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65 Amendments of Edouard MARTIN related to 2018/0114(COD)

Amendment 32 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN
Proposal for a directive
Recital 7 a (new)
(7a) The concept of establishment within the meaning of the Treaty provisions on freedom of establishment involves the actual pursuit of an economic activity through a fixed establishment in the host Member State for an indefinite period and it presupposes the pursuit of genuine economic activity there. It is therefore appropriate to ensure that the company carrying out the cross-border conversion or the merging companies, in case of a cross-border merger, are required to demonstrate on the basis of ascertainable objective factors, to have a fixed establishment and to pursuit genuine and substantial economic activity in the destination Member State for an indefinite period. In order to combat abuses and to avoid the use of cross- border company restructuring processes to create artificial arrangements, it is also necessary to ensure that the companies resulting from cross-border conversions or cross-border mergers have their head office in the destination Member State.
2018/10/01
Committee: EMPL
Amendment 38 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN
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, information on the procedures by which arrangements for the involvement of employees in the definition of their rights to participation in the converted company are determined and on the possible options for such arrangements. 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’ in the application of collective agreements as well as the locations of the companies’ central administration or places of business-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 onlye provision of the report should be delivered in a timely manner and in such a way as to allow the employees of to meet withe company are in its administrative organ. The provision of the report should brepresentatives, to formulate their opinion and to seek external expert advice 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 2009/38/EC of the European Parliament and of the Council44 . __________________ 43 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (OJ L 80, 23.3.2002, p. 29). 44 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (Recast) (OJ L 122, 16.5.2009, p. 28).
2018/10/01
Committee: EMPL
Amendment 49 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
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 organt is a fundamental principle and stated aim of this Directive to secure employees' involvement -rights. In order to reflect the cross-border nature of thea 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 ies' conversion, merger or division, national information and consultation rights must be secured. Therefore, 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 subsequent domestic or cross-border conversion, merger or division within three yearsthe company resulting from the cross-border conversion and merger at least the same level of all elements of employee involvement rights should continue to apply.
2018/10/01
Committee: EMPL
Amendment 53 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Recital 19 a (new)
(19a) The great diversity of rules and practices existing in the Member States as regards the manner in which employees' representatives are involved in decision- making within companies should be respected and acknowledged.
2018/10/01
Committee: EMPL
Amendment 54 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Recital 19 b (new)
(19b) Information and consultation procedures at national and transnational level should nevertheless be ensured in all companies resulting from the cross- border conversion or merger.
2018/10/01
Committee: EMPL
Amendment 55 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Recital 19 c (new)
(19c) In order to ensure that employee participation is not 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 continued 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 secure employees’ national and transnational information and consultation as well as participation rights 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. A company should inform its workforce about the results of those negotiations or the application of standard rules as set out in the Annex to Directive 2001/86/EC. In order to protect either the agreed solution or the application of those standard rules, the company should not be able to remove or lower the participation rights through carrying out subsequent domestic or cross-border conversion, merger or division within 10 years.
2018/10/01
Committee: EMPL
Amendment 58 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN
Proposal for a directive
Recital 20
(20) In order to prevent theA company shall not be allowed to circumvention of employee participation rights by means of a cross-border conversion, t. The company carrying out a conversion which is registered in thea 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 equivalent to four fifthtwo thirds of the national threshold for triggering such employee participation.
