Distacco transnazionale di lavoratori in Europa

20 Marzo 2018

Europa

Lavoro

Geoblocking is a discriminatory practice preventing customers (mainly on-line customers) from accessing and/or purchasing products or services from a website located in another member State, because of the nationality of the customer or his place of residence or establishment.

The EU Regulation no. 2018/302 of 28 February 2018 on addressing unjustified geoblocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market will enter into force on 2 December 2018.

The current situation

The EU Commission carried out a “mystery shopping” survey on over 10 000 e-commerce websites in the EU. The geoblocking figures are quite high! 63% of the websites do not let shoppers to buy from another EU country (even 86% for electric household appliances and 79% for electronics and computer hardware).

The survey shows also that 92% of on-line retailers require customers to register on their website and to provide them with e-mail address, physical address and telephone number. The registration is denied most of the time because of a foreign delivery address for 27% of the websites. Almost half of the websites give no information about the place of delivery while shopping on the website although this information on delivery restrictions has to be provided in due time during the shopping process. At the end, according to this EC survey, only 37% of the websites truly allow e-shoppers to freely buy on-line from another EU country (without restriction as regards place of establishment, place of delivery and mean of payment).

On the other side, only 50% of European customers buy products from on-line shops based in another EU member State while the value and the volume of e-commerce, globally speaking increase thoroughly year after year, but only on a domestic scope not throughout Europe.

On 23 June 2017, the European Council asked for a real implementation of the Digital Single Market strategy in all its elements including cross border partial delivery, consumer protection and prohibition of undue geoblocking.

The lack of the current legal frameworks

The service directive (n°2006/123/CE) and article 101 of the TFUE address already the discrimination practices based on nationality or place or residence or establishment.

According to article 20 (2) of the service directive, the EU member States must ensure that professionals do not treat customers differently based on their place of residence or establishment or nationality (unless objective exception). On the other side, EU competition law on vertical restraints (article 101 TFUE and the block exemption regulation and its guidelines) considers restrictions on passive sales as hard core restrictions violating EU competition rules. However, both set of rules (service directive and competition law framework) appear not to be fully effective in practice.

With this respect, the recent report of the European commission about the competition enquiry in the e-commerce sector shows, among others, that geoblocking was used at a large scale within the European e-commerce sector.

The aim of the geoblocking regulation

The goal of the geoblocking regulation is to prevent professionals from implementing direct or indirect discrimination based on the nationality, the place of residence or the place of establishment of their customers when dealing with cross border e-commerce transactions.

The scope of the geoblocking regulations

The new Regulation will only apply to online sales between businesses and end-user consumers or businesses.

The new Regulation will apply to websites operated within the European Union or to websites operated outside the European Union but proposing goods or services to customers established throughout in the European Union.

What are the new rules of management of an e-commerce website?

As regards the access to the website

Under the Regulation, a business may neither block nor restrict, through the use of technological measures, access to their online interfaces for reasons related to nationality, place of residence or place of establishment of an internet user. However, businesses are authorized to redirect customers to a different website than the one they were trying to access provided the customer expressly agrees thereto and can still easily visit the website version they originally tried to access.

As regards the terms and conditions of sales of the website

The Regulation forbids businesses from applying different general conditions of access to goods or services according to a customer’s nationality or place of residence or place of establishment (as identified by their IP address in particular) in the following three cases:

where the goods sold by the business are delivered in a different member state to which the business offers delivery (or where the goods are collected at a location jointly agreed upon by the business and the customer);
where the business offers electronically supplied services such as cloud, data storage, hosting services etc. (but not services offering access to copyright-protected content such as streaming or online-gaming services);
where the business supplies services received by the customer in a country in which the business also operates (such as car rental and hotel accommodation services or ticketing services for sporting or cultural events).

As regards the means of payment on the website

The Regulation forbids businesses from applying different conditions for payment transactions to accepted means of payment for reasons related to a customer’s nationality, place of residence or place of establishment, or to the location of the payment account or the place of establishment of the payment service provider (provided that authentication requirements are fulfilled and that payment transactions are made in a currency accepted by the business).

