S.I. No. 233/2023 - European Union (Cross - Border Conversions, Mergers and Divisions) Regulations 2023

“Standard Rules” means the rules set out in Schedule 2;

“trade union” means a trade union which holds a negotiation licence under Part II of the Trade Union Act 1941 ;

“wages” has the meaning assigned to it by the Payment of Wages Act 1991 (No. 25 of 1991).

Employee information and consultation

72.

• (a) Directive 2002/14/EC and, where applicable for Community-scale undertakings or groups of undertakings, in accordance with Directive 2009/38/EC, and

• (b) Directive 2001/23/EC where a cross-border merger or division is considered to be a transfer of an undertaking within the meaning of that Directive.

• (2) Notwithstanding Regulations 8(9), 12(1)(b), 29(10) (including as applied by Regulation 53) and 33(1)(b) (including as applied by Regulation 57), employees’ rights to information and consultation shall be respected, at least before the draft terms or common draft terms of the cross-border operation under Regulation 7, 28 or 52 or the report referred to in Regulations 8, 29 or 53 is decided upon, whichever is earlier, in such a way that a reasoned response is given to the employees before the general meeting referred to in Regulations 14, 35 or 59.

• (3) Without prejudice to any provisions or practices in force that are more favourable to employees, the practical arrangements for exercising the right to information and consultation shall be in accordance with Article 4 of Directive 2002/14/EC.

• (4) In this Regulation –

“Directive 2001/23/EC” means Council Directive 2001/23/EC of 12 March 2001¹⁴ on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses as amended by Directive 2015/1794 of the European Parliament and of the Council of 6 October 2015¹⁵ ;

“Directive 2002/14/EC” means Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002¹⁶ establishing a general framework for informing and consulting employees in the European Community as amended by Directive 2015/1794 of the European Parliament and of the Council of 6 October 2015¹⁷ ;

“Directive 2009/38/EC” means Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009¹⁸ on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (Recast) as amended by Directive 2015/1794 of the European Parliament and of the Council of 6 October 2015¹⁹ .

Requirement for employee participation

73.

• (2) Without prejudice to paragraph (3), the Irish resulting company or companies shall be subject to the rules in force in the State concerning employee participation, if any.

• (3) Notwithstanding paragraph (2), the rules in force concerning employee participation in the State, if any, shall not apply, where –

• (a) the participating company or, as the case may be at least one of the participating companies has, in the 6 months before the publication of the draft terms or common draft terms, an average number of employees equivalent to 4 fifths of the applicable threshold as specified in the law of the EEA state of the participating company, for triggering the participation of employees within the meaning of Regulation 2(1) of the European Communities (European Public Limited-Liability Company) (Employee Involvement) Regulations 2006 ( S.I. No. 623 of 2006 ), or

• (b) there is no provision in any enactment –

• (i) for at least the same level of employee participation as operated in the relevant participating companies, measured by reference to the proportion of employee representatives amongst the members of the administrative or supervisory organ or their committees or of the management group which covers the profit units of the company, subject to employee representation, or

• (ii) for employees of establishments of the resulting company or companies that are situated in other EEA states of the same entitlement to exercise employee participation rights as is enjoyed by those employees employed in the State.

• (4) In the cases referred to in paragraph (3), the participation of employees in the resulting company and their involvement in the definition of such rights shall be regulated in accordance with Regulations 74 to 94 and in accordance with Article 12(2), (3) and (4) of Council Regulation (EC) No 2157/2001 as given full effect by the European Communities (European Public Limited-Liability Company) Regulations 2007 ( S.I. No. 21 of 2007 ), and the following provisions of Council Directive 2001/86/EC of 8 October 2001²⁰ :

• (a) in the case of a cross-border conversion or a cross-border division, Article 3(1), points (a)(i) and (b) of Article 3(2), Article 3(3), the first 2 sentences of Article 3(4), Article 3(5) and (7), Article 4(1), points (a), (g) and (h) of Article 4(2), Article 4(3) and (4), Article 5, Article 6, Article 7(1) (with the exception of the second indent of point (b)), Articles 8, 10, 11 and 12, and point (a) of Part 3 of the Annex;

