Employee Involvement (European Company) Regulations, 2004

L.N. 452 of 2004

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT, 2002

(ACT NO. XXII OF 2002)

Employee Involvement (European Company) Regulations, 2004

IN exercise of the powers conferred by article 48 of the

Employment and Industrial Relations Act, 2002, the Minister of

Education, Youth and Employment has made the following

regulations –

(1) The title of these regulations is the Employee

Involvement (European Company) Regulations, 2004.

(2) These regulations establish the arrangements for the

involvement of employees in the affairs of European public limited

liability companies ( known as Societas Europaea, hereinafter referred

to as “SE”), as referred to in Regulation (EC) No 2157#2001, thereby

giving effect to the relevant provisions of Council Directive 2001#86#EC

of the 8 th October 2001 supplementing the Statute for a European

Company with regard to the involvement of employees.

(1) For the purpose of these regulations>

(Regulation 10)

Standard Rules

Part 1> Composition of the body representative of the employees

1. In order to achieve the objective described in regulation 1, and in the cases

referred to in regulation 10, a representative body shall be set up in accordance with

the following rules.

(a) The representative body shall be composed of employees of the SE

and its subsidiaries and establishments elected or appointed from their number

by the employees’ representatives or, in the absence thereof, by the entire body

of employees.

(b) The election or appointment of members of the representative body

shall be carried out by the special negotiating body, in accordance with any method

it adopts.

(c) Where its size so warrants, the representative body shall elect a select

committee from among its members, comprising at most three members.

(d) The representative body shall adopt its rules of procedure.

(e) The members of the representative body are elected or appointed in

proportion to the number of employees employed in each Member State by the

participating companies and concerned subsidiaries or establishments, by

allocating in respect of a Member State one seat per portion of employees employed

in that Member State which equals 10 %, or a fraction thereof, of the number of

employees employed by the participating companies and concerned subsidiaries

or establishments in all the Member States taken together.

(f) The competent organ of the SE shall be informed of the composition of

the representative body.

(g) Four years after the representative body is established, it shall examine

whether to open negotiations for the conclusion of the agreement referred to in

regulations 8 and 10 or to continue to apply the standard rules adopted in

accordance with this Schedule.

2. Regulations 6 to 9 shall apply, mutatis mutandis, if a decision has been taken

to negotiate an agreement according to regulation 8, in which case the term “special

negotiating body” shall be replaced by “representative body”. Where, by the deadline

by which the negotiations come to an end, no agreement has been concluded, the

arrangements initially adopted in accordance with the standard rules shall continue to

apply.

Part 2> Standard rules for information and consultation

3. The competence and powers of the representative body set up in an SE shall

be governed by the following rules>-

(a) 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.

(b) Without prejudice to meetings held pursuant to paragraph (c), 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. The local managements shall be informed

accordingly.

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.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.

(c) 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. 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.

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.

In the case of a meeting organised with the 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.

The meetings referred to above shall not affect the prerogatives of the

competent organ.

(d) The parties present at the information and consultation meetings are to

agree as to how to conduct the procedure during the said meeting and in case of

disagreement then the parties should conduct the meeting alternately and establish

the procedure thereof.

Before any meeting with the competent organ of the SE, the representative

body or the select committee, where necessary enlarged in accordance with the

third subparagraph of paragraph (c), shall be entitled to meet without the

representatives of the competent organ being present.

(e) Without prejudice to regulation 11, the members of the representative

body shall inform the representatives of the employees of the SE and of its

subsidiaries and establishments of the content and outcome of the information

and consultation procedures.

(f) The representative body or the select committee may be assisted by

experts of its choice.

(g) In so far as this is necessary for the fulfilment of their tasks, the members

of the representative body shall be entitled to time off for training without loss of

wages.

(h) The 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.

