[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 17.3.2008

SEC (2008) 334

COMMISSION STAFF WORKING DOCUMENT

Accompanying the COMMUNICATION FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS on the review of the application of Directive 2002/14/EC in the EU

{COM (2008) 146 final}

1. INTRODUCTION

Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community[1] (henceforward: "the Directive") was adopted five years ago on 11 March 2002.

The Directive's objective was mainly to consolidate the principle of information and consultation in the EU, whilst, on one hand, supplementing the existing Community directives[2] and, on the other hand, filling the gaps in national laws and practices.

To this end, the Directive provided for the establishment, by way of minimum requirements, of a general and flexible framework comprising the principles, definitions and arrangements for employees' information and consultation in undertakings at national level. A large measure of flexibility was given to Member States, in particular as regards the implementation of the Directive's concepts (such as "employees' representatives", "employer", "employees", etc.), and of the arrangements for information and consultation, in order to be able to adapt them to their own national situation and practices. The importance of the role of management and labour in this regard was emphasised.

The present document deals with the transposition of Directive 2002/14/EC in the enlarged EU. The Commission services based themselves on the replies to a questionnaire addressed to the Member States and to the European social partners[3], on a study prepared by independent experts[4], as well as on various other sources, including research, complaints etc. which were brought to the knowledge of the Commission.

It should be stressed that the present Commission services' report does not prejudge the position, which the Commission might eventually take with regard to the compatibility of any national provisions with the Directive.

2. NATIONAL MEASURES TRANSPOSING THE DIRECTIVE

2.1 Only a few Member States adopted measures in order to transpose the directive within the required deadline, i.e. by 23 March 2005 (FR[5], HU, NL, PT, SK, FI, UK[6]). Two Member States (DE, AT) notified to the Commission that their existing legislation conforms already to the Directive's requirements and that no further measures are needed. BG and RO transposed the Directive, as required, before the date of their accession to the EU (1 January 2007).

The majority of the Member States failed thus to transpose the directive on time. Following infringement proceedings launched by the Commission, the European Court of Justice issued judgements against IT[7], BE[8], LU[9], ES[10] and EL[11] for non-transposition within the required deadline. IT, ES and EL adopted meanwhile implementing legislation. BE and LU have transposed the Directive only partially.

2.2 Most of the Member States transposed the Directive by way of legislation. DK transposed it, in accordance with its tradition, by way of both legislation and collective agreements[12]; the transposing law applies in case that an undertaking is not covered by a collective agreement equivalent to the Directive's requirements. BE transposed the Directive by way of several legal and regulatory acts as well as by a number of collective agreements.

In some Member States transposition implied the adoption of a comprehensive law (e.g. DK, EE, EL, IT, CY, PL); in others only some, more or less minor, changes to the existing legislation were made (e.g. CZ, LV, LT, HU, NL, SI, SK, FI, SE).

In almost all Member States the transposition was preceded by a consultation of the social partners, albeit in different forms and procedures in accordance with the particular tradition of each country.

Some countries, which did not dispose of a general, permanent and statutory system of information and consultation nor a general, permanent and statutory system of employee representation, made use of the transitional provisions provided for in Article 10 of the Directive (BG, IE, IT, CY, MT, PL, UK).

A table on the state of implementation of the Directive setting out the national transposition measures is appended (annex 1).

Annex 2 gives an overview of the replies of the consulted stakeholders to the general questions of the questionnaire[13] regarding the application, the impact on the industrial relations systems of the Member States and the eventual need to review the Directive.

3. ANALYSIS OF THE TRANSPOSITION MEASURES

3.1 Object and principles (Article 1)

Article 1 of the Directive provides the following:

"1. The purpose of this Directive is to establish a general framework setting out minimum requirements for the right to information and consultation of employees in undertakings or establishments within the Community.

2. The practical arrangements for information and consultation shall be defined and implemented in accordance with national law and industrial relations practices in individual Member States in such a way as to ensure their effectiveness.

3. 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. "

Article 1 lays down the purpose and principles of the Directive. It requires in particular that the practical arrangements for information and consultation of employees have to be effective and that the employer and the employees' representatives have to work in a spirit of cooperation.

One Member State reproduced the terms of article 1 of the Directive (EL). Several Member States laid down explicitly in their transposing measures that the employer and the employees' representatives have to cooperate or work in a spirit of cooperation taking into account the interests of both (e.g. BE, CZ, ES, IE, IT, MT, UK). Some other Member States used different wording, such as cooperation in good faith or on a basis of mutual trust (e.g. DE, EE, LT, AT, PL). However, generally, even where there is no express mention, the spirit of cooperation can be deduced from the content or the spirit of the transposing acts, which sometimes go beyond the directive's requirements and provide for advanced forms of employees' involvement, such as negotiation, co-determination or participation (e.g. FR, NL, FI, SE).

3.2. Definitions (Article 2)

(a) Undertaking

Article 2 letter (a) of the Directive defines the concept of undertaking as “a public or private undertaking carrying out an economic activity, whether or not operating for gain, which is located within the territory of the Member States”.

Several Member States reiterate the aforementioned definition in their transposing legislation (DK, EL, IE, IT, CY, MT, RO, UK). Some Member States use a rather different definition (BE, BG, CZ, LV, NL, PL, SI, FI), whilst other Member States do not provide for any explicit definition in their transposing legislation (DE, EE, ES, FR, LT, LU, HU, AT, PT, SK, SE,). However, some of the latter Member States use the term "employer" instead of "undertaking" in order to define the personal scope of application of the Directive (EE, HU, PL, SK, SE)[14].

Belgium : The Loi portant Organisation de l’Economie du 20 Septembre 1948 (hereafter Law 1948) defines this concept as follows: “unité technique d’exploitation, définie à partir des critères économiques et sociaux; en cas de doutes, ces derniers prévalent” (article 14 (1) of Law 1948). Article 14 (2) of Law 1948 adds that an undertaking is also obliged to set up a works council, if it occupies as a legal entity at least 50 workers.

Bulgaria : "undertaking" shall be any workplace -undertaking, office, organization, cooperative, establishment, project and the like, where work against payment is done (Supplementary provisions to the Labour Code)

Czech Republic: "Undertaking", as used in Part Twelve of the Labour Code, means "employer" (Article 276(1) LC).

Latvia : any organisational unit in which an employer employs his/her employees (Article 5 Labour Code)

The Netherlands: any organised body publicly operating as an independent unit where work is preformed under a contract of employment or under public law appointment (art. 1 (c) of the Works Councils Act (hereafter WOR)).

Poland: There is no explicit definition in the transposing legislation. However, according to Art 1(3) of Employees' Information and Consultation Act of 7/04/2006 (hereafter Act 2006), the provisions concerning the election of the Work Councils and the protection of its members do not apply to certain undertakings (in particular state enterprises where self management is operated, joint enterprises employing more than 50 workers and state film industries). Furthermore, by virtue of Article 1(2) of Act 550/2006 applies to employers conducting business activities.

Slovenia: Article 1 of the 1993 Workers Participation in Management Act ( hereafter WPMA) was amended in 2007 in order to enlarge its personal scope of application (commercial companies, irrespective of the type of ownership, and cooperatives) by adding the single entrepreneurs. However, it still excludes the institutes[15] to the extent that it provides that the collective exercise of the right to participate in management should be regulated by a separate law (not adopted yet)[16].

Finland : In accordance with art 3 of Act of 30/3/2007 on co-operation within undertakings (hereafter Act 2007), an undertaking refers to a corporation, foundation or natural person engaged in economic operation regardless of whether the operation is intended profitable or non-profitable.

(b) Establishment

Article 2 letter (b) of the Directive defines the concept of establishment as “a unit of business defined in accordance with national law and practice, and located within the territory of a Member State, where an economic activity is carried out on an ongoing basis with human and material resources”.

One Member State reiterates the aforementioned definition in their transposing legislation (EL). Member States which chose the option of Article 3 (1, a) of the Directive did not have to transpose this definition. Other Member States define the concept in different ways or terms:

Germany : According to case law, an establishment (Betrieb) is an organised unit within which the employer and the employees pursue in a permanent way by the use of technical or immaterial means, productive goals not limited to the satisfaction of their own needs.