• (b) in the case of a cross-border merger, Article 3(1), (2) and (3), the first indent of the first subparagraph of Article 3(4), the second subparagraph of Article 3(4), Article 3(5) and (7), Article 4(1), Article 4(2)(a), (g) and (h), Article 4(3), Article 5, Article 6, Article 7(1), point (b) of the first subparagraph of Article 7(2), the second subparagraph of Article 7(2) and Article 7(3) (however, for the purposes of these Regulations, the percentages required by point (b) of the first subparagraph of Article 7(2) for the application of the standard rules contained in Part 3 of the Annex shall be raised from 25 per cent to 33 and 1/3 per cent), Articles 8, 10 and 12, Article 13(4) and point (b) of Part 3 of the Annex.

Requirement to begin negotiations with employees

74.

• (2) The steps to start negotiations shall include the provision of information about the identity of the participating company or companies, the number of employees in each (identified according to the EEA state in which they are located), and the number of such employees covered by an employee participation system.

• (3) The information referred to in paragraph (2) shall be supplied to the employees’ representative for that participating company or, where there is no such representative, to the employees themselves.

Chapter 2 Special Negotiating Body

Creation of special negotiating body

75.

• (2) The membership of the special negotiating body shall be determined in accordance with paragraphs (3) to (5) and the members shall be elected or appointed –

• (a) in the case of members to be elected or appointed to represent employees in the State, in accordance with the procedure specified in Regulations 76 and 77, and

• (b) in the case of members to be elected or appointed to represent employees in any other EEA state, in accordance with such procedures specified in laws or measures adopted by that EEA state.

• (3) Subject to paragraphs (4) and (5), seats on the special negotiating body shall be distributed in proportion to the number of workers employed in each EEA state by the participating company or companies by allocating in respect of a relevant EEA state one seat for each portion of employees employed in that EEA state which equals 10 per cent, or a fraction thereof, of the total number of employees employed by the participating companies in all relevant EEA states taken together.

• (4) In the case of cross border mergers only, there shall be such further additional members from each EEA state as are necessary to ensure that the special negotiating body includes at least one member representing each transferor company which is registered and has employees in that EEA state, but so that –

• (a) the number of additional members does not exceed 20 per cent of the number of members provided for by paragraph (3), and

• (b) the addition of members under this paragraph does not result in double representation of the employees concerned.

• (5) In the application of paragraph (4), if the number of those transferor companies is greater than the number of additional seats available, those additional seats shall be allocated in relation to those companies in decreasing order of the number of employees they employ.

Representation of Irish employees on special negotiating body

76.

• (2) Where the number of seats on the special negotiating body allocated to the State is equal to the number of participating companies which have employees in the State, there shall be at least one seat for each of the participating companies, and each member elected or appointed to fill such a seat shall be considered as representing the employees of the participating company that elected or appointed them.

• (3) Where the number of seats on the special negotiating body allocated to the State is greater than the number of participating companies which have employees in the State, there shall be one seat for each of the participating companies, and additional seats shall be allocated to participating companies in decreasing order of the number of employees they employ, and each member elected or appointed to fill a seat in accordance with this paragraph shall be taken to represent those employees of the companies that elected or appointed them.

• (4) Where the number of seats on the special negotiating body allocated to the State is less than the number of the participating companies which have employees in the State, the number of members equal to the number of available seats shall be elected or appointed according to the greatest number of votes won, and the representatives so elected or appointed shall between them represent the employees of the participating companies in the State that elected or appointed them.

• (5) The references in paragraphs (2), (3) and (4) to participating companies include the concerned subsidiaries or establishments of a participating company and, where the presence of a participating company in the State is only by virtue of the presence of its concerned subsidiaries or establishments, those entities are to be taken, for the purposes of those paragraphs, to constitute that participating company.

• (6) Employees of a participating company in which there are no employees’ representatives shall not, by virtue of that fact alone, be prevented from exercising their right to elect or appoint members of the special negotiating body.

• (7) An employee who is employed in the State by a participating company on the day the date or dates for the election of members of the special negotiating body conducted in accordance with Regulation 77 is or are fixed and who is, on the election day or days, an employee of such a company shall be entitled to vote in the election.