What are the impacts of this regulation on e-retailers?

Although formally excluded from the scope of the Regulation, relations between suppliers and distributors or wholesalers will still be impacted by it since provisions of agreements between businesses under which distributors undertake not to make passive sales (e.g., by blocking or restricting access to a website) for reasons related to a customer’s nationality, place of residence or place of establishment “shall be automatically void”.

The geoblocking regulation therefore impacts distributors twofold: first, directly in their relations with customers (end-user consumers or user-businesses), and second, indirectly in regard to their obligations under the exclusive distribution agreement.

The geoblocking regulation shall have to be coordinated with the existing competition law framework, especially the guidelines on vertical restraints which set up specific rules applying to on-line sales. On-line sales are likened to passive sales. The guidelines mention four examples of practices aiming to indirectly guarantee territorial protection which are prohibited when supplier and exclusive distributor agree:

that the exclusive distributor shall prevent customers in another territory from visiting their website or shall automatically refer them to the supplier’s or other distributors’ websites,
that the exclusive distributor shall terminate an online sale if the purchaser’s credit card data show that the purchaser is not from the exclusive distributor’s exclusive territory,
to limit the share of sales made by the exclusive distributor through the internet (but the contract may provide for minimum offline targets in absolute terms and for online sales to remain coherent compared to offline sales).
that the exclusive distributor shall pay a higher price for goods intended for sale on the internet than for goods intended for sale offline.

Manufacturers will have to decide whether they adopt a unique European gateway website or multiple local commercial offers, it being known that price differentiation is still possible per category of clients.

Indeed, the new Regulation does not oblige the e-retailers to harmonize their price policies, they must only allow EU consumers to access freely and easily to any version of their website. Likewise, this Regulation does not oblige e-retailers to ship products all over Europe, but just allow EU consumers to purchase goods from whichever website they want and to arrange the shipment themselves, if need be.

Finally on a more contractual level, it is not very clear yet how the new geoblocking rules could impact directly or indirectly the conflict of law rules applicable to consumer contracts, as per the Rome I regulation especially when the consumer will be allowed to handover the product purchased on a foreign website in the country of this website (which imply no specific delivery in the country where the consumer is established).

Therefore B2C general terms and conditions of websites would need to be reviewed and adapted on both marketing and legal sides.

The General Data Protection Regulation (EU regulation 2016/679) comes into force on May 25, 2018. It applies to all processing, whether automated or not. The most extraordinary part of the regulation, however, is its territorial field of application. Many believed that the virtual world had wiped out borders with the biggest players in the internet world having developed a quantity of arguments, in particular in tax matters, to escape from local legislation. Europe therefore decided to set the record straight. The message is clear, whether you are in America, in Asia or elsewhere, you must comply with the rules when processing the personal data of European residents. The high cost of the sanctions mean that this new legal framework must be taken very seriously. The maximum fine has been fixed at 4% of turnover for the preceding year, which is 2017 for any businesses that are sentenced in 2018. For example, the maximum risk for the GAFAs, if they do not comply with the Regulation, could be estimated as follows: for Amazon 7.1 billion for turnover of around 178 billion (higher than the profit…); for Apple, 5.6 billion for a turnover of around 141 billion; for Google, 4 billion for a turnover of around 100 billion and for Facebook, 1.28 billion for a turnover of around 32 billion (in dollars).

The limited territorial field of application of the preceding directive

European directive 95/46EC of October 24, 1995, transposed in France by law n° 2004-801 of August 6, 2004, updated the French data protection act (loi Informatique et Libertés) 78-17 of January 6, 1978.

The Directive may of course apply to Data Controllers who are not established on the territory of the European Union, but it obliges them to use a means of processing situated in the territory of the European Union.

It came to light that many processors were managing to avoid the European data protection regulations on the basis of the extraterritoriality of their processing.

