xml version="1.0" encoding="UTF-8"?


C\_2019062EN.01002401.xml


| | | | |
| --- | --- | --- | --- |
| 15.2.2019 | EN | Official Journal of the European Union | C 62/24 |

---

Opinion of the European Economic and Social Committee on (a) Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2017/1132 as regards the use of digital tools and processes in company law

(COM(2018) 239 final — 2018/0113 (COD))

and on (b) Proposal for a Directive amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions

(COM(2018) 241 final — 2018/0114 (COD))

(2019/C 62/04)

| | |
| --- | --- |
| Rapporteur: | Dimitris DIMITRIADIS |
| Co-rapporteur: | Norbert KLUGE |

| | | | | | | | | | |
| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |
| Referral | | | | | --- | --- | | (a) | European Parliament, 28.5.2018 | | | | | --- | --- | | (a) | Council, 30.5.2018 | | | | | --- | --- | | (b) | European Parliament, 28.5.2018 | | | | | --- | --- | | (b) | Council, 29.5.2018 | |
| Legal basis | | | | | --- | --- | | (a) | Article 50(1) and points (b), (c), (f) and (g) of Article 50(2) of the TFEU | | | | | --- | --- | | (b) | Article 50(1) and (2) TFEU | |
| Section responsible | Section for the Single Market, Production and Consumption |
| Adopted in section | 2.10.2018 |
| Adopted at plenary | 17.10.2018 |
| Plenary session No | 538 |
| Outcome of vote (for/against/abstentions) | 190/2/1 |

1.   Conclusions and recommendations

| | | |
| --- | --- | --- |
| | 1.1. | The European Economic and Social Committee (EESC) welcomes the Commission’s proposals, which constitute a comprehensive approach aiming to balance and protect the legitimate interests and needs of all stakeholders, SMEs, minority shareholders, creditors and employees. |

| | | |
| --- | --- | --- |
| | 1.2. | At the same time, the objective of a Single Market without internal borders for companies must be reconciled with other objectives of European integration such as social protection embedded in Art. 3 (3) TEU, Art. 9 and 151 TFEU, the European Pillar of Social Rights. The EESC is of the opinion that the recent legal proposal on company mobility builds a good opportunity to initiate a further debate about the requirements and efficiency of European company law in the digital age. Thereby, the perspectives of all stakeholders should be viewed, such as employees and the society as a whole. This makes the desired development towards creating sustainable companies as a competitive advantage of the EU. |

| | | |
| --- | --- | --- |
| | 1.3. | The EESC supports the proposals that enhance the international competitiveness of SMEs, reduce cost, harmonise and simplify processes for registration, filing of company changes and conversions. It believes that guidance by the Commission to the Member States on transposition of the directives is useful. |

| | | |
| --- | --- | --- |
| | 1.4. | The EESC is against loopholes enabling letter box companies to abuse legislation for fraud, tax evasion, money laundering, reduction of labour standards or social protection and increasing unfair competition. It urges the authorities involved to detect and punish fraudulent practices. The EESC supports the limitation of choice of the Member State of registration to the one with which the company has a genuine link. |

| | | |
| --- | --- | --- |
| | 1.5. | The EESC supports transparency, security and legal certainty. It emphasises the significance of efficient identity verification, which must be compulsory for the formation of companies and in any event should take place prior to their registration. Member States should fully comply with the EU standards or apply equivalent standards for efficient identity verification and reliable information to include full standards for beneficial ownership. |

| | | |
| --- | --- | --- |
| | 1.6. | The EESC believes that the submission of scanned copies of passports, ID cards or power of attorney should not be acceptable and will undermine legal certainty. Power of attorney forms should be public documents and should be properly checked before filing information. Legal persons registered in the national registries should use online registration and filing tools, if they are represented by their legal representative, who is a natural person and not a holding company. |

| | | |
| --- | --- | --- |
| | 1.7. | The EESC welcomes the ‘once-only principle’, so that SMEs will avoid multiple registration and multiple official publications while at the same time national registers ensure the reliability and trustworthiness of documents and information they publish. |

