Considerations on COM(2018)241 - Amendment of Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions - Main contents
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| dossier | COM(2018)241 - Amendment of Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions. |
|---|---|
| document | COM(2018)241  |
| date | November 27, 2019 |
| (2) | Freedom of establishment is one of the fundamental principles of Union law. Under the second paragraph of Article 49 of the Treaty on the Functioning of the European Union (‘TFEU’), when read in conjunction with Article 54 of the TFEU, the freedom of establishment for companies or firms includes, inter alia, the right to form and manage such companies or firms under the conditions laid down by the legislation of the Member State of establishment. This has been interpreted by the Court of Justice of the European Union as encompassing the right of a company or firm formed in accordance with the legislation of a Member State to convert itself into a company or firm governed by the law of another Member State, provided that the conditions laid down by the legislation of that other Member State are satisfied and, in particular, that the test adopted by the latter Member State to determine the connection of a company or firm with its national legal order is satisfied. |
| (3) | In the absence of harmonisation of Union law, defining the connecting factor that determines the national law applicable to a company or firm falls, in accordance with Article 54 of the TFEU, within the competence of each Member State. Article 54 of the TFEU places the connecting factors of the registered office, the central administration and the principal place of business of a company or firm on an equal footing. Therefore, as clarified in case-law, the fact that only the registered office, and not the central administration or principal place of business, is transferred does not as such exclude the applicability of the freedom of establishment under Article 49 of the TFEU. |
| (4) | Developments in the case-law have opened up new opportunities for companies in the internal market to foster economic growth, effective competition and productivity. At the same time, the objective of an internal market without internal borders for companies has also to be reconciled with other objectives of European integration, such as social protection as set out in Article 3 of the Treaty on European Union (TEU) and Article 9 of the TFEU, as well as the promotion of social dialogue as set out in Articles 151 and 152 of the TFEU. The rights of companies to convert, merge and divide across borders should go hand in hand, and be properly balanced, with the protection of employees, creditors and members. |
| (5) | The lack of a legal framework for cross-border conversions and divisions leads to legal fragmentation and legal uncertainty, and thus to barriers to the exercise of the freedom of establishment. It also leads to the suboptimal protection of employees, creditors and minority members within the internal market. |
| (6) | The European Parliament has called upon the Commission to adopt harmonised rules on cross-border conversions and divisions. A harmonised legal framework would further contribute to the removal of restrictions on the freedom of establishment while at the same time providing adequate protection for stakeholders such as employees, creditors and members. |
| (7) | The Commission announced in its Communication of 28 October 2015 entitled ‘Upgrading the Single Market: more opportunities for people and business’ that it would assess the need to update the existing rules on cross-border mergers in order to make it easier for SMEs to choose their preferred business strategies and to better adapt to changes in market conditions, but without weakening existing employment protection. In its Communication of 25 October 2016 entitled ‘Commission Work Programme 2017: Delivering a Europe that protects, empowers and defends’, the Commission announced an initiative to facilitate cross-border mergers. |
| (8) | In addition to new rules on conversions, this Directive lays down rules on cross-border divisions, both for partial and full divisions, but those rules only relate to cross-border divisions that involve the formation of new companies. This Directive does not provide a harmonised framework for cross-border divisions in which a company transfers assets and liabilities to one or more existing companies, as such cases have been viewed as being very complex, requiring the involvement of competent authorities from several Member States and entailing additional risks in terms of the circumvention of Union and national rules. The possibility of forming a company through a division by separation as provided for in this Directive offers companies a new harmonised procedure in the internal market. However, companies should be free to directly set up subsidiaries in other Member States. |
| (9) | This Directive should not apply to companies in liquidation where the distribution of assets has begun. In addition, Member States should be able to choose to exclude companies subject to other liquidation proceedings from the application of this Directive. Member States should also be able to choose not to apply this Directive to companies subject to insolvency proceedings, as defined by national law, or to preventive restructuring frameworks, as defined by national law, irrespective of whether such proceedings are part of a national insolvency framework or regulated outside of it. Also, Member States should be able to choose not to apply this Directive to companies that are subject to crisis prevention measures as defined in Directive 2014/59/EU of the European Parliament and of the Council (4). This Directive should be without prejudice to Directive (EU) 2019/1023 of the European Parliament and of the Council (5). |
