sou · GRB364d1 · 2004-01-01 00:00:00 — Vi föreslår slutligen att lagen om ERF, i de fall de speciella förutsättningarna i den är uppfyllda, skall vara tillämplig på bolag som blir dotterbolag till ett europabolag efter dess registrering, såvitt inte dessas arbetstagare får del av det inflytande som gäller för arbetstagarna i europabolagsgruppen i övrigt. On 8 October 2001, Council adopted a regulation and a directive on a European company (SE Europea), a public limited liability company on the EU level. The regulation contains company law provisions and the directive establishes arrangements for employee involvement in such companies. A condition that must be satisfied before an SE can be registered is that arrangements have been made for employee involvement in the proposed company. Our task has been to propose how the directive on employee involvement in an SE shall be implemented in . The starting-point for our proposal has been that the directive shall be implemented in such a way as to follow the traditions of the Swedish labour market as far as possible. At the end of 2001, the Commission appointed a working group, which has included representatives from the EEA countries, and which has been responsible for the implementation of the directive in their respective countries. The working group still has a number of issues to discuss after we have put forward our proposal. The group has nevertheless reach consensus on a number of conclusions concerning the majority of those issues where the group feels it is important that the directive is interpreted and implemented in the same way in all the different countries. Our proposal takes these conclusions into consideration. The directive on employee involvement in a European company (SE) The aim of the directive is to ensure that the employees of companies included in the of an SE have a degree of employee involvement that corresponds as far as possible to the involvement they had previously in the companies participating in such an . The aim, therefore, is that employee involvement should not diminish when the companies for which they work are transformed into an SE. When an SE is established other than through transformation, the intention is that the employee involvement that exists in the participating companies shall be transferred to the employees in the SE as far as possible. This so-called before-and-after principle is an integral part of the whole directive. Making arrangements for employee involvement is a necessary condition for being able to register an SE. According to the directive, employee involvement in an SE shall be decided in negotiations between a special negotiating body, consisting of representatives of those employees who will be affected by the of the SE, and the executives of those companies participating in the . The negotiating body shall be representative of all the employees affected. Seats in the negotiating body are allocated among the employees in the various Member States (MS) in proportion to the number of employees in each MS respectively. chooses itself who will then occupy these allocated seats. This issue is therefore the subject of national regulation. shall however as far as possible ensure the inclusion of representatives for each participating company that has employees in the MS in question. The directive states first and foremost that the forms of involvement shall be regulated by agreements between the companies and the employee representatives. In a spirit of cooperation, it is assumed that company executives and the negotiating body will conclude an agreement, the content of which is proposed in the directive in accordance with a listed agenda, which the parties may use as a basis for discussion. In case the parties do not reach an agreement, the directive includes reference provisions, which stipulate what shall apply instead. According to the reference provisions, employee involvement shall imply an obligation for the SE to provide information to and consult with employee representatives, both on a continuous basis and in connection with particular important structural changes that occur in the SE. If there is employee representation of some form or other on the company board or supervisory organ (hereinafter referred to as participation) prior to the , the corresponding degree of representation shall in principle be transferred to the SE. The negotiating body may under certain circumstances decide not to open negotiations on an agreement or to terminate negotiations already opened. In this case, the reference provisions shall not be applied. For such a decision to be made, a two-thirds majority is required in accordance with the directive both regarding the number of votes casts and the number of employees that are represented. If the SE is established by way of a transformation and participation exists in the company to be transformed, the negotiating body may not refrain from opening negotiations nor terminate negotiations already opened. The directive prescribes to this effect that employee involvement after the transformation must be on the same level as the involvement that existed in the company that is being transformed. On the other hand, the directive does allow a certain reduction in participation under certain circumstances if the SE is established in some way other than by transformation. The negotiating body takes decisions by absolute majority. If the decision concerns reducing the participation rights in the SE in relation to those that exist in the companies participating in the , a two-thirds majority is required in accordance with special rules laid down in the directive. The negotiation procedure shall continue for a maximum of six months unless the parties jointly decide to extend the period for a further six months. The starting-point for this calculation is the date the negotiation delegation is established. The directive also provides that the employee representatives