For many years Google claimed that the data it collected in France and in Europe were not governed by French regulations but by Californian regulations since the company and its servers were based in California.

As the aim of the European Commission is to protect personal data, the new Regulation should rectify this shortcoming.

The extraterritorial field of application of the Regulation

Starting from May 25, 2018, the European Regulation will be applicable to all processing of personal data for which the Data Controller or the Data Processor (in general the IT service provider) is established in the European Union, irrespective of whether or not the processing itself takes place within the European Union.

The Regulation also provides for its application in cases where the Controller or Processor are not established in the European Union when the processing targets a data subject situated in the European Union, irrespective of the nationality of the person concerned.

Controllers or Processors established in the European Union

The notion of establishment is not defined in the Regulation. It has been interpreted extensively by the French and European courts, which give priority to a functional analysis based on the effective and real exercise of activity through a stable arrangement.

Establishment has already been judged to exist through the presence in the Member State concerned of a representative, a bank account and a letter box (CJEU October 1, 2015, Weltimmo).

Furthermore, the legal form of such an establishment is not decisive. Consequently, the processing of personal data carried out by a simple branch, which has no legal personality, by a non-European Controller, must be carried out in accordance with the Regulation.

Controllers or Processors not established in the European Union

When the Controller or Processor is not established in the European Union and has no establishment there, the Regulation applies when the processing relates to persons situated in the European Union and when the processing activities are linked to an offering or the monitoring of internet users in the 28 countries making up the European Union, comprising 520 million inhabitants.

(i) To the offering of goods or services destined to these persons, whether these services are free or paying services

The Regulation does not contain any definition of the offering of goods and services but it provides indications making it possible to characterise such an offering (whereas clause n°23), such as the use of the language or currency generally used in one or more Member States with the possibility of ordering goods and services in this language or even the mention of clients or users situated in the European Union.

However, the mere accessibility of a website, e-mail address or other contact details is insufficient to ascertain this intention.

In other words, it is necessary to check the intention of the Data Controller with regard to the persons concerned. Did he intend to offer goods or services to the persons concerned in the European Union or not?

(ii) To the monitoring of the behaviour of these persons, if this behaviour takes place in the European Union.

In particular, the Regulation provides for the profiling of a natural person in order to make decisions concerning him/her or to analyse or predict his/her personal preferences, behaviour and attitudes.

These two conditions (i) and (ii) are alterative and not cumulative.

What about the transfer of the personal data outside the European Union?

In principle, the transfer of personal data outside the European Union is prohibited. The aim is to protect personal data against data havens which apply more flexible regulations in this respect.

There are many exceptions to the principle:

1. Transfer of data towards countries belonging to the European Economic Area

These countries have signed an agreement with the European Union through which they have adopted personal data protection regulations.

1. Transfer of data towards countries with an adequacy agreement

Certain countries are recognised by the European Union as having regulations on the protection of personal data that are equivalent to European regulations.

1. The transfer of data towards countries that have signed standard contractual clauses or BCR (“Binding Corporate Rules”)

These are countries for which no adequacy decision has been made or which have no personal data protection regulations. The idea is therefore to establish contractual rather than legal protection for data through standard clauses or an agreement within a group of companies.

Standard contractual clauses

Standard clauses have been drafted by the European Commission and are accessible via its website. These are agreements concluded between the Data Controller and the Processor established abroad either in the framework of an IT service agreement or in the context of the sending of personal data to a group subsidiary or entity.

Currently, the Data Controller may obtain authorisation from the national regulatory authority (CNIL in France) before using these clauses. This request for authorisation will be discontinued as of May 25, 2018.

Binding Corporate Rules (BCR)

BCR concern groups of companies exclusively. A charter is adopted within the group under the terms of which all the group subsidiaries and entities undertake to comply with the European data protection regulations.

Once the charter has been drafted, it is submitted for authorisation to the European data protection authorities via a mutual recognition system.