• (8) Each of the following is eligible to stand as a candidate in the election of members of the special negotiating body conducted in accordance with Regulation 77, namely:

• (a) an employee who has been employed in the State by the participating company, or as the case may be one or more of the participating companies for a continuous period of not less than one year on the nomination day;

• (b) a trade union official, whether or not he or she is an employee;

• (c) an official of an excepted body, whether or not he or she is an employee, provided that, in each case, he or she is nominated as such a candidate by –

• (i) a trade union or an excepted body which is already recognised by the relevant participating companies located in the State for collective bargaining or information and consultation purposes, or

• (ii) at least 2 employees.

Conduct of election

77.

• (2) The management or administrative organs of the participating companies shall, in consultation with employees or their representatives (or both), appoint one or more persons as returning officers (referred to collectively in this Regulation as the “returning officer”), whose duties include the organisation and conduct of nominations and the election, and any person so appointed may authorise other persons to assist in the performance of those duties.

• (3) Where the number of candidates on the nomination day exceeds the number of members to be elected, a poll or polls shall be taken by the returning officer and voting in the poll shall take place by a secret ballot on a day or days to be decided by the returning officer.

• (4) The returning officer shall perform the duties of that office in a fair and reasonable manner and in the interests of an orderly and proper conduct of nomination and election procedures.

• (5) As soon as is reasonably practicable after the result of the election is known, the returning officer shall make such arrangements as are necessary to ensure that the result is sent to the candidates, employees and employees’ representatives and to the management or administrative organs of the participating company or companies.

• (6) Once the result of the election is sent by the returning officer in accordance with paragraph (5), the candidates concerned shall be regarded as having been duly elected.

• (7) All reasonable costs of the nomination and election procedure in the election shall be borne by the management or administrative organs of the participating company or companies.

• (8) Where, for any reason, a vacancy arises amongst those of the members of the special negotiating body who have been elected in accordance with this Regulation, arrangements shall be made by the competent organs of the participating company or companies and the special negotiating body for that vacancy to be filled.

• (9) Where a member of the special negotiating body whose nomination for election was on the basis of his or her satisfying the requirement contained in Regulation 76(8)(a) ceases to be employed in any of the participating companies, that person shall cease to be a member of the special negotiating body.

• (10) Where a member of the special negotiating body whose nomination for election was on the basis of his or her satisfying the requirement contained in Regulation 76(8)(b) or (c) ceases to be an official of the trade union or excepted body concerned, that person shall cease to be a member of the special negotiation body.

Remit of special negotiating body

78.

• (2) With a view to concluding that agreement, the management or administrative organs of the participating company or companies shall –

• (a) convene a meeting with the special negotiating body and shall inform local managements accordingly, and

• (b) inform the special negotiating body of the plan, the expected timetable, and the actual process of carrying out the cross-border operation, up to its registration.

• (3) The management or administrative organs of the participating company or companies shall convene regular meetings as necessary with the special negotiating body in order to facilitate the negotiation of a written agreement referred to in paragraph (1).

• (4) The agreement referred to in paragraph (1) shall be binding on the entire group of companies within the company resulting from the cross-border operation, irrespective of the EEA state in which it was signed and the location of those companies.

Voting procedure in the special negotiating body

79.

• (a) an absolute majority of its members, with each member having one vote, and

• (b) an absolute majority of the employees represented by those members.

• (2) In the case of cross-border mergers only, if –

• (a) at least 25 per cent of the overall number of employees of the merging companies are covered by employee participation, and

• (b) the result of negotiations would lead to a reduction of employee participation rights,

the majority required for a decision to approve the entering into of an agreement under Regulation 78 is the votes of 2 thirds of the members of the special negotiating body representing at least 2 thirds of the total number of employees, including the votes of members representing employees employed in at least 2 EEA states.

• (3) For the purposes of paragraph (2), a reduction of employee participation rights occurs when the proportion of members of the organs of the successor company having employee participation rights is lower than the highest proportion existing within the merging companies.

• (4) Any decision made in accordance with paragraph (2) shall be brought to the attention of the employees by the special negotiation body as soon as reasonably practicable and, in any event, no later than 14 days after the making of the decision.