| | | |
| --- | --- | --- |
| | 1.8. | The EESC stresses the importance of the cost factor for micro SMEs and SMEs, since they have neither the capacity nor the necessary instruments to cope with the digital society. Easy registration and cross-border mobility will assist them to fully benefit from the Digital Single Market and alleviate their administrative burden. The EESC supports the initiative that documents and information issued by business registers should be equivalent to ‘true copies’. However, the actual administrative costs to be paid at the commercial register should be made transparent, reasonable and should not affect accessibility. |

| | | |
| --- | --- | --- |
| | 1.9. | The EESC believes that there should be free and easy cross-border access to business registers in order to confirm company information, e.g. for disqualification of its directors, to allow the control of company information and to reduce cross-border fraud. |

| | | |
| --- | --- | --- |
| | 1.10. | The EESC appreciates that the proposal of the Commission expressly recognises the role the notary plays in many Member States in ensuring legal certainty, providing legal advice and preventing fraud and abuse in an increasingly digitalised economic environment. The EESC believes in particular that the prevention of fraud and abuse does not hinder economic activity but, on the contrary, is a pre-condition for a fair and transparent EU Single Market in which micro SMEs have equal opportunities and can compete for customers in a fair and enabling environment by offering the best products and services to the benefit of all market participants. |

| | | |
| --- | --- | --- |
| | 1.11. | The EESC supports the Commission’s proposal to facilitate cross-border mobility of companies, which sets clear conditions through secondary legislation. However, as the Court of Justice of the European Union has emphasised in its case law, it should be made clear that the purpose of a company to enjoy the benefit of a more favourable legislation does not, in itself, constitute abuse of the freedom of establishment. Company mobility will facilitate employment in the EU as a whole. However, the detrimental effects of a conversion, division or merger on local and regional labour markets should be taken into account as well. |

| | | |
| --- | --- | --- |
| | 1.12. | The EESC suggests that the Commission pays attention to the divergences between cross- border merger Directive 2005/56/EC and the proposed procedures on cross-border conversions and divisions with a view to possible consequences for their effectiveness and attractiveness. |

| | | |
| --- | --- | --- |
| | 1.13. | The EESC believes that the new procedure for the transfer of company seat (cross-border conversion) will establish legal certainty through its ex-ante control in the Member State of origin and in the Member State of destination, which, in the latter case, should be limited to review its requirements for the connection of a converted company to its national legal order. It also believes that a general clause against abuse of the right of establishment would be useful. |

| | | |
| --- | --- | --- |
| | 1.14. | The EESC supports the Commission’s proposal in taking into account the fact that conversions, mergers and divisions can be used fraudulently; however, it remains unclear what an ‘artificial arrangement’ is. Therefore, the EESC suggests that in order to elucidate the expression ‘artificial arrangement’ it is necessary that criteria or indicators are established which point out fraudulent practices or undue tax advantages which hinder legal certainty, fair competition and social protection. |

| | | |
| --- | --- | --- |
| | 1.15. | The EESC welcomes the exemption of small and micro-companies from an evaluation by an independent expert, since the cost for an independent expert report would overburden them. It believes that this report should be only for large companies wishing to engage in cross-border conversions, divisions or mergers. |

| | | |
| --- | --- | --- |
| | 1.16. | The EESC welcomes the intention of the Commission to protect existing workers’ participation rights. However, it would like to see the role of European Works Councils enhanced in the event of large company transformations according to Directive 2009/38/EC. |

| | | |
| --- | --- | --- |
| | 1.17. | The EESC welcomes the introduction of harmonised rules for the protection of minority shareholders and creditors, which did not exist in Directive 2005/56/EC. |

| | | |
| --- | --- | --- |
| | 1.18. | The EESC stresses the need for all digital tools and processes for the purposes of these proposals to be fully accessible, especially to people with visual disabilities. |