2018/10/01
Committee: EMPL
Amendment 96 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 1 a (new)
Directive (EU) 2017/1132
Article 1 a (new)
(-1) in Title I, Chapter I, the following Article 1a is inserted: “Article 1a Definitions For the purposes of this Directive: (1) "employees' representatives" means the employees' representatives provided for by Union and national law and/or practice; (2) "involvement of employees" means any mechanism, including information, consultation and participation, through which employees' representatives may exercise an influence on decisions to be taken within the company; (3) "information" means the informing of the representative of the employees and/or employees' representatives by the competent organ of the company on questions which concern the company itself and any of its subsidiaries or establishments situated in another Member State or which exceed the powers of the decision-making organs in a single Member State at a time, in a manner and with a content which allows the employees' representatives to undertake an in-depth assessment of the possible impact and, where appropriate, prepare consultations with the competent organ of the company; (4) "consultation" means the establishment of dialogue and exchange of views between the body representative of the employees and/or the employees' representatives and the competent organ of the company, at a time, in a manner and with a content which allows the employees' representatives, on the basis of information provided, to express an opinion on measures envisaged by the competent organ which may be taken into account in the decision-making process within the company; (5) "participation" means the influence of the body representative of the employees and/or the employees' representatives in the affairs of a company by way of: the right to elect or appoint some of the members of the company's supervisory or administrative organ, or the right to recommend and/or oppose the appointment of some or all of the members of the company's supervisory or administrative organ; (6) “artificial arrangement’ means a company structure set up for abusive purposes or, improperly or fraudulently taking advantage of provisions of Union and national law, such as through the circumvention of legal and contractual rights of employees, creditors', or minority shareholders', avoidance of rules on employee involvement, social security payments or tax obligations normally due on profits generated, through for example through a fictitious establishment or a company with delegated management not carrying out any substantive economic activity supported by staff, equipment, assets and premises, in particular in the case of a ‘letterbox’ or ‘front’ company;
2018/10/01
Committee: EMPL
Amendment 99 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN
Proposal for a directive
Article 1 – paragraph 1 – point 1 b (new)
(1b) After Article 1a, the following Article 1b is inserted: “Article 1b Definitions For the purposes of this Directive (7) ‘head office’ means the place where key management and commercial decisions that are necessary for the conduct of the company’s business as a whole are in substance made.”
2018/10/01
Committee: EMPL
Amendment 111 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 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 aimed at obtaining undue tax advantages or at unduly prejudic. The company carrying out the cross-border conversion shall demonstrate on the basis of ascertainable objective factors, the actual establishment and the pursuit of genuine economic activity in the destination Member State for an indefinite period. The company carrying out the cross- border conversion shall be presumed to have an actual establishment and to pursue genuine economic activity ing the legal or cdestination Member State where it can demonstractual rights of employees, creditors or minority memberste that it has a fixed establishment in that State which has the objective appearance of permanency, has a management body and is materially equipped to negotiate business with third parties so that the latter do not have to deal directly with the parent body, which is abroad, but may transact business at the place of business constituting the establishment.
2018/10/01
Committee: EMPL
Amendment 115 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 d – paragraph 1 – introductory part
1. The management or administrative organ, including employee board level representatives, of the company which intends to carry out a cross-border conversion shall draw up the draft terms of a cross-border conversion. The draft terms of a cross-border conversion. If the company is subject to board level employee representation, this board shall be included into the decision on the draft terms in accordance with national law and practice. The draft terms of a cross- border conversion shall include at least the following:
2018/10/01
Committee: EMPL
Amendment 118 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 d – paragraph 1 – point a
(a) the legal form, name and, location of the registered office, of the company in the departure Member State;
2018/10/01
Committee: EMPL
Amendment 119 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 d – paragraph 1 – point d a (new)
(da) detailed information on the transfer of the central administration or principle place of business;
2018/10/01
Committee: EMPL
Amendment 122 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 d – paragraph 1 – point h
(h) any additional salary, bonuses relating to the conversion or other special advantages granted to members of the administrative, management, supervisory or controlling organ of the converted company;
2018/10/01
Committee: EMPL
Amendment 123 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 d – paragraph 1 – point i a (new)
(ia) the consequences of the cross- border conversion for the employees, including likely changes to the workforce, its organisation, or to the work description or place of specific posts and the consequences for the employees upholding such posts including its subsidiaries and branches located within the Member States, carrying out a cross- border conversion;
2018/10/01
Committee: EMPL
Amendment 125 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 d – paragraph 1 – point k
(k) wthere appropriate, likely repercussions of the cross-border conversion on employment information on the procedures by which arrangements for the involvement of employees in the definition of their rights to information, consultation and participation in the converted company are determined pursuant to Article 86l and on the possible options for such arrangements.
2018/10/01
Committee: EMPL
Amendment 129 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 d – paragraph 1 a (new)
1a. Before the management or administrative organ decides on the draft terms of a cross-border conversion, the European Works Council and the representatives of the employees of the company carrying out the cross-border conversion or, where there are no such representatives, the employees themselves and the trade unions represented should be informed and consulted on the proposed transfer in accordance with Article 4 of Directive 2002/14/EC1a. __________________ 1a Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community - Joint declaration of the European Parliament, the Council and the Commission on employee representation, OJ L 80, 23.3.2002, p. 29–34.
