Interinstitutional negotiations on the 'mobility' component of the legislative package on company law are entering their final stages. The next – and last –trilogue is scheduled for 5 March.
As a reminder, the package of measures aims to modernise European company law, including a proposal for a Directive laying down harmonised procedures for cross-border divisions and transfers and a targeted review for mergers (see EUROPE 12009).
"Three trilogues have taken place so far and progress has been made both at political and technical level", said Jytte Guteland (S&D, Sweden), replacing the rapporteur, Evelyn Regner (S&D, Austria), during an update on the ongoing negotiations on Tuesday 19 February in the European Parliament Legal Affairs Committee.
The co-legislators agreed on several points, including having a clear and easy procedure for companies wishing to carry out cross-border transactions, she said.
They also agreed to align several provisions of this Directive with the other proposal contained in the Company Law package, namely the Directive to facilitate the use of digital tools for company registration and the management of company information online, for which the co-legislators have already reached an agreement (see EUROPE 12187).
As for the role of the independent expert reviewing the cross-border transformation project, they would also agree that it should be assigned only an "auditor function".
The open points
Nevertheless, two major points remain open. First of all, how to tackle 'artificial arrangements'.
According to one parliamentary source, it is clear that the two co-legislators share the objective of avoiding any abuse in cross-border procedures. They would also both consider that the term 'artificial arrangement' lacks precision and would thus work towards a compromise that could contain a new structure and wording.
As a reminder, while the European Parliament wishes a clear and secure procedure set at EU level with a thorough assessment by the competent authority of the Member State of departure in case of serious doubts as to whether cross-border processing constitutes an artificial arrangement, in its text the Council has only made it a possibility and not an obligation (see EUROPE 12183).
Another open and controversial issue is the protection of workers' rights in cross-border transactions. This is one of the issues where the positions of the Council and Parliament are the furthest apart.
Parliament has indeed added new paragraphs in different articles to ensure that workers' rights to information and consultation are respected throughout the procedure. "The European Parliament wants to have reminders in the right places of the current EU framework on information and consultation rights", explained this parliamentary source.
The Council, on the other hand, is more hesitant and believes that this could create confusion in the text between workers' rights to information, consultation and participation.
The co-legislators would work on a compromise to return to the splitting of Article 86l, as provided for in the Commission's original proposal, the same source said.
In her view, Parliament could be open to this option, the important thing being that the content of these provisions should not be affected. (Original version in French by Marion Fontana)