeted reports addressed to shareholders and employees on the implications that the cross-border conversion will have.
Thereafter, the company is to take a decision at the general meeting on whether to pursue the cross-border conversion. That decision, together with the relevant information and documents, would then be submitted to the competent national authority of the Member State of departure which is responsible to decide whether to issue a pre-conversion certificate or not .
The authority would determine if all conditions for the cross-border conversion laid down in the Directive and in national law are fulfilled, including whether the company is solvent, the requisite majority of shareholders has approved the conversion at a general meeting and employees, minority shareholders and creditors are protected within the remit prescribed by the Directive. During this phase, the authority would also determine whether there is an artificial arrangement. If such an arrangement were to be established, the operation would be interrupted by the national authority of the Member State of departure even before the conversion may take place.
The pre-conversion certificate shall be sent without delay to the competent authority of the Member State of destination which should examine the legality of the processing. Once the legality check has been carried out, a company would be registered in the register of a Member State of destination and deregistered in the register of a Member State of departure. The conversion shall then become legally effective.
(2) Cross-border mergers : the proposal seeks to address the shortcomings in the existing texts by providing in particular for harmonised rules for the protection of creditors and shareholders.
The company should provide, in the cross-border transformation project, the protection it intends to provide to creditors and shareholders. Creditors not satisfied with the protection offered could apply to the appropriate administrative or judicial authority for adequate safeguards. Shareholders who have not voted for cross-border mergers or do not have voting rights would have the right to leave the company (sell their shares) and receive adequate compensation.
Furthermore, the proposed rules ensure that workers shall be informed of the implications that the proposed cross-border merger will have for workers.
(3) Cross-border divisions : the proposal also simplifies the procedures allowing any capital company to carry out a cross-border division.
The objectives of the harmonised rules on cross-border divisions remain similar to cross-border conversions : (i) enable companies to divide cross-border in an orderly, efficient and effective manner; (ii) protect the most affected stakeholders such as employees, creditors and shareholders in a suitable and proportionate manner.
The procedure would ensure the scrutiny of legality of the cross-border division by the competent authority of the company being divided and by the authorities of the recipient companies in the light of all relevant facts and information. As in conversions, a crucial element of the procedure would be preventing a cross-border division where it is determined that it constitutes an abuse.
Documents
Documents
- Final act published in Official Journal: Directive 2019/2121
- Final act published in Official Journal: OJ L 321 12.12.2019, p. 0001
- Final act published in Official Journal: Corrigendum to final act 32019L2121R(01)
- Final act published in Official Journal: OJ L 020 24.01.2020, p. 0024
- Draft final act: 00084/2019/LEX
- Commission response to text adopted in plenary: SP(2019)440
- Decision by Parliament, 1st reading: T8-0429/2019
- Debate in Parliament: Debate in Parliament
- Approval in committee of the text agreed at 1st reading interinstitutional negotiations: GEDA/A/(2019)004508
- Coreper letter confirming interinstitutional agreement: GEDA/A/(2019)004508
- Results of vote in Parliament: Results of vote in Parliament
- Committee report tabled for plenary, 1st reading: A8-0002/2019
- Committee opinion: PE625.383
- Committee opinion: PE625.345
- Economic and Social Committee: opinion, report: CES1917/2018
- Amendments tabled in committee: PE627.948
- Amendments tabled in committee: PE628.353
- Amendments tabled in committee: PE628.354
- Contribution: COM(2018)0241
- Committee draft report: PE625.524
- For information: N8-0092/2018
- For information: OJ C 324 13.09.2018, p. 0013
- Contribution: COM(2018)0241
- Document attached to the procedure: EUR-Lex
- Document attached to the procedure: SWD(2018)0141
- Document attached to the procedure: EUR-Lex
- Document attached to the procedure: SWD(2018)0142
- Legislative proposal published: COM(2018)0241
- Legislative proposal published: EUR-Lex
- Document attached to the procedure: EUR-Lex SWD(2018)0141
- Document attached to the procedure: EUR-Lex SWD(2018)0142
- For information: N8-0092/2018 OJ C 324 13.09.2018, p. 0013
- Committee draft report: PE625.524
- Amendments tabled in committee: PE628.354
- Amendments tabled in committee: PE627.948
- Amendments tabled in committee: PE628.353
- Economic and Social Committee: opinion, report: CES1917/2018
- Committee opinion: PE625.345
- Committee opinion: PE625.383
- Coreper letter confirming interinstitutional agreement: GEDA/A/(2019)004508
- Commission response to text adopted in plenary: SP(2019)440
- Draft final act: 00084/2019/LEX
- Contribution: COM(2018)0241
- Contribution: COM(2018)0241
Activities
- Michael DETJEN
Plenary Speeches (1)
- Luis de GRANDES PASCUAL
Plenary Speeches (1)
- Olle LUDVIGSSON
Plenary Speeches (1)
- Rupert MATTHEWS
Plenary Speeches (1)
Votes
A8-0002/2019 - Evelyn Regner - décision d'engager des négociations interinstitutionnelles #
2019/01/17 Outcome: +: 502, -: 112, 0: 9
NI
EFDDA8-0002/2019 - Evelyn Regner - Am 340 18/04/2019 12:17:47.000 #
2019/04/18 Outcome: +: 511, -: 54, 0: 16
A8-0002/2019 - Evelyn Regner - Am 340 #
2019/04/18 Outcome: +: 511, -: 54, 0: 16
| Amendments | Dossier |
| 1511 |
2018/0114(COD)
2018/09/11
ECON
399 amendments...
Amendment 100 #
Proposal for a directive Recital 2 b (new) (2b) Moving towards a common and consolidated corporate tax system at the Union level and ensuring minimum common social standards in all Member States should be a pre-condition for common rules on company mobility, to allow for fair competition and a level playing field that does not put any Member State or stakeholder at a disadvantage.
Amendment 101 #
Proposal for a directive Recital 3 (3) In the absence of harmonisation of Union law, the definition of the connecting factor that determines the national law applicable to a company or firm falls, in accordance with Article 54 of the TFEU, within the competence of each Member State to so define. Article 54 of the TFEU places the factor of the registered office, the central administration and the principal place of business of a company or firm at the same degree of connection.
Amendment 102 #
Proposal for a directive Recital 4 (4) These developments in the case-law have opened up new opportunities for companies and firms in the Single Market in order to foster economic growth, effective competition and productivity. At the same time, the objective of a Single Market without internal borders for companies must also be reconciled with other objectives of European integration such as social protection (in particular the protection of workers), the protection of creditors and the protection of shareholders, as well as the fight against attacks on financial interests of the Union via for example money laundering and tax evasion. Similarly, the Union committed to respect the EU Charter of Fundamental Rights. The freedom of establishment shall in no way undermine other values and principles guaranteed by the TFEU such as the promotion of a high level of employment and the guarantee of adequate social protection (Article 9), improved living and working conditions and dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion (Article 151) or countering fraud and any other illegal activities affecting the financial interests of the Union (Article 310). Such objectives, in the absence of harmonised rules specifically regarding cross-border conversions, are pursued by Member States through a number of multifarious legal provisions and administrative practices. As a result, whereas companies are already able to merge cross-border, they experience a number of legal and practical difficulties when wishing to perform a cross-border conversion. Moreover, the national legislation of many Member States provides for the procedure of domestic conversions without offering an equivalent procedure for converting cross-border.
Amendment 103 #
Proposal for a directive Recital 6 (6) It is appropriate therefore to provide procedural and substantive rules on cross-border conversions which would
Amendment 104 #
Proposal for a directive Recital 6 (6) It is appropriate therefore to provide procedural and substantive rules on cross-border conversions which would contribute to the abolition of restrictions on freedom of establishment and provide at the same time
Amendment 105 #
Proposal for a directive Recital 6 a (new) (6a) The current fragmentation of legal frameworks in the Union leads to legal uncertainty and opportunities for abuses related to tax and social obligations or legal or contractual rights of employees, members and creditors. It is therefore important for competent authorities to check whether cross-border conversions, mergers and divisions are not used to create artificial arrangements. For the purpose of this Directive, an artificial arrangement can be understood either as unduly prejudicing the legal or contractual rights of employees, members and creditors or as defeating the object, spirit and purpose of tax provisions that would otherwise apply, regardless of the intentions of the taxpayers. For the assessment of an artificial arrangement for tax purposes, competent authorities in the Member States shall take into account at least a number of factors laid down in Commission’s Recommendation of 6 December 2012 (2012/772/EU) on “aggressive tax planning”. Competent authorities shall assess the existence of artificial arrangements by reference to their economic substance.
Amendment 106 #
Proposal for a directive Recital 7 (7) The right to convert an existing company formed in a Member State into a company governed by another Member State may
Amendment 107 #
Proposal for a directive Recital 7 (7) The right to convert an existing company formed in a Member State into a company governed by another Member State may in certain circumstances be used for abusive purposes such as for the circumvention of labour standards, social security payments, tax obligations, creditors', minority shareholders' rights or rules on employees participation. In order to combat such possible abuses, a general principle of Union law, Member States are required to ensure that companies do not use the cross-border conversion procedure in order to create artificial arrangements aimed at obtaining undue tax advantages or at unduly prejudicing the legal or contractual rights of employees, creditors or members.
Amendment 108 #
Proposal for a directive Recital 7 (7) The right to convert an existing company formed in a Member State into a company governed by another Member State may in certain circumstances be used for abusive purposes such as for the circumvention of labour standards, social security payments, tax obligations, creditors', minority shareholders' rights or rules on employees participation. In order to combat such possible abuses, a general principle of Union law, Member States are required to ensure that companies do not use the cross-border conversion procedure in order to create purely artificial arrangements
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.
