NEW EU-WIDE TRADE STRATEGY OR THE HUGE GAP BETWEEN THEORETICAL VISION STATEMENTS AND PRACTICAL IMPLEMENTATION THREE LINE OF THOUGHTS --INVENTORY OF BUSINESS SERVICES TRADE BARRIERS --DIRECTIVE OF EU PARLIAMENT AND COUNCIL ON INTERNAL MARKET SERVICES  EUROPEAN COMPANY (SOCIETAS EUROPA-SE)  DIRECTIVE Jean-Marie Parasie

EUROPEAN COMPANY _AN EUROPEAN COMPANY SOCIETAS EUROPA SE IS APUBLIC LIMITED_LIABILITY COMPANY GOVERNED BY COMMUNITY LAW DIRECTLY APPLICABLE IN ALL MEMBER STATES _OCTOBER 2001 EU COUNCIL OF MINISTERS ADOPTED 2 INTERLINKED LEGAL INSTRUMENTS FOR CREATION OF EUROPEAN COMPANIES SE  REGULATION ON THE STATUTE FOR AN EUROPEAN SE  DIRECTIVE SUPPLEMENTING STATUTE FOR EUROPEAN COMPANY WITH REGARD TO INVOLVEMENT OF EMPLOYEES

EUROPEAN COMPANY SE _REGULATION AND NATIONAL TRANSPOSITIONS OF DIRECTIVE INTO FORCE ON OCTOBER 2004 IN ALL 25 MEMBER STATES OF THE ENLARGED EUROPEAN UNION TOGETHER WITH EUROPEAN ECONOMIC AREA EEA ICELAND LIECHTENSTEIN AND NORWAY _ESTABLISHMENT OF EUROPEAN COMPANY SE IS NOT AN OBLIGATION BUT AN OPTION _EACH COMPANY ESTABLISHED UNDER EUROPEAN COMPANY STATUTE MUST BE PRECEDED OR FOLLOWED BY ABBREVIATION SE

EUROPEAN COMPANY SE _MERGER PUBLIC LIMITED_LIABILITY COMPANIES FROM TWO MEMBER STATES CAN FORM AN SE BY MERGER _HOLDING PUBLIC AND PRIVATE LIMITED_LIABILITY COMPANIES FROM TWO MEMBER STATES CAN FORM A HOLDING _SUBSIDIARY ANY LEGAL ENTITIES GOVERNED BY PUBLIC OR PRIVATE LAW FROM TWO MEMBER STATES OR AND SE ITSELF CAN FORM A SUBSIDIARY SE _CONVERSION A PUBLIC LIMITED_LIABILITY COMPANY CAN CONVERT INTO AN SE IF IT HAS HAD A SUBSIDIARY IN ANOTHER MEMBER STATE FOR 2 YEARS SE MUST BE REGISTERED IN SAME MEMBER STATE WHERE ADMINISTRATIVE HEAD OFFICE IS LOCATED EXPECTED ADVANTAGES OF SETTING UP AN EUROPEAN COMPANY SE

IN PRACTICE EUROPEAN COMPANY STATUTE WILL MEAN THAT COMPANIES ESTABLISHED IN MORE THAN ONE MEMBER STATE WILL BE ABLE TO MERGE AND OPERATE EU_WIDE ON THE BASIS OF A SINGLE SET OF RULES AND UNIFIED MANAGEMENT ON REPORTING SYSTEM NO NEED TO SET UP FINANCIALLY EXPENSIVE AND ADMINISTRATIVELY TIMECONSUMING COMPLEX NETWORK OF SUBSIDARIES GOVERNED BY NATIONAL LAW SIGNIFICANT ADVANTAGES IN TERMS OF REDUCTIONS IN ADMINISTRATIVE AND LEGAL COSTS BECAUSE OF A SINGLE LEGAL STRUCTURE AND UNIFIED MANAGEMENT AND REPORTING SYSTEMS ATTRACTIVENESS OF ECS COULD BE REDUCED BECAUSE IT DE FACTO DOES NOT PROVIDE FOR ONE UNIFORM EUROPEAN CORPORATE FORM IN ALL MATTERS NOT REGULATED BY EU REGULATION SE WILL BE GOVERNED BY THE COMPANY LAW PROVISIONS OF THE MEMBER STATE IN WHICH IT IS REGISTERED MODALITIES AND POSSIBILITIES OF ESTABLISHMENT OF TRADE COMPANIES IN THE EU _INVOLVEMENT OF EMPLOYEES