Spain : the unit of business with specific organisation registered as such before the labour authority (Art. 1 (5) of Statute of Worker’s Rights (hereafter WS)).

Austria : Every workplace building an organisational unit in which a natural or moral person or an association of persons continuously achieves certain work results with technical or immaterial means regardless whether profit is intended or not (Article 34 ArbVG; see also. Article 35 ArbVG).

(c) Employer

Article 2 letter (c) defines this concept as “the natural or legal person party to employment contracts or employment relationships with employees, in accordance with national law and practice”.

Some Member States reiterate the aforementioned definition (EL, RO), whilst some others do not provide for any explicit, precise definition in their transposing legislation (BE, DK, DE, EE, FR, HU, LU, AT, PL, SI, FI, SE, UK). Several Member States define the term more precisely:

Bulgaria : any natural person, body corporate or division thereof, as well as any other organizationally and economically autonomous entity (undertaking, office, organization, cooperative, farm, establishment, household, association and the like), that independently hires employees under employment relationships (Supplementary provisions to the Labour Code)

Czech Republic: an individual or legal entity that employs individuals in an employment relationship (Article 7 LC).

Spain : any person, natural or legal, or community of property for whom services are rendered by employees, as well as persons transferred to user undertakings by legally constituted temporary employment agencies (Art. 1 (2) WS).

Ireland : "employer" in relation to an employee, means the person by whom the employee is employed under a contract of employment (section 1 of Act 9/2006).

Italy : any natural or legal person who is engaged in an organised economic activity in the form of an undertaking, including on a non-profit basis, in accordance with labour laws and collective labour agreements (Article 2 (b) of Legislative Decree n° 25/2007).

Cyprus : any person employing an employee, including the government of the Republic of Cyprus (Article 2 of Law 78(I) of 2005).

Latvia : a natural or legal person or a partnership with legal capacity that, on the basis of an employment contract, employs at least one employee (Article 4 of Labour Code).

Lithuania : (only in the LC, not in the WCL) an employer may be an enterprise, agency, organisation or any other organisational structure irrespective of the form of ownership, legal form, type and nature of activities, which has labour capacity according to Article 14 of this Code. An employer may also be any natural person. Legal capacity of the employer is regulated by the Civil Code (Article 16 of Labour Code).

Luxembourg : a natural or legal person who directs and controls the activity of salaried employees who are subordinated to him/her (Article 311 of the Labour Code).

Malta: Article 2(2) of LN 10/2006 refers to the relevant provision of the Employment and Industrial Relations Act (Section 2 of EIRA), according to which the term "employer" includes a partnership, company, association or other body of persons, whether vested with legal personality or not.

The Netherlands : a natural person or corporate body who maintains or operates the undertaking (Art. 1 (1, d) WOR).

Portugal : a natural or legal person party to employment contracts under whose authority and direction employees render their work (Article 10 of the Labour Code).

Slovakia : an employer is a legal or natural person employing at least one natural person in labour-law relation and, if so stipulated by a special regulation, also in similar labour relations. An organizational unit of an employer is also an employer, if stipulated by special regulations or statutes under special regulation (Article 7 LC).

(d) Employee

Article 2 letter (d) defines the “employee” as “any person who, in the Member State concerned, is protected as an employee under national employment law and in accordance with national practice”.

One Member State reiterates the aforementioned definition (EL), whilst some others do not provide for any explicit, precise definition in their transposing legislation (BG, CZ, DK, EE, FR, LU, HU, PL, SI, FI). Several Member States define the term more precisely:

Belgium : Employees are defined as persons occupied on the basis of a contract of employment or of apprenticeship. The King can, in the cases he determines, assimilate to employees certain categories of persons who, without having a contract of employment or of apprenticeship, provide work under the authority of another person (art. 14 (1) of Law 1948).

Germany : Article 5 BetrVG includes apprentices, teleworkers, home workers and excludes certain categories in particular executive employees ( leitende Angestellte ). The term "employee" is mainly defined by case-law as regards employees in the private sector.

Spain : any person who voluntarily renders salaried services within the sphere of the organisation and management of another natural or legal person, known as employer or entrepreneur (Art. 1 (1) WS).

Ireland : “employee” means a person who has entered into or works under a contract of employment (section 1 of Act 9/2006).

Italy : any person who undertakes, in exchange for remuneration, to provide intellectual or manual work to an undertaking, in the employment of and under the supervision of the entrepreneur (Article 2 (c) of Legislative Decree n° 25/2007).

Cyprus : any person who works for another person either on the basis of a labour contract or contract of apprenticeship or under such circumstances that it may be concluded that an employer-employee relationship exists (Article 2 of Law 78(I) of 2005).

Latvia : a natural person who, on the basis of an employment contract for agreed remuneration, performs specific work under the guidance of an employer (Article 3 of Labour Code).

Lithuania : (only in the LC, not in the WCL) An employer is a natural person possessing legal capacity in labour relations according to Article 13 of this Code, employed under employment contract for remuneration (Article 15 of Labour Code).

Malta: Article 2(2) of LN 10/2006 refers to the relevant provision of the Employment and Industrial Relations Act (Section 2 of EIRA), according to which the term "employee" means any person who has entered into or works under a contract of service, or any person who has undertaken personally to execute any work or service for, and under the immediate direction and control of another person, including an outworker, but excluding work or service performed in a professional capacity or as a contractor for another person when such work or service is not regulated by a specific contract of service.

The Netherlands: Article 1 (2) WOR provides for a definition of "persons employed by the undertaking" as follows: “those persons employed by the company pursuant to a contract of employment with the business owner who maintains the works council. Persons who are employed in more than one company by the same business owner shall be regarded as being exclusively employed by the undertaking that manages their activities.” It therefore makes no difference whether an individual works on a part-time basis or has a fixed-term contract. Paragraph 3 of the same Article indicates when and where (in the user undertaking or in the temporary employment agency) a temporary employment agency worker shall be included in determining the number of persons employed by an undertaking. Work council and the employer may extend or restrict by agreement the scope of the concept of “persons employed” (Article 6 (4) WOR).

Austria : persons employed in the establishment including apprentices and home workers regardless their age. Article 36 (2) ArbVG provides for certain exceptions.

Portugal : a natural person who undertakes in exchange of a salary to render work to one or more persons under their authority and direction (Article 10 of the Labour Code).

Romania : a natural person, party of an individual labour agreement or an employment relationship, who works for and under the authority of an employer and benefits of the rights stipulated by the Romanian law, as well as of the labour agreements and contracts (Article 3(c) of Law 467/2006)

Slovakia : a natural person, who performs dependant work for an employer according to his/her instructions in an employment and similar relationships and receives wage for his/her work (Article 11 LC).

Sweden : the term "employee" includes also any person who performs work for another and is not employed by that person, but who occupies a position of essentially the same nature as that of an employee (Section 1 of Co-determination Act 1976 (hereafter MBL)).

United Kingdom: an individual who has entered into or works under a contract of employment and, where the employment has ceased, an individual who worked under a contract of employment (Reg. 2 of ICE Regulations).

(e) Employees’ representatives

Article 2 letter (e) gives no specific definition of the term “employees’ representatives”, but refers explicitly to the relevant specific definitions provided for by “national laws and/or practices”.

Some Member States reiterate the aforementioned provision in their transposing legislation (EL, CY), whilst some others do not provide for any explicit, precise definition (BE, FR, LU, PL, SI). Several Member States define the term more precisely:

Bulgaria : trade union organizations; employees' representatives under Article 7(2) LC; employees' representatives under Article 7 a LC.

Czech Republic : trade union organisation or, where there is none in the undertaking, a works council (Article 276 (1) LC) or representatives concerned with occupational safety and health protection at work. Trade union organisations represent all workers including non-unionised ones (Article 286 LC)[17].