| (10) | Given the complexity of cross-border conversions, mergers and divisions (collectively, ‘cross-border operations’) and the multitude of the interests concerned, it is appropriate to provide for the scrutiny of the legality of cross-border operations before they take effect, in order to provide legal certainty. To that effect, the competent authorities of the Member States involved should ensure that a decision on the approval of a cross-border operation is taken in a fair, objective and non-discriminatory manner and on the basis of all relevant elements required by Union and national law. |
| (11) | This Directive should be without prejudice to Member States’ powers to provide strengthened protection for employees in accordance with the existing social acquis. |
| (12) | To allow all stakeholders’ legitimate interests to be taken into account in the procedure governing a cross-border operation, the company should draw up and disclose the draft terms of the proposed operation, containing the most important information about it. The administrative or management body should, where provided for in national law or in accordance with national practice, or both, include board level employee representatives in the decision on the draft terms of a cross-border operation. Such information should at least include the legal form envisaged for the company or companies, the instrument of constitution where applicable, the statutes, the proposed indicative timetable for the operation and details of any safeguards offered to members and creditors. A notice should be disclosed in the register informing the members, creditors and representatives of the employees, or, where there are no such representatives, the employees themselves, that they may submit comments with regard to the proposed operation. Member States could also decide that the independent expert report required by this Directive has to be disclosed. |
| (13) | In order to provide information to its members and employees, the company carrying out the cross-border operation should prepare a report for them. The report should explain and justify the legal and economic aspects of the proposed cross-border operation and the implications of the proposed cross-border operation for employees. In particular, the report should explain the implications of the cross-border operation with regard to the future business of the company, including its subsidiaries. As far as members are concerned, the report should include remedies available to them, especially information about their right to exit the company. For employees, the report should explain the implications of the proposed cross-border operation on the employment situation. In particular, the report should explain whether there would be any material change to the employment conditions laid down by law, to collective agreements or to transnational company agreements, and in the locations of the company’s places of business, such as the location of the head office. In addition, the report should include information on the management body and, where applicable, on staff, equipment, premises and assets before and after the cross-border operation and the likely changes to the organisation of work, wages and salaries, the location of specific posts and the expected consequences for the employees occupying those posts, as well as on the company-level social dialogue, including, where applicable, board level employee representation. The report should also explain how those changes would affect any subsidiaries of the company. No section for employees should be required where the only employees of the company are in its administrative or management body. Furthermore, in order to enhance the protection afforded to employees, either the employees themselves or their representatives should be able to provide their opinion on the report’s section setting out the implications of the cross-border operation for them. The provision of the report and of any opinion should be without prejudice to applicable information and consultation procedures provided for at national level including those following the implementation of Directive 2002/14/EC of the European Parliament and of the Council (6) or Directive 2009/38/EC of the European Parliament and of the Council (7). The report or, where drawn up separately, the reports, should be available to the members and to the representatives of the employees of the company carrying out the cross-border operation or, where there are no such representatives, the employees themselves. |
| (14) | The draft terms of the cross-border operation, the offer of cash compensation made by the company to those members who wish to exit the company and, where applicable, the share-exchange ratio, including the amount of any complementary cash payment included in the draft terms, should be examined by an expert who is independent from the company. With regard to the independence of the expert, Member States should take into account the requirements laid down in Articles 22 and 22b of Directive 2006/43/EC of the European Parliament and of the Council (8). |
| (15) | The information disclosed by the company should be comprehensive and make it possible for stakeholders to assess the implications of the intended cross-border operation. However, companies should not be obliged to disclose confidential information, the disclosure of which would be prejudicial to their business position, in accordance with Union or national law. Such non-disclosure should not undermine the other requirements provided for in this Directive. |
| (16) | On the basis of the draft terms and the reports, the general meeting of the members of the company or companies should decide on whether or not to approve those draft terms and the necessary amendments to the instruments of constitution, including the statutes. It is important that the required majority for the vote be sufficiently large in order to ensure that the decision is taken by a solid majority. In addition, members should also have the right to vote on any arrangements concerning employee participation, if they have reserved that right during the general meeting. |
