HRPG Europe Observations: EU Parliament...

Commission Proposals

Parliament Proposals

Our observations

Article 1 Transnational

The measures considered by management of the Community-scale undertaking or Community-scale group of undertakings can reasonably be expected to affect workers in undertakings or establishments in more than one Member State.

The measures considered by management of the Community-scale undertaking or Community-scale group of undertakings can reasonably be expected to affect workers in undertakings or establishments in more than one Member State; or

The first four proposed amendments to the Commission’s text all seek to expand the definition of “transnational” so that practically every decision becomes “transnational”.

Anyone who has ever sat in an EWC meeting will know that there is enough “wriggle room” in the proposed wording to allow EWCs to argue for the branding of issues as “transnational”, especially in there are trade union officials and “experts” in the room.

The definition of “transnational” needs to be precise, making it clear that it refers to issues clearly involving, at minimum, two countries and excluding one country issues from consideration.

the measures considered by management of the Community-scale undertaking or Community-scale group of undertakings can reasonably be expected to affect workers in an undertaking or establishment in one Member State, and workers in an undertaking or establishment in another Member State can reasonably be expected to be affected by the consequences of those measures.

the measures considered by management of the Community-scale undertaking or Community-scale group of undertakings can reasonably be expected to affect workers in an undertaking or establishment in one Member State, and workers in an undertaking or establishment in another Member State can reasonably be expected to be substantially affected by the consequences of those measures.”; or

Transnational – see above.

the measures considered by management of the Community-scale undertaking or Community-scale group of undertakings are taken in a Member State other than that in which those effects are produced

Transnational – see above.

In order to determine the transnational character of a matter, the scope of its possible effects and the level of management and representation involved shall be taken into account. This includes matters which, irrespective of the number of Member States involved, are of concern to workers in terms of the scope of their potential impact, as well as matters which involve the transfer of activities between two or more Member States.

Transnational – see above.

Article 1 – Employees’ Representatives

(d) ‘employees’ representatives’ means the employees’ representatives provided for by national law and/or practice

(d) ‘employees’ representatives’ means trade unions or the employees’ representatives provided for by national law or practice.

Across the private sector in Europe, trade union density is, on average, about 15%. There is no case in this Directive for privileging trade unions above other forms of employee representation, as provided for in national law or practice.

It is better to stick with what is provided for in national law and/or practice on employee representation.  National law should determine the role of trade unions, not an unrelated European Directive.

Article 1 – Consultation

(g) ‘consultation’ means the establishment of dialogue and exchange of views between employees’ representatives and central management or any more appropriate level of management.

‘consultation’ means the establishment of dialogue and exchange of views between employees’ representatives and central management or any more appropriate level of management, at such time, in such fashion and with such content as enables employees’ representatives to express a prior opinion on the basis of the information provided about the proposed measures to which the consultation is related, without prejudice to the responsibilities of the management, and within a reasonable time, which is to be taken into account within the Community-scale undertaking or Community-scale group of undertakings. Consultation shall take place in such a way as to enable employees’ representatives to obtain a reasoned response in due time from the centra  management prior to the adoption of the decision.

The Commission proposed to move the “operational” part of the definition of consultation to elsewhere in the Directive. This amendment proposes to put it back into the definition of consultation.

The changes to the operational wording on consultation proposed by the Commission was already problematic, opening the door to arguments that until such time as management gave a reasoned response nothing could be implemented at local level and management could only give a response once the EWC had given its opinion. The Commission definition needs to make clear that EWC consultation is without prejudice to the procedures and timelines provided for in national law and practice.

Otherwise, we know from experience what would happen. The EWC would refuse to give an opinion because of the alleged failure of management to provide sufficient information. Threats of legal challenges would be made. 

The proposed parliamentary amendment would copper fasten this possibility.

More precise and unambiguous wording on “consultation” is needed.

Article 5 - SNB

In order to achieve the objective set out in Article 1(1), the central management shall initiate negotiations for the establishment of a European Works Council or an information and consultation procedure on its own initiative or at the written request of at least 100 employees or their representatives in at least two undertakings or establishments in at least two different Member States.

