[ParlTrack]

Sergio Gaetano COFFERATI, Jytte GUTELAND, Evelyne GEBHARDT

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.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point -1 (new)

Directive (EU) 2017/1132
Article 1 a (new):

(-1) the following Article 1a (new) is inserted: Definitions For the purposes of this Directive: (1) 'limited liability company' in Title II Chapter I and Chapter II referred to as "company", means (a) a company of a type listed in Annex II; (b) in Title II Chapter II a company with share capital and having legal personality, possessing separate assets which alone serve to cover its debts and that is subject, under the national law governing it, to conditions concerning guarantees such as are provided for by Section 2 of Chapter II of Title I and Section 1 of Chapter III of Title I for the protection of the interests of members and others; (2) 'cross-border conversion' means an operation whereby a company, without being dissolved, wound up or going into liquidation, converts the legal form under which it is registered in a departure Member State into a legal form of a company of a destination Member State and transfers at least its registered office into the destination Member State whilst retaining its legal personality; (3) 'departure Member State' means a Member State in which a company is registered in its legal form prior to the cross-border conversion; (4) 'destination Member State' means a Member State in which a company shall be registered as a result of the cross- border conversion; (5) 'register' means the central, commercial or companies register referred to in Article 16(1); (6) 'converted company' means the newly formed company in the destination Member State from the date upon which the cross-border conversion takes effect; (7) ‘merger by acquisition’ in Title II Chapter I shall mean the operation whereby one or more companies are wound up without going into liquidation and transfer to another all their assets and liabilities in exchange for the issue to the shareholders of the company or companies being acquired of shares in the acquiring company and a cash payment, if any, not exceeding 10 % of the nominal value of the shares so issued or, where they have no nominal value, of their accounting par value. A Member State's laws may provide that merger by acquisition may also be effected where one or more of the companies being acquired is in liquidation, provided that this option is restricted to companies which have not yet begun to distribute their assets to their shareholders; (8) ‘merger by the formation of a new company’ in Title II Chapter I shall mean the operation whereby several companies are wound up without going into liquidation and transfer to a company that they set up all their assets and liabilities in exchange for the issue to their shareholders of shares in the new company and a cash payment, if any, not exceeding 10 % of the nominal value of the shares so issued or, where they have no nominal value, of their accounting par value. A Member State's laws may provide that merger by the formation of a new company may also be effected where one or more of the companies which are ceasing to exist is in liquidation, provided that this option is restricted to companies which have not yet begun to distribute their assets to their shareholders; (9) ‘merger’ in Title II Chapter II means an operation whereby: (a) one or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to another existing company, the acquiring company, in exchange for the issue to their members of securities or shares representing the capital of that other company and, if applicable, a cash payment not exceeding 10 % of the nominal value, or, in the absence of a nominal value, of the accounting par value of those securities or shares; or (b) two or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to a company that they form, the new company, in exchange for the issue to their members of securities or shares representing the capital of that new company and, if applicable, a cash payment not exceeding 10 % of the nominal value, or in the absence of a nominal value, of the accounting par value of those securities or shares; or (c) a company, on being dissolved without going into liquidation, transfers all its assets and liabilities to the company holding all the securities or shares representing its capital; (9) "employees' representatives" means the employees' representatives provided for by Union and national law and/or practice; (10) "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; (11) "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; (12) "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; (13) "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; (14) "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; (15) "Delegated management" means management of a company delegated to directors, officers or legal representatives either hired from an independent third party through a service contractor hired through and monitored by an independent party through a service contract.

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Evelyn REGNER, Jytte GUTELAND, Evelyne GEBHARDT

Proposal for a directive
Article 1 – paragraph 1 – point 1 a (new)

Directive (EU) 2017/1132
Article 1 a (new)

(1a) After Article 1, the following Article 1a (new) is inserted: Article 1a Procedures for cross-border company restructuring The measures laid down in this Directive shall constitute the only legally admissible procedures for cross-border company restructuring. Cross-border company restructuring measures beyond those defined in points (2) and (9) of Article 1b (new) are not permitted.