THE DIRECTIVE UNDERSTANDS INVOLVEMENT OF EMPLOYEES AS ANY MECHANISM INCLUDING INFORMATION CONSULTATION AND PARTICIPATION THROUGH WHICH EMPLOYEES MAY EXERCISE AND INFLUENCE ON DECISIONS TO BE TAKEN WITHIN THE COMPANY ART 2 OF DIRECTIVE INFORMATION STANDS FOR INFORMING EMPLOYEES REPRESENTATIVES ON MATTER CONCERNING SE OR CONCERNING ONE OF ITS SUBSIDIARIES IN ANOTHER MEMBER STATE OR WHICH EXCEED THE POWERS OF THE DECISION MAKING ORGANS IN A SINGLE MEMBER STATE THE TIMING OF THE INFORMATION AND THE MANNER IN WHICH IT IS SUPPLIED MUST BE APPROPRIATE AND ITS COPNTENT ADEQUATE INVOLVEMENT OF EMPLOYEES CONSULTATION MEANS THE RIGHT OF EMPLOYEES REPRESENTATIVES TO EXPRESS OPINIONS ON MEASURES PLANNED BY SE THE TIMING MANNER AND CONTENT OF THIS CONSULTATION MUST ENABLE THAT THE OPINION CAN BE TAKEN INTO ACCOUNT IN THE DECISION MAKING PROCESS

PARTICIPATION MEANS THE RIGHT TO ELECT OR APPOINT SOME OF THE MEMBERS OF THE SE SUPERVISORY BOARD IN TWO TIER SYSTEM OR ADMINISTRATIVE BODY IN ONE TIER SYSTEM IT MAY ALSO SIGNIFY THE RIGHT TO RECOMMEND OR OPPOSE THE APPOINTMENT OF SOME OR ALL MEMBERS OF THESE COMPANY BOARDS DIRECTIVE PROCEDURES _SNB _THE DIRECTIVE PROVIDES FOR AN AGREEMENT NEGOTIATED BETWEEN THE PARTICIPATING COMPANIES AND A SPECIAL NEGOTIATING BODY SNB _STANDARD RULES _ACCORDINGLY THE DIRECTIVE PROVIDES FOR OBLIGATORY STANDARD RULES IN CASES WHERE THE NEGOTIATING PARTIES FAIL TO REACH AN AGREEMENT _AS A MATTER OF FACT NO INITIATIVE IS NEEDED BY THE EMPLOYEES _THE MANAGEMENT OR ADMINISTRATIVE BODIES OF THE PARTICIPATING COMPANIES SHOULD START POSSIBLE NEGOTIATIONS WITH EMPLOYEES REPRESENTATIVES ON ARRANGEMENTS FOR INVOLVEMENT IN SE AS MAJOR DIFFERENCE WITH EUROPEAN WORKS COUNCIL EWC DIRECTIVE FUNCTIONING OF SNB SPECIAL NEGOTIATING BODY

PARTICIPATION MEANS THE RIGHT TO ELECT OR APPOINT SOME OF THE MEMBERS OF THE SE SUPERVISORY BOARD IN TWO TIER SYSTEM OR ADMINISTRATIVE BODY IN ONE TIER SYSTEM IT MAY ALSO SIGNIFY THE RIGHT TO RECOMMEND OR OPPOSE THE APPOINTMENT OF SOME OR ALL MEMBERS OF THESE COMPANY BOARDS DIRECTIVE PROCEDURES _SNB _THE DIRECTIVE PROVIDES FOR AN AGREEMENT NEGOTIATED BETWEEN THE PARTICIPATING COMPANIES AND A SPECIAL NEGOTIATING BODY SNB _STANDARD RULES _ACCORDINGLY THE DIRECTIVE PROVIDES FOR OBLIGATORY STANDARD RULES IN CASES WHERE THE NEGOTIATING PARTIES FAIL TO REACH AN AGREEMENT _AS A MATTER OF FACT NO INITIATIVE IS NEEDED BY THE EMPLOYEES _THE MANAGEMENT OR ADMINISTRATIVE BODIES OF THE PARTICIPATING COMPANIES SHOULD START POSSIBLE NEGOTIATIONS WITH EMPLOYEES REPRESENTATIVES ON ARRANGEMENTS FOR INVOLVEMENT IN SE AS MAJOR DIFFERENCE WITH EUROPEAN WORKS COUNCIL EWC DIRECTIVE FUNCTIONING OF SNB SPECIAL NEGOTIATING BODY

