The European Public Limited-Liability Company (Amendment etc.) (EU Exit) Regulations 2018

PART 4 Transitional and savings provisions

Provisions in respect of amendments made to the European Public Limited-Liability Company Regulations 2004 and Council Regulation 2157/2001/EC of 8 October 2001 on the Statute for a European Company

140.  In regulations 141 to 145—

“the 2004 Regulations” means the European Public Limited-Liability Company Regulations 2004(1);

“the 2006 Act” means the Companies Act 2006(2);

“the EC Regulation” means Council Regulation 2157/2001/EC of 8 October 2001 on the Statute for a European Company;

“SE” means a European Public Limited-Liability Company (or Societas Europaea) within the meaning of the EC Regulation, as it had effect immediately before exit day, that was registered in the United Kingdom;

“UK Societas” means a SE which on exit day converted to a UK Societas within the meaning of the EC Regulation.

141.  Despite the amendments and revocations made by these Regulations—

(a) regulation 13 of the 2004 Regulations (documents sent to the registrar), as it applies in respect of the application and modification of section 1094 of the 2006 Act(3); and

(b) regulation 14 of the 2004 Regulations (application of the 2006 Act to the registration of SEs), as it applies in respect of the application and modification of section 1084 of the 2006 Act,

continue to have effect, on and after exit day, in relation to an SE which dissolved before exit day.

142.—(1) To the extent that enactments or rules of law applied to a dissolved SE immediately before exit day, by virtue of applying to a public limited-liability company pursuant to the EC Regulation, they continue to apply to a dissolved SE after exit day.

(2) If an SE dissolved before exit day, and accordingly did not convert to a UK Societas under the EC Regulation, but after exit day is restored to the register, upon restoration it is deemed to have become a UK Societas on exit day.

143.—(1) Where the amendments made by regulation 28 would (apart from this paragraph) require a UK Societas’s register of supervisory organ members to contain additional particulars in respect of an existing corporate member, the UK Societas need not comply with that requirement until three months after exit day.

(2) In this paragraph, “existing corporate member” means a body corporate, or a firm that is a legal person under the law by which it is governed, whose particulars were contained in the UK Societas’s register of supervisory organ members immediately before exit day.

144.  Despite the amendments and revocations made by these Regulations, regulation 88 (effect of registration), together with paragraphs 2 to 9 of Schedule 4 (modifications of the Companies Acts) of the 2004 Regulations as they had effect immediately before exit day, continues to have effect on and after exit day, in respect of an SE that converted to a public limited-liability company in accordance with Article 66 of the EC Regulation, as it had effect immediately before exit day.

145.  Where an SE has converted on exit day to a UK Societas, that UK Societas is required to comply with the provisions in Part 6 (trading disclosures) of the Company, Limited Liability Partnership and Business (Names and Trading Disclosures) Regulations 2015(4) within the period of three months beginning on exit day.

Provisions in respect of amendments made to the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009

146.—(1) Despite the revocations and amendments made by these Regulations, an employee who was a member of a special negotiating body before exit day—

(a) may after exit day present a complaint to an employment tribunal under regulation 28 (right to time off: complaints to tribunals) of the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009, and regulation 28A (extension of time limit to facilitate conciliation before institution of proceedings) applies accordingly, that the employer—

(i) has unreasonably refused to permit the employee to take time off as required under regulation 26 (right to time off for members of special negotiating body etc.), or

(ii) has failed to pay the whole or any part of any amount to which the employee is entitled under regulation 27 (right to remuneration for time off under regulation 26),

provided the complaint is in respect of a time off before exit day;

(b) who is dismissed, is to be regarded as unfairly dismissed within the terms of regulation 29(2) and (3) (unfair dismissal), and regulation 30 (subsidiary provisions relating to unfair dismissal) applies accordingly, provided the reason (or, if more than one, the principal reason) for the dismissal occurred before exit day;

(c) has the right not to be subjected to any detriment within the terms of regulation 31(2) and (3) (detriment), and regulation 32 (detriment: enforcement and subsidiary provisions) applies accordingly, provided the grounds for the detriment occurred before exit day.

