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19 JUNE 2009. - An Act respecting accompanying measures with respect to the institution of a special negotiating group, a representative body and procedures relating to the participation of workers in the Issu societies of the cross-border merger of capital corporations (1)

CHAPTER 1^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act partially transposes Directive 2005/56/EC of the European Parliament and the Council of 26 October 2005 on cross-border mergers of capital corporations with regard to the participation of workers.
CHAPTER 2. - Definitions
Art. 3. For the purposes of this Act, it shall be understood by:
1st capital corporations:
a) a corporation as referred to in section 1^er of the first Council Directive 68/151/EEC of 9 March 1968 to coordinate, to make them equivalent, the guarantees that are required, in the Member States, companies within the meaning of Article 58, second paragraph of the Treaty, to protect the interests of both partners and third parties;
(b) a society with a social capital, enjoying the legal personality, having a separate heritage that meets the debts of the society alone and subject by its national legislation to conditions of guarantees as provided for in Directive 68/151/EEC, to protect the interests of both partners and third parties.
2° "merge", the operation by which:
(a) one or more companies transfer, as a result and at the time of their dissolution without liquidation, all of their assets, actively and passively, to another pre-existing corporation - the absorbing corporation - by assigning to their associates representative securities or shares of the social capital of the other corporation and possibly of a cash relief not exceeding 10% of the nominal value or, in the absence of a nominal value, the shareholder pairs of these securities
or
(b) two or more companies transfer, as a result and at the time of their dissolution without liquidation, all of their assets, actively and passively, to a corporation that they constitute - the new corporation - through the allocation to their associates of shares or shares representative of the social capital of that new corporation and possibly of a cash relief not exceeding 10% of the nominal value or, in the absence of a nominal value, the share of the accountant pairs or
or
(c) a corporation transfers, as a result and at the time of its dissolution without liquidation, all of its assets, actively and passively, to the corporation that holds all the securities or representative shares of its social capital.
3° company from the cross-border merger: the company resulting from the merger of incorporated capital companies in accordance with the legislation of a Member State and having their statutory seat, central administration or principal establishment within a Member State, if at least two of them fall under the laws of different Member States.
4° Participating capital corporations: capital corporations directly involved in cross-border mergers.
Is considered to be a direct participant in the cross-border merger, the capital corporation whose shareholders will become shareholders of the corporation arising out of the cross-border merger following the constitution of the corporation or become a shareholder of the corporation arising out of the cross-border merger.
5° subsidiary: A subsidiary of a capital company means a company on which the said company has a dominant influence.
The exercise of a dominant influence is presumed to be established until proven otherwise, where a business, directly or indirectly:
(a) may appoint more than half of the members of the board of directors, management or oversight of the company;
or
(b) has the majority of votes attached to the shares issued by the company;
or
(c) holds the majority of the shares of the company's equity.
When several companies in a group meet one of the conditions referred to in the second paragraph, the company that meets the condition set out in (a) is presumed to exercise the dominant influence. If no company meets the requirement set out in (a), the company that meets the requirement set out in (b) is presumed to exercise the dominant influence.
For the purposes of the second paragraph, the voting and appointment rights held by the undertaking that exercises control shall include those of any other undertaking that it controls and any person or organization acting on its behalf, but on behalf of the undertaking that exercises control or any undertaking that it controls.
A dominant influence is not presumed to be established because of the fact that a mandated person exercises his or her functions, under the legislation of a Member State relating to liquidation, bankruptcy, insolvency, assignment of payments, reorganization of the judiciary or similar proceedings.
Notwithstanding paragraphs 1^er and 2, a company is not a "company that exercises control" of another company whose participation it holds when it is a company referred to in Article 3, paragraph 5 (a) or (c) of Regulation (EEC) No 4064/89 of the European Council of 21 December 1989, relating to the control of the concentration operations between companies.
6° subsidiary or institution concerned: a subsidiary or an establishment of a participating capital corporation, which becomes a subsidiary or an establishment of the corporation originating from the cross-border merger in its constitution, and is located in a Member State.
Must be considered as a subsidiary or institution concerned, provided that the dominant influence defined in 5° of this section may be established:
(a) the direct subsidiaries of participating capital companies that fall within or outside the same national law;
(b) direct establishments of participating capital companies, whether or not located in the same member State;
(c) the indirect subsidiaries of participating capital companies, i.e., subsidiaries of direct affiliates of participating capital companies and subsidiaries of indirect subsidiaries;
(d) the indirect establishments of participating capital companies, i.e. the establishments of the indirect subsidiaries of these companies.
7th special negotiating group: the group regularly formed to negotiate with the competent body of the capital companies participating in the cross-border merger the setting of the terms relating to the participation of workers in the society arising from the cross-border merger.
8° participation: the influence of the body representing workers and/or workers' representatives on the affairs of a society:
(a) exercising their right to elect or designate certain members of the monitoring or administration body of the corporation;
or
(b) exercising their right to recommend and/or oppose the designation of a party or all members of the monitoring or administration body of the corporation.
