Activities of Jens ROHDE related to 2018/0114(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions PDF (1 MB) DOC (472 KB)
Amendments (89)
Amendment 169 #
Proposal for a directive
Recital 11
Recital 11
(11) In order to provide information to its members, the company carrying out the cross-border conversion should prepare a report. The report should explain and substantiate the legal and economic aspects of the proposed cross-border conversion, in particular the implications of the cross- border conversion for members with regard to the future business of the company and the management organ's strategic plan. It should also include potential remedies available to members, where they do not agree with the decision to carry out a cross- border conversion. This report should also be made available to the employees of the company carrying our cross-border conversion.
Amendment 174 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to provide information to its employees, the company carrying out the cross-border conversion should prepare a reportis report should also explaining the implications of the proposed cross-border conversion for employees. The report It 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’ 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 reportis information 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 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).
Amendment 177 #
Proposal for a directive
Recital 13
Recital 13
(13) In orderThe competent national authorities shall be able 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. Where the competent authority consider, based on reasonable grounds, that there is a risk that the cross-border conversion constituterepresents 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 it shall draw up a report in order to assess the proposed cross-border conversion with all necessary factual elements provided by the company. In such case, the authority can have recourse to an independent expert. In this context, the expert report should presentcontain 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 expertcompetent authority 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, such as 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, and documents and carry out all necessary investigations in order to gather all the evidence required. 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.
Amendment 182 #
Proposal for a directive
Recital 16
Recital 16
(16) It is appropriate that those members who held voting rights and who did not vote tovoted against or were unable to attend the general meeting but expressed their intention before the meeting to vote against the approveal of the draft terms of conversion and those members without voting rights, who could not present their position, should be afforded the right to exit the company. Those members should be able to leave the company and receive cash compensation for their shares equivalent to the value of their shares. Furthermore, they should have a right to challenge the calculation and adequacy of that cash compensation offered before a court.
Amendment 204 #
Proposal for a directive
Recital 28
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 detailinga detailed report on 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 reportovide specific information 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 forquirement to provide information related to 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.
Amendment 207 #
Proposal for a directive
Recital 29
Recital 29
(29) Furthermore, in order to enhance the protection afforded to the employees of the merging company or companies, employees or their representatives may provide their opinion on the company report setting out the implications of the cross-border merger for them. The provision of the report should be without prejudice to the applicable information and consultation proceedings instituted at national level following the implementation of Council Directive 2001/23/EC48 , Directive 2002/14/EC or Directive 2009/38/EC. _________________ 48 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ L 82, 22.3.2001, p. 16).
Amendment 209 #
Proposal for a directive
Recital 32
Recital 32
(32) In order to ensure that members of the companies participating in the cross- border merger are treated equally, it is appropriate that members who held voting rights and who did not vote tovoted against or did not attend the general meeting but expressed their intention before the meeting to vote against approveal of the common draft terms of merger or those members without voting rights, who could not present their position, should be afforded the right to exit the company. Those members should be able to leave the company and receive cash compensation for their shares equivalent to the value of their shares. Furthermore, they should have a right to challenge the calculation and adequacy of that cash compensation offered before a court.
Amendment 219 #
Proposal for a directive
Recital 43
Recital 43
(43) In order to provide information to its members and employees, the company being divided should prepare a report. The report should explain and substantiate the legal and economic aspects of the proposed cross- border division, in particular explaining the implications of the cross- border division for members with regard to the future business of the company and the management organs’ strategic plan. It should also include explanations about the exchange ratio, where applicable, the criteria to determine the allocation of shares and potential remedies available to members, where they do not agree with the decision to carry out a cross-border division.
Amendment 223 #
Proposal for a directive
Recital 44
Recital 44
(44) In order to provide information its employees, the company being divided should prepare a reportThe report should explaining the implications of the proposed cross-border division for employees. The report should explaiIt should also contain information in particular on 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 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.
