S.L. 452.107 Art. 2Definitions. Cap. 452.

(1) For the purpose of these regulations:

"the Act" means the Employment and Industrial Relations Act;

"central management" means the central management of the Community-scale undertaking or, in the case of a Community-scale group of undertakings, of the controlling undertaking; "Community-scale group of undertakings" means a group of undertakings with the following characteristics:

(a) at least one thousand employees within the Member States,

(b) at least two group undertakings in different Member States, and

(c) at least one group undertaking with at least one hundred and fifty employees in one Member State and at least one other group undertaking with at least one hundred and fifty employees in another Member State; "Community-scale undertaking" means any undertaking with at least one thousand employees within the Member States and at least one hundred and fifty employees in each of at least two Member States; "consultation" means the establishment of dialogue and exchange of views between employees’ representatives and central management or any more appropriate level of management, at such time, in such fashion and with such content as enables employees’ representatives to express an opinion on the basis of the information provided about the proposed measures to which the consultation is related, without prejudice to the responsibilities of the management, and within a reasonable time, which may be taken into account within the Community-scale undertaking or Community-scale group of undertakings;

"controlling undertaking" means an undertaking which can exercise a dominant influence over another undertaking, hereinafter referred to as the "controlled undertaking" by virtue of, amongst others, ownership, financial participation or the rules which govern it;

"employees’ representatives" means either the recognized union representative or, in case of non-unionised employees, the representative or representatives duly elected from amongst the employees; "European Works Council" means a council established in accordance with regulation 1(2) or the provisions of the Schedule with the purpose of informing and consulting employees;

"group of undertakings" means a controlling undertaking and its controlled undertakings;

"information" means transmission of data by the employer to the employees’ representatives in order to enable them to acquaint themselves with the subject matter and to examine it. Such information shall be given at such time, in such fashion and with such content as are appropriate to enable employees’ representatives to undertake an in-depth assessment of the possible impact and, where appropriate, prepare for consultations with the competent organ of the Community-scale undertaking or Community-scale group of undertakings; "Member State" means a member state of the European Union, of the European Economic Area or any other state as the Minister may prescribe;

"Special Negotiating Body" means the body established in accordance with regulation 6 to negotiate with the central management regarding the establishment of a European Works Council or a procedure for informing and consulting employees in accordance with regulation 1(2).

(2) Subject to the provisions of sub-regulation (1), terms and expressions used in these regulations shall, unless the context otherwise requires, have the meaning assigned to them in the Act.

(3) In the absence of a definition given in these regulations, words and expressions used in these regulations which are also used in Directive 2009/38/EC shall have the same meaning as they have in the Directive.

(4) For the purpose of these regulations, the prescribed thresholds to determine whether an undertaking is a Community-scale undertaking or a Community-scale group of undertakings, in the case of employees in Malta, shall be based on the average number of employees who were employed during the two year period ending on the last day of the month preceding the month in which a request pursuant to regulation 5 was made, whether such employees are on an indefinite or definite contract, and including part time employees.

(5) The ability to exercise a dominant influence shall be presumed, unless the contrary is proven, when an undertaking, in relation to another undertaking directly or indirectly:

(a) holds a majority of that undertaking’s subscribed capital;

(b) controls a majority of the votes attached to that undertaking’s issued share capital; or

(c) can appoint more than half of the members of that undertaking’s administrative, management or supervisory body.

(6) For the purposes of sub-regulation (5), a controlling undertaking’s rights as regards voting and appointment shall include the rights of any other controlled undertaking and those of any person or body acting in his or its own name but on behalf of the controlling undertaking or of any other controlled undertaking.

(7) Notwithstanding what is stated in these regulations, an undertaking shall not be deemed to be a "controlling undertaking" with respect to another undertaking in which it has holdings where the former undertaking is a company referred to in Article 3(5)(a) or (c) of Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings.

(8) A dominant influence shall not be presumed to be exercised solely by virtue of the fact that an office holder is exercising his functions, according to the law of a Member State relating to liquidation, winding up, insolvency, cessation of payments, compositions or analogous proceedings.

(9) The law applicable in order to determine whether an undertaking is a controlling undertaking shall be the law of the Member State which governs that undertaking. Where the law governing that undertaking is not that of a Member State, the law applicable shall be the law of the Member State within whose territory the representative of the undertaking or, in the absence of such a representative, the central management of the group undertaking which employs the greatest number of employees is situated.

(10) Where, in the case of a conflict of laws in the application of sub-regulation (5), two or more undertakings from a group, whether situated in Malta or in any Member State, satisfy one or more of the criteria laid down in that sub-regulation, the undertaking which satisfies the criterion laid down in sub-regulation (5)(c) shall be regarded as the controlling undertaking, without prejudice to proof that another undertaking is able to exercise a dominant influence.