Denmark : The representatives to be informed and consulted on behalf of the employees are the employees’ ordinary representatives (i.e. shop stewards or members of the work council). If ordinary employees’ representatives have not been elected at the undertaking or if it is agreed between the management and the ordinary representatives, representatives to be informed and consulted on behalf of the employees shall be elected by all employees at the undertaking. Where so required, the ordinary employees’ representatives may be supplemented by representatives of groups who are not represented by the ordinary representatives.

Germany : works councils in the private sector and staff councils in the public sector.

Estonia: A representative is an employee of an employer who has been elected by a general meeting of the employer's employees to represent them in carrying out the duties deriving from this Act in relations with the employer (Article 2 ERA).

Spain : works councils or staff representatives depending on the number of employees (Articles 62 and 63 WS).

Ireland : “Employees’ representative” means an employee elected or appointed for the purposes of this Act (sections 1 and 6 of Act 9/2006).

Italy : Workers' representatives are defined in accordance with the provisions in force, the inter-confederal agreements of 20 December 1993 and 27 July 1994, and subsequent amendments, or the national collective agreements applying in cases where these interconfederal agreements do not apply (Article 2 (d) of Legislative Decree n° 25/2007).

Latvia : Either trade union representatives or authorised employees’ representatives who have been elected in an undertaking, which employs five or more employees (Article 10 (1) of Labour Code).

Lithuania : In labour relations the rights and interests of employees may be represented and protected by the trade unions. Where an undertaking, agency or organisation has no functioning trade union and if the staff meeting has not transferred the function of employees' representation and protection to the trade union of the appropriate sector of economic activity, the employees shall be represented by the works council elected by secret ballot at the general meeting of the staff (Article 19 of Labour Code).

Luxembourg : By virtue of Book IV CT, the staff representation is ensured in particular through the staff delegations and the joint works council.

Hungary : According to Article 42 (2) of the Labour Code, participation rights shall be exercised by the works councils or by the worker's representative elected by the employees.

Malta : Either the representatives of the recognized union(s) where the latter cover all categories of employees or, in case that not all categories of employees are represented, the representatives of the recognized union(s) together with the elected or appointed representatives of the workers in the unrepresented categories (Article 5(1) LN 10/2006).

The Netherlands : works councils in undertakings occupying more than 50 employees and employee representation in undertakings occupying between 10 and 49 employees.

Austria : Article 40 ArbVG provides for the staff institutions, in particular the works council.

Portugal : works councils, sub-councils, trade unions (Article 451 LC).

Romania : representatives of union organizations or, if there is no union, elected and appointed persons to represent the employees in accordance to the law (Article 3 (d) of Law 467/2006)

Slovakia : Employees’ representatives shall be the competent trade union body, works council or works trustee (Article 11(a) LC).

Finland : In accordance with art 8 of Act 2007, the representatives of the personnel groups are: a shop steward elected in accordance with the relevant collective agreement; an elected representative as referred to in chapter 13, section 3 of the Employment Contracts Act; the occupational safety delegate; a co-operation representative.

Sweden : Section 6 MBL defines the term "employees' organisation" as an association of employees that pursuant to its by-laws is charged with safeguarding the interests of the employees in relation to the employer.

United Kingdom: By virtue of Regulation 2 of ICE Regulations, “information and consultation representative” means a) in the case of a negotiated agreement which provides as mentioned in regulation 16(1, f, i), a person appointed or elected in accordance with that agreement or b) a person elected in accordance with regulation 19(1).

(f) Information

Article 2 letter (f) defines “information” as the “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”.

Several Member States reiterate explicitly the aforementioned definition in their transposing acts (EL, ES, IT, CY, LV, MT, NL, RO). Some Member States use a slightly different definition (CZ, EE, IE, HU, PL, SK, UK). Other Member States do not provide for any explicit definition in their transposing legislation[18] (BE, BG, DK, DE, FR, LT, LU, AT, PT, SI, FI, SE).

Czech Republic: "Information" means transmission of necessary data from which the state of the communicated fact can be explicitly ascertained and, if relevant, an opinion on such fact can be formed (Article 278 LC).

Estonia: By virtue of Article 19 paragraph 1 ERA, the provision of information shall mean the forwarding to the employees' representative or, if there is no representative, to the employees of information at the appropriate level to allow the employees to obtain at the proper time a clear and sufficiently thorough overview of the employer's structure, economic situation and employment position, together with possible developments, and of other circumstances affecting the employees' interests and likewise to understand the effect on the employees of the situation and other circumstances.

Ireland : transmission by the employer to one or more employees or their representatives (or both) of data in order to enable them to acquaint themselves with the subject matter and to examine it and cognate words shall be read accordingly (section 1 of Act 9/2006).

Hungary : According to Article 15/B.1.a LC, the employer's obligation to inform the trade union or the works council (worker's representative) means provision to these representative bodies of the information specified in the Labour Code concerning industrial relations or the employment relationship, in such a way as to enable them to acquaint themselves with, examine, formulate and defend an opinion on the subject matter.

Poland: By virtue of Article 2(2) of Act 2006, "information" means the provision of data on matters relating to the employer to the work council to enable it to acquaint itself with the subject matter. Article 13(3) adds that the data should enable the work council to address and analyse the matter.

Slovakia : Information shall be the provision of data by the employer to the employees’ representatives, in order to acquaint them with the content of the information (Article 238 LC).

United Kingdom: By virtue of Regulation 2, “information” means data transmitted by the employer to the information and consultation representatives or, in the case of a negotiated agreement which provides as mentioned in regulation 16(1, f, ii), directly to the employees, in order to enable those representatives or those employees to examine and to acquaint themselves with the subject matter of the data.

(g) Consultation

Article 2 letter (g) defines “consultation” as the “exchange of views and establishment of dialogue between the employees’ representatives and the employer”.

Several Member States reiterate explicitly the aforementioned definition in their transposing legislation (EL, ES, IT, CY, LT, HU, MT, NL, PL, RO, SK[19]). Some Member States use a slightly different definition (CZ, EE, IE, LV, LT, SE, UK), whilst other Member States do not provide for any explicit definition in their transposing legislation[20] (BE, BG, DK, DE, FR, LU, AT, PT, SI, FI).

Czech Republic: "Consultation" means the negotiation between the undertaking (the employer) and the employees, the exchange of views and explanations with the objective of reaching an agreement (Article 278 LC).

Estonia: By virtue of Article 19 paragraph 2 ERA, consultation shall mean the exchange of views between the employer and the employees' representative or, if there is no representative, the employees and the conduct of a dialogue at the appropriate level to allow the representative or the employees to express opinions and obtain from the employer replies to the opinions expressed for the purpose of reaching an agreement on the matters laid down in Section 20 (l, points 2 and 3) of this Act.

Ireland : the exchange of views and establishment of dialogue between either or both ( a ) one or more employees, ( b ) the employees’ representative or representatives, and the employer (section 1 of Act 9/2006).

Latvia : "Consultation means the exchange of views and dialogue between employees' representatives and the employer with a view to reaching an agreement" (Article 11 (3) LC as amended in 2005).

Lithuania : (only in LC) "Consultation means exchange of opinions and establishing and developing a dialogue between the employees’ representatives and the employer (employers’ organisation)" (Article 47(1) of Labour Code).

Sweden : the concept of "negotiation" is used instead of consultation (Section 10 MBL). Section 15 MBL provides for certain elements of this concept (e.g. meetings; reasoned proposal in the search of a solution etc.).

United Kingdom: By virtue of Regulation 2 of ICE Regulations, “consultation” means the exchange of views and establishment of a dialogue between a) information and consultation representatives and the employer; or b) in the case of a negotiated agreement which provides as mentioned in regulation 16(1, f, ii), the employees and the employer. In the case of PEAs, the terms "seek the views" of employees or their representatives are used.

3.3 Scope, threshold and derogations (Article 3)

3.3.1 According to Article 3(1) of the Directive, this Directive shall apply, according to the choice made by Member States, to:

(a) undertakings employing at least 50 employees in any one Member State, or

(b) establishments employing at least 20 employees in any one Member State.