2.   The Commission proposals

| | | |
| --- | --- | --- |
| | 2.1. | The Commission has put forward a comprehensive set of measures [(1)](#ntr1-C_2019062EN.01002401-E0001), [(2)](#ntr2-C_2019062EN.01002401-E0002) for fair, enabling and modern company law rules in the EU. |

| | | |
| --- | --- | --- |
| | 2.2. | Currently EU company law [(3)](#ntr3-C_2019062EN.01002401-E0003) includes certain elements of digitalisation, such as the obligation for Member States to make available online information about limited liability companies. However, these requirements are limited and lack precision, leading to a very diverse implementation at national level. |

| | | |
| --- | --- | --- |
| | 2.3. | The proposal [(4)](#ntr4-C_2019062EN.01002401-E0004) aims to provide more digital solutions for companies in the Single Market and more equal opportunities for companies in the EU while ensuring that Members States have the necessary flexibility to adjust their national systems and to maintain their legal traditions. They should enable and promote the use of digital tools and processes in company law without disruption, allowing Member States to transfer their existing systems of ex-ante control into the digital age. |

| | | |
| --- | --- | --- |
| | 2.4. | The overall objective of this proposal is to ensure the smooth functioning of the Single Market for the whole duration of a company’s life-cycle when interacting with authorities concerning company and branch registration and filing of information, covering the entire EU territory. |

| | | |
| --- | --- | --- |
| | 2.5. | The freedom of establishment plays a crucial role in the development of the Single Market as it allows corporate entities to pursue economic activities in other Member States on a stable basis. In practice, the exercise of this freedom by companies remains difficult, in particular for SMEs, as recognised by the 2015 Single Market Strategy [(5)](#ntr5-C_2019062EN.01002401-E0005). However, the legal uncertainty, partial inadequacy and also the lack of rules governing certain cross-border operations of companies means that there is no clear framework to ensure effective protection of these stakeholders. |

| | | |
| --- | --- | --- |
| | 2.6. | A cross-border conversion offers an efficient solution for companies to move to another Member State without losing their legal personality or having to re-negotiate their business contracts. The Court of Justice of the European Union (ECJ) has considered that the freedom of establishment enshrined in Article 49 TFEU entails the right, for companies established in a Member State, to transfer their seat to another Member State through a cross-border conversion without losing their legal personality [(6)](#ntr6-C_2019062EN.01002401-E0006). In its recent Polbud [(7)](#ntr7-C_2019062EN.01002401-E0007) judgment, the ECJ confirmed the right of companies to carry out cross-border conversions on the basis of the freedom of establishment. |

| | | | | | | |
| --- | --- | --- | --- | --- | --- | --- |
| | 2.7. | In line with the ECJ rulings [(8)](#ntr8-C_2019062EN.01002401-E0008), the main objectives of the harmonised rules for cross-border conversions [(9)](#ntr9-C_2019062EN.01002401-E0009) are two-fold: | | | | --- | --- | | — | enabling companies, particularly micro and small, to convert cross-border in an orderly, efficient and effective manner; | | | | | --- | --- | | — | protecting the most affected stakeholders such as employees, creditors and shareholders in a suitable and proportionate manner. | |

| | | |
| --- | --- | --- |
| | 2.8. | The proposal also provides harmonised rules for protection of creditors and shareholders. The company would need to provide the envisaged protection of creditors and shareholders in the draft terms of the cross-border conversion. The rules also complement recent initiatives to strengthen the rules on posted workers and the fight against tax evasion and fraud as well as the Commission’s proposal on a European Labour Authority. |

3.   General comments

| | | |
| --- | --- | --- |
| | 3.1. | Directive (EU) 2017/1132 of the European Parliament and of the Council [(10)](#ntr10-C_2019062EN.01002401-E0010) codifies existing directives on EU company law. The directive entered into force on 20 July 2017 and before a year had passed, the European Commission submitted new proposals for the modernisation of EU company law. |

| | | |
| --- | --- | --- |
| | 3.2. | The EESC welcomes these initiatives of the European Commission, as well as the common agreement between the European institutions and the Member States that digitalisation must proceed in order to fulfil the 2015 Digital Single Market Strategy [(11)](#ntr11-C_2019062EN.01002401-E0011) and the 2016 e-Government Action Plan [(12)](#ntr12-C_2019062EN.01002401-E0012). |