In particular, the SE shall, unless otherwise agreed, bear the cost of organising

meetings and providing interpretation facilities and the accommodation and

travelling expenses of members of the representative body and the select

committee. However the obligation of the SE to cover the expenses of any experts

engaged by the special negotiating body or the representative body is limited to

those of one expert only.

Part 3> Standard rules for participation

4. Employee participation in an SE shall be governed by the following provisions>

(a) In the case of an SE established by transformation, if the rules of a

Member State relating to employee participation in the administrative or

supervisory body applied before registration, all aspects of employee participation

shall continue to apply to the SE. Paragraph (b) shall apply mutatis mutandis to

that end.

(b) In other cases of the establishing of an SE, the employees of the SE, its

subsidiaries and establishments and#or their representative body shall have the

right to elect, appoint, recommend or oppose the appointment of a number of

members of the administrative or supervisory body of the SE equal to the highest

proportion in force in the participating companies concerned before registration

of the SE.

If none of the participating companies was governed by participation rules

before registration of the SE, the latter shall not be required to establish provisions

for employee participation.

The representative body shall decide on the allocation of seats within the

administrative or supervisory body among the members representing the employees

from the various Member States or on the way in which the SE’s employees may

recommend or oppose the appointment of the members of these bodies according

to the proportion of the SE’s employees in each Member State. If the employees

of one or more Member States are not covered by this proportional criterion, the

representative body shall appoint a member from one of those Member States, in

particular the Member State of the SE’s registered office where that is appropriate.

Every member of the administrative body or, where appropriate, of 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.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press

“Act’” means the Employment and Industrial Relations Act,

2002<

“concerned subsidiary or establishment” means a subsidiary

or establishment of a participating company which is proposed to

become a subsidiary or establishment of the SE upon its formation<

“consultation” means the establishment of dialogue and

exchange of views between the body representative of the

employees or the employees’ representatives, or both, and the

competent organ of the SE, at a time, in a manner and with a content

which allows the employees’ representatives, on the basis of

information provided, to express an opinion on measures envisaged

by the competent organ which may be taken into account in the

decision-making process within the SE<

“information” means the informing of the body representative

of the employees or employees’ representatives, or both, by the

competent organ of the SE on 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 at a time, in a manner and with a

content which allows the employees’ representatives to undertake

an in-depth assessment of the possible impact and, where

appropriate, prepare consultations with the competent organ of the

SE<

“involvement of employees” means any mechanism, including

information, consultation and participation, through which

employees’ representatives may exercise an influence on decisions

to be taken within the company<

“Maltese employee” means an employee employed by an

undertaking established in Malta<

“Maltese member of the special negotiating body” means a

member of the special negotiating body elected or appointed by

Maltese employees<

“Member States” means a member state of the European

Union or the European Economic Area<

“participating companies” means the companies directly

participating in the establishing of an SE<

“participation” means the influence of the body representative

of the employees or the employees’ representatives, or both, in the

affairs of a company by way of the right to>

(a) elect or appoint some of the members of the

company’s supervisory or administrative organ, or

(b) recommend or oppose, or both, the appointment

of some or all of the members of the company’s supervisory

or administrative organ<

“representative body” means the persons elected or

appointed under the employee involvement agreement

referred to in regulation 8 or under the standard rules of

employee involvement in accordance with the provisions of

the Schedule, with the purpose of informing and consulting

the employees of an SE and its subsidiaries and establishments

situated in the Community and, where applicable, of

exercising participation rights in relation to the SE<

“SE” means any company established in accordance with

Council Regulation (EC) No 2157#2001 of the 8 th October

2001 on the Statute for a European Company (SE)<

“special negotiating body “ means the body established

in accordance with regulation 3 to negotiate with the

competent body of the participating companies regarding the

establishment of arrangements for the involvement of

employees within the SE<

“subsidiary” of a company means an undertaking over

which that company exercises a dominant influence defined

in accordance with regulation 2(4) to (9) of the European

Works Council Regulations, 2004.