2018/10/01
Committee: EMPL
Amendment 135 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 e – paragraph 2 – point a a (new)
(aa) the reasons of the cross-border conversion
2018/10/01
Committee: EMPL
Amendment 157 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point a a (new)
(aa) the reasons of the cross-border conversion;
2018/10/01
Committee: EMPL
Amendment 159 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
(b) the implications of the cross-border conversion on the safeguarding of employment relationships and employee involvement, as well as measures to be taken in order to safeguard them;
2018/10/01
Committee: EMPL
Amendment 163 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point c
(c) any material changes in the conditions of employment, including through collective agreements, and in the location of the company’s places of business;
2018/10/01
Committee: EMPL
Amendment 164 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point d
(d) whether the factors set out in points (a), (b) and (c) also relate to any subsidiaries, branches or controlled undertakings according to Article 3 of Directive 2009/38/EC of the company.
2018/10/01
Committee: EMPL
Amendment 168 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point d a (new)
(da) information on the procedures by which arrangements for the information, consultation and participation rights of employees in the resulting converted company are determined in accordance with the provisions of this directive;
2018/10/01
Committee: EMPL
Amendment 169 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point d b (new)
(db) the implications of the cross- border conversion on the future business of the company and on the managements strategic plan;
2018/10/01
Committee: EMPL
Amendment 172 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point d c (new)
(dc) the rights and remedies available to members opposing the conversion;
2018/10/01
Committee: EMPL
Amendment 175 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2 a (new)
2a. Before the management or administrative organ decides on the report to the members, the representatives of the employees of the company carrying out the cross-border conversion or, if there are no representatives, the employees themselves, should be informed and consulted on the proposed transfer in accordance with Article 4 of Directive 2002/14/EC1a. __________________ 1a Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community - Joint declaration of the European Parliament, the Council and the Commission on employee representation, OJ L 80, 23.3.2002, p. 29–34.
2018/10/01
Committee: EMPL
Amendment 176 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 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 European Works Council 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 trade unions represented in the company, as well as to the members of the company carrying out the cross- border conversion.
2018/10/01
Committee: EMPL
Amendment 179 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
3a. The European Works Councils, where applicable, the national employee' representation bodies and the trade unions represented in the company shall have appropriate resources to conduct a thorough analysis on the report.
2018/10/01
Committee: EMPL
Amendment 182 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 4
4. Where tThe management or administrative organ of the company carrying out the cross-border conversion receives, in good time,quests to submit an opinion from the representatives of their employees within one month or, where there are no such representatives, from the employees themselves, as provided for under national law, t. The members shall be informed thereof and that opinion shall be appended to that report.
2018/10/01
Committee: EMPL
Amendment 184 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 4 a (new)
4a. The executive management or the administrative organ of the company which intends to carry out the cross- border conversion, shall provide a motivated response on the opinion provided by employee before the date of the general meeting referred to in Article 86i.
2018/10/01
Committee: EMPL
Amendment 210 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 h a (new)
After Article 86h, the following Article 86ha is inserted: Article 86ha Approval by the employees After taking note of the reports referred to in Articles 86e, 86f and 86g, the representatives of the employees of the company carrying out the cross-border conversion or, if there are no representatives, the employees themselves, shall decide, by simple majority, whether to approve the draft terms of the cross- border conversion. In case the representatives of the employees or, where applicable, the employees themselves, reject the draft terms, the general meeting of the company shall not proceed to vote on the resolution referred to in Article 86i.
2018/10/01
Committee: EMPL
Amendment 220 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l – title
Article 86l Employee information, consultation and participation
2018/10/01
Committee: EMPL
Amendment 221 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l a (new)
After Article 86l the following Article 86la is inserted: Article 86l a (new) Collective agreements Following the cross-border conversion, the company carrying out the cross- border conversion shall continue to observe the terms and conditions agreed in any collective agreements on the same terms applicable to the company before the conversion under such agreements, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.