| | | |
| --- | --- | --- |
| | 3.3. | The European Commission’s proposals to amend Directive (EU) 2017/1132 take the necessary steps to put EU companies on a par with the companies of other industrialised states with a strong digital tradition, like the US, Canada, and Australia. Companies need to operate in a certain legal and administrative environment which is adapted to face the new economic and social challenges of a globalised and digital world, while also pursuing other legitimate public interests such as the protection of employees, creditors and minority shareholders and providing authorities with all necessary safeguards to combat fraud or abuse, such as the transfer of fiscal data in the framework of administrative cooperation [(13)](#ntr13-C_2019062EN.01002401-E0013), and to ensure the reliability and trustworthiness of documents and information contained within national registers. |

| | | |
| --- | --- | --- |
| | 3.4. | However, certain amendments must be made in order to alleviate the administrative burden and cost for the implementation of the proposed initiatives for micro or small and medium-sized enterprises. |

3.5.   Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2017/1132 as regards the use of digital tools and processes in company law — COM (2018) 239 final

| | | |
| --- | --- | --- |
| | 3.5.1. | The EESC welcomes this legislative proposal [(14)](#ntr14-C_2019062EN.01002401-E0014) to ensure the smooth functioning of the EU Single Market for the whole duration of a company’s life-cycle when interacting with authorities concerning company and branch registration and filing of information. |

| | | |
| --- | --- | --- |
| | 3.5.2. | The EESC considers that digitalisation of company law is a tool for honest, transparent and efficient processes. It is not an end in itself but must serve the interests of businesses, in particular micro SMEs. Therefore, the legislative proposal on the use of digital tools and processes in company law should implement the aforementioned key features of a modern EU company law in the digital age, namely legal certainty and prevention of abuse, reliable information to include full standards for beneficial ownership, preventive controls and transparent corporate structures through reliable business registers. Only under these conditions can the full potential of digitalisation be tapped and micro SMEs benefit from a ‘digital level playing field’ in order to create growth and jobs in the EU. |

| | | | | | | | | |
| --- | --- | --- | --- | --- | --- | --- | --- | --- |
| | 3.5.3. | The EESC welcomes the recognition and proposed elimination by the European Commission of the existence of obstacles creating unnecessary administrative burden and cost to entrepreneurs who wish to set up a new business or to expand their business by registering their branches. The obstacles to be removed are: | | | | --- | --- | | (a) | Online company or branch registration is allowed, prohibited or imposed by national law causing a diversified picture, which is complex for SMEs [(15)](#ntr15-C_2019062EN.01002401-E0015). | | | | | --- | --- | | (b) | Multiple publication of company data and filing of branch accounts in national gazettes in many Member States, where branches exist. | | | | | --- | --- | | (c) | Diversified conditions under which third parties (investors, citizens, other companies) access company information in the national registers (which information is supplied free of charge and which under payment). | |

| | | | | | | | | |
| --- | --- | --- | --- | --- | --- | --- | --- | --- |
| | 3.5.4. | The EESC considers that furthering digitalisation is very important since: | | | | --- | --- | | (a) | Online registration processes are generally cheaper, quicker and more efficient than those where the applications are made in person and on paper [(16)](#ntr16-C_2019062EN.01002401-E0016). | | | | | --- | --- | | (b) | The initiative is fully coherent with and will build on existing digital elements of EU company law, in particular on the Business Registers Interconnection System (BRIS), which is based on legal obligations set out by Directive 2012/17/EU [(17)](#ntr17-C_2019062EN.01002401-E0017) and the Commission Implementing Regulation (EU) 2015/884 [(18)](#ntr18-C_2019062EN.01002401-E0018). | | | | | --- | --- | | (c) | The current proposal will complement the Commission Proposal for a Regulation on the establishment of a Single Digital Gateway, which covers the online general registration of business activity except for the constitution of limited liability companies. This proposal constitutes a ‘lex specialis’ in relation to the Single Digital Gateway [(19)](#ntr19-C_2019062EN.01002401-E0019). | |

| | | |
| --- | --- | --- |
| | 3.5.5. | Concerns about fraud or abuse, especially with letterbox companies, should not hinder support for the proposal for various reasons. These concerns are left to the Member States to address by regulating the conditions under which companies are set up, including mandatory judicial, notarial and/or administrative control of the company statutes [(20)](#ntr20-C_2019062EN.01002401-E0020). The European Union has already adopted a number of measures to counteract corporate tax avoidance with the mandatory disclosure by intermediaries for tax planning schemes, the transfer of fiscal data in the framework of administrative cooperation [(21)](#ntr21-C_2019062EN.01002401-E0021), as well as the mandatory recognition of e-IDAS compliant electronic identification means of Union citizens issued in another Member State. |