This request for authorisation will be maintained after May 25, 2018.

1. Transfer of personal data towards the USA: the “Privacy Shield” system

This is an international agreement between the European Union and the American Federal Trade Commission (FTC) which American companies are free to adhere to. Under the terms of this agreement, the FTC undertakes to ensure that the companies that sign up to this system comply with the data protection rules contained in this international agreement.

To conclude, the aim of the European Regulation on the protection of personal data is to apply to companies all around the world which process the personal data of European residents.

It puts an end to the hide-and-seek of forum shopping which, for all services supplied on-line, made it possible to choose the most favourable and least strict country to develop a company’s economic model.

The level of sanctions removes any doubt as to the firmness with which this new framework is going to be implemented. It generates risks that can hardly be considered as minor.

It requires an in-depth thought process and the implementation of a compliance project for any company that uses the personal data of persons situated in one of the 28 European Union countries comprising 520 million inhabitants.

The author of this post is Thierry Aballéa.

Il distacco transnazionale di lavoratori è quel meccanismo attraverso cui le imprese di uno Stato membro prestano servizi in un altro Stato membro inviando direttamente i propri dipendenti nel territorio di quest’ultimo.

Nel corso degli ultimi 20 anni tale fenomeno è cresciuto in maniera rilevante a livello europeo, soprattutto a seguito dell’ingresso nell’Unione dei Paesi dell’est, che avevano – e in parte continuano ad avere – un costo del lavoro sensibilmente più basso di quello degli altri Stati membri.

Il fenomeno è stato quindi oggetto di diversi interventi del legislatore europeo e di quelli nazionali, nonché di alcune rilevanti decisioni della Corte di Giustizia. Esso si pone infatti in relazione con diversi diritti fondamentali riconosciuti dall’Unione e richiede un equilibrato bilanciamento degli interessi in gioco.

Occorre garantire le libertà di circolazione di lavoratori, capitali e merci e, in particolare, la libera prestazione dei servizi (art. 56 TFUE), salvaguardando al contempo la leale concorrenza tra le imprese e la tutela dei lavoratori. Il legislatore comunitario intervenne sul tema con la Direttiva 96/71/CE (attuata in Italia col D. Lgs. 72/2000), poi integrata dalla Direttiva 2014/67/UE (attuata in Italia col D. Lgs. 136/2016).

Il legislatore europeo e quello nazionale perseguono con le citate disposizioni due principali obiettivi:

– contrastare i distacchi fittizi attraverso società di comodo, le cosiddette letterbox company, garantendo equilibrio concorrenziale a livello europeo;

– garantire uniformità di trattamento e di tutela ai lavoratori coinvolti, impedendo fenomeni di ‘dumping sociale’.

Per raggiungere questi obiettivi viene rafforzato il sistema di cooperazione amministrativa tra le diverse autorità ispettive nazionali, vengono individuati criteri predefiniti per la valutazione dell’autenticità del distacco e vengono stabilite condizioni minime da garantire ai lavoratori.

Per valutare l’autenticità del distacco, l’art. 4 della direttiva 2014/67/UE (recepito nell’art. 3 della legge italiana) indica alcune caratteristiche da prendere in considerazione con riferimento alle imprese coinvolte e ai lavoratori distaccati.

Per le imprese sono considerati rilevanti i seguenti elementi:

a) il luogo in cui l’impresa ha la propria sede legale e amministrativa, utilizza uffici, paga imposte e contributi previdenziali ed è iscritta alla camera di commercio;
b) il luogo in cui i lavoratori sono assunti e quello da cui sono distaccati;
c) la legge applicabile ai contratti stipulati dall’impresa con i suoi lavoratori e con i suoi clienti;
d) il luogo in cui l’impresa esercita la propria attività economica principale e in cui è occupato il suo personale amministrativo;
e) il numero dei contratti eseguiti o l’ammontare del fatturato realizzato dall’impresa nello Stato membro di stabilimento, tenendo conto della specificità delle piccole e medie imprese e di quelle di nuova costituzione.