Amendment 227 #
Proposal for a directive
Recital 45
Recital 45
(45) In order to ensurThe competent national authority shall be able to evaluate the accuracy of the information contained in the draft terms of division and in the reports addressed to the members and employees and to provide factual elements necessary to assess whether the proposed division constitutes an artificial arrangement which could not be authorised, an independent expert report to assess the division plan should be required to be prepared. In order to secure the independence of the expert, the expert should be appointed by the competent authority, following an application by the company. Where the competent authority considers, based on reasonable grounds that there is a risk that the cross-border division represents an artificial arrangement, it shall draw up a report in order to assess the proposed division with all necessary factual elements. In such case, the competent authority can have recourse to an independent expert. In this context, the expert report should present all relevant information to enable the competent authority of the Member State of the company being divided to take an informed decision as to whether or not to issue the pre-division certificate To this end, the expertcompetent authority 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, such as 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 and documents and carry out all necessary investigations in order to gather all the evidence required. 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.
Amendment 231 #
Proposal for a directive
Recital 48
Recital 48
(48) It is appropriate that members who held voting rights and who did not vote tovoted against or did not attend the general meeting but expressed their intention before the meeting to vote against the approveal of the draft terms of the cross-border division and those members without voting rights, who could not present their position, should be afforded the right to exit the company. Those members should be able to leave the company and receive cash compensation for their shares equivalent to the value of their shares. Furthermore, they should have a right to challenge the calculation and adequacy of that cash compensation offered and also the share exchange ratio where they wish to remain members of any of the recipient companies before a court. As part of those proceedings, the court should be able to order any company involved in the cross- border division either to pay additional cash compensation or to issue additional shares.
Amendment 317 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 e – title
Article 86 e – title
Article 86e Report of the management or administrative organ to the members and to the employees
Amendment 322 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 e – paragraph 1
Article 86 e – paragraph 1
1. The management or administrative organ of the company carrying out the cross-border conversion shall draw up a report explaining and justifying the legal and economic aspects of the cross-border conversion and its implications for the employees of the company.
Amendment 328 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 e – paragraph 2 – point c a (new)
Article 86 e – paragraph 2 – point c a (new)
(ca) the implications of the cross- border conversion on the safeguarding of employment relationships
Amendment 331 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 e – paragraph 2 – point c b (new)
Article 86 e – paragraph 2 – point c b (new)
(cb) any material changes in the conditions of employment and in the location of the company's places of business
Amendment 333 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 e – paragraph 2 – point c c (new)
Article 86 e – paragraph 2 – point c c (new)
(cc) whether the factors set out in points (a), (d) and (e) also relate to any subsidiaries of the company
Amendment 340 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 e – paragraph 3
Article 86 e – paragraph 3
3. The report referred to in paragraph 1 of this Article, shall be made available, at least electronically, to the members not less than two months before the date of the general meeting referred to in Article 86i. That report shall also be made similarly availableand 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 months before the date of the general meeting referred to in Article 86i.
Amendment 343 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 e – paragraph 3 (new)
Article 86 e – paragraph 3 (new)
3a. Where the management or administrative organ of the company carrying out the cross-border conversion receives, in good time, an opinion from the representatives of their employees or, where there are no such representatives, from the employees themselves, as provided for under national law, the members shall be informed thereof and that opinion shall be appended to that report
Amendment 348 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 4
Article 86 f – paragraph 4
4. However, point (b) and (c) of that report shall not be required where all the members of the company carrying out the cross-border conversion have agreed to waive this requirement. Where a company carrying out the cross-border conversion and its subsidiaries, if any, have no employees other than those who form part of the management or administrative organ, the information referred to in paragraph 1 (d), (e) and (f) shall not be required.
Amendment 353 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 4 a (new)
Article 86 f – paragraph 4 a (new)
4a. Paragraphs 1 to 4 are without prejudice to the applicable information and consultation rights and proceedings instituted at national level following the transposition of Directives 2002/14/EC or 2009/38/EC.