2018/10/01
Committee: EMPL
Amendment 225 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 l – paragraph –1 (new)
-1. Where the management or administrative organs of the participating companies draw up a plan to carry out a conversion, they shall as soon as possible after publishing the draft terms of conversion take the necessary steps, including providing information about the identity of the participating companies, concerned subsidiaries or establishments, and the number of their employees, to start negotiations with the representatives of the companies' employees on arrangements for the involvement of employees in the company or companies resulting from the conversion.
2018/10/01
Committee: EMPL
Amendment 229 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 2 – introductory part
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 number of employees equivalent to four fifthtwo thirds of the applicable threshold, laid down in the law of the departure Member State, 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 of the destination Member State does not:
2018/10/01
Committee: EMPL
Amendment 232 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 2 – point a
(a) provide for at least the same level and elements of employee participation as operated in the company prior to the conversion, measured by reference to the proportion of employee representatives amongst the members of the administrative or supervisory organ or their committees or of the management group which covers the profit units of the company, subject to employee representation; or
2018/10/01
Committee: EMPL
Amendment 233 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 3 – introductory part
3. IThe information, consultation and participation of employees in the converted company and their involvement in the definition of such rights and 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(2), (3) and (4) of Regulation (EC) No 2157/2001 and the following provisions of Directive 2001/86/EC:
2018/10/01
Committee: EMPL
Amendment 237 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 3 – point b
(b) Article 4(1), Article 4(2)(a), (b), (c), (d), (e), (g) and (h), Article 4(3) and Article 4(4);
2018/10/01
Committee: EMPL
Amendment 245 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 3 – point g
(g) Part 1, part 2 and point (a) of Part 3 of the Annex.
2018/10/01
Committee: EMPL
Amendment 249 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 4
4. When regulating the principles and procedures referred to in paragraph 3, Member States: shall ensure that the rules on employee participation that applied prior to the cross-border conversion continue to apply until the date of application of any subsequently agreed rules or in the absence of agreed rules until the application of default rules in accordance with point (a) of Part 3 of the Annex.
2018/10/01
Committee: EMPL
Amendment 252 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 4 – point a
(a) shall confer on the special negotiating body the right to decide, by a majority of two thirds of its members representing at least two thirds of the employees, not to open negotiations or to terminate negotiations already opened and to rely on the rules on participation in force in the destination Member State;deleted
2018/10/01
Committee: EMPL
Amendment 258 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 4 – point b
(b) may, in the case where, following prior negotiations, standard rules for participation apply and notwithstanding such rules, decide to limit the proportion of employee representatives in the administrative organ of the converted company. However, if in the company carrying out the conversion employee representatives constituted at least one third of the administrative or supervisory board, the limitation may never result in a lower proportion of employee representatives in the administrative organ than one third;deleted
2018/10/01
Committee: EMPL
Amendment 260 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 4 – point c
(c) shall ensure that the rules on employee participation that applied prior to the cross-border conversion continue to apply until the date of application of any subsequently agreed rules or in the absence of agreed rules until the application of default rules in accordance with point (a) of Part 3 of the Annex.deleted
2018/10/01
Committee: EMPL
Amendment 265 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
5. The extension of participation rights to employees of the converted company employed in other Member States, referred to in point (b) of paragraph 2, shall not entail any obligation for Member States which choose to do so to take those employees into account when calculating the size of workforce thresholds giving rise to participation rights under national law.deleted
2018/10/01
Committee: EMPL
Amendment 266 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – 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 also in the event of any subsequent cross-border or domestic merger, division or conversion for a period of threen years after the cross- border conversion has taken effect, by applying mutatis mutandis the rules laid down in paragraphs 1 to 63.
2018/10/01
Committee: EMPL
Amendment 271 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 7 a (new)
7a. Member States shall ensure, in accordance with Article 6 of Directive 2002/14/EC1a that employee’s representatives, when carrying out their functions, enjoy adequate protection and guarantees to enable them to perform properly the duties which have been assigned to them. __________________ 1a Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community - Joint declaration of the European Parliament, the Council and the Commission on employee representation, OJ L 80, 23.3.2002, p. 29–34
2018/10/01
Committee: EMPL
Amendment 274 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 8 a (new)
8a. Member States shall provide for appropriate measures in the event of non- compliance with the provisions in this Article by the converting company. In particular, they shall ensure that adequate administrative or judicial procedures are available to enable the obligations deriving from this Article to be enforced.
