sou · GRB364d2 · 2004-01-01 00:00:00 — (3)In order to promote the social objectives of the Com- munity, special provisions have to be set, notably in the field of employee involvement, aimed at ensuring that the of an SE does not entail the disappear- ance or reduction of practices of employee involvement existing within the companies participating in the estab- lishment of an SE. This objective should be pursued through the of a set of rules in this field, supplementing the provisions of the Regulation. (4)Since the objectives of the proposed action, as outlined above, cannot be sufficiently achieved by the Member States, in that the object is to establish a set of rules on employee involvement applicable to the SE, and can therefore, by reason of the scale and impact of the proposed action, be better achieved at Community level, the Community may adopt measures, in accordance (1) OJ C 138, 29.5.1991, p. (2) OJ C 342, 20.12.1993, p. (3) OJ C 124, 21.5.1990, p. (4) See page 1 of this . with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve these objectives. (5)The great diversity of rules and practices existing in the Member States as regards the in which employees representatives are involved in decision- making within companies makes it inadvisable to set up a single European model of employee involvement applicable to the SE. (6)Information and consultation procedures at trans- national level should nevertheless be ensured in all cases of creation of an SE. (7)If and when participation rights exist within one or more companies establishing an SE, they should be preserved through their transfer to the SE, once estab- , unless the parties decide otherwise. (8)The concrete procedures of employee transnational information and consultation, as well as, if applicable, participation, to apply to each SE should be defined primarily by means of an agreement between the parties concerned or, in the absence thereof, through the application of a set of subsidiary rules. (9)Member States should still have the option of not applying the standard rules relating to participation in the case of a merger, given the diversity of national systems for employee involvement. Existing systems and practices of participation where appropriate at the level of participating companies must in that case be maintained by adapting registration rules. (10)The voting rules within the special body representing the employees for negotiation purposes, in particular when concluding agreements providing for a level of participation lower than the one existing within one or more of the participating companies, should be proportionate to the risk of disappearance or reduction of existing systems and practices of participation. L 294/23 risk is greater in the case of an SE established by way of transformation or merger than by way of creating a holding company or a common subsidiary. (11)In the absence of an agreement subsequent to the negotiation between employees representatives and the competent organs of the participating companies, pro- vision should be made for certain standard requirements to apply to the SE, once it is established. These standard requirements should ensure effective practices of trans- national information and consultation of employees, as well as their participation in the relevant organs of the SE if and when such participation existed before its within the participating companies. (12)Provision should be made for the employees representa- tives acting within the framework of the Directive to enjoy, when exercising their functions, protection and guarantees which are similar to those provided to employees representatives by the legislation and/or practice of the country of employment. They should not be subject to any discrimination as a result of the lawful exercise of their activities and should enjoy adequate protection as regards dismissal and other sanctions. (13)The confidentiality of sensitive information should be preserved even after the expiry of the employees representatives terms of office and provision should be made to allow the competent organ of the SE to withhold information which would seriously harm, if subject to public disclosure, the functioning of the SE. (14)Where an SE and its subsidiaries and are subject to Council Directive 94/45/EC of on the of a or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the pur- poses of informing and consulting employees (1), the provisions of that Directive and the provision trans- posing it into national legislation should not apply to it nor to its subsidiaries and , unless the special negotiating body decides not to open nego- tiations or to terminate negotiations already opened. (15)This Directive should not affect other existing rights regarding involvement and need not affect other existing (1) OJ L 254, 30.9.1994, p. Directive as last amended by Directive 97/74/EC (OJ L 10, , p. representation structures, provided for by Community and national laws and practices. (16)Member States should take appropriate measures in the event of failure to comply with the obligations laid down in this Directive. (17)has not provided the necessary powers for the Community to adopt the proposed Directive, other than those provided for in Article 308. (18)It is a fundamental principle and stated aim of this Directive to secure employees acquired rights as regards involvement in company decisions. Employee rights in force before the of SEs should provide the basis for employee rights of involvement in the SE (the before and after principle). Consequently, that approach should apply not only to the initial of an SE but also to structural changes in an existing SE and to the companies affected by structural change processes. (19)Member States should be able to provide that representa- tives of trade unions may be members of a special negotiating body regardless of whether they are employees of a company participating in the establish- ment of an SE. Member States should in this context in particular be able to introduce this right in cases where trade union representatives have the right to be members of, and to vote in, supervisory or administrative com- pany organs in accordance with national legislation. (20)In several Member States, employee involvement and other areas of industrial relations are based on both national legislation and practice which in this context is understood also to cover collective agreements at various national, sectoral and/or company levels, HAS ADOPTED THIS DIRECTIVE: This Directive governs the involvement of employees in the affairs of European public limited-liability companies (Europaea, hereinafter referred to as SE), as referred to in Regulation (EC) No 2157/2001. L 294/24 To this end, arrangements for the involvement of employees shall be established in every SE in accordance with the negotiating procedure referred to in Articles 3 to 6 or, under the circumstances specified in Article 7, in accordance with the . For the purposes of this Directive: (a)SE means any company established in accordance with Regulation (EC) No 2157/2001; (b)participating companies means the companies directly participating in the establishing of an SE; (c)subsidiary of a company means an undertaking over which that company exercises a dominant influence defined in accordance with Article 3(2) to (7) of Direc- tive 94/45/EC; (d)concerned subsidiary or means a subsidi- ary or of a participating company which is proposed to become a subsidiary or of the SE upon its formation; (e)employees representatives means the employees rep- resentatives provided for by national law and/or practice; (f)representative body means the body representative of the employees set up by the agreements referred to in Article 4 or in accordance with the provisions of the , with the purpose of informing and consulting the employees of an SE and its subsidiaries and situated in the Community and, where applicable, of exercising participation rights in relation to the SE; (g)special negotiating body means the body established in accordance with Article 3 to negotiate with the competent body of the participating companies regarding the estab- lishment of arrangements for the involvement of employees within the SE; (h)involvement of employees means any mechanism, including information, consultation and participation, through which employees representatives may exercise an influence on decisions to be taken within the company; (i)information means the informing of the body representa- tive of the employees and/or employees representatives by the competent organ of the SE on questions which concern the SE itself and any of its subsidiaries or situated in another or which exceed the powers of the decision-making organs in a single at a time, in a and with a content which allows the employees representatives to undertake an in-depth assessment of the possible impact and, where appropriate, prepare consultations with the competent organ of the SE; (j)consultation means the of dialogue and exchange of views between the body representative of the employees and/or the employees representatives and the competent organ of the SE, at a time, in a and with a content which allows the employees representa- tives, on the basis of information provided, to express an opinion on measures envisaged by the competent organ which may be taken into account in the decision-making process within the SE; (k)participation means the influence of the body representa- tive of the employees and/or the employees representa- tives in the affairs of a company by way of: the right to elect or appoint some of the members of the companys supervisory or administrative organ, or the right to recommend and/or oppose the appoint- ment of some or all of the members of the companys supervisory or administrative organ. Creation of a special negotiating body 1.Where the management or administrative organs of the participating companies draw up a plan for the of an SE, they shall as soon as possible after publishing the draft terms of merger or creating a holding company or after agreeing a plan to form a subsidiary or to transform into an SE, take the necessary steps, including providing information about the identity of the participating companies, concerned subsidiaries or , and the number of their employees, to start negotiations with the representatives of the companies employees on arrangements for the involvement of employees in the SE. 2.For this purpose, a special negotiating body representa- tive of the employees of the participating companies and concerned subsidiaries or be created in accordance with the following provisions: L 294/25 (a)in electing or appointing members of the special negotiat- ing body, it must be ensured: (i)that these members are elected or appointed in proportion to the number of employees employed in each by the participating companies and concerned subsidiaries or , by allocating in respect of a one seat per portion of employees employed in that which equals , or a fraction thereof, of the number of employees employed by the participating companies and concerned subsidiaries or establish- ments in all the Member States taken together; (ii)that in the case of an SE formed by way of merger, there are such further additional members from each as may be necessary in order to ensure that the special negotiating body includes at least one member representing each participating company which is registered and has employees in that and which it is proposed will cease to exist as a separate legal entity following the registration of the SE, in so far as: the number of such additional members does not exceed of the number of members designated by virtue of point (i), and the composition of the special negotiating body does not entail a double representation of the employees concerned. If the number of such companies is higher than the number of additional seats available pursuant to the first subparagraph, these additional seats shall be allocated to companies in different Member States by decreasing order of the number of employees they employ; (b)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 territories. They shall take the necessary measures to ensure that, as far as possible, such members shall include at least one member representing each participat- ing company which has employees in the 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 con- cerned subsidiary or . Without prejudice to national legislation and/or practice laying down thresholds for the establishing of a represen- tative body, Member States shall provide that employees in undertakings or 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. 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 SE. To this end, the competent organs of the participating companies shall inform the special negotiating body of the plan and the actual process of establishing the SE, up to its registration. Subject to paragraph 6, 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, in the case of an SE to be established by way of merger, if participation covers at least of the overall number of employees of the participating companies, or in the case of an SE to be established by way of creating a holding company or forming a subsidiary, if participation covers at least of the overall number of employees of the participating companies. Reduction of participation rights means a proportion of members of the organs of the SE within the meaning of Article 2(k), which is lower than the highest proportion existing within the participating companies. For the purpose of the negotiations, the special negotiat- ing 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. L 294/26 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 Member States where the SE has employees. Such a decision shall stop the procedure to conclude the agreement referred to in Article 4. Where such a decision has been taken, none of the provisions of the apply. 