Engagement of experts by special negotiating body

80.

• (2) The experts may be representatives of appropriate EEA-level trade union organisations.

• (3) The experts may be present at negotiation meetings in an advisory capacity at the request of the special negotiating body, where appropriate to promote coherence and consistency at EEA-level.

• (4) The special negotiating body may decide to inform the representatives of appropriate external organisations, including trade unions and excepted bodies, of the start of the negotiations.

Expenses

81.

Chapter 3 Negotiations and Agreement

Spirit of cooperation

82.

• (2) In paragraph (1), “parties” means –

• (a) the competent organs of the participating companies and the special negotiating body, in relation to reaching an agreement in accordance with Regulation 78 on arrangements for the involvement of the employees within the resulting company or companies,

• (b) the competent organ of the resulting company or companies and the representative body as set out in Schedule 2, and

• (c) the supervisory or administrative organ of the resulting company or companies and the employees or their representatives (or both), with regard to a procedure for the information and consultation of employees.

Content of agreement

83.

• (a) the scope of the agreement,

• (b) the substance of any arrangements for employee participation that, in the course of the negotiations, the parties decide to establish, including, where applicable –

• (i) the number of members of the administrative or supervisory body of the resulting company whom the employees will be entitled to elect, appoint, recommend or oppose,

• (ii) the procedures as to how the members referred to in clause (i) may be elected, appointed, recommended or opposed by employees, and their rights, and

• (c) the date of entry into force of the agreement, its duration, the circumstances requiring renegotiation of the agreement and the procedure for its renegotiation.

• (2) Unless it otherwise provides, the agreement is not subject to the Standard Rules.

• (3) Without prejudice to the matters referred to in Article 13(3)(a) of Council Directive 2001/86/EC of 8 October 200120, in the case of a cross-border conversion or a cross-border division, the agreement shall provide for at least the same level of all elements of employee involvement as the ones existing within the participating company.

Duration of negotiations

84.

• (2) The parties may decide, by joint agreement, to extend negotiations beyond the period referred to in paragraph (1) up to a total of one year from the establishment of the special negotiating body.

• (3) In the case of cross-border mergers only, the special negotiating body may decide, by a majority of 2 thirds of its members representing at least 2 thirds of the employees, including the votes of members representing employees in at least 2 different EEA states, not to open negotiations or to terminate negotiations already opened and to rely on the rules on employee participation in force in each of the EEA states (including the State) where the successor company has its employees.

• (4) A decision under paragraph (3) shall terminate the procedure referred to in Regulation 78 for the conclusion of an agreement, and Schedule 2 shall not apply.

Standard Rules

85.

• (a) the parties so agree, or

• (b) no agreement has been concluded within the time limit specified in Regulation 84, and –

• (i) the management or administrative organs of the participating company or companies decide to accept the application of the Standard Rules in relation to the resulting company and, on that basis, to continue with the cross-border operation, and

• (ii) in the case of cross-border mergers only, the special negotiating body of the merging company has not made a decision under Regulation 79(2).

• (2) In the case of cross-border mergers only, Part 3 of Schedule 2 applies to the successor company only if, before registration of the successor company –

• (a) one or more forms of employee participation applied to one or more of the merging companies employing at least 33 per cent of the total number of employees in all merging companies in each of the EEA states concerned, or

• (b) one or more forms of employee participation applied in one or more of the merging companies employing less than 33 per cent of the total number of employees in all the merging companies in the EEA states and the special negotiating body decides that the rules set out in that Part are to apply.

• (3) In the case of cross-border mergers only, where there was more than one form of employee participation within the various merging companies, the special negotiating body shall choose which of those forms shall be established in the company resulting from the cross-border merger.

• (4) The special negotiating body shall inform the management or administrative organs of the merging companies of any decisions taken pursuant to paragraph (3).

• (5) In the case of cross-border mergers only, the relevant organs of the merging companies, in the event that at least one of the merging companies is operating under an employee participation system within the meaning of point (k) of Article 2 of Council Directive 2001/86/EC of 8 October 200120, may choose without any prior negotiation to be directly subject to the Standard Rules and to abide by them from the date of registration of the successor company.

