Regulations, 2007

L.N. 48 of 2007

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT

(CAP. 452)

Employee Involvement (European Co-operative Society)

Regulations, 2007

IN exercise of the powers conferred by article 48 of the

Employment and Industrial Relations Act, the Minister of Education,

Youth and Employment has made the following regulations>–

(1) The title of these regulations is the Employee Title and scope.

Involvement (European Co-operative Society) Regulations, 2007.

(2) These regulations establish the arrangements for the

involvement of employees in the affairs of European Co-operative

Societies (hereinafter referred to as SCEs), as referred to in Regulation

(EC) No 1435#2003, thereby giving effect to the relevant provisions of

Council Directive 2003#72#EC of the 22 nd July 2003 supplementing the

Statute for a European Cooperative Society with regard to the

involvement of employees.

(1) For the purpose of these regulations>

(Regulations 11 and 12)

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 11, a representative body shall be set up in accordance with

the following rules.

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

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

SCE and its subsidiaries or establishments, by allocating in respect of a Member

State one seat per each portion of employees employed in that Member State

which equals 10%, or a fraction thereof, of the number of employees employed

by them in all the Member States taken together.

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

of the representative body.

(g) Not later than four years after its establishment, the representative body

shall examine whether to open negotiations for the conclusion of the agreement

referred to in regulations 9 and 11 or to continue to apply the standard rules

adopted in accordance with this Schedule.

2. Regulations 7 to 10 shall apply, mutatis mutandis, if a decision has been

taken to negotiate an agreement according to regulation 9, 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 SCE

shall be governed by the following rules>–

(a) The competence of the representative body shall be limited to questions

which concern the SCE 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 SCE 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 SCE and its prospects. The local management or administrative

organs shall be informed accordingly.

The competent organ of the SCE 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 members. The meeting shall relate in particular to the structure, economic and

financial situation, the probable development of the business and of production and

sales, initiatives with regard to corporate social responsibility, the situation and probable

trend of employment, investments, and substantial changes concerning organization,

the 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 SCE or any

more appropriate level of management within the SCE having its own powers of

decision, so as to be informed or 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 SCE with a view to seeking agreement.

In the case of a meeting organized 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 SCE, 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 14, the members of the representative

body shall inform the representatives of the employees of the SCE 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 fulfillment 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 SCE, 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 SCE shall, unless otherwise agreed, bear the cost of organizing

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 SCE 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 SCE shall be governed by the following

provisions>

(a) In the case of an SCE 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 SCE. Paragraph (b) shall apply mutatis mutandis to

that end.

(b) In other cases where an SCE is established, the employees of the SCE,

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 SCE equal to the highest

proportion in force in the participating legal entities concerned before registration

of the SCE.

If none of the participating legal entities was governed by participation rules before

registration of the SCE, 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 SCE’s employees may

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

the proportion of the SCE’s employees in each Member State. If the employees of one

or more of the 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 SCE’s registered office where that is appropriate.

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

body of the SCE 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 members of the

cooperative, including the right to vote.

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

Lm0.96 (€2.24)

Definitions.

“the Act” means the Employment and Industrial Relations Cap. 452.

Act<

“concerned subsidiary or establishment” means a subsidiary

or establishment of a participating legal entity which is proposed

to become a subsidiary or establishment of the SCE 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 SCE, 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 SCE<

“information” means the informing of the body representative

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

competent organ of the SCE on questions which concern the SCE

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

SCE<

“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 an undertaking<

“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 legal entities” means companies and firms

within the meaning of the second paragraph of Article 48 of the

Treaty establishing the European Community, including

cooperatives, as well as legal bodies formed under Maltese Law

directly participating in the establishment of an SCE<

“participation” means the influence of the body representative

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

affairs of a legal entity by way of>

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

of the legal entity’s supervisory or administrative organ, or

(b) the right to recommend or oppose, or both, the

appointment of some or all of the members of the legal entity’s

supervisory or administrative organ<

“representative body” means the body representative of the

employees set up by the agreements referred to in regulation 9 or

in accordance with the provisions of the Schedule, with the purpose

of informing and consulting the employees of an SCE and its

subsidiaries and establishments situated in the Community and,

where applicable, of exercising participation rights in relation to

the SCE<

“SCE” means any cooperative society established in

accordance with Council Regulation (EC) No 1435#2003 of the

22 nd July 2003<

“special negotiating body” means the body established in

accordance with regulation 4 to negotiate with the competent organ

of the participating legal entities regarding the establishment of

arrangements for the involvement of employees within the SCE<

“subsidiary” of a participating legal entity or of an SCE means

an undertaking over which that legal entity or SCE exercises a

dominant influence defined in accordance with regulation 2 (4) to

(9) of the European Works Council Regulations, 2004.