In order to achieve the objective set out in Article 1(1), the central management shall initiate negotiations for the establishment of a European Works Council or an information and consultation procedure on its own initiative or at written request, either jointly or separately, of at least 100 employees or their representatives in at least two undertakings or establishments in at least two different Member States.

This makes the point that the request to establish an SNB can come in at least 2 letters from employees or their representatives. It does not have to be one written request. This should not be an issue. This has often been the case until now.

Article 5 – SNB

For this purpose, a special negotiating body shall be established in accordance with the following guidelines:

For this purpose, a special negotiating body shall be established within six months of the date of a request pursuant to paragraph 1, with a possible 6-month extension, in accordance with the following guidelines.

Most managements already work to this understanding. The possibility of a six-months extension could be helpful.

Article 5 – SNB – Experts

For the purpose of the negotiations, the special negotiating body may request assistance from experts of its choice which can include representatives of competent recognised Community-level trade union organisations. Such experts and such trade union representatives may be present at negotiation meetings in an advisory capacity at the request of the special negotiating body.

For the purpose of the negotiations, the special negotiating body may request assistance from representatives of competent recognised Community-level trade union organisations and, if needed, further experts of its choice. Such experts and such trade union representatives may be present at negotiation meetings in an advisory capacity at the request of the special negotiating body.

The Commission’s wording is taken from the current Directive. The parliament’s proposed wording makes union officials the default advisors to SNBs while also making it clear that the SNB can be assisted by further experts if it so wishes. The Commission’s wording is preferable. 

SNBs should not be constrained, as the parliament’s wording would require, to ask for expert assistance from a Community-level trade union organisation in the first instance. They should be free to ask for assistance from whatever experts they so wish. The parliament’s  wording is another attempt to impose unions on SNBs.

Why an SNB, which has only one task, to negotiate an EWC agreement would need more than one advisor is unclear. An advisor to an SNB either knows what they are doing, or they don’t. If they don’t, they should not be acting as experts.

Article 5 – SNB

These expenses shall include reasonable costs of experts, including for legal assistance, insofar as necessary for that purpose, as well as reasonable costs of legal representation and participation in administrative or judicial proceedings. Expenses shall be notified to central management before they are incurred

These expenses shall include reasonable costs of experts, including a representative of a recognised Community-level trade-union, for legal assistance, insofar as necessary for that purpose, as well as reasonable costs of legal representation and participation in administrative or judicial proceedings. Expenses shall be notified to central management before they are incurred

Who is to define “reasonable” when it comes to expert or legal costs?

Are SNBs (and EWCs) now to become a source of funding for trade unions?    Would this not create an incentive to prolong matters to generate additional funds?

Proposed costs should not just be “notified” to management. They must be agreed in advance by management as being necessary and reasonable. 

It also needs to be kept in mind, given the conflation between national and European labour relations issues that the parliament’s draft proposals would create, that whatever is agreed in relation to the EWC Directive covering union, legal, and expert funding, could create precedents which would generate pressures for similar measures at national level.

Article 6 – EWCs Gender Balance

The composition of the European Works Council, the number of members, the allocation of seats, taking into account where possible the need for balanced representation of employees with regard to their activities, category and gender, and the term of office;

The composition of the European Works Council, the number of members, the allocation of seats, taking into account where possible the need for balanced representation of employees with regard to their activities and category, and representation of employees with regard to their activities and category, and the term of office, including, when allocating the seats, a set of procedural requirements to attain a gender-balanced representation.

We believe that it is not appropriate for management to attempt to influence the membership of either SNBs or EWCs. The rules of the election/selection of members of both bodies are a matter for national laws and practices, and for national employees’ representative bodies where they exist.

Article 7 – SNB – Time Limit

Where, after three years from the date of this request, they are unable to conclude an agreement as laid down in Article 6 and the special negotiating body has not taken the decision provided for in Article 5(5)

where, after 18 months from the date of such a request, they are unable to conclude an agreement as laid down in Article 6 and the special negotiating body has not taken the decision provided for in Article 5(5).

SNBs can run for three years from the date of a request. The parliament rapporteur wants to shorten this to 18 months. Given that it can take six months to establish and SNB, this would leave just one year for negotiations. This is unrealistic.

However, it is not unrealistic if the aim is, as would appear to be the intention of the parliament’s rapporteur, to impose a uniform EWC model on all undertakings with a minimum of negotiations. Hence our comment in the opening to this paper of reading all of the proposals in their totality.