• (6) For all 3 cross border operations, where, following prior negotiations, the Standard Rules apply, the parties may, notwithstanding those Rules, agree to limit the proportion of employee representatives in the administrative organ of the resulting company or companies, but if in one of the participating companies employee representatives constituted at least one third of the administrative or supervisory board, the limitation may not result in a lower proportion of employee representatives than one third in the administrative organ of the resulting company or companies.

• (7) Where, in accordance with paragraph (6), the parties agree to limit the proportion of employee representatives in the administrative organ, the majority required for such a decision shall be the votes of –

• (a) 2 thirds of the employees including the votes of employees employed in at least 2 EEA states, or

• (b) 2 thirds of the members of the representative body representing at least 2 thirds of the total number of employees, including the votes of members representing employees employed in at least 2 EEA states.

Chapter 4 Supplementary

Definition

86.

“relevant company” means –

• (a) a converting company, a merging company, or a dividing company;

• (b) in relation to a merger by formation of a new company, the successor company, and

• (c) in relation to a division, the recipient company or companies;

“merger by formation of a new company” has the meaning assigned to it by Regulation 25.

Protection of employee participation rights

87.

Confidential information

88.

• (a) an employee of a relevant company,

• (b) a member of –

• (i) the special negotiating body, or

• (ii) the representative body,

• (c) an employees’ representative for the purposes of these Regulations, or

• (d) an expert providing assistance,

shall not reveal any information which, in the legitimate interest of any relevant company, has been expressly provided in confidence to him or her or to the body by a relevant company.

• (2) The duty of confidentiality imposed by paragraph (1) continues to apply after the cessation of the employment of the individual concerned or the expiry of his or her term of office.

• (3) A relevant company may refuse to communicate information to a special negotiating body where the nature of that information is such that, by reference to objective criteria, it would –

• (a) seriously harm the functioning of any relevant company, or

• (b) be prejudicial to any relevant company.

• (4) The Court or any member of the Court or the Registrar or any officer or servant of the Court, including any person or persons appointed by the Court as an expert or mediator, shall not disclose any information obtained in confidence in the course of any proceedings before the Court under these Regulations.

Protection of employees’ representatives

89.

• (a) a member of the special negotiating body,

• (b) a member of the representative body,

• (c) an employees’ representative performing functions under these Regulations, or

• (d) an employees’ representative in the supervisory or administrative organ of a resulting company who is an employee of that company or of a participating company,

for the performance of his or her functions in accordance with these Regulations.

• (2) For the purposes of this Regulation, a person referred to in paragraph (1) is penalised if that person –

• (a) is dismissed or suffers any unfavourable change to his or her conditions of employment or any unfair treatment (including selection for redundancy), or

• (b) is the subject of any other action prejudicial to his or her employment.

• (3) Schedule 3 has effect in relation to an alleged contravention of paragraph (1).

• (4) Subject to paragraph (6), a person referred to in paragraph (1) shall be afforded any reasonable facilities, including time off, that will enable him or her to perform promptly and efficiently his or her functions as a member of the special negotiating body or representative body or as an employees’ representative, as the case may be.

• (5) A person referred to in paragraph (1) shall be paid his or her wages for any period of absence afforded to him or her in accordance with paragraph (4).

• (6) The granting of facilities under paragraph (4) shall have regard to the needs, size and capabilities of the relevant company and shall not impair the efficient operation of that company.

• (7) This Regulation applies in particular to attendance by representatives at meetings of the special negotiating body or representative body or any other meetings within the framework of an agreement referred to in Regulation 83 or Schedule 2 or any meeting of the administrative or supervisory organ.

• (8) Subject to paragraph (9), this Regulation is in addition to, and not in substitution for, any rights enjoyed by an employees’ representative, whether under any enactment or otherwise.

• (9) If a penalisation of a person referred to in paragraph (1), in contravention of that paragraph, constitutes a dismissal of that person within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to that person in respect of that penalisation both under Schedule 3 and under those Acts.

Dispute resolution

90.