Per i lavoratori vengono prese in considerazione queste circostanze:

a) lo svolgimento dell’attività lavorativa per un periodo di tempo limitato in un altro Stato membro;
b) la data di inizio del distacco;
c) l’esercizio abituale dell’attività lavorativa nello Stato di provenienza;
d) il ritorno a prestare attività lavorativa nello Stato cui è stato distaccato;
e) la natura e le modalità di svolgimento dell’attività;
f) il rimborso da parte del datore di lavoro distaccante delle spese di viaggio, vitto o alloggio e le modalità di pagamento;
g) eventuali periodi precedenti in cui la medesima attività è stata svolta dallo stesso o da un altro lavoratore distaccato.

Tutte queste circostanze devono essere considerate nel loro complesso, nessuna è di per sé decisiva e spetta alle autorità nazionali la valutazione finale dell’autenticità o meno del distacco.

L’eventuale accertamento di un distacco fittizio determina rilevanti sanzioni amministrative a carico sia dell’impresa distaccante che di quella utilizzatrice, nonché la loro corresponsabilità per i crediti dei lavoratori.

Il legislatore italiano ha inoltre rafforzato tale previsione: in simmetria con quanto previsto per i casi di intermediazione illecita di mano d’opera, ha infatti stabilito che, se il distacco non risulta autentico, “il lavoratore è considerato a tutti gli effetti alle dipendenze del soggetto che ne ha utilizzato la prestazione” (art. 3 legge italiana).

Ai fini della tutela dei lavoratori e dell’equilibrio concorrenziale, l’art. 3 della direttiva 96/71/CE (art. 4 della legge italiana) stabilisce che, qualunque sia la legislazione applicabile al rapporto di lavoro, gli Stati membri devono far sì che ai lavoratori distaccati sul loro territorio siano garantite, per il periodo del distacco, condizioni di lavoro analoghe a quelle dei lavoratori nazionali. In particolare, i lavoratori distaccati devono godere di un trattamento equivalente in relazione a:

– periodi massimi di lavoro e minimi di riposo;

– durata minima delle ferie annuali retribuite;

– tariffe minime salariali;

– sicurezza e salute sul lavoro;

– tutela per lavoratrici madri, bambini e giovani;

– parità di trattamento uomo/donna e principi di non discriminazione.

Dal punto di vista pratico, l’aspetto di più complessa valutazione riguarda le tariffe minime salariali. Nei diversi paesi dell’Unione esse sono infatti definite in maniera diversa, da fonti diverse (legge/fonti amministrative/contratti collettivi) e sono composte da molte voci, non sempre sovrapponibili.

D’altro canto, gli aspetti economici sono determinanti per imprese e lavoratori per valutare l’opportunità e la convenienza del distacco.

Proprio per queste ragioni, la Corte di Giustizia ha chiarito che il confronto tra le diverse tariffe nazionali deve essere condotto confrontando l’importo complessivo e non le singole voci salariali. La Corte ha inoltre precisato che il confronto deve essere limitato alle voci retributive in senso stretto, cioè in diretta relazione con la prestazione, escludendo per esempio i premi supplementari. Infine la giurisprudenza comunitaria ha chiarito che le voci retributive da prendere in considerazione devono essere accessibili e chiare per il datore di lavoro distaccante.

Da ultimo le disposizioni europee impongono agli Stati membri di consentire ai lavoratori distaccati sul loro territorio l’accesso agli strumenti di tutela, anche giudiziaria, predisposti per i lavoratori nazionali.

A questo fine, in Italia si è esplicitamente prevista la facoltà, per i lavoratori distaccati, di agire sia in sede amministrativa che giudiziale (art. 5 legge italiana).

