S.I. No. 623/2006 - European Communities (European Public Limited-Liability Company) (Employee Involvement) Regulations 2006

1. In this Schedule “relevant undertaking” shall be construed in accordance with Regulation 17.

2. (1) A person referred to in Regulation 19(1) may present a complaint to a rights commissioner that a relevant undertaking or the SE has contravened Regulation 19(1) in relation to him or her.

(2) Where a complaint under subparagraph (1) is made, the rights commissioner shall—

(

a

) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,

(

b

) give a decision in writing in relation to it, and

(

c

) communicate the decision to the parties.

(3) A decision of a rights commissioner under subparagraph (2) shall do one or more of the following

(

a

) declare that the complaint was or, as the case may be, was not well founded;

(

b

) require the relevant undertaking or the SE to take a specified course of action;

(

c

) require the relevant undertaking or the SE to pay to the person referred to in subparagraph (1) compensation of such amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration in respect of the person's employment.

(4) A rights commissioner shall not entertain a complaint under this paragraph if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(5) Notwithstanding subparagraph (4), a rights commissioner may entertain a complaint under this paragraph presented to him or her after the expiration of the period referred to in subparagraph (4) (but not later than 6 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

(6) A complaint shall be presented by giving notice of it in writing to a rights commissioner.

(7) A copy of a notice under subparagraph (6) shall be given to the other party concerned by the rights commissioner concerned.

(8) Proceedings under this paragraph before a rights commissioner shall be conducted otherwise than in public.

Appeals from decisions of rights commissioner

3. (1) A party concerned may appeal to the Court from a decision of a rights commissioner under paragraph 2 and, if the party does so, the Court shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, shall make a determination in writing in relation to the appeal affirming, varying or setting aside the decision and shall communicate the determination to the parties.

(2) An appeal under this paragraph shall be initiated by the party concerned giving, within 6 weeks (or such greater period as the Court may determine in the particular circumstances) from the date on which the decision to which it relates was communicated to the party, a notice in writing to the Court containing such particulars as are determined by the Court under subparagraph (4) and stating the intention of the party concerned to appeal against the decision.

(3) A copy of a notice under subparagraph (2) shall be given by the Court to any other party concerned as soon as practicable after the receipt of the notice by the Court.

(4) The following matters, or the procedures to be followed in relation to them, shall be determined by the Court, namely—

(

a

) the procedure in relation to all matters concerning the initiation and the hearing by the Court of appeals under this paragraph,

(

b

) the times and places of hearings of such appeals,

(

c

) the representation of the parties to such appeals,

(

d

) the publication and notification of determinations of the Court,

(

e

) the particulars to be contained in a notice under subparagraph (2), and

(

f

) any matters consequential on, or incidental to, the foregoing matters.

(5) The Court may refer a question of law arising in proceedings before it under this paragraph to the High Court for determination and the determination of the High Court shall be final and conclusive.

(6) A party to proceedings before the Court under this paragraph may appeal to the High Court from a determination of the Court on a point of law and the determination of the High Court shall be final and conclusive.

Supplemental provisions

4. (1) A rights commissioner shall furnish the Court with a copy of each decision given by the commissioner under paragraph 2(2).

(2) A rights commissioner shall maintain a register of all decisions given by him or her under paragraph 2(2) and shall make the register available for inspection by members of the public during normal office hours.

(3) The Court shall publish, in a manner it considers appropriate, particulars of any determination made by it under subparagraph (4)(

a

), (

b

), (

c

), (

e

) and (

f

) of paragraph 3 (not being a determination as respects a particular appeal under that paragraph).

GIVEN

under my Official Seal,

14 December 2006

MICHEÁL MARTIN

Minister for Enterprise, Trade and Employment.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation)

.

The purpose of these regulations is to give effect to EU Directive 2001/86/EC of 8 October 2001 “Supplementing the Statute for a European Company with Regard to the Involvement of Employees”.

The European Company Statute is a new legal instrument that gives companies with commercial interests in more than one Member State the option of forming a European Company (to be known as Societas Europea, “SE”), the objective of which is to make it easier for such companies to operate across the EU.