(2) Subject to the provisions of sub-regulation (1) of this

regulation, terms and expressions used in these regulations shall, unless

the context otherwise requires, have the meaning assigned to them in

(3) In the absence of a definition given in these Regulations,

words and expressions used in these regulations which are also used in

Regulation (EC) No 2157#2001 or in Council Directive 2001#86#EC

have the same meaning as they have in the EC Regulation or Council

Directive.

(1) When the management of the participating companies

draw up a plan for the establishment of an SE whose registered office

shall be in Malta, they shall as soon as possible after>

(a) the date of publication of the draft terms of merger< or

(b) the creation of a holding company< or

(c) after agreement has been reached on a plan to form a

subsidiary or to transform into an SE, take the necessary measures

to start negotiations with the representatives of the companies’

employees on arrangements for the involvement of employees in

the SE.

(2) The competent organs of the participating companies

shall make arrangements for the establishment of a special negotiating

body, representative of the employees of the participating companies

and concerned subsidiaries and establishments, which shall be

constituted in accordance with regulation 4.

(3) The special negotiating body and the competent organs

of the participating companies shall have the task of reaching an

employee involvement agreement.

(4) In order to facilitate the negotiation procedures, the

measures referred to in sub-regulation (1) which the management of

the participating companies is obliged to take shall include the provision

of all the relevant information about the identity of the participating

companies, concerned subsidiaries or establishments, the number of

their employees and any matters related thereto, to the employees’

representatives of the participating company, its concerned subsidiaries

and establishments, or if no such representatives exist, to the employees

themselves. Such measures shall be taken within three weeks from the

date referred to in sub-regulation (1).

(5) For the purpose of these regulations, in order to calculate

the number of employees employed in subsidiaries and establishments

operating in Malta, account shall be taken of all employees, whether

such employees are on a definite or indefinite contract, and including

part-time employees whose part-time employment is their principal

employment in respect of which social security contributions are payable

under the Social Security Act.

(1) The special negotiating body shall be set up in accordance Election of

members of

with the following criteria>

special negotiating

body.

(a) the employees of the participating companies and

concerned subsidiaries or establishments in each Member State in

which employees are employed shall be entitled to elect or appoint

one member of the special negotiating body for each 10%, or a

fraction thereof, of the number of employees employed by the

participating companies and concerned subsidiaries or

establishments in all the Member States taken together<

(b) if, in the case of an SE to be established by merger,

following the election or appointment referred to in paragraph (a),

the members elected or appointed to the special negotiating body

do not include at least one member representing each participating

company which is registered and has employees in that Member

State and which will cease to exist as a separate legal entity on or

following the registration of the SE, the employees of that company

in respect of which there is no member shall be entitled to elect or

appoint an additional member to the special negotiating body,

provided that>

(i) the number of additional members which the

employees are entitled to elect or appoint shall not exceed

20% of the number of ordinary members elected or appointed

by virtue of paragraph (a) <

(ii) the composition of the special negotiating body

shall not entail a double representation of the employees

concerned< and

(iii) if the number of such companies is higher than

the number of additional seats, such additional seats shall be

allocated to participating companies in different Member

States having the highest number of employees by decreasing

order.

(2) If, following the appointment or election of members to

the special negotiating body in accordance with this regulation,

(a) changes are made to the participating companies,

concerned subsidiaries or establishments which result in the number

of ordinary or additional members which employees would be

entitled to elect or appoint under this regulation either increasing

or decreasing, the original appointment or election of members of

the special negotiating body shall cease to have effect and those

employees shall be entitled to elect or appoint the new number of

members in accordance with the provisions of these regulations<

and

(b) a member of the special negotiating body is no longer

willing or able to continue serving as such a member, the employees

whom he represents shall be entitled to elect or appoint a new

member in his place.

(1) The method of selection of the Maltese members of the

special negotiating body shall be by means of a ballot from amongst

eligible persons who satisfy the criteria laid down in regulation 5 (2)(d).