| (17) | The lack of harmonisation of safeguards for members has been identified as an obstacle to cross-border operations. Companies and their members face a wide variety of different forms of protection leading to complexity and legal uncertainty. Members should, therefore, be offered the same minimum level of protection regardless of the Member State in which the company is situated. Member States should be able therefore to maintain or introduce additional rules on protection for members, unless such rules conflict with those provided for under this Directive or with the freedom of establishment. Members’ individual rights to information should remain unaffected. |
| (18) | As a consequence of a cross-border operation, members often face a situation whereby the law applicable to their rights changes because they become members of a company governed by the law of a Member State other than the Member State the law of which was applicable to the company before the operation. Member States should, therefore, at least provide for members holding shares with voting rights and who voted against the approval of the draft terms to have the right to exit the company and receive cash compensation for their shares that is equivalent to the value of those shares. However, Member States should be free to decide to extend that right also to other members, for example, to members holding shares without voting rights or members who, as a result of a cross-border division, would acquire shares in the recipient company in proportions different from those they held before the operation, or to members for whom there would be no change of applicable law but for whom certain rights would change due to the operation. This Directive should not affect national rules on the validity of contracts for the sale and transfer of shares in companies or special legal form requirements. Member States should, for example, be able to require a notarial deed or a confirmation of signatures. |
| (19) | Companies should be able to estimate, to the extent possible, the costs related to the cross‐border operation. Members should, therefore, be required to declare to the company whether they have decided to exercise the right to dispose of their shares. That requirement should be without prejudice to any formal requirements laid down in national law. Members might also be required to indicate, together with that declaration or within a specific time limit, whether they intend to dispute the cash compensation offered and claim additional cash compensation. |
| (20) | The calculation of the offer of cash compensation should be based on generally accepted valuation methods. Members should have a right to dispute the calculation and question the adequacy of the cash compensation before a competent administrative or judicial authority or a body mandated under national law, including arbitral tribunals. Member States should be able to provide that members who have declared their decision to exercise the right to dispose of their shares are entitled to join such proceedings. Member States should also be able to establish time limits in national law for joining those proceedings. |
| (21) | As far as cross-border mergers or divisions are concerned, members who did not have or did not exercise the right to exit the company should, nevertheless, have a right to dispute the share-exchange ratio. When assessing the adequacy of the share-exchange ratio, the competent administrative or judicial authority or a body mandated under national law should also take into account the amount of any complementary cash payment included in the draft terms. |
| (22) | Following a cross-border operation, the former creditors of the company or companies carrying out that operation could see their claims affected where the company that is liable for the debt is, following that operation, governed by the law of another Member State. Currently, creditor protection rules vary across Member States, which adds significant complexity to the cross-border operation process and leads to uncertainty both for the companies involved and for their creditors in relation to the recovery or satisfaction of their claim. |
| (23) | In order to ensure that creditors have appropriate protection in cases where they are not satisfied with the protection offered by the company in the draft terms and where they may not have found a satisfactory solution with the company, creditors, who have notified the company beforehand, should be able to apply for safeguards to the appropriate authority. When assessing such safeguards, the appropriate authority should take into account whether a creditor’s claim against the company or a third party is of at least an equivalent value and of a commensurate credit quality as it was before the cross-border operation and whether the claim may be brought in the same jurisdiction. |
| (24) | Member States should ensure that creditors who entered into a relationship with the company before the company had made public its intention to carry out a cross-border operation have adequate protection. After the draft terms of the cross-border operation have been disclosed, creditors should be able to take into account the potential impact of the change of jurisdiction and applicable law as a result of the cross-border operation. Creditors to be protected could comprise current and former employees with occupational vested pension rights and persons receiving occupational pension benefits. In addition to the general rules set out in Regulation (EU) No 1215/2012 of the European Parliament and of the Council (9), Member States should provide that such creditors have the right to file a claim in the departure Member State for a period of two years after a cross-border conversion has taken effect. The two-year protection period provided for in this Directive with respect to the jurisdiction to which creditors whose claims antedate the disclosure of the draft terms of the cross-border conversion may apply, should be without prejudice to national law determining the limitation periods for claims. |