These regulations transpose the provisions of the Directive, providing that a new SE cannot be registered without first negotiating with employees on their involvement in the company, whether through information and consultation and/or, in certain circumstances, participation at board level.

1

O.J. L294 of 10.11.2001, p.22

1

O.J. L294 of 10.11.2001, p.22

2

O.J. L294 of 10.11.2001, p.1

5. The number of members of, and allocation of seats on, the representative body shall be adapted to take account of changes occurring within the SE and its subsidiaries and establishments, and the representative body shall take any steps it deems necessary to ensure this.

6. Where its size so warrants, the representative body shall elect a select committee from among its members, comprising at most three members.

7. The representative body shall adopt its own rules of procedure.

8. The competent organ of the SE shall be informed of the composition of the representative body as soon as is reasonably practicable.

9. (1) Four years after the representative body is established, it shall examine whether to open negotiations for the conclusion of an agreement referred to in Regulation 8 or to continue to apply the Standard Rules as provided for in this Schedule.

(2) If such a decision has been taken to negotiate an agreement, Regulations 9 to 14 shall apply with the necessary modifications and, for that purpose, references in those Regulations to “special negotiating body” shall be construed as references to “representative body”.

(3) Where, on the expiry of the time limit specified in Regulation 14 (as applied by this paragraph), no such agreement has been concluded, the arrangements initially adopted in accordance with the provisions of this Schedule shall continue to apply.

Part 2

Standard Rules for information and consultation

10. The competence and powers of the representative body set up in an SE shall be governed by the provisions of this Part.

11. (1) The competence of the representative body shall be limited to questions which concern the SE itself and any of its subsidiaries or establishments situated in another Member State or which exceed the powers of the decision-making organs in a single Member State.

(2) Without prejudice to meetings held pursuant to paragraph 13 (1), the representative body shall have the right to be informed and consulted and, for that purpose, to meet with the competent organ of the SE at least once a year, on the basis of regular reports drawn up by the competent organ, on the progress of the business of the SE and its prospects and the local management shall be informed accordingly.

(3) The competent organ of the SE shall provide the representative body with the agenda for meetings of the administrative, or, where appropriate, the management and supervisory organ, and with copies of all documents submitted to the general meeting of its shareholders.

(4) The meeting shall relate in particular to the structure, economic and financial situation, the probable development of the business and of production and sales, the situation and probable trend of employment, investments, and substantial changes concerning organisation, introduction of new working methods or production processes, transfers of production, mergers, cut-backs or closures of undertakings, establishments or important parts thereof, and collective redundancies.

12. (1) Where there are exceptional circumstances affecting the employees' interests to a considerable extent, particularly in the event of relocations, transfers, the closure of establishments or undertakings or collective redundancies, the representative body shall have the right to be informed.

(2) The representative body, or where it so decides, in particular for reasons of urgency, the select committee, shall have the right to meet at its request the competent organ of the SE or any more appropriate level of management within the SE having its own powers of decision, so as to be informed and consulted on measures significantly affecting employees' interests.

(3) Where the competent organ decides not to act in accordance with the opinion expressed by the representative body, this body shall have the right to a further meeting with the competent organ of the SE with a view to seeking agreement.

(4) In the case of a meeting organised with a select committee, those members of the representative body who represent employees who are directly concerned by the measures in question shall also have the right to participate.

(5) The meetings referred to above shall not affect the prerogatives of the competent organ.

13. (1) Before any meeting with the competent organ of the SE, the representative body or the select committee, where necessary enlarged in accordance with paragraph 12(4), shall be entitled to meet without the representatives of the competent organ being present.

(2) Without prejudice to Regulation 18, the members of the representative body shall inform the employees of the SE and of its subsidiaries and establishments, or their representatives (or both), of the content and outcome of the information and consultation procedures.

14. (1) The representative body or the select committee may be assisted by experts of its choice.

(2) The reasonable costs of the representative body shall be borne by the SE which shall provide the body's members with the financial and material resources needed to enable them to perform their duties in an appropriate manner.