shall enjoy the same protection and guarantees that exist under national legislation for employees who are exercising their functions. The directive enjoins the MS to take suitable measures to prevent an SE from being used to deprive employees of their involvement. Employee involvement is regulated in by the Employment (Co-Determination in the Workplace) Act, the Board Representation (Private Sector Employees) Act and the Trade Union Representatives (Status at the Workplace) Act. These acts are applicable to Swedish conditions and operations in . Act regulates the communication between the employer and employees in cross-border issues in multinational companies etc., on condition, for example, that the number of employees exceeds certain limit values. There is currently no Swedish legislation that satisfies the requirement in the directive to guarantee the right to employee involvement and participation in various company bodies in the type of company now under discussion. We have chosen to propose new legislation. To a certain extent, this legislation includes a regulation that is to be applied in all EEA countries in the event of the registered office of the SE being situated in . Otherwise, the legislation only regulates conditions in . An employee negotiation delegation A body shall be established that is to negotiate with the companies on arrangements for employee involvement. We propose that this body be called a negotiation delegation. The regulation in the legislative proposal of the procedure to be followed regarding the negotiation of an agreement and regarding how a negotiation delegation is to be established shall in principle be applicable to all companies that are affected by the of the SE, regardless of in which MS these are located, in those cases when the SE plans to have its registered office in . Seats on the negotiation delegation shall be allocated as stipulated in the directive, which means that the employees are given one permanent place for every 10 per cent or fraction thereof the total workforce they make up in the participating companies and concerned subsidiaries and in all the EEA countries taken together. If the SE is established by way of a merger, the employees in the different MS shall in addition be awarded extra seats, if this is necessary to ensure the representation of the employees in each participating company which it is proposed will cease to exist as a separate legal entity. Under our proposal, if the number of employees changes considerably or other structural changes occur to the companies structures during the negotiations and these changes affect the geographical distribution of the number of seats the employees have in the various MS, the seats shall be reallocated. The negotiation delegation being representative of the employees is namely a necessary pre-condition. It would not be rational however for each change to the number of employees to bring about an adjustment of the delegations composition. We therefore propose that importance only be attached to structural changes, that are of such significance that they affect the distribution of places among the countries in the negotiation delegation. National rules shall dictate how the seats that have been allocated to the employees in each country, are to be distributed among the employees in that country. How the seats are to be distributed in after the geographical allocation has been carried out will therefore be a Swedish issue regardless of in which country the registered office of the SE is located. In our proposal, we allocate the seats among the employees in the participating companies and concerned subsidiaries and in such a way as to in principle provide for the employees in participating companies first and provide for those in the concerned subsidiaries and second. The seats are allocated with one seat to the employees in each company as long as there are seats left in descending order of number of employees in the companies. If there are still seats left to allocate after the employees in both participating companies and concerned subsidiaries and have been given a seat each, the rest of the seats are jointly allocated among the employees in the participating companies and concerned subsidiaries and in descending order of the number of employees. This principle may be deviated from by local employee organisations, on condition that they are in agreement on such deviations. In this case, they shall guarantee as far as possible by means of an agreement that the employees of each participating company will be directly represented by at least one member. extra seats in a merger situation will be allocated among employees in participating companies that it is proposed shall cease to exist as separate legal entities and that have not been given representation of any other kind. The allocation is carried out according to the same principles as above, namely in descending order of the number of employees. The issue of which members are to be appointed to the seats on the negotiation delegation is likewise a national matter. We propose that selection is carried out according to the Swedish model of trade union organisations being represented at the workplace. If a collective agreement applies, the members are appointed by trade union organisations that are bound by agreements. If these organisations cannot agree, we propose that the Swedish regulation on the selection of employee members in accordance with the Board Representation Act should form the basis of the procedure. If there is no collective agreement at any of the workplaces, the local employee organisation that represents the most employees at the participating companies, subsidiaries and appoint the members, if the organisations cannot agree on an alternative course of action. The number of votes on the negotiation delegation is based, among other things, on the number of employees each member represents. The