Amendment 110 #
Proposal for a directive Recital 9 (9) Given the complexity of cross- border conversions and the multitude of the interests concerned, it is appropriate to provide for an ex-ante control in order to create legal certainty. To that effect, a structured and multi-layered procedure should be set out whereby the competent authorities of both the departure and the destination Member State ensure that a decision on the approval of a cross-border conversion is taken in a fair, objective and non-discriminatory manner on the basis of all relevant elements and by taking into account all legitimate public interests, in particular, the protection of employees, members and creditors. Procedures should also be in place for situations where additional information is available after the conversion but question whether the conversion has been done for abusive purposes.
Amendment 111 #
Proposal for a directive Recital 10 (10) To allow all stakeholders' legitimate interests to be taken into account in the procedures governing a cross-border conversion, the company should disclose the draft terms of the cross- border conversion containing the
Amendment 112 #
Proposal for a directive Recital 10 (10) To allow all stakeholders' legitimate interests to be taken into account in the procedure governing a cross-border conversion, the company should disclose the draft terms of the cross-border conversion containing the most important information about the proposed cross- border conversion, including the envisaged new company form, the instrument of constitution and the proposed timetable for the conversion. Members, creditors, trade unions and employees of the company carrying out the cross-border conversion should be notified in order that they can submit comments with regard to the proposed conversion.
Amendment 113 #
(12) In order to provide information to its employees, the company carrying out the cross-border conversion should prepare a report explaining the implications of the proposed cross-border conversion for employees. The report should explain in particular the implications of the proposed cross-border conversion on the safeguarding of the jobs of the employees, whether there would be any material change in the employment relationships and the locations of the companies’ places of business and how each of these factors would relate to any subsidiaries of the company.
Amendment 114 #
Proposal for a directive Recital 12 (12) In order to provide information to its employees, the company carrying out the cross-border conversion should prepare a report explaining the implications of the proposed cross-border conversion for employees. The report should explain in particular the implications of the proposed cross-border conversion on the safeguarding of the jobs of the employees, whether there would be any material change in the employment relationships, including changes to salaries and to the nature of the employment relationship, and the locations of the companies’ places of business and how each of these factors would relate to any subsidiaries of the company. This requirement should not however apply where the only employees of the company are in its administrative organ. The provision of the report should be without prejudice to the applicable information and consultation proceedings instituted at national level following the implementation of Directive 2002/14/EC of the European Parliament and of the Council43 or Directive
Amendment 115 #
Proposal for a directive Recital 12 a (new) (12a) Companies willing to make full use of the benefits of the internal market through cross-border conversions shall submit in return to an adequate level of transparency and good corporate governance. Public Country by Country Reporting is an efficient and appropriate tool to increase transparency of multinational enterprises activities and to enable the public to assess their impact on the real economy. It will also improve shareholders ability to properly evaluate the risks taken by companies, lead to investment strategies based on accurate information and enhance decision-makers possibility to assess the efficiency and the impact of national legislations. Therefore, a set of financial information shall be published ahead of the cross-border operation ahead of its execution.
Amendment 116 #
Proposal for a directive Recital 13 (13) In order to assess the accuracy of the information contained in the draft terms of conversion and merger and in the reports addressed to the members and employees and to provide factual elements necessary to assess whether the proposed conversion constitutes an artificial arrangement, an independent expert report should be required to be prepared in order to assess the proposed cross-border conversion and merger. In order to
Amendment 117 #
Proposal for a directive Recital 13 (13) In order to assess the accuracy of the information contained in the draft terms of conversion and in the reports addressed to the members and employees and to provide factual elements necessary to assess whether the proposed conversion constitutes an artificial arrangement, 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
Amendment 118 #
Proposal for a directive 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
Amendment 119 #
Proposal for a directive Recital 13 (13) In order to assess the accuracy of the information contained in the draft terms of conversion and in the reports addressed to the members and employees and to provide factual elements necessary to assess whether the proposed conversion constitutes an artificial arrangement,
Amendment 120 #
Proposal for a directive Recital 14 Amendment 121 #
Proposal for a directive Recital 14 (14) With a view to avoiding disproportionate costs and burdens for smaller companies carrying out the cross- border conversion, micro and small enterprises, as defined in the Commission Recommendation 2003/361/EC45
Amendment 122 #
Proposal for a directive Recital 15 (15) On the basis of the draft terms of conversion and the reports, the general meeting of the members of the company should decide on whether or not to approve those draft terms. It is important that the majority requirement for such a vote should be sufficiently high in order to ensure that the decision to convert is a collective one.
Amendment 123 #
Proposal for a directive Recital 15 (15)
Amendment 124 #
Proposal for a directive Recital 16 (16) It is appropriate that
Amendment 125 #
Proposal for a directive Recital 16 (16) It is appropriate that those members who held voting rights and who did not vote 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
Amendment 126 #
Proposal for a directive Recital 18 (18) In order to guarantee the appropriate protection of creditors in cases where they are not satisfied with the protection offered by the company in the draft terms of the cross-border conversion, creditors may apply to the competent judicial or administrative authority of the departure Member State for the adequate the safeguards. In order to facilitate the assessment of prejudice, certain presumptions should be laid down whereby creditors would be deemed not to be prejudiced by a cross-border conversion, where the risk of loss to a creditor is remote. A presumption should arise where
Amendment 127 #
Proposal for a directive Recital 19 (19) In order to ensure that employee participation is not unduly prejudiced as a result of the cross-border conversion, where the company carrying out the cross- border conversion is operating under an employee participation system in the departure Member State, the company should be obliged to take a legal form allowing for the exercise of such equivalent participation, including through the presence of representatives of the employees in the appropriate management or supervisory organ of the company in the destination Member State. Moreover, in such a case, a bona fide negotiation between the company and its employees should take place in a timely manner ahead of the conversion, along the lines of the procedure provided for in Directive 2001/86/EC, with a view to finding an amicable solution reconciling the right of the company to carry out a cross-border conversion with the employees' rights of participation. As a result of those negotiations, either a bespoke and agreed solution or, in the absence of an agreement, the application of standard rules as set out in the Annex to Directive 2001/86/EC should apply, mutatis mutandis. In order to protect either the agreed solution or the application of those standard rules, the company should not be able to remove the participation rights through carrying out
Amendment 128 #
Proposal for a directive Recital 19 (19) In order to ensure that employee participation is not unduly prejudiced as a result of the cross-border conversion, where the company carrying out the cross- border conversion is operating under an employee participation system in the departure Member State, the company should be obliged to take a legal form allowing for the exercise of such participation, including through the presence of representatives of the employees in the appropriate management or supervisory organ of the company in the destination Member State. Moreover, in such a case, a bona fide negotiation between the company and its employees should take place, along the lines of the procedure provided for in Directive 2001/86/EC, with a view to finding an amicable solution reconciling the right of the company to carry out a cross-border conversion with the employees' rights of participation. As a result of those negotiations, either a bespoke and agreed solution or, in the absence of an agreement, the application of standard rules as set out in the Annex to Directive 2001/86/EC should apply, mutatis mutandis. In order to protect either the agreed solution or the application of those standard rules, the company should not be able to remove the
Amendment 129 #
Proposal for a directive 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
Amendment 130 #
Proposal for a directive Recital 20 (20) In order to prevent the circumvention of employee participation rights by means of a cross-border
Amendment 131 #
Proposal for a directive 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 at least equivalent to four fifths of the national threshold for triggering such employee participation.
Amendment 132 #
Proposal for a directive Recital 21 (21) To ensure a proper allocation of tasks among Member States and an efficient and effective ex-ante control of cross-border conversions, both the departure and the destination Member States should designate the appropriate competent authorities. In particular, the competent authorities of the departure Member States should have the power to issue a pre-conversion certificate without which the competent authorities in the destination Member State should not be able to complete the cross-border conversion procedure. A list of national competent authorities in the Member States shall be prepared and publish by the Commission. Member States’ competent authorities are expected to collaborate together in cases of cross- border conversions.
Amendment 133 #
Proposal for a directive Recital 22 (22) The issue of the pre-conversion certificate by the departure Member State should be scrutinised to ensure the legality
Amendment 134 #
Proposal for a directive 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 and the lack of abuses such as the circumvention of labour standards, social security payments, tax obligations, creditors', minority shareholders' rights or rules on employees participation. The competent authority of the departure Member State should decide on the issue of the pre-conversion certificate within
Amendment 135 #
Proposal for a directive 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
Amendment 136 #
Proposal for a directive Recital 23 (23) After having received a pre- conversion certificate, and after verifying that the incorporation requirements in the destination Member State are fulfilled, the competent authorities of the destination Member State should register the company in the business register of that Member State. The destination Member States should also verify the ultimate beneficial owner(s) of the converted company, based on information received. Only after this registration should the competent authority of the departure Member State strike the company off its own register. It should
Amendment 137 #
Proposal for a directive Recital 23 (23) After having received a pre-
Amendment 138 #
Proposal for a directive Recital 26 (26) The evaluation of the implementation of the cross-border merger rules in Member States has shown that the number of cross-border mergers in the Union has significantly increased. However, this evaluation has also revealed certain shortcomings in relation specifically to creditor protection, protection of employees and shareholder protection as well as to the lack of simplified procedures which impede the full effectiveness and efficiency of those cross-border merger rules.
Amendment 139 #
Proposal for a directive Recital 28 (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 separate reports detailing the legal and economic aspects
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 report
Amendment 141 #
Proposal for a directive Recital 28 (28) In order to further enhance the
Amendment 142 #
Proposal for a directive Recital 29 (29) Furthermore, in order to enhance the protection afforded to the employees of the merging company or companies, employees or their representatives
Amendment 143 #
Proposal for a directive Recital 29 a (new) (29a) Companies willing to make full use of the benefits of the internal market through cross-border mergers shall submit in return to an adequate level of transparency and good corporate governance. Public Country by Country Reporting is an efficient and appropriate tool to increase transparency of multinational enterprises activities and to enable the public to assess their impact on the real economy. It will also improve shareholders ability to properly evaluate the risks taken by companies, lead to investment strategies based on accurate information and enhance decision-makers possibility to assess the efficiency and the impact of national legislations. Therefore, a set of financial information shall be published ahead of the cross-border merger ahead of its execution.