L.N. 324 of 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

the Act.

(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 1435#2003 or in Council Directive 2003#72#EC

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

Council Directive.

Regulations 4 to 11 of these regulations are applicable to SCEs SCEs established by

at least two legal

established by at least two legal entities or by transformation.

entities or by

transformation.

(1) When the management or administrative organs of Creation and

function of special

participating legal entities draw up a plan for the establishment of an negotiating body.

SCE in Malta, they shall as soon as possible take the necessary measures

to start negotiations with the representatives of the legal entities’

employees on arrangements for the involvement of employees in the

SCE.

(2) The competent organs of the participating legal entities

shall make arrangements for the establishment of a special negotiating

body, representative of the employees of the participating legal entities

and concerned subsidiaries or establishments, which shall be constituted

in accordance with regulation 5.

(3) The special negotiating body and the competent organs

of the participating legal entities 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 or

administrative organs of the participating legal entities are obliged to

take shall include the provision of all the relevant information about the

identity of the participating legal entities, concerned subsidiaries or

establishments and the number of their employees as well as any matters

related thereto, to the employees’ representatives of the participating

legal entity, 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 employment is their principal employment

as defined by the Part-Time Employees Regulations, 2002.

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

with the following criteria>

(a) the employees of the participating legal entities 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 in all the

Member States taken together<

(b) if, in the case of an SCE 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

cooperative 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 SCE, the employees of that

cooperative 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 cooperatives is higher than

the number of additional seats, such additional seats shall be

allocated by decreasing order to cooperatives in different

Member States having the highest number of employees.

(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 legal entities,

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 Conduct of ballot.

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

eligible persons who satisfy the criteria laid down in regulation 6 (2)

(2) The management or administrative organs of the

participating legal entities 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 5 (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 legal entities which have

employees in Malta, there shall be separate ballots for the

Maltese employees in each participating legal entity<

(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 legal entities which

have employees in Malta, there shall be separate ballots for

the Maltese employees in each participating legal entity and

the management or administrative organs shall ensure, as far

as practicable, that at least one member representing each

such participating legal entity is elected to the special

negotiating body and that the number of members representing

each legal entity is proportionate to the number of employees

in that legal entity<

(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 legal entities which

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

all the employees of the participating legal entities shall be

entitled to vote<

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

regulation 5 (1) (b), the management or administrative organs shall

hold a separate ballot in respect of each participating legal entity

entitled to elect an additional member<

(c) in a ballot in respect of a participating legal entity, a

Maltese employee employed in that participating legal entity 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 legal entity, any

person who on the date of nomination of candidates was>

(i) a Maltese employee employed in that participating

legal entity or in its concerned subsidiaries and establishments

who satisfied the criteria laid down in regulation 4 (5) and

who is in employment but not in his probationary period on

the date of nomination< or

(ii) a representative of a trade union, even if he is not

an employee of that participating legal entity 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 so long as the management or

administrative organs of that participating legal entity so

permit<

(e)

the management or administrative organs 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

or administrative organs may appoint more than one independent ballot

supervisor each of whom shall supervise such of the separate ballots as

the management or administrative organs 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 or administrative

organs<

(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 or administrative organs have

formulated proposals as to the arrangements for the ballot of

Maltese employees and before they have published the final

arrangements under paragraph (g) they shall, as far as reasonably

practicable, consult with the employees’ representatives on the

proposed arrangements for the ballot of Maltese employees< and

(g) the management or administrative organs 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

sub-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 or administrative organs

of the participating legal entity, 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 or administrative

organs 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 6 (4) (a) provided that if the ballot supervisor

also issues a report in accordance with regulation 6 (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 legal entities

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 or administrative organs 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 organization 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 organization of the

ballot shall be final.

(8) Notwithstanding any requirement in these regulations

to hold a ballot, where the number of candidates at the end of the period

allocated for nominations 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 6 (4).

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

and election in one or more legal entities, including payments made to

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

or not a report in accordance with subregulation 4 (b) has been made),

shall be borne by the participating legal entities operating in Malta.

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

special negotiating

one vote.

body.