representativity of each member must therefore be established and rules formulated so that each employee will be represented by one single member. In accordance with the legislative proposal, the members appointed represent to an equal extent both the employees who elected them directly and those employees who are not directly represented by any other member. If the member is appointed to an extra seat, however, he or she only represents the employees at his/her own company to prevent double representation of the employees concerned. When the negotiation delegation has been appointed, it shall then negotiate with the competent representatives of the companies in order primarily to conclude a written agreement on arrangements for employee involvement in the SE. Such negotiations should be initiated as soon as the negotiation delegation has been established and be allowed to continue for six months or a maximum of one year, if the parties are in agreement. We have no solution to the case of what should apply in the event of a negotiation delegation not being established at all. The directive does not solve this issue and it is our assessment that plugging this gap would be to supersede the directive. We are therefore leaving this issue unanswered to be discussed either as part of the work to be done in the Commissions working group or in conjunction with a review of the directive. Agreement on employee involvement The legislative proposal stipulates the different areas to be discussed by the parties in order to reach an agreement on how employee involvement in the SE shall be arranged. There are no restrictions as to what the agreement can contain, but the voting rules for this undertaking are different depending on what issues the draft agreement covers. According to the principal rule in our proposal, a draft agreement must be sanctioned by an absolute majority of negotiation delegation members, who also represent an absolute majority of the employees. A qualified majority is needed to sanction a draft agreement that implies a reduction in employee participation on the boards or equivalent company bodies of the various companies. The same applies for a decision to completely relinquish employee involvement. If an SE is established by transformation, the parties are prevented from agreeing on a lower degree of involvement than that which the employees are entitled to in the companies that are being transformed. There is no obligation to agree on every point on the agenda. The parties can on the contrary decide themselves the extent to which they feel it is appropriate to regulate the various issues. If, however, the negotiations were to result in the employees relinquishing an effective involvement in practice, the prescribed requirement for a majority in favour of such a decision must be observed. An agreement should regulate the circumstances under which the agreement shall be renegotiated, for example in the event of changed conditions within the SE, its subsidiaries and . It should also include information on what is to apply in the event of new negotiations, as a result of changed conditions or of the agreement period having expired, not leading to the conclusion of a new agreement. The participating companies shall pay the reasonable costs of the negotiation delegation, including the costs associated with the of the delegation. If agreement is not reached If the parties do not conclude an agreement, the reference provisions on information and consultation will be applicable on condition that the negotiation delegation has not decided to relinquish employee involvement. For the reference provisions on participation to be applicable, various conditions depending on the way in which the SE has been established must be fulfilled. If different forms of participation exist in the company bodies of the participating companies, the negotiation delegation shall decide on which form of participation shall be applicable. If the delegation does not take a decision, we propose that the companies do it themselves. It is in our opinion less fitting for a decision not to be taken at all. If the negotiation delegation decides not to open negotiations or to terminate negotiations already opened, it may at a later date and at the request of at least 10 per cent of the employees in the SE, be reconvened after two years at the earliest unless the parties agree otherwise. Even if these negotiations dont lead to a new agreement, the reference provisions will nevertheless still not be applicable. It will therefore not be possible for the employees to establish arrangements for employee involvement at a later date, against the wishes of the company executive, if the negotiation delegation had originally decided to relinquish involvement. In accordance with the reference provisions, a body, which we will call , shall be established to represent employees during the information and consultation procedure regarding the SE. Seats on the will be allocated according to the same principles as the permanent places on the negotiation delegation. Only employees in the companies in question may be elected to the . The members will then primarily represent their own work colleagues but may also in the future represent employees from other sections of the companies unless they are assigned another member as their representative when the allocation of seats takes place. We propose that the reviews its composition at least once a year in order to adjust the number of members and allocated places to the changes that may have taken place within the SE, its subsidiaries and during the year. If, prior to the of the SE, employees were entitled to participation in company bodies, this right shall be upheld after the SE has been established. In such a case, the shall decide how the seats shall be allocated geographically among the employees in the different countries and in some way ensure that involvement is spread among the