147.  In regulations 148 to 152—

“the pre-exit 2009 GB Regulations” means the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009, as they had effect immediately before exit day;

“the 2009 GB Regulations” means the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009;

“SE” means a European Public Limited-Liability Company (or Societas Europaea) within the meaning of the EC Regulation, as it had effect immediately before exit day.

148.  Despite the amendments and revocations made by these Regulations, regulations 3 and 7 to 18 of the pre-exit 2009 GB Regulations continue, on and after exit day, to have effect in relation to a special negotiating body reconvened under regulation 17 (decision not to open, or to terminate, negotiations) of the 2009 GB Regulations, as appropriate and practicable and subject to the modifications in regulation 149.

149.  The modifications to the pre-exit 2009 Regulations are as follows—

(a) references to “EEA State”, “an EEA State” or “EEA States” are to be read as though they were references to “Relevant State”, “a Relevant State” or “Relevant States”;

(b) references to “SE” or “SE’s” are to be read as if they were references to “UK Societas” or “UK Societas’s”—

(i) in regulation 3 (interpretation)—

(aa) in paragraph (1), in the definitions of “employee involvement agreement” and “participation”;

(bb) in paragraph (2), in the definitions of “information” and “consultation”;

(ii) in regulation 15(2)(g) and (3A);

(iii) in the definition of “reduction of participation rights” in regulation 16(3); and

(iv) in regulation 17(3)(b), (4)(b)(ii) and (c)(ii);

(c) otherwise, regulation 3 (interpretation) is to be read as if amended by these Regulations, save as if—

(i) in paragraph (1) the following definitions were not omitted—

(aa) “absolute majority vote”;

(bb) “agency worker”;

(cc) “participation”;

(dd) “SE established by merger”;

(ee) “SE established by formation of a holding company or subsidiary company”;

(ff) “SE established by transformation”;

(gg) “suitable information relating to the use of agency workers”;

(hh) “two thirds majority vote”;

(ii) “UK members of the special negotiating body”;

(ii) the definition of “information and consultation representative” were omitted;

(iii) after “participation” there were inserted—

““Relevant State” means an EEA State or the United Kingdom;”;

(iv) for the definition of “SE” there were substituted—

““SE” means a European Public Limited Liability Company (or Societas Europaea) within the meaning of the EC Regulation, as it had effect immediately before exit day;”;

(v) in paragraph (2), the definition of “special negotiating body” were to a special negotiating body reconvened after exit day under regulation 17 (decision not to open, or to terminate, negotiations) of these Regulations, as they have effect after exit day;

(d) regulation 14 (negotiations to reach an employee involvement agreement) is to be read as if paragraphs (2) and (3) were omitted.

150.  Regulations 146 to 149 are without prejudice to the application otherwise, in these circumstances, of the remaining regulations of the 2009 GB Regulations.

151.  If an employee involvement agreement is not agreed following the reconvening of a special negotiating body, the standard rules on employee involvement in the Schedule to the pre-exit 2009 GB Regulations do not apply.

152.  If an employee involvement agreement is agreed following the reconvening of a special negotiating body, the provisions of the 2009 GB Regulations apply thereafter.

Provisions in respect of amendments made to the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009

153.—(1) Despite the revocations and amendments made by these Regulations, an employee who was a member of a special negotiating body before exit day—

(a) may after exit day present a complaint to an industrial tribunal under regulation 28 (right to time off: complaints to tribunals) of the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009, that the employer—

(i) has unreasonably refused to permit the employee to take time off as required under regulation 26 (right to time off for members of special negotiating body etc.), or

(ii) has failed to pay the whole or any part of any amount to which the employee is entitled under regulation 27 (right to remuneration for time off under regulation 26),

provided the complaint is in respect of a time off before exit day;

(b) who is dismissed, is to be regarded as unfairly dismissed within the terms of regulation 29(2) and (3) (unfair dismissal), and regulation 30 (subsidiary provisions relating to unfair dismissal) applies accordingly, provided the reason (or, if more than one, the principal reason) for the dismissal occurred before exit day;

(c) has the right not to be subjected to any detriment within the terms of regulation 31(2) and (3) (detriment), and regulation 32 (detriment: enforcement and subsidiary provisions) applies accordingly, provided the grounds for the detriment occurred before exit day.