(2) Subject to sub-regulation (3) and to regulation 8, 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 if -

(i) in the case of an SCE to be established by a merger, at

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

participating cooperatives which are due to merge have

participation rights< or

(ii) in the case of an SCE to be established by any other

way, at least 50% of the total number of employees employed in

the Member States by the participating legal entities 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 SCE than the highest proportion already existing within

any of the participating legal entities which gave participation rights to

its employees.

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

any decision taken under this regulation or under regulation 8 in such a

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.

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

body may be assisted by experts of its choice.

(7) The participating legal entity or entities 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-regulations (2) and (3) hereof, the special

open or to terminate

negotiating body may decide not to open negotiations with the competent

organs of the participating legal entities 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 SCE 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 SCE to be established

by transformation if any employees of the cooperative 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 legal entities, concerned

subsidiaries and establishments, or

(ii) where the SCE has been registered, the SCE, 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 7 (5) unless the special negotiating body and the

competent organs of the participating legal entities, concerned

subsidiaries and establishments or, where the SCE has been

registered, the SCE agrees to the special negotiating body being

reconvened earlier>

Provided that if the special negotiating body decides to reopen

negotiations with the management or administrative organs but no

agreement is reached as a result of those negotiations, none of the

provisions of the Schedule shall apply.

(1) The competent organs of the participating legal entities Negotiations on and

content of employee

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

of cooperation with a view to reaching an employee involvement agreement.

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 a 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 the six month

period referred to in paragraph (a) that it is to be extended, for a

period of twelve months starting from the day on which the duty

commenced or, where an employee involvement agreement is

successfully negotiated within this twelve month period, until the

completion of the negotiations.

(3) The competent organs of the participating legal entity

or entities shall provide the special negotiating body with such

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

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

(4) Without prejudice to the autonomy of the competent

organs of the participating legal entities 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 legal

entities 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 SCE in connection with arrangements

for the information and consultation of the employees of the SCE

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 SCE’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 and

the procedure for its renegotiation, including, where appropriate,

the duty to renegotiate on changes in worker involvement in the

event of structural changes in the SCE and its subsidiaries and

establishments which occur after the creation of the SCE.

(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 SCE 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

cooperative to be transformed into an SCE.

(7) The agreement may specify the arrangements for the

entitlement of employees to participate in the general meetings or in

the section or sectorial meetings in accordance with regulation 13 of

these regulations and any other arrangement emanating from article 59

(4) of Regulation (EC) No 1435#2003 on the Statute of the European

Cooperative Society.

Except where otherwise provided in these regulations, the Legislation

applicable to the

legislation applicable to the negotiation procedure provided for in negotiation

regulations 4 to 9 shall be the legislation of the Member State in which procedure.

the registered office of the SCE is to be situated.

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

employee

regulation applies, the competent organ of the SCE and its subsidiaries involvement.

and establishments shall make arrangements for the involvement of

employees of the SCE 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 9 (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

legal entities decide to accept that the standard rules shall

apply and so continue with the registration of the SCE, and

(ii) the special negotiating body has not taken any

decision under regulation 8 (1) either not to open or to

terminate the negotiations referred to in that regulation>

Provided that the standard rules shall apply from the date

of registration of the SCE.

(2) The standard rules on participation as set out in Part 3

of the Schedule to these regulations only apply>

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

the rules of a Member State relating to employee participation in

the administrative or supervisory body applied to a cooperative

transformed into an SCE<

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

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

in at least one of the participating cooperatives and>

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

the total number of employees of the participating

cooperatives employed in the Member States, or

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

total number of employees of the participating cooperatives

employed in the Member States and the special negotiating

body decides that the standard rules of participation will apply

to the employees of the SCE<

(c) in the case of an SCE established by any other way if,

before registration of the SCE, one or more forms of participation

existed in at least one of the participating legal entities and>

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

the total number of employees of the participating legal entities

employed in the Member States< or

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

total number of employees of the participating legal entities

employed in the Member States and the special negotiating

body decides that the standard rules of participation will apply

to the employees of the SCE.

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

more than one form of participation existed in the participating legal

entity, the special negotiating body shall decide which of the existing

forms of participation shall exist in the SCE and shall inform the

competent organs of the participating legal entities accordingly.

(1) This regulation is applicable to SCEs established SCEs established

exclusively by natural persons or by a single legal entity and natural exclusively

natural persons or

persons.

by a single legal

entity and natural

persons.

(2) The provisions of regulations 4 to 11 apply in the case

of an SCE established exclusively by natural persons or by a single

legal entity and natural persons, which together employ at least 50

employees in at least two Member States.