Amendment 358 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – title
Article 86 f – title
Amendment 361 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 1
Article 86 f – paragraph 1
Amendment 364 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 2
Article 86 f – paragraph 2
Amendment 387 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 3
Article 86 f – paragraph 3
Amendment 395 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 4
Article 86 f – paragraph 4
Amendment 404 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 5
Article 86 f – paragraph 5
Amendment 406 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 f – paragraph 6
Article 86 f – paragraph 6
Amendment 409 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – title
Article 86 g – title
Article 86g Examination by an independent expertthe competent authority
Amendment 418 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – paragraph 1
Article 86 g – paragraph 1
Member States shall ensure that the company carrying out the cross-border conversion applies not less than two months before the date of the general meeting referred to in Article 86i to the competent authority designated in accordance with Article 86m(1), to appoint an expert to examine andfor the examination and the assessment the draft terms of the cross-border conversion and the reports referred to in Articles 86e and 86f, subject to the proviso set out in paragraph 6 of this Article.
Amendment 421 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – paragraph 1 – subparagraph 1
Article 86 g – paragraph 1 – subparagraph 1
The application for the appointment of an expert shall be accompanied by the following:
Amendment 423 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – paragraph 1 – subparagraph 1 – point b
Article 86 g – paragraph 1 – subparagraph 1 – point b
(b) the reports referred to in Articles 86e and 86f.
Amendment 426 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – paragraph 2
Article 86 g – paragraph 2
2. TIf the competent authority shall appoints recourse to an independent expert within five working days from the application referred to in paragraph 1 and the receipt of the draft terms and reports. Thes expert shall be independent from the company carrying out the cross-border conversion and may be a natural or a legal person depending upon the law of the departure Member State. Member States shall take into account, in assessing the independence of the expert, the framework established in Articles 22 and 22b of Directive 2006/43/EC.
Amendment 430 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – paragraph 3
Article 86 g – paragraph 3
3. The experWhere the competent authority considers, based on reasonable grounds, that the cross-border conversion could represent an artificial arrangement as referred in Article 86n, it shall draw up a written report providing at least:
Amendment 443 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – paragraph 3 – point b
Article 86 g – paragraph 3 – point b
(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 possible commercial risks to be assumed by the converted company in the destination Member State and the departure Member State.
Amendment 447 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – paragraph 4
Article 86 g – paragraph 4
4. Member States shall ensure that the independent expertcompetent authority shall be entitled to obtain, from the company carrying out the cross-border conversion, all relevant information and documents and to carry out all necessary investigations to verify all elements of the draft terms or management reports. The expertcompetent authority shall also be entitled to receive comments and opinions from the representatives of the employees of the company, or, where there are no such representatives, from the employees themselves and also from the creditors and members of the company.
Amendment 451 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 g – paragraph 5
Article 86 g – paragraph 5
5. Member States shall ensure that information submitted to the independent expertcompetent authority can only be used for the purpose of drafting their report and that confidential information, including business secrets, shall not be disclosed. Where appropriate, the expert may submitcompetent authority may produce a separate document containing any such confidential information to the competent authority, designated in accordance with Article 86m(1) and that separate document shall only be made available to the company carrying out the cross-border conversion and not be disclosed to any other party.
Amendment 457 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 h – paragraph 1 – point b
Article 86 h – paragraph 1 – point b
(b) tThe independent expert reportassessment of the accuracy of the report and information submitted by the company as referred to in Article 86g,(1) and where applicable, the report drawn up by the competent authority in accordance with Article 86g(3) without however disclosing any confidential information;
Amendment 469 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 j – paragraph 1 – point a
Article 86 j – paragraph 1 – point a
(a) the members holding shares with voting rights and who did not vote forvoted against or who did not attend the general meeting but expressed their intention before the meeting to vote against the approval of the draft terms of the cross- border conversion;
Amendment 474 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 j – paragraph 3
Article 86 j – paragraph 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. Without prejudice to the exercise of the exit right, members shall communicate their intention to make use of it before the general meeting. 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.
Amendment 529 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 n – paragraph 1 – subparagraph 1
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.