| (25) | In addition, in order to protect creditors against the risk of the insolvency of the company following a cross-border operation, Member States should be allowed to require the company or companies to make a declaration of solvency stating that they are not aware of any reason why the company or companies resulting from the cross-border operation would not be able to meet their liabilities. In those circumstances, Member States should be able to make the members of the management body personally liable for the accuracy of that declaration. As legal traditions vary amongst Member States with regard to the use of solvency declarations and their possible consequences, it should be up to the Member States to decide on the appropriate consequences of providing inaccurate or misleading declarations, which should include effective and proportionate penalties and liabilities in compliance with Union law. |
| (26) | It is important to ensure that the rights of employees to be informed and consulted in the context of cross-border operations are fully respected. The information and consultation of employees in the context of cross-border operations should be carried out in accordance with the legal framework provided for in Directive 2002/14/EC and, where applicable for Community-scale undertakings or Community-scale groups of undertakings, in accordance with Directive 2009/38/EC, as well as, where the cross-border merger or cross-border division is considered to be a transfer of an undertaking within the meaning of Council Directive 2001/23/EC (10), in accordance with Directive 2001/23/EC. This Directive does not affect Council Directive 98/59/EC (11), Directive 2001/23/EC, Directive 2002/14/EC or Directive 2009/38/EC. However, given that this Directive lays down a harmonised procedure for cross-border operations, it is appropriate to specify, in particular, the time frame within which the information and consultation of employees related to the cross‐border operation should take place. |
| (27) | Employee representatives provided for in national law or, where applicable, in accordance with national practice should also include any relevant bodies established in accordance with Union law, such as the European Works Council established in accordance with Directive 2009/38/EC and the representative body established in accordance with Council Directive 2001/86/EC (12). |
| (28) | Member States should ensure that employee representatives, when carrying out their functions, enjoy adequate protection and guarantees in accordance with Article 7 of Directive 2002/14/EC to enable them to perform properly the duties which have been assigned to them. |
| (29) | In order to conduct an analysis of the report for employees, a company carrying out a cross-border operation should provide employee representatives with the resources necessary to enable them to exercise the rights arising from this Directive in an appropriate manner. |
| (30) | In order to ensure that employee participation is not unduly prejudiced as a result of the cross-border operation, where the company carrying out the cross-border operation has implemented an employee participation system, the company or companies resulting from the cross-border operation should be obliged to take a legal form allowing for the exercise of such participation rights, including through the presence of representatives of the employees in the appropriate management or supervisory body of the company or companies. Moreover, in such a case, where a bona fide negotiation between the company and its employees takes place, it should be carried out in line with the procedure provided for in Directive 2001/86/EC, with a view to finding an amicable solution that reconciles the right of the company to carry out a cross-border operation with the employees’ rights of participation. As a result of those negotiations, either a bespoke and agreed solution or, in the absence of an agreement, standard rules as set out in the Annex to Directive 2001/86/EC should apply, mutatis mutandis. In order to protect the agreed solution or the application of those standard rules, the company should not be able to remove the participation rights through carrying out a subsequent conversion, merger or division, be it cross-border or domestic, within four years. |
| (31) | In order to prevent the circumvention of employee participation rights by means of a cross-border operation, the company or companies carrying out the cross-border operation and registered in the Member State which provides for the employee participation rights, should not be able to perform a cross-border operation without first entering into negotiations with its employees or their representatives when the average number of employees employed by that company is equivalent to four fifths of the national threshold for triggering such employee participation. |
| (32) | The involvement of all stakeholders in cross-border operations, in particular the involvement of employees, contributes to a long-term and sustainable approach being taken by companies across the internal market. In this regard, safeguarding and promoting the participation rights of employees within the board of a company plays an important role, in particular when a company moves or restructures across borders. Therefore, the successful completion of negotiations on participation rights in the context of cross-border operations is essential and should be encouraged. |
