The impact of the information and consultation directive on industrial relations — Germany
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Successive German governments have shared the opinion that there was no need to transpose Directive 2002/14/EC, since the German legislation on codetermination and in particular the Works Constitution Act (Betriebsverfassungsgesetz) from 1972 (with changes) went beyond the requirements of the Directive concerning information and consultation. This view is shared by the Confederation of German Employers’ Associations (BDA) whereas the Confederation of German Trade Unions (DGB) identifies a number of deficits with regard to the implementation of the Directive, which are in particular related to the limited scope of the Works Constitution Act.
Question 1: National implementation of the Directive
Has the information and consultation Directive been implemented in your country? If so, did this require:
(i) extensive reform or major new legislation?(ii) an extension or relatively minor adaptation of pre-existing provisions (e.g. on national works councils or similar bodies)?
or
(iii) no new measures?
There never was any implementation of Directive 2002/14/EC. Successive German governments have shared the opinion that there was no need to transpose the Directive, since German legislation on codetermination and in particular the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) from 1972 (with changes) went beyond the requirements of the Directive concerning information and consultation (see also DE0309201T). This view is shared by the Confederation of German Employers’ Associations (Bundesvereinigung der Deutschen Arbeitgeberverbände, BDA) whereas the Confederation of German Trade Unions (Deutscher Gewerkschaftsbund, DGB) identifies a number of deficits with regard to the implementation of the Directive, which are in particular related to the limited scope of the Works Constitution Act – see answer on question 3 for details.
The principal employee representation body in Germany is the works council (Betriebsrat), which applies to establishments which are organised under private law. Its legal basis is the BetrVG, which was last amended in 2001 (DE0107234F). The scope of the BetrVG covers only those employees within an establishment defined in section 5 - executive staff are thus excluded and do not have the right either to vote in works council elections or to stand for election. The establishment of a works council is not mandatory. The eligibility requirement for setting up a works council is that the establishment in question should regularly employ at least five employees who are eligible to vote.
The works council has a number of participation rights, consisting of rights to information, consultation and co-determination. The area of co-determination encompasses, among others points: matters connected with works rules; working time in the establishment; the method of payment used for remuneration; the introduction and use of technical devices for monitoring employees’ conduct and performance; and health and safety issues. The works council furthermore has the right to be informed about and involved in all relevant aspects of environmental protection in the establishment and the right to negotiate works agreements on this subject. As a general principle, the right of co-determination is exercised through a works agreement or semi-formal works agreement in the case of collective measures, and through a decision by the works council in the case of matters relating to individual employees.
The equivalent of the works council in the public sector is the staff council (Personalrat). A staff council must be formed in every public sector establishment with at least five employees, including career public servants (Beamte), white-collar workers and manual workers. Its legal basis is the Federal Staff Representation Act (Bundespersonalvertretungsgesetz) and the staff representation laws of the individual states (Länder). The staff council’s participation rights are structured along similar lines to those under the works constitution Act in the private sector, with information and consultation rights mainly in personnel matters, and co-determination rights in the context of social matters.
Question 2: Infringement proceedings
If yours is one of the countries against which the European Commission instituted infringement proceedings for non-compliance with the Directive (see above), on what grounds was this done? What accounts for the government’s inaction or delay? How has the government reacted to the infringement proceedings? And has the matter now been resolved?
Not applicable – see answer to question 1. The European Commission accepted the view of the German Governments.
Question 3: Views of the social partners
(a) How did national employers’ groups and trade unions react to the Directive when it was adopted and what were their views on how it should be implemented in your country? If there was debate and controversy, on which aspects of the Directive did it focus? How and to what extent were the social partners involved in the implementation process and to what extent did they influence your government’s response to the Directive?(b) What are the social partners’ views on the measures finally adopted (if any) to implement the Directive in your country?
There was no involvement of either employers or trade unions in the implementation process as there was none – see above.