• (a) matters provided for in Regulations 75 to 81 relating to the special negotiating body,

• (b) the negotiation, interpretation or operation of an agreement in relation to Regulation 74, 83 or 84,

• (c) the interpretation or operation of the Standard Rules as provided for in Regulation 85 and Schedule 2, and

• (d) a matter provided for in paragraph (4), (5), (6) or (7) of Regulation 89, or

• (e) a complaint by an employee or his or her representative (or both) that, in relation to Regulation 87, the company resulting from any subsequent domestic merger or division is being or will be misused for the purpose of depriving employees of their rights to employee involvement or of withholding those rights,

may be referred by one or more relevant company, employees employed in the State or their representatives (or both) to the Court for investigation.

• (2) A dispute may be referred to the Court only after –

• (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 88 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:

• (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

91.

• (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 a category 2 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 90 or an appeal under Schedule 3, 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 a category 2 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

92.

• (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 90, or

• (b) a party to a complaint under Schedule 3 fails to carry out in accordance with its terms a decision of an adjudication officer 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 an adjudication officer 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 construed 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(1)(c) of Schedule 3, 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 adjudication officer 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

93.

Legal form of company

94.

PART 6 Miscellaneous

Consequential amendments

95.

Revocation and savings

96.

• (2) The Regulations of 2008 shall continue to have effect in relation to an Irish merging company that has delivered the common draft terms and notice referred to in Regulation 8(1) of the Regulations of 2008 to the Registrar in accordance with that Regulation before the day on which these Regulations come into operation, notwithstanding the revocation of the Regulations of 2008 under paragraph (1).

• (3) In this Regulation, “Regulations of 2008” means the European Communities (Cross-Border Mergers) Regulations 2008 ( S.I. No. 157 of 2008 ).

SCHEDULE 1 FORMS FOR NOTICE UNDER REGULATIONS 12, 33 AND 57

PART 1 CROSS-BORDER CONVERSION

CBC1 Notice of Proposed Cross Border Conversion

Regulation 12 of the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023

Company Details	Company Details
Company number:
Company name:
1. Draft Terms and Notice	1. Draft Terms and Notice
Please attach a copy of the Draft Terms and Notice to creditors, members and employees:
OR
If publishing Draft Terms and Notice to company website, please provide details of the website address:
Please provide an indication of the arrangements made for exercise of the rights of employees, creditors and members:
2. Add Proposed Converted Company Details	2. Add Proposed Converted Company Details
Proposed name:
Proposed legal form:
Proposed location of the registered office:
Please upload details indicating the arrangements made for the exercise of the rights of employees, creditors, and members:
Submission Attachments	Submission Attachments
Type	Description
Verification Details
Signature method:
Signature type:
Person name:
Presenter Details
Presenter name:
Presenter address:
Presenter Email:
Presenter telephone number:
DX number:
DX exchange:
An Irish company regulated by the Central Bank of Ireland (the Bank) must notify the Bank of a proposed cross-border conversion 90 days before the date set for the general meeting.	An Irish company regulated by the Central Bank of Ireland (the Bank) must notify the Bank of a proposed cross-border conversion 90 days before the date set for the general meeting.

PART 2 CROSS-BORDER MERGER

CBM1 Notice of Proposed Cross Border Merger

Regulation 33 of the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023

Company Details	Company Details
Company number:
Company name:
Type of Merger	Type of Merger
By acquisition:
By absorption:
By formation of a new company:
1. Common Draft Terms and Notice	1. Common Draft Terms and Notice
Please attach a copy of the Draft Terms and Notice to creditors, members and employees:
Or
If publishing Draft Terms and Notice to company website, please provide details of the website address:
Please provide an indication of the arrangements made for exercise of the rights of employees, creditors and members:
2. Details of each Merging Company	2. Details of each Merging Company
Name:
Legal form:
Location of the registered office:
Register in which documents are filed:
Registration number:
Please upload details indicating the arrangements for the exercise of the rights of employees, creditors, and members:
3.1 Merger by Acquisition	3.1 Merger by Acquisition
Name:
Legal form:
Location of the registered office:
Register in which documents are filed:
Registration number (if Irish company):
3.2 Merger by Absorption	3.2 Merger by Absorption
Name:
Legal form:
Location of the registered office:
Register in which documents are filed:
Registration number:
3.3 Merger by Formation of a New Company	3.3 Merger by Formation of a New Company
Proposed name:
Proposed legal form:
Proposed location of the registered office:
Proposed register in which documents are filed:
Submission Attachments
Type	Description
Verification Details
Signature method:
Signature type:
Person name:
Presenter Details
Presenter name:
Presenter address:
Presenter Email:
Presenter telephone number:
DX number:
DX exchange:
An Irish company regulated by the Central Bank of Ireland (the Bank) must notify the Bank of a proposed cross-border merger 90 days before the date set for the general meeting.	An Irish company regulated by the Central Bank of Ireland (the Bank) must notify the Bank of a proposed cross-border merger 90 days before the date set for the general meeting.