Article 7 – SNB

Where an agreement as laid down in Article 6 has been terminated and no new agreement has been concluded until the last day of validity of that agreement.

To be honest, we are not quite sure what this means but we presume that it means that agreements must stay in force until the last minute.

Article 8 – Confidential Information

Member States shall 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 reveal information which has expressly been provided to them in confidence by central management. In addition, central management may set up adequate information transmission and storage arrangements to help safeguard the confidentiality of information provided in confidence.

Member States shall 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, within the conditions and limits laid down by Union and national law and subject to objective criteria, are not authorised to reveal information which has expressly been provided to them in confidence by central management. In addition, central management may set up adequate information transmission and storage arrangements to help safeguard the confidentiality of information provided in confidence.

It is important that undertakings be able to give EWCs information in confidence and be able to withhold information the undertaking considers would be damaging to its business if released.

In our view, the provisions in the 2009 Directive have proven to be robust in practice and do not need to be changed. 

EWCs, and their advisors, seem to be believe that there is always a hidden trove of information which management keeps confidential because if management released the information it would fatally undermine the rationale for the proposed measures. This is an unfounded belief. 

Member States under the 2009 Directive (Article 8: 2, second paragraph) may make the withholding of information subject to administrative or judicial procedures but none of them have found it necessary to do so. It makes no sense to now demand the introduction of a mandatory requirement which Member States have found unnecessary until now. 

The sharing of confidential information by EWC members with local representatives who themselves are bound by conditions of confidentiality is something that can be regulated by national laws and practices.

When central management provides information in confidence in accordance with paragraph 1, it shall inform the members of the special negotiating bodies or the European Works Councils, or the employees’ representatives in the framework of an information and consultation procedure of the reasons justifying the provision of information in confidence.

When central management provides information in confidence in accordance with paragraph 1, it shall inform the members of the special negotiating bodies or the European Works Councils, or the employees’ representatives in the framework of an information and consultation procedure of the objective criteria justifying the provision of information in confidence and shall determine the duration of the confidentiality requirements.

Confidential Information – see above

Paragraph 1 shall not apply to members of the European Works Council who reveal information to national or local work councils that may affect the situation of workers where such information has been provided to them in confidence and is subject to national rules on confidentiality

Confidential Information – see above

A Member State may make such dispensation subject to prior administrative or judicial authorisation.

Member States shall make such dispensation subject to prior administrative or judicial authorisation.

Confidential Information – see above

Article 9 – Information

Information on transnational matters shall be given at such time, in such fashion and with such content as are appropriate to enable employees’ representatives to undertake an in-depth assessment of their possible impact and, where appropriate, prepare for consultations with the competent organ of the Community-scale undertaking or Community-scale group of undertakings.

Information on transnational matters shall be given at such time, in such fashion and with such content as are necessary and sufficient to enable the European Works Council and employees’ representatives at national and local level to undertake an in-depth assessment of their possible impact and, where appropriate, prepare for meaningful consultations with the competent organ of the Community-scale undertaking or Community-scale group of undertakings.

The words “necessary and sufficient” are little more than an invitation to EWCs to argue that they have not been given the “necessary and sufficient” information to be able to form an opinion, therefore management cannot give a reasoned response, and matters are blocked. Who is to determine what is “necessary and sufficient”?  There is no case for the inclusions of these unnecessary and    complicating words. 

The potential conflation of European and national information and consultation processes is further evidenced  by giving “national and local” employees’ representatives the right to conduct a parallel “in-depth assessment” on proposed transnational measures. Would they be entitled to expert assistance, paid for by management, in doing these assessments? (See our earlier comments on the creation of financial precedents).

The involvement of “national and local” representatives in information and consultation processes must be governed by national laws and practices, not by the EWC Directive.

Article 9 – Information and Consultation (new)

In duly justified cases where the adoption of a decision requires urgency, management and employees’ representatives shall carry out an effective information and consultation process in accordance with paragraphs 2 and 3 as quickly as possible. When appropriate, digital means of communication and coordination can be used for this purpose.

The recognition that digital means of information and consultation are appropriate is welcome. However, digital means of information and consultation should be standard, rather than exceptional.