(2) The management of the participating companies to

which these regulations apply shall be responsible for arrangements

relating to the holding of the ballot of members to serve on the special

negotiating body according to the following criteria>

(a) in relation to the election of ordinary members under

regulation 4(1)(a) –

(i) if the number of members which Maltese employees

are entitled to elect to the special negotiating body is equal to

the number of participating companies which have employees

in Malta, there shall be separate ballots for the Maltese

employees in each participating company<

(ii) if the number of members which the Maltese

employees are entitled to elect to the special negotiating body

is greater than the number of participating companies which

have employees in Malta, there shall be separate ballots for

the Maltese employees in each participating company and

the management shall ensure, as far as practicable, that at

least one member representing each such participating

company is elected to the special negotiating body and that

the number of members representing each company is

proportionate to the number of employees in that company<

(iii) if the number of members which the Maltese

employees are entitled to elect to the special negotiating body

is smaller than the number of participating companies which

have employees in Malta, a single ballot shall be held in which

all the employees of the participating companies shall be

entitled to vote<

(b) in relation to the ballot of additional members under

regulation 4 (1) (b), the management shall hold a separate ballot in

respect of each participating company entitled to elect an additional

member.

(c) in a ballot in respect of a participating company, a

Maltese employee employed in that participating company or in

its concerned subsidiaries and establishments on the date or dates

of the election shall be entitled to vote<

(d) in a ballot in respect of a participating company, any

person who on the date of nomination of candidates was>

(i) a Maltese employee employed in that participating

company or in its concerned subsidiaries and establishments

who satisfied the criteria laid down in regulation 3 (5) and

who is in employment but not in their probationary period on

the date of nomination< or

(ii) if the management of that participating company

so permits, a representative of a trade union who is not an

employee of that participating company or its concerned

subsidiaries or establishments, is entitled to stand as a

candidate for election as a member of the special negotiating

body in that ballot<

(e)

the management shall>

(i) appoint an independent ballot supervisor to

supervise the conduct of the ballot of Maltese employees>

in the case where there is to be more than one ballot, the

management may appoint more than one independent ballot

supervisor each of whom shall supervise such of the separate

ballots as the management may determine, provided that each

separate ballot is supervised by a supervisor<

(ii) ensure that there is no interference with the carrying

out of his functions from the management<

(iii) comply with all reasonable requests made by a

ballot supervisor for the purposes of, or in connection with,

the carrying out of those functions<

(f) after the management has formulated proposals as to the

arrangements for the ballot of Maltese employees and before it

has published the final arrangements under paragraph (g) it shall,

so far as reasonably practicable, consult with the employees’

representatives on the proposed arrangements for the ballot of

Maltese employees< and

(g) the management must publish the final arrangements

for the ballot of Maltese employees in such manner as to bring

them to the attention of, so far as reasonably practicable, the Maltese

employees and of the employees’ representatives.

(3) The ballot supervisor shall establish the date>

(a) for nomination of candidates, which shall be on a date

within the second and third week from the date when the final

arrangements for the ballot of Maltese employees referred to in

regulation (2)(g) were finalized, and

(b) of the ballot itself which shall be held within two months

from the date of nomination of candidates referred to in sub-

paragraph (a).

(4) It shall be the duty of the ballot supervisor -

(a) to formally publish, as the case may be, the names of

the persons standing for election, and the results of the ballot held

to appoint the special negotiating body, in such a manner as to

make them available to the management of the participating

company, to the Maltese employees entitled to vote in the ballot

and the persons who stood as candidates, as soon as practicable,

and in any case within one week after the date of nomination of

candidates or the election or appointment of the members of the

special negotiating body<

(b) if the circumstances so warrant, to publish a report

concurrently with the results of the election of the special

negotiating body referred to in paragraph (a) stating–

(i) that any of the requirements for holding a fair

election were not met with the result that the outcome of the

ballot could have been different< or

(ii) that there was an interference with the carrying out

of his functions or a failure by management to comply with

all reasonable requests made by him with the result that he

was unable to form a proper judgement as to whether the

requirements for holding a fair election were met.