Several Member States chose the first option of this provision and applied the information and consultation framework to undertakings employing at least 50 employees (IE, IT, MT, PL, UK). Other Member States chose different thresholds or mechanisms:

Belgium : At present, a general, permanent and statutory system for information and consultation is only guaranteed insofar as the threshold of 100 employees is reached in an undertaking. Despite the threshold of 50 employees provided by the Law 1948 , this law has always been implemented through royal decrees in a way that elections of works councils had to be organized in undertakings employing at least 100 employees. Sectoral collective agreements may also provide for the institution of a Délégation syndicale in an undertaking. The relevant thresholds are fixed in these agreements and vary from 5 to 50 employees.

Bulgaria : In undertakings employing at least 50 employees and in parts of undertakings which are organisationally and territorially independent and employ at least 20 employees, the General Assembly elects employees’ representatives for the purposes of informing and consulting employees, pursuant to Article 130c and Article 130d (Article 7a (1) LC)

Czech Republic : in any undertaking regardless of the number of workers (Article 278(1) LC). However, their number plays a role as regards the issues covered by information and/or consultation (if an undertaking employs less than 10 workers, cf. Articles 279(2) and 280(2) LC).

Denmark : in undertakings in which at least 35 workers are employed (Article 2(1) of Act n° 303/2005; cf. also Cooperation agreement between DA and LO).

Germany : In the private sector, works councils are established in establishments with at least 5 employees having the right to vote, of which 3 are eligible (Art 1 (1) BetrVG). The participation rights of the works councils do not depend, in principle, on the number of employees. However, certain rights do depend on this number, such as those enshrined in articles 99, 111 BetrVG. The establishment of the Economic Committee (Wirtschaftsausschuss) depends also on whether there are more than 100 employees in the establishment. In the public sector, staff councils are established in departments with at least 5 persons having the right to vote, of which 3 are eligible (Art 12 (1) BPersVG).

Estonia: Employers who employ at least 30 employees are required to implement the provision of information and consultation (Article 17 ERA).

Greece : in undertakings employing at least 50 employees and in establishments employing at least 20 employees (Article 3 of PD 240/2006).

Spain : in undertakings which have employees’ representatives, i.e. in all undertakings with more than 10 employees, as well as in those occupying between 6 and 10 employees, where the majority of employees decided to elect a staff representative (Articles 62 and 63 WS).

France : By virtue of article L431-1 CT, works councils are set up in undertakings that employ at least 50 employees. They may be also set up in undertakings with less than fifty employees by way of collective agreements. The French legislation goes beyond the directive's requirements in that it provides for the establishment of staff delegations in undertakings or establishments occupying at least 11 employees.

Cyprus : in undertakings employing at least 30 workers (Article 3(1) of Law 78(I) of 2005).

Latvia : According to Article 10(2) LC, authorised employees’ representatives may be elected in an undertaking in which at least 5 employees are employed.

Lithuania: According to Article 3 WCL, a works council shall be established in an undertaking that does not have a functioning trade union provided that a general meeting of employees has not delegated the rights of representation and protection to the trade union at the level of the relevant economic sector. An undertaking may have only one works council irrespective of the number of branches, establishments or units it may have. A works council may be established in an undertaking with at least 20 employees. In an undertaking with less than 20 workers, the functions of the works council shall be performed by a workers’ representative elected at a general meeting.

Luxembourg : Article L 411-1 LC provides that every employer (in the private or public sector) has to designate staff delegates in establishments occupying regularly at least 15 workers under a contract of employment. There is also provision for divisional and central delegations (Articles L 411-3 and L 411-4 LC). Furthermore, Article L 411-1 LC provides that joint works councils have to be set up in all industrial, craft and commercial undertakings in the private sector occupying habitually at least 150 salaried workers.

Hungary : According to Article 43 LC, every employer or every independent operational facility (division) of an employer occupying more than fifty employees has to elect a works council. A worker's representative shall be elected if an employer or an independent operational facility (division) of an employer occupies at least fifteen but no more than fifty-one employees. A works council or a worker's representative shall only be elected at an employer's independent operational facility (division), if the head of this facility is entitled, in part or in full, to exercise employers' rights in connection with the works council's prerogatives set out in Article 65 LC. According to Article 22(2) LC, if there is no works council, the employer shall provide the trade union(s) with the information set out in this provision.

The Netherlands : Undertakings that employ at least 50 employees must set up a works council (OR) (Article 2 (1) WOR). In addition, undertakings with 10-49 employees may opt for employee representation ( personeelsvertegenwoordiging , PVT), which has fewer rights than the works council. In the event that a PVT is not established, the business owner shall be obliged to hold a staff meeting at least twice per year.

Austria : in each establishment in which at least 5 workers with voting rights are continuously employed (Article 40 ArbVG).

Portugal : In accordance with Articles 464 and 465 LC, there is no requirement for a minimum number of employees in the undertaking or establishment for a works council or sub-council to be established.

Romania : in undertakings employing at least 20 employees (Article 4 (1) of Law 467/2006).

Slovenia: A works council is formed if an undertaking employs more than 20 workers having the right to vote or if a single entrepreneur employs more than 50 workers. If an undertaking employs less than 20 workers (or a single entrepreneur employs less than 50 workers) who have the right to vote, workers are entitled to participate in management through a workers' representative (Article 8 WPMA).

Slovakia : A works council is a body, which represents all employees of an employer. It may be set up if an employer employs at least 50 employees. A works trustee may operate if an employer employs less than 50 but more than five employees. The rights and duties of a works trustee are equivalent to those of a works council.

Finland : The Act 2007 applies to undertakings normally employing at least 20 persons under employment relationship, subject to certain exceptions. A number of provisions apply only to undertakings normally employing at least 30 persons. The Law on cooperation in the State civil service and agencies (651/1988) and the Law on cooperation between employers and staff in local government (449/2007) do not provide for any threshold.

Sweden : There is no threshold. MBL applies to all relationships between employers and employees.

3.3.2 According to Article 3(1), last sentence of the Directive, Member States shall determine the method for calculating the thresholds of employees employed.

Some Member States did not need to establish such provision due to the fact that there is no threshold for information and consultation in their legislation (PT, SE). Some other Member States did not specify in any particular provision the method for calculating the thresholds (CZ, DK[21], HU, MT, SK[22]).

Belgium : The thresholds are fixed by way of a Royal Decree governing the organisation of works councils' elections.

Bulgaria : The number of employees under paragraph 1 shall be determined on the basis of the average number of employees per month in the previous twelve months. It comprises all the employees who are or were employed, irrespective of the term of employment or duration of their working time (Article 7a (3) LC).

Germany : This issue is regulated by case-law or by legal provisions stipulating, in general, that the average number of workers over a determined period of time is taken into account. Fixed-term and part-time workers are included.

Estonia: According to Article 18 ERA, the employer shall determine the number of employees a) upon approval of annual reports; b) when the obligation of informing and consulting specified in Article 20(1) ERA arises. When determining the number of employees, the employer shall take into account the six months’ average number of employees as of the date on which the obligation of informing and consulting arises.

Greece: The threshold is calculated at the beginning of the calendar month during which an issue related to the application of PD 240/2006 arises, independently of any posterior changes of the employees employed during the calendar month (Article 3 of PD 240/2006).

Spain : In order to determine the number of representatives, the following criteria shall be taken into account: a) employees who provide services in intermittent permanent employment and employees on a fixed-term contract for a period longer than one year shall be considered as permanent employees; b) employees on fixed-term contracts of up to one year shall be taken into account according to the number of days worked during the period of one year preceding the election announcement. Every two hundred days worked or part thereof shall be counted as one more employee (Article 72 (2) WS).

France : The calculation of the thresholds is defined by legislation[23] as well as by case-law. In particular, article L 620-10 CT provides that permanent as well as home workers are taken into account integrally in the calculation. Fixed term workers as well as temporary agency workers are taken into account pro-rata depending on their presence during the preceding 12 months. Part time workers are taken into account by dividing the total sum of their hours of work fixed in their contract by the hours of work determined in the law or collective agreement.