The BDA shared the view of the Government that there is no need for implementation of the Directive as the BetrVG covers all relevant issues. In an answer to a questionnaire sent out by the European Commission in 2007 the BDA states that not only legislative implementation but also further agreements by social partners to implement the Directive were unnecessary as the provisions on information and consultations included in the BetrVG were all-encompassing. The BDA points to the fact that the German law does not only provide information and consultation rights but also genuine co-determination rights of the works council. According to the BDA the specific provisions of the BetrVG are fully legally enforceable and it points to the fact that section 23 of the BetrVG allows the works council or a trade union represented in the company to go to the courts if the employer does not fulfil its duties resulting from the BetrVG. The BDA sees therefore no further need for legal provisions to enforce the Directive. Commenting on the relationship between national provisions implementing Directive 2002/14/EC (general framework) and those implementing Directives 98/59/EC (collective redundancies), 2001/23/EC (business transfers) and 94/45/EC (European Works Councils) the BDA has the view that these Directives provide specific information and consultation rights concerning collective redundancies and business transfer and in the case of the establishment of European Works Councils provide trans-national information and consultation rights of companies doing business in more than one EU Member State. With regard to these regulations, the BDA asks whether the general framework as outlined in Directive 2002/14/EC is still necessary as the other Directives provide encompassing information and consultation rights of employees.
However, in contrast to the BDA, the DGB identifies a number of deficits with regard to the implementation of the Directive which are in particular related to the limited scope of the Works Constitution Act. The DGB points in particular to section 4 of the Directive (information of employees about the economic situation of the company or establishment concerned) and states that according to section 106 of the BetrVG the employer has only to inform the so-called finance committee (Wirtschaftsausschuss) which should be established in all companies having normally at least 100 permanent employees. Smaller companies are therefore not covered and the DGB sees therefore a need for the legislator to amend the BetrVG accordingly in order to ensure that information related to the economic situation is also given to employee representatives in smaller companies or establishments. According to the DGB, a major shortcoming in Germany consists of the fact that all information and consultation rights provided by the BetrVG are related to the prior establishment of a works council. As there is, however, no legal obligation to establish a works council, the latter only exist in about 11% of all companies with at least five employees covering some 46% of employees (2005). The DGB sees therefore a need to ensure by way of legislation that employees in companies without a works council but covered by the Directive are informed and consulted accordingly. In contrast to the BDA,the DGB considers the legal provisions in case of non-compliance by the employer to the provisions of the BetrVG as not fully satisfying and has a number of propositions to enhance the legal rights of works councils to enforce information and consultation by the employer. Commenting on the relationship between national provisions on implementing Directive 2002/14/EC (general framework) and those implementing Directives 98/59/EC (collective redundancies), 2001/23/EC (business transfers) and 94/45/EC (European Works Councils) the DGB is in favour of a harmonisation of the definitions of ‘information and consultation’. The DGB favours the definition of ‘information’ and ‘consultation’ as laid down in Directive 2001/86/EC. The DGB wishes to amend article 4 section 2 of the Directive 2002/14/EC in so far as to ensure that employees have to informed and consulted in cases where no employee representative bodies exist. It also wants to lower the threshold for the requirement to inform and consult employees to companies with at least 30 employees and establishments with at least five employees, respectively.
Question 4: Impact of the Directive on industrial relations practice
What impacts on industrial relations practice has the implementation of the Directive had in your country?
See answer to question 1.
Question 5: Interface with other national information and consultation provisions
Please comment on the relationship between national provisions implementing Directive 2002/14/EC (general framework) and those implementing Directives 98/59/EC (collective redundancies), 2001/23/EC (business transfers) and 94/45/EC (European Works Councils).
As there was no implementation of Directive 2002/14/EC, there is no interface to the implementation of other Directives.
The Directive on European Works Councils was implemented by way of legislation in 1996 (Europäisches Betriebsräte-Gesetz, EBRG). The Directive 2001/23/EC (business transfers) led to some changes in section 613a of the Civil Code Book (Bürgerliches Gesetzbuch, BGB) which regulates legal questions in case of a business transfer. As far as works councils are concerned, this Directive was implemented by way of amending the BetrVG in 2001 with two new sections – section 21a regulating the transitional mandate of a works council in the case of business transfer and section 21b regulating the residual mandate of a works council in cases where establishments cease to exist due to business transfers. Directive 98/59/EC (collective redundancies) was implemented by way of minor amendments to the section 18 (and others) of the law on statutory protection against dismissal (Kündigungsschutzgesetz. KSchG).
Question 6: Commentary by the national centres
The implementation of the Directive never was a major issue in Germany. The position of the government - that German law already provides information and consultation rights which exceed those in existence in most other European countries - is shared by employers. Although the DGB sees some room for improvement of the German legislation on consultation and information, it has not conducted a major campaign on this issue.
Heiner Dribbusch, Institute of Economic and Social Research, WSI