Amendment 144 #
Proposal for a directive Recital 29 a (new) (29a) To prevent conflicts of interests between the members of the management body and the interest of the company, they should not be allowed to benefit financially from the merger in the form of variable compensation, bonuses or rising share prices.
Amendment 145 #
Proposal for a directive Recital 30 a (new) (30a) In order to assess the accuracy of the information contained in the draft terms of merger and in the reports addressed to the members and employees and to provide factual elements necessary to assess whether the proposed merger constitutes an artificial arrangement, the competent authority in the departure Member State shall prepare a report in order to assess the proposed cross-border merger. In this context, the report should present all relevant information to take an informed decision as to whether or not to issue the pre-conversion certificate. To this end, the competent authority should always organise a meeting with representatives of employees and 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 competent authority should use information, in particular net turnover and profit or loss, number of employees and the composition of balance sheet collected by the companies 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 such information should not form part of the competent authority’s final report which itself would be publically available.
Amendment 146 #
Proposal for a directive Recital 30 b (new) (30b) With a view to avoiding disproportionate costs and burdens for smaller companies carrying out the cross- border merger, micro and small enterprises, as defined in the Commission Recommendation 2003/361/EC, should be exempted from the requirement to obtain an assessment by the competent authority. However, these companies can resort to such assessment to prevent litigation costs with creditors.
Amendment 147 #
Proposal for a directive Recital 31 (31) The lack of harmonisation of safeguards for members, employees or creditors has been identified as an obstacle for cross-border mergers by different stakeholders. Members, employees and creditors should be offered the same level of protection regardless of the Member States in which the merging companies are situated. This is without prejudice to the Member States’ rules on protecting creditors, employees or shareholders which are outside the scope of the harmonised measures, such as transparency requirements.
Amendment 148 #
Proposal for a directive 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 vote to approve the common draft terms of merger or 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
Amendment 149 #
Proposal for a directive Recital 32 (32) In order to ensure that members of the compan
Amendment 150 #
Proposal for a directive Recital 35 (35) In order to guarantee the appropriate protection of creditors in cases where they are not satisfied with the protection offered by the company in the common draft terms of the cross-border merger, creditors who are prejudiced by the cross-border merger may apply to the competent administrative or judicial authority of each Member State of the merging companies for the safeguards they consider adequate. In order to facilitate the assessment of prejudice, certain presumptions should be laid down whereby creditors would be deemed not to be prejudiced by a cross-border merger, where the risk of loss to a creditor is remote. A presumption should arise where
Amendment 151 #
Proposal for a directive Recital 36 Amendment 152 #
Proposal for a directive Recital 37 Amendment 153 #
Proposal for a directive Recital 38 Amendment 154 #
Proposal for a directive Recital 38 Amendment 155 #
Proposal for a directive Recital 39 Amendment 156 #
Proposal for a directive Recital 40 Amendment 157 #
Proposal for a directive Recital 40 (40) The right of companies to carry out a cross-border division may 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.
Amendment 158 #
Proposal for a directive Recital 40 (40) The right of companies to carry out a cross-border division
Amendment 159 #
Proposal for a directive Recital 41 Amendment 160 #
Proposal for a directive Recital 42 Amendment 161 #
Proposal for a directive Recital 42 (42) To allow all stakeholders' legitimate interests to be taken into account, the company being divided should disclose the draft terms of the division containing
Amendment 162 #
Proposal for a directive Recital 42 (42) To allow all stakeholders' legitimate interests to be taken into account, the company being divided should disclose the draft terms of the division containing the most important information about the proposed cross-border division, including the envisaged the exchange ratio of securities or shares, the instruments of constitution of the recipient companies and the proposed timetable for the cross-border division. Members, creditors and employees of the company carrying out the cross-border division should be notified in good time that they can submit comments with regard to the division or authorising the commencement of negotiations.
Amendment 163 #
Proposal for a directive Recital 43 Amendment 164 #
Proposal for a directive Recital 44 Amendment 165 #
Proposal for a directive Recital 44 (44) In order to provide information to its employees, the company being divided should prepare a report explaining the implications of the proposed cross-border division for employees. The report should explain in particular the implications of the proposed cross-border division on the safeguarding of the jobs of the employees, whether there would be any material change in the conditions of employment and the locations of the companies’ places of business, and how each of these factors would relate to any subsidiaries of the company. The provision of the report should be without prejudice to the applicable information and consultation proceedings instituted at national level following the implementation of Directives 2001/23/EC, 2002/14/EC or 2009/38/EC. Employees of the company carrying out the cross-border division should be notified well in advance so that they can submit comments with regard to the proposed division.
Amendment 166 #
Proposal for a directive Recital 44 (44) In order to provide information its employees, the company being divided should prepare a report explaining the implications of the proposed cross-border division for employees. The report should explain in particular the implications of the proposed cross-border division on the safeguarding of the jobs of the employees, whether there would be any material
Amendment 167 #
Proposal for a directive Recital 44 a (new) (44a) Companies willing to make full use of the benefits of the internal market through cross-border divisions shall submit in return to an adequate level of transparency and good corporate governance. Public Country by Country Reporting is an efficient and appropriate tool to increase transparency of multinational enterprises activities and to enable the public to assess their impact on the real economy. It will also improve shareholders ability to properly evaluate the risks taken by companies, lead to investment strategies based on accurate information and enhance decision-makers possibility to assess the efficiency and the impact of national legislations. Therefore, a set of financial information shall be published ahead of the cross-border operation ahead of its execution.
Amendment 168 #
Proposal for a directive Recital 45 Amendment 169 #
Proposal for a directive Recital 45 (45) In order to ensure the accuracy of the information contained in the draft terms of division and in the report
Amendment 170 #
Proposal for a directive 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,
Amendment 171 #
Proposal for a directive Recital 46 Amendment 172 #
Proposal for a directive Recital 47 Amendment 173 #
Proposal for a directive Recital 47 (47)
Amendment 174 #
Proposal for a directive Recital 48 Amendment 175 #
Proposal for a directive Recital 48 (48) It is appropriate that members who held voting rights and who
Amendment 176 #
Proposal for a directive Recital 49 Amendment 177 #
Proposal for a directive Recital 50 Amendment 178 #
Proposal for a directive Recital 50 (50) In order to guarantee the appropriate protection of creditors in cases where they are not satisfied with the protection offered by the company in the draft terms of the cross-border division, creditors who are prejudiced by the cross- border division may apply to the competent judicial or administrative authority of the Member State of the company being divided for the safeguards they consider adequate. In order to facilitate the assessment of prejudice, certain presumptions should be laid down whereby creditors would be deemed not to be prejudiced by a cross-border division where the risk of loss to a creditor is remote. A presumption should arise where
Amendment 179 #
Proposal for a directive Recital 51 Amendment 180 #
Proposal for a directive Recital 52 Amendment 181 #
Proposal for a directive 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
Amendment 182 #
Proposal for a directive 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
Amendment 183 #
Proposal for a directive Recital 53 Amendment 184 #
Proposal for a directive Recital 53 (53) After having received a pre- division certificate, and after verifying that the incorporation requirements of the Member State of the recipient company or companies are fulfilled, the authorities of the Member States of the recipient companies should register the companies in the business registers of that Member State. Authorities of the Member States of the recipient companies should also verify the ultimate beneficial owners of these companies, based on information received. Only after this registration should the competent authority of the Member State of the company being divided strike the company off its own register. The accuracy of the information provided by the pre-
Amendment 185 #
Proposal for a directive Recital 54 Amendment 186 #
Proposal for a directive Recital 55 Amendment 187 #
Proposal for a directive Recital 55 (55) In order to ensure that employee participation is not unduly prejudiced as a result of the cross-border division where the company carrying out the cross-border division is operating under an employee participation system, the companies resulting from the division should be obliged to take a legal form allowing for the exercise of equivalent participation, including through the presence of representatives of the employees in the appropriate management or supervisory organs of the companies. Moreover, in such a case, a bona fide negotiation between the company and its employees should take place, along the lines of the procedure provided for in Directive 2001/86/EC, with a view to finding an amicable solution reconciling the right of the company to carry out a cross-border division with the employees'' rights of participation. As a result of those negotiations, either a bespoke and agreed solution or, in the absence of an agreement, the application of standard rules as set out
Amendment 188 #
Proposal for a directive Recital 56 Amendment 189 #
Proposal for a directive 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
Amendment 190 #
Proposal for a directive Recital 58 (58) The provisions of this Directive do not affect the legal or administrative provisions, including the enforcement of tax rules in cross-border conversions, mergers and divisions, of national law relating to the taxes of Member States, or its territorial and administrative subdivisions.
Amendment 191 #
Proposal for a directive Recital 58 (58) The provisions of this Directive do not affect the legal or administrative provisions, including the enforcement of tax rules in cross-border conversions
Amendment 192 #
Proposal for a directive Recital 60 (60) Since the objectives of this Directive, to facilitate and regulate cross- border conversions
Amendment 193 #
Proposal for a directive Recital 63 (63) The Commission should carry out an evaluation of this Directive. Pursuant to paragraph 22 of the Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making of 13 April 201652 that evaluation should be based on the five criteria of efficiency, effectiveness, relevance, coherence and value added and should provide the basis for impact assessments of possible further measures.
