CELEX: 51991PC0174
Language: en
Date: 1991-05-06
Title: AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE COMPLEMENTING THE STATUTE FOR A EUROPEAN COMPANY WITH REGARD TO THE INVOLVEMENT OF EMPLOYEES IN THE EUROPEAN COMPANY

N o C 138/8                          Official Journal of the European Communities                             29. 5. 91
                                                COMMISSION
               Amended proposal for a Council Directive complementing the Statute for a European company
                          with regard to the involvement of employees in the European company
                                                       (91/C 138/08)
                                              COM(91) 174 final — SYN 219
               (Submitted by the Commission pursuant to Article 149 (3) of the EEC Treaty on 6 April 1991)
                      ORIGINAL PROPOSAL                                             AMENDED PROPOSAL
Proposal for a Council Directive complementing the              Amended proposal for a Council Directive comple­
Statute for a European company with regard to the invol­         menting the Statute for a European company with regard
     vement of employees in the European company                 to the involvement of employees in the European
                                                                                         company
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                        THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European           Unchanged
Economic Community, and in particular Article 54
thereof,
Having regard to the proposal from the Commission,              Unchanged
In cooperation with the European Parliament,                    Unchanged
Having regard to the opinion of the Economic and                Unchanged
Social Committee,
Whereas, in order to attain the objectives set out in           Unchanged
Article 8a of the Treaty, Council Regulation (EEC)
N o . . . establishes a Statute for a European company
(SE);
Whereas, in order to promote the economic and social           Unchanged
objectives of the Community, arrangements should be
made for employees to participate in the supervision and
strategic development of the SE;
Whereas the great diversity of rules and practices              Unchanged
existing in the Member States as regards the manner in
which employees' representatives participate in super­
vision of the decisions of the governing bodies of public
limited companies makes it impossible to lay down
uniform rules on the involvement of employees in the
SE;
 ---pagebreak--- 29. 5. 91                              Official Journal of the European Communities                            N o C 138/9
                      ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
Whereas the laws of the Member States should therefore            Unchanged
be coordinated with a view to making equivalent the
safeguards required for the protection of the interests of
members and third persons, of public limited companies
in each Member State, with due regard to the specific
characteristics of the operation of such companies having
their registered office in its territory; whereas such
coordination must take account of the fact that an SE is
created by a restructuring or cooperation operation
involving companies governed by the law of at least two
Member States;
Whereas account should be taken of the specific charac-          Unchanged
teristics of the laws of the Member States by establishing
for the SE a framework comprising several models of
participation, and authorizing, first, Member States to
choose the model best corresponding to their national
traditions, and, secondly, the management or the
administrative board, as the case may be, and the
representatives of the employees of the SE or of its
founder companies t o choose the model most suited to
their social environment;
                                                                  Whereas in order to ensure the proper operation of the
                                                                  internal market and to avoid any inequality in the terms
                                                                  of competition the different models of participation
                                                                  should guarantee equivalent levels of participation and
                                                                  comparable influence to the employees of all SEs;
Whereas the provisions of this Directive form an indisso-         Unchanged
ciable complement to the provisions of Regulation (EEC)
N o . . . and it is therefore necessary to ensure that the
two sets of provisions are applied concomitantly,
HAS ADOPTED THIS DIRECTIVE:                                       HAS ADOPTED THIS DIRECTIVE:
                           Article 1                                                      Article 1
T h e coordination measures prescribed by this Directive          Unchanged
shall apply to the laws, regulations and administrative
provisions in the Member States concerning the invol­
vement of employees in the SE.
These measures are an essential supplement to Regu­               Unchanged
lation (EEC) N o . . . on the Statute for a European
company.
