belgiquelex.be - Carrefour Bank of Legislation

9 MAI 2008. - Act on accompanying measures with respect to the institution of a special negotiating group, a representative body and procedures for the involvement of workers in the European Cooperative Society (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act transposes Council Directive 2003/72/EC of 22 July 2003 supplementing the status of the European Cooperative Society with regard to the involvement of workers.
CHAPTER II. - Definitions
Art. 3. For the purposes of this Act, it shall be understood by:
1° European Cooperative Society or SCE: a company incorporated in accordance with Regulation (EC) No 1435/2003 of the European Council of 22 July 2003 concerning the status of the European Cooperative Society;
2° Participating legal entities: companies within the meaning of Article 48, second paragraph of the Treaty establishing the European Community, including cooperatives, as well as legal entities established under the legislation of a Member State and subject to that legislation, directly participating in the constitution of a European Cooperative Society.
Is considered to be a direct participant in the constitution of a European Cooperative Society, the cooperative whose members will become members and will be holding shares of the European Cooperative Society following the constitution of the European Cooperative Society or the entity that will own shares of the European Cooperative Society;
3rd subsidiary of a participating legal entity or a European cooperative company: a company on which the participating legal entity or European cooperative corporation 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 undertaking 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 criteria mentioned in the second paragraph, the company that meets criterion (a) is presumed to exercise the dominant influence. If no company meets criterion (a), the company that meets criterion (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, concordat 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, § 5, point (a) or (c), of Regulation (EEC) No 4064/89 of the European Council of 21 December 1989, relating to the control of the operations of concentration between enterprises;
4° subsidiary or institution concerned: a subsidiary or an institution of a participating legal entity, which becomes a subsidiary or an institution of the SCE during its constitution, and is located in a Member State.
Must be considered a subsidiary or institution concerned, provided that the dominant influence defined in the 3° can be established:
- direct subsidiaries of participating legal entities under the same national law;
- direct establishments of participating legal entities, located or not in the same Member State;
- indirect subsidiaries of participating legal entities, i.e. subsidiaries of direct affiliates of participating legal entities and subsidiaries of indirect subsidiaries;
- the indirect establishments of participating legal entities, i.e. the establishments of the indirect subsidiaries of these companies;
5° representative body: the transnational body representing workers regularly established in order to implement the information and consultation of workers of a SCE and its subsidiaries and institutions located in a Member State and, where appropriate, to exercise the rights of participation related to the SCE.
6th special negotiating group: the group regularly formed to negotiate with the competent body of the participating legal entities the setting of the modalities for the involvement of workers in the SCE.
7° worker involvement: information, consultation and participation as defined in this Act.
8° information: the fact that the body representing workers and/or workers' representatives is informed, by the competent body of the SCE, of the issues that concern the SCE itself and any subsidiary or establishment located in another Member State or of the matters that exceed the powers of the decision-making bodies of a Member State, that information is being made at a time, in a manner and with a possible effect to the workers' representatives
9° consultation: the establishment of a dialogue and the exchange of views between the body representing the workers and/or representatives of the workers and the competent body of the SCE, at a time, in a way and with content that allow workers' representatives, on the basis of the information provided, to express an opinion on the measures envisaged by the competent body, which may be taken into consideration in the framework of the decision-making process;
10° participation: the influence of the body representing workers and/or workers' representatives on the affairs of a legal entity:
- exercising their right to elect or designate certain members of the supervisory or administrative body of the legal entity,
or
- exercising their right to recommend and/or oppose the designation of a party or of all members of the legal entity's supervisory or administrative body;
11° Member State: the Member States of the European Union and the other Member States of the European Economic Area referred to in Council Directive 2003/72/EC of 22 July 2003.
CHAPTER III. - 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 involvement of workers in the SCE and the content of that agreement are subject to the law of the Member State in the territory of which the SCE is located.
Art. 5. The rules relating to the institution and operation of the body of representation, apart from the method of election or designation of its members, and a procedure relating to the involvement of workers within the SCE are subject to the law of the Member State in the territory of which is located the SCE's statutory seat.
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 accordance with the Convention on the Law Applicable to the Contractual Obligations made in Rome on 19 June 1980.
CHAPTER IV. - Confidential information
Art. 8. The supervisory or administrative body of a participating SCE or legal entity is authorized, vis-à-vis members of the negotiating group or members of the representative body or 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.
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 Florence, May 9, 2008.
ALBERT
By the King:
Minister of Justice,
J. VANDEURZEN
The Minister of Employment,
Ms. J. MILQUET
Seal of the state seal:
Minister of Justice,
J. VANDEURZEN
____
Note
House of Representatives:
Documents. - 52-810 - 2007/2008: Number 1: Bill. - Number two: Report. - No. 3: Text adopted in plenary and transmitted to the Senate.
Full report: 19 March 2008.
Senate:
Documents. - 4-660 - 2007/2008: Number 1: Project referred to by the Senate. - Number two: Report. - No. 3: Decision not to amend.
Annales of the Senate: April 24, 2008.