S.I. No. 157/2008 - European Communities (Cross-Border Mergers) Regulations 2008

• (a) recourse to the internal dispute resolution procedure (if any) in place in the relevant company concerned has failed to resolve the dispute, and

• (b) the dispute has been referred to the Commission, and, having made available such of its services as are appropriate for the purpose of resolving the dispute, the Commission provides a certificate to the Court stating that the Commission is satisfied that no further efforts on its part will advance the resolution of the dispute.

• (3) Having investigated a dispute under paragraph (1), the Court may make a recommendation in writing, giving its opinion in the matter.

• (4) Where, in the opinion of the Court, a dispute that is the subject of a recommendation under paragraph (3) has not been resolved, the Court may, at the request of—

• (a) one or more relevant company, or

• (b) one or more employees or their representatives (or both),

and, following a review of all relevant matters make a determination in writing.

• (5) Disputes between any relevant company and employees or their representatives (or both) concerning matters of confidential information provided for in Regulation 38 may be referred by—

• (a) one or more relevant company, or

• (b) any employee of the company or his or her representatives (or both),

to the Court for determination.

• (6) In relation to a dispute referred to it under this Regulation, the Court shall—

• (a) give the parties an opportunity to be heard by it and to present any evidence relevant to the dispute,

• (b) make a recommendation or determination, as the case requires, in writing in relation to the dispute, and

• (c) communicate the recommendation or determination to the parties.

• (7) The following matters, or procedures to be followed in relation to them, shall be determined by the Court, namely:

• (a) the procedure in relation to all matters concerning the initiation and hearing by the Court of a dispute under this Regulation;

• (b) the times and places of hearings of such disputes;

• (c) the publication and notification of recommendations and determinations of the Court;

• (d) any matters consequential on, or incidental to, the matters referred to in subparagraphs (a) to (c).

• (8) In deciding what constitutes confidential information, the Court may be assisted by a panel of experts.

• (9) A party to a dispute under this Regulation may appeal from a determination of the Court to the High Court on a point of law and the decision of the High Court shall be final and conclusive.

• (10) The Court may refer a question of law arising in proceedings before it under this Regulation to the High Court for determination and the decision of the High Court shall be final and conclusive.

Power of Court to administer oaths and compel witnesses

41.

• (2) Any person who, upon examination on oath authorised by this Regulation, wilfully makes any statement which is material for that purpose and which he or she knows to be false or does not believe to be true commits an offence.

• (3) The Court may, by giving notice in that behalf in writing to any person, require that person to attend at such time and place as is specified in the notice to give evidence in relation to a dispute referred to the Court for recommendation or determination under Regulation 40 or an appeal under Schedule 2, or to produce any documents in the person’s possession, custody or control which relate to any such matter.

• (4) A notice under paragraph (3) may be given either by delivering it to the person to whom it relates or by sending it by post in a prepaid registered letter addressed to that person at the address at which he or she ordinarily resides or, in the case of a relevant company, at the address at which the relevant company ordinarily carries on any profession, business or occupation.

• (5) If a person to whom a notice under paragraph (3) has been given refuses or wilfully neglects to attend in accordance with the notice or, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates, that person commits an offence.

• (6) A witness in a hearing of a dispute or appeal before the Court has the same privileges and immunities as a witness before the High Court.

Enforcement

42.

• (a) a party to a Court determination fails to carry out in accordance with its terms a determination of the Court in relation to a dispute under Regulation 40, or

• (b) a party to a complaint under Schedule 2 fails to carry out in accordance with its terms a decision of a rights commissioner or a determination of the Court under that Schedule in relation to the complaint,

within the period specified in the determination or decision or if no such period is so specified within 6 weeks from the date on which the determination or decision is communicated to the parties, the Circuit Court shall, on application to it in that behalf by one or more of the parties to the dispute or complaint, without hearing any evidence (other than in relation to the matters aforesaid) make an order directing the party concerned to carry out the determination or decision in accordance with its terms.

• (2) The reference in paragraph (1) to a determination of the Court or a decision of a rights commissioner is a reference to such a determination or decision in relation to which, at the end of the time for bringing an appeal against it, no such appeal has been brought or, if such an appeal has been brought it has been abandoned, and the references to the date on which the determination or decision is communicated to the parties shall, in a case where such an appeal is abandoned, be read as references to the date of that abandonment.

• (3) In an order under this Regulation providing for the payment of compensation of the kind referred to in paragraph 2(3)(c) of Schedule 2, the Circuit Court may, if in all the circumstances it considers it appropriate to do so, direct a relevant company to pay to the employee concerned interest on the compensation at the rate referred to in section 22 of the Courts Act 1981 (No.11 of 1981), in respect of the whole or any part of the period beginning 6 weeks after the date on which the determination of the Court or the decision of the rights commissioner is communicated to the parties and ending on the date of the order.

• (4) An application under this Regulation to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the relevant company concerned has its principal place of business.

Workforce thresholds in other legislation

43.

Legal form of company

44.

Regulation 22

SCHEDULE 1 Standard Rules

PART 1 Composition of Body Representative of Employees

• (2) If such a decision has been taken to negotiate an agreement, Regulations 29 to 31 and 33 and 34 apply with the necessary modifications and, for that purpose, references in those Regulations to “special negotiating body” shall be construed as references to “representative body”.

• (3) Where, on the expiry of the time limit specified in Regulation 34 (as applied by this paragraph), no such agreement has been concluded, the arrangements initially adopted in accordance with the provisions of this Schedule continue to apply.