 ---pagebreak--- N o C 138/10                          Official Journal of the European Communities                                     29. 5. 91
                     ORIGINAL PROPOSAL                                                     AMENDED PROPOSAL
                          TITLE 1                                                              TITLE I
            MODELS O F PARTICIPATION                                              MODELS O F PARTICIPATION
                           Article 2                                                           Article 2
Member States shall take the necessary measures t o             Unchanged
enable employees of the SE t o participate in the super­
vision and strategic development of the SE in accordance
with the provisions of this Directive.
                           Article 3                                                           Article 3
1.    Subject t o the application of paragraph 5, the             1.      Subject t o the application of paragraph 5, the
participation of SE employees prescribed by Article 2            participation of SE employees prescribed by Article 2
shall be determined in accordance with one of the                shall be determined in accordance with one of the
models set o u t in Articles 4, 5 and 6 by , means of an         models set out in Articles 4, 5 and 6 b y means of an
agreement concluded between the management boards                agreement concluded between the management o r
and the administrative boards of the founder companies           administrative boards of the founder companies o r other
and the representatives of the employees of those                founder bodies and the representatives of the employees
companies provided f o r by the laws and practices of the        of those companies o r other founder bodies provided f o r
Member States. W h e r e n o agreement can be reached the        by the laws and practices of the Member States. With a
management and administrative boards shall choose the            view t o reaching such an agreement, and subject t o the
model applicable t o the SE.                                     national measures taken under Council Directive
                                                                 7 7 / 1 8 7 / E E C of 14 February 1977 on the approximation
                                                                 of the laws of the Member States relating t o the safe­
                                                                 guarding of employees' rights in the event of transfers of
                                                                 undertakings, businesses o r parts of businesses, the
                                                                 parties t o this negotiation shall consider the legal,
                                                                 economic and social consequences of the formation of
                                                                 the SE and any measures t o be taken with respect t o the
                                                                 employees in order t o arrive at an agreement o n the
                                                                 model of participation which is t o apply t o the SE. T h e
                                                                 agreement must be concluded before the decision t o
                                                                 form the SE. T h e agreement shall be in writing.
                                                                 la.      Where n o such agreement can be reached the
                                                                 employees' representatives may make a written statement
                                                                 setting o u t w h y in their opinion the formation of the SE
                                                                 is contrary t o the employees' interests and what measures
                                                                 should be taken with respect t o the employees.
                                                                 lb.      T h e management o r administrative boards of the
                                                                founder companies o r other founder bodies shall draw
                                                                u p f o r submission t o the general meeting called t o
                                                                approve the formation of the SE a report t o which is
                                                                attached either
                                                                — the text of the agreement referred t o in paragraph 1,
                                                                      or
                                                                — the statement by the employees' representatives which
                                                                      is referred t o in paragraph 1 a.
 ---pagebreak---  29. 5. 91                              Official Journal of the European Communities                               N o C 138/11
                        ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
 2.     An SE may not be formed unless one of the models           2.     T h e general meeting called t o approve the
 referred t o in Articles 4, 5 and 6 has been chosen.              formation of the SE shall ratify the model of partici­
                                                                   pation chosen in the agreement referred t o in paragraph
                                                                   1, o r where n o agreement has been reached shall choose
                                                                   the model of participation which is t o apply t o the SE o n
                                                                   the basis of the report referred t o in paragraph l b and of
                                                                   the statement by the employees' representatives. An SE
                                                                   may n o t be registered in accordance with Article 8 of
                                                                   Regulation (EEC) N o . . . unless a model of partici­
                                                                   pation has been chosen.
 3.     Subject t o the application of paragraph 5, the            3.     Subject t o the application of paragraph 5, the
 chosen model may be replaced by another model in                  chosen model may be replaced by another model in
 Articles 4, 5 and 6 by an agreement concluded between             Articles 4, 5 and 6 by an agreement concluded between
 the management o r the administrative board and the               the management o r the administrative board and the
^ representatives of the employees of the SE. This                 representatives of the employees of the SE.
 agreement must be submitted f o r the approval of the
 general meeting.