2018/10/01
Committee: EMPL
Amendment 275 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 8 b (new)
8b. Member States shall also provide for adequate sanctions to be applicable in the event of infringement of this Article by the converting company. These sanctions must be effective, proportionate and dissuasive.
2018/10/01
Committee: EMPL
Amendment 276 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86l – paragraph 8 c (new)
8c. As soon as following the applicability of Art. 86l (3) in the first case referred to in paragraph 2, a threshold of the departure member state is exceeded new negotiations need to be initiated according to the following provisions of this article. Different from Art. 86l (5) the standard rules refer to the level of employee participation that would be legally foreseen for the company in the country of origin above the threshold if the company had not undergone the cross-border conversion.
2018/10/01
Committee: EMPL
Amendment 280 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86m – paragraph 5 – point b
(b) all comments and opinions submitted by interested parties in accordance with Article 86h (1), particularly the opinion referred in Article 86 f (4);
2018/10/01
Committee: EMPL
Amendment 286 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 3
(da) the arrangements made for the exercise of the rights of creditors, members and employees, in particular whether (i) a European works council exists and how the necessary information and consultation procedures have been applied, (ii) employee board level representation rights have been considered (or are not applicable) and (iii) where applicable, a special negotiating body has been formed and (iv) where applicable, the standard rules have been applied.
2018/10/01
Committee: EMPL
Amendment 297 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 7 – point -a
Directive (EU) 2017/1132
Article 122 – introductory part
(-a) the introductory part is replaced by the following: “The management or administrative organ including employee board level representatives, of each of the merging companies shall draw up the common draft terms of a cross-border merger. The common draft terms of a cross-border merger shall include at least the following particulars:”
2018/10/01
Committee: EMPL
Amendment 298 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 7 – point -a a (new)
Directive (EU) 2017/1132
Article 122 – point (a a) (new)
(-aa) after point (a) the following point is added: (aa) detailed information about the transfer of the head office of the company to the destination Member State, in case it is not already located there;
2018/10/01
Committee: EMPL
Amendment 302 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 9
Directive (EU) 2017/1132
Article 123 – paragraph 3 – point c
(c) an indication, for each of the merging companies, of the arrangements made for the exercise of the rights of creditors, employees and membersmembers and employees, in particular whether (i) a European works council exists and how the necessary information and consultation procedures have been applied, (ii)employee board level representation rights have been considered (or are not applicable) and (iii) where applicable, a special negotiating body has been formed and (iv)where applicable, the standard rules have been applied;
2018/10/01
Committee: EMPL
Amendment 317 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 2 – point b
(b) the implications of the cross-border merger on the safeguarding of the employment relationships and employee involvement, as well as measures to be taken in order to safeguard them;
2018/10/01
Committee: EMPL
Amendment 321 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 2 – point c
(c) any material changes in the conditions of employment, including through collective agreements, and in the locations of the companies’ places of business;
2018/10/01
Committee: EMPL
Amendment 322 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 2 – point c a (new)
(ca) information on the procedures by which arrangements for the information, consultation and participation rights of employees in the resulting company following the cross-border merger, in accordance with the provisions of this Directive;
2018/10/01
Committee: EMPL
Amendment 323 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 2 – point d
(d) whether the factors set out in points (a), (b), (c) and (ca) also relate to any branches or subsidiaries of the merging companies.
2018/10/01
Committee: EMPL
Amendment 326 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 3 – subparagraph 1
The report referred to in paragraph 1 of this Article, shall be made available, at least electronically, to the European Works Council, the representatives of the employees of each of the merging companies or, where there are no such representatives, to the employees themselves, 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 represented as well as to the members of each of the merging companies.
2018/10/01
Committee: EMPL
Amendment 334 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 11 a (new)
Directive (EU) 2017/1132
Article 125a (new)
(11a) After Article 125 the following Article 125a is inserted: Article 125a Approval by the employees After taking note of the reports referred to in Articles 124, 124a and 125, the representatives of the employees of each merging company or, if there are no representatives, the employees themselves, shall decide, by simple majority, whether to approve the draft terms of the cross- border merger. In case the representatives of the employees or, where applicable, the employees themselves, of at least one of the merging companies reject the draft terms, the general meeting of the merging companies shall not proceed to vote on the resolution referred to in Article 126.
