BULLETIN OF COMPARATIVE LABOUR R

BULLETIN OF COMPARATIVE LABOUR RELATIONS - 72

EUROPEAN WORKS COUNCILS

The European Directive 2009/38/ EC of 6 May 2009

TABLE OF CONTENTS

Introduction

CHAPTER 1. GENERAL REMARKS

§ 1. Involvement of employees

I.. During the 1970’s

II. During the 1980’s

III. In the 1990’s

A. 1994: Information and Consultation in Community Scale Undertakings

B. 1997: The Treaty of Amsterdam

IV. The years 2000 - 2009

A. Charter of Fundamental Rights of the European Union: (7 December 2000)

B. The Five Sisters

§ 2. The Directive of 6 May 2009

I. Review of 1994 Directive

A. The 2000 Report of the Commission

B. The European Parliament and the Economic and Social Committee (2001-2007)

C. The European Social Partners

1. The ETUC (1999)

2. UNICE

3. “Lessons learned”

4. No negotiations

D. The Commission takes the Legal Initiative (2008)

1. Status questionis

a. Insufficient number of EWCs. Overview.

b. Challenges and objectives

2. The proposal for a Recast Directive of 2 July 2008 by the European Commission

3. Advice of the European Social Partners

4. The European Parliament

a. The Committee on Employment and Social Affairs

b. Plenary session

SUMMING UP

Changes

Decision making

Genesis

In force?

CHAPTER 2. OBJECTIVE AND SCOPE

§1. Objective

§2. Scope

I. Territorial

A. The 27 EU Member States

B. The European Economic Area (27+3)

C. Companies with Headquarters Outside the EEA

II. Personal: Which Companies?

A. Numbers

1. Community-scale Undertaking

2. Group of Undertakings

a. Definition of ‘controlling undertaking’

b. Community-scale group of undertakings

B. Central Management

C. Merchant Navy Crews

CHAPTER 3. DEFINITIONS AND NOTIONS

§1. Information and Consultation

I. Information

A. Notion

B. Scope: transnational

II. Consultation

A. Notion

B. Scope: transnational

§2. Representation of Employees

CHAPTER 4. ESTABLISHMENT OF AN EWC OR A PROCEDURE

§1. The Obligation to Negotiate in a Spirit of Co-operation

§2. Responsibility and Initiation of Negotiations

I. Responsibility of Central Management

II. Initiation of the Negotiation

III. One or More EWCs – Procedures

§3. The Negotiation of the Agreement

I. Parties to the Agreement and the SNB

A. Composition of the SNB

B. Legal Personality of the SNB

C. Task of the Negotiating Parties

II. Experts and Costs

III. Role of the Trade Unions and of the Employers’ Associations

§4. Nature, Binding Effect, Form, Language and Interpretation of the Agreement

I. Nature and Binding Effect of the Agreement

II. Form and Language of the Agreement

III. Interpretation of the Agreement

§5. Content of the Agreement

I. Scope

II. The Setting-Up of an EWC

III. The Setting-Up of a Procedure

CHAPTER 5. PREJUDICIAL AND CONFIDENTIAL INFORMATION – IDEOLOGICAL GUIDANCE

CHAPTER 6. ROLE AND PROTECTION OF EMPLOYEES’ REPRESENTATIVES

§ 1. Role of Employees’ Representatives

I. Representation of the Interest of the Employees

II. Information of National Representatives or Work Force

III. Training

§ 2. Protection of Employees’ Representatives

CHAPTER 7. COMPLIANCE WITH THE DIRECTIVE – LINKS – ADAPTATION

§1. Compliance with the Directive

§ 2. Links:

§ 3. Adaptation

CHAPTER 8. SUBSIDIARY REQUIREMENTS: A MANDATORY EWC

§1. Composition of the EWC

§2. Competence

I. General Information (Annual)

II. Ad hoc information

§3. Procedure

§4. Role of Experts – Trade Unions – Employers’ Associations

§5. Expenses

§6. Enforcement of the Subsidiary Requirements

§7. Future Developments

CHAPTER 9. AGREEMENTS IN FORCE

§ 1. Pre-existing Agreements

I. Timing, Form, Language and Format of the Agreement –Applicable Law

A. Timing, Form and Language

B. Nature, Binding Effect and Applicable Law

II.. Scope and Parties to the Agreement

A. Scope

B. Parties

III. Content of the Agreement

A An EWC, a Procedure or another Mechanism

B. Competence: Information and Consultation

C. Functioning

D. Role of Experts

E. Expenses

IV. . Prejudicial and Confidential Information

V.. Status of the Employees’ Representatives

VI. Duration of the Agreement

§ 2. Article 6 Agreements

CHAPTER 10. REPORT OF THE DIRECTIVE BY THE COMMISSION

CHAPTER 11. TRANSPOSITION – REPEAL – ENTRY INTO FORCE

§ 1. Transposition

§ 2. Repeal

§ 3. Entry into force

ANNEXES

I. LEGISLATION

1. Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 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

II. SOCIAL PARTNERS

1. UNICE, 1 June 2002

2. Joint Advice of the Social Partners, 29 August 2008

3. Joint Advice, 2 October 2008

III. EUROPEAN ECONOMIC AND SOCIAL COMITTEE

1. OPINION of 24 September 2003 of the European Economic and Social Committee on the Practical application of the European Works Council Directive (94/45/EC) and on any aspects of the directive that might need to be revised