(5) The special negotiating body shall be considered to have

been established on the date of publication of the results of the ballot in

accordance with regulation 4(4)(a) provided that if the ballot supervisor

also issues a report in accordance with regulation 4(4)(b), the process

of election or appointment of the special negotiating body shall be

considered null and without effect and would have to be carried out

anew.

(6) The competent organs of the participating companies

shall, as soon as reasonably practicable and in any event by no later

than one month after the establishment of the special negotiating body,

inform their employees and those of their concerned subsidiaries and

establishments of the identity of the members of the special negotiating

body.

(7) Any Maltese employee or Maltese employees’

representative may within a period of one week beginning on the date

on which the management published the final arrangements in terms of

sub-regulation (2)(g), make a written complaint in relation to any aspect

relating to the election of the representatives to the special negotiating

body including the eligibility to stand for election, eligibility to vote or

the organisation of such a ballot, to the Director responsible for industrial

and employment relations, who shall investigate whether such a

complaint is well-founded and who may direct that appropriate measures

be taken by any person involved to eliminate any grounds for well-

founded complaints, and any decision taken by the Director on any

matter relating to the organisation of the ballot shall be final.

(8) Notwithstanding any requirement in these regulations

to hold a ballot, where the number of candidates on the day of nomination

equals the number of members to be elected to the special negotiating

body, these shall be considered to have been automatically appointed

to the special negotiating body, and this will obviate any requirement

to hold a ballot and the ballot supervisor shall publish this result in

accordance with regulation 5(4).

(9) Any costs relating to the whole process of nominations

and election in one or more companies, including payments made to a

ballot supervisor for supervising the conduct of the ballot, (whether or

not a report in accordance with sub-regulation (4) (b) has been made),

shall be borne by the participating companies operating in Malta.

(1) Each member of the special negotiating body shall have

one vote.

(2) Subject to sub-regulation (3) and to regulation 7, the

special negotiating body shall take decisions by an absolute majority of

its members, provided that such a majority also represents an absolute

majority of the employees.

(3) Any decision which would result in a reduction of

participation rights must be taken by two thirds of the members of the

special negotiating body, representing at least two thirds of the

employees and including the votes of members representing employees

in at least two Member States, when>

(a) an SE is to be established by a merger and at least

25% of the employees employed in the Member States by the

participating companies which are due to merge have participation

rights< or

(b) an SE is to be established by formation of a holding

company or of a subsidiary company and at least 50% of the total

number of employees employed in the Member States by the

participating companies have participation rights.

(4) For the purposes of sub-regulation (3), reduction of

participation rights means that the body representative of the employees

has a smaller proportion of members of the supervisory or administrative

organs of the SE than the highest proportion already existing within

any of the participating companies which gave participation rights to

its employees.

(4) The special negotiating body shall publish the details of

any decision taken under this regulation or under regulation 7 in such

manner as to bring the decision to the attention, so far as reasonably

practicable, of the employees whom they represent and such publication

shall take place as soon as reasonably practicable and, in any event no

later than 14 days, after the decision has been taken.

(5) For the purposes of negotiations, the special negotiating

body may be assisted by experts of its choice.

(6) The participating company or companies shall pay for

any reasonable expenses of the functioning of the special negotiating

body and any reasonable expenses relating to the negotiations that are

necessary to enable the special negotiating body to carry out its functions

in an appropriate manner< and this shall include the expenses of one

expert where the special negotiating body is assisted by experts of its

own choice.

(1) Subject to sub-regulation (2) and (3) , the special Decision not to

open or to terminate

negotiating body may decide not to open negotiations with the competent negotiations.

organs of the participating companies or to terminate any negotiations

already opened, and to rely on the rules of information and consultation

in force in the Member states where the SE has employees.