| (33) | To ensure that there is proper allocation of tasks among Member States and an efficient and effective ex-ante control of cross-border operations, the competent authorities of the Member States of the company or companies carrying out the cross-border operation should have the power to issue a pre-conversion, pre-merger or pre-division certificate (hereinafter referred to as ‘pre-operation certificate’). The competent authorities of the Member States of the company or companies resulting from the cross-border operation should not be able to approve the cross-border operation without such a certificate. |
| (34) | In order to issue a pre-operation certificate, the Member States of the company or companies carrying out the cross-border operation should designate, in accordance with national law, an authority or authorities competent to scrutinise the legality of the operation. The competent authority could comprise courts, notaries or other authorities, a tax authority or a financial service authority. Where there is more than one competent authority, the company should be able to apply for the pre-operation certificate to one single competent authority, as designated by the Member States, which should co-ordinate with the other competent authorities. The competent authority should assess compliance with all relevant conditions and the proper completion of all procedures and formalities in that Member State, and should decide whether to issue a pre-operation certificate within three months of the application by the company, unless the competent authority has serious doubts indicating that the cross-border operation is set up for abusive or fraudulent purposes leading to or aimed at the evasion or circumvention of Union or national law, or for criminal purposes, and the assessment requires additional information to be considered or additional investigative activities to be performed. |
| (35) | In certain circumstances, the right of companies to carry out a cross-border operation could be used for abusive or fraudulent purposes, such as for the circumvention of the rights of employees, social security payments or tax obligations, or for criminal purposes. In particular, it is important to counteract ‘shell’ or ‘front’ companies set up for the purpose of evading, circumventing or infringing Union or national law. Where, in the course of the scrutiny of the legality of a cross-border operation, the competent authority becomes aware, including through consultation of relevant authorities, that the cross-border operation is set up for abusive or fraudulent purposes leading to or aimed at the evasion or circumvention of Union or national law, or for criminal purposes, it should not issue the pre-operation certificate. The relevant procedures, including any assessment, should be carried out in accordance with national law. In such cases, the competent authority should be able to extend the period of assessment by a maximum of three months. |
| (36) | Where the competent authority has serious doubts indicating that the cross-border operation is set up for abusive or fraudulent purposes, the assessment should consider all relevant facts and circumstances, and should take into account, where relevant, at a minimum, indicative factors relating to the characteristics of the establishment in the Member State in which the company or companies are to be registered after the cross‐border operation, including the intention of the operation, the sector, the investment, the net turnover and profit or loss, the number of employees, the composition of the balance sheet, the tax residence, the assets and their location, equipment, the beneficial owners of the company, the habitual places of work of the employees and of specific groups of employees, the place where social contributions are due, the number of employees posted in the year prior to the cross-border operation within the meaning of Regulation (EC) No 883/2004 of the European Parliament and of the Council (13) and of Directive 96/71/EC of the European Parliament and of the Council (14), the number of employees working simultaneously in more than one Member State within the meaning of Regulation (EC) No 883/2004, and the commercial risks assumed by the company or companies before and after the cross-border operation. The assessment should also take into account relevant facts and circumstances related to employee participation rights, in particular as regards negotiations on such rights where those negotiations were triggered by reaching four fifths of the applicable national threshold. All of those elements should be considered only as indicative factors in the overall assessment and therefore should not be regarded in isolation. The competent authority may consider that if the cross-border operation were to result in the company having its place of effective management or place of economic activity in the Member State in which the company or companies are to be registered after the cross‐border operation, that would be an indication of an absence of circumstances leading to abuse or fraud. |
| (37) | The competent authority should also be able to obtain from the company carrying out the cross-border operation, or from other competent authorities, including those of the destination Member State, all relevant information and documents, with a view to carrying out the scrutiny of the legality of the cross-border operation within the procedural framework laid down in national law. Member States should be able to stipulate the possible consequences for the issuance of the pre-operation certificate of the procedures initiated by members and creditors in accordance with this Directive. |
| (38) | In the assessment required to obtain a pre-operation certificate, the competent authority should be able to have recourse to an independent expert. Member States should lay down rules to ensure that the expert, or the legal person on whose behalf the expert is operating, is independent from the company applying for the pre-operation certificate. The expert should be appointed by the competent authority and should have no past or current link with the company concerned which might affect the expert’s independence. |