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Jytte GUTELAND, Evelyne GEBHARDT

Proposal for a directive
Article 1 – paragraph 1 – point 1 b (new)

Directive (EU) 2017/1132
Article 1 b (new)

(1b) After Article 1a (new), the following Article 1b (new) is inserted: Article 1b Definitions For the purposes of this Directive [...] (15) '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.

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Jytte GUTELAND, Evelyne GEBHARDT

Proposal for a directive
Article 1 – paragraph 1 – point 1 c (new) Directive (EU) 2017/1132

(1c) After Article 1b (new), the following Article 1c (new) is inserted: Article 1c Sanctions and judicial review Member States shall provide for adequate sanctions in the event of infringements of this Directive. Those sanctions shall be effective, proportionate and dissuasive and shall include, inter alia, the possibility to declare the relevant conversion, merger or division null and void. Member States shall introduce into their national legal systems such measures as are necessary to enable all employees and representatives of employees who consider themselves wronged by failure to comply with the obligations arising from this Directive to pursue their claims by judicial process.

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Jytte GUTELAND, Evelyne GEBHARDT

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive 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 prejudicing the legal or contractual rights of employees, creditors or minority members.~~ . The company carrying out the cross- border conversion 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 company carrying out the cross- border conversion shall not be considered to have a fixed establishment and to pursue genuine and substantial economic activity in the destination Member State unless it can demonstrate that: – the company has 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 EBIDTA generated by the operations of the company in the destination Member State in the last two fiscal years corresponds at least to 25% of the consolidated EBIDTA generated by the company in the European Union. The head office of the converted company shall be located in the destination Member State within 5 months from the date on which the cross-border conversion takes effect according to Article 86r. In case this condition has not been complied with, the cross-border conversion shall be declared null and void. The competent authority of the destination Member State shall verify that this condition has been respected and shall communicate the result of such verification to the competent authority of the departure Member State.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

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 shall include at least the following:

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Jytte GUTELAND, Evelyne GEBHARDT

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 head office of the company to the destination Member State, in case it is not already located there;

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 2017/1132
Article 86 e – paragraph 2 – point a (new)

(-a) the reasons of the cross-border conversion;

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 2017/1132
Article 86 f – paragraph 2 – point a (new)

(-a) the reasons of the cross-border conversion;

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

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 the Directive 2009/38/EC of the company.

2018/09/25
Committee: JURI

Evelyn REGNER, Jytte GUTELAND, Sergio Gaetano COFFERATI

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 2017/1132
Article 86 f – paragraph 3 a (new)

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.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

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.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 2017/1132
Article 86 g – paragraph 3 – point a

(a) a detailed assessment of the accuracy of ~~the reports and~~both the draft terms and the reports as well as the information submitted by the company carrying out the cross-border conversion;

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Jytte GUTELAND, Evelyne GEBHARDT

(b) a description of all factual elements necessary for the competent authority, designated in accordance with Article 86m(1), to carry out an in-depth assessment to determine whether the intended cross-border conversion constitutes an artificial arrangement in accordance with Article 86n, including at a minimum the following: the characteristics of the establishment in the destination Member State, including the intent, the sector, the investment, the net turnover and profit or loss, number of employees, ~~the composition of the balance sheet,~~ the tax residence, the assets and their location, the habitual place of work of the employees and of specific groups of employees, the place where social contributions are due and the commercial risks assumed by the converted company in the destination Member State and the departure Member State, the composition of the balance sheet and of the financial statement in the destination member state and in all member States in which the company operates in the last two fiscal years.