2018/10/01
Committee: EMPL
Amendment 341 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Edouard MARTIN
Proposal for a directive
Article 1 – paragraph 1 – point 14 – point a
Directive (EU) 2017/1132
Article 127 – paragraph 1
(a) in paragraph, 1, the following subparagraphs are added: paragraph 1 is replaced by the following: “1. Each Member State shall designate the court, notary or other authority competent to scrutinise the legality of the cross-border merger as regards that part of the procedure which concerns each merging company subject to its national law and the provisions of this Directive. Member States shall ensure that the authority referred to in the first subparagraph shall not authorise the cross-border merger 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. This examination shall be carried out by the authority in accordance with the procedures in Article 86g, Article 86m(7)(c) and Article 86n, mutatis mutandis. The authorities of the Member States of the merging companies shall cooperate and exchange information during this process. The merging companies shall demonstrate on the basis of ascertainable objective factors, to have a fixed establishment and to pursuit genuine and substantial economic activity in the destination Member State for an indefinite period. The merging companies shall not be considered to have a fixed establishment and to pursue genuine and substantial economic activity in the destination Member State unless they can demonstrate that:-they have a fixed establishment in the destination Member State which has the objective appearance of permanency and performs substantial business activities, conducts its business in relevant premises, with a relevant number of employees employed on a permanent basis, and has a management body that is materially equipped to negotiate business with third parties; and- the consolidated combined EBIDTA generated by the operations of the merging companies in the destination Member State in the last two fiscal years corresponds at least to 25% of the combined consolidated EBIDTA generated by the merging companies in the European Union. The head office of the company resulting from the cross- border merger shall be located in the destination Member State within 5 months from the date on which the cross-border merger takes effect according to Article 129. In case this condition has not been complied with, the cross-border merger shall be declared null and void. The authority referred to in the first subparagraph of the destination Member State shall verify that this condition has been respected and shall communicate the result of such verification to the authorities of the Member States of the merging companies.;”
2018/10/01
Committee: EMPL
Amendment 342 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Edouard MARTIN
Proposal for a directive
Article 1 – paragraph 1 – point 14 – point a a (new)
Directive (EU) 2017/1132
Article 127 – paragraph 1
(a a) (-a) paragraph 1 is replaced by the following: “1. Each Member State shall designate the court, notary or other authority competent to scrutinise the legality of the cross-border merger as regards that part of the procedure which concerns each merging company subject to its national law and the provisions of this Directive. Member States shall ensure that the competent authorities do not authorise the cross-border merger 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. This examination shall be carried out by the competent authorities in accordance with the procedure in Article 86 g, mutatis mutandis. The companies carrying out the cross- border merger shall demonstrate on the basis of ascertainable objective factors, the actual establishment and the pursuit of genuine economic activity in the destination Member State for an indefinite period. The companies carrying out the cross-border merger shall be presumed to have an actual establishment and to pursue genuine economic activity in the destination Member State where it can demonstrate that it has a fixed establishment in that State, which has the objective appearance of permanency, has a management body and is materially equipped to negotiate business with third parties so that the latter do not have to deal directly with the parent body, which is abroad, but may transact business at the place of business constituting the establishment of the acquiring company.”;
2018/10/01
Committee: EMPL
Amendment 347 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 18
Directive (EU) 2017/1132
Article 133
(18) Article 133 is amended as follows: (a) paragraph 7 is replaced by the following: "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 three years after the cross-border merger has taken effect, by applying mutatis mutandis the rules laid down in paragraphs 1 to 6."; (b) the following paragraph 8 is added: "8. A company shall communicate to its employees whether it chooses to apply standard rules for participation referred to in point (h) of paragraph 3 or whether it enters into negotiations within the special negotiating body. In the latter case the company shall communicate to its employees the outcome of the negotiations without undue delay."; (-a) The title is replaced by the following: Employee information, consultation and participation” (-aa) the following paragraph - 1 is added: “- 1. Where the management or