Pursuant to the European Directive on administrative cooperation in the field of taxation (2011/16/EU), Member States must cooperate with each other with a view to exchanging information relevant for tax purposes. The directive allows, inter alia, that a Member State (the requesting Member State) requests another Member State (the requested Member State) to provide information concerning a specific taxpayer. The requested information must be ‘ foreseeably relevant ‘ to the tax authorities of the requesting Member State.

Based on the aforementioned directive, the tax authority of the requested Member State may request information from e.g. an affiliated company, a financial institution, an employer, … of the taxpayer. The tax authority of the requested Member State forwards the collected information to its counterpart in the requesting Member State.

A question that arises is whether that affiliated company, financial institution, employer, … may ask its national courts to verify the legality of the sanction imposed by its tax authority because of an incomplete answer and whether it may ask to vary the penalty. Another question is whether a court in the requested Member State may verify the relevance for tax purposes of the requested information.

These questions were raised in the Berlioz case of the Court of Justice (judgement of 16 May 2017): Berlioz (a Luxembourg company) only partially answered the request for information from the Luxembourg authorities (at the request of France). Berlioz stated in this regard that certain questions were irrelevant for tax purposes in the requesting Member State.

The answers to the questions raised are not obvious, as the starting point is that the requesting State has a margin of discretion as to what is foreseeably relevant for its tax purposes. This explains why (in this case the Luxembourg) courts doubted whether a relevance test was possible. The questions were referred for a preliminary ruling to the Court of Justice.

In its assessment, the court took into consideration the EU Charter of Fundamental Rights and, more specifically, the right to a fair hearing by an impartial judge.

The Court of Justice ruled that courts in the requested Member State may review the foreseeable relevance for tax purposes of the requested information and that they may vary the penalty imposed. The courts in the requested Member State should be reluctant however upon review of the legality of the request for information: the review is limited to verification whether the requested information manifestly has no relevance for tax purposes.

To this end, the courts must have access to the request for information. The affiliated company, financial institution, employer, … is only entitled to receive the identity of the person under investigation and to be informed about the tax purpose for which the information is sought. The Court of Justice indeed emphasizes in the interest of the investigation the principle that the request for information must remain secret.

Relevance of the judgment: When requested by a national tax authority to respond to a request for information from another Member State, it is important to check the relevance for tax purposes of the requested information. If the information requested is irrelevant to the tax investigation, a proceeding against the request for information or against the penalty may succeed. Regarding the foreseeable relevance for tax purposes, the national courts may only review whether the requested information manifestly has no relevance to the tax investigation in the requesting Member State.

Directive (EU) 2017/1132 “relating to certain aspects of company law”, entered into force on July 20, 2017, lays the foundations for a fully harmonized European company law. The European Parliament and the Council intend to create the conditions to effectively promote the fulfillment of the freedom of establishment and of the freedom to conduct business as set out by the Treaty on the Functioning of the European Union (TFEU) and the Charter of Nice. This process of consolidation has started in 2012 by the Action Plan, which was the fruit of the public consultation on the European company law and corporate governance aiming at “a modern legal framework for more engaged shareholders and sustainable companies”.

The Directive operates in two directions: on one hand, it aims at streamlining the existing legislations consolidating – and repealing – six previous Directives on European company law:

– Directive n. 82/891/EEC concerning the division of public limited liability companies;

– Directive n. 89/666/EEC concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State;

– Directive n. 2005/56/EC on cross-border mergers of limited liability companies;

– Directive n. 2009/101/EC on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent,

– Directive n. 2011/35/EU concerning mergers of public limited liability companies and

– Directive n. 2012/30/EU on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 54 of the Treaty on the Functioning of the European Union, in respect of the incorporation of limited liability companies and the maintenance and alteration of their share capital.

The Annex IV includes a correlation table linking the articles of the consolidated Directives with the new one.

New rules are directed in particular to coordinate safeguards and guarantees that must be provided – as well as the information that must be disclosed – to shareholders and third parties in order to the make them equivalent throughout the Union. As matter of fact, the recitals of the Directive emphasise the need for specific harmonised safeguards to be in place, especially with respect to limited liability companies, notably because of their frequent cross-border business and their predominant feature in the economy of the Member States, more dynamic over last decades.