Amendment 194 #
Proposal for a directive Article 1 – paragraph 1 – point -1 (new) Directive (EU) No 2017/1132 Title I – Chapter I – Article 1 a (new) -1 In CHAPTER I, the following Article 1a is inserted: "Article 1a Interest of the company The management or administrative organ of a company is responsible for managing the company in the best interest of the company and society, meaning that it considers the needs of the shareholders, the employees other stakeholders and the environment in a balanced way, with the objective of sustainable value creation."
Amendment 195 #
Proposal for a directive Article 1 – paragraph 1 – point 1 Directive (EU) No 2017/1132 Article 24 – point e (e) the detailed list of data to be transmitted for the purpose of exchange information between registers, as referred to in Articles 20, 34,
Amendment 196 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 a – paragraph 1 1. This Chapter shall apply to the conversion of a limited liability company formed in accordance with the law of a Member State and having its registered office, central administration or principal place of business within the Union into a limited liability company governed by the law of another Member State and listed in Annex II of the Directive 2017/1132 of 14 June 2017 relating to certain aspects of company law.
Amendment 197 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 b – paragraph 1 – point 6 a (new) (6a) ‘artificial arrangement’ means a company structure set up for abusive purposes, such as the circumvention of obligations arising from the legal and contractual rights of employees, creditors, or minority shareholders, the avoidance of rules on employee involvement, of social security payments, or of tax obligations due on profits generated, or a company structure which does not carry out a substantive or genuine economic activity supported by staff, equipment, assets and premises, such as, in particular, in the case of a ‘letterbox’ or ‘front’ subsidiary.
Amendment 198 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 b – paragraph 1 – point 6 a (new) Amendment 199 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 b – paragraph 1 – point 6 a (new) (6a) 'an artificial arrangement' means any transaction, scheme, action, operation or agreement or a series of these put in place to circumvent companies’ obligations related to legal or contractual rights of employees, creditors or members, including related to employees’ participation or obligations related to taxation or social security, and which is considered to lack genuine economic substance, regardless of the intentions of the taxpayer;
Amendment 200 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 (6b) 'economic substance' means factual criteria, which can be used to define the taxable presence of an undertaking, such as the existence of human and physical resources specific to the entity, its management autonomy, its legal reality, the revenues it generates and, where appropriate, the nature of its assets;
Amendment 201 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c Amendment 202 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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 203 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 2 – point a (a) proceedings have been instituted for the winding-up, liquidation,
Amendment 204 #
Proposal for a directive Article 1.º – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 2 – point a (new) (aa). Receipt of state aid in the past;
Amendment 205 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 2 – point b Amendment 206 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 (ea) the representatives of the employees of the company have not given consent to the conversion based on the report by the management body following Article 86f of this Directive;
Amendment 207 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 2 – point e a (new) (ea) the company is under investigation or has been convicted in the last 3years for social or tax fraud, tax evasion, tax avoidance or money laundering or any other financial crime;
Amendment 208 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 2 – point e a (new) (e a) there is a suspicion of welfare fraud or the infringement of workers’ rights;
Amendment 209 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 2 – point e b (new) (eb) the company was involved in tax fraud, tax evasion or the setting up of harmful tax structures;
Amendment 210 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 2 a (new) 2a. A company subject to preventive restructuring proceedings initiated because of the likelihood of insolvency shall be subject to a scrutiny by the competent authorities of the Member States as to whether its conversion or division themselves might serve the purpose of restructuring and avoiding insolvency. Following the scrutiny, the competent authorities of the Member States shall make an autonomous decision whether the company in question is entitled to carry out a cross border conversion or not.
Amendment 211 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 3 3. Member States shall ensure that the competent authority of the departure Member State shall not authorise the cross- border conversion where it determines, after an examination of the specific case and having regard to all relevant facts and circumstances, that it constitutes an artificial arrangement
Amendment 212 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 3 3. Member States shall ensure that the competent authority of the departure Member State shall not authorise the cross- border conversion where it determines, after an examination of the specific case and having regard to all relevant facts and circumstances, that it constitutes an artificial arrangement
Amendment 213 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 3 3. Member States shall ensure that the competent authority of the departure Member State shall not authorise the cross- border conversion where it determines, after an examination of the specific case and having regard to all relevant facts and circumstances, that it constitutes an artificial arrangement or has strong suspicions that it constitutes an artificial arrangement aimed at obtaining undue tax advantages or at unduly prejudicing the legal or contractual rights of employees, creditors or minority members.
Amendment 214 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 3 3. Member States shall ensure that the competent authority of the departure Member State shall not authorise the cross- border conversion where it determines, after an examination of the specific case and having regard to all relevant facts and circumstances, that it constitutes a
Amendment 215 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 3 a (new) 3a. For the purpose of paragraph 3, an arrangement or a series thereof shall be regarded as non-genuine to the extent that they are not put into place for valid commercial reasons which reflect economic reality.
Amendment 216 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 4 a (new) 4a. This Directive is without prejudice of the enforcement of tax rules in national law, including the possibility for the departure Member States to impose a tax on hidden reserves of the converting company before the conversion takes effect, in accordance with the jurisprudence of the European Court of Justice.
Amendment 217 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 c – paragraph 4 b (new) 4b. Departure Member States may tax unrealised capital gains at the time of the cross-border conversion of a company. The company may then choose between immediate payment of the amount of tax and a deferred payment of the amount of tax, together with interest in accordance with the applicable national legislation. If the company opts for the latter, the departure Member State may request the provision of a bank guarantee.
Amendment 218 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 d – paragraph 1 – points j a to j k (new) (ja) the name of the ultimate undertaking and, where applicable, the list of all its subsidiaries, a brief description of the nature of their activities and their respective geographical location; (jb) the number of employees on a full- time equivalent basis; (jc) fixed assets other than cash or cash equivalents; (jd) the amount of the net turnover, including a distinction between the turnover made with related parties and the turnover made with unrelated parties; (je) the amount of profit or loss before income tax; (jf) the amount of income tax accrued (current year) which is the current tax expense recognised on taxable profits or losses of the financial year by undertakings and branches resident for tax purposes in the relevant tax jurisdiction; (jg) the amount of income tax paid which is the amount of income tax paid during the relevant financial year by undertakings and branches resident for tax purposes in the relevant tax jurisdiction; (jh) the amount of accumulated earnings; (ji) stated capital; (jj) details of public subsidies received and any donations made to politicians, political organisations or political foundations; (jk) whether undertakings, subsidiaries or branches benefit from preferential tax treatment, from a patent box or equivalent regimes.
Amendment 219 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 d – paragraph 1 – point k a (new) (ka) detailed information on the transfer of the central administration or principle place of business;
Amendment 220 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 d – paragraph 2 a (new) 2a. Members, employees or creditors shall have the possibility to comment on these draft terms. The comments shall be included in the final report and be made public.
Amendment 221 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 e – title Article 86e Report of the management or administrative organ to the members and employees
Amendment 222 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 e – title Article 86e Report of the management or administrative organ
Amendment 223 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 e – paragraph 2 – point a (a) the rationale for the operation and implications of the cross-border conversion on the future business of the company and on the management's strategic plan;
Amendment 224 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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 Directive (EU) No 2017/1132 Article 86 e – paragraph 2 – point c b (new) Amendment 226 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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 227 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 e – paragraph 2 a (new) 2a. The report, referred to in paragraph 1 of this Article, shall be accompanied with a statement of the management or administrative organ of the company about places of business after the cross-border conversion, including information about a partial or complete carrying on of business in the departure Member State and, in appropriate circumstances, marking a fact of further conduct of operations only in the departure Member State.
Amendment 228 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 e – paragraph 3 3. The report referred to in paragraph 1 of this Article, shall be made available
Amendment 229 #
3. The report referred to in paragraph 1 of this Article, shall be made available, at least electronically, to the members not less than two months before the date of the general meeting referred to in Article 86i. That report shall also be made
Amendment 230 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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 231 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 e – paragraph 4 Amendment 232 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 e – paragraph 4 Amendment 233 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 e – paragraph 4 Amendment 234 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 e – paragraph 4 4.
Amendment 235 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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 Directive (EU) No 2017/1132 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 238 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 f – paragraph 2 – point a (a) the rationale for the operation and implications of the cross-border conversion on the future business of the company and on the management's strategic plan;
Amendment 239 #
Proposal for a directive Article 1.º – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 f – paragraph 2 – point c (c) any material changes in the conditions of employment, including in employment relationships, and in the location of the company’s places of business;
Amendment 240 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 f – paragraph 3 3. The report referred to in paragraph 1 of this Article, shall be made available, at least electronically, to the trade unions and 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 not less than two months before the date of the general meeting referred to in Article 86i. That report shall also be made similarly available to the members of the company carrying out the cross-border conversion.
Amendment 241 #
Proposal for a directive Article 1.º – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 f – paragraph 3 3. The report referred to in paragraph 1 of this Article, shall be made available, at least electronically, to the representatives of the employees of the company carrying out the cross-border conversion or, where there are no such representatives, to the employees themselves not less than
Amendment 242 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 f – paragraph 5 Amendment 243 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 f – paragraph 5 Amendment 244 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – title Article 86g Examination by
Amendment 245 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 1 – subparagraph 1 Member States shall ensure that the company carrying out the cross-border conversion and, where one exists, the competent organ of the company’s employee representation applies not less than
Amendment 246 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 1 – subparagraph 1 Member States shall ensure that the company carrying out the cross-border conversion applies
Amendment 247 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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)
Amendment 248 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 1 – subparagraph 2 – introductory part The application
Amendment 249 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 1 – subparagraph 2 – point b (b) the report
Amendment 250 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 2 2. The competent authority shall
Amendment 251 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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 report
Amendment 252 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 2 2. The competent authority shall appoint an independent expert within
Amendment 253 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 3 – introductory part 3. The expert shall draw up a written report
Amendment 254 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 3 – introductory part 3. The
Amendment 255 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 3 – point a Amendment 256 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 3 – point a (a) a detailed assessment of the
Amendment 257 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 3 – point b Amendment 258 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 (b) a description of all factual elements
Amendment 259 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 3 a (new) 3 a. The competent authority shall always organise a meeting with employees of the company prior to drawing up its written report.