(2) The majority required to decide not to open or to

terminate negotiations shall be the votes of two thirds of the members

representing at least two thirds of the employees, including the votes of

members representing employees employed in at least two Member

States.

(3) The special negotiating body cannot take the decision

referred to in sub-regulation (1) in relation to an SE to be established

by transformation if any employees of the company to be transformed

have participation rights.

(4) The special negotiating body shall be reconvened only

if the employees or employees’ representatives make a valid request,

which request shall be>

(a)

in writing<

(b) made by at least 10% of the employees of, or by

employees’ representatives representing at least 10% of the

employees of-

(i) the participating companies, concerned subsidiaries

and establishments, or

(ii) where the SE has been registered, the SE, its

subsidiaries and establishments< and

(c) at the earliest, two years after the decision made under

sub-regulation (1) was or should have been published in accordance

with regulation 6(4) unless the special negotiating body and the

competent organs of the participating companies, concerned

subsidiaries and establishments or, where the SE has been

registered, the SE agrees to the special negotiating body being

reconvened earlier.

(1) The competent organs of the participating companies

and the special negotiating body are under a duty to negotiate in a spirit

of cooperation with a view to reaching an employee involvement

agreement.

(2) The duty referred to in sub-regulation (1) commences

one month after the date on which all the members of the special

negotiating body were elected or appointed and applies –

(a) for the period of six months starting with the day on

which the duty commenced or, where an employee involvement

agreement is successfully negotiated within that period, until the

completion of the negotiations<

(b) where the parties agree before the end of that six month

period that it is to be extended, for the period of twelve months

starting with the day on which the duty commenced or, where an

employee involvement agreement is successfully negotiated within

the twelve month period, until the completion of the negotiations.

(3) The competent organs of the participating company or

companies shall provide the special negotiating body with such

information as is necessary to keep it informed of the plan and progress

of establishing the SE up to the time the SE has been registered.

(4) Without prejudice to the autonomy of the competent

organs of the participating companies and the special negotiating body,

and subject to sub-regulation (6), the agreement referred to in sub-

regulation (1) between the competent organs of the participating

companies and the special negotiating body, shall specify>

(a)

the scope of the agreement<

(b) the composition, number of members and allocation of

seats on the representative body which will be the discussion partner

of the competent organ of the SE in connection with arrangements

for the information and consultation of the employees of the SE

and its subsidiaries and establishments<

(c) the functions and the procedure for the information and

consultation of the representative body<

(d) the frequency of meetings of the representative body<

(e) the financial and material resources to be allocated to

the representative body<

(f) if, during negotiations, the parties decide to establish

one or more information and consultation procedures instead of a

representative body, the arrangements for implementing those

procedures<

(g) if, during negotiations, the parties decide to establish

arrangements for participation, the substance of those arrangements

including, if applicable, the number of members in the SE’s

administrative or supervisory body which the employees will be

entitled to elect, appoint, recommend or oppose, the procedures as

to how these members may be elected, appointed, recommended

or opposed by the employees, and their rights<

(h) the date of entry into force of the agreement and its

duration, cases where the agreement should be renegotiated,

including the duty to renegotiate on changes in worker involvement

whenever a substantial change in the structure of the SE is foreseen,

and the procedure for its renegotiation.

(5) The agreement shall not, unless provision is made

otherwise therein, be subject to the standard rules referred to in the

Schedule to these regulations.

(6) In the case of an SE established by means of

transformation, the agreement shall provide for at least the same level

of all elements of employee involvement as the ones existing within the

company to be transformed into an SE.

Except where otherwise provided in these regulations, the

legislation applicable to the negotiation procedure provided for in

regulations 3 to 8 shall be the legislation of the Member State in which

the registered office of the SE is to be situated.