PART 3 CROSS-BORDER DIVISION

CBD1 Notice of Proposed Cross Border Division

Regulation 57 of the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023

Company Details	Company Details
Company number:
Company name:
Type of Division	Type of Division
Full division:
Partial division:
Division by separation:
1. Draft Terms and Notice	1. Draft Terms and Notice
Please attach a copy of the Draft Terms and Notice to creditors, members and employees, or:
Or
If publishing Draft Terms and Notice to company website, please provide details of the website address:
Please provide an indication of the arrangements made for exercise of the rights of employees, creditors and members:
2. Add Proposed Newly Formed Company Details	2. Add Proposed Newly Formed Company Details
Proposed name:
Proposed legal form:
Proposed location of the registered office:
Please upload details indicating the arrangements made for the exercise of the rights of employees, creditors, and members:
Submission Attachments	Submission Attachments
Type	Description
Verification Details	Verification Details
Signature method:
Signature type:
Person name:
Presenter Details	Presenter Details
Presenter name:
Presenter address:
Presenter Email:
Presenter telephone number:
DX number:
DX exchange:
An Irish company regulated by the Central Bank of Ireland (the Bank) must notify the Bank of a proposed cross-border division 90 days before the date set for the general meeting.	An Irish company regulated by the Central Bank of Ireland (the Bank) must notify the Bank of a proposed cross-border division 90 days before the date set for the general meeting.

SCHEDULE 2

Regulations 71, 82, 84, 85, 89 and 90

Standard Rules

PART 1 Composition of Body Representative of Employees

• (2) If such a decision has been taken to negotiate an agreement, Regulations 77 to 79 and 81 and 82 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 82 (as applied by this paragraph), no such agreement has been concluded, the arrangements initially adopted in accordance with 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 resulting company or companies 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 participating company or companies and its prospects, and the local managements shall be informed accordingly.

• (3) The competent organ of the resulting company or companies 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.

• (5) The following matters shall also be the subject of discussion at the meeting:

• (a) the number of agency workers temporarily engaged to work for the employer;

• (b) those parts of the employer’s enterprise in which those agency workers are, for the time being, working;

• (c) the type of work that those agency workers are engaged to do.

• (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 resulting company or companies, or any more appropriate level of management within the resulting 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 resulting company or companies 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 86, the members of the representative body shall inform the employees of the resulting company or companies 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 resulting 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 resulting company, the company is not required to establish provisions for employee participation.

• (3) In the case of cross-border mergers only, 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 paragraph (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 paragraph (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.

SCHEDULE 3

Regulations 89, 91 and 92

Redress for Contravention of Regulation 87

Interpretation (Schedule 3)

Decision under section 41 of Workplace Relations Act 2015

• (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 clause (a), (b), (c) or (d) of Regulation 87(1) compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances but not exceeding 2 years’ remuneration in respect of the person’s employment.