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. In the case of an SE established by way of transformation, this paragraph shall not apply if there is participation in the company to be transformed. The special negotiating body shall be reconvened on the written request of at least of the employees of the SE, its subsidiaries and , 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, none of the provisions of the apply. expenses relating to the functioning of the special negotiating body and, in general, to negotiations shall be borne by the participating companies so as to enable the special negotiating body to carry out its task in an appropriate . In compliance with this principle, Member States may lay down budgetary rules regarding the operation of the special negotiating body. They may in particular limit the funding to cover one expert only. Without prejudice to the autonomy of the parties, and subject to paragraph 4, the agreement referred to in paragraph 1 between the competent organs of the participating compan- ies 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 SE in connection with arrangements for the information and consultation of the employees of the SE and its subsidi- aries and ; (c)the functions and the procedure for the information and consultation of 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; (f)if, during negotiations, the parties decide to establish one or more information and consultation procedures instead of a representative body, the arrangements for implementing those procedures; (g)if, during negotiations, the parties decide to establish arrangements for participation, the substance of those arrangements including (if applicable) the number of members in the SEs administrative or supervisory body which the employees will be entitled to elect, appoint, recommend or oppose, the procedures as to how these members may be elected, appointed, recommended or opposed by the employees, and their rights; (h)the date of entry into force of the agreement and its duration, cases where the agreement should be re- negotiated and the procedure for its renegotiation. Content of the agreement The competent 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 SE. 3.The agreement shall not, unless provision is made otherwise therein, be subject to the standard rules referred to in the . 4.Without prejudice to Article 13(3)(a), in the case of an SE established by means of transformation, the agreement shall provide for at least the same level of all elements of employee involvement as the ones existing within the company to be transformed into an SE. L 294/27 1.Negotiations shall commence as soon as the special negotiating body is established and may continue for six months thereafter. 2.The parties may decide, by joint agreement, to extend negotiations beyond the period referred to in paragraph 1, up to a total of one year from the of the special negotiating body. Legislation applicable to the negotiation procedure Except where otherwise provided in this Directive, the legis- lation applicable to the negotiation procedure provided for in Articles 3 to 5 shall be the legislation of the in which the registered office of the SE is to be situated. In order to achieve the objective described in Article 1, Member States shall, without prejudice to paragraph 3 below, lay down standard rules on employee involvement which must satisfy the provisions set out in the . The standard rules as laid down by the legislation of the in which the registered office of the SE is to be situated shall apply from the date of the registration of the SE where either: (a)the parties so agree; or (b)by the deadline laid down in Article 5, no agreement has been concluded, and: the competent organ of each of the participating companies decides to accept the application of the standard rules in relation to the SE and so to continue with its registration of the SE, and the special negotiating body has not taken the decision provided in Article 3(6). Moreover, the standard rules fixed by the national legislation of the of registration in accordance with part 3 of the apply only: (a)in the case of an SE established by transformation, if the rules of a relating to employee participation in the administrative or supervisory body applied to a company transformed into an SE; (b)in the case of an SE established by merger: if, before registration of the SE, one or more forms of participation applied in one or more of the participating companies covering at least of the total number of employees in all the participating companies, or if, before registration of the SE, one or more forms of participation applied in one or more of the participating companies covering less than of the total number of employees in all the participating companies and if the special negotiating body so decides, (c)in the case of an SE established by setting up a holding company or establishing a subsidiary: if, before registration of the SE, one or more forms of participation applied in one or more of the participating companies covering at least of the total number of employees in all the participating companies; or if, before registration of the SE, one or more forms of participation applied in one or more of the participating companies covering less than of the total number of employees in all the participating companies and if the special negotiating body so decides. If there was more than one form of participation within the various participating companies, the special negotiating body shall decide which of those forms must be established in the SE. Member States may fix the rules which are applicable in the absence of any decision on the matter for an SE registered in their territory. The special negotiating body shall inform the competent organs of the participating companies of any decisions taken pursuant to this paragraph. Member States may provide that the reference provisions in part 3 of the not apply in the case provided for in point (b) of paragraph 2. Member States shall provide that members of the special negotiating body or the representative body, and experts who assist them, are not authorised to reveal any information which has been given to them in confidence. L 294/28 The same shall apply to employees representatives in the context of an information and consultation procedure. This obligation shall continue to apply, wherever the persons referred to may be, even after the expiry of their terms of office. Each provide, in specific cases and under the conditions and limits laid down by national legislation, that the supervisory or administrative organ of an SE or of a participating company established in its territory is not obliged to transmit information where its nature is such that, according to objective criteria, to do so would seriously harm the functioning of the SE (or, as the case may be, the participating company) or its subsidiaries and or would be prejudicial to them. A may make such dispensation subject to prior administrative or judicial authorisation.