To date, due to the lack of a uniform discipline, there are indeed 28 different national company laws, which address domestic companies as well as foreign entities operating in another Member State to the detriment – indirectly of course – of freedom of establishment for companies, which, according to art. 54.1 of the TFEU, are to “be treated in the same way as natural persons who are nationals of Member States”.

The Directive consists of 168 articles, four Annexes and three titles that encompass different themes: from the incorporation of public limited liability companies, to companies’ representation, companies registers, branches of companies based in a Member State although govern by the law of another, capital requirements and even mergers (domestic and cross-border) or divisions of companies.

In more detail, the main innovations introduced by the Directive concern:

The incorporation of public limited companies, where the articles of incorporation and the articles of association shall be drawn up and certified in due legal form in all Member States whose laws do not provide for pre-emptive administrative or judicial control at the time the company is actually incorporated.

The implementation of a central companies register – resulting from the interconnection of the existing national registers – that enables users to access from a single web portal.

Capital requirements for public limited liability companies, which shall be not less than euro 25,000.00. The Commission will regularly examine the economic and monetary trends and, as the case may be, revise this requirement accordingly with a view to devoting this type of company to medium-sized/large undertakings.

Acts of the organs of the company, which shall be binding regardless of the validity of the appointment of the person serving in the organ itself and despite the fact that the acts actually carried out exceed the company’s corporate scope (on this issue, Member States may provide otherwise: for example providing that he company shall not be bound where such acts are outside the objects of the company, if it proves that the third party knew that the act was exceeding those objects or could not in view of the circumstances have been unaware of it, bearing in mind that the pre-emptive disclosure of this information will not suffice as it will always be necessary an assessment on case by case basis.

Disclosure requirements concerning branches of companies set up in another Member State’s territory. These branches will be subject to disclose information to the national register (which, in the meantime, will have become interconnected Europe-wide) in order to offer the public reliable and certain corporate information and data. In particular branches shall disclose information relating to the activity they carry out; the name and legal form of the company and the name of the branch, whenever they differ with one another; the relevant accounting documents along with the identity of the subjects authorized to represent the company in legal proceedings and deal with third parties (it will also be necessary to specify whether they have to operate jointly or not). Likewise, it will be necessary to disclose the information regarding the bankruptcy/winding-up procedures the company may go through along with the identity and the powers of the receiver or, in any case, the person in charge of the winding-up procedure/bankruptcy procedure.

Mergers and companies divisions that will have to be carried out taking into account the safeguards provided by the Directive 2001/23/EC to protect the workers of the companies involved. In this case, the Directive provides a discipline that, similarly to the companies’ incorporation procedure, requires that the document regulating the merger (deeds, contracts depending on the national rules on this matter) shall be drawn up and certified in due legal form whenever the laws of the Member State do not proved for judicial or administrative pre-emptive supervision as to the lawfulness of the whole operation. The same rule shall apply in the event the national laws required that the merger project is approved by the general shareholders meeting of the company.

In the end, if the Directive will have a partial impact on the development a uniform European company law, it is worth noticing that this consolidation project has excluded the harmonization of several further EU Directives concerning the Company Law. As far as the Italian Law it can be said as it is almost entirely compliant already with the Directive excluding those rule on capital requirement (in Italy nowadays the minimum share capital of società per azioni is fixed in 50 thousand euro) and the implementation of the European companies register and the company’s representation rules.. As it does not introduce any new provision, there is no date for the Member States to transpose it at a national level, however, the Annex III remarks the time limit to incorporate the abolished Directives into the domestic legal systems.