| (39) | In order to ensure that the company carrying out the cross-border operation does not prejudice its creditors, the competent authority should be able to check, in particular, whether the company has fulfilled its obligations towards public creditors and whether any open obligations have been sufficiently secured. In particular, the competent authority should be able to check whether the company is the subject of any ongoing court proceedings concerning, for example, infringement of social, labour or environmental law, the outcome of which might lead to further obligations being imposed on the company, including in respect of citizens and private entities. |
| (40) | Member States should provide for procedural safeguards in line with the general principles of access to justice, including providing for the possibility of reviewing the decisions of the competent authorities in the proceedings concerning cross-border operations, the possibility of delaying the time when a pre-operation certificate takes effect in order to allow parties to bring an action before the competent court and the possibility of having interim measures granted, where appropriate. |
| (41) | Member States should ensure that the completion of certain procedural steps, namely, the disclosure of the draft terms, the application for a pre-operation certificate as well as the submission of any information and documents for the scrutiny of the legality of the cross‐border operation by the destination Member State, can be completed fully online, without the necessity for the applicants to appear in person before a competent authority in the Member States. The rules on the use of digital tools and processes in company law, including the relevant safeguards, should apply as appropriate. The competent authority should be able to receive the application for the pre-operation certificate online, including the submission of any information and documents, unless, exceptionally, it is technically impossible for the competent authority. |
| (42) | In order to cut costs and reduce the length of the procedures and administrative burden for companies, Member States should apply the ‘once-only’ principle in the area of company law, which entails that companies are not required to submit the same information to more than one public authority. For example, companies should not have to submit the same information both to the national register and to the national gazette. |
| (43) | In order to provide for an appropriate level of transparency and the use of digital tools and processes, the pre-operation certificates issued by the competent authorities in different Member States should be shared through the system of interconnection of registers and should be made publicly available. In accordance with the general principle underlying Directive (EU) 2017/1132, such exchange of information should always be free of charge. |
| (44) | The carrying out of a cross-border conversion entails a change of the legal form of a company without that company losing its legal personality. However, neither a cross‐border conversion nor a cross-border merger or division should lead to the circumvention of the requirements for incorporation in the Member State in which the company is to be registered after that cross-border operation. Such conditions, including the requirements to have the head office in the destination Member State and those relating to the disqualification of directors, should be fully respected by the company. However, in the case of cross-border conversions, the application of such conditions by the destination Member State should not affect the continuity of the converted company’s legal personality. |
| (45) | Once a pre-operation certificate has been received, and after verifying that the legal requirements of the Member State in which the company is to be registered after the cross‐border operation are fulfilled, including a possible check as to whether the cross‐border operation constitutes a circumvention of Union or national law, the competent authorities should register the company in the register of that Member State. Only after this registration should the competent authority of the former Member State of the company or companies carrying out the cross-border operation strike the company off its own register. It should not be possible for the competent authorities of the Member State in which the company is to be registered after the cross-border operation to dispute the information provided by the pre-operation certificate. |
| (46) | To enhance the transparency of cross-border operations, it is important that the registers of the Member States involved contain the necessary information from other registers about the companies involved in those operations in order to be able to track the history of those companies. In particular, the file in the register in which the company was registered prior to the cross-border operation should contain the new registration number attributed to that company after the cross-border operation. Similarly, the file in the register in which the company is registered after the cross-border operation should contain the initial registration number attributed to the company prior to the cross-border operation. |
| (47) | As a consequence of the cross-border conversion, the company resulting from the conversion (the ‘converted company’) should retain its legal personality, its assets and liabilities, and all its rights and obligations, including any rights and obligations arising from contracts, acts or omissions. In particular, the converted company should respect any rights and obligations arising from contracts of employment or from employment relationships, including any collective agreements. |
