BEERG Newsletter - EWCs: easyJet must operate 2 EWCs

Last week, the UK’s Court of Appeal (CoA) decided in easyJet - here – that UK law requires that it operate two EWCs, one based in Germany under EU law, and a second based in the UK under UK law. 

The Court did not offer any suggestions as to how the company is expected to oblige EU Member States to cooperate with the establishment of a UK-based EWC as the writ of UK law stops at the English Channel. But then, the words “rational” and “Brexit” do not fit in the same sentence. How can the law of a “third country” impose obligations on EU Member States? 

The Court very diplomatically agreed that the UK legislation is a bit of a nonsense – “Mr Stilitz KC on behalf of the company more than once described the amended regulations as “possibly not the best thought through piece of legislation”. I agree with those observations” (para 13). Which is a polite way of saying that this legislation is nuts. 

It also recognised that the idea of having two EWCs is problematic – “I accept that practical difficulties may arise from the existence of two EWCs operated by the same undertaking” (para 23). This is something of an understatement.  It also recognised that the basis for the EAT’s decision was wrong (para 13).

Nonetheless, with yet a third different basis after refusing to follow either the CAC or the EAT, the CoA has said that companies like easyJet do still need to run UK EWCs in parallel to their EU ones.

BEERG COMMENT

We will look at this decision in greater detail in next week’s issue. It is a decision that will be of concern to any company that is headquartered in the UK and now has an EWC based under EU law. Whether it will have any consequences for non-UK companies that once had their EWCs in the UK remains to be seen. Clearly, the UK law is an attempt to avoid one of the consequences of Brexit which deprives UK employees of the right to be represented on EWCs. Passing a law is one thing. Enforcing it is another. 

We have scheduled a discussion on this for our September Network Meeting in Brussels. We will also be looking at it in greater detail at our new EWC training program in Sitges in October.