PARTICIPATION MEANS THE RIGHT TO ELECT OR APPOINT SOME OF THE MEMBERS OF THE SE SUPERVISORY BOARD IN TWO TIER SYSTEM OR ADMINISTRATIVE BODY IN ONE TIER SYSTEM IT MAY ALSO SIGNIFY THE RIGHT TO RECOMMEND OR OPPOSE THE APPOINTMENT OF SOME OR ALL MEMBERS OF THESE COMPANY BOARDS DIRECTIVE PROCEDURES _SNB _THE DIRECTIVE PROVIDES FOR AN AGREEMENT NEGOTIATED BETWEEN THE PARTICIPATING COMPANIES AND A SPECIAL NEGOTIATING BODY SNB _STANDARD RULES _ACCORDINGLY THE DIRECTIVE PROVIDES FOR OBLIGATORY STANDARD RULES IN CASES WHERE THE NEGOTIATING PARTIES FAIL TO REACH AN AGREEMENT _AS A MATTER OF FACT NO INITIATIVE IS NEEDED BY THE EMPLOYEES THE MANAGEMENT OR ADMINISTRATIVE BODIES OF THE PARTICIPATING COMPANIES SHOULD START POSSIBLE NEGOTIATIONS WITH EMPLOYEES REPRESENTATIVES ON ARRANGEMENTS FOR INVOLVEMENT IN SE AS MAJOR DIFFERENCE WITH EUROPEAN WORKS COUNCIL EWC DIRECTIVE FUNCTIONING OF SNB SPECIAL NEGOTIATING BODY

PARTICIPATION MEANS THE RIGHT TO ELECT OR APPOINT SOME OF THE MEMBERS OF THE SE SUPERVISORY BOARD IN TWO TIER SYSTEM OR ADMINISTRATIVE BODY IN ONE TIER SYSTEM IT MAY ALSO SIGNIFY THE RIGHT TO RECOMMEND OR OPPOSE THE APPOINTMENT OF SOME OR ALL MEMBERS OF THESE COMPANY BOARDS DIRECTIVE PROCEDURES _SNB _THE DIRECTIVE PROVIDES FOR AN AGREEMENT NEGOTIATED BETWEEN THE PARTICIPATING COMPANIES AND A SPECIAL NEGOTIATING BODY SNB _STANDARD RULES _ACCORDINGLY THE DIRECTIVE PROVIDES FOR OBLIGATORY STANDARD RULES IN CASES WHERE THE NEGOTIATING PARTIES FAIL TO REACH AN AGREEMENT AS A MATTER OF FACT NO INITIATIVE IS NEEDED BY THE EMPLOYEES THE MANAGEMENT OR ADMINISTRATIVE BODIES OF THE PARTICIPATING COMPANIES SHOULD START POSSIBLE NEGOTIATIONS WITH EMPLOYEES REPRESENTATIVES ON ARRANGEMENTS FOR INVOLVEMENT IN SE AS MAJOR DIFFERENCE WITH EUROPEAN WORKS COUNCIL EWC DIRECTIVE FUNCTIONING OF SNB SPECIAL NEGOTIATING BODY

_THE SNB REPRESENTS THE EMPLOYEES IN THE NEGOTIATIONS WITH THE PARTICIPATING COMPANIES IN ORDER TO REACH A WRITTEN AGREEMENT ON THE INVOLVEMENT OF EMPLOYEES IN THE COMING SE _ IT IS CREATED AFTER THE COMPANIES MANAGEMENTS HAVE ANNOUNCED PLANS TO ESTABLISH AN SE THE SNB CAN REQUEST EXPERTS ASSISTANCE AND THE DIRECTIVE MENTIONS EXPLICITELY REPRESENTATIVES OF COMMUNITY TRADE UNION ORGANISATIONS SEATS ALLOCATION IN SNB _ACCORDING TO ART 3 OF DIRECTIVE THE SEATS ARE ALLOCATED PROPORTIONALLY AMONG THE MEMBER STATES IN WHICH THE PARTICIPATING COMPANIES HAVE EMPLOYEES FOR EVERY 10% OF THE TOTAL NUMBER OF EMPLOYEES OF THE FUTURE SE OR SE GROUP THE COUNTRY HAS THE RIGHT TO SEND ONE MEMBER TO THE SNB _ALL COUNTRIES CONCERNED WILL HAVE AT LEAST ONE REPRESENTATIVE ON THE SNB _IN CASE OF MERGER ADDITIONAL SEATS ARE FORESEEN BUT NOT MORE THAN 20% OF THE TOTAL NUMBER IN ORDER TO ENSURE THAT IF POSSIBLE ALL INVOLVED COMPANIES ARE REPRESENTED IN THE SNB _IT IS UP TO THE MEMBER STATES TO DEFINE HOW THEIR MEMBERS ARE ELECTED OR APPOINTED _MEMBER STATES MAY PROVIDE THAT REPRESENTATIVES OF TRADE UNIONS ARE ALLOWED TO BECOME SNB MEMBERS EVEN IF THEY ARE NOT EMPLOYEES ART 3 V DIRECTIVE