(1) Without prejudice to sub-regulation (2), where this

regulation applies, the competent organ of the SE and its subsidiaries

and establishments shall make arrangements for the involvement of

employees of the SE and its subsidiaries and establishments in

accordance with the standard rules on employee involvement set out in

the Schedule to these regulations when>

(a)

the parties agree that the standard rules shall apply< or

(b) the period specified in regulation 8(2)(a) or, where

applicable, paragraph (b) has expired without the parties reaching

an employee involvement agreement and -

(i) the competent organs of each of the participating

companies agree that the standard rules shall apply and so

continue with the registration of the SE< and

(ii) the special negotiating body has not taken any

decision under regulation 7(1) either not to open or to

terminate the negotiations referred to in that regulation.

(2) The standard rules set out in the Schedule to these

regulations (standard rules on participation) only apply>

(a) in the case of an SE established by transformation, if

the rules of a Member State relating to employee participation in

the administrative or supervisory body applied to a company

transformed into an SE<

(b) in the case of an SE established by merger if, before

registration of the SE, one or more forms of participation existed

in at least one of the participating companies and>

(i) either that participation applied to at least 25% of

the total number of employees of the participating companies

employed in the Member States,

(ii) or that participation applied to less than 25% of

the total number of employees of the participating companies

employed in the Member States but the special negotiating

body has decided that the standard rules of participation will

apply to the employees of the SE<

(c) in the case of an SE established by formation of a

holding company or subsidiary company if, before registration of

the SE, one or more forms of participation existed in at least one

of the participating companies and >

(i) either that participation applied to at least 50% of

the total number of employees of the participating companies

employed in the Member States<

(ii) or that participation applied to less than 50% of

the total number of employees of the participating companies

employed in the Member States but the special negotiating

body has decided that the standard rules of participation will

apply to the employees of the SE.

(3) Where the standard rules on participation apply and, if

more than one form of participation existed in the participating company,

the special negotiating body shall decide which of the existing forms of

participation shall exist in the SE and shall inform the competent organs

of the participating companies accordingly.

(1) A person who is or at any time was -

Reservation and

confidentiality.

(a)

a member of a special negotiating body<

(b) a member of a representative body<

(c) an employee member on a supervisory or administrative

organ< or

(d) an expert assisting a special negotiating body or a

representative body,shall not disclose any information or document

which is or has been in his possession by virtue of his position as

described in paragraphs (a) to (d) of this sub-regulation, which the

competent organ of an SE, a participating company or its concerned

subsidiaries or establishments has entrusted to him on

termsrequiring it to be held in confidence.

(2) In this regulation a person specified in sub-regulation

(1)(a) to (d) shall be referred to as a “recipient”.

(3) The obligation to comply with sub-regulation (1) is a

duty owed to the competent organ of a participating company or the SE

and a breach of such duty is actionable in damages accordingly.

(4) Where a dispute arises as to the confidentiality of

information or a document given to a recipient under regulation 11(1)

(a) (b) (c) the recipient whom the competent organ of a participating

company or the SE has entrusted with such information or document

on terms requiring it to be held in confidence, may refer the dispute to

the Industrial Tribunal for a decision as to whether it was reasonable

for the competent organ to require the recipient to hold the information

or document in confidence.

(5) If the Industrial Tribunal considers that the disclosure

of the information or the document by the recipient would not, or would

not be likely to, prejudice or cause serious harm to the undertaking, it

shall make a declaration that it was not reasonable for the competent

organ to require the recipient to hold the information or document in

confidence.

(6) If a declaration is made under sub-regulation (5), the

information or document shall not at any time thereafter be regarded as

having been entrusted to the recipient who made the application under

sub-regulation (4), or to any other recipient, on terms requiring it to be

held in confidence.

(7) The competent organ of an SE registered in Malta or a

participating company, or a concerned subsidiary registered in Malta is

not required to disclose any information or document to a recipient

when the nature of the information or document is such that, according

to objective criteria, the disclosure of the information or document would

seriously harm the functioning of, or would be prejudicial to, the SE,

participating company or any subsidiaries or establishments concerned.

