# C_2023071EN.01001601.xml

| 27.2.2023 | EN | Official Journal of the European Union | C 71/16 |
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27.2.2023

EN

Official Journal of the European Union

C 71/16

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Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 17 November 2022 — Konzernbetriebsrat der O SE & Co. KG

(Case C-706/22)

(2023/C 71/19)

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant, appellant and appellant on a point of law: Konzernbetriebsrat der O SE & Co. KG

Intervener: Vorstand der O Holding SE

Questions referred

| 1. | Is Article 12(2) of Regulation (EC) No 2157/2001, (1) in conjunction with Articles 3 to 7 of Directive 2001/86/EC, (2) to be interpreted as meaning that, where a holding SE is formed by participating companies which do not employ employees, and do not have subsidiaries employing employees, and the holding SE was registered in the register of a Member State (a so-called ‘SE without employees’) without a negotiation procedure for the involvement of employees in the SE having first been conducted, under that directive that negotiation procedure has to be conducted retrospectively if the SE becomes the controlling undertaking of subsidiaries in several Member States of the European Union which employ employees? |
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1.

Is Article 12(2) of Regulation (EC) No 2157/2001, (1) in conjunction with Articles 3 to 7 of Directive 2001/86/EC, (2) to be interpreted as meaning that, where a holding SE is formed by participating companies which do not employ employees, and do not have subsidiaries employing employees, and the holding SE was registered in the register of a Member State (a so-called ‘SE without employees’) without a negotiation procedure for the involvement of employees in the SE having first been conducted, under that directive that negotiation procedure has to be conducted retrospectively if the SE becomes the controlling undertaking of subsidiaries in several Member States of the European Union which employ employees?

| 2. | If the Court’s answer to Question 1 is in the affirmative:
  Is the retrospective conduct of the negotiation procedure in such a case possible and necessary for an unlimited time? |
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2.

If the Court’s answer to Question 1 is in the affirmative:

Is the retrospective conduct of the negotiation procedure in such a case possible and necessary for an unlimited time?

| 3. | If the Court’s answer to Question 2 is in the affirmative:
  Does Article 6 of Directive 2001/86 preclude the application of the law of the Member State where the SE now has its registered office for the purpose of retrospective conduct of the negotiation procedure if the ‘SE without employees’ was registered in the register in another Member State without such a procedure having first been conducted and before the transfer of its registered office became the controlling company of subsidiaries in several Member States of the European Union which employ employees? |
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3.

If the Court’s answer to Question 2 is in the affirmative:

Does Article 6 of Directive 2001/86 preclude the application of the law of the Member State where the SE now has its registered office for the purpose of retrospective conduct of the negotiation procedure if the ‘SE without employees’ was registered in the register in another Member State without such a procedure having first been conducted and before the transfer of its registered office became the controlling company of subsidiaries in several Member States of the European Union which employ employees?

| 4. | If the Court’s answer to Question 3 is in the affirmative:
  Is this also the case where the State where that ‘SE without employees’ was first registered has withdrawn from the European Union after the transfer of the registered office and its law no longer contains any provisions on the conduct of a negotiation procedure for the involvement of employees in the SE? |
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4.

If the Court’s answer to Question 3 is in the affirmative:

Is this also the case where the State where that ‘SE without employees’ was first registered has withdrawn from the European Union after the transfer of the registered office and its law no longer contains any provisions on the conduct of a negotiation procedure for the involvement of employees in the SE?

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(1)  Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) (OJ 2001 L 294, p. 1).

(2)  Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees (OJ 2001 L 294, p. 22).

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