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Jytte GUTELAND, Evelyne GEBHARDT

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 (new) is inserted: Article 86h 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.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 2017/1132
Article 86 h – paragraph 4 – subparagraph 2

However, Member States may, in ~~cases of genuine suspicion of fraud based on reasonable grounds~~justified exceptional cases of overriding reasons of public interest, require a physical presence before any competent authority, or before any other person or body dealing with, making or assisting in making the online disclosure.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 2017/1132
Article 86 h – paragraph 4 – subparagraph 2 a (new)

Member States shall lay down detailed rules for the online disclosure of documents and information referred to in paragraphs 1 and 3. Article 13f paragraphs 3 and 4 shall apply accordingly.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 3

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 general meeting referred to in Article 86i. ~~Member States shall further ensure that the company is able to accept an offer communicated electronically to an address provided by the company for that purpose.~~

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Evelyn REGNER, Jytte GUTELAND, Evelyne GEBHARDT

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 (new) is inserted: Article 86la 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.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 2017/1132
Article 86 l – paragraph 3

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:

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Evelyn REGNER, Jytte GUTELAND, Evelyne GEBHARDT

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 2017/1132
Article 86 l – paragraph 3 – point e

(e) ~~the first subparagraph of~~ Article 7(1);

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Jytte GUTELAND, Evelyne GEBHARDT

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 2017/1132
Article 86 l – paragraph 5

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

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 2017/1132
Article 86 m – paragraph 3 – subparagraph 2

However, in cases of genuine suspicion of fraud based on reasonable grounds Member States may require a physical presence before a competent authority where relevant information and documents are required to be submittedMember States shall lay down detailed rules for the online application referred to in paragraph 2. Article 86h paragraph 4 subparagraph 2 and Article 13f paragraph 3 and 4 shall apply accordingly.

2018/09/25
Committee: JURI

Evelyn REGNER, Jytte GUTELAND, Sergio Gaetano COFFERATI

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 2017/1132
Article 86 m – 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);

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Jytte GUTELAND, Evelyne GEBHARDT

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 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 Article 86c(3)~~, that the competent authority of the departure Member State carries out an in-depth assessment of all relevant facts and circumstances and shall take into account at a minimum the following: the characteristics of the establishment in the destination Member State, including ~~the intent,~~ the sector, the investment, the net turnover and profit or loss, number of employees, ~~the composition of the balance sheet,~~ the tax residence, the assets and their location, the habitual place of work of the employees and of specific groups of employees, the place where social contributions are due ~~and~~, the commercial risks assumed by the converted company in the destination Member State and the departure Member State and the composition of the balance sheet and of the financial statement in the destination member state and in all Member States in which the company operates in the last two fiscal years. The competent authority shall be able to ask questions to and receive information from the competent authority of the destination Member State.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 3

However, in cases of genuine suspicion of fraud based on reasonable grounds, Member States may require a physical presence before a competent authority of a Member State where relevant information and documents are required to be submittedMember States shall lay down detailed rules for the online application referred to in paragraph 1. Article 86h paragraph 4 subparagraph 2 and Article 13f paragraph 3 and 4 shall apply accordingly.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 2017/1132
Article 86 q – paragraph 2

2. Member States shall ensure that at least the following information shall be entered in their registers in a clear and timely manner, which are made publically available and accessible free of charge by means of the system referred to in Article 22:

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 3

Directive (EU) 2017/1132
Article 86 q – paragraph 2 – point d a (new)

(da) (e) 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.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 7 – point -a (new)

(-a) In Article 122, 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:

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Jytte GUTELAND, Evelyne GEBHARDT

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: detailed information the transfer of the head office of the company to the destination Member State, in case it is not already located there;

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 9

Directive (EU) 2017/1132
Article 123 – paragraph 2 – subparagraph 1

Member States may exempt merging companies from the requirement referred to in paragraph 1 where, for a continuous period beginning at least one month before the date fixed for the general meeting which is to decide on the common draft terms of the cross-border merger and ending not earlier than the conclusion of that meeting, those companies make the common draft terms of cross-border merger available on their websites free of charge.deleted

