5.—(1) In this Act “controlling undertaking” means an undertaking which can exercise a dominant influence over another undertaking by virtue of ownership, financial participation or the rules which govern the controlled undertaking, and “controlled undertaking” means an undertaking over which that dominant influence can be exercised.

(2) The ability of an undertaking to exercise a dominant influence shall be presumed, unless the contrary is proved, when in relation to another undertaking it directly or indirectly—

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

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

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

(3) Subject to subsection (4), if more than one undertaking in the State meets the criteria in subsection (2), the undertaking that meets the criterion in subsection (2) (c) shall be regarded as the controlling undertaking, or if no undertaking meets the criterion in subsection (2) (c), then the undertaking that meets the criterion in subsection (2) (b) shall be regarded as the controlling undertaking in preference to one that meets the criterion in subsection (2) (a).

(4) Where an undertaking (in this section referred to as a “joint venture”), wherever in the Community located, is carried on by two undertakings in the State neither of whom can exercise a dominant influence over the joint venture, it shall be regarded as a controlled undertaking of each of them unless they agree that it is a controlled undertaking of one only of them for the purposes of this Act, in which case, but subject to subsection (5), that undertaking shall be regarded as the controlling undertaking of the joint venture.

(5) If being the controlled undertaking of one undertaking would result in employees of a joint venture being deprived of an entitlement to be informed and consulted under this Act they would have if the joint venture were a controlled undertaking of the other undertaking, that other undertaking shall be regarded as the controlling undertaking of the joint venture.

(6) For the purposes of subsections (2) and (3) but without prejudice to proof that another undertaking is able to exercise a dominant influence, a controlling undertaking’s rights as regards voting and appointment referred to in subsection (2) (b) or (c) shall include—

(a) the rights of any other of its controlled undertakings, and

(b) the rights of any person or body acting in the person’s or body’s own name but on behalf of the controlling undertaking (or any other of the controlling undertaking’s controlled undertakings) as the controlling undertaking.

(7) Notwithstanding subsections (1), (2), (3), (4) and (5), an undertaking shall not be regarded as a controlling undertaking of another undertaking in which it has holdings where the first-mentioned undertaking is a company referred to in Article 3 (5) (a) and (c) of F8[Council Regulation (EC) No. 139/2004 of 20 January 2004⁵, 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 functions, according to the law of a Member State, relating to liquidation, winding-up, insolvency, cessation of payments, compositions of creditors 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 an 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 highest number of employees in any one Member State, is situated.

(10) Where, in the case of a conflict of laws in the application of subsection (2) (except in its application in relation to subsection (3)), two or more undertakings from a group satisfy one or more of the criteria in subsection (2), the undertaking which satisfies the criterion in subsection (2) (c) shall be regarded as the controlling undertaking unless it is proved that another undertaking is able to exercise a dominant influence.