 4.     Each Member State shall determine the manner in            Unchanged
 which the participation models shall be applied f o r SEs
 having their registered office in its territory.
 5.     A Member State may restrict the choice of the              Unchanged
 models referred t o in Articles 4, 5 and 6 o r make only
 one of these models compulsory f o r SEs having their
 registered office in its territory.
                                                                   6.     T h e procedure laid down in this Article shall apply
                                                                   in the event of transformation under Article 2 (3) of
                                                                   Regulation (EEC) N o . . .
                                                                   7.     In the event of a transfer of the registered office of
                                                                   an SE t o another Member State, the model of partici­
                                                                   pation applied before the transfer may be altered only in
                                                                   accordance with the procedure set out in this Article.
                                                                   T h e parties t o the negotiation shall here be the
                                                                   management board o r the administrative board of the SE
                                                                   and the representatives of the employees of the SE.
                           SECTION I                                                         SECTION 1
 SUPERVISORY BOARD OR ADMINISTRATIVE BOARD                         SUPERVISORY BOARD OR ADMINISTRATIVE BOARD
                             Article 4                                                        Article 4
 T h e appointment of members of the supervisory board o r         T h e appointment and removal of members of the super­
 the administrative board, as the case may be, shall be            visory board (in the two-tier board system) o r the
 governed b y the following rules:                                 administrative board (in the one-tier board system) shall
                                                                   be governed by the following rules:
 — at least one third and not more than one half of them            I. at least one third and n o t more than one half of them
      shall be appointed by the employees of the SE o r                shall be appointed and removed by the employees of
      their representatives in that company, o r                       the SE o r their representatives in that company, o r
 ---pagebreak--- N o C 138/12                           Official Journal of the European Communities                                   29. 5. 91
                     ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
    they shall be co-opted by the board. However, the             II. they shall be appointed and removed by the super­
    general meeting of shareholders o r the represen­                 visory board o r administrative board itself, subject t o
    tatives of the employees may, o n specific grounds,               point (d). However,
    object t o the appointment of a particular candidate.
    In such cases the appointment may n o t be made until             (a) the general meeting and the representatives of the
    an independent body established under public law has                  employees of the SE shall alike be entitled t o
    declared the objection inadmissible.                                  nominate candidates t o the supervisory board o r
                                                                          the administrative board;
                                                                      (b) the general meeting and the representatives of the
                                                                          employees of the SE shall alike be entitled t o
                                                                          object t o the appointment of a particular
                                                                          candidate:
                                                                          — o n the ground that he is incapable             of
                                                                              performing the duties of the position,
                                                                          — o n the ground that if he were appointed the
                                                                              board would, having regard t o the interests of
                                                                              the SE, its shareholders and its employees, be
                                                                              improperly constituted, o r
                                                                          — o n the ground that the procedure set out here
                                                                              has not been complied with;
                                                                      (c) where such an objection is put forward the
                                                                          candidate nominated may not be appointed until
                                                                          a court, administrative authority o r other inde­
                                                                          pendent body has declared the objection
                                                                          unfounded;
                                                                      (d) the first members of the supervisory board o r of
                                                                          the administrative board shall be appointed by the
                                                                          general meeting. However, the representatives of
                                                                          the employees of the SE may nominate
                                                                          candidates f o r appointment by the general
                                                                          meeting, and may object t o the appointment of a
                                                                          candidate nominated by the general meeting o n
                                                                          any of the grounds listed in point (b). W h e r e an
                                                                          objection is put forward by the general meeting
                                                                          o r by the employees' representatives, point (c)
                                                                          shall apply.
                        SECTION II                                                         SECTION 2
                     SEPARATE BODY                                                     SEPARATE BODY
                          Article 5                                                         Article 5
1.    A separate body shall represent the employees of            1.    A body hereinafter referred t o as the 'separate
the SE. T h e number of members of that body and the              body' shall represent the employees of the SE.
detailed rules governing their election o r appointment
shall be laid down in the statutes in consultation with the
representatives of the employees of the founder
companies in accordance with the laws o r practices of
the Member States.