Amendment 260 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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
Amendment 261 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 4 4. Member States shall ensure that the
Amendment 262 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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 report
Amendment 263 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 5 5. Member States shall ensure that information and opinions submitted to the independent expert
Amendment 264 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 5 5. Member States shall ensure that information submitted
Amendment 265 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 5 a (new) 5 a. The costs of the expert report by an independent expert shall be charged to the company subject to cross-border conversion.
Amendment 266 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 6 Amendment 267 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 6 6. Member States shall exempt 'micro' and 'small enterprises' as defined in Commission Recommendation 2003/361/EC (**) from the provisions of this Article.
Amendment 268 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 g – paragraph 6 a (new) 6 a. For reasons of transparency, the report shall be made available to the public.
Amendment 269 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 h – paragraph 1 – subparagraph 1 – point b (b) the
Amendment 270 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 h – paragraph 3 – point d a (new) (d a) Information on its ultimate beneficial owners before and after the cross-border conversion.
Amendment 271 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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 Directive (EU) No 2017/1132 Article 86 h – paragraph 4 – subparagraph 2 However, Member States may
Amendment 273 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 h – paragraph 4 – subparagraph 2 However, Member States may, in cases of
Amendment 274 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 h – paragraph 4 – subparagraph 2 Amendment 275 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 h – paragraph 6 a (new) 6 a. Member States shall ensure that confidential information, including business secrets, shall not be disclosed.
Amendment 276 #
Proposal for a directive Article 1.º – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 i – title Article 86 i
Amendment 277 #
Proposal for a directive Article 1.º – paragraph 1 – point 3 Directive (EU) No 2017/1132 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 and the employees’ plenary 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 and the employees’ plenary.
Amendment 278 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 i – paragraph 1 1. After taking note of the reports referred to in Articles 86e
Amendment 279 #
Proposal for a directive Article 1.º – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 i – paragraph 2 2. The general meeting of the company carrying out the conversion and the employees’ plenary may reserve the right to make implementation of the cross- border conversion conditional on express ratification by it of the arrangements referred to in Article 86l.
Amendment 280 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 i – paragraph 4 Amendment 281 #
1. Member States shall ensure that the
Amendment 282 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 j – paragraph 1 – point a Amendment 283 #
Amendment 284 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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
Amendment 285 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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,
Amendment 286 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 j – paragraph 5 5. Member States shall provide that any member who has accepted the offer of cash compensation referred to in paragraph 3 but 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 or by arbitration within one month of the acceptance of the offer.
Amendment 287 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 k – paragraph 2 2. Member States shall ensure that creditors
Amendment 288 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 k – paragraph 3 – point a Amendment 289 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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
Amendment 290 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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
Amendment 291 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 l – paragraph 2 – point b (b) provide for employees of establishments and subsidiaries of the company resulting from the conversion that are situated in other Member States the same entitlement to exercise participation rights as is enjoyed by those employees employed in the destination Member State.
Amendment 292 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 l – paragraph 2 a (new) 2 a. The representatives of the employees of the company have one month after receiving the report by the management body in accordance with Article 86f of this Directive to give or withhold their consent on the proposed conversion.
Amendment 293 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 l – paragraph 3 – introductory part 3. In the cases referred to in paragraph 2 of this Article, the participation of employees in the converted company and their involvement in the definition of such rights shall be regulated by the Member States, mutatis mutandis and subject to paragraphs 4 to 7 of this Article, in accordance with the principles and procedures laid down in Article 12(1), (2), (3) and (4) of Regulation (EC) No 2157/2001 and the following provisions of Directive 2001/86/EC:
Amendment 294 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 l – paragraph 4 – point a Amendment 295 #
Proposal for a directive Article 1 – paragraph 1 – point 3 (a)
Amendment 296 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 l – paragraph 4 – point b Amendment 297 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 l – paragraph 7 7. Where the converted company is operating under an employee participation system, that company shall be obliged to take measures to ensure that employees' participation rights are protected in the event of any subsequent cross-border or domestic merger, division or conversion for a period of
Amendment 298 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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-
Amendment 299 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 m – paragraph 2 – subparagraph 1 – point b (b) the reports referred to in Articles 86e
Amendment 300 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 m – paragraph 2 – subparagraph 1 – point b (b) the reports referred to in Articles 86e
Amendment 301 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 m – paragraph 2 – subparagraph 2 Amendment 302 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 m – paragraph 2 – subparagraph 2 The draft terms and reports submitted under Article 86
Amendment 303 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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
Amendment 304 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 m – paragraph 3 – subparagraph 2 However,
Amendment 305 #
However, in cases of
Amendment 306 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 m – paragraph 3 – subparagraph 2 Amendment 307 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 m – paragraph 4 Amendment 308 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 m – paragraph 4 4. In respect of compliance with the rules concerning employee participation as laid down in Article 86l, the departure Member State shall verify that the draft terms and reports of cross-border conversion, referred to in paragraph 2 of this Article, include information on the procedures by which the relevant arrangements are determined and on the possible options for such arrangements.
Amendment 309 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 m – paragraph 6 6. Member States shall ensure that competent authorities designated in accordance with paragraph 1 may consult other relevant authorities from both the departure Member State and the destination member state with competence in the different fields concerned by the cross-border conversion.
Amendment 310 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 m – paragraph 7 – introductory part 7. Member States shall ensure that the assessment by the competent authority is carried out within
Amendment 311 #
7. Member States shall ensure that the assessment by the competent authority is carried out within
Amendment 312 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 m – paragraph 7 – point c Amendment 313 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 m – paragraph 7 – point c (c) where the
Amendment 314 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 n Amendment 315 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Member States shall ensure in order to assess whether the cross-border conversion constitutes an artificial arrangement
Amendment 316 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 n – paragraph 1 – subparagraph 1 Member States shall ensure in order to assess whether the cross-border conversion constitutes an artificial arrangement within the meaning of
Amendment 317 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 n – paragraph 2 2. Member States shall ensure that where the competent authority referred to in paragraph 1 decides to carry out an in- depth assessment, it is able to hear the company and all parties that have submitted observations pursuant Article 86h(1)(c) in accordance with national law. The competent authorities referred to in paragraph 1 may also hear any other interested third parties in accordance with national law. The competent authority shall take its final decision regarding the issue of the pre-conversion certificate within
Amendment 318 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 n – paragraph 2 2. Member States shall ensure that where the competent authority referred to in paragraph 1 decides to carry out an in- depth assessment, it is able to hear the company and all parties that have submitted observations pursuant Article 86h(1)(c) in accordance with national law. The competent authorities referred to in paragraph 1 may also hear any other interested third parties in accordance with national law. The competent authority shall take its final decision regarding the issue of the pre-conversion certificate within
Amendment 319 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 o – paragraph 1 1. Member States shall ensure that
Amendment 320 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 o – paragraph 2 2. Member States shall ensure that the decision to issue the pre-conversion certificate is sent to the authorities referred to in Article 86m(1) and to all parties that have submitted observations pursuant to Article 86h(1)(c) in accordance with national law 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 321 #
2. Member States shall ensure that the decision to issue the pre-conversion certificate is sent to the competent authorities
Amendment 322 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 p – paragraph 1 – subparagraph 1 Member States shall designate
Amendment 323 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 p – paragraph 1 a (new) 1 a. Competent authorities in the Member State of departure shall send the outcome of its assessment on the cross- border conversion to the competent authorities in the Member State of destination.
Amendment 324 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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
Amendment 325 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 p – paragraph 3 – subparagraph 2 However,
Amendment 326 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 p – paragraph 3 – subparagraph 2 However, in cases of
Amendment 327 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 p – paragraph 3 – subparagraph 2 Amendment 328 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 q – paragraph 2 – point d a (new) (d a) information on its ultimate beneficial owners before and after the cross-border conversion in accordance with Directive 2015/849.
Amendment 329 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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
Amendment 330 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 s – paragraph 1 – point b (b) the members of the company which carried out the conversion shall
Amendment 331 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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
Amendment 332 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 s – paragraph 3 Amendment 333 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 t Amendment 334 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 Article 86 t Amendment 335 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 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),
Amendment 336 #
Proposal for a directive Article 1 – paragraph 1 – point 3 Directive (EU) No 2017/1132 A cross-border conversion which has taken effect in compliance with the procedures transposing this Directive may not be declared null and void. However, if during the year following the date on which the cross-border conversion takes effect, new information on this cross-border conversion are brought to the attention of the competent authorities alleging of genuine suspicion of fraud, the competent authorities shall proceed to a revised assessment of the facts of the case and can take effective, proportionate and dissuasive sanctions in cases of artificial arrangements.