| (48) | As a consequence of the cross-border merger, the assets and liabilities and all rights and obligations, including any rights and obligations arising from contracts, acts or omissions, should be transferred to the acquiring company or to the new company, and the members of the merging companies who do not exercise their exit rights should become members of the acquiring company or the new company respectively. In particular, the acquiring company or the new company should respect any rights and obligations arising from contracts of employment or from employment relationships, including any collective agreements. |
| (49) | As a consequence of the cross-border division, the assets and liabilities and all rights and obligations, including any rights and obligations arising from contracts, acts or omissions, should be transferred to the recipient companies in accordance with the allocation specified in the draft terms of division, and the members of the company being divided who do not exercise their exit rights should become members of the recipient companies, should remain members of the company being divided or should become members of both. In particular, recipient companies should respect any rights and obligations arising from contracts of employment or from employment relationships, including any collective agreements. |
| (50) | In order to ensure legal certainty, it should not be possible to declare a cross-border operation which has taken effect in accordance with the procedure laid down in this Directive null and void. That restriction should be without prejudice to Member States’ powers, inter alia, in relation to criminal law, the prevention and combatting of terrorist financing, social law, taxation and law enforcement under national laws, in particular in the event that the competent or other relevant authorities establish, in particular through new substantive information, after the cross-border operation took effect, that the cross‐border operation was set up for abusive or fraudulent purposes leading to or aimed at the evasion or circumvention of Union or national law or for criminal purposes. In this context, the competent authorities could also assess whether the applicable national threshold for employee participation of the Member State of the company carrying out the cross-border operation was met or exceeded in the years following the cross-border operation. |
| (51) | Any cross-border operation should be without prejudice to liability for tax obligations related to a company's activity before that operation. |
| (52) | To guarantee the rights of employees other than rights of participation, Directives 98/59/EC, 2001/23/EC, 2002/14/EC and 2009/38/EC are not affected by this Directive. National laws should also apply to matters outside the scope of this Directive such as tax or social security. |
| (53) | This Directive does not affect the legal or administrative provisions of national law relating to the taxes of Member States or their territorial and administrative subdivisions, including the enforcement of tax rules in cross-border operations. |
| (54) | This Directive is without prejudice to Council Directives 2009/133/EC (15), (EU) 2015/2376 (16), (EU) 2016/881 (17), (EU) 2016/1164 (18) and (EU) 2018/822 (19). |
| (55) | This Directive is without prejudice to the provisions of Directive (EU) 2015/849 of the European Parliament and of the Council (20) that address risks of money laundering and terrorist financing, in particular the obligations provided for therein relating to the carrying out of appropriate customer due diligence measures on a risk-sensitive basis, and those relating to identifying and registering the beneficial owner of any newly created entity in the Member State of its incorporation. |
| (56) | This Directive does not affect Union law concerning transparency and the rights of shareholders in listed companies, or national rules laid down or introduced pursuant to such Union law. |
| (57) | This Directive does not affect Union law regulating credit intermediaries and other financial undertakings, or national rules laid down or introduced pursuant to such Union law. |
| (58) | Since the objectives of this Directive, namely to facilitate and regulate cross‐border conversions, mergers and divisions, cannot be sufficiently achieved by the Member States, but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the TEU. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. |
| (59) | This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. |
| (60) | In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (21), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified. |
| (61) | The Commission should carry out an evaluation of this Directive, including an evaluation of the implementation of the provisions on employee information, consultation and participation in the context of cross-border operations. The evaluation should, in particular, aim to assess cross-border operations where negotiations on employee participation were triggered by reaching four fifths of the applicable threshold, and to see whether, after the cross-border operation, those companies met or exceeded the applicable threshold for employee participation of the Member State of the company which carried out the cross‐border operation. Pursuant to paragraph 22 of the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (22) (the ‘Interinstitutional Agreement’), that evaluation should be based on the five criteria of efficiency, effectiveness, relevance, coherence and value added, and should provide the basis for impact assessments of possible further measures. |
| (62) | Information should be collected in order to assess the performance of the provisions of this Directive in relation to the objectives it pursues and in order to provide the basis for an evaluation of Directive (EU) 2017/1132 in accordance with paragraph 22 of the Interinstitutional Agreement. |
| (63) | Directive (EU) 2017/1132 should therefore be amended accordingly, |