REPRESENTATIVE BODY RB _THE RB IS THE INFORMATION AND CONSULTATION BODY OF THE SE AND IS THE DISCUSSION PARTNER OF THE COMPETENT SE ORGAN AND SE WORKS COUNCIL _THE RB IS COMPOSED SOLELY OF EMPLOYEES OF THE SE _ ITS COMPOSITION RIGHTS AND FINANCIAL RESOURCES ARE DEFINED EITHER IN THE AGREEMENT BETWEEN THE SNB AND THE PARTICIPATING COMPANIES OR IN THE STANDARD RULES _IF THE SNB DECIDES NOT TO OPEN OR TO INTERRUPT NEGOTIATIONS THERE WILL BE A EUROPEAN WORK COUNCIL INSTEAD OF RB DURATION AND RESULTS OF NEGOTATIONS ON EMPLOYEE INVOLVEMENT

DURATION _NEGOTIATIONS ARE EXPECTED TO START AS SOON AS POSSIBLE AFTER COMPANIES EMBARK ON PLANS TO SET UP SE _THEY MAY TAKE UP TO 6 MONTHS AND CAN BE EXTENDED UP TO A TOTAL OF 1 YEAR AFTER THE ESTABLISHMENT OF SNB IF BOTH PARTIES AGREE ART 5 OF DIRECTIVE… CFR THE EWC DIRECTIVE ALLOWS A TIMEFRAME OF 3 YEARS MAXIMUM

RESULTS 3 POSSIBLE SCENARIOS  THE SNB DECIDES NOT TO OPEN OR TERMINATE NEGOTIATIONS… THE NATIONAL RULES ON INFORMATION AND CONSULTATION OF EMPLOYEES ENTER INTO FORCE AND THERE WILL BE ONLY A EUROPEAN WORK COUNCIL ART 13 I…THIS OPTION IS NOT POSSIBLE IN THE CASE OF A TRANSFORMATION INTO AN SE ART 3 VI OF DIRECTIVE  THE SNB AND THE COMPETENT ORGANS OF THE PARTICIPATING COMPANIES CONCLUDE AN AGREEENT ACCORDING TO ART 4 DIRECTIVE ON INVOLVEMENT OF EMPLOYEES IN SE… PARTNERS HAVE IN PRINCIPLE AUTONOMY WITH REGARD TO CONTENT OF AGREEMENT  THE SNB AND THE COMPETENT ORGANS OF THE PARTICIPATING COMPANIES FAIL TO COME TO AN AGREEMENT WITHIN THE TIMEFRAME OR AGREE VOLUNTARILY ON THE APPLICATION OF STANDARD RULES ART 7I DIRECTIVE

CONTENT OF AN AGREEMENT UNDER ART 4 OF DIRECTIVE SOME MINIMUM REQUIREMENTS _THE SCOPE OT THE AGREEMENT _THE COMPOSITION NUMBER OF MEMBERS AND ALLOCATION OF SEATS ON THE REPRESENTATIVE BODY RB _THE FUNCTIONS AND PROCEDURE FOR THE INFORMATION AND CONSULTATION OF THE RB _THE FREQUENCY OF THE MEETINGS _ THE FINANCIAL AND MATERIAL RESOURCES OF THE RB _THE DATE OF ENTRY INTO FORCE AND THE DURATION OF AGREEMENT