As clearly set forth by the Directive “this Directive is not aimed at establishing any centralised registers database storing substantive information about companies. At the stage of implementation of the system of interconnection of central, commercial and companies registers (‘the system of interconnection of registers’), only the set of data necessary for the correct functioning of the platform should be defined”. Surely, the leading aim of the Directive is to improve the certainty of the disclosure and the cross-border access to company and its brunches information, this purpose is very challenging considering the national system of the company registers which are quite fragmented at a local level.

The author of this post is Milena Prisco.

From 18 January 2017, the new European Regulation 655/2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters will enter into force.

The Regulation foresees in a procedure to seize bank accounts of your debtor in other EU Member States (except when your debtor is domiciled in United Kingdom or Denmark), without that the debtor is notified hereof. The debtor will only notice once the seizure is into force.

Such cross-border seizure can be obtained before the Courts of an EU Member State who would have jurisdiction on the merits of the case under the EU Regulation 1215/2012 (Brussels I bis).

The seizure can be requested before, during or even after the procedure on the merits of the case. The request has to be filed using a standard document.

To grant the request, the Court will have to examine 1) if there is urgency (periculum in mora) and 2) if there is on basis of the provided evidence enough reason to assume the Court will also decide in favor of the creditor in the proceedings concerning the merits of the case (fumus boni iuris). Although these principles are not unknown to national legislation, both will have to await the autonomous interpretation by the European Court of Justice.

The new EU Regulation 655/2014 is however not created to bully any unwilling debtor by filing preservation order after preservation order. The Regulation foresees 2 mechanisms to avoid such practices:

According to art. 12, the creditor can be required to provide a security when he has not obtained any judgment in favor yet;
The creditor will also receive a fixed delay in which he has to undertake a proceedings about the merits of the case.

The new European Regulation 665/2014 also foresees a mechanism where a creditor can request information about his debtor’s bank account(s) in a certain Member State.

Not unimportant, as the creditor needs to indicate the bank account number in his request for a transnational seizure (under Belgian national law, the indication of the name of the Bank would already be sufficient).

Art. 14 of the Regulation now foresees what one could call a bank account disclosure mechanism:

“Request for the obtaining of account information

Where the creditor has obtained in a Member State an enforceable judgment, court settlement or authentic instrument which requires the debtor to pay the creditor’s claim and the creditor has reasons to believe that the debtor holds one or more accounts with a bank in a specific Member State, but knows neither the name and/or address of the bank nor the IBAN, BIC or another bank number allowing the bank to be identified, he may request the court with which the application for the Preservation Order is lodged to request that the information authority of the Member State of enforcement obtain the information necessary to allow the bank or banks and the debtor’s account or accounts to be identified”.

In a few Member States (including Belgium), such disclosure mechanism is completely new. The Regulation leaves it up to the Member States how they will organize this new disclosure, by giving a few examples:

“Each Member State shall make available in its national law at least one of the following methods of obtaining the information referred to in paragraph 1:

(a) an obligation on all banks in its territory to disclose, upon request by the information authority, whether the debtor holds an account with them;

(b) access for the information authority to the relevant information where that information is held by public authorities or administrations in registers or otherwise;

(c) the possibility for its courts to oblige the debtor to disclose with which bank or banks in its territory he holds one or more accounts where such an obligation is accompanied by an in personam order by the court prohibiting the withdrawal or transfer by him of funds held in his account or accounts up to the amount to be preserved by the Preservation Order; or

(d) any other methods which are effective and efficient for the purposes of obtaining the relevant information, provided that they are not disproportionately costly or time-consuming.

Does this mean any creditor can just run to the Court and ask information?

No, some conditions apply:

the creditor needs to be in possession of an enforceable judgment;
there need to be reasons to believe the debtor holds bank accounts in this Member State.

Conclusion: it will be interesting to see how the Member States will apply this new mechanism. Whether it will be effective, will also depend on the interpretation of ‘reasons to believe the debtor holds bank accounts in this Member State’. This will probably be the key to the question if this will end the Pyrrhus decisions, where a creditor is accorded his claim but cannot find assets to seize.

The author of this post is David Diris.

Giovanni Bertola

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