Decision of Labour Court on appeal from decision referred to in paragraph 2

SCHEDULE 4

Regulation 95

CONSEQUENTIAL AMENDMENTS

Reference (1)	Number and Year (2)	Short title (3)	Extent of Amendment (4)
1.	No. 38 of 2014	Companies Act 2014	Section 102 is amended – (a) in subsection (1) – (i) in paragraph (f), by the deletion of “or”, (ii) in paragraph (g), by the substitution of “of Part 9; or” for “of Part 9.”, and (iii) by the insertion of the following paragraph after paragraph (g): “(h) pursuant to a conversion, merger or division under the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023).”, and (b) in subsection (2), by the substitution of “a merger effected in accordance with Chapter 3 of Part 9 or a scheme of arrangement sanctioned under that Part, or a conversion, merger or division effected in accordance with the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023)” for “a merger effected in accordance with Chapter 3 of Part 9 or a scheme of arrangement sanctioned under that Part”. Section 965(3) is amended by the substitution of the following paragraph for paragraph (e): “(e) the merger, conversion or division operation provided for by the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023).”. Section 1004(2) is amended by the substitution of the following paragraph for paragraph (d): “(d) the merger, conversion or division operation provided for by the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023).”. Section 1028(7) is amended, in subsection (7) – (a) by the substitution of the following paragraph for paragraph (a): “(a) a proposed merger, where that company was formed as a successor company for the purpose of the proposed merger, the merger being a merger by formation of a new company within the meaning of Chapter 16 or a cross-border merger (within the meaning of the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023)) which is a merger by formation of a new company;”, and (b) by the substitution of “Regulation 30” for “Regulation 7”. Section 1390 is amended, in subsection (2), by the substitution of the following paragraph for paragraph (e): “(e) the merger, conversion or division operation provided for by the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023).”.
2.	No. 16 of 2015	Workplace Relations Act 2015	Section 3 is amended, in subsection (9) – (a) by the substitution of “European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023)” for “European Communities (Cross-Border Mergers) Regulations 2008 ( S.I. No. 157 of 2008 )”, (b) in paragraph (a), by the substitution of “Part 5” for “Part 3”, and (c) in paragraph (b), by the substitution of “subparagraph (a), (b), (c) or (d) of Regulation 89(1)” for “subparagraph (a), (b), (c) or (d) of Regulation 39(1)”. Part 3 of Schedule 1 is amended by the substitution of the following for “11. European Communities (Cross-Border Mergers) Regulations 2008 ( S.I. No. 157 of 2008 )”: “11. European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023)”. Part 2 of Schedule 5 is amended by the substitution of the following for “7.Regulation 39(1) of the European Communities (Cross-Border Mergers) Regulations 2008 ( S.I. No. 157 of 2008 )”: “7. Regulation 89(1) of the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023)”. Schedule 6 is amended – (a) in Part 1, by the substitution of the following for “6. Paragraph 2 of Schedule 2 to the European Communities (Cross-Border Mergers) Regulations 2008 ( S.I. No. 157 of 2008 )”: “6. Paragraph 2 of Schedule 3 to the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023)”, and (b) in Part 2, by the substitution of the following for “6. Paragraph 3 of Schedule 2 to the European Communities (Cross-Border Mergers) Regulations 2008 ( S.I. No. 157 of 2008 )”: “6. Paragraph 3 of Schedule 3 to the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023)”.
3.	No. 31 of 1999	Stamp Duties Consolidation Act 1999	Section 87B is amended, in subsection (1), by the substitution of “Regulation 25 of the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023)” for “Regulation 2(1) of the European Communities (Cross-Border Mergers) Regulations 2008 ( S.I. No. 157 of 2008 )”.

GIVEN under my Official Seal,

24 May, 2023.

SIMON COVENEY,

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 2019/2121/EU of the European Parliament and of the Council of 27 November 2019 amending Directive 2017/1132/EU as regards cross-border conversions, mergers and divisions.

The Regulations provide for new procedural rules for cross-border mergers and, for the first time, introduce legal certainty for companies in Ireland who wish to exercise their right to enter cross-border conversions and divisions. The Regulations aim to reduce the administrative cost for companies, whilst safeguarding other legitimate public interests such as the protection of employees, creditors, and minority shareholders along with the introduction of an anti-abuse provision.

The anti-abuse provision provides that the Court must scrutinise the legality of the cross-border operation within three months of receiving an application. Where the Court has serious doubts about whether the operation is for abusive or fraudulent purposes, an assessment must be conducted on a case-by-case basis. In such a scenario, the scrutiny period may be extended by the Court for another three months. The Court may, as part of its examination, consult an independent expert and/or other relevant authorities within and outside its jurisdiction if necessary.

Footnotes