Information and consultation

Council Directive 2002/14 /EC, which establishes a general framework for informing employees and consulting with them in the European Community, defines ‘information’ as ‘transmission by the employer to the employees’ representatives of data in order to enable them to acquaint themselves with the subject matter and to examine it’ (Article 2(f)). The directive defines ‘consultation’ as ‘the exchange of views and establishment of dialogue between the employees’ representatives and the employer’ (Article 2(g)).

A requirement for the provision of information in the enterprise and consultation in the enterprise with employee representatives was introduced by Directive 2001/14. It applies to all undertakings employing at least 50 employees, or EU establishments employing at least 20 employees. The directive is estimated to cover fewer than 3% of all companies, though this accounts for about half of all employees in the EU. Member States were obliged to implement the directive via national law by 23 March 2005.

Under the directive, the practical arrangements for information and consultation are to be determined by the Member State, which can entrust management and labour to make voluntary agreements, including different arrangements ‘while respecting the principles set out in Article 1’. For example, Article 1(3) requires that:

When defining or implementing practical arrangements for information and consultation, the employer and the employees’ representatives shall work in a spirit of cooperation and with due regard for their reciprocal rights and obligations, taking into account the interests both of the undertaking or establishment and of the employees.

The practical arrangements that Member States are required to determine for information and consultation incorporate a process of nine sequential stages:

• transmission of information/data (Article 2(f))
• acquaintance with and examination of data (Article 2(f))
• conducting an adequate study (Article 4(3))
• preparation for consultation (Article 4(3))
• formulation of an opinion (Article 4(4)(c))
• meeting (Article 4(4)(d))
• employer’s reasoned response to opinion (Article 4(4)(d))
• exchange of views and establishment of dialogue (Article 2(g))
• discussion (Article 4(4)(b)) ‘with a view to reaching an agreement on decisions’ (Article 4(4)(e))

Previous European Community (EC) law has provided for the information and consultation of employees in specific circumstances, such as collective redundancy or transfer of an undertaking, or on issues such as health and safety, while the 1994 Directive on European works councils provided for information and consultation on certain matters in multinational companies and groups. Directive 2002/14/EC is also highly significant since it is the first EC law stipulating a general obligation to inform and consult employees. It arguably establishes a European social model of mandatory employee representation as well as the mandatory informing and consulting of employee representatives.

The extent of the changes required by the directive to the existing systems of information and consultation and workplace representation has varied considerably between countries. According to a 2009 report from Eurofound, Member States fall into three broad groups: those requiring very few – if any – changes; those requiring limited amendments; and those requiring extensive legislative reform.

Given the importance of information and consultation, coupled with the increased number of company closures and restructurings due to the financial and economic crisis, the European Commission carried out a ‘fitness check’ on the information and consultation of workers in the context of its Regulatory Fitness and Performance programme (REFIT ). The check focused on the information and consultation provisions in three directives: Directive 2002/14/EC; Directive 98/59/EC on collective redundancies; and Directive 2001/23/EC on the transfers of undertakings.

The Commission concluded in July 2013 that the directives are broadly fit for purpose and their benefits outweigh the costs, but that some gaps remain — notably their application to public service workers, seafarers and SMEs — and that certain definitions need further examination and discussion. It also found that there is room for improvement in its application, particularly in countries with less well-developed information and consultation traditions. This could be achieved by promoting an information and consultation culture among social partners, strengthening institutions, promoting agreements on information and consultation, disseminating good practice and raising awareness and ensuring enforcement. It states that legislative intervention at EU level ‘may not be the most appropriate means of tackling all the gaps and shortcomings’, focusing rather on social dialogue at different levels and by different actors.

Recasting the information and consultation legislation

Differences in the scope/definitions and thresholds across the three directives have prompted some demands at EU level to review and simplify the legislation. In April 2015, the Commission initiated a social partner consultation under Article 154(2) of the Treaty on the Functioning of the European Union (TFEU) on consolidation of the EU Directives on information and consultation of workers.

In the consultation paper, the Commission presented the view that a potential recast of the three directives into one single piece of legislation and the addition of specific provisions defining the concepts ‘information’ and ‘consultation’ in the directives would enhance legal clarity and awareness. However, it also warned that ‘care should be taken to avoid that the alignment of the definitions brings about an unjustified regression of workers’ protection’.

On 11 June 2015, the Commission published a list of planned initiatives, including the initiative on a consolidation/recasting of the three directives, whose adoption was planned for the fourth quarter of 2015. However, this initiative now seems to be off the table, as the Commission Work Programme has not mentioned it since 2015.

In response to the consultation, the main employers’ stakeholders firmly opposed a revision or recast of the directives (BusinessEurope, UEAPME (now SMEunited), CEEP and CEEMET), arguing the directives worked well for both employers and workers, and that each concerned different issues so would conflict with the aim of harmonising information and consultation throughout all directives.

Workers’ stakeholders tend to favour including the public sector in the scope of the directives, with a preference for a framework agreement under the sectoral dialogue (CESI, ETUC and EPSU – CWU). Only in the absence of such an agreement are workers’ stakeholders in favour of extending the scope of the three directives to the public sector, though by means of a separate revision of the directives and not a recast.

Finally, the Social Dialogue Committee for Central Government Administrations (SDC CGA) argued that information and consultation is a fundamental social right, and that all employees must therefore enjoy this right regardless of whether they work in the public or private sector. As a result, the SDC CGA negotiated a common framework on information and consultation for central government administrations under Article 155 of the TFEU (21 December 2015).

See also: co-determination; European company; fitness check; management prerogative; participation; restructuring; transfer of an undertaking

Please note: the European industrial relations dictionary is updated annually. If errors are brought to our attention, we will try to correct them.