Amendment 534 #
Proposal for a directive
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Directive (EU) 2017/1132
Article 86 n – paragraph 1 – subparagraph 2
Article 86 n – paragraph 1 – subparagraph 2
Those elements laid down in Article 86g (3)(b) shall be taken into account but may be only considered as indicative factors in the overall assessment and therefore shall not be considered in isolation.
Amendment 584 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) 2017/1132
Article 124 – title
Article 124 – title
Article 124 Report of the management or administrative organ to the members and to the employees
Amendment 586 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) 2017/1132
Article 124 – paragraph 1
Article 124 – paragraph 1
1. The management or administrative organ of each of the merging companies shall draw up a report explaining and justifying the legal and economic aspects of the cross-border merger and the implications of the operation for the employees.
Amendment 590 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) 2017/1132
Article 124 – paragraph 2 – point e a (new)
Article 124 – paragraph 2 – point e a (new)
2a. the implications of the cross- border merger on the safeguarding of the employment relationships;
Amendment 591 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) 2017/1132
Article 124 – paragraph 2 – point e b (new)
Article 124 – paragraph 2 – point e b (new)
2b. any material changes in the conditions of employment and in the locations of the companies’ places of business;
Amendment 592 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) 2017/1132
Article 124 – paragraph 2 – point e c (new)
Article 124 – paragraph 2 – point e c (new)
2c. whether the factors set out in points (a), (f) and (g) also relate to any subsidiaries of the merging companies
Amendment 595 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) 2017/1132
Article 124 – paragraph 3
Article 124 – paragraph 3
3. The report shall be made available, at least electronically, to the members of each of the merging companies not less than one month before the date of the general meeting referred to in Article 126. The report shall also be made similarly availableand to the representatives of the employees of each of the merging companies, or, where there are no such representatives, to the employees themselves. However, where the approval of the merger is not required by general meeting of the acquiring company in accordance with Article 126(3), the report shall be made available, at least one month before the date of the general meeting of the other merging company or companies.
Amendment 597 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) 2017/1132
Article 124 – paragraph 3 (new)
Article 124 – paragraph 3 (new)
3a. Where the management or administrative organ of one or more of the merging companies receives, in good time, an opinion from the representatives of their employees, or, where there are no such representatives, from the employees themselves, as provided for under national law, the members shall be informed thereof and that opinion shall be appended to the report.
Amendment 600 #
Proposal for a directive
Article 1 – paragraph 1 – point 9
Article 1 – paragraph 1 – point 9
Directive (EU) 2017/1132
Article 124 paragraph 4
Article 124 paragraph 4
4. However, the reportpoint b, c and d referred to in paragraph 1, shall not be required where all the members of the merging companies have agreed to waive this requirement.; Where the merging companies and there subsidiaries, if any, have no employees, other than those who form part of the management or administrative organ, the information referred in paragraph 1 points e,f,g,h shall not be required to be provided in the report.
Amendment 603 #
4a. The submission of the report is without prejudice to the applicable information and consultation rights and proceedings instituted at national level following the implementation of Directives 2001/23/EC, 2002/14/EC or2009/38/EC
Amendment 606 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – title
Article 124a – title
Amendment 607 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 1
Article 124a – paragraph 1
Amendment 608 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 2
Article 124a – paragraph 2
Amendment 619 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 3 – subparagraph 1
Article 124a – paragraph 3 – subparagraph 1
Amendment 622 #
Amendment 624 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 4
Article 124a – paragraph 4
Amendment 626 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 5
Article 124a – paragraph 5
Amendment 628 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive (EU) 2017/1132
Article 124a – paragraph 6
Article 124a – paragraph 6
Amendment 634 #
Proposal for a directive
Article 1 – paragraph 1 – point 13
Article 1 – paragraph 1 – point 13
Directive (EU) 2017/1132
Article 126a – paragraph 1 – point a
Article 126a – paragraph 1 – point a
(a) the members holding shares with voting rights and who did not vote forvoted against or did not attend the general meeting but expressed their intention before the meeting to vote against the approval of the common draft terms of the cross-border merger;
Amendment 639 #
Proposal for a directive
Article 1 – paragraph 1 – point 13
Article 1 – paragraph 1 – point 13
Directive (EU) 2017/1132
Article 126a – paragraph 3
Article 126a – paragraph 3
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. Without prejudice to the exercise of the exit right, members shall communicate their intention to make use of it before the general meeting. 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 twoone 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.