Article 9 – Information and Consultation (New)

If there is a dispute between the central management and the European Works Council or employees’ representatives as to whether an information and consultation procedure is to be carried out, the central management shall provide duly substantiated grounds in writing for the reasons why the information and consultation requirements under this Directive or under agreements concluded pursuant thereto do not apply, including the reasons that justify the absence of transnational issues

See earlier comments on “transnational”. This is part of the drive to make all decisions “transnational” so that EWCs, advised by embedded trade union officials, are involved in local matters even in circumstances where there is no local union presence, so giving unions a “back door” in the process. 

With an appropriate definition of transnational, this wording should not be necessary.

There is also more that a hint of “guilty until proven innocent” about this language. “Prove it is not transnational”.

It should not be included in the Directive.

Article 9 – Information and Consultation (New)

In so far as it is necessary for the European Works Council to carry out its tasks, the European Works Council or the select committee may request assistance from experts of its choice. Such experts may include representatives of competent recognised Community-level trade union organisations. At the request of the European Works Council, such experts shall be present at meetings of the European Works Council and meetings with the central management in an advisory capacity. In accordance with this Article, the Member States may lay down budgetary rules regarding the operation of the European Works Council

Whatever case there may be for expert presence at meeting between an SNB and management because of the technical nature of the subject under discussion of which most SNB members will have no previous experience, there is no case for the presence of either union officials or experts at meetings between EWCs and management.

The raison d’etre for EWCs is that the provide a forum for dialogue between management and representatives of all its employees. 

EWC members are generally senior employees with significant years of service. Why should they need union officials or external experts to explain to them what their own management is telling them about their own company? What “value added” can such external actors bring to the process?

Irrespective of the above considerations, it would be appropriate for Member States to build a definition of “expert”, including legal experts, into national budgetary rules. Such a definition could refer to professional qualifications as provided for in national law or practice.

This could perhaps be done by expanding proposed national budgetary rules as already provided for in the Commission’s text to “budgetary and administrative” rules.

Article 10 – Legal Standing

Without prejudice to the competence of other bodies or organisations in this respect, the members of the European Works Council shall have the means required to apply the rights arising from this Directive, to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings.

Without prejudice to the competence of other bodies or organisations in this respect, the employees’ representatives, including the members of the special negotiating body and the members of the European Works Council, shall have the means and legal capacity required to apply the rights arising from this Directive, to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings.

“Legal capacity” is already implicit in the Commission’s wording. Making it explicit is unnecessary but should not cause difficulties in practice.

Article 10 – Communications

Without prejudice to Articles 8 and 8a, the members of the European Works Council shall have the right and necessary means to inform the representatives of the employees of the establishments or of the undertakings of a Community-scale group of undertakings or, in the absence of representatives, the workforce as a whole, of the content and outcome of the information and consultation procedure, in particular before and after the meetings with the central management.

Without prejudice to Articles 8 and 8a, the members of the European Works Council shall have the right and necessary means to inform the representatives of the employees of the establishments or of the undertakings of a Community-scale group of undertakings or, in the absence of representatives, the workforce as a whole, of the content and outcome of the information and consultation procedure, carried out and whenever it deems it necessary to perform its tasks deriving from this Directive, in particular before and after the its meetings with the central management

This is one of those issues that seems fine in theory but creates significant difficulties in practice. 

Where works councils, central works councils or union committees exist in a country reporting back from an EWC is a straightforward matter. 

But where there are no such bodies how is the EWC to report back, especially if there are multiple sites in a country? And even if an EWC member turned up at a site, who do they talk to? 

It should be made clear that reporting back in the absence of existing representation bodies should be done through electronic means.

Further, it should be made clear that reporting back only arises in relation to meetings between the EWC and management. 

EWCs have no other tasks than to be informed and consulted by management. There is no reason EWCs should be consulting locally outside the framework of meetings with management.

The wording suggested by the parliament’s rapporteur is part of the drive to merge European and national labour relation issues under the apex of EWCs controlled by union officials.

Article 10 – Trade Unions

Members of special negotiating bodies, members of European Works Councils and employees’ representatives exercising their functions under the procedure referred to in Article 6(3) shall, in the exercise of their functions, enjoy protection and guarantees equivalent to those provided for employees’ representatives by the national legislation and practice in force in their country of employment.

