With its adoption by the European Parliament and Council of Ministers in December 2008, the recast directive on European Works Councils may become effective in 2009. The adopted text is based on an informal agreement reached on 4 December. In addition to changes proposed by the social partners, the Parliament agreed on amendments to the definition of ‘transnational’ and the obligation of Member States to define ‘adequate, proportionate and dissuasive’ sanctions.
The rapid adoption of the recast directive on European Works Councils (EWCs) was made possible by intense behind-the-scenes negotiations led by the French EU Presidency in the second half of 2008. It was facilitated by a joint advice of the European social partners published in an open letter (74Kb PDF) to the former French Minister of Labour, Social Affairs and Solidarity, Xavier Bertrand, on 29 August 2008 (EU0810019I).
On 17 November 2008, the European Parliament Committee on Employment and Social Affairs (EMPL) decided, based on the input of Social Democrats, Greens, left-wing parties and parts of its conservative members, on further amendments to the European Commission proposal for the recast directive. In a joint meeting between the Commission, the Parliament and the Council of Ministers on 4 December, the parties reached a compromise paving the way for an adoption of the recast directive by both the Parliament and the Council. On 16 December, the Parliament adopted the compromise text at first reading. The Member States reached a political agreement based on the text at the Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) meeting on 17 December. Only the British government abstained from approving the new text.
Amendments adopted by European Parliament
The compromise text includes proposals of the European social partners taken up in the report by Philip Bushill-Matthews – the UK representative of the Group of the European People’s Party (Christian Democrats) and European Democrats in the European Parliament (EPP-ED, UK). As noted, on 29 August 2008, these proposals were forwarded in the letter to former Minister Bertrand, who chaired EPSCO at the time.
The final text also includes a set of further amendments proposed by EMPL.
- Members of the European Parliament (MEPs) introduced an improved definition of ‘transnational’, taking account of the court judgements in the Vilvoorde (EU9703108F), British Airways and Marks and Spencer (FR0104147F) cases. The new definition includes decisions that affect only one Member State but exceed the powers of the decision-making bodies in the Member State in which employees who will be affected are employed.
- The Parliament introduced an obligation for Member States to ensure ‘adequate, proportionate and dissuasive’ sanctions in the event of failure to comply with the EWC directive.
- MEPs rejected the European Commission’s proposal to introduce a threshold of 50 employees for countries participating in the special negotiating body (SNB) that negotiates the agreement to set up an EWC. Such a threshold would discriminate against small Member States which would have difficulty reaching this threshold.
Reaction of social partners
The social partners’ reactions to the adoption of the recast EWC directive were unanimously positive.
The trade unions could be particularly satisfied with the outcome of the negotiations between the political institutions, as the adopted text includes amendments to the European Commission’s original proposal that strengthen the employee side. The European Trade Union Confederation (ETUC) highlighted in a press release three of these amendments: the abolishment of the threshold of 50 employees for the SNB, the improved definition of ‘transnational’ and the obligation to ensure ‘adequate, proportionate and dissuasive’ sanctions.
Reactions of the employers were equally positive. For example, the American Chamber of Commerce in Germany (AmCham Germany) (see press release (55Kb PDF) on 17 December 2008) and the Confederation of German Employers’ Associations (Bundesvereinigung der Deutschen Arbeitgeberverbände, BDA) welcomed the rapid adoption of the recast directive, ensuring legal certainty and planning security for companies. They also emphasised that the revised text retains the flexibility offered by company-specific and tailor-made agreements.
Commentary
The revision of Council Directive 94/45/EC on the establishment of an EWC or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees has been discussed since 1999. In this context, the rapid adoption of the recast directive in the second half of 2008 shows that the necessity to improve the text of the 1994 directive could be accepted by all parties, including the social partners as well as Member States – with the exception of the UK.
The main improvements concern clearer definitions of ‘information’, ‘consultation’ and ‘transnational’, the acknowledgement of the role of trade unions, rules for adapting EWC structures to company restructuring and the obligation for Member States to define adequate sanctions.
Stefan Lücking, Technical University Munich