16 Amendments of Harald ETTL related to 2008/0130(CNS)
Amendment 19 #
Proposal for a regulation
Recital 7 a (new)
Recital 7 a (new)
(7a) Where an SPE having more than 25 employees undertakes cross-border activities or transfers its registered office to another Member State it should conduct negotiations with its employees concerning their participation, in accordance with the rules laid down in the SPE's statute, and a special negotiating body should be set up, in line with Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees* for the purpose of reaching an agreement in line with Article 5 of Directive 2001/86/EC. ___________________ * OJ L 294, 10.11.2001, p. 22.
Amendment 23 #
Proposal for a regulation
Recital 15
Recital 15
(15) Employees’ rights of participation should be governed by the legislation of the Member State in which the SPE has its registered office (the "home Member State"). The SPE should not be used for the purpose of circumventing such rights. Where the national legislation of the Member State to which the SPE transfers its registered office does not provide for at least the same level of employee participation as the home Member State, the participation of employees in the company following the transfer should in certain circumstances be negotiated. Should such negotiations fail, the provisions applying in the company before the transfer should continue to apply after the transfer.
Amendment 30 #
Proposal for a regulation
Article 7
Article 7
An SPE shall have its registered office and its central administration or principal place of business in the Community. An SPE shall not be under any obligation to have its central administration or principal place of business in the Member State in which it has its registered office.
Amendment 40 #
Proposal for a regulation
Article 34 - paragraph 1
Article 34 - paragraph 1
1. The SPE shall be subject to the rules on employee participation, if any, applicable in the Member State in which it has its registered office, subject to the provisions of this ArticleIn the case of SPEs which employ fewer than 50 employees: (a) the SPE shall be subject to the rules on employee involvement of the Member State where the SPE's registered office is situated which apply to other similar entities, except that (b) its subsidiaries and branches shall be subject to the rules on employee involvement of the Member State where they are situated which apply to other similar entities.
Amendment 42 #
Proposal for a regulation
Article 34 - paragraph 1 a (new)
Article 34 - paragraph 1 a (new)
1a. Where at least a third of the total number of employees of an SPE and its subsidiaries and branches in at least two different Member States so request, or where the total number of employees is 50 or more, Articles 3 to 7 and 11 to 15 of and the Annex to Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees* shall apply, mutatis mutandis. ________________ OJ L 207, 18.8.2003, p. 25.
Amendment 44 #
Proposal for a regulation
Article 34 - paragraph 2 a (new)
Article 34 - paragraph 2 a (new)
Amendment 45 #
Proposal for a regulation
Article 34 - paragraph 3
Article 34 - paragraph 3
3. In the case of a cross-border merger of an SPE with an SPE or other company registered in another Member State, the provisions of the laws of the Member States implementing Directive 2005/56/EC of the European Parliament and of the Council shall apply, with the exception that the average number of workers referred to in the introductory wording of Article 16(2) of Directive 2005/56/EC shall be taken to be 50.
Amendment 50 #
Proposal for a regulation
Article 38 - paragraph 2
Article 38 - paragraph 2
2. Paragraph 1 shall not apply where the employees of the SPE in the home Member State account for at least one third of the total number of employees of the SPE including subsidiaries or branches of the SPE in any Member State, and where one of the following conditions is met: (a) the legislation of the host Member State does not provide for at least the same level of participation as that operated in the SPE in the home Member State prior to its registration in the host Member State. The level of employee participation shall be measured by reference to the proportion of employee representatives amongst the members of the administrative or supervisory body or their committees or of the management group which covers the profit units of the SPE, subject to employee representation; (b) the legislation of the host Member State does not confer on the employees of establishments of the SPE that are situated in other Member States the same entitlement to exercise participation rights as such employees enjoyed before the transfer.