Members of special negotiating bodies, members of European Works Councils and employees’ representatives exercising their functions under the procedure referred to in Article 6(3) shall, in the exercise of their functions, including the right to form and join trade unions, enjoy protection and guarantees equivalent to those provided for employees’ representatives by the national legislation and/or practice in force in their country of employment.

The ”right to form and join unions” should not form any part of the wording of the EWC Directive. This is, and must remain, purely a matter of national law and practice. 

The inclusion of such wording in the EWC Directive could be seen as an attempt to build a right to trade union recognition into European law in an indirect fashion, including a role of the Court of Justice of the European Union. It could be seen as an attempt to bypass existing national laws.

Article 10 EWCs and Shipping

A member of a special negotiating body or of a European Works Council, or such a member's alternate, who is a member of the crew of a seagoing vessel, shall be entitled to participate in a meeting of the special negotiating body or of the European Works Council, or in any other meeting under any procedures established pursuant to Article 6(3), where that member or alternate is not at sea or in a port in a country other than that in which the shipping company is domiciled, when the meeting takes place.

We will leave this issue to those with knowledge of such matters.

Meetings shall, where practicable, be scheduled to facilitate the participation of members or alternates, who are members of the crews of seagoing vessels. 

Shipping – see above

In cases where a member of a special negotiating body or of a European Works Council, or such a member's alternate, who is a member of the crew of a seagoing vessel, is unable to attend a meeting, the possibility of using, where possible, new information and communication technologies shall be considered.

Shipping – see above

Article 10 – Training

Without prejudice to agreements concluded pursuant to Article 6(2), point (f), the costs of such training and related expenses shall be borne by the central management, provided that the central management has been informed in advance

The costs of such training and related expenses shall be borne by the central management, provided that the central management has been informed in advance.

Training, other than as provided for in the EWC agreement, must be subject to prior management approval. SNB/EWC members cannot have a right to unilaterally either arrange training programs or book themselves onto such programs without prior approval.

Training programs for SNBs/EWC, inclusive of interpretation, translation, accommodation, travel and professional fees can be extremely costly. 

A unilateral right on the part of SNB/EWC members to book themselves onto third-party courses will act as an incentive to training providers to set up such courses, whatever their EWC expertise.

Training for SNB/EWC members must be necessary training and management must agree in advance that it is necessary before it has to pay for it.

Training is generally not a time-critical activity so disputes about training can be dealt with through the normal disputes procedures provided for in the agreement or national law and/or practice.

Article 11 – Injunctions

Member States shall provide for appropriate measures in the event of failure to comply with the national provisions adopted pursuant to this Directive. In particular, they shall ensure that … 

Member States shall provide for measures in the event of failure to comply with the national provisions adopted pursuant to this Directive. In particular, they shall ensure- that: adequate administrative and judicial procedures are available and easily accessible to enable the rights and obligations deriving from this Directive to be enforced in a timely and effective manner, to apply for and terminate including the possibility to request a preliminary injunction for the temporary suspension of decisions of the central management where such decisions are challenged on the basis that there has been an infringement of the information and consultation requirements under this Directive or under agreements concluded pursuant thereto. The effects of the challenged decisions on employment contracts or employment relationships of the affected employees shall be suspended accordingly.

Unsurprisingly, the parliamentary rapporteur wants to reinstate Directive a right on the part of EWCs to ask for injunctions to suspend management decisions where EWCs believe there has been a breach of the Directive or of EWC agreements.

EWCs have now been in existence for close on thirty years. In all that time, there have been few, in any, cases where management has knowingly and consciously breached or ignored EWC obligations. Disputes, where they have arisen, have been over the interpretation of agreements. 

At the end of the information and consultation process an EWC can offer a non-binding opinion. Injunctions have no role to play in a process of dialogue and the exchange of opinions. 

Injunctions are not part of the  labour relations process in EU Member States, with one or two exceptions. Given EWCs the right to seek injunctions would create a further incentive    to conflate national and European issues, where local representatives pushed EWCs to seek injunctions on their behalf.

Giving EWCs a right to injunction could result in a situation where a court in one country is being asked to issue an injunction preventing management in another country implementing a decision because the EWC believed it had not been properly informed and consulted.