Ireland : In determining whether employees are employed in an undertaking that meets a relevant workforce threshold, the number of employees in the undertaking shall be reckoned by calculating the average number of employees employed in the undertaking during the 2 years before a certain date (section 5 of Act 9/2006).

Italy : The numerical threshold of workers is defined in compliance with the relevant legal provisions and is based on the average weighted monthly number of employed persons working in the undertaking in the previous two years. Workers employed on fixed-term contracts shall be included in the calculation if the duration of their contracts is longer than nine months. For public- or private-sector employers engaged in activities of a seasonal nature, the nine-month period of duration of fixed-term contracts shall be calculated on the basis of the corresponding days actually worked, even if these days are not consecutive (Article 3(2) LD).

Cyprus : The threshold is calculated on the basis of the average number of employees, with a contract of employment of a fixed or indefinite term or on part-time, who have been employed by the undertaking in the previous two years. Contracts of fixed-term employment which expired or part-time contracts are transposed to a full annual employment (Article 4 of Law 78(I) of 2005).

Latvia : According to Article 10(5) LC, fixed term workers are also taken into account.

Lithuania: According to Article 5 WCL, the number of employees is established every time the works council is elected. The employer has to establish the number and the list of the employees within 7 days of the receipt of the proposal by the staff.

The number of employees in an undertaking is established on the basis of the number of employees on the day of the receipt of the aforementioned proposal, irrespective of their period of service at the undertaking. This number includes the employees of all the branches, establishments and other units of the company. The number of employees does not include:

(1) employees on maternity leave (until the child is three);

(2) employees doing military service;

(3) employees working on a fixed-term contract;

(4) employees representing employers referred to in Article 4(4) WCL.

Luxembourg : The calculation of the thresholds is defined in particular in article L 411-1-4 CT which provides that all workers working under a contract of employment in the establishment are taken into account in the calculation, with the exception of those under a contract of apprentices. Fixed term workers as well as temporary agency workers are taken into account pro-rata depending on their presence during the preceding 12 months. Part time workers whose working hours are equal or superior to 16 hours per week are taken into account integrally. The other part time workers are taken into account by dividing the total sum of their hours of work fixed in their contract by the hours of work determined in the law or collective agreement. As regards the joint works councils, article L 421-1-1 CT provides that they are set up in undertakings occupying habitually at least 150 workers during the last 3 years. Article L 421-1-4 CT is similar to the aforementioned provisions of article L 411-1-4 CT.

The Netherlands : See under the section on the definition of the term "employees" above.

Austria : Home workers as well as the employer's (Betriebsinhaber) relatives who are excluded from the right to be elected are not taken into account (Article 40 (1) ArbVG).

Poland : Pursuant to Article 7 of Act 2006, the number of employees is calculated on the basis of the average number of persons employed by a certain employer during the 6 months prior to the date of notification of the works council election. Workers between 16 and 18 years old are not taken into account in this calculation.

Romania : The number of the employees taken into account in the undertaking is the one existing at the date the information procedures begins (Article 4 (2) of Law 467/2006).

Slovenia : There is no specific provision concerning the calculation of the threshold. However, works councils may be formed in companies employing more than 20 workers having the right to vote; the right to vote is given to all employees who have worked in the company for at least six uninterrupted months except the management (Article 12 WPMA).

Finland : Part-time employees are taken into account and, in the main, fixed-time workers too. The only persons who may be excluded are those working as contractors on one-off or temporary tasks and fixed-term employees doing relatively brief, seasonal work.

United Kingdom: By virtue of Regulation 4 (1) of ICE Regulations, the number of employees for the purposes of regulation 3(1) shall be determined by ascertaining the average number of employees employed in the previous twelve months. The other provisions of Regulation 4 set out the requirements for calculating the number of employees. A part-time employee working under a contract for 75 hours or less a month may be counted as representing half a full-time employee.

3.3.3 According to Article 3(2) of the Directive, in conformity with the principles and objectives of this Directive, Member States may lay down particular provisions applicable to undertakings or establishments which pursue directly and essentially political, professional organisational, religious, charitable, educational, scientific or artistic aims, as well as aims involving information and the expression of opinions, on condition that, at the date of entry into force of this Directive, provisions of that nature already exist in national legislation.

The following Member States have made use of this option:

Germany : In accordance to article 118(1) BetrVG, the provisions of this law do not apply to undertakings and establishments, which directly and essentially pursue a) political, professional organisational, religious, scientific, educational, artistic or charitable aims or b) aims related to information or the expression of opinions upon which art. 5(1) GG applies, to the extent that they are incompatible with the specificity of the undertaking. Certain provisions do not apply (art 106-110), whilst certain other (art 111-113) apply only to the extent that they regulate the mitigation of economic disadvantages of workers following changes of the undertaking.

The provisions of BetrVG do not apply to religious communities and their educational or charitable institutions (article 118(2) BetrVG). However, there are autonomous regulations regarding employees' representation in such institutions, such as those adopted by the Catholic and Evangelist Churches.

Italy: In accordance to article 3 (3) LD, this decree is without prejudice to any specific information and consultation procedures already in existence in national law at the date of its entry into force and which apply to employers that directly and mainly pursue aims of a political, labour organisation-related, religious, charitable, educational, scientific or artistic nature, as well as aims related to information or the expression of opinions.

The Netherlands : Some educational institutions are exempt from the WOR and an individual participation scheme for each type of education has been laid down in separate legislation. Any amendments to these laws have, in any case, to be examined with regard to their compatibility with the WOR, according to the principle that the situation of the employees in the concerned educational institution in respect to employee participation may be no worse than would have been the case pursuant to the WOR.

Austria: In accordance to article 132 ArbVG, certain provisions (art. 110-112) do not apply to undertakings and establishments which directly pursue political, professional organisational, religious, scientific, educational or charitable aims. Articles 108 and 109 (1-2) apply only to the extent that the particular aims are not affected. However, certain provisions of Art 109 apply in any case to the extent that changes of the undertaking are concerned.

With regard to undertakings which directly pursue aims related to information or the expression of opinions, Articles 108 and 112 do not apply to the extent that situations are at stake which influence the political direction of the undertakings. However, certain provisions of Art 109 apply in any case to the extent that changes of the undertaking are concerned.

With regard to undertakings which directly pursue religious aims of a legally recognised church or religious community, Title II ("Betriebsverfassung") of ArbVG does not apply to the extent that it is incompatible with the specificity of the undertaking. In any case, certain provisions (in particular Art 108-112) do not apply to establishments which serve the management of internal matters of a legally recognised church or religious community, with the exception of certain provisions of Art 109 to the extent that changes of the undertaking are concerned.

Finland: In accordance to article 4 of the Cooperation Act, this Act does not apply to offices and public services of municipalities, federation of municipalities, Evangelical Lutheran Church, Orthodox Church or Province of Aland or its municipalities or federations of municipalities. If the undertaking is a non-profit organisation, artistic association, scientific society, religious community or other denominational organisation or if its purpose is mainly in industrial policy, labour policy, general political or humanitarian, the provisions of this Act shall not apply to decisions or their preparation regarding the purpose of the organisation or denominational or other similar objectives.

Slovak Republic : By virtue of Article 3 (3) of the Labour Code, labour-law relations of employees of churches and religious communities which perform clerical activities, are governed by this Act, unless stipulated otherwise by this Act, a special regulation, an international treaty, a treaty concluded between the Slovak Republic and churches and religious communities, or internal regulations of churches and religious communities.

Article 52 point a) of the Labour Code, stipulates that provisions on collective labour-law relations do not apply to labour-law relations of employees of churches and religious communities who perform clerical activity. Such provisions include those regarding information and consultation procedures.

Slovenia : By virtue of Article 1 WPMA, this act does not apply to institutes[24] to the extent that it provides that the collective exercise of the right to participate in management should be regulated by a separate law (not adopted yet)[25]. Until the entry into force of the aforementioned separate law, the employees' right to participate in management shall be regulated by collective agreements (Article 110 WPMA).