 ---pagebreak---  29. 5. 91                            Official Journal of the European Communities                           N o C 138/13
                      ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
 2. The body representing the employees shall have the           2. The management board or the administrative board
 right:                                                          of the SE shall at least every three months inform the
                                                                 separate body of the progress of the SE's business and of
 (a) at least once every three months, to be informed by         its prospects taking account of any information on any
     the management board or the administrative board            undertakings controlled by the SE which might have an
     of the progress of the company's business, including        appreciable impact on the progress of the SE's business.
     that of undertakings controlled by it, and of its
     prospects;
 (b) where it is necessary for the performance of its
     duties, to require from the management board or the
     administrative board a report concerning certain of
     the company's business or any information or
     documents;
 (c) to be informed and consulted by the management
     board or the administrative board before any
     decision referred to in Article 72 of Regulation
     (EEC) N o . . . is implemented.
                                                                 2a. The management board o r the administrative
                                                                 board shall without delay supply to the separate body
                                                                 any information which may have significant implications
                                                                 for the SE's situation.
                                                                 2b. The separate body may at any time require from
                                                                the management board or the administrative board infor­
                                                                mation or a special report on any matter concerning
                                                                conditions of employment.
                                                                2c.     Each member of the separate body shall be
                                                                entitled to examine all documents submitted t o the
                                                                general meeting.
                                                                2d. The operations referred to in Article 72 (1) of
                                                                Regulation (EEC) N o . . . may be effected only after the
                                                                separate body has been informed and consulted by the
                                                                management board or the administrative board of the
                                                                SE.
3.    Article 74 (3) of that Regulation shall apply to          3.    Article 74 (3) of Regulation (EEC) N o . . . shall
members of the separate body.                                   apply to members of the separate body.
                         SECTION 3                                                       SECTION 3
                      OTHER MODELS                                                   OTHER MODELS
                          Article 6                                                       Article 6
1.    Models other than those referred to in Articles 4         1.    Models other than those referred to in Articles 4
and 5 may be established by means of an agreement               and 5 may be established by means of an agreement
concluded between the management boards and the                 concluded between the management board or the
administrative boards of the founder companies and the          administrative board of the SE and the representatives of
employees or their representatives in those companies.          the employees of the SE.
2. The agreement reached shall provide at least for             2. The agreement reached shall assure the represen­
the employees of the SE o r their representatives:              tatives of the employees of the SE at least:
 ---pagebreak---   N o C 138/14                          Official Journal of the European Communities                                  29. 5. 91
                        ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
  (a) once every three months, to be informed of the               (a) the quarterly information referred to in Article 5 (2);
      progress of the company's business, including that of
      undertakings controlled by it, and of its prospects;
  (b) to be informed and consulted before any decision             (b) the information referred to in Article 5 (2a) and
      referred to in Article 72 of Regulation (EEC)                    (2b);
      N o . . . is implemented.
                                                                   (c) the information and consultation referred to in
                                                                       Article 5 (2d);
                                                                   (d) entitlement to examine all documents submitted to
                                                                       the general meeting.
 3. Where the agreement provides for a collegiate body            Deleted
 representing the employees, that body may require the
 management board or the administrative board to
 provide the information necessary for the performance of
 its duties.
4. The agreement shall provide that the employees'                4. The agreement shall provide that the employees'
representatives must observe the necessary discretion in          representatives are to be under a duty of discretion in
relation to any confidential information they hold on the         relation to any confidential information they hold on the
SE. They shall be bound by this obligation even after             SE. They shall be bound by this obligation even after
their duties have ceased.                                         their duties have ceased.