Amendment 51 #
Proposal for a regulation
Article 38 - paragraph 3
Article 38 - paragraph 3
3. Where one of the conditions set out in points (a) or (b) of paragraph 2 is met, the management body of the SPE shall take the necessary steps, as soon as possible, after disclosure of the transfer proposal, to start negotiations with the representatives of the SPE’s employees with a view to reaching an agreement on arrangements for the participation of the employees. participation of workers in the SPE and their involvement in the definition of such rights shall be governed by the following rules: (a) a special negotiating body representing the employees of the participating companies and concerned subsidiaries or branches shall be created in accordance with the following provisions: (i) the members of the special negotiating body shall be elected or appointed in proportion to the number of employees employed in each Member State by the participating companies and subsidiaries or branches concerned, by allocating in respect of a Member State one seat per portion of employees employed in that Member State which equals 10%, or a fraction thereof, of the number of employees employed by the participating companies and subsidiaries or branches concerned in all the Member States taken together; (ii) Member States shall determine the method to be used for the election or appointment of the members of the special negotiating body who are to be elected or appointed in their territory. They shall take the necessary measures to ensure that, as far as possible, such members include at least one member representing each participating company which has employees in the Member State concerned. Such measures must not increase the overall number of members. Member States may provide that such members may include representatives of trade unions whether or not they are employees of a participating company or subsidiary or branch concerned. Without prejudice to national legislation and/or practice laying down thresholds for the establishment of a representative body, Member States shall provide that employees in undertakings or establishments in which there are no employees' representatives through no fault of their own have the right to elect or appoint members of the special negotiating body. (b) The special negotiating body and the competent organs of the participating companies shall determine, by written agreement, arrangements for the involvement of employees within the SPE. (c) Subject to subparagraph e), the special negotiating body shall take decisions by an absolute majority of its members, provided that such a majority also represents an absolute majority of the employees. Each member shall have one vote. However, should the result of the negotiations lead to a reduction of participation rights, the majority required for a decision to approve such an agreement shall be the votes of two-thirds of the members of the special negotiating body representing at least two-thirds of the employees, including the votes of members representing employees employed in at least two Member States. Reduction of participation rights means a proportion of members of the organs of the SPE within the meaning of Article 2(k) of Directive 2003/72/EC, which is lower than the highest proportion existing within the participating companies. (d) For the purpose of the negotiations, the special negotiating body may request experts of its choice, for example representatives of appropriate Community-level trade union organisations, to assist it with its work. Such experts may be present at negotiation meetings in an advisory capacity at the request of the special negotiating body, where appropriate, to promote coherence and consistency at Community level. The special negotiating body may decide to inform the representatives of appropriate external organisations, including trade unions, of the start of the negotiations. (e) The special negotiating body may decide by the majority set out below not to open negotiations or to terminate negotiations already opened, and to rely on the rules on information and consultation of employees in force in the home Member State. The majority required to decide not to open or to terminate negotiations shall be the votes of two-thirds of the members representing at least two-thirds of the employees, including the votes of members representing employees employed in at least two Member States. The special negotiating body shall be reconvened at the written request of at least 10% of the employees of the SPE, its subsidiaries and branches, or their representatives, at the earliest two years after the abovementioned decision, unless the parties agree to negotiations being reopened sooner. If the special negotiating body decides to reopen negotiations with the management but no agreement is reached as a result of those negotiations, the participation arrangements in the home Member State shall prevail. (f) Any expenses relating to the functioning of the special negotiating body and to negotiations in general shall be borne by the participating companies so as to enable the special negotiating body to carry out its task in an appropriate manner.
Amendment 53 #
Proposal for a regulation
Article 38 - paragraph 4
Article 38 - paragraph 4
4. The agreement between the management body of the SPE and the representatives of the employees shall specify: (a)the scope of the agreementcompetent organs of the participating companies and the special negotiating body shall negotiate in a spirit of cooperation with a view to reaching an agreement on arrangements for the involvement of the employees within the SPE. Without prejudice to the autonomy of the parties, the agreement between the management body of the SPE and the special negotiating body shall specify: (a) the scope of the agreement; (b) the composition, number of members and allocation of seats on the representative body which will be the discussion partner of the competent organ of the SPE in connection with arrangements for the information and consultation of the employees of the SPE and its subsidiaries and branches; (c) the functions and the procedure for informing and consulting the representative body; (d) the frequency of meetings of the representative body; (e) the financial and material resources to be allocated to the representative body; (bf) where, during the negotiations, the parties decide to establish arrangements for participation in the SPE following the transferone or more information and consultation procedures instead of a representative body, the arrangements for implementing those procedures; (g) where, during negotiations, the parties decide to establish arrangements for participation, the substance of those arrangements including, where (if applicable,) the number of members in the companySPE's administrative or supervisory body which the employees will be entitled to elect, appoint, recommend or oppose, the procedures as to how these members may befor electeding, appointeding, recommendeding or opposed bying those members by the employees, and their rights; c(h) the date of entry into force of the agreement and its duration, and any cases in whichcases where the agreement should be renegotiated and the procedure for its renegotiation.
