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Act On Accompanying Measures With Regard To The Establishment Of An Ad Hoc Group Negotiation, A Body Of Representation And Procedures Relating To The Involvement Of Employees In European Society (1)

Original Language Title: Loi portant des mesures d'accompagnement en ce qui concerne l'institution d'un groupe spécial de négociation, d'un organe de représentation et de procédures relatives à l'implication des travailleurs au sein de la Société européenne (1)

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10 AOUT 2005. - Act on accompanying measures with respect to the institution of a special negotiating group, a representative body and procedures relating to the involvement of workers in the European Society (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER Ier. - General provisions
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act transposes Council Directive 2001/86/EC of 8 October 2001 supplementing the status of the European 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 company or SE: a company incorporated in accordance with Regulation (EC) No 2157/2001 of the European Council of 8 October 2001 concerning the status of European society;
2° Participating company: company directly participating in the constitution of an SE.
Is considered to be a direct participant in the constitution of an SE, the company whose shareholders will become shareholders of the SE following the constitution of the SE or who will become a shareholder of the SE.
For the purposes of this Law, are considered to be "societies", societies within the meaning of Article 48, second paragraph of the Treaty establishing the European Community, as well as other legal entities of public or private law, in accordance with Article 2, § 3, of Regulation (EC) No 2157/2001 of the European Council of 8 October 2001 relating to the status of the European Society;
3rd subsidiary of a company: a company on which the said company exerts 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 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 1er 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.
4° subsidiary or institution concerned: a subsidiary or establishment of a participating company, which becomes a subsidiary or an institution of the SE 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 companies that fall under the same national law;
- direct establishments of participating companies, whether or not located in the same Member State;
- indirect subsidiaries of participating companies, i.e. subsidiaries of direct subsidiaries of participating companies and subsidiaries of indirect subsidiaries;
- the indirect establishments of participating companies, 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 an SE and its subsidiaries and establishments located in a Member State and, where appropriate, to exercise the rights of participation related to the SE.
6th special negotiating group: the group regularly formed to negotiate with the competent body of participating companies the setting of the modalities for the involvement of workers in the SE.
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 SE, on matters that concern the SE itself and any subsidiary or establishment located in another Member State or on 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 content that allow workers' representatives to assess the depth and depth
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 SE, 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 account in the SE decision-making process.
10° participation: the influence of the body representing workers and/or workers' representatives on the affairs of a society:
- exercising their right to elect or designate certain members of the monitoring or administration body of the corporation,
or
- 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;
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 2001/86/EC of 8 October 2001.
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 SE and the content of that agreement are subject to the law of the Member State in the territory of which the SE is located.
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 involvement of workers within the SE are subject to the law of the member State in the territory of which is located the SE's registered office.
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 SE or participating corporation 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 course 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 V. - Protection in the event of termination
Art. 9. The members of the special negotiating group, the members of the representative body, the representatives of the workers performing their functions as part of an information and consultation procedure, and the representatives of the workers sitting in the supervisory or administrative body of an SE that are workers of the SE, its subsidiaries or establishments or of a participating society, and their substitutes, benefit from the particular termination regime provided for by the law of the March 1991 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 VI. - 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 involvement of workers in the SE.
These officials exercise this oversight in accordance with the provisions of the Labour Inspection Act of 16 November 1972.
Art. 11. Section 56 of the Act of 5 December 1968 on collective labour agreements and parity commissions, as amended by the Act of 23 April 1998, is supplemented by the following paragraph:
"In respect of breaches of the provisions of collective labour agreements made mandatory by royal decree concerning the involvement of workers in the European Society, the executive or administrative bodies, referred to in the collective labour agreements referred to above, are considered to the employer. »
Art. 12. Article 1er, 14°, of the Act of 30 June 1971 on administrative fines applicable in the event of a breach of certain social laws, as amended by the Act of 23 April 1998, is supplemented as follows:
"in respect of offences under the provisions of collective labour agreements made mandatory by royal decree concerning the involvement of workers in European society, the executive or administrative bodies, referred to in the collective labour agreements referred to above, are assimilated 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 performing their functions in the context 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 VII. - Entry into force
Art. 14. This Act produces its effects on 8 October 2004, with the exception of articles 10 to 13 which come into force on the day of the publication of this Act in 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 Nice on 10 August 2005.
ALBERT
By the King:
The Minister of Justice,
Ms. L. ONKELINX
For the Minister of Employment, absent:
Minister of Budget and Public Enterprises,
Y. VANDE LANOTTE
Seal of the state seal:
For the Minister of Justice, absent:
Minister of Defence,
A. FLAHAUT
____
Notes
(1) Session 2004-2005.
House of Representatives documents: 51-1821
No. 1: Bill
Number two: Report.
No. 3: Text adopted in plenary and transmitted to the Senate
Full report: 7 July 2005.
Senate documents: 3-1296
No. 1: Project not referred to by the Senate.