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 9

Directive (EU) 2017/1132
Article 123 – paragraph 2 – subparagraph 2

However, Member States shall not subject that exemption to any requirements or constraints other than those which are necessary in order to ensure the security of the website and the authenticity of the documents unless and only to the extent that they are proportionate in order to achieve those objectives.deleted

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 9

Directive (EU) 2017/1132
Article 123 – paragraph 3

3. ~~Where merging companies disclose the common draft terms of the cross-border merger in accordance with paragraph 2 of this Article,~~Member States shall also ensure that at least the following information shall be disclosed, free of charge, at least one month before the date of the general meeting which is to decide thereon in the respective national registers referred to in Article 16:

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

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 members;~~ 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;

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 9

Directive (EU) 2017/1132
Article 123 – paragraph 4 – subparagraph 2

~~However,~~ Member States ~~may, in cases of genuine suspicion of fraud based on reasonable grounds, require a physical presence before a competent authorit~~shall lay down detailed rules for the online disclosure of documents and information referred to in paragraphs 1 and 3. Article 86h paragraph 4 subparagraph 2 and Article 13f paragraph 3 and 4 shall apply accordingly.

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Jytte GUTELAND, Evelyne GEBHARDT

Proposal for a directive
Article 1 – paragraph 1 – point 11 a (new)

Directive (EU) 2017/1132
Article 125a (new)

(11 a) After Article 125 the following Article 125a (new) 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.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 13 Directive (EU) 2017/1132

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, which shall not in any event exceed one month after the general meeting referred to in Article 126 or, in cases where the approval of the general meeting is not required, within two months after the disclosure of the common draft terms of merger referred to in Article 123. ~~Member States shall further ensure that the merging companies are able to accept an offer communicated electronically to an address provided by those companies for that purpose.~~

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 14 – point –a (new)

Directive (EU) 2017/1132
Article 127 – paragraph 1

(-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.

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Jytte GUTELAND, Evelyne GEBHARDT

Proposal for a directive
Article 1 – paragraph 1 – point 14 – point a – introductory part

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.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 14 – point a

Directive (EU) 2017/1132
Article 127 – paragraph 1 – subparagraph 2

However, in cases of genuine suspicion of fraud based on reasonable grounds Member States may require a physical presence before a competent authority where relevant information and documents are required to be submitted.;Member States shall lay down detailed rules for the online application referred to in subparagraph 2. Article 86h paragraph 4 subparagraph 2 and Article 13f paragraph 3 and 4 shall apply accordingly.

2018/09/25
Committee: JURI

Evelyn REGNER, Sergio Gaetano COFFERATI, Jytte GUTELAND

Proposal for a directive
Article 1 – paragraph 1 – point 15 – point b

Directive (EU) 2017/1132
Article 128 – paragraph 3 – subparagraph 2

~~However,~~ Member States may take measures in cases of genuine suspicion of fraud based on reasonable grounds which could require a physical presence before a competent authority of a Member State in which the relevant information and documents are required to be submittedshall lay down detailed rules for the online application referred to in paragraph 1. Article 86h paragraph 4 subparagraph 2 and Article 13f paragraph 3 and 4 shall apply accordingly.

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Evelyn REGNER, Jytte GUTELAND, Evelyne GEBHARDT

Proposal for a directive
Article 1 – paragraph 1 – point 18 – point a a (new)

Directive (EU) 2017/1132
Article 133 – paragraph 3 – point (e)

(a a) Point (e) of paragraph 3 is amended as follows: (e) Article 7(1);

2018/09/25
Committee: JURI

Sergio Gaetano COFFERATI, Evelyn REGNER, Jytte GUTELAND, Evelyne GEBHARDT

Proposal for a directive
Article 1 – paragraph 1 – point 19 a (new)

Directive (EU) 2017/1132
Article 134a (new)

(19 a) After Article 133 the following Article 134a (new) 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.

2018/09/25
Committee: JURI

Activities of Jytte GUTELAND related to 2018/0114(COD)

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