Amendment 54 #
Proposal for a regulation
Article 38 - paragraph 5
Article 38 - paragraph 5
5. Negotiations shall be limited to a period of six months. The parties may agree to extend negotiations beyond this period for an additional six-month period. The negotiations shall otherwise be governed by the law of the home Member State.
Amendment 55 #
Proposal for a regulation
Article 38 - paragraph 6
Article 38 - paragraph 6
Amendment 56 #
Proposal for a regulation
Article 38 - paragraph 6 a (new)
Article 38 - paragraph 6 a (new)
6a. The members of the special negotiating body, the members of the representative body, any employees' representatives exercising functions under the information and consultation procedure and any employees' representatives in the supervisory or administrative body of an SPE who are employees of the SPE, its subsidiaries or branches or of a participating company shall, in the exercise of their functions, enjoy the same protection and guarantees provided for employees' representatives by the national legislation and/or practice in force in their country of employment. This shall apply in particular to attendance at meetings of the special negotiating body or representative body, any other meeting under the agreement referred to in Article 38(4)(f) or any meeting of the administrative or supervisory body, and to the payment of wages for members employed by a participating company or the SPE or its subsidiaries or branches during any period of absence necessary for the performance of their duties.
Amendment 57 #
Proposal for a regulation
Article 38 a (new)
Article 38 a (new)
Article 38a Misuse of procedures Member States shall take appropriate measures in accordance with Community law in order to prevent the misuse of an SPE for the purpose of depriving employees of rights of employee involvement or withholding such rights.
Amendment 58 #
Proposal for a regulation
Article 38 b (new)
Article 38 b (new)
Article 38b Compliance 1. Every Member State shall ensure that the management of branches of an SPE and the supervisory or administrative bodies of subsidiaries and of participating companies which are situated within its territory and the employees' representatives or, as the case may be, the employees themselves fulfil the obligations laid down by this Directive, regardless of whether the SPE has its registered office within that territory. 2. Member States shall provide for appropriate sanctions to be applied in the event of failure to comply with this Directive. In particular, they shall ensure that administrative or legal procedures are available to enable the obligations deriving from this Directive to be enforced.
Amendment 59 #
Proposal for a regulation
Article 38 c (new)
Article 38 c (new)
Article 38c Link between this Regulation and other provisions 1. Where an SPE is a Community-scale undertaking or a controlling undertaking of a Community-scale group of undertakings within the meaning of Directive 94/45/EC or of Directive 97/74/EC extending the application of that Directive to the United Kingdom, the provisions of these Directives and the provisions transposing them into national law shall not apply to them or to their subsidiaries. However, where the special negotiating body decides in accordance with Article 38(3) (e) not to open negotiations or to terminate negotiations already opened, Directive 94/45/EC or Directive 97/74/EC and the provisions transposing them into national law shall apply. 2. This Directive is without prejudice to: (a) any existing rights of involvement of employees provided for by national legislation and/or practice in the Member States and enjoyed by employees of the SPE and its subsidiaries and branches, other than participation in the bodies of the SPE; (b) the provisions on participation in the bodies laid down by national legislation and/or practice applicable to the subsidiaries of the SPE. 3. In order to preserve the rights referred to in paragraph 3, Member States may take the necessary measures to guarantee that the structures of employee representation in participating companies which will cease to exist as separate legal entities are maintained after the registration of the SPE.