| | | |
| --- | --- | --- |
| | 3.5.6. | The EESC supports, as an ultimate safeguard to avoid fraud, the provision that allows Member States to require the physical presence of relevant persons before a competent authority but only where justified by an overriding reason of public interest. The EESC believes that this digital procedure should not be used by holding companies or in the case of representatives with power of attorney that could disguise the actual interested party and cautions against ‘identity theft’. |

| | | |
| --- | --- | --- |
| | 3.5.7. | The EESC appreciates that the proposal of the European Commission expressly recognises the role the notary plays in many Member States in ensuring legal certainty, providing legal advice and preventing fraud and abuse in an increasingly digitalised economic environment. The EESC believes in particular that the prevention of fraud and abuse does not hinder economic activity but, on the contrary, is a pre-condition for a fair and transparent EU Single Market in which micro SMEs have equal opportunities and can compete for customers in a fair and enabling environment by offering the best products and services to the benefit of all market participants. |

To ensure legal certainty and avoid fraud, Member States should be allowed to provide for preventive controls by competent authorities and/or notaries throughout the entire lifecycle of companies, including where templates are used, provided that the procedure may be carried out fully online. Online submission of documents and the automatic exchange of extracts from the business registers shall not affect the requirements according to the national law in the registration State as to the form and accuracy of the submitted documents.

| | | |
| --- | --- | --- |
| | 3.5.8. | The EESC therefore welcomes the European Commission’s proposal to facilitate digitalisation in company law based on the ‘once only’ principle, which will work on the basis of mutual trust between Member States still applying their national requirements for the formation of a company. |

3.6.   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 — COM(2018) 241 final

| | | |
| --- | --- | --- |
| | 3.6.1. | The proposal aims to establish clear rules and adjust company law to cross-border mobility of companies in the EU. The proposal strikes a careful balance between, on the one hand, specific rules and procedures on cross-border company operations that aim to exploit the potential of the Single Market and, on the other hand, the protection against abuse of all stakeholders affected by company affairs, namely employees, creditors and minority shareholders. |

| | | |
| --- | --- | --- |
| | 3.6.2. | The EESC supports the EU cross-border conversions [(22)](#ntr22-C_2019062EN.01002401-E0022) and the incorporation by the Commission in its proposal of the judgment by the Court of Justice of the EU issued in 2017 on the Polbud case [(23)](#ntr23-C_2019062EN.01002401-E0023). In Polbud, the Court ruled that a national rule which imposes mandatory liquidation as a prerequisite of cross-border transfer of a company is an unjustified and disproportionate restriction and thus incompatible with the freedom of establishment. The general obligation to implement a liquidation procedure imposed by the State amounts to establishing a general presumption of the existence of abuse; such legislation is therefore disproportionate. The transfer of the registered office of such a company, when there is no change in the location of its real head office, falls within the scope of the freedom of establishment protected by EU law. Therefore the ECJ reconfirmed the right of companies to transfer only their registered office, without the real head office, from one Member State to another, even though that company conducts its main, if not entire, business in the first Member State. The purpose of Polbud to enjoy the benefit of a more favourable legislation does not, in itself, constitute abuse of the freedom of establishment. |

| | | |
| --- | --- | --- |
| | 3.6.3. | The EESC supports in principle the establishment of a procedure for making such conversions possible and the adoption of substantive conditions in order to stop the legal uncertainty of diversified national rules which negatively affects companies, stakeholders and Member States. National laws, where they exist, are often incompatible or difficult to combine with one other. Moreover, more than half of the Member States do not allow cross-border conversions. SMEs are in particular negatively impacted since they often lack resources to perform cross-border procedures through costly and complicated alternative methods. |