Amendment 337 #
Proposal for a directive Article 1 – paragraph 1 – point 4 – point b a (new) Directive (EU) No 2017/1132 Article 119 – paragraph 1 – point 2 a (new) Amendment 338 #
Proposal for a directive Article 1 – paragraph 1 – point 4 – point b (new) Directive (EU) No 2017/1132 Article 119 – paragraph 1 – point 2 b (new) (b b) in Article 119, the following new point (2 b) is added: "(2b) 'economic substance' means factual criteria, which can be used to define the taxable presence of an undertaking, such as the existence of human and physical resources specific to the entity, its management autonomy, its legal reality, the revenues it generates and, where appropriate, the nature of its assets;"
Amendment 339 #
Proposal for a directive Article 1 – paragraph 1 – point 4 – point b a (new) Directive (EU) No 2017/1132 Article 119 – paragraph 1 – point 2 a (new) Amendment 340 #
Proposal for a directive Article 1 – paragraph 1 – point 5 Directive (EU) No 2017/1132 Article 120 – paragraph 4 Amendment 341 #
Proposal for a directive Article 1 – paragraph 1 – point 5 Directive (EU) No 2017/1132 Article 120 – paragraph 4 – point a (a) proceedings have been instituted for the winding-up, liquidation,
Amendment 342 #
Proposal for a directive Article 1 – paragraph 1 – point 5 Directive (EU) No 2017/1132 Article 120 – paragraph 4 – point e a (new) (e a) the company is under investigation or has been convicted in the last 3 years for social or tax fraud, tax evasion, tax avoidance or money laundering or any other financial crime;
Amendment 343 #
Proposal for a directive Article 1 – paragraph 1 – point 5 Directive (EU) No 2017/1132 Article 120 – paragraph 4 – point e a (new) (e a) there is a suspicion of social fraud or infringements of workers’ rights;
Amendment 344 #
Proposal for a directive Article 1 – paragraph 1 – point 6 a (new) Directive (EU) No 2017/1132 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 345 #
Proposal for a directive Article 1 – paragraph 1 – point 7 – point b a (new) Directive (EU) No 2017/1132 Article 122 – paragraph 1 – point b a (new) (b a) the name of the ultimate undertaking and, where applicable, the list of all its subsidiaries, a brief description of the nature of their activities and their respective geographical location; the number of employees on a full-time equivalent basis; fixed assets other than cash or cash equivalents; the amount of the net turnover, including a distinction between the turnover made with related parties and the turnover made with unrelated parties; the amount of profit or loss before income tax; the amount of income tax accrued (current year) which is the current tax expense recognised on taxable profits or losses of the financial year by undertakings and branches resident for tax purposes in the relevant tax jurisdiction; the amount of income tax paid which is the amount of income tax paid during the relevant financial year by undertakings and branches resident for tax purposes in the relevant tax jurisdiction; and the amount of accumulated earnings; stated capital; details of public subsidies received and any donations made to politicians, political organisations or political foundations; whether undertakings, subsidiaries or branches benefit from preferential tax treatment, from a patent box or equivalent regimes.
Amendment 346 #
Proposal for a directive Article 1 – paragraph 1 – point 7 – point c a (new) Directive (EU) No 2017/1132 Article 122 – paragraph 1 a (new) (c a) the following paragraph is added: "1a. Members, employees or creditors shall have the possibility to comment on these draft terms. The comments shall be included in the final report and be made public."
Amendment 347 #
Proposal for a directive Article 1 – paragraph 1 – point 8 Directive (EU) No 2017/1132 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 c
Amendment 348 #
Proposal for a directive Article 1 – paragraph 1 – point 8 Directive (EU) No 2017/1132 Article 122 a – paragraph 1 – subparagraph 2 – point a (a) it may not be earlier than the date of the balance sheet of the last annual financial statements drawn up and
Amendment 349 #
Proposal for a directive 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 Directive (EU) No 2017/1132 Article 123 – paragraph 4 – subparagraph 2 However, Member States may
Amendment 351 #
Proposal for a directive Article 1 – paragraph 1 – point 9 Directive (EU) No 2017/1132 Article 123 – paragraph 4 – subparagraph 2 However, Member States may, in cases of
Amendment 352 #
Proposal for a directive Article 1 – paragraph 1 – point 9 Directive (EU) No 2017/1132 Article 123 – paragraph 4 – subparagraph 2 Amendment 353 #
Proposal for a directive Article 1 – paragraph 1 – point 9 Directive (EU) No 2017/1132 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 Directive (EU) No 2017/1132 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 Directive (EU) No 2017/1132 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 Directive (EU) No 2017/1132 Article 124 – paragraph 3 3. The report shall be made available
Amendment 358 #
Proposal for a directive Article 1 – paragraph 1 – point 9 Directive (EU) No 2017/1132 Article 124 – paragraph 3 3. The report shall be made available, at least electronically, to the members of each of the merging companies not less than one month before the date of the general meeting referred to in Article 126. The report shall also be made similarly available to the trade unions and the representatives of the employees of each of the merging companies, or where there are no such representatives, to the employees themselves. 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 Directive (EU) No 2017/1132 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 360 #
Proposal for a directive Article 1 – paragraph 1 – point 9 Directive (EU) No 2017/1132 Article 124 – paragraph 4 Amendment 361 #
Proposal for a directive Article 1 – paragraph 1 – point 9 Directive (EU) No 2017/1132 Article 124 – paragraph 4 Amendment 362 #
Proposal for a directive Article 1 – paragraph 1 – point 9 Directive (EU) No 2017/1132 Article 124 – paragraph 4 4.
Amendment 363 #
Proposal for a directive Article 1 – paragraph 1 – point 9 Directive (EU) No 2017/1132 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 Directive (EU) No 2017/1132 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 365 #
Proposal for a directive Article 1 – paragraph 1 – point 9 a (new) Directive (EU) No 2017/1132 Article 123 a (new) Amendment 366 #
Proposal for a directive Article 1 – paragraph 1 – point 10 Directive (EU) No 2017/1132 Article 124 a Amendment 367 #
Proposal for a directive Article 1 – paragraph 1 – point 10 Directive (EU) No 2017/1132 Article 124 a – paragraph 4 4. Where the management or administrative organ of one or more of the merging companies receives
Amendment 368 #
Proposal for a directive Article 1 – paragraph 1 – point 10 a (new) Directive (EU) No 2017/1132 Article 124 b (new) (10 a) Article 124b Employee consent on the proposed cross border merger The representatives of the employees of the company have one month after receiving the report by the management body following Article 124a of this Directive to give or withhold their consent on the proposed conversion.
Amendment 369 #
Proposal for a directive Article 1 – paragraph 1 – point 11 – introductory part (11)
Amendment 370 #
Proposal for a directive Article 1 – paragraph 1 – point 11 Directive (EU) No 2017/1132 Article 125 – paragraph 1 – subparagraph 2 Amendment 371 #
Proposal for a directive Article 1 – paragraph 1 – point 11 Directive (EU) No 2017/1132 Article 125 – paragraph 1 – subparagraph 2 Amendment 372 #
Proposal for a directive Article 1 – paragraph 1 – point 11 a (new) Directive (EU) No 2017/1132 Article 125 Amendment 373 #
Proposal for a directive Article 1 – paragraph 1 – point 11 a (new) Directive (EU) No 2017/1132 Article 125 Amendment 374 #
Proposal for a directive Article 1 – paragraph 1 – point 12 – point a Directive (EU) No 2017/1132 Article 126 – paragraph 1 1. After taking note of the reports referred to in Articles 124
Amendment 375 #
Proposal for a directive Article 1 – paragraph 1 – point 13 Directive (EU) No 2017/1132 Article 126 a – paragraph 1 – introductory part 1. Member States shall ensure that the
Amendment 376 #
Proposal for a directive Article 1 – paragraph 1 – point 13 Directive (EU) No 2017/1132 Article 126 a – paragraph 1 – point a Amendment 377 #
Proposal for a directive Article 1 – paragraph 1 – point 13 Directive (EU) No 2017/1132 Article 126 a – paragraph 1 – point b Amendment 378 #
Proposal for a directive Article 1 – paragraph 1 – point 13 Directive (EU) No 2017/1132 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
Amendment 379 #
Proposal for a directive Article 1 – paragraph 1 – point 13 Directive (EU) No 2017/1132 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,
Amendment 380 #
Proposal for a directive Article 1 – paragraph 1 – point 13 Directive (EU) No 2017/1132 Article 126 a – paragraph 6 6. Member States shall ensure that any member who has accepted the offer of cash compensation referred to in paragraph 3, but 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 or by arbitration within one month of the
Amendment 381 #
Proposal for a directive Article 1 – paragraph 1 – point 13 Directive (EU) No 2017/1132 Article 126 b – paragraph 1 – subparagraph 2 2. Member States shall ensure that creditors of the merging companies
Amendment 382 #
Proposal for a directive Article 1 – paragraph 1 – point 13 Directive (EU) No 2017/1132 Article 126 b – paragraph 3 – point a Amendment 383 #
Proposal for a directive Article 1 – paragraph 1 – point 14 – point a Directive (EU) No 2017/1132 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 However,
Amendment 385 #
Proposal for a directive Article 1 – paragraph 1 – point 14 – point a Directive (EU) No 2017/1132 Article 127 – paragraph 1 – subparagraph 3 Amendment 386 #
Proposal for a directive Article 1 – paragraph 1 – point 15 – point b Directive (EU) No 2017/1132 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 Directive (EU) No 2017/1132 Article 128 – paragraph 3 – subparagraph 2 However, Member States may
Amendment 388 #
Proposal for a directive Article 1 – paragraph 1 – point 15 – point b Directive (EU) No 2017/1132 Article 128 – paragraph 3 – subparagraph 2 Amendment 389 #
Proposal for a directive Article 1 – paragraph 1 – point 17 – point b Directive (EU) No 2017/1132 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 report
Amendment 390 #
Proposal for a directive Article 1 – paragraph 1 – point 18 – point -a (new) Directive (EU) No 2017/1132 Article 133 – paragraph 2 Amendment 391 #
Proposal for a directive Article 1 – paragraph 1 – point 18 – point a Directive (EU) No 2017/1132 Article 133 – paragraph 7 7. Where the company resulting from the cross-border merger is operating under an employee participation system, that company shall be obliged to take measures to ensure that employees' participation rights are protected in the event of any subsequent cross-border or domestic mergers, divisions or conversions for a period of t
Amendment 392 #
Proposal for a directive Article 1 – paragraph 1 – point 19 Directive (EU) No 2017/1132 Amendment 393 #
Proposal for a directive Article 1 – paragraph 1 – point 19 Directive (EU) No 2017/1132 Article 133 a – title Article 133a Liability of independent experts and members of management or administrative organ
Amendment 394 #
Proposal for a directive Article 1 – paragraph 1 – point 19 Directive (EU) No 2017/1132 Article 133 a 1. Member States shall lay down rules governing the civil liability 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.; 2. Member States shall lay down rules governing the penal liability of members of management or administrative organ of company responsible for submitting a false statement about the places of business referred to in Article 86e paragraph 3. 3. A member of the management or administrative body does not bear the responsibility referred to in paragraph 2 of this Article, when a change of places of business activity results from economic reasons that could not have been known to the member of company's organ at the time when the statement was submitted.