Sweden: In accordance to section 2 MBL, employer's activities which are of a religious, scientific, artistic or other non-profit making nature, or have co-operative, trade union, political or other opinion-forming aims shall be exempt from the scope of this Act with respect to the aims and focus of such activities.

3.3.4 According to Article 3(3) of the Directive, Member States may derogate from this Directive through particular provisions applicable to the crews of vessels plying the high seas."

The following Member States have made use of this option: DK, DE, EL, CY, MT, RO, UK.

Of these Member States, DK, DE and UK have introduced particular provisions applicable to the crews, while the other countries have not. France is a particular case.

Denmark : Specific rules in particular Act[26].

Germany : Specific rules in transposing law (art 114-116 BetrVG).

Greece : The transposing act does not apply to personnel employed in vessels plying the high seas (Article 1(4) of PD 240/2006).

France : In general, the general rules on information and consultation of employees apply. However, they do not apply, under conditions, to sailors residing outside France whose contracts are governed by the law chosen by the parties, under law n° 2005-412 of 3.5.2005 (on establishment of the French International Register).

Cyprus : The transposing act does not apply to personnel employed in vessels plying the high seas (Article 3(2) of Law 78(I)/2005).

Malta : The transposing act does not apply to personnel employed in vessels falling under the provisions of the Merchant Shipping Act (Article 1(4) of LN 10/2006).

Romania : The transposing act does not apply to crews of vessels belonging to the commercial navy, when they are on mission (Article 4(3) of Law 467/2006).

United Kingdom : Specific provision in transposing law (Regulation 43 of ICE Regulations), by virtue of which the Regulations apply to the merchant navy, but no long haul crew member can be negotiating representative or an information and consultation representative or stand as candidate for either of these positions unless the employer provides otherwise.

3.4 Practical arrangements for information and consultation (Article 4)

3.4.1 According to Article 4(1) of the Directive, "in accordance with the principles set out in Article 1 and without prejudice to any provisions and/or practices in force more favourable to employees, the Member States shall determine the practical arrangements for exercising the right to information and consultation at the appropriate level in accordance with this Article."

Some Member States merely reiterated or largely reproduced this provision in their implementing legislation (EL, MT). Some others did not transpose it explicitly (such as CY, LV, HU). In general, the practical arrangements for exercising the right to information and consultation can be found in several provisions of the national transposing legislation, albeit sometimes not in so much detail. The transposing legislation of a number of Member States presents certain particularities:

Belgium : The practical arrangements have been laid down in several laws, decrees, regulatory acts and collective agreements in a manner that is neither global nor uniform. However, the directive is not yet entirely transposed (see in this regard the Court of Justice judgement of 29/3/2007 in case C-320/06). The main provisions, some of which are very detailed, are contained in the Law1948, the Royal Decree of 27 November 1973 (hereafter AR 1973) and the Conventions Collectives de Travail nr. 9 and nr. 5 (hereafter CCT 9 and CCT 5).

Bulgaria : In accordance with Article 130d (1) LC, the employer and the employees’ representatives pursuant to Article 7a shall determine, in an agreement between them: 1) The type of information and the deadlines within which it will be transmitted; 2) The deadlines within which the employees’ representatives shall prepare their opinion on the transmitted information; 3) The deadlines and issues for holding consultation with the employer; 4) The employer’s representatives who are authorised to transmit information and to hold consultations. If no agreement is reached, then Article 130d (2) LC applies. Article 7c LC provides for the rights and obligations of employees’ representatives. Article 130 LC stipulates that the employer is responsible for providing to the trade union organisations and employees’ representatives in the undertaking the information required by law, pursuant to Article 7 and Article 7a LC, and for holding consultations with them. The information is provided and the consultations are hold with the participation of the trade union organisations alone, or with the participation of the representatives mentioned in Article 7, paragraph 2, in the event where there is no trade union organisation in the undertaking or no elected representatives under Article 7, paragraph 2, or if some of them refuse to participate in the information and consultation procedure. In addition, Article 130 LC gives directly to employees the right to timely, reliable and comprehensible information concerning the employer’s economic and financial status that might affect their working rights and obligations.

Czech Republic: By virtue of Article 276(1) LC, employees employed by an undertaking (the term "undertaking" being used in Part Twelve instead of "employer") have the right to information and consultation. The undertaking shall inform employees and consult with them directly, unless at the undertaking there is a trade union organization, a works council or unless there are one or more representatives concerned with occupational safety and health protection at work (referred to collectively as "employees' representatives"; in Czech "zástupci zaměstnanců"). Article 278(1) provides that in order to ensure the right to information and consultation, employees who are employed by an undertaking where there is no trade union organization may elect a works council or a representative (or representatives) concerned with occupational safety and health protection. Articles 279 and 280 LC enumerate the issues which are subject to information and consultation of employees. Article 287 LC enumerates the issues which are subject to information and consultation of trade unions. Article 286 stipulates that, in certain situations, the parties may determine some other information and consultation procedure. Trade unions represent not only their members but also non-unionised workers.

Denmark : In line with Danish practice, art 3(1) of Act n° 303/2005 states that the Act does not apply where the employer has an obligation to inform and consult employees under a collective agreement containing provisions which at least correspond to the provisions of Directive 2002/14/EC (Annex 1 of the Act).

Germany : There is a long tradition of employees' involvement in Germany and their rights go sometimes beyond the ones provided for in the Directive. Different laws cover the private and the public sector (in the latter case, at federal and state (Land) level[27]). In certain cases, information is provided to and consultation is hold directly with employees.

Estonia : Whilst there is no threshold for the election of employees' representatives, the implementation of information and consultation affects only employers who employ at least 30 employees. If there are no employees' representatives, information and consultation should be provided directly to the employees at the appropriate level.

France : The practical arrangements have been laid down in great detail, in particular in the Labour Code (CT). Works councils are established in undertakings and in "economic and social units" occupying more than 50 employees, in accordance with art L 431-1 CT. In undertakings which have distinct establishments, it is provided to set up establishment councils and a central works council (art L 435-1 CT).

Ireland: Act N° 9 of 2006 provides for several possibilities of determining the practical arrangements of information and consultation of employees in undertakings: by way of Pre-Existing Agreements (PEAs) (section 9), Negotiated Agreements (NAs) (section 8) or the Standard Rules (section 10 combined with Schedule 1). In the cases of PEAs and NAs, information and consultation can be provided directly to employees. Where a system of direct involvement applies, it may be changed to a system of employees' representation, provided that a) at least 10 per cent of employees for whom the direct involvement system operates request such a change and b) this is approved by a majority of employees to whom the direct involvement system applies. Such approval is demonstrated where a majority of those employees who cast a preference are in favour of the change (section 11).

Italy : According to Article 4(1) LD, in compliance with the principles laid down in Article 1 LD, and without prejudice to any practices that are more favourable to workers, collective agreements shall lay down the fora, timescales, subjects, procedures and content of the information and consultation rights granted to workers.

Lithuania: The issue of information and consultation of employees' representatives is regulated mainly by two laws, i.e. the LC and the WCL. These laws specify that the conditions and procedure for the provision of information and consultation shall be established by laws, collective bargaining agreements and agreements between the employer and the employees’ representatives. It is not absolutely clear whether, under the current Labour Law in particular, employees’ representatives may exercise their information and consultation rights already now or whether the exercise of these rights depends on the prior adoption of the aforementioned laws and/or agreements (the aforementioned provisions having in the latter case only programmatic character). As indicated before, employees may be represented either by trade unions or, under conditions, by the works council of the undertaking. Trade unions represent all workers (not only their members).

Luxembourg : The practical arrangements of information and consultation are regulated in principle in the Labour Code which distinguishes between the staff delegations and the joint works council. These instances have different rights defined in detail in the relevant provisions of the Labour Code.

The Netherlands : In the case of undertakings with more than 50 employees, the business owner is obliged to establish a works council. Undertakings with 10-49 employees may opt for an employee representation [ personeelsvertegenwoordiging , PVT], which has fewer rights than the works council. In the event that an employee representation (PVT) is not established in this company, the business owner shall be obliged to hold a staff meeting at least twice per year.