| | | |
| --- | --- | --- |
| | 3.6.4. | The procedure begins with the competent authority of the departure Member State, which issues a pre-conversion certificate in one month; or, in the event of concerns, the authority proceeds with an in-depth examination for one more month. The procedure ends when the destination Member State, which in the light of all relevant facts and information registers the converted company, if the company fulfils its legislation on registration and workers’ protection. Communication between competent authorities will be facilitated through the system of interconnection of business registers (BRIS). Concerns about worker participation are addressed through their right to be informed and consulted in due time by the company. Protection of workers may also be confirmed by the authority of the destination Member State. An important role is played by the European Works Councils. |

| | | |
| --- | --- | --- |
| | 3.6.5. | The EESC would like to express its reservations about whether a lengthy and costly procedure fulfils the criteria regarding the exercise of the freedom of establishment in another Member State and is compatible with the judgment of the Court of Justice of the EU in Case C-106/16, Polbud. It is important to emphasise that the Court interpreted Article 54 of the Treaty of the Functioning of the EU and applied the general principle of proportionality. Thus the right of a company for cross-border conversion derives from the Treaty itself and the Member States (and the EU institutions) must be careful not to infringe it. Therefore the EESC supports the procedure for the transfer of company seat (cross-border conversion) in the departure Member State but recommends that the procedure in the destination Member State (Article 86p) be limited to an ex-ante control of its requirements for the connection of a converted company to its national legal order [(24)](#ntr24-C_2019062EN.01002401-E0024). There should be, however, a general clause against abuse of the right of establishment of the company. In this way the new procedure will not impose unnecessary burdens beyond its stated aims and at the same time will give the authority to the destination Member State to control abuse even after the conversion. |

| | | |
| --- | --- | --- |
| | 3.6.6. | In addition, clarification is needed on the concept of ‘artificial arrangements’ of a company in a Member State in order to obtain undue tax advantages. This is a concept elaborated mostly by the Court of Justice of the European Union and is included in Recitals and Article 86(c)(3). It is a key concept that will allow or prohibit the freedom of establishment of a company in another Member State. Clear criteria or indicators must be set so that genuine economic activity based on sound economic decisions should not be obstructed according to the Polbud case of the Court of Justice of the European Union. |

| | | | | | | |
| --- | --- | --- | --- | --- | --- | --- |
| | 3.6.7. | Cross-border mergers [(25)](#ntr25-C_2019062EN.01002401-E0025): Τhe proposal builds on the positive experience with Directive 2005/56/EC [(26)](#ntr26-C_2019062EN.01002401-E0026) on cross-border mergers, which deals only with limited liability companies, and addresses its shortcomings. The proposal therefore introduces harmonised substantive rules on protection of creditors and shareholders, while Directive 2005/56/EC provided only for procedural rules, e.g. for the obligation to inform the shareholders, leaving to the Member States the substantive protection. The proposal newly requests that the draft merger terms specify: | | | | --- | --- | | — | Safeguards for creditors: The proposal introduces the presumption that there is no prejudice if creditors are to be paid by a guarantor or by the resulting company, ascertained by an independent expert assessment of their situation. | | | | | --- | --- | | — | The right to exit for shareholders who did not vote or have no voting rights and the right to receive adequate compensation and their right to challenge the proposed share-exchange ratio to national courts. | |

| | | | | | | | | |
| --- | --- | --- | --- | --- | --- | --- | --- | --- |
| | 3.6.8. | The EESC also agrees with other elements of the Commission proposal: | | | | --- | --- | | (a) | Harmonised rules on employee information in a specific and comprehensive way about the implications of cross-border mergers, while Directive 2005/56/EC provided only for participation on the board and their situation to be reflected in the management report. | | | | | --- | --- | | (b) | Harmonised rules for a fast track procedure for less complex mergers or waiver of an independent expert report upon agreement of all shareholders or during a merger of a parent company with a subsidiary. | | | | | --- | --- | | (c) | Interconnection of business registers for exchange of information — use of digital tools. | |

| | | |
| --- | --- | --- |
| | 3.6.9. | Cross-border divisions [(27)](#ntr27-C_2019062EN.01002401-E0027): These are subject to diverse or incompatible national rules in only 13 Member States, without any EU harmonisation despite their importance for growth. In order to prevent abuse and protect stakeholders an EU legal framework must be introduced for limited liability companies, similar to cross-border conversions. A two stage procedure must be established. In the first stage the division terms are drafted together with two fully explained reports, on the implications of the division to creditors and to employees. In addition, an independent expert report is needed for medium and large enterprises. This is only a first step and the EESC believes that the proposal should also cover cross-border division by acquisition of assets/liabilities of existing company/-ies, and not only the case where new companies are created. |