Amendment 690 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160g – title
Article 160g – title
Article 160g Report of the management or administrative organ to the members and to the employees
Amendment 694 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160g – paragraph 1
Article 160g – paragraph 1
1. The management or administrative organ of the company being divided shall draw up a report explaining and justifying the legal and economic aspects of the cross-border division and the implications of this operation for the employees.
Amendment 701 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160g – paragraph 2 – point a (new)
Article 160g – paragraph 2 – point a (new)
2 a. the implications of the cross- border division on the safeguarding of the employment relationships;
Amendment 702 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160g – paragraph 2 – point b (new)
Article 160g – paragraph 2 – point b (new)
2 b. any material change in the conditions of employment and the locations of the companies’ places of business;
Amendment 703 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
2 c. whether the factors set out in points (a), (f) and (g) also relate to any subsidiaries of the company being divided.
Amendment 707 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160g – paragraph 3
Article 160g – paragraph 3
3. The report referred to in paragraph 1 of this Article shall be made available, at least electronically, to the members of the company being divided not less than two months before the date of the general meeting referred to in Article 160k. That report shall also be made similarly availableand to the representatives of the employees of the company being divided 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 160k.
Amendment 709 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160g – paragraph 3 a (new)
Article 160g – paragraph 3 a (new)
3 a. Where the management or administrative organ of the company being divided receives, in good time, an opinion from the representatives of their employees, or, where there are no such representatives, from the employees themselves, as provided for under national law, the members shall be informed thereof and that opinion shall be appended to that report.
Amendment 712 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160g – paragraph 4
Article 160g – paragraph 4
4. However, points (b), (c), (d) and (e) of the report referred to in paragraph 1, shall not be required where all the members of the company being divided have agreed to waive this documentobligation. Where the company being divided and all of their subsidiaries, if any, have no employees, other than those who form part of the management or administrative organ, the information referred to in paragraph 1 (f), (g) and (h), shall not be required.
Amendment 715 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160g – paragraph 4 a (new)
Article 160g – paragraph 4 a (new)
4 a. Paragraphs 1 to 4 are without prejudice to the applicable information and consultation rights and proceedings instituted at national level following the implementation of Directives 2001/23/EC, 2002/14/EC or 2009/38/EC.
Amendment 718 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – title
Article 160h – title
Amendment 721 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 1
Article 160h – paragraph 1
Amendment 722 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 2
Article 160h – paragraph 2
Amendment 736 #
Proposal for a directive
Article 1 – paragraph 1 – point 20 Directive (EU) 2017/1132
Article 1 – paragraph 1 – point 20 Directive (EU) 2017/1132
Amendment 742 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 4
Article 160h – paragraph 4
Amendment 745 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 5
Article 160h – paragraph 5
Amendment 747 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160h – paragraph 6
Article 160h – paragraph 6
Amendment 749 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160i – title
Article 160i – title
Article 160i Examination by an independent expertthe competent authority
Amendment 753 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160i – paragraph 1 – subparagraph 1
Article 160i – paragraph 1 – subparagraph 1
Member States shall ensure that the company being divided applies to the competent authority, designated in accordance with Article 160o(1), not less than two months before the date of the general meeting referred to in Article 160k, to appoint an expert tofor the examineation and the assessment of the draft terms of cross-border division and the reports referred to in Articles 160g and 160h, subject to the proviso set out in paragraph 6 of this Article.