(3) In so far as is necessary for the fulfilment of their duties, the members of the representative body shall be entitled to time off for training without loss of wages.

Part 3

Standard Rules for participation

15. Employee participation in an SE shall be governed by the provisions of this Part.

16. Every member of the administrative body or, where appropriate, the supervisory body of the SE who has been elected, appointed or recommended by the representative body or, depending on the circumstances; by the employees shall be a full member with the same rights and obligations as the members representing the shareholders, including the right to vote.

SCHEDULE 2

Redress for Contravention of Regulation 19

Complaints to rights commissioner.

17. In this Part “relevant undertakings” means the participating companies, concerned subsidiaries or establishments and “relevant undertaking” means any one of those companies, subsidiaries or establishments.

Confidential information

18. (1) An individual who is or at any time was

(

a

) an employee,

(

b

) a member of

(i) the special negotiating body, or

(ii) the representative body,

(

c

) an employees’ representative in an information and consultation procedure, or

(

d

) an expert providing assistance,

shall not reveal any information which, in the legitimate interest of the relevant undertakings or the SE, has been expressly provided in confidence to him or her or to the body by the relevant undertakings or the SE.

(2) The duty of confidentiality imposed by paragraph (1) shall continue to apply after the cessation of the employment of the individual concerned or the expiry of his or her term of office.

(3) A relevant undertaking and the SE may refuse to communicate information to a special negotiating body, a representative body or employees or their representatives (or both) in an information and consultation procedure where the nature of that information is such that, by reference to objective criteria, it would

(

a

) seriously harm the functioning of one or more than one relevant undertaking or the SE, or

(

b

) be prejudicial to one or more than one relevant undertaking or the SE.

(4) The Court or any member of the Court or the registrar or any officer or servant of the Court, including any person or persons appointed by the Court as an expert or mediator, shall not disclose any information obtained by it in confidence in the course of any proceedings before it under these Regulations.

Protection of employees' representatives

19. (1) A relevant undertaking or an SE shall not penalise—

(

a

) a member of the special negotiating body,

(

b

) a member of the representative body,

(

c

) an employee's representative performing functions under an information and consultation procedure, or

(

d

) an employee's representative in the supervisory or administrative organ of an SE who is an employee of the SE, its subsidiaries or establishments or of a participating company,

for the performance of his or her functions in accordance with these Regulations.

(2) For the purposes of this Regulation, a person referred to in paragraph (1) is penalised if he or she—

(

a

) is dismissed or suffers any unfavourable change to his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(

b

) is the subject of any other action prejudicial to his or her employment.

(3) Schedule 2 has effect in relation to an alleged contravention of paragraph (1).

(4) Subject to paragraph (6), a person referred to in paragraph (1) shall be afforded any reasonable facilities, including time off, that will enable him or her to perform his or her functions as a member of the special negotiating body or representative body or as an employees' representative, as the case may be, promptly and efficiently.

(5) A person referred to in paragraph (1) shall be paid his or her wages for any period of absence afforded to him or her in accordance with paragraph (4).

(6) The granting of facilities under paragraph (4) shall have regard to the needs, size and capabilities of the participating company or the SE, as the case may be, concerned and shall not impair the efficient operation of the participating company or SE.

(7) This Regulation shall apply in particular to attendance by representatives at meetings of the special negotiating body or any other meetings within the framework of an agreement referred to in Regulation 8 or Schedule 1 or any meeting of the administrative or supervisory organ.

(8) If a penalisation of a person referred to in paragraph (1), in contravention of that paragraph, constitutes a dismissal of that person within the meaning of the Unfair Dismissals Acts 1977 to 2005, relief may not be granted to that person in respect of that penalisation both under Schedule 2 and under those Acts.

(9) This Regulation is in addition to, and not in substitution for, any rights enjoyed by an employee's representative, whether under any enactment or otherwise.

