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Transposition of the SE legislation in Spain (Report: June 2005)

The draft laws transposing the Directive and the Regulation were finally approved by the Government on 22 October 2005 after consultation with the social partners and the inclusion of some of their proposals. The Regulation draft will be probably be voted on in the Senate (upper house) within the next few weeks and in the Congress (lower house) probably after summer 2005. Transposition of the Directive is a more complex process. The Economic and Social Council ( Consejo Económico y Social) has already given its ruling incorporating the social partners’ main comments. The High Council of Justice and the Council of State must rule on the transposition drafts before they are approved by the Congress. The transposition draft of the Directive is almost a transcription of the EU text. In its introduction the draft stresses the importance of collective agreements in the Spanish Constitution (1978) and the subsidiarity principle for regulating transposition of EU laws. The Government and the social partners are satisfied with the transposition process. The employers raised general objections and exhibited scepticism regarding the SE statute but insisted that their objections were not so much against transposition as against the SE project as a whole. The trade unions were particularly receptive and cooperative.

Some of the main transposition issues are as follows:

The transposition draft of the Regulation expressly leaves open the possibility for the Government to oppose the transfer of an SE's registered office from Spanish territory due to a merger, etc. If the company is under the control of the Spanish authorities, a transfer may also be opposed (§319).

It stresses the right to sell their shares of shareholders who vote against the decision of an SE to change the country of its registered office, along with those of persons who oppose a merger, the creation of a holding or the takeover of a company registered in another EU country (§319, 324).

Creditors whose claims were established before publication of the date of transfer of the registered office may also oppose this decision (§314.b).

Both the monistic and the dualistic system of corporate government are permitted. This is an innovation and is considered a pilot project in the Spanish corporate system (§ 326).

Registration offices are to supervise the procedures for creating and transferring registered offices and issuing the necessary certificates.

Social partners

Trade unions (CCOO & UGT)

The trade unions are basically satisfied with the negotiation process and the spirit of the EU statute, not so much because they expect many Spanish firms to make use of it, but because it may give rise to a public discussion of company democracy in Spain. Among other things:

- from the beginning CCOO has seen a need for a single draft transposing both the Regulation and the Directive;

- the trade unions believe that the possibility for trade unionists not belonging to the company or its subsidiaries to be elected to the negotiating committee should be extended to the regular management organs of the company.

Employers

Spanish employers still have fundamental reservations concerning the Directive project and, indirectly, transposition. They also remain sceptical about the likely effects of the SE regulation on the Spanish corporate system. This general reason, on top of particular objections, led them to withhold their signature from the Directive transposition draft negotiated between the social partners as part of the general social dialogue. Their main legal arguments against the SE statute have been commented on previously. Their reservations about the draft are mainly based on the argument that it goes against the principle of subsidiarity and does not respect Spanish industrial relations traditions. Their particular criticisms are as follows:

- The employees do not agree that the draft leaves open the possibility for the incorporation of trade unionists not belonging to a company or any of its subsidiaries to become members of the negotiating committee. They argue that this measure is not in keeping with the Spanish industrial relations model.

- The Directive does not necessarily make companies responsible for financing the presence of al least one external expert acting on behalf of labour in the negotiating committee and the management organs of the firm, as in the draft. Their objections to external experts include the fact that, if such experts do not respect the confidentiality of sensitive information (see below) companies have no means (for example, dismissal) of sanctioning their actions.

- The draft should more directly reflect the spirit of the Directive concerning the restriction of employees’ information rights. There should be restrictions not just in exceptional cases but also in non-exceptional cases.

- The employers do not accept the SE's obligation to bear the costs of training employee representatives because these costs are on top of the 60 paid hours allotted to such representatives each year for fulfilment of their duties.

Firms

At the end of June 2005, no new firms announced an intention to make use of the SE regulation. The only firm which has openly declared an interest in the SE regulation so far (Acelor), announced in spring 2005 that it had changed its mind.

Alle Spain