BETA

20 Amendments of Miguel VIEGAS related to 2018/0114(COD)

Proposal for a directive
Recital 12

(12) In order to provide information to its employees, the company carrying out the cross-border conversion should prepare a report explaining the implications of the proposed cross-border conversion for employees. The report should explain in particular the implications of the proposed cross-border conversion on the safeguarding of the jobs of the employees, whether there would be any material change in the employment relationships, including changes to salaries and to the nature of the employment relationship, and the locations of the companies’ places of business and how each of these factors would relate to any subsidiaries of the company. This requirement should not however apply where the only employees of the company are in its administrative organ. The provision of the report should be without prejudice to the applicable information and consultation proceedings instituted at national level following the implementation of Directive 2002/14/EC of the European Parliament and of the Council43 or Directive ~~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 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).

2018/09/11
Committee: ECON

Proposal for a directive
Recital 13

(13) In order to assess the accuracy of the information contained in the draft terms of conversion and in the reports addressed to the members and employees and to provide factual elements necessary to assess whether the proposed conversion constitutes an artificial arrangement, an independent expert report should be required to be prepared in order to assess the proposed cross-border conversion. In order to secure the independence of the expert, the expert should be appointed by the competent authority, following an application by the company. In this context, the expert report should present all relevant information to enable the competent authority in the departure Member State to take an informed decision as to whether or not to issue the pre- conversion certificate. To this end, the expert should be able to obtain all the relevant company information and documents and carry out all necessary investigations in order to gather all the evidence required. The expert should use information, in particular net turnover and profit or loss, number of employees and the composition of balance sheet collected by the company in view of the preparation of financial statements in accordance with Union law and the law of Member States. However, in order to protect any confidential information, including business secrets of the company, such information should not form part of the expert’s final report which itself would be publically available.

2018/09/11
Committee: ECON

Proposal for a directive
Recital 15

(15) ~~On the basis of the draft terms of conversion and the reports, the general meeting of the members of the company should decide on whether or not to~~The general meeting of the members and the plenary meeting of the workers' council shall be responsible for approveing those draft terms. It is important that the majority requirement for such a vote should be sufficiently high in order to ensure that the decision to convert is a collective one. In addition, members should also have the right to vote on any arrangements concerning employee participation, if they have reserved that right during the general meeting.

2018/09/11
Committee: ECON

Proposal for a directive
Recital 19

(19) In order to ensure that employee participation is not unduly prejudiced as a result of the cross-border conversion, where the company carrying out the cross- border conversion is operating under an employee participation system in the departure Member State, the company should be obliged to take a legal form allowing for the exercise of such participation, including through the presence of representatives of the employees in the appropriate management or supervisory organ of the company in the destination Member State. Moreover, in such a case, a bona fide negotiation between the company and its employees should take place, along the lines of the procedure provided for in Directive 2001/86/EC, with a view to finding an amicable solution reconciling the right of the company to carry out a cross-border conversion with the employees' rights of participation. As a result of those negotiations, either a bespoke and agreed solution or, in the absence of an agreement, the application of standard rules as set out in the Annex to Directive 2001/86/EC should apply, mutatis mutandis. In order to protect either the agreed solution or the application of those standard rules, the company should not be able to remove the participation rights through carrying out subsequent domestic or cross-border conversion, merger or division within ~~three~~10 years.

2018/09/11
Committee: ECON

Proposal for a directive
Recital 20

(20) In order to prevent the circumvention of employee participation rights by means of a cross-border conversion, the company carrying out a conversion which is registered in the Member State which provides for the employee participation rights, should not be able to perform a cross-border conversion ~~without first~~or enter~~ing~~ into negotiations with its employees or their representatives when the average number of employees employed by that company is equivalent to four fifths of the national threshold for triggering such employee participationan agreement on behalf of workers.

2018/09/11
Committee: ECON

Proposal for a directive
Recital 28

(28) In order to further enhance the existing cross-border merger procedure, it is necessary to simplify those merger rules, where appropriate, whilst at the same time ensuring that stakeholders, and in particular employees, are adequately protected. Therefore, the existing cross- border merger rules should be modified in order to oblige the management or administrative organs of the merging companies to prepare ~~separate~~ reports detailing the legal and economic aspects of the cross- border merger for both members and for employees. The obligation on the management or administrative organ of the company to prepare the report for the members may however be waived, where those members are already informed about legal and economic aspects of the proposed merger. However, the report prepared for employees may only be waived where the merging companies and their subsidiaries do not have any employees other than those who form part of the management or administrative organ.

2018/09/11
Committee: ECON

Proposal for a directive
Recital 42

(42) To allow all stakeholders' legitimate interests to be taken into account, the company being divided should disclose the draft terms of the division containing the most important information about the proposed cross-border division, including the envisaged the exchange ratio of securities or shares, the instruments of constitution of the recipient companies and the proposed timetable for the cross-border division. Members, creditors and employees of the company carrying out the cross-border division should be notified in good time that they can submit comments with regard to the division or authorising the commencement of negotiations.