Dispute Resolution

20. (1) Disputes between one or more than one relevant undertaking or the SE and employees or their representatives (or both) concerning

(

a

) matters provided for in Regulations 5 to 12 relating to the special negotiating body,

(

b

) the negotiation, interpretation or operation of an agreement in relation to Regulations 4, 13 and 14,

(

c

) the interpretation or operation of the Standard Rules as provided for in Regulation 15 and Schedule 1,

(

d

) matters provided for in paragraphs (4), (5), (6) and (7) of Regulation 19, or

(

e

) a complaint by an employee or his or her representative (or both) that the SE is being or will be misused for the purpose of depriving employees of their rights to employee involvement or of withholding those rights,

may, subject to paragraph (2), be referred by one or more than one relevant undertaking, the SE, employees employed in the State or their representatives (or both) to the Court for investigation.

(2) Such a dispute may be referred to the Court only after—

(

a

) recourse to the internal dispute resolution procedure (if any) in place in the relevant undertaking or SE concerned has failed to resolve the dispute, and

(

b

) the dispute has been referred to the Commission which, having made available such of its services as are appropriate for the purpose of resolving the dispute, furnishes a certificate to the Court stating that the Commission is satisfied that no further efforts on its part will advance the resolution of the dispute.

(3) Having investigated a dispute under paragraph (1), the Court may make a recommendation in writing giving its opinion in the matter.

(4) Where, in the opinion of the Court, a dispute that is the subject of a recommendation under paragraph (3) has not been resolved, the Court may, at the request of—

(

a

) one or more than one relevant undertaking or the SE, or

(

b

) one or more employees or their representatives (or both),

and, following a review of all relevant matters, make a determination in writing.

(5) Disputes between one or more than one relevant undertaking or the SE and employees or their representatives (or both) concerning matters of confidential information provided for in Regulation 18 may be referred by—

(

a

) one or more than one relevant undertaking,

(

b

) the SE,

(

c

) one or more than one employee or his or her representatives (or both),

to the Court for determination.

(6) As regards a dispute referred to it under this Regulation, the Court shall—

(

a

) give the parties an opportunity to be heard by it and to present any evidence relevant to the dispute,

(

b

) make a recommendation or, as the case may be, determination in writing in relation to the dispute, and

(

c

) communicate the recommendation or, as the case may be, determination to the parties.

(7) The following matters, or procedures to be followed in relation to them, shall be determined by the Court, namely

(

a

) the procedure in relation to all matters concerning the initiation and hearing by the Court of a dispute under this Regulation;

(

b

) the times and places of hearings of such disputes;

(

c

) the publication and notification of recommendations and determinations of the Court;

(

d

) any matters consequential on, or incidental to, the matters referred to in subparagraphs (

a

) to (

c

).

(8) In deciding what constitutes confidential information, the Court may be assisted by a panel of experts.

(9) A party to a dispute under this Regulation may appeal from a determination of the Court to the High Court on a point of law and the decision of the High Court shall be final and conclusive.

(10) The Court may refer a question of law arising in proceedings before it under this Regulation to the High Court for determination and the decision of the High Court shall be final and conclusive.

Power of Court to administer oaths and compel witnesses

.

21. (1) The Court shall, on the hearing of a dispute referred to it for recommendation or determination under Regulation 20 or on the hearing of an appeal under Schedule 2, have power to take evidence on oath and for that purpose may cause to be administered oaths to persons attending as witnesses at that hearing.

(2) Any person who, upon examination on oath authorised by this section, wilfully makes any statement which is material for that purpose and which he or she knows to be false or does not believe to be true is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both.

(3) The Court may, by giving notice in that behalf in writing to any person, require that person to attend at such time and place as is specified in the notice to give evidence in relation to a dispute referred to the Court for recommendation or determination under Regulation 20 or an appeal under Schedule 2, or to produce any documents in his or her possession, custody or control which relate to any such matter.

(4) A notice under paragraph (3) may be given either by delivering it to the person to whom it relates or by sending it by post in a prepaid registered letter addressed to that person at the address at which he or she ordinarily resides or, in the case of a participating company, its subsidiary or establishment or an SE, at the address at which the entity concerned ordinarily resides or carries on any profession, business or occupation.