| | | |
| --- | --- | --- |
| | 3.6.10. | Currently, national rules differ greatly between Member States and sometimes impose excessive administrative procedures which the Commission needs to mitigate throughout the new proposal in order not to discourage businesses from pursuing new opportunities. Though the EESC is in support of the new rules and procedures, these must however be carefully scrutinised so that they will not incur extra administrative burden and cost, which goes beyond the goals they serve on protection of employees, creditors and shareholders. |

| | | |
| --- | --- | --- |
| | 3.6.11. | The EESC welcomes the exemption of small and micro-companies in Article 86(g) of the proposal from an examination by the independent expert, since the cost for an independent expert report would overburden micro and small and medium-sized enterprises. |

| | | |
| --- | --- | --- |
| | 3.6.12. | The EESC wants to emphasise the role of independent experts in revealing fraud only in large companies during the examination and collection of the company documents in a written report, provided that certain requirements are fulfilled, e.g. for an effective internal control structure and standard operating procedures to prevent and mitigate possible conflicts of interest and to ensure the independence of reports regarding stakeholders. |

| | | |
| --- | --- | --- |
| | 3.6.13. | The EESC strongly supports the proposal of the European Commission which establishes for the first time the procedure for cross-border conversion and complements the already established procedures of cross-border mergers and divisions by enhancing protection of the stakeholders. However, the resulting differences between the procedures of the cross-border merger on the one hand and the cross-border conversion and division on the other may affect the relative attractiveness of the latter. The EESC suggests that the Commission analyses these effects. |

| | | |
| --- | --- | --- |
| | 3.6.14. | The EESC welcomes the intention of the Commission to protect existing workers’ participation rights. The EESC believes that in the company resulting from a cross border conversion, at least, the same level of all elements of employee participation as laid down in the law of the departure Member State must continue to apply, along the lines of the procedure and the standard rules provided for in Directive 2001/86/EC [(28)](#ntr28-C_2019062EN.01002401-E0028). |

| | | |
| --- | --- | --- |
| | 3.6.15. | The EESC emphasises the signifant role played by European Works Councils set up in large size companies to be transformed and requests their enhanced involvement, according to Directive 2009/38/EC [(29)](#ntr29-C_2019062EN.01002401-E0029). |

| | | |
| --- | --- | --- |
| | 3.7. | As a general remark, the EESC stresses the need for all digital tools and processes for the purposes of these proposals to be fully accessible to people with disabilities, and especially to those with visual disabilities. |

Brussels, 17 October 2018.

The President of the European Economic and Social Committee

Luca JAHIER

---

[(1)](#ntc1-C_2019062EN.01002401-E0001)  COM(2018) 239 final,

[(2)](#ntc2-C_2019062EN.01002401-E0002)  COM(2018) 241 final

[(3)](#ntc3-C_2019062EN.01002401-E0003)  Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law ([OJ L 169, 30.6.2017, p. 46](http://publications.europa.eu/resource/oj/JOL_2017_169_R_TOC)).

[(4)](#ntc4-C_2019062EN.01002401-E0004)  COM(2018) 239 final.

[(5)](#ntc5-C_2019062EN.01002401-E0005)  COM(2015) 550 final.

[(6)](#ntc6-C_2019062EN.01002401-E0006)  Cartesio, C-210/06, EU:C:2008:723, paragraphs 109 to 112; VALE, C-378/10, EU:C:2012:440, paragraph 32.

[(7)](#ntc7-C_2019062EN.01002401-E0007)  Polbud — Wykonawstwo, Case C-106/16, ECLI:EU:C:2017:804.

[(8)](#ntc8-C_2019062EN.01002401-E0008)  Please see footnotes 6 and 7.

[(9)](#ntc9-C_2019062EN.01002401-E0009)  COM(2018) 241 final.