Imposing injunctions also raises the question on what terms are they to be lifted? When the EWC goes back to the court and says it has been properly informed and consulted?

Article 11 – Penalties

Financial penalties that are proportionate to the nature, gravity and duration of the undertaking’s infringement and which shall increase in amount according to the number of affected employees.

Penalties should be appropriate to the infringement and to the harm done by the infringement.

It needs to be kept in mind that at the end of the information and consultation process an EWC can offer a non-binding opinion. Management is not bound by that opinion in any way. 

Therefore, the material harm done by any alleged infringement of the information and consultation process will be limited in scope because of the non-binding nature of the opinion that can be offered. 

References to infringements raises the question as to what constitutes an infringement? Is a difference of interpretation over the wording in an agreement an infringement? Is a difference of opinion over whether the information provided is sufficient an infringement?

Financial penalties are inappropriate for differences of opinion. Guidance from the court as to the correct future interpretation of either the Directive or the agreement are what is required. 

Financial penalties should be reserved for the deliberate flouting of obligations, not for differences of opinion.

Further, what penalties are there for EWCs which take vexatious and ill-founded cases simply to expert pressure on management?  Ill-judged and bad faith actions should come with costs.

If the European Union wishes to make certain labour relations practices a condition for public sector contracts then that should be done following a full and detailed consultation and debate on such a policy. It is not appropriate that it be done as a sub-clause in just one Directive without proper debate.

orders excluding the undertaking from an entitlement to some or all public benefits, aids or subsidies, including Union funds managed by the relevant Member States, for a period of up to three years

Penalties – see above

orders excluding the undertaking from participating in a public contract as defined in Directive 2014/24/EU of the European Parliament and of the Council

Penalties – see above

In the event of failure to comply with the national provisions transposing the obligations under Article 9(2) and (3), Member States shall provide for pecuniary sanctions, to be determined considering the criteria listed in the third subparagraph of this paragraph, without prejudice to the possibility to provide for other types of sanctions in addition.

In the case of infringements as referred to in point (b), of this paragraph, which are not committed intentionally, the financial penalties referred to in point (a) of this paragraph, shall be substantive and equivalent to those provided for in Article 83(4) of Regulation (EU) 2016/679

Penalties – see above

For the purposes of point (b), of the first subparagraph, Member States shall take into consideration, when determining penalties, the gravity, duration, consequences, and the intentional or negligent nature of the offence, and in respect of pecuniary sanctions, also the size and financial situation of the sanctioned undertaking or group, and any other relevant criteria.”;

In the case of infringements as referred to in point (b) of this paragraph which are committed intentionally, the financial penalties referred to in point (a) of this paragraph shall be substantive and equivalent to those provided for in Article 83(5) of Regulation (EU) 2016/679.

Penalties – see above

"The central management shall bear the judicial costs incurred in carrying out the procedures, the costs of legal representation and subsidiary costs such as subsistence and travel expenses for at least one employees'  representative;"

This invites EWCs to threaten/take cases to court to exert pressure on management, even if such cases have no merit  and it is clear that they have no merit. If you can take a course of action that may result in an advantage for you, for which the other party has to pay, and which costs you nothing if you lose, then the rational thing to do is to take that course of action. An entitlement to uncapped legal fees on the part of EWCs creates a perverse incentive and they will be encouraged by bad actors to take advantage of that incentive, especially if the bad actors themselves benefit financially.

Article 14a – Updating Agreements

Where, following the transposition of [OP: insert reference to this amending Directive], a European Works Council agreement or agreement on an information and consultation procedure concluded before [OP: insert date from which the transposing provisions are to apply, set out in the Article 2(1), 2nd subpar. of this amending Directive] in accordance with Articles 5 and 6 of Directive 94/45/EC or Articles 5 and 6 of this Directive is not in conformity with any of the requirements applicable to that agreement as a consequence of the amendments provided for in [OP: insert reference to this amending Directive], central management shall initiate negotiations to adapt that agreement at the written request of at least 100 employees or their representatives in at least two undertakings or establishments in at least two different Member States. Central management may also initiate such negotiations on its own initiative.