administrative organs of the participating companies draw up a plan to carry out a merger, they shall as soon as possible after publishing the draft terms of mergers take the necessary steps, including providing information about the identity of the participating companies, concerned subsidiaries or establishments, and the number of their employees, to start negotiations with the representatives of the companies' employees on arrangements for the involvement of employees in the company or companies resulting from the merger.” (-ab) in paragraph 2, the introductory part is replaced by the following: “2. However, the rules in force concerning employee participation, if any, in the Member State where the company resulting from the cross-border merger has its registered office shall not apply, where at least one of the merging companies has, in the six months prior to the publication of the draft terms of the cross-border merger as referred to in Article 123, an average number of employees equivalent two thirds of the applicable threshold, laid down in the law of the departure Member State, which triggers the participation of and is operating under an employee participation system within the meaning of point (k) of Article 2 of Directive 2001/86/EC1a, or where the national law applicable to the company resulting from the cross-border merger does not.”; (-ac) in paragraph 3, point (a) is replaced by the following: “(a) Article 3(1), (2)(a), (i), 2 (b) and (3), the first indent of the first subparagraph of Article 3(4), the second subparagraph of Article 3(4) and Article 3(5), the third subparagraph of Article 3 (6) and Article 3 (7);” (-ad) in paragraph 3, point (b) is replaced by the following: “(b) Article 4(1),Article 4(2)(a), (g) and (h) and Article 4(3) and Article 4 (4);” (-ae) in paragraph 3, point (e) is replaced by the following: “(e) the first subparagraph of Article 7 (1);” (-af) in paragraph 3, point (f) is replaced by the following: “(f) Articles 8, 9, 10 and 12;” (-ag) in paragraph 3, point (h) is replaced by the following: “(h) Annex.”; (-ah) paragraph 4 is replaced by the following: “4. When regulating the principles and procedures referred to in paragraph 3, Member States shall ensure that the rules on employee participation that applied prior to the cross-border merger continue to apply until the date of application of any subsequently agreed rules or, in the absence of agreed rules, until the application of default rules in accordance with point (a) of Part 3 of the Annex.”; (a) paragraph 7 is replaced by the following: "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 ten years after the cross-border merger has taken effect, by applying mutatis mutandis the rules laid down in paragraphs 1 to 6."; (b) the following paragraph 8 is added: "8. A company shall communicate to its employees whether it chooses to apply standard rules for participation referred to in point (h) of paragraph 3 or whether it enters into negotiations within the special negotiating body. In the latter case the company shall communicate to its employees the outcome of the negotiations without undue delay."; (ba) the following paragraph 9 is added: “9. Member States shall provide for appropriate measures in the event of non- compliance with the provisions in this Article by the company resulting from the cross-border merger. In particular, they shall ensure that adequate administrative or judicial procedures are available to enable the obligations deriving from this Article to be enforced.”; (bb) the following paragraph 10 is added: “10. Member States shall also provide for adequate sanctions to be applicable in the event of infringement of this Article by the company resulting of the cross-border merger. These sanctions must be effective, proportionate and dissuasive.”; (bc) the following paragraph 11 is added: “11. As soon as following the applicability of Article 86l (3) in the first case referred to in paragraph 2, a threshold of the departure Member State is exceeded, new negotiations need to be initiated according to This Article. Different from Article 86l (5) the standard rules refer to the level of employee participation that would be legally foreseen for the company in the country of origin above the threshold if the company had not undergone the cross-border merger.”; __________________ 1a Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees, OJ L 294, 10.11.2001, p. 22–32.
2018/10/01
Committee: EMPL
Amendment 352 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Georgi PIRINSKI, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 19 a (new)
Directive (EU) 2017/1132
Article 134a (new)
(19a) After Article 133 the following Article 134a is inserted: “Article 134a Collective agreements Following the cross-border merger, the company resulting from the cross-border merger shall continue to observe the terms and conditions agreed in any collective agreements on the same terms applicable to the merging companies before the cross-border merger, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”;
2018/10/01
Committee: EMPL
Amendment 353 #
Michael DETJEN, Elena GENTILE, Agnes JONGERIUS, Edouard MARTIN, Evelyn REGNER
Proposal for a directive
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Chapter IV
(20) [...]deleted
2018/10/01
Committee: EMPL
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