PART 2 Standard Rules for Information and Consultation

• (2) Without prejudice to meetings held pursuant to paragraph 13(1), the representative body has the right to be informed and consulted and, for that purpose, to meet with the competent organ of the successor company 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 successor company and its prospects, and the local management shall be informed accordingly.

• (3) The competent organ of the successor company 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.

• (4) 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.

• (2) The representative body, or where it so decides, in particular for reasons of urgency, the select committee, has the right to meet at its request the competent organ of the successor company, or any more appropriate level of management within the successor company having its own powers of decision, so as to be informed and consulted on measures significantly affecting employees’ interests.

• (3) Where the competent organ decides not to act in accordance with the opinion expressed by the representative body, the representative body has the right to a further meeting with the competent organ of the successor company with a view to seeking agreement.

• (4) In the case of a meeting organised with a select committee, those members of the representative body who represent employees who are directly concerned by the measures in question also have the right to participate.

• (5) The meetings referred to in this paragraph do not affect the prerogatives of the competent organ.

• (2) Without prejudice to Regulation 38, the members of the representative body shall inform the employees of the successor company or their representatives (or both), of the content and outcome of the information and consultation procedures.

• (2) The reasonable costs of the representative body shall be borne by the successor company, 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.

• (3) In so far as is necessary for the fulfilment of their duties, the members of the representative body shall be entitled to time off for training without loss of wages.

PART 3 Standard Rules for Employee Participation

• (2) If none of the participating companies was governed by employee participation rules before registration of the successor company, the company is not required to establish provisions for employee participation.

• (3) 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 EEA States or on the way in which the employees of the successor company may recommend or oppose the appointment of the members of these bodies according to the proportion of the company’s employees in each EEA State.

• (4) If, as a consequence of a decision under subparagraph (3), the employees of one or more EEA States are not covered by the proportional criterion, the representative body shall, where possible, appoint a member from one of those EEA States, in particular the EEA State where the successor company has its registered office where that is appropriate.

• (5) For the purposes of subparagraph (4) and the determination of the allocation of the seats given within the administrative or supervisory body to employees in the State, those members of the representative body representing employees in the State shall select, from amongst their number, a number of representatives equal to the number of seats available.

Regulation 39

SCHEDULE 2 Redress for Contravention of Regulation 39

Complaints to rights commissioner

• (2) Where a complaint under subparagraph (1) is made, the rights commissioner shall—

• (a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,

• (b) give a decision in writing in relation to it, and

• (c) communicate the decision to the parties.

• (3) A decision of a rights commissioner under subparagraph (2) shall do one or more of the following:

• (a) declare that the complaint was or, as the case may be, was not well founded;

• (b) require the relevant company to take a specified course of action;

• (c) require the relevant company to pay to the person referred to in subparagraph (1) compensation of such amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 2 years’ remuneration in respect of the person’s employment.

• (4) A rights commissioner shall not entertain a complaint under this Schedule if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

• (5) Notwithstanding subparagraph (4), a rights commissioner may entertain a complaint under this Schedule presented to him or her not later than 6 months after the expiration of the period referred to in subparagraph (4) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

• (6) A complaint shall be presented by giving notice of it in writing to a rights commissioner.

• (7) A copy of a notice under subparagraph (6) shall be given to the other party concerned by the rights commissioner concerned.

• (8) Proceedings under this paragraph before a rights commissioner shall be conducted otherwise than in public.

Appeals from decisions of rights commissioner

• (2) An appeal under this paragraph shall be initiated by the party concerned giving, within 6 weeks (or such greater period as the Court determines in the particular circumstances) from the date on which the decision to which it relates was communicated to the party, a notice in writing to the Court containing such particulars as are determined by the Court under subparagraph (4) and stating the intention of the party concerned to appeal against the decision.

• (3) A copy of a notice under subparagraph (2) shall be given by the Court to any other party concerned as soon as practicable after the receipt of the notice by the Court.

• (4) The following matters, or the procedures to be followed in relation to them, shall be determined by the Court, namely:

• (a) the procedure in relation to all matters concerning the initiation and the hearing by the Court of appeals under this paragraph,

• (b) the times and places of hearings of such appeals,

• (c) the representation of the parties to such appeals,

• (d) the publication and notification of determinations of the Court,

• (e) the particulars to be contained in a notice under subparagraph (2), and

• (f) any matters consequential on, or incidental to, the foregoing matters.

• (5) The Court may refer a question of law arising in proceedings before it under this paragraph to the High Court for determination, and the determination of the High Court shall be final and conclusive.

• (6) A party to proceedings before the Court under this paragraph may appeal to the High Court from a determination of the Court on a point of law and the determination of the High Court shall be final and conclusive.

Supplemental provisions

• (2) A rights commissioner shall maintain a register of all decisions given by him or her under paragraph 2(2) and shall make the register available for inspection by members of the public during normal office hours.

• (3) The Court shall publish, in a manner it considers appropriate, particulars of any determination made by it under subparagraph (4)(a), (b), (c), (e) and (f) of paragraph 3 (not being a determination as respects a particular appeal under that paragraph).

Regulation 8

SCHEDULE 3 Form for Notice under Regulation 8

GIVEN under my Official Seal,

27 May 2008

MARY COUGHLAN.

Minister for Enterprise, Trade and Employment.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations give effect to Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies.

Footnotes