Establishment and functioning of European Works Councils - effective enforcement

The European Parliament adopted by 414 votes to 139, with 61 abstentions, a legislative resolution on the proposal for a directive of the European Parliament and of the Council amending Directive 2009/38/EC as regards the establishment and functioning of European Works Councils and the effective enforcement of transnational information and consultation rights.

The European Parliament adopted its position at first reading by amending the proposal as follows:

Transnational issues

The amended text stipulated that information and consultation of employees must occur at the relevant level of management and representation, according to the subject under discussion. To achieve that, the competence of the European Works Council and the scope of the information and consultation procedure for employees governed by this Directive will be limited to transnational issues, taking into account the possible effects on the workforce and the level of management involved.

Under the proposed directive, transnational matters are those which may reasonably be considered to concern the Community-scale undertaking or the Community-scale group of undertakings as a whole, or two or more undertakings or establishments of the undertaking or establishment situated in at least two different Member States.

These conditions will be deemed to be met where it may reasonably be expected that the measures envisaged by the management of the Community-scale undertaking or Community-scale group of undertakings will affect the employees of that undertaking or group or of any establishment of that undertaking or group situated in more than one Member State.

Special Negotiating Body

In order to improve the right to information and consultation of workers in Community-scale undertakings, central management will initiate negotiations for the establishment of a European Works Council or an information and consultation procedure on its own initiative or at the joint or separate written request of at least 100 employees or their representatives in at least two undertakings or establishments situated in at least two different Member States.

The members of the special negotiating body will be elected or appointed in a manner that strives to achieve a gender-balanced representation, whereby women and men each comprise at least 40 % of the members of the special negotiating body. If the objective of gender balance is not achieved, the special negotiating body will explain, in writing, the reasons to the workers. Failure to achieve the objective of gender balance shall not prevent the creation of a special negotiating body.

In order to increase legal certainty, the text specified that central management is required to convene a number of meetings with the special negotiating body sufficient for both parties to reach an agreement establishing a European works council.

The expenses relating to the negotiations will be borne by central management, so as to enable the special negotiating body to carry out its task in an appropriate manner.

Material and financial resources

The agreement will determine the financial and material resources to be allocated to the European Works Council, which will cover the possible use of experts and their possible participation in meetings, including the possible use of legal experts and representatives of recognised Community-level trade union organisations, to assist the European Works Council in the discharge of its functions.

Provision of information in confidence

Member States will provide that members of special negotiating bodies, members of European Works Councils, or employees’ representatives in the framework of an information and consultation procedure, and any experts who assist them, are not authorised to disclose information which central management has expressly provided to them in confidence, in the legitimate interest of the undertaking, in accordance with objective criteria laid down by the Member State.

Compliance with the directive

Member States will have to provide for dissuasive financial penalties for non-compliance. In the case of financial penalties, they will also take into account the annual turnover of the undertaking or group concerned, or ensure that the applicable penalties have a similarly dissuasive nature.

With respect to the rights conferred by this Directive, Member States will: (i) ensure effective access to judicial proceedings and, (ii) provide for the reasonable costs of legal representation and participation in such proceedings to be borne by central management or will take other, equivalent measures to avoid any de facto restriction of access to such proceedings on the grounds of lack of financial resources.

Member States must transpose the directive no later than two years from the entry into force of this amending directive.