Amendment 395 #
Proposal for a directive Article 1 – paragraph 1 – point 19 Directive (EU) No 2017/1132 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),
Amendment 396 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Title II – Chapter IV (new) Amendment 397 #
Proposal for a directive Article 1 – paragraph 1 – point 20 (1 a) 'an artificial arrangement' means any transaction, scheme, action, operation or agreement or a series of these put in place to circumvent companies’ obligations related to legal or contractual rights of employees, creditors or members, including related to employees’ participation or obligations related to taxation or social security, and which is considered to lack genuine economic substance, regardless of the intentions of the taxpayer;
Amendment 398 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 b – point 1 b (new) (1 b) 'economic substance' means factual criteria, which can be used to define the taxable presence of an undertaking, such as the existence of human and physical resources specific to the entity, its management autonomy, its legal reality, the revenues it generates and, where appropriate, the nature of its assets;
Amendment 399 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 d Amendment 400 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 d a (new) Amendment 401 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 d – paragraph 2 – point a (a) proceedings have been instituted for the winding-up, liquidation,
Amendment 402 #
Proposal for a directive Article 1.º – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 d – paragraph 2 – point a (new) (a A) Receipt of state aid in the past;
Amendment 403 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 d – paragraph 2 – point b Amendment 404 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 d – paragraph 2 – point e a (new) (e a) the company is under investigation or has been convicted in the last 3 years for social or tax fraud, tax evasion, tax avoidance or money laundering or any other financial crime;
Amendment 405 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 d – paragraph 2 a (new) 2 a. A company subject to preventive restructuring proceedings initiated because of the likelihood of insolvency shall be subject to a scrutiny by the competent authorities of the Member States as to whether its conversion or division themselves might serve the purpose of restructuring and avoiding insolvency. Following the scrutiny, the competent authorities of the Member States shall make an autonomous decision whether the company in question is entitled to carry out a cross border conversion or not.
Amendment 406 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 d – paragraph 3 3. The Member State of the company being divided shall ensure that the competent authority shall not authorise the
Amendment 407 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 d – paragraph 3 3. The Member State of the company being divided shall ensure that the competent authority shall not authorise the division when it determines, after an examination of the specific case and having regard to all relevant facts and circumstances, that it constitutes an artificial arrangement or has strong suspicions that it constitutes an artificial arrangement aimed at obtaining undue tax advantages or at unduly prejudicing the legal or contractual rights of employees, creditors or members.
Amendment 408 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 d – paragraph 3 a (new) 3 a. For the purposes of paragraph 3, an arrangement or a series thereof shall be regarded as non-genuine to the extent that they are not put into place for valid commercial reasons which reflect economic reality.
Amendment 409 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 d – paragraph 4 a (new) 4 a. This Directive is without prejudice of the enforcement of tax rules in national law, including the possibility for the departure Member State to impose a tax on hidden reserves of the dividing company before the division takes effect, in accordance with the jurisprudence of the European Court of Justice.
Amendment 410 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 e – paragraph 1 – point r a (new) Amendment 411 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 e – paragraph 4 4. In addition to the official languages of the Member States of the recipient companies and the one being divided, Member States shall allow the company to use a language customary in the sphere of international business and finance in order to draw up the draft terms of cross-border division and all other related documents. Member States shall specify which language will prevail in case of discrepancies among different linguistic versions of those documents. Members, employees or creditors shall have the possibility to comment on these draft terms. The comments shall be included in the final report and be made public.
Amendment 412 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 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 c
Amendment 413 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 f – paragraph 1 – subparagraph 3 – point a (a) it may not be earlier than the date of the balance sheet of the last annual financial statements drawn up and
Amendment 414 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 g – title Article 160g Report of the management or administrative organ to the members and employees
Amendment 415 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 g – title Article 160g Report of the management or administrative organ
Amendment 416 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 g – paragraph 2 – point a (a) the rationale for the operation and implications of the cross-border division on the future business of the recipient companies and, in the case of a partial division, also of the company being divided and on the managements' strategic plan;
Amendment 417 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 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 Directive (EU) No 2017/1132 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 Directive (EU) No 2017/1132 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 420 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 g – paragraph 2 a (new) 2 a. The report, referred to in paragraph 1 of this Article, shall be accompanied with a statement of the management or administrative organ of the company about places of business after the cross-border conversion, including information about a partial or complete carrying on of business in the departure Member State and, in appropriate circumstances, marking a fact of further conduct of operations only in the departure Member State.
Amendment 421 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 g – paragraph 3 3. The report referred to in paragraph 1 of this Article, shall be made available
Amendment 422 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 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 423 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 g – paragraph 4 Amendment 424 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 g – paragraph 4 Amendment 425 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 g – paragraph 4 4.
Amendment 426 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 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 Directive (EU) No 2017/1132 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 Directive (EU) No 2017/1132 Article 160 h Amendment 429 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 h – paragraph 2 – point a (a) the rationale of the operation and implications of the cross-border division on the future business of the recipient companies and, in the case of a partial division, also of the company being divided and on the management's strategic plan;
Amendment 430 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Amendment 431 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 i – title Article 160i Examination by
Amendment 432 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 i – paragraph 1 – subparagraph 1 Member States shall ensure that the company being divided applies to the
Amendment 433 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 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
Amendment 434 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 i – paragraph 1 – subparagraph 2 The application
Amendment 435 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 i – paragraph 1 – subparagraph 2 – point b (b) the report
Amendment 436 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 i – paragraph 2 2. The competent authority shall
Amendment 437 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 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 report
Amendment 438 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 i – paragraph 3 – introductory part 3. The
Amendment 439 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 i – paragraph 3 – point f Amendment 440 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 i – paragraph 3 – point f (f) a description of all factual elements
Amendment 441 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 i – point 3 a (new) 3 a. The competent authority shall always organise a meeting with employees of the company prior to drawing up its written report.
Amendment 442 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 i – paragraph 4 4. Member States shall ensure that the
Amendment 443 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 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 report
Amendment 444 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 i – paragraph 5 5. Member States shall ensure that information submitted
Amendment 445 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 j – paragraph 1 – point b (b) the
Amendment 446 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 j – paragraph 1 – point c a (new) (c a) Information on its ultimate beneficial owners before and after the cross-border division.
Amendment 447 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 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 Directive (EU) No 2017/1132 Article 160 j – paragraph 4 – subparagraph 2 However, Member States may
Amendment 449 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 j – paragraph 4 – subparagraph 2 However, Member States may in cases of
Amendment 450 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 j – paragraph 6 a (new) 6 a. Member States shall ensure that confidential information, including business secrets, shall not be disclosed.
Amendment 451 #
Proposal for a directive Article 1.º – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 k – title Article 160 k Approval by the general meeting and by the employees’ plenary
Amendment 452 #
Proposal for a directive Article 1.º – paragraph 1 – point 20 Directive (EU) No 2017/1132 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 and the employees’ plenary 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 and of the employees’ plenary.
Amendment 453 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 k – paragraph 1 1. After taking note of the reports referred to in Articles 160g
Amendment 454 #
Proposal for a directive Article 1.º – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 k – paragraph 2 2. The general meeting
Amendment 455 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 k – paragraph 4 Amendment 456 #
Proposal for a directive Article 1.º – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 k – paragraph 4 4. The general meeting and the employees’ plenary shall also decide whether the cross-border division would necessitate amendments to the instruments of constitution of the company being divided.
Amendment 457 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 l – paragraph 1 1. Member States shall ensure that the
Amendment 458 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 l – paragraph 1 – point a Amendment 459 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 l – paragraph 1 – point b Amendment 460 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 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
Amendment 461 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 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,
Amendment 462 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 m – paragraph 2 2. Member States shall ensure that creditors
Amendment 463 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 m – paragraph 3 – point a Amendment 464 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 n – paragraph 2 – introductory part Amendment 465 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 n – paragraph 2 – introductory part 2. However, the rules in force concerning employee participation, if any, in the Member State where the company resulting from the cross-border division has its registered office shall not apply, where the company being divided, in the six months prior to the
Amendment 466 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 o – paragraph 1 1. Member States shall designate the
Amendment 467 #
(b) the reports referred to in Articles 160g
Amendment 468 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 o – paragraph 2 – point b (b) the reports referred to in Articles 160g
Amendment 469 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 o – paragraph 2 – subparagraph 2 Amendment 470 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 o – paragraph 2 – subparagraph 2 The draft terms and reports submitted under Article 160
Amendment 471 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 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
Amendment 472 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 o – paragraph 3 – subparagraph 2 However,
Amendment 473 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 o – paragraph 4 Amendment 474 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 o – paragraph 4 4. In respect of compliance with the rules concerning employee participation as laid down in Article 160n, the Member State of the company being divided shall verify that the draft terms and reports of cross-border division referred to in Article 160e include information on the procedures by which the relevant arrangements are determined and on the possible options for such arrangements.
