On July 2, the Commission published its proposal on the revision of the European Works Council (EWC) Directive 94/45/EC.

Among the substantive changes proposed are:

  • General principles. Introducing general principles of “effectiveness” in Article 1.
  • Definitions. Introducing a definition of “information” and amending the definition of “consultation” to reflect other pieces of legislation on employee consultation (an extension compared to the provisions of the current Directive). This includes concepts of time, fashion and content appropriate to the information and consultation, and states that employees must be able to ‘express an opinion’, although the proposal does not give any concrete details as to what is required. There is no suggestion that consultation should be with a view to reaching agreement (unlike in a collective dismissals scenario).
  • Scope. Limiting the competence of EWCs to “issues of a transnational nature.”
  • Link with national works councils. The requirement that central management and the Special Negotiating Body (SNB) define the link between the national and transnational levels of information and consultation of employees—such an explicit link was absent in the original directive. This requirement will tend to reinforce the fact that EWCs should only be involved in transnational issues, and will in effect create a two-tier system of information and consulting.
  • Role of trade unions. Recognition of the role of trade union organizations as appropriate professionals to assist employees’ representatives. This provision was already embodied in many of the national implementing laws, so this change is more of symbolic significance.
  • Subsidiary requirements. Adapting the subsidiary requirements (the default rules applicable in the absence of an agreement). There are some practical improvements to the composition of the EWC: removal of minimum/maximum number of EWC members, and the provision that there would not be an EWC member for Member States where there are less than 50 employees. This will be an advantage to companies, given that the current subsidiary requirements provide that every country should have an EWC member even if the number of employees in that country is very small. This will also simplify EWC meetings by reducing the need for translation into the languages of such countries. The maximum number of select committee members shall be five instead of three and the circumstances in which the select committee may be called to meet are widened to include “exceptional decisions affecting the employees’ interests to a considerable extent.”
  • Adaptation clause. Introducing an adaptation clause in Article 13(3) which would require renegotiation of an EWC agreement where the structure of the undertaking or group “changes significantly,” where there are no provisions in the current EWC agreement to deal with this scenario or in the case of conflicts between different agreements in force.

Next steps: This proposal will have to be accepted by the Council and European Parliament acting in co-decision under the procedure set out in Article 251 EC. It will be subject to debate both in the European Parliament and the Council, making it difficult to predict the outcome (either in terms of content or timing). The Parliament’s First Reading will likely start in September 2008. It therefore seems unlikely that this piece of legislation will be passed before the Parliamentary elections in May 2009—something that further complicates any predictions as to outcome or timing.