Amendment 754 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160i – paragraph 1 – subparagraph 2
Article 160i – paragraph 1 – subparagraph 2
The application for the appointment of an expert shall be accompanied by the following
Amendment 756 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160i – paragraph 2
Article 160i – paragraph 2
2. TIf the competent authority shall appoints recourse to an independent expert within five working days of the application referred to in paragraph 1 and the receipt of the draft terms and reports. The, that expert shall be independent from the company being divided and may be a natural or a legal person depending upon the law of the Member State concerned. Member States shall take into account, in assessing the independence of the expert, the framework established in Articles 22 and 22b of Directive 2006/43/EC.
Amendment 757 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160i – paragraph 3
Article 160i – paragraph 3
3. TWhe experre the competent authority considers, based on reasonable grounds, that the cross-border division could represent an artificial arrangement as referred in Article 160d(3), it shall draw up a written report providing at least:
Amendment 761 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160i – paragraph 3 – point f
Article 160i – paragraph 3 – point f
(f) a description of all factual elements necessary for the competent authority designated in accordance with Article 160o(1), to carry out an in-depth assessment to determine whether the intended cross-border division constitutes an artificial arrangement in accordance with Article 160p, at a minimum the following: the characteristics of the establishments in the Member States concerned of the recipient companies, 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 possible commercial risks to be assumed by the company being divided in the Member States of the recipient companies.
Amendment 763 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160i – paragraph 4
Article 160i – paragraph 4
4. Member States shall ensure that the independent expertcompetent authority shall be entitled to obtain from the company being divided all relevant information and documents and to carry out all necessary investigations to verify all elements of the draft terms or management reports. The independent expertcompetent authority shall also be entitled to receive comments and opinions from the representatives of the employees of the company, or, where there are no such representatives, employees themselves and also from the creditors and members of the company.
Amendment 765 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160i – paragraph 5
Article 160i – paragraph 5
5. Member States shall ensure that information submitted to the independent expertcompetent authority can only be used for the purpose of drafting the report and that confidential information, including business secrets, shall not be disclosed. Where appropriate, the expert may submitcompetent authority may produce a separate document containing confidential information to the competent authority designated in accordance with Article 160o(1) and that separate document shall only be made available to the company being divided and not be disclosed to any third party.
Amendment 768 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160j – paragraph 1 – point b
Article 160j – paragraph 1 – point b
(b) the independent expert reportassessment on the accuracy of the report and information submitted by the company as referred to in Article 160i,(1) and where applicable; , the report drawn up by the competent authority in accordance with Article 160i(2) without however disclosing any confidential information;;
Amendment 771 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160l – paragraph 1 – point a
Article 160l – paragraph 1 – point a
(a) the members holding shares with voting rights and, who did not vote forvoted against or did not attend the general meeting but expressed their intention before that meeting to vote against the approval of the draft terms of the cross- border division;
Amendment 775 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160l – paragraph 3
Article 160l – paragraph 3
Member States shall ensure that a company being divided makes an offer of adequate cash compensation in the draft terms of the cross-border division as specified in Article 160e(1)(q) to the members, referred to in paragraph 1 of this Article, who wish to exercise their right to dispose of their shareholdings. Without prejudice to the exercise of the exit right, members shall communicate their intention to make use of it before the general meeting. 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 160k. Member States shall further ensure that a company is able to accept an offer communicated electronically to an address provided by the company for that purpose.
Amendment 800 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160p – paragraph 1 – subparagraph 1
Article 160p – paragraph 1 – subparagraph 1
Member States shall ensure in order to assess whether the cross-border division constitutes an artificial arrangement within the meaning of Article 160d(3) of this Directive, the competent authority of the company being divided shall carry 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 Member States concerned, 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 company being divided in the Member State of that company and Member States of recipient companies..
Amendment 802 #
Proposal for a directive
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Directive (EU) 2017/1132
Article 160p – paragraph 1 – subparagraph 2
Article 160p – paragraph 1 – subparagraph 2
Those elements referred to in Article 160i(3)(f) shall be taken into account but may be only considered as indicative factors in the overall assessment and therefore shall not be considered in isolation.