European Works Councils: Euro Directive 2009/38/EC of 6 May 2009


Involvement of employees in the social dialogue has always been an ongoing and vigorous concern of the European Union. Over the years since the European Works Councils (EWCs) were established in 1994, expectations regarding their role have grown, particularly in anticipating and managing change as corporate activities have become increasingly internationalized. Finally, after fifteen years of ongoing debate, Directive 2009/28/EC, establishing a new legal framework for EWCs, took effect in June 2009, with Member ...

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Involvement of employees in the social dialogue has always been an ongoing and vigorous concern of the European Union. Over the years since the European Works Councils (EWCs) were established in 1994, expectations regarding their role have grown, particularly in anticipating and managing change as corporate activities have become increasingly internationalized. Finally, after fifteen years of ongoing debate, Directive 2009/28/EC, establishing a new legal framework for EWCs, took effect in June 2009, with Member States obligated to implement the new rules at national level by June 2011. The 2009 Directive is intended to ensure that employees’ transnational information and consultation rights are effective, to increase the number of European Works Councils established, to strengthen the legal certainty of negotiated outcomes involving EWCs, and to ensure that the directives on information and consultation of employees are better linked.

This essential guide is the first publication to annotate and analyze the new Directive. It describes the many changes from the previous Council Directive 94/45/EC, and expertly traces the legislative history through all the intervening preparatory documents. It examines the most important provisions in depth, shedding clear light on such issues as the following:

– the new definitions of ‘information’ and ‘consultation’;

– the nature of the stronger links between national and transnational levels of employee information and consultation;

– employers’ obligation to pass on information to local representatives of employees;

– training of EWC members;

– the composition of the Special Negotiating Body (SNB);

– the presence of experts, including trade union representatives, in negotiation meetings;

– employee representatives’ right to collectively represent the employees;

– the role of EWCs and workers’ representatives in the EU’s merger control procedures;

– fall-back rules that improve EWCs’ consultation in case of restructuring; and

– provisions ensuring that EWCs are informed and consulted without calling into question the company’s capacity to adapt.

The author’s insightful perspectives – e.g., on how the courts are likely to interpret such phrases as “rights arising from the directive” in specific contexts – add greatly to the practical value of the analysis.

Annexes include virtually all relevant primary documents, encompassing pronouncements of the Commission, the Parliament, the social partners, and the European Economic and Social Committee.

Beyond a doubt, this timely bulletin is essential reading for representatives of multinational enterprises operating in the EU, labour law and industrial relations scholars, representatives of trade unions and employers’ associations, human resources professionals, lawyers negotiating EWC agreements, and concerned policymakers and government officials.

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Product Details

  • ISBN-13: 9789041132086
  • Publisher: Wolters Kluwer Law & Business
  • Publication date: 10/14/2009
  • Pages: 286
  • Product dimensions: 6.00 (w) x 9.40 (h) x 0.60 (d)

Table of Contents

Introduction ix

Chapter 1 General Remarks 1

I Involvement of Employees 1

A During the 1970s 1

B During the 1980s 2

C In the 1990s 4

1 1994: Information and Consultation in Community-Scale Undertakings 4

2 1997: The Treaty of Amsterdam 4

D The Years 2000-2009 5

1 Charter of Fundamental Rights of the European Union (7 December 2000) 5

2 The Five Sisters 5

II The Directive of 6 May 2009 6

A Review of the 1994 Directive 6

1 The 2000 Report of the Commission 6

2 The European Parliament and the Economic and Social Committee (2001-2007) 6

3 The European Social Partners 8

a The European Trade Union Confederation (1999) 8

b Union des Industries de la Communauté Européenne (UNICE) 9

c 'Lessons Learned' 9

d No Negotiations 12

4 The Commission Takes the Legal Initiative (2008) 12

a Status Questionis 12

i Insufficient Number of EWCs: Overview 12

ii Challenges and Objectives 14

b The Proposal for a Recast Directive of 2 July 2008 by the European Commission 15

c Advice of the European Social Partners 17

d The European Parliament 19

i The Committee on Employment and Social Affairs 19

ii Plenary Session 21

Chapter 2 Objective and Scope 25

I Objective 25

II Scope 26

A Territorial 26

1 The Twenty-Seven EU Member States 26

2 The European Economic Area (27 + 3) 26

3 Companies with Headquarters outside the EEA 26

B Personal: Which Companies? 27

1 Numbers 27

a Community-Scale Undertaking 27

b Group of Undertakings 28

i Definition of 'Controlling Undertaking' 28

ii Community-Scale Group of Undertakings 29

2 Central Management 30

3 Merchant Navy Crews 30

Chapter 3 Definitions and Notions 31

IInformation and Consultation 31

A Information 31

1 Notion 31

2 Scope: Transnational 32

B Consultation 33

1 Notion 33

2 Scope: Transnational 34

II Representation of Employees 34

Chapter 4 Establishment of an EWC or a Procedure 35

I The Obligation to Negotiate in a Spirit of Cooperation 37

II Responsibility and Initiation of Negotiations 37

A Responsibility of Central Management 37

B Initiation of the Negotiation 38

C One or More EWCs: Procedures 39

III The Negotiation of the Agreement 39

A Parties to the Agreement and the SNB 39

1 Composition of the SNB 40

2 Legal Personality of the SNB 41

3 Task of the Negotiating Parties 41

B Experts and Costs 42

C Role of the Trade Unions and of the Employers' Associations 43

IV Nature, Binding Effect, Form, Language and Interpretation of the Agreement 43

A Nature and Binding Effect of the Agreements 43

B Form and Language of the Agreement 44

C Interpretation of the Agreement 45

V Content of the Agreement 45

A Scope 46

B The Setting-Up of an EWC 46

C The Setting-Up of a Procedure 49

Chapter 5 Prejudicial and Confidential Information - Ideological Guidance 51

Chapter 6 Role and Protection of Employees' Representatives 53

I Role of Employees' Representatives 53

A Representation of the Interest of the Employees 53

B Information of National Representatives or Workforce 53

C Training 54

II Protection of Employees' Representatives 54

Chapter 7 Compliance with the Directive - Links - Adaptation 57

I Compliance with the Directive 57

II Links 58

III Adaptation 58

Chapter 8 Subsidiary Requirements: A Mandatory EWC 61

I Composition of the EWC 62

II Competence 62

A General Information (Annual) 63

B Ad Hoc Information 63

III Procedure 63

IV Role of Experts, Trade Unions and Employers' Associations 64

V Expenses 64

VI Enforcement of the Subsidiary Requirements 65

VII Future Developments 65

Chapter 9 Agreements in Force 67

I Pre-existing Agreements 67

A Timing, Form, Language and Format of the Agreement: Applicable Law 68

1 Timing, Form and Language 68

2 Nature, Binding Effect and Applicable Law 68

B Scope and Parties to the Agreement 68

1 Scope 68

2 Parties 69

C Content of the Agreement 69

1 An EWC, a Procedure or Another Mechanism 69

2 Competence: Information and Consultation 70

3 Functioning 70

4 Role of Experts 70

5 Expenses 71

D Prejudicial and Confidential Information 71

E Status of the Employees' Representatives 71

F Duration of the Agreement 72

II Article 6 Agreements 72

Chapter 10 Report of the Directive by the Commission 73

Chapter 11 Transposition - Repeal - Entry into Force 75

I Transposition 75

II Repeal 75

III Entry into Force 76

Annexes 77

I Directive 2009/38 of 6 May 2009 77

II Social Partners 99

III European Economic and Social Committee 104

IV The European Commission 130

V European Parliament 259

Select Bibliography 285

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