On Wednesday 27 March, the Belgian Presidency of the EU Council submitted to the Member States a draft compromise on the revision of the 2009 Directive on European Works Councils (EWCs) presented by the Commission on 24 January (see EUROPE 13335/19).
This Directive aims to guarantee the right to information and consultation of employee representatives by central management on transnational issues for companies with at least 1,000 employees or Community-scale groups of companies operating in more than one EU country and with 150 employees in at least two of them.
The compromise, which will be discussed by the working group on 11 April, responds to comments made by the Member States on the basis of a questionnaire sent out at the end of February.
The new text slightly amends the language on the costs of EWCs, on the way in which EWCs meet - they can meet in hybrid mode, online or in person - or on the confidentiality of certain information shared with EWCs, which “should only be maintained for as long as the reasons justifying it persist”.
With regard to the possibility for the central management of the undertaking not to transmit information to the members of special negotiating bodies or European Works Councils or to employees’ representatives in the context of an information and consultation procedure - a possibility which should be limited to cases where such transmission would seriously harm the operation of the undertakings concerned - the compromise specifies that, “for reasons of transparency and effective redress, central management should also be required to specify the reasons justifying the non-transmission of information in a balanced manner which allows for sufficient legal scrutiny, while not revealing protected information. The dispensation from transmitting information applies as long as the reasons for it persist”.
With regard to the time limits for consulting and informing EWCs, it is “important, taking into account of the urgency of the matter, that information and consultation take place in good time and that the European Works Council and the employees’ representatives are given sufficient time to express their views in order to ensure the effective exercise of the rights provided for in this Directive”.
The text does not change the definition of transnational issues subject to EWCs and slightly amends the language on financial penalties.
In its comments to the Presidency, Poland expressed doubts about the provisions on gender balance in EWCs. “It can be particularly difficult to achieve a balance between men and women on the presidium (members of the select committee). The case law of the Court of Justice of the EU seems useful in this respect, according to which the 40% target applies provided that it is legally and effectively enforceable and that it does not undermine national rules on the election of employees’ representatives”.
The Austrians, for their part, would have liked that the EWCs meet at least once a year rather than twice as the Commission has decided.
European Parliament wants to be able to suspend decisions without consulting EWCs
The European Parliament’s Committee on Employment and Social Affairs will vote on its mandate on 4 April. In particular, the report by Dennis Radtke (EPP, German) seeks to clarify the definition of transnational matters subject to EWCs (“To determine the transnational nature of an issue, account should be taken of the extent of its possible effects on workers and the level of management and representation involved. This includes issues which are of concern to employees because of the extent of their potential impact in two or more Member States, as well as issues which involve a transfer of activities between two or more Member States”).
On sanctions, the text states that dissuasive financial sanctions are needed, and other forms of sanctions should also be provided for, including administrative and judicial procedures.
“In line with national law and practice, Member States should ensure the possibility to request a preliminary injunction in national courts or other competent authorities for a temporary suspension of the implementation of management decisions until an information and consultation procedure has taken place at the relevant level of management and representation and in such a way as to enable a reasoned response from the central management in accordance with this Directive”, the report states.
Trade unions respond to employers
On Thursday 28 March, the European Trade Union Confederation (ETUC) also wrote to MEPs, as BusinessEurope had done on 22 March (see EUROPE 13378/22). The organisation reiterated its support for the Commission’s proposal. The ETUC also adopted a position paper on EWCs on 26 and 27 March.
“The opposition from certain employers’ organisations and federations, challenging the scientific underpinnings of the proposed amendments and resorting to arguments that verge on misinformation, cannot be overlooked”, says the ETUC.
“As it stands, the effectiveness of EWCs in ensuring transnational workers consultation is significantly hindered by legal and practical limitations. Only a minority of EWCs are consulted in a timely and meaningful manner ahead of crucial transnational decisions”.
“Incidentally, a proper consultation procedure in no way prevents the management from making decisions quickly”.
The European Parliament’s amendments “aim to ensure that consultations are genuine, with EWCs’ positions considered integral to decision-making processes”.
It is also “paramount to address the misuse of confidentiality clauses that stifle meaningful consultations. The requirement for employers to justify the confidentiality of information based on objective criteria is a step toward transparency and effective dialogue”.
Links to the compromise, European Parliament amendments and ETUC documents: https://aeur.eu/f/bjc ; https://aeur.eu/f/bjf ; https://aeur.eu/f/bjn ; https://aeur.eu/f/bjr (Original version in French by Solenn Paulic)