5.      If the law of the State where the SE has its              Deleted
registered office so permits, the agreement may permit
the management board or the administrative board of the
SE to withhold from the employees or their represen­
tatives any information the disclosure of which might
seriously jeopardize the interests of the SE or disrupt its
projects.
6. The parties to the negotiations may be assisted by            Deleted
experts of their choice at the expense of the founder
companies.
7. The agreement may be concluded for a fixed                    Unchanged
period and renegotiated upon expiry of that period.
However, the agreement concluded shall remain in force
until the entry into force of the new agreement.
8. Where the two parties to the negotiations so                   8. Where the two parties to the negotiations so
decide, o r where no agreement such as is mentioned in            decide, or where no agreement such as is mentioned in
paragraph 1 can be reached, a standard model, provided            paragraph 1 can be reached, a standard model, provided
by the law of the State where the SE has its registered           by the law of the State where the SE has its registered
office, shall apply to the SE. This model shall be in             office, shall apply to the SE. This model shall guarantee
conformity with the most advanced national practices              for the employees at least the rights of information and
and shall ensure for the employees at least the rights of         consultation provided for by this Article.
information and consultation provided for by this Article.
 ---pagebreak--- 29. 5. 91                             Official Journal of the European Communities                             N o C 138/15
                      ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
                         SECTION 4                                                        SECTION 4
ELECTION OF THE REPRESENTATIVES OF THE                           ELECTION OF THE REPRESENTATIVES OF THE
                 EMPLOYEES OF THE SE                                              EMPLOYEES OF THE SE
                          Article 7                                                         Article 7
The representatives of the employees of the SE shall be           1. T h e representatives of the employees of the SE
elected in accordance with systems which take into               shall be elected in accordance with the laws or practices
account, in an appropriate manner, the number of staff           of the Member States, and in compliance with the
they represent.                                                  following principles:
All employees must be able to participate in the vote.           (a) representatives of the employees must be elected in
                                                                     each Member State in which the SE has an estab­
                                                                     lishment;
T h e election shall be conducted in accordance with the         (b) the number of representatives so elected must so far
laws or practices of the Member States.                              as it is practicable be proportional to the number of
                                                                     employees they represent;
                                                                 (c) all employees must be able t o participate in the vote,
                                                                     irrespective of their length of service or the number
                                                                     of hours they work per week;
                                                                 (d) the election shall be by secret ballot.
                                                                2. The         employees'     representatives elected     in
                                                                 accordance with paragraph 1 may perform their
                                                                 functions within the SE irrespective of the rules
                                                                 governing qualification as an employees' representative
                                                                 in the legislation of the Member State in which the SE
                                                                 has its registered office.
                          Article 8                                                        Article 8
The first members of the supervisory board or the               Deleted
administrative board t o be appointed by the employees
and the first members of the separate body representing
the employees shall be appointed by the representatives
of the employees of the founder companies in proportion
t o the number of employees they represent and in
accordance with the laws o r practices of the Member
States. Those first members shall remain in office until
such time as the requirements for electing the represen­
tatives of the employees of the SE are satisfied.
 ---pagebreak---   N o C 138/16                         Official Journal of the European Communities                                     29. 5. 91
                      ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
                         SECTION 5                                                          SECTION 5
                           Article 9                                                         Article 9
  1. T h e management board o r the administrative board           1.   T h e management board o r the administrative board
 of the SE shall provide the representatives of the               of the SE shall provide the representatives of the
 employees with such financial and material resources as          employees with such financial and material resources and
 enable them t o meet and perform their duties in an              other facilities as enable them t o meet and perform their
 appropriate manner.                                              duties in an appropriate manner at the SE's registered
                                                                  office and in any establishment of the SE in the same o r
                                                                  another Member State without loss of salary o r adverse
                                                                  effect o n their advancement.
 2.   T h e practical arrangements f o r making available         2.   T h e facilities referred t o in paragraph 1 shall
 such financial and material resources shall be settled in        include the right t o be assisted by experts of their choice
 consultation with the representatives of the employees of        at the SE's expense.
 the SE.