By … [two years after the deadline for transposition of this amending Directive], the obligations arising from this Directive shall be applicable to European Works Council agreements or agreements on an information and consultation procedure concluded before [OP: insert date from which the transposing provisions are to apply, set out in the Article 2(1), 2nd subpar. of this amending Directive] in accordance with Articles 5 and 6 of Directive 94/45/EC or Articles 5 and 6 of this Directive. All agreements which have been concluded pursuant to Article 13(1) of Directive 94/45/EC and agreements concluded pursuant to Article 6 of Directive 94/45/EC which were signed or revised between 5 June 2009 and 5 June 2011 shall fall within the scope of this Directive without any obligation to renegotiate.

Where agreements exist, either Article 13 or 6, and either Information and Consultation Fora or EWCs exist under these agreements, it seems unfair that such agreements can be overturned at the request of 100 employees, or 2 representatives from at least 2 countries acting on their behalf, without the existing Forum or EWC having a say in the matter. In addition to a request for 100 employees or their representatives the consent of the existing body should also be required by a two-thirds majority of that body. 

While the Commission’s wording proposes a renegotiating procedure, the parliament’s rapporteur wants all agreements to be brought into line automatically, without any renegotiation. This is in line we what we suggested earlier that what he wants to bring about by stealth is a one-size-fits-all EWC arrangement. 

Article 14a – Updating Agreements

Where an adaptation procedure does not lead to an agreement within two years from the date of the respective request by employees or their representatives, the subsidiary requirements set out in Annex I shall apply.”;

Where an adaptation procedure does not lead to an agreement within 18 months from the date of the respective request by employees or their representatives, the subsidiary requirements set out in Annex I shall apply.

This seems at odds with his proposals for automatic updating.

Article 15 – Franchises (New)

When making such proposals, the Commission shall assess the possibility of including contracts which enable structurally independent undertakings to influence one another's operation and business decisions (such as franchising or management contracts) within the scope of Directive 2009/38/EC, in order to prevent possible gaps.

This refers to including franchise operations within the scope of EWCs. Franchise operations are legally separate, and it is not appropriate to include them in the EWC of a different legal entity.

Article 16 – Notifying the Commission (New)

Member States shall notify the Commission of the measures taken referred in Article 11(2) at the earliest opportunity.

Unnecessary delays are to be avoided.

Subsidiary Requirements

Annex I – point 3 – subparagraph 1

Where there are exceptional circumstances or decisions which are likely to affect the employees’ interests to a considerable extent, and urgency does not allow for information or consultation to take place at the following scheduled European Works Council meeting,

particularly in the event of relocations, the or collective redundancies, the select committee or, where no such committee exists, the European Works Council, shall have the right to be informed in a timely manner. It shall have the right to meet, at its request, the central management, or any other more appropriate level of management within the Community-scale undertaking or group of undertakings having its own powers of decision, in order to be informed and consulted closure of establishments or undertakings

Where there are exceptional circumstances or decisions which may or are likely to affect the employees’ interests to a considerable extent, and urgency does not allow for information or consultation to take place at the following scheduled European Works Council meeting, particularly in the event of relocations, the closure of establishments or undertakings or collective redundancies, the select committee or, where no such committee exists, the European Works Council, shall have the right to be informed in a timely manner. It shall have the right to meet, at its request, the central management, or any other more appropriate level of management within the Community-scale undertaking or group of undertakings having its own powers of decision, in order to be informed and consulted.

Everything “may” affect employees. The triggering of EWC information and consultation needs more precision than something that “may” happen. The word “likely”, ambiguous and all as it is, is more appropriate.

Annex I – point 3 – subparagraph 2

Those members of the European Works Council who have been elected or appointed by the establishments and/or undertakings which are directly concerned or can reasonably be expected to be directly concerned by the circumstances or decisions in question shall also have the right to participate where a meeting is organised with the select committee

Those members of the European Works Council who have been elected or appointed by the establishments and/or undertakings which are directly concerned or can reasonably be expected to be affected by the circumstances or decisions in question shall also have the right to participate where a meeting is organised with the select committee

The word “affected” seeks to extend the remit of process as it can be argued that everyone in an undertaking will be “affected” by the ripple effect of a decision. The information and consultation process should be restricted to those “directly concerned”, and clearly directly concerned. Vagueness is to be avoided.