2. European Works Councils: a new role in promoting European Integration, 13/14 September 2006

3. OPINION of 5 December 2008 of the European Economic and Social Committee on the proposal for a European Parliament and Council Directive 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

IV. EUROPEAN COMMISSION

1. Proposal of 2 July 2008 for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 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

2. COMMISSION STAFF WORKING DOCUMENT accompanying the Proposal for a
Directive of the European Parliament and the Council on the 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 (recasting). IMPACT ASSESSMENT

V. EUROPEAN PARLIAMENT

1. DRAFT REPORT of 23 September 2008 on the proposal for a directive of the European Parliament and of the Council 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)

2. Report of 19 November 2008 by the Committee on Employment and Social Afffairs on the proposal for a directive of the European Parliament and of the Council 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)

SELECT BIBLIOGRAPHY

Introduction

The Directive 2009/28/EC of 6 May 2009 amends Council Directive 94/45/EC of 22 September 1994 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, as extended to the United Kingdom by Council Directive 97/74/EC of 15 December 1997 and adapted by Council Directive 2006/109/EC of 20 November 2006 by reason of the accession of Bulgaria and Romania.

Article 15 of Directive 94/45/EC provided that, not later than 22 September 1999, the Commission, in consultation with the Member States and with management and labour at European level, was to review its operation and, in particular examine whether the workforce size thresholds are appropriate with a view to proposing suitable amendments to the Council where necessary. In its Report (2000) from the Commission to the European Parliament and the Council on the application of Directive 94/45/EC, the Commission stated that it would take a decision on a possible review of the Directive on the basis of the required further assessments and the evolution of the other legislative proposals on the involvement of employees.

Fifteen years on from the adoption of Directive 94/45/EC, approximately 820 European Works Councils were active, representing 14.5 million employees with a view to providing them with information and consultation at transnational level.

However, there were some problems with the practical application of Directive 94/45/EC. The right to transnational information and consultation lacks effectiveness, as the European Works Council have been set up in only 36% of undertakings falling within the scope of the Directive. There are legal uncertainties, particularly with regard to the relationship between the national and transnational levels of consultation, and in cases of mergers and acquisitions. Lastly, the consistency and linkage of the various directives on the information and consultation of employees are insufficient.

The objective of the 2009 Directive is thus to ensure that employees’ transnational information and consultation rights are effective, increase the proportion of European Works Councils established, legal certainty and ensure that the directives on information and consultation of employees are better linked.

The most important changes concern:

* A definition of information;

* Change of the definition of consultation;

• The notion transnational;

• Links between various levels of employee information and consultation;

* Passing on information to local representatives of employees;

• Training to EWC members;

• Composition of the Special Negotiating Body (SNB);

• Facilities to the SNB: - pre and post meetings, the presence of experts – including trade union members - in the negotiation meetings;

• Inform the European social partners of upcoming negotiations;

• Rights for the employee representatives in the EWC to collectively represent the employees;

• Timing to adapt existing article 6 and 13 (pre-existing) agreements.

In this study we examine in a first chapter, the historical development and the genesis of the new 2009 directive. In the following chapters we mainly pay attention to following aspects of the Directive:

Objective and scope;
Definitions and notions;
Establishment of a EWC or a procedure;
Prejudicial and confidential information – ideological guidance;
Role and protection of employees;
Subsidiary requirements;
And agreements in force.

Three remarks.

A first remark concerns the legislative quality of the preparatory documents, namely the documents emanating from the European Commission as well as the Reports from the EP Committee on Employment and Social Affairs, as well from the EP itself. One would expect that those documents would contain detailed information on the legal meaning of the various notions and changes introduced. This is, however, not the case. E.g. the members of the EWC “have the means required to aplly the rights arising from the directive, to represent collectively the interests of all the employees of the group (Art.10, 1). Great. But what rights are we talking about? One finds no guiding of any significance in the preparative documents, neither in the recitals. It is thus up to those who have to apply the directive, either in practice or in court, to tell what this means. In the meantime, as commentators we do our best to analyse their meaning with common legal sense. Other examples could be given; just this one: Art. 6, 1 (e) provides that “Where necessary, a select committee will be set up”. What does the European legislator mean by “Where necessary”? Again no help for a meaning full explanation is found in the preparatory documents. For us, there is only one way. Go ahead and row with the row oars at our disposal. No wonder that the European Court of Justice has a very broad playing field when interpreting the meaning of the directives.

Secondly, one of the objectives of the new directive is to increase the number of EWCs . One wonders how this will come about? One of the main reasons that there are practically no EWC’s in companies with less than 10, 000 employees, is the fact that the trade unions lack manpower to effectively assist workers in the setting up and running of EWC’s. Will the fact that trade unions can act as experts and will be paid for doing so allow for more logistical support? This a possibility.

Lastly, a real breakthrough leading to the 2009 came when the social partners finally could agree on common proposals, in order to amend the Directive. This opened the door, also for the Parliament and the Council, to agree and enact the new directive. It underlines again the importance of the social dialogue, provided the social partners succeed in finding common ways.