Abstract
Cross-border activities of the companies and regulation of cross-border mergers at the European Union internal market has been and still is a problem concerning employees’ participation. The basic and not easily solved problem is the application of freedom of establishment and its limitations when taking into account change of company ‘nationality’. Special attention must be paid to the cross-border mergers of companies or forming of supranational companies. The transfer of company and contract from the current to the new employer will occur and affect the status of employees. It is not easy to fulfil requirements regarding the full achievement of mobility opportunities at the EU level and to balance between differences in Member State national laws through the implementation of the directives.
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Notes
- 1.
Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses, OJ L 61, 5.3.1977, pp. 26–28; Council Directive 98/50/EC of 29 June 1998 amending Directive 77/187/EEC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses, OJ L 201, 17.7.1998, pp. 88–92; Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ L 82, 22.3.2001, pp. 16–20; Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, OJ L 283, 28.10.1980, pp. 23–27 and Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (Codified version) (Text with EEA relevance) OJ L 283, 28.10.2008, pp. 36–42 which repeals Directive 80/987/EEC, Directive 87/164/EEC and Directive 2002/74/EC.
- 2.
- 3.
These obstacles still exist what is obvious when we analyze practice of the Court of Justice of the European Union (cases Überseering, Sevic, Cartesio) and activities for the Proposal of the 14th Company Law Directive. See more in Horak and Dumančić (2015). Obstacles also exist in different company law regulations and directives: Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European Company (SE), OJ L 294, 10.11.2001; Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE), OJ L 207, 18.8.2003; Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG), OJ L 199, 31.7.1985; Council Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross border mergers of limited liability companies, OJ L 310, 25.11.2005; 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; Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community—Joint declaration of the European Parliament, the Council and the Commission on employee representation, OJ L 80, 23.3.2002.
- 4.
Freedom of establishment, as a fundamental market freedom, is guaranteed by the Article 49 of the Treaty on the Functioning of the European Union (TFEU). See more about the freedom of establishment in Bodiroga Vukobrat et al. (2011), Horak et al. (2010), Rodin and Ćapeta (2011), Babić (2006), Babić and Petrović (2002), Barnard (2007), Chalmers et al. (2006), Craig and De Burca (2008) and Cabral and Cunha (2000). This freedom is applicable on natural persons and also on companies that are to be treated in the same way as natural persons who are nationals of the European Member States.
- 5.
Article 54 TFEU (ex Article 48 TEC) says that companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
- 6.
Judgment of the Court of Justice of the European Union in cases: Daily Mail and General Trust 81/87 [1998] ECLI:EU:C:1988:456; Cartesio C-210/06 [2008] ECLI:EU:C:2008:723; Centros C-212/97 [1999] ECLI:EU:C:1999:126; Inspire Art C-167/01 [2003] ECLI:EU:C:2003:512; Sevic Systems C-411/03 [2005] ECLI:EU:C:2005:762; Überseering C-208/00 [2002] ECLI:EU:C:2002:632; VALE C-378/10 [2012] ECLI:EU:C:2012:440.
- 7.
See case VALE C-378/10, para 24, 34 and 55.
- 8.
- 9.
- 10.
Proposal for a COUNCIL REGULATION on the Statute for a European private company, Brussels, COM(2008) 396/3. For more information on Proposal see official web page of the European Commission at http://ec.europa.eu/internal_market/company/epc/index_en.htm.
- 11.
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.
- 12.
Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community—Joint declaration of the European Parliament, the Council and the Commission on employee representation, OJ L 80, 23.3.2002.
- 13.
Charter of fundamental rights of the European Union OJ C 364/01, 18.12.2000.
- 14.
- 15.
Bratton et al. (2009).
- 16.
- 17.
Ibidem.
- 18.
C-210/06 Cartesio, para. 115, 116.
- 19.
Report of the Reflection Group on the future of the European Law, European Commission, Internal Market and services, Brussels (2011), available at http://ec.europa.eu/internal_market/company/docs/modern/reflectiongroup_report_en.pdf; Bratton et al. (2009).
- 20.
Bratton et al. (2009).
- 21.
Report of the Reflection Group on the future of the European Law, European Commission, Internal Market and services, Brussels (2011).
- 22.
See more on http://www.etui.org/Topics/Worker-Participation. Accessed on 14 November 2012.
- 23.
More on workers participation in SE see in Eidenmüller et al. (2012).
- 24.
Horak and Dumančić (2007).
- 25.
Njoya (2010).
- 26.
- 27.
- 28.
- 29.
Eidenmüller et al. (2012), p. 29.
- 30.
Directive on Cross-border mergers of limited liability companies (2005/56/EC) Frequent Questions. Available at http://www.worker-participation.eu/Company-Law-and-CG/Company-Law/Cross-Border-Mergers/Frequent-Questions-10th-company-law-directive. Accessed on 15 June 2016.
- 31.
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) (Text with EEA relevance) OJ L 122, 16.5.2009.
- 32.
Article 7(2), first subparagraph, point (b) of Directive 2001/86/EC.
- 33.
Article 16(3) (e) of the Directive 2005/56/EC.
- 34.
Conchon (2011).
- 35.
Bech-Bruun (2013).
- 36.
Eidenmüller et al. (2012), p. 29.
- 37.
Article 13 of the Directive 2001/86/EC stipulates:
Link between this Directive and other provisions
-
1.
Where an SE is a Community-scale undertaking or a controlling undertaking of a Community-scale group of undertakings within the meaning of Directive 94/45/EC or of Directive 97/74/EC(6) extending the said Directive to the United Kingdom, the provisions of these Directives and the provisions transposing them into national legislation shall not apply to them or to their subsidiaries.
However, where the special negotiating body decides in accordance with Article 3(6) not to open negotiations or to terminate negotiations already opened, Directive 94/45/EC or Directive 97/74/EC and the provisions transposing them into national legislation shall apply.
-
2.
Provisions on the participation of employees in company bodies provided for by national legislation and/or practice, other than those implementing this Directive, shall not apply to companies established in accordance with Regulation (EC) No 2157/2001 and covered by this Directive.
-
3.
This Directive shall not prejudice:
-
(a)
the existing rights to involvement of employees provided for by national legislation and/or practice in the Member States as enjoyed by employees of the SE and its subsidiaries and establishments, other than participation in the bodies of the SE;
-
(b)
the provisions on participation in the bodies laid down by national legislation and/or practice applicable to the subsidiaries of the SE.
-
(a)
-
4.
In order to preserve the rights referred to in paragraph 3, Member States may take the necessary measures to guarantee that the structures of employee representation in participating companies which will cease to exist as separate legal entities are maintained after the registration of the SE.
-
1.
- 38.
Eidenmüller et al. (2012).
- 39.
Case C-635/11 European Commission v Kingdom of the Netherlands, ECLI:EU:C:2013:408.
Judgment of the Court of Justice of the European Union, 20 June 2013.
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Horak, H. (2018). Cross-Border Mobility, Supranational Companies and Employee Participation: No Chance for Harmonisation. In: Sander, G., Tomljenović, V., Bodiroga-Vukobrat, N. (eds) Transnational, European, and National Labour Relations. Europeanization and Globalization, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-02219-2_2
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