Amendment 475 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 o – paragraph 7 7. Member States shall ensure that the assessment by the competent authority is carried out within
Amendment 476 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 o – paragraph 7 – point c Amendment 477 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Amendment 478 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 p – paragraph 1 – subparagraph 1 Member States shall ensure in order to assess whether the cross-border division constitutes an artificial arrangement within the meaning
Amendment 479 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 q – paragraph 1 1. Member States shall ensure that
Amendment 480 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 r – paragraph 1 – subparagraph 1 Member States shall designate
Amendment 481 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 r – paragraph 1 a (new) 1 a. The competent authority in the Member State of departure shall send the outcome of its assessment on the cross- border division to the competent authorities in the Member State of destination.
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
Amendment 483 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 r – paragraph 3 – subparagraph 2 However,
Amendment 484 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 r – paragraph 3 – subparagraph 2 However, in cases of
Amendment 485 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 s – paragraph 2 – point d a (new) (d a) Information on its ultimate beneficial owners before and after the cross-border conversion in accordance with Directive 2015/849.
Amendment 486 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 u – paragraph 2 – subparagaph 2 Amendment 487 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 v Amendment 488 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 v – title Article 160v Liability of the independent experts and members of management or administrative organ
Amendment 489 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 v Amendment 490 #
1. Member States shall lay down rules governing at least the civil liability 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. 2. Member States shall lay down rules governing the penal liability of members of management or administrative organ of company responsible for submitting a false statement about the places of business referred to in Article 86e paragraph 3. 3. A member of the management or administrative body does not bear the responsibility referred to in paragraph 2 of this Article, when a change of places of business activity results from economic reasons that could not have been known to the member of company's organ at the time when the statement was submitted.
Amendment 491 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 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),
Amendment 492 #
Proposal for a directive Article 1 – paragraph 1 – point 20 Directive (EU) No 2017/1132 Article 160 v – paragraph 1 a (new) However, if during the year following the date on which the cross-border division takes effect, new information on this cross-border division are brought to the attention of the competent authorities alleging of genuine suspicion of fraud, the competent authorities shall proceed to a revised assessment of the facts of the case and can take effective, proportionate and dissuasive sanctions in cases of artificial arrangements.
Amendment 493 #
Proposal for a directive Article 3 – paragraph 1 1. The Commission shall, no later than five years after [OP please insert the date of the end of the transposition period of this Directive] and subsequently every five years, carry out an evaluation of this Directive and present a Report on the findings to the European Parliament, the Council and the European Economic and Social Committee accompanied, where appropriate, by a legislative proposal. The evaluation shall in particular examine whether a positive impact has been achieved regarding eliminating artificial and/or harmful arrangements, and its impact on workers’ rights. The European Commission shall consult the European social partners. Member States shall provide the Commission with the information necessary for the preparation of that report, in particular by providing data on the number of cross-border conversions, mergers and divisions, their duration and related costs.
Amendment 494 #
Proposal for a directive Article 3 – paragraph 1 1. The Commission shall, no later than
Amendment 96 #
Proposal for a directive Recital 1 (1) The Directive (EU) 2017/1132 of the European Parliament and of the Council41 regulates cross-border mergers of limited liability companies. These rules represent a significant milestone in improving the functioning of the Single Market for companies and firms and to exercise the freedom of establishment and, at the same time, offer appropriate and adequate protection to the parties concerned, such as workers, creditors and minority shareholders. However, evaluation of these rules shows that there is a need for modifications in cross-border merger rules. Furthermore, it is appropriate to provide for rules regulating cross-border conversions
Amendment 97 #
Proposal for a directive Recital 1 (1) The Directive (EU) 2017/1132 of the European Parliament and of the
Amendment 98 #
Proposal for a directive Recital 2 (2) Freedom of establishment is one of the fundamental principles of Union law. Under the second paragraph of Article 49 of the Treaty on the Functioning of the European Union (‘TFEU’), when read in conjunction with Article 54 of the TFEU, the freedom of establishment for companies or firms includes, inter alia, the right to form and manage such companies or firms under the conditions laid down by the legislation of the Member State of establishment. This has been extensively interpreted by the Court of Justice of the European Union as encompassing the right of a company or
Amendment 99 #
Proposal for a directive Recital 2 a (new) (2a) While competition in the single market and the freedom of establishment are key principles of the Union, the freedom of companies to move their registered office from one Member State to another is based on undesired system competition between Member States fuelled by an unlevel playing field with different national provisions in social and fiscal policies. Abusive conversions, mergers or divisions constituting artificial arrangements or social dumping, but also reducing fiscal obligations or undercutting social rights of employees are therefore to be avoided in order to respect Treaty principles and European values. The case law of the European Court of Justice regarding a very far- reaching right to cross-border conversions is regrettable, as the possibility for firms to move their registered office without moving core activities has contributed to incomprehension and anti-European sentiments by employees and other stakeholders as regards this problematic form of competition.
source: 627.752
2018/09/25
JURI
679 amendments...
Amendment 134 #
Proposal for a directive Recital 1 (1) The Directive (EU) 2017/1132 of the European Parliament and of the Council41 regulates cross-border mergers of limited liability companies. These rules represent a significant milestone in improving the functioning of the Single Market for companies and firms and to exercise the freedom of establishment. However, evaluation of these rules shows that there is a need for modifications in cross-border merger rules
Amendment 135 #
Proposal for a directive Recital 1 (1) The Directive (EU) 2017/1132 of the European Parliament and of the Council41 regulates cross-border mergers of limited liability companies. These rules represent a significant milestone in improving the functioning of the Single Market for companies and firms and to exercise the freedom of establishment on the one hand and on the protection of key stakeholders on the other. However, evaluation of these rules shows that there is a need for modifications in cross-border merger rules. Furthermore, it is appropriate to provide for rules regulating cross-border conversions and divisions. _________________ 41 Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law (codification) (OJ L 169, 30.6.2017, p. 46).
Amendment 136 #
Proposal for a directive Recital 1 a (new) (1a) In order to ensure sound and prosperous companies that offer economic and social added value to the community, the European Union must lay the foundations for a growth-friendly legal and administrative environment adapted to the new economic and social challenges of globalisation and digitisation, while at the same time upholding legitimate public interests such as the protection of employees, creditors and minority shareholders and giving the authorities the necessary guarantees to counter fraud or wrongdoing.
Amendment 137 #
Proposal for a directive Recital 2 (2) Freedom of establishment is one of the fundamental principles of Union law. Under the second paragraph of Article 49 of the Treaty on the Functioning of the European Union (‘TFEU’), when read in conjunction with Article 54 of the TFEU, the freedom of establishment for companies or firms includes, inter alia, the right to form and manage such companies or firms under the conditions laid down by the legislation of the Member State of establishment. This has been interpreted by the Court of Justice of the European Union extensively beyond the actual meaning of the wording as encompassing the right of a company or firm formed in accordance with the legislation of a Member State to convert itself into a company or firm governed by the law of another Member State, provided that the conditions laid down by the legislation of that other Member State are satisfied and, in particular, that the test adopted by the latter Member State to determine the connection of a company or firm to its national legal order is satisfied.
Amendment 138 #
Proposal for a directive Recital 2 a (new) (2a) The freedom of establishment and the development of the internal market are no stand-alone principles or objectives of the EU. They should always be balanced with, in particular in the context of this Directive, the Union’s principles and objectives regarding social progress, the promotion of a high level of employment and the guarantee of adequate social protection, embedded in Article 3 of the Treaty on the European Union and Article 9 of the TFEU. It is therefore clear that the development of the internal market should contribute to social cohesion and upward social convergence, and should not fuel competition between social systems, putting pressure on those systems to lower their standards.
Amendment 139 #
Proposal for a directive Recital 2 b (new) (2b) EU policy should also contribute to the promotion and reinforcement of social dialogue, in line with article 151 TFEU. It is therefore also the objective of this Directive to secure employees’ information, consultation and participation rights and to ensure that any cross-border mobility of companies can never lead to the lowering of these rights. Ensuring information, consultation and participation of employees is essential for all such actions to succeed.
Amendment 140 #
Proposal for a directive Recital 2 c (new) (2c) The freedom of establishment should also in no way undermine the principles regarding the countering fraud and any other illegal activities affecting the financial interests of the Union included in article 310 of the TFEU.
Amendment 141 #
Proposal for a directive Recital 3 (3) In the absence of harmonisation of Union law, the definition of the connecting factor that determines the national law applicable to a company or firm falls, in accordance with Article 54 of the TFEU, within the competence of each Member State to so define. Article 54 of the TFEU places the factor of the registered office, the central administration and the principal place of business of a company or firm at the same degree of connection.
Amendment 142 #
Proposal for a directive Recital 4 (4) These developments in the case-law have opened up new opportunities for companies and firms in the Single Market in order to foster economic growth, effective competition and productivity. At the same time, in the absence of a level playing field in the form of coherent social and fiscal rules, these developments went hand-in-hand with the proliferation of letterbox companies and abusive practices, constituting artificial arrangements and circumventing fiscal and social security obligations as well as undercutting workers’ rights. The objective of a Single Market without internal borders for companies must
Amendment 143 #
Proposal for a directive Recital 4 (4) These developments in the case-law have opened up new opportunities for companies and firms in the Single Market to step up their business activities in order to foster economic growth, effective competition and productivity. At the same time, the objective of a Single Market without internal borders for companies must also be reconciled with other objectives of European integration such as social protection (in particular the protection of workers), the protection of creditors and the protection of shareholders. Such objectives, in the absence of harmonised EU rules specifically
Amendment 144 #
Proposal for a directive Recital 4 (4) These developments in the case-law have opened up new opportunities for companies and firms in the Single Market |