(3) In the case of an SCE established exclusively by natural

persons or by a single legal entity and natural persons, which together

employ fewer than 50 employees, or employ 50 or more employees in

only one Member State -

(i) employee involvement in the SCE itself shall be governed

by the law, applicable to other entities of the same type, of the

Member State where the SCE has its registered office<

(ii) employee involvement in its subsidiaries and

establishments shall be governed by the law, applicable to other

entities of the same type, of the Member State where they are

situated.

(4) In the case of transfer of the registered office of an SCE

governed by participation from one Member State to another, at least

the same level of employee participation rights shall continue to apply.

(5) If, after the registration of an SCE referred to in sub-

regulation (3), at least one third of the total number of employees of the

SCE and its subsidiaries and establishments in at least two different

Member States so requests, or if the total number of employees reaches

or exceeds 50 employees in at least two Member States, regulations 4

to 11 shall mutatis mutandis apply. In this case, the terms ‘participating

legal entities’ and’‘concerned subsidiaries or establishments’ shall be

replaced by the words ‘SCE’ and’‘subsidiaries or establishments of the

SCE’ respectively.

(1) Subject to the limits laid down in article 59 (4) of

Regulation (EC) No 1435#2003, the employees of the SCE or their

representatives or both are entitled to participate in the general meeting

or, if it exists, in the section or sectorial meeting, with the right to vote<

(a) when the parties so decide in the agreement referred to

in regulation 9, or

(b) when a cooperative governed by such a system

transforms itself into an SCE, or

(c) when, in the case of an SCE established by means other

than transformation, a participating cooperative was governed by

such a system and>

(i) the parties cannot reach agreement, as referred to

in regulation 9, by the deadline laid down in the same

regulation< and

(ii) regulation 11 (1) (b) and Part 3 of the Schedule

apply< and

(iii) the participating cooperative governed by such a

system has the highest proportion of participation, within the

meaning of regulation 2, in force in the participating

cooperatives concerned before registration of the SCE.

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

(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 SCE, a participating legal entity or its

concerned subsidiaries or establishments has entrusted to him on

terms requiring 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 legal entity or the

SCE 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, the recipient whom the

competent organ of a participating legal entity or the SCE 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 SCE registered in Malta or a

participating legal entity, 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 SCE,

participating legal entity or any subsidiaries or establishments concerned.

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

of a participating legal entity, concerned subsidiary or establishment or

an SCE 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 SCE, participating legal entity 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 SCE and the representative body

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

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

cooperation between the supervisory or administrative organ of the SCE

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

members of the representative body, any employees’ representatives

exercising functions under the information and consultation procedure

and any employees’ representatives in the supervisory or administrative

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

establishments or of a participating legal entity 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 9 (4) (f) or any meeting of the

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

members employed by a participating legal entity or the SCE or its

subsidiaries or establishments during a period of absence necessary for

the performance of their duties.

No person shall use an SCE for the purpose of depriving Misuse of

Procedures.

employees of rights to employee involvement or withholding any such

rights.

It shall be the duty of>

Compliance with

these regulations.

(a) the management or administrative organs of

establishments of an SCE and the supervisory or administrative

organs of subsidiaries and of participating legal entities 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 SCE has its

registered office in Malta.

(1) Notwithstanding any provision to the contrary in the Link between these

regulations and

European Works Council Regulations, 2004, and subject to sub- other provisions.

regulation (2), where an SCE 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 L.N. 324 of 2004.

subsidiaries.

(2) Where the special negotiating body decides in

accordance with regulation 8 not to open negotiations or to terminate

negotiations already opened, the provisions of the European Works

L.N. 324 of 2004.

Council Regulations, 2004 shall apply.

(3) Provisions on the participation of employees in legal

entity bodies provided for in any relevant collective agreement shall

not apply to the SCEs to which regulations 4 to 11 of these regulations

apply.

(4) These regulations shall not prejudice>

(a) the existing rights to involvement of employees provided

for by laws or applicable collective agreements as enjoyed by

employees of the SCE and its subsidiaries and establishments, other

than participation in the bodies of the SCE<

(b) the provisions on participation in the bodies in any

relevant law or as agreed through any collective agreement

applicable to the subsidiaries of the SCE or to SCEs to which

regulations 4 to 11 do not apply.

Any person who fails to comply with any obligation imposed

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 ten liri and not more

than fifty liri for every employee of all the participating legal

entities, concerned subsidiaries or establishments in relation to a

failure by the competent organ of the SCE, of the participating

legal entity 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.