However, the Social and Economic committee (Sociaal-Economische Raad) may, in particular circumstances, exempt the business owner from his/her obligation to establish a works council. New Article 5 (1) WOR provides that the Council may only grant such exemption if, with respect to the information provided to and the consultation of the employees on the issues referred to in paragraph 6 (corresponding to Article 4 (2) of the Directive), the enterprise has made arrangements to ensure compliance with the provisions of paragraphs 7 and 8 (corresponding to Article 4 (3-4) of the Directive).

Poland : Act 2006 provides for issues on which the works council has to reach consensus with the employer (such as the principles and procedure for providing information and carrying out consultations as well as the principles for covering costs of election/operation of the works council (Article 5 (1)), and for issues on which there may be agreement (such as the size of the works council (at least three employees), principles for covering costs of experts, or principles for time off regarding council members (Article 5 (2)). Article 5(4) specifies that provisions of the Act apply only in case of failure to reach consensus on the aforementioned issues. The agreement should ensure at least equal information and consultation conditions to those laid down in the Act.

Portugal : According to the Portuguese legislation, information and consultation rights are recognised to both works councils, which represent all workers, and to trade unions which represent only unionised workers. However, there are differences as regards the scope, content, aims and procedures regarding these rights.

Slovenia : Article 2 WPMA stipulates that workers shall participate in management through, among others: the right to present an initiative and receive an answer to this initiative; the right to be informed; the right to give opinions, make proposals and receive answers to these proposals; the possibility or the obligation of joint consultations with the employer. Workers shall exercise the right to participate in management as individuals or collectively through a works council (or workers' representatives), a workers' assembly or workers' representatives in company bodies. Article 5 WPMA provides that the works council and the employer may agree on other modalities of worker participation in management, and adds that the exercise of rights as well as other questions may be defined in greater detail in a written agreement (on the condition that it does not regulate issues which are regulated by generally applicable collective agreements).

Slovakia : In accordance with Article 229 LC, with the view of securing just and satisfactory working conditions, employees shall participate in decision-making of the employer concerning their economic and social interests, either directly or by means of a competent trade union body, a works council or a works trustee. Employees shall have the right to be provided information on the economic and financial situation of the employer and on the presumed development of its activities in an understandable manner and at an appropriate time. Employees shall also have the right to voice their comments on such information and to projected decisions, to which they may submit their suggestions. They shall participate (by means of a competent trade union body, a works council or a works trustee) in the creation of just and satisfactory working conditions through a) joint decision-making, b) negotiation, c) right to information.

Finland : The Co-operation Act 2007 applies to undertakings in the private sector. Furthermore special laws apply to the public sector: the Law on cooperation in the State civil service and agencies (651/1988) and the Law on cooperation between employers and staff in local government (449/2007). In certain circumstances information and consultation involves directly all workers of an undertaking.

Sweden : The Swedish law on Co-determination (MBL) already provided for a detailed system on information and consultation. This made a distinction depending on whether the employer was or not bound by a collective agreement. In order to implement the directive such a system has been extended in order to oblige also the employer who is not bound by a collective agreement to provide information to employees' organisations with members employed by this employer (new Section 19a MBL).

United Kingdom: The ICE Regulations create room for a wide diversity of practices, combining both representative and direct forms of participation. The practical arrangements of information and consultation of employees in undertakings can be determined by way of Pre-Existing Agreements (PEAs) (regulation 2 -definition- and regulations 8 ff), Negotiated Agreements (NAs) (regulation 2 -definition- and regulations 7 ff) or the Standard Provisions (regulations 18 ff).

3.4.2 According to Article 4(2) of the Directive, "information and consultation shall cover:

(a) information on the recent and probable development of the undertaking's or the establishment's activities and economic situation;

(b) information and consultation on the situation, structure and probable development of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment;

(c) information and consultation on decisions likely to lead to substantial changes in work organisation or in contractual relations, including those covered by the Community provisions referred to in Article 9(1)."

Some Member States reiterated or largely reproduced the aforementioned definition in their transposing legislation without specifying it further (BG, EL, IE, IT, CY, MT, PL, RO, UK) [28]. Other Member States used different wording, sometimes very detailed and precise, but in other cases quite general and sometimes even vague:

Belgium : Article 4(2) of the Directive corresponds to a considerable number of, sometimes very detailed, provisions laid down in several laws, decrees, regulatory acts and collective agreements. In particular, Article 4 (2, a) of the Directive corresponds to several provisions of the Law 1948 and of the Royal Decree of 27 November 1973; Article 4 (2, b) of the Directive corresponds to provisions of CCT 9, whilst Article 4 (2, c) of the Directive corresponds to provisions of the Law 1948, the AR 1973, the CCT 9, the CCT 39, the law of 26/6/2002 on closures of undertakings and the law of 17/3/1987 on new work regimes.

Czech Republic : By virtue of Article 279 LC, the undertaking (i.e. the employer) shall inform employees in particular on: (a) the undertaking's economic and financial situation and probable development; (b) the undertaking's activities, their probable development and their impact on the environment, and ecological measures related thereto; (c) the undertaking's legal status and changes in such status, internal organizational structure and the person authorized to act in the name and on behalf of the undertaking in labour (industrial) relations, and changes in the undertaking's business activities; (d) fundamental issues of working conditions and their changes; (e) matters within the scope laid down in Article 280.

Article 280 LC provides that the undertaking shall consult employees in particular on: (a) probable economic development of the undertaking; (b) envisaged structural changes within the undertaking, rationalization or organizational measures, any measures having impact on employment, in particular measures in connection with collective redundancies under Article 62; (c) the latest number and structure of employees, envisaged employment development in the undertaking, fundamental issues of working conditions and their changes; (d) transfer(s) under Articles 338 to 342.

Certain of the aforementioned obligations do not apply to undertakings employing less than 10 employees.

Article 287 LC enumerates the issues which are subject to information and consultation of trade unions.

Denmark : An undertaking is obliged to provide to its employees full information on circumstances of substantial importance to them via their representatives. This information obligation covers at least: 1) information on the recent and probable development of the undertaking’s activities, the undertaking’s economic situation and future prospects, including the order book and market situation and production issues; 2) information on the undertaking’s employment circumstances, including whether employment at the undertaking is under threat and plans for major changes or events of importance to employment, and 3) information on the undertaking’s decisions likely to lead to substantial changes in work organisation or contractual relations (Article 4(1) of Act n° 303/2005).

Germany : Several provisions correspond to Art 4 (2) of the Directive. Some of them are quite general, while others go in much detail.

In the private sector, the works council has comprehensive participation rights (cooperation and codetermination rights) on staff, social and economic matters. As regards economic matters, in bigger establishments (more than 100 employees) the employer has to inform the works council in good time and comprehensively in accordance with article 106 BetrVG. Other provisions cover all (or smaller) establishments: Article 80(2) BetrVG provides, in a general way, for the employer's obligation to give to the works council timely and comprehensive information so that it can perform its duties. Articles 43(2) and 53(2,2) BetrVG address the information rights of the general meeting of the establishment as well as the general meeting of the works councils. Article 110(2) BetrVG provides for the employer's obligation to give information directly to employees once every 3 months per year (in establishments with more than 20 employees). Article 111 BetrVG provides for the employer's obligation to give to the works council timely and comprehensive information and to hold consultation on changes in the establishment.

As regards social matters, Article 92 BetrVG provides for the employer's obligation to give timely and comprehensive information to the works council on staff planning issues and to hold consultations thereon. The works council can submit to the employer proposals thereon. Article 92a BetrVG provides also that the works council can submit to the employer proposals concerning the promotion and securization of employment. These proposals are subsequently the subject of consultations. In case the employer considers them inadequate, (s)he should give reasons this (in writing, if the establishment has more than 100 employees).

As regards matters falling under art. 4 (2, c) of the Directive, Article 90 BetrVG provides for the employer's obligation to give to the works council timely information and the necessary documentation on the planning of certain projects, infrastructure, procedures, working posts. The employer has also to hold consultations thereon in good time so that proposals and concerns can be taken into account for the planning. In addition, the aforementioned Article 111 BetrVG can be pertinent in this regard.