9° workers: persons who under a labour or learning contract provide work benefits.
10° Member States: the Member States of the European Union and the other Member States of the European Economic Area, referred to in Directive 2005/56/EC.
CHAPTER 3. - Applicable law
Art. 4. The rules relating to the establishment of the special negotiating group, apart from the method of election or designation of its members, to the negotiation procedure with a view to reaching agreement on the modalities for the participation of workers in the society arising from the cross-border merger and the content of that agreement are subject to the law of the Member State in whose territory is located the statutory seat of the society arising from the cross-border merger.
Art. 5. The rules relating to the institution and operation of the representative body, apart from the method of election or designation of its members, and a procedure relating to the participation of workers in the society arising from the cross-border merger are subject to the law of the Member State in the territory of which is located the statutory seat of the society arising from the cross-border merger.
Art. 6. The rules concerning the calculation of the number of occupied workers, the notion of workers and the method of election or designation of workers' representatives are governed by the law of the Member State in which the institutions or companies concerned are located.
Art. 7. The law governing the rules relating to the status of workers' representatives is the law of the Member State in which their employer is located, or, in the event of a conflict of law, this law is determined, in the case of an individual labour contract entered into before 18 December 2009, in accordance with the Convention on the Law Applicable to the Contractual Obligations made in Rome on 19 June 1980 and, in the case of an individual labour contract concluded from 18 December 2009, in accordance with Regulation No. 593/2008
CHAPTER 4. - Confidential information
Art. 8. The monitoring or administration body of the corporation arising from the cross-border merger or a participating legal entity is authorized, vis-à-vis members of the special negotiating group or members of the representative body or with respect to representatives of workers who receive information in the context of an information and consultation procedure, as well as to experts who may assist them:
1° to report, in their communication, the confidential nature of certain information which is likely to seriously prejudice the society; delegates are required not to disclose them;
2° not to disclose certain information, the King ' s list of which is established, where their nature is such that, according to objective criteria, their communication would seriously interfere with the functioning of the society or prejudice it.
CHAPTER 5. - Protection in the event of termination
Art. 9. Members of the special negotiating group, members of the representative body, representatives of the workers exercising their functions in the course of an information and consultation procedure, and representatives of the workers sitting in the supervisory or administration of the company arising from the cross-border merger or participating in the general assembly or the assembly of section or branch that are workers of the company arising from the cross-border merger
This particular regime is applicable to them for any termination in a period beginning on the thirtieth day before their appointment and ending on the day on which their term ends.
CHAPTER 6. - Monitoring and sanctions
Art. 10. Without prejudice to the powers of judicial police officers, officials designated by the King monitor compliance with the provisions relating to the participation of workers in the society resulting from the cross-border merger.
These officials exercise this oversight in accordance with the provisions of the Labour Inspection Act of 16 November 1972.
Art. 11. Article 56 of the Act of 5 December 1968 on collective labour agreements and parity commissions, as amended by the Acts of 23 April 1998 and 10 August 2005, is supplemented by a paragraph written as follows:
"In respect of breaches of the provisions of collective labour agreements made mandatory by royal decree concerning the participation of workers in a society arising out of the cross-border merger, the executive or administrative bodies, referred to in the collective labour agreements referred to above, are considered to the employer. "
Art. 12. Article 1^er, 14°, of the Act of June 30, 1971 on Administrative Fines Applicable to Certain Social Laws, as amended by the Acts of April 23, 1998 and August 10, 2005, is supplemented as follows:
"In respect of breaches of the provisions of collective labour agreements made mandatory by royal decree concerning the participation of workers in a society arising out of a cross-border merger, the executive or administrative bodies, referred to in the collective labour agreements referred to above, are considered to the employer; »
Art. 13. Article 458 of the Criminal Code applies to any member of the special negotiating group, to any member of the representative body, to the representatives of the workers exercising their functions in the course of an information and consultation procedure, as well as to the designated experts, who have disclosed confidential information that would seriously prejudice the society or seriously impede the functioning of the society.
CHAPTER 7. - Entry into force
Art. 14. This Act produces its effects on 15 December 2007, with the exception of articles 10 to 13 which come into force on the day of the publication of this Act to the Belgian Monitor.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 19 June 2009.
ALBERT
By the King:
Deputy Prime Minister
and Minister of Employment and Equal Opportunities,
Ms. J. MILQUET
Minister of Justice,
S. DE CLERCK
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
Note
(1) Documents of the House of Representatives:
52-1951 - 2008/2009:
Number 1: Bill.
Number two: Report.
Number 3: Text corrected by commission.
No. 4: Text adopted in plenary and transmitted to the Senate.
Full report: 14 May 2009.
Documents of the Senate:
4-1326 - 2008-2009:
No. 1: Project not referred to by the Senate.