(5) A person to whom a notice under paragraph (3) has been given and who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000.

(6) A witness in a hearing of a dispute or appeal before the Court has the same privileges and immunities as a witness before the High Court.

Enforcement

22. (1) If—

(

a

) a party to a Court determination fails to carry out in accordance with its terms a determination of the Court in relation to a dispute under Regulation 20, or

(

b

) a party to a complaint under Schedule 2 fails to carry out in accordance with its terms a decision of a rights commissioner or a determination of the Court under that Schedule in relation to the complaint,

within the period specified in the determination or decision or if no such period is so specified within 6 weeks from the date on which the determination or decision is communicated to the parties, the Circuit Court shall, on application to it in that behalf by one or more of the parties to the dispute or complaint, without hearing any evidence (other than in relation to the matters aforesaid) make an order directing the party concerned to carry out the determination or decision in accordance with its terms.

(2) The reference in paragraph (1) to a determination of the Court or a decision of a rights commissioner is a reference to such a determination or decision in relation to which, at the end of the time for bringing an appeal against it, no such appeal has been brought or, if such an appeal has been brought it has been abandoned and the references to the date on which the determination or decision is communicated to the parties shall, in a case where such an appeal is abandoned, be read as references to the date of that abandonment.

(3) In an order under this Regulation providing for the payment of compensation of the kind referred to in paragraph 2(3)(

c

) of Schedule 2, the Circuit Court may, if in all the circumstances it considers it appropriate to do so, direct a relevant undertaking or an SE concerned to pay to the employee concerned interest on the compensation at the rate referred to in

section 22

of the

Courts Act 1981

(No.11 of 1981), in respect of the whole or any part of the period beginning 6 weeks after the date on which the determination of the Court or the decision of the rights commissioner is communicated to the parties and ending on the date of the order.

(4) An application under this Regulation to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the relevant undertaking or SE concerned has its principal place of business.

Link to other provisions

23. (1) Where an SE is a Community-scale undertaking or a controlling undertaking of a Community-scale group of undertakings within the meaning of the

Transnational Information and Consultation of Employees Act 1996

(No.20 of 1996) as amended by the European Communities (

Transnational Information and Consultation of Employees Act 1996

) (Amendment) Regulations 1999 (

S.I. No. 386 of 1999

), the provisions of that Act shall not apply to it or its subsidiaries.

(2) Notwithstanding paragraph (1), in relation to an SE referred to in that paragraph, if a special negotiating body decides in accordance with Regulation 11(1) not to open negotiations or to terminate negotiations already opened, the provisions of the

Transnational Information and Consultation of Employees Act 1996

(No.20 of 1996) as amended by the European Communities (

Transnational Information and Consultation of Employees Act 1996

) (Amendment) Regulations 1999 (

S.I. No. 386 of 1999

) shall apply.

(3) Any right to participation conferred on employees by any enactment or instrument thereunder, other than these Regulations, shall not apply to an SE.

(4) These Regulations are without prejudice to

(

a

) the existing rights to the involvement of employees as enjoyed by employees of the SE and its subsidiaries and establishments, other than participation in the bodies of the SE, and

(

b

) the rights to participation conferred on employees by any enactment or instrument thereunder applicable to the subsidiaries of the SE.

SCHEDULE 1

Standard Rules

Part 1

Composition of body representative of employees

STATUTORY INSTRUMENTS.

S.I. No. 623 of 2006

EUROPEAN COMMUNITIES (EUROPEAN PUBLIC LIMITED-LIABILITY COMPANY) (EMPLOYEE INVOLVEMENT) REGULATIONS 2006

S.I. No. 623 of 2006

EUROPEAN COMMUNITIES (EUROPEAN PUBLIC LIMITED-LIABILITY COMPANY) (EMPLOYEE INVOLVEMENT) REGULATIONS 2006

I, Micheál Martin, Minister for Enterprise Trade and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Council Directive No. 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees

1

, hereby make the following regulations

PART 1

Preliminary and General

Citation