(8) Where there is a dispute between the competent organ

of a participating company, concerned subsidiary or establishment or

an SE and a recipient as to whether the nature of the information or

document which the competent organ has failed to provide is such as is

described in sub-regulation (7), the competent organ or a recipient may

refer the dispute to the Industrial Tribunal for a decision as to whether

the information or document is of such a nature.

(9) If the Industrial Tribunal decides that the disclosure of

the information or document in question would not, according to

objective criteria, seriously harm the functioning of, or be prejudicial

to, the SE, participating company or any subsidiary or establishment

concerned, as the case may be, the Industrial Tribunal shall order the

competent organ to disclose the information or document, and the order

shall specify>

(a)

the information or document to be disclosed<

(b) the recipient or recipients to whom the information or

document is to be disclosed<

(c) any terms on which the information or document is to

be disclosed< and

(d) the date before which the information or document is to

be disclosed.

The competent organ of the SE and the representative body Operation of the

representative body

shall work together in a spirit of cooperation with due regard for their and procedure for

reciprocal rights and obligations, and this shall also apply to the the information and

consultation of

cooperation between the supervisory or administrative organ of the SE employees.

and the employees’ representatives in conjunction with a procedure for

the information and consultation of employees.

(1) The members of the special negotiating body, the Protection of

employees’

members of the representative body, any employees’ representatives representatives.

exercising functions under the information and consultation procedure

and any employees’ representatives in the supervisory or administrative

organ of an SE who are employees of the SE, its subsidiaries or

establishments or of a participating company shall, in the exercise of

their functions, enjoy the same protection and guarantees provided for

employees’ representatives in the Act.

(2) The protection and guarantees referred to in sub-

regulation (1) shall apply in particular to attendance at meetings of the

special negotiating body or representative body, any other meeting under

the agreement referred to in regulation 8(4)(f) or any meeting of the

administrative or supervisory organ, and to the payment of wages for

members employed by a participating company or the SE or its

subsidiaries or establishments during a period of absence necessary for

the performance of their duties.

No person shall use an SE for the purpose of depriving

employees of rights to employee involvement or withholding any such

rights.

It shall be the duty of>

(a) the management of establishments of an SE and the

supervisory or administrative organs of subsidiaries and of

participating companies which are situated in Malta, and

(b) the employees’ representatives or, as the case may be,

the employees themselves,to abide by the obligations laid down

by these regulations, regardless of whether or not the SE has its

registered office in Malta.

(1) Notwithstanding any provision to the contrary in the

European Works Council Regulations, 2004, and subject to sub-

regulation (2), where an SE is a Community-scale undertaking or a

controlling undertaking of a Community-scale group of undertakings

within the meaning of those regulations, the provisions of European

Works Council Regulations, 2004 shall not apply to them or to their

subsidiaries.

(2) Where the special negotiating body decides in

accordance with regulation 6 not to open negotiations or to terminate

negotiations already opened, the provisions of the European Works

Council Regulations, 2004 shall apply.

(3) Provisions on the participation of employees in company

bodies provided for in any relevant collective agreement shall not apply

to companies established in accordance with Regulation (EC) No

2157#2001 and covered by these regulations.

(4) These regulations shall not prejudice>

(a) the existing rights to involvement of employees provided

for by existing collective agreements 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 agreed

through a relevant collective agreement applicable to the

subsidiaries of the SE.

Any person who fails to comply with any obligation imposed Penalties.

on such person under these regulations shall be guilty of an offence and

shall, on conviction, be liable>

(a) to a fine (multa) of not less than 10 liri and not more

than fifty liri for every employee of all the participating companies,

concerned subsidiaries or establishments in relation to a failure by

the competent organ of the SE, of the participating company or

concerned subsidiary as the case may be, to comply with any

requirements provided for in these regulations<

(b) in relation to any other offence, a fine (multa) of not

less than five hundred liri and not more than five thousand liri.