APPLICATION OF STANDARD RULES _STANDARD RULES ARE APPLIED IF NEGOTIATIONS BETWEEN THE SNB AND THE COMPETENT ORGANS OF THE PARTICIPATING COMPANIES FAIL _STANDARD RULES CANNOT BE REJECTED BY THE PARTICIPATING COMPANIES …. EITHER ALL COMPANIES ACCEPT THEM OR THEY HAVE TO DISPENSE WITH SE ALTOGETHER _IF SNB HAS DECIDED NOT TO OPEN OR TO ABORT NEGOTIATIONS THE STANDARDRULES ARE NOT APPLIED… ON THE OTHER HAND TWO PARTIES MAY DECIDE ON VOLUNTARY BASIS TO APPLY THE STANDARD RULES

APPLICATION OF STANDARD RULES _THE STANDARD RULES FOR PARTICIPATION ARE COMPULSORY ONLY IF AT LEAST ONE OF THE COMPANIES WAS PREVIOUSLY GOVERNED BY PARTICIPATION RULES…THEY AUTOMATICALLY INTRODUCED WHEN AT LEAST 25% MERGER SE OR 5O% HOLDING/SUBSIDIARY SE OF THE EMPLOYEES PREVIOUSLY HAD PARTICIPATION RIGHTS ART 7II OF DIRECTIVE…IF THE TRESHOLD IS NOT MET SNB CAN DECIDE TO APPLY THEM ANYWAY MEMBER STATES HAVE THE RIGHT TO OPT OUT WITH REGARD TO THE APPLICATION OF THE STANDARD RULES ON PARTICIPATION IN THE CASE OF A MERGER ART 7III AND ART 12 III REGULATION…IN THIS CASE THE SE CANNOT BE REGISTERED IN THE COUNTRY UNLESS AN ART 4 AGREEMENT HAS BEEN REACHED THE SNB HAS DECIDED NOT TO OPEN OR ABORT NEGOTIATIONS OR NONE OF THE COMPANIES PREVIOUSLY HAD PARTICIPATION

CONTENT OF STANDARD RULES STANDARD RULES REGULATE INFORMATION CONSULTATION AND PARTICIPATION MEMBER STATES MUST LAY DOWN STANDARD RULES WHICH ARE IN LINE WITH STANDARD PROVISIONS DEFINED IN DIRECTIVE ANNEX…THE STANDARD RULES OF COUNTRY IN WHICH SE IS TO BE HEADQUARTERED WILL BE APPLIED _THE DIRECTIVE CONTAIN GENERAL PROVISIONS ON STANDARD RULES LIMITING THE OPTIONS OF MEMBER STATES

OVERVIEW OF MAIN PROVISIONS CHAPTER I COMPOSITION OF REPRESENTATIVE BODY RB CHAPTER II INFORMATION AND CONSULTATION CHAPTER III BOARD LEVEL PARTICIPATION _ I… AN RB IS CREATED FOR INFORMATION AND CONSULTATION…ITS MEMBER ARE APPOINTED OR ELECTED IN ACCORDANCE WITH NATIONAL LEGISLATION AND PRACTICE _II…. STANDARD RULES FORESEE THE RIGHT TO BE INFORMED AND CONSULTED ON THE BASIS OF REGULAR REPORTS III…PARTICIPATION … IN CASE OF AN SE ESTABLISHED BY TRANFORMATION ALL PRIOR PARTICIPATION RULES REMAIN APPLICABLE TO SE

CONCLUSION _THE COMPLEXITY IS SUBSTANTIALLY HUGE _TRANSPOSITION AND IMPLEMENTATION OF DIRECTIVES AND REGULATIONS IN MEMBER STATES IS RECENT AND NOT MONITORED _GUIDELINES ARE MERELY IMPORTANT FOR SME _3 BASIC DOCUMENTS  COUNCIL DIRECTIVE 22 SEPTEMBER 1994 ON THE ESTABLISHMENT OF EUROPEAN WORKS COUNCIL OR PROCEDURE IN COMMUNITY SCALE UNDERTAKINGS AND COMMUNITY SCALE GROUPS OF UNDERTAKINGS FOR THE PURPOSES OF INFORMING AND CONSULTING EMLOYEES  COUNCIL REGULATION 8 OCTOBER 2001 ON STATUTE FOR AN EUROPEAN COMPANY SE  COUNCIL DIRECTIVE 8 OCTOBER SUPPLEMENTING THE STATUTE FOR AN EUROPEAN COMPANY WITH REGARD TO INVOLVEMENT OF EMPLOYEES