[(10)](#ntc10-C_2019062EN.01002401-E0010)  [OJ L 169, 30.6.2017, p. 46](http://publications.europa.eu/resource/oj/JOL_2017_169_R_TOC).

[(11)](#ntc11-C_2019062EN.01002401-E0011)  COM(2015) 192 final.

[(12)](#ntc12-C_2019062EN.01002401-E0012)  COM(2016) 179 final.

[(13)](#ntc13-C_2019062EN.01002401-E0013)  Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC ([OJ L 64, 11.3.2011, p. 1](http://publications.europa.eu/resource/oj/JOL_2011_064_R_TOC)).

[(14)](#ntc14-C_2019062EN.01002401-E0014)  COM(2018) 239 final.

[(15)](#ntc15-C_2019062EN.01002401-E0015)  COM(2018) 241, p. 3.

[(16)](#ntc16-C_2019062EN.01002401-E0016)  COM(2018) 241, p. 5.

[(17)](#ntc17-C_2019062EN.01002401-E0017)  [OJ L 156, 16.6.2012, p. 1](http://publications.europa.eu/resource/oj/JOL_2012_156_R_TOC).

[(18)](#ntc18-C_2019062EN.01002401-E0018)  [OJ L 144, 10.6.2015, p. 1](http://publications.europa.eu/resource/oj/JOL_2015_144_R_TOC).

[(19)](#ntc19-C_2019062EN.01002401-E0019)  COM(2017) 256 final.

[(20)](#ntc20-C_2019062EN.01002401-E0020)  Article 10 of the codified company law Directive (EU) 2017/1132.

[(21)](#ntc21-C_2019062EN.01002401-E0021)  Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC ([OJ L 64, 11.3.2011, p. 1](http://publications.europa.eu/resource/oj/JOL_2011_064_R_TOC)).

[(22)](#ntc22-C_2019062EN.01002401-E0022)  An operation whereby a company formed and registered in accordance with the law of a Member State converts into another company formed and registered in accordance with the law of another Member State retaining its legal personality and without being wound up or going into liquidation.

[(23)](#ntc23-C_2019062EN.01002401-E0023)  Case C-106/16. ECLI:EU:C:2017:804. Polbud was a company established in Poland which decided to transfer is the company’s registered office to Luxembourg, without a change in the location of the real head office of the company. The opening of a liquidation procedure was recorded in the Polish commercial register and a liquidator was appointed. In 2013 the registered office of Polbud was transferred to Luxembourg. Polbud then became ‘Consoil Geotechnik Sàrl’, a company under Luxembourg law. Further, Polbud lodged an application at the Polish registry court for its removal from the Polish commercial register. The registry court refused the application for removal. Polbud brought an action against that decision. The Supreme Court of Poland, before which an appeal has been brought, first asks the Court of Justice whether freedom of establishment is applicable to the transfer of only the registered office of a company incorporated under the law of one Member State to the territory of another Member State, where that company is converted to a company under the law of that other Member State, when there is no change of location of the real head office of that company. See also https://curia.europa.eu/jcms/upload/docs/application/pdf/2017-10/cp170112en.pdf

[(24)](#ntc24-C_2019062EN.01002401-E0024)  Judgments of the Court in case, C-378/10, Vale Epitesi, EU:C:2012:440, para. 31 and Polbud case C-106/16, ECLI:EU:C:2017:804, paras 33, 35, 44.

[(25)](#ntc25-C_2019062EN.01002401-E0025)  An operation whereby two or more companies from two or more Member States transfer their assets and liabilities to an existing (acquiring) or a new company.

[(26)](#ntc26-C_2019062EN.01002401-E0026)  Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies. It is now part of the 2017 Codification Directive.

[(27)](#ntc27-C_2019062EN.01002401-E0027)  An operation whereby a company splits and transfers all or some of its assets and liabilities to existing or new company/companies in another Member State.

[(28)](#ntc28-C_2019062EN.01002401-E0028)  Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees ([OJ L 294, 10.11.2001 p. 22](http://publications.europa.eu/resource/oj/JOL_2001_294_R_TOC)).

[(29)](#ntc29-C_2019062EN.01002401-E0029)  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](http://publications.europa.eu/resource/oj/JOL_2009_122_R_TOC)).

---