154.  In regulations 155 to 159—

“the pre-exit 2009 NI Regulations” means the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009, as they had effect immediately before exit day;

“the 2009 NI Regulations” means the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009;

“SE” means a European Public Limited-Liability Company (or Societas Europaea) within the meaning of the EC Regulation, as it had effect immediately before exit day.

155.  Despite the amendments and revocations made by these Regulations, regulations 3 and 7 to 18 of the pre-exit 2009 NI Regulations continue, on and after exit day, to have effect in relation to a special negotiating body reconvened under regulation 17 (decision not to open, or to terminate, negotiations) of the 2009 NI Regulations, as appropriate and practicable and subject to the modifications in regulation 156.

156.  The modifications to the pre-exit 2009 Regulations are as follows—

(a) references to “EEA State”, “an EEA State” or “EEA States” are to be read as though they were references to “Relevant State”, “a Relevant State” or “Relevant States”;

(b) references to “SE” or “SE’s” are to be read as if they were references to “UK Societas” or “UK Societas’s”—

(i) in regulation 3 (interpretation)—

(aa) in paragraph (1), in the definitions of “employee involvement agreement” and “participation”;

(bb) in paragraph (2), in the definitions of “information” and “consultation”;

(ii) in regulation 15(2)(g) and (3A);

(iii) in the definition of “reduction of participation rights” in regulation 16(3); and

(iv) in regulation 17(3)(b), (4)(b)(ii) and (c)(ii);

(c) otherwise, regulation 3 (interpretation) is to be read as if amended by these Regulations, save as if—

(i) in paragraph (1) the following definitions were not omitted—

(aa) “absolute majority vote”;

(bb) “agency worker”;

(cc) “participation”;

(dd) “SE established by merger”;

(ee) “SE established by formation of a holding company or subsidiary company”;

(ff) “SE established by transformation”;

(gg) “suitable information relating to the use of agency workers”;

(hh) “two thirds majority vote”;

(ii) “UK members of the special negotiating body”;

(ii) the definition of “information and consultation representative” were omitted;

(iii) after “participation” there were inserted—

““Relevant State” means an EEA State or the United Kingdom;”;

(aa) for the definition of “SE” there were substituted—

““SE” means a European Public Limited Liability Company (or Societas Europaea) within the meaning of the EC Regulation, as it had effect immediately before exit day;”;

(iv) in paragraph (2), the definition of “special negotiating body” were to a special negotiating body reconvened after exit day under regulation 17 (decision not to open, or to terminate, negotiations) of these Regulations, as they have effect after exit day;

(d) regulation 14 (negotiations to reach an employee involvement agreement) is to be read as if paragraphs (2) and (3) were omitted.

157.  Regulations 154 to 156 are without prejudice to the application otherwise, in these circumstances, of the remaining regulations of the 2009 NI Regulations.

158.  If an employee involvement agreement is not agreed following the reconvening of a special negotiating body, the standard rules on employee involvement in the Schedule to the pre-exit 2009 NI Regulations do not apply.

159.  If an employee involvement agreement is agreed following the reconvening of a special negotiating body, the provisions of the 2009 NI Regulations apply thereafter.

(1)

S.I. 2004/2326.

(2)

2006 c.46.

(3)

Section 1094 was amended by schedule 5(2), para 32(a)-(c) to the Small Business, Enterprise and Employment Act 2015 (c.26).

(4)

S.I. 2015/17.