Activities of Stanisław OŻÓG related to 2018/0114(COD)
Shadow opinions (1)
OPINION 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
Amendments (26)
Amendment 195 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive (EU) No 2017/1132
Article 24 – point e
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, 86h, 86o, 86p, 86q, 123, 127, 128, 130, 160j, 160q, 160r and 160s;
Amendment 196 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 a – paragraph 1
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 205 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 c – paragraph 2 – point b
Article 86 c – paragraph 2 – point b
Amendment 210 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 c – paragraph 2 a (new)
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
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 c – paragraph 3
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 aimed at obtaining undue tax advantages or at unduly, that should be understood as a non-genuine arrangement or a series of arrangements which have been put into place for the main purpose or one of the main purposes of obtaining a tax advantage that defeats the object or purpose of the applicable tax law prejudicing the legal or contractual rights of employees, creditors or minority members.
Amendment 215 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 c – paragraph 3 a (new)
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 222 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 e – title
Article 86 e – title
Article 86e Report of the management or administrative organ to the members
Amendment 227 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 e – paragraph 2 a (new)
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 233 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 e – paragraph 4
Article 86 e – paragraph 4
Amendment 252 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 g – paragraph 2
Article 86 g – paragraph 2
2. The competent authority shall appoint an independent expert within fiveten working days from the application referred to in paragraph 1 and the receipt of the draft terms and reports. The expert shall be independent from the company carrying out the cross-border conversion and may be a natural or a legal person depending upon the law of the departure Member State. Member States shall take into account, in assessing the independence of the expert, the framework established in Articles 22 and 22b of Directive 2006/43/EC.
Amendment 265 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 g – paragraph 5 a (new)
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 267 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) No 2017/1132
Article 86 g – paragraph 6
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. This is, however, without prejudice to the right of micro and small enterprises to apply for an expert report by an independent expert if they consider it to their benefit; in particular to secure the application of the protection provisions laid down in Article 86k paragraph 3 point a. Or. en (Read together with: Art. 86k paragraph 3 point a)
Amendment 348 #
Proposal for a directive
Article 1 – paragraph 1 – point 8
Article 1 – paragraph 1 – point 8
Directive (EU) No 2017/1132
Article 122 a – paragraph 1 – subparagraph 2 – point a
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 publishedmade available by any of the merging companies;
Amendment 393 #
Proposal for a directive
Article 1 – paragraph 1 – point 19
Article 1 – paragraph 1 – point 19
Directive (EU) No 2017/1132
Article 133 a – title
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
Article 1 – paragraph 1 – point 19
Directive (EU) No 2017/1132
Article 133 a
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 403 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 d – paragraph 2 – point b
Article 160 d – paragraph 2 – point b
Amendment 405 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 d – paragraph 2 a (new)
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
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 d – paragraph 3
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 aimed at obtaining undue tax advantages or at unduly, that should be understood as an arrangement or a series of arrangements which have been put into place for the main purpose or one of the main purposes of obtaining a tax advantage that defeats the object or purpose of the applicable tax law or at prejudicing the legal or contractual rights of employees, creditors or members.
Amendment 408 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 d – paragraph 3 a (new)
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 413 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 f – paragraph 1 – subparagraph 3 – point a
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 publishedmade available by the company being divided;
Amendment 415 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 g – title
Article 160 g – title
Article 160g Report of the management or administrative organ to the members
Amendment 420 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 g – paragraph 2 a (new)
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 424 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 g – paragraph 4
Article 160 g – paragraph 4
Amendment 465 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 n – paragraph 2 – introductory part
Article 160 n – paragraph 2 – introductory part
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 publicationdate of making available of the draft terms of the cross- border division as referred to in Article 160e of this Directive, has an average number of employees equivalent to four fifths of the applicable threshold, laid down in the law of the Member State of the company being divided, which triggers the participation of employees within the meaning of point (k) of Article 2 of Directive 2001/86/EC, or where the national law applicable to each of the recipient companies does not:
Amendment 488 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) No 2017/1132
Article 160 v – title
Article 160 v – title
Article 160v Liability of the independent experts and members of management or administrative organ
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.