2018/09/11
Committee: ECON

Proposal for a directive
Recital 44

(44) In order to provide information its employees, the company being divided should prepare a report explaining the implications of the proposed cross-border division for employees. The report should explain in particular the implications of the proposed cross-border division on the safeguarding of the jobs of the employees, whether there would be any material change in the conditions of employment ~~and~~, the nature of the employment relationship, the conditions of remuneration or the locations of the companies’ places of business, and how each of these factors would relate to any subsidiaries of the company. The provision of the report should be without prejudice to the applicable information and consultation proceedings instituted at national level following the implementation of Directives 2001/23/EC, 2002/14/EC or 2009/38/EC.

2018/09/11
Committee: ECON

Proposal for a directive
Recital 47

(47) ~~On the basis of t~~The draft terms of the cross-border division ~~and the reports,~~may only be approved with the consent of the general ~~meeting~~assembly of the members of the company ~~being divided, should decide on whether or not to approve those draft terms~~and of the plenary meeting of workers' council; the draft terms and the reports should serve as supporting documents to assist both parties in arriving at a decision. It is important that, the majority requirement for such a vote should be sufficiently high in order to ensure that the decision to divide is a collective one.

2018/09/11
Committee: ECON

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

Directive (EU) No 2017/1132
Article 86 c – paragraph 2 – point a (new)

(aa). Receipt of state aid in the past;

2018/09/11
Committee: ECON

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

Directive (EU) No 2017/1132
Article 86 f – paragraph 2 – point c

(c) any material changes in the conditions of employment, including in employment relationships, and in the location of the company’s places of business;

2018/09/11
Committee: ECON

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

Directive (EU) No 2017/1132
Article 86 f – paragraph 3

3. The report referred to in paragraph 1 of this Article, shall be made available, at least electronically, to the representatives of the employees of the company carrying out the cross-border conversion or, where there are no such representatives, to the employees themselves not less than ~~two~~six months before the date of the general meeting referred to in Article 86i. That report shall also be made similarly available to the members of the company carrying out the cross-border conversion.

2018/09/11
Committee: ECON

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

Directive (EU) No 2017/1132
Article 86 i – title

Article 86 i Approval by the general meeting and by the employees’ plenary

2018/09/11
Committee: ECON

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

Directive (EU) No 2017/1132
Article 86 i – paragraph 1

1. After taking note of the reports referred to in Articles 86e, 86f and 86g, where applicable, the general meeting and the employees’ plenary of the company carrying out the conversion shall decide, by means of a resolution, whether to approve the draft terms of the cross-border conversion. The company shall inform the competent authority designated in accordance with Article 86m(1) of the decision of the general meeting and the employees’ plenary.

2018/09/11
Committee: ECON

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

Directive (EU) No 2017/1132
Article 86 i – paragraph 2

2. The general meeting of the company carrying out the conversion and the employees’ plenary may reserve the right to make implementation of the cross- border conversion conditional on express ratification by it of the arrangements referred to in Article 86l.

2018/09/11
Committee: ECON

Proposal for a directive
Article 1.º – paragraph 1 – point 20

Directive (EU) No 2017/1132
Article 160 d – paragraph 2 – point a (new)

(a A) Receipt of state aid in the past;

2018/09/11
Committee: ECON

Proposal for a directive
Article 1.º – paragraph 1 – point 20

Directive (EU) No 2017/1132
Article 160 k – title

Article 160 k Approval by the general meeting and by the employees’ plenary

2018/09/11
Committee: ECON

Proposal for a directive
Article 1.º – paragraph 1 – point 20

Directive (EU) No 2017/1132
Article 160 k – paragraph 1

1. After taking note of the reports referred to in Articles 160g, 160h and 160i, where applicable, the general meeting and the employees’ plenary of the company being divided shall decide by means of a resolution, whether to approve the draft terms of cross-border division. The company shall inform the competent authority designated in accordance with Article 160o(1) of the decision of the general meeting and of the employees’ plenary.

2018/09/11
Committee: ECON

Proposal for a directive
Article 1.º – paragraph 1 – point 20

Directive (EU) No 2017/1132
Article 160 k – paragraph 2

2. The general meeting mand the employees’ plenary reserve the right to make implementation of the cross-border division conditional on express ratification by it of the arrangements referred to in Article 160n.

2018/09/11
Committee: ECON

Proposal for a directive
Article 1.º – paragraph 1 – point 20

Directive (EU) No 2017/1132
Article 160 k – paragraph 4

4. The general meeting and the employees’ plenary shall also decide whether the cross-border division would necessitate amendments to the instruments of constitution of the company being divided.

2018/09/11
Committee: ECON