employees. Likewise, members shall be selected by the in accordance with the principle rule in our proposal. If however a country has a national arrangement established for how the members should be selected, the provision for the selection of representatives from that country applies under our proposal. The provision will be applicable within the whole EEA area if the registered office of the SE is located in . Our legislative proposal also contains a national arrangement for the selection of Swedish members. This means that the will not appoint the Swedish members of company bodies on condition that the country, whose law is to apply to the procedure, has prescribed that the issue is to be solved in the same way as in . Agreement has been reached in the Commissions working group to recommend such a solution to the countries. A confidentiality rule is proposed in accordance with what is prescribed under Act. Furthermore, it is proposed that some of the protective rules for trade union representatives under the Trade Union Representatives Act be applicable to employee representatives who are in and who are exercising their functions in accordance with the proposed act. A regulation sanctioning damages and prohibiting misuse will be introduced in accordance with the obligation in the directive. In addition, a presumptive rule is proposed signifying that a change, which the SE implements within one year of registration and which, according to what is indicated, would have led to employee involvement having been more extensive if the change had been implemented prior to registration, shall be considered to be part of an attempt to deprive employees of their right to involvement or refuse them this right. The presumptive rule will be contravened if the company shows that the change has been carried our without such a purpose. We propose damages as a consequence of breaching the act. Regarding disputes within the remit of the proposed act, the Labour Disputes (Judicial Procedure) Act shall apply and the Labour Court shall be the first instance. Finally, we propose that Act, in those cases where the special conditions in it have been fulfilled, shall be applicable to companies that become subsidiaries of an SE after it has been registered so long as its employees do not obtain some of the involvement that applies to other employees in the SE group. lag (2004:xx) om arbetstagarinflytande i europabolag Denna lag innehåller bestämmelser om arbetstagarinflytande i europabolag som avses i rådets förordning (EG) nr 2157/2001 av om stadga för europabolag. Bestämmelser om arbetstagarinflytande finns även i lagen (1976:580) om medbestämmande i arbetslivet. Arbetstagarinflytandet kommer till stånd på följande sätt. Det bil- das en förhandlingsdelegation för arbetstagarna som har till uppgift att tillsammans med de deltagande bolagen träffa ett avtal om en ordning för arbetstagarinflytande i europabolaget. I de fall då för- handlingsdelegationen och de deltagande bolagen inte träffar något avtal om en ordning för arbetstagarinflytande, kan bestämmelserna i 27 55 §§ bli tillämpliga. Det finns bestämmelser i 23 § om under vilka förutsättningar förhandlingsdelegationen får avstå från sin rätt till förhandlingar. 1 Jfr rådets direktiv /86/EG av om komplettering av stadgan för europabolag vad gäller arbetstagarinflytande (EGT nr L 294, 10.11.2001, s.22, Celex 32001L0086). I denna lag avses med –europabolag: ett bolag som bildats i enlighet med rådets förordning (EG) nr 2157/2001 av om stadga för europabolag, –deltagande bolag: de bolag som direkt deltar i bildandet av ett europabolag, –dotterbolag till ett bolag: ett företag över vilket bolaget utövar ett bestämmande inflytande i enlighet med vad som anges i 9 12 §§ lag (1996:359) om europeiska företagsråd, –berörda dotterbolag eller filialer: dotterbolag eller filialer knut- na till ett deltagande bolag och som avses bli dotterbolag eller filialer till ett europabolag när detta bildas, –information: information från europabolaget till det organ som representerar arbetstagarna i frågor som rör europabolaget eller något av dess dotterbolag eller filialer i en annan stat inom Europeiska ekonomiska samarbetsområdet ( EES-stat) eller om frågor som faller utanför de lokala beslutsorganens befogen- heter, på ett sätt och med ett innehåll som ger arbetstagarrepre- sentanterna möjlighet att göra en noggrann bedömning av eventuella konsekvenser samt, när det är lämpligt, förbereda samråd med europabolaget. –samråd: upprättande av en dialog mellan europabolaget och det organ som representerar arbetstagarna , på ett sätt och med ett innehåll som ger arbetstagarna möjlighet att, på grundval av tillhandahållen information, lämna synpunkter på planerade åtgärder vilka kan beaktas i europabolagets be- slutsprocess, –medverkan: det inflytande som det organ som representerar arbetstagarna utövar på ett bolags verksamhet genom rätten att a)välja eller utnämna några av ledamöterna i bolagets tillsyns- eller förvaltningsorgan, eller b)föreslå eller avvisa utnämningen av några eller alla leda- möter i bolagets tillsyns- eller förvaltningsorgan. –europeiskt arbetstagarråd (arbetstagarråd): det organ som före- träder arbetstagarna i europabolag och dess dotterbolag och filialer i förfaranden avseende information och samråd samt, i förekommande fall, beslutar om hur arbetstagarledamöter från olika stater skall representera arbetstagarna i europabolagets förvaltnings- eller tillsynsorgan. Bestämmelserna om förhandlingsförfarandet i 6 10 och 17 26 §§ gäller när europabolaget enligt gällande plan skall ha sitt säte i . Regleringen i 11 16 §§ gäller för arbetstagare i bolag och filialer med verksamhet i , oberoende av var europabolaget skall ha sitt säte. Bestämmelserna i 27 29 och 33 49 samt 51 55 §§ gäller när europabolaget har sitt säte i . Bestämmelserna i 30 32 och 50 §§ gäller för arbetstagare i bolag och filialer med verksamhet i , oberoende av var europabolaget har sitt säte.