                         SECTION 6                                                         SECTION 6
 REPRESENTATION OF EMPLOYEES IN THE ESTAB­                        REPRESENTATION OF EMPLOYEES IN THE ESTAB­
                  LISHMENTS OF THE SE                                               LISHMENTS OF THE SE
                          Article 10                                                        Article 10
 Save as otherwise provided in this Directive, the status        Save as otherwise provided in this Directive, the laws o r
 and duties of the representatives of the employees o r of       practices of the Member States governing the status and
 the body which represents them, f o r which provision is        duties of the representatives of the employees o r of the
 made in the establishments of the SE, shall be                  body which represents them shall apply in the estab­
 determined by the laws o r practices of the Member              lishments of the SE.
 States.
                          TITLE 2                                                           TITLE 2
EMPLOYEE PARTICIPATION I N T H E CAPITAL                         EMPLOYEE PARTICIPATION I N T H E CAPITAL
     O R I N T H E PROFIT O R LOSS O F T H E SE                       O R I N T H E PROFIT O R LOSS O F T H E SE
                        SECTION 1                                                          SECTION 1
                         Article 11                                                         Article 11
Employee participation in the capital o r in the profits o r     T h e management board o r the administrative board and
losses of the SE may be organized by means of a                  the employees' representatives may negotiate and
collective agreement negotiated and concluded by the             conclude collective agreements o n matters of concern t o
management boards and the administrative boards of the           the SE's employees, including mechanisms f o r partici­
founder companies, o r of the SE when constituted, and           pation in the capital and profits of the SE.
the employees o r their representatives w h o are duly
authorized t o negotiate in those companies.
 ---pagebreak--- 29. 5. 91                            Official Journal of the European Communities                               N o C 138/17
                    ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
                                                                                           Article 11a
                                                                1.     A Contact Committee serviced by the Commission
                                                                shall be set u p upon the adoption of this Directive. Its
                                                                function shall be:
                                                                (a) without prejudice t o Articles 169 and 170 of the
                                                                     Treaty, t o facilitate the application of this Directive
                                                                     through regular consultation dealing in particular
                                                                     with practical problems arising f r o m its implemen­
                                                                     tation ;
                                                                (b) t o advise the Commission, if necessary, o n additions
                                                                     o r amendments t o be made t o this Directive.
                                                                2.    T h e Contact Committee shall be composed of
                                                                representatives of the Member States, of the social
                                                                partners and of the Commission. T h e chairman shall be a
                                                                representative of the Commission, which shall also
                                                                provide secretarial services.
                                                                3.    T h e Contact Committee shall be convened by its
                                                                chairman either o n his own initiative o r at the request of
                                                                one of its members.
                       SECTION 2                                                          SECTION 2
                   FINAL PROVISIONS                                                  FINAL PROVISIONS
                        Article 12                                                         Article 12
1.    Member States shall bring into force the laws,            1. T h e Member States shall bring into force the laws,
regulations and administrative provisions necessary t o         regulations and administrative provisions necessary t o
comply with this Directive by 1 January 1992. T h e y shall     comply with this Directive by 1 January 1993. T h e y shall
immediately communicate the measures taken t o the              immediately communicate the measures taken t o the
Commission.                                                     Commission.
T h e provisions adopted pursuant t o the first                 1 a.     W h e n Member States adopt these provisions, these
subparagraph shall make express reference t o this              shall contain a reference t o this Directive o r shall be
Directive.                                                      accompanied b y such reference at the time of their
                                                                official publication. T h e procedure f o r such reference
                                                                shall be adopted by the Member States.
2.    Member States shall communicate t o the                  Unchanged
Commission the main provisions of domestic law which
they adopt in the field covered by this Directive
                        Article 13                                                         Article 13
This Directive is addressed t o the Member States.              Unchanged