In addition, Article 87 BetrVG provides for co-determination rights in certain determined areas. There is an extensive case-law in this regard.

In the public sector, Art 68 BPersVG provides that staff councils have to be informed timely and comprehensively in order to be able to fulfil their duties. The same provision stipulates also a general initiative right. Furthermore, Art 66 BPersVG provides that the Dienststelle and the staff council should meet at least once a month to discuss on all matters which substantially affect the workers. As a general principle, the employer and the works council should cooperate in good faith and are obliged to strive to reach agreement on disputed questions in order to fulfil their duties.

Estonia : The employer shall provide information and consult at least on the following matters affecting the employees: 1) the employer's organisational structure, the composition of the workforce, any changes therein and planned decisions having a substantial effect on the employer's organisational structure and the composition of the workforce, 2) planned decisions that are likely to involve substantial changes in the organisation of work, 3) planned decisions that are likely to involve substantial changes in the employees' employment relationships, including the termination of employment. The employer shall also provide information on the annual report drawn up pursuant to the Accounting Act at the latest within 14 days following approval of the report (Article 20 ERA). Article 19 (1) ERA provides also for a number of elements in this regard.

Spain : Article 64 WS entitles the works council to be kept informed, at least every 4 months per year, in particular, on general trends in the economic sector to which the undertaking belongs, the economic situation of the undertaking, the recent and probable evolution of its activities, the production and total sales situation, the production schedule, the employer’s forecasts for new contracts indicating the number, the modalities and types of the contracts, including part-time contracts, the realisation of supplementary hours by part-time employees and the subcontracting scenarios. Furthermore, the works council is entitled to be informed periodically on the balance sheet, the profit and loss account, the annual report and, in the case of a stock or share company, on other documents that are disclosed to the shareholders, and under the same conditions as the latter.

The works council is also entitled to be informed and consulted on: the situation, structure and (every 4 months) the probable development of employment within the undertaking or establishment; any anticipatory measures, in particular where there is a threat to employment; all decisions which could lead to changes in work organisation or in contractual relations in the undertaking.

Article 64(5) WS establishes also the competence of the employees’ representatives to issue reports prior to the implementation by the employer of decisions adopted by him/her regarding: a) restructuring and total or partial, permanent or temporary closure; b) reductions in the working day; c) total or partial transfer of installations; d) mergers or change of the legal status of the undertaking that could affect employment; e) the undertaking’s professional training programme; f) introduction or revision of systems of organisation and control of work.

France : Several provisions of the Labour Code regulate in detail these matters. Art L 432-1 CT provides that, in the economic area, the works council is obligatorily informed and consulted on questions concerned with organisation, management and the general operation of the undertaking, and, in particular, on measures likely to affect the volume or structure of the staff, working time, working conditions and professional training. The works council is obligatorily involved in good time on projects implying reduction of jobs. Article L 432-4 CT stipulates the communication of a determined economic and financial documentation within a month from the works council's election. Furthermore, a written report has to be transmitted once a year on the undertaking's activities, profits or losses, sub-contracting, investments, etc. Information has to be given every 3 months regarding economic developments. Specific provisions regulate the provision of economic information in commercial companies and in companies occupying more than 300 employees. Every 3 or 6 months, depending on the undertaking's size, the head of the undertaking has to inform the works council on the employment situation, the evolution, the number of employees per type of employment contract, the reasons for having recourse to atypical contracts, etc (Art L 432-4-1 CT). Art. L 432-1-1 CT provides that the works council is informed and consulted annually on the evolution of the employment and the qualifications, on the previsions and on actions aiming in particular at the prevention of employment threats and at the provision of training. Before such consultation meetings, the works council members have to receive a written report with all useful information. Furthermore, the works council is informed and consulted on general problems concerning working conditions resulting from works organisation, technology, working time organisation, training etc., in accordance with Art. L 432-3 CT. It is also informed and consulted before all important projects regarding the introduction of new technologies affecting employment (Art. L 432-2 CT). Articles L 432-1 and L 321-2 CT deal with transfer of undertakings and collective dismissals respectively.

Latvia : Employees׳ representatives, when performing their duties, have the right 1) to request and receive from the employer information regarding the current economic and social situation of the undertaking, as well as information regarding possible changes; 2) to receive information in good time and consult with the employer before the employer takes decisions that may affect the interests of employees, in particular decisions that may substantially affect remuneration for work, working conditions and employment in the undertaking; 3) to take part in the determination and improvement of remuneration provisions, the working environment, working conditions and the organisation of working time, as well as in protecting the safety and health of employees (Article 11(1, point 2) LL).

Lithuania : The employees, in view of the level of social partnership, shall have the right to be provided information and being consulted. Provision of information shall embrace information relating to the current and future activities of the enterprise and its economic and financial condition; information about the current state, structure of labour relations and potential changes in employment; information about the measures which the employer intends to apply whereof is intended in case of possible redundancies; other information connected with labour relations and activities of the enterprise (Article 47(1) of Labour Code). According to art 23 LC, the employer must hold consultations when making decisions that may affect the employees' legal position. Furthermore, by virtue of Article 21 of WCL, in the cases and under the terms and procedures defined in laws, collective agreements and agreements between the works council and the employer, the employer shall be obliged to provide, in writing and free of charge, to the works council information relating to labour relations and the activities of the company. In other cases, the information necessary for the performance of the functions of the works council shall be supplied by the employer.

Luxembourg : With regard to staff delegations, Article L 414-1 CT stipulates that, in the framework of their mission, they have to issue opinions and formulate proposals on all questions concerning the improvement of working and employment conditions and the social situation of the staff. Article L 414-4 CT obliges the head of the undertaking to communicate to the staff delegation information which can enlighten its members on the operation and the life of the undertaking. This communication takes place monthly, where there is a works council, and on the occasion of the meetings with the direction of the establishment, where there is no such council. If the undertaking has the form of a "société par actions", the direction has to inform the staff delegation in writing, once a month at least, on the economic and financial evolution of the undertaking. Article L 414-5 CT specifies the content and timing of the report to be presented in this context.

With regard to joint works councils, Articles L 423-2, 423-3 and 423-4 CT, regulate in detail the content of the information and consultation. The head of the undertaking has to inform and consult the works councils, twice per year at least, on the economic and financial evolution of the undertaking. Article L 423-4 CT specifies the content (and timing) of the report to be presented in this context. The head of the undertaking has also to inform and consult the works councils, once per year at least, on the actual and foreseeable needs of the undertaking regarding staff as well as on the training measures which may result thereof. Furthermore, the head of the undertaking has to inform and consult the works council before he/she takes any important decision concerning in particular introduction, improvement or transformation of installations, equipment, work methods and production processes, etc. The works council has to be also informed on the impact of the aforementioned measures on the employment conditions and environment. In addition, the head of the undertaking has to inform and consult the works council on all decisions of economic or financial character which can have a decisive impact on the undertaking's structure or level of employment. Such information and consultation have to be carried out in principle before the envisaged decision. The relevant provisions of Article L 423-3 CT specify further the content of the decisions and the information/consultation at issue.

Hungary : According to Article 65 (3, a and f) LC, employers have to consult the works council prior to passing a decision in respect of, among others, planned actions affecting a large group of employees, in particular those related to proposals for the employer's reorganisation, transformation, conversion, privatization and modernisation of an organisational unit into an independent organization and the introduction of new work organisation methods. Article 65(4) LC stipulates further that the employer shall provide to the works council information:

1) at least every 6 months, regarding the fundamental issues affecting the employer's economic situation;

2) regarding the planned major decisions pertaining to a significant change of the employer's activities and improvement projects;

3) at least every 6 months, regarding the trends in wages and salaries, the liquidity situation as regards their payment, the characteristic features of employment, the use of working time, and the characteristics of working conditions.

Similar information is provided to the trade unions according to Article 22(2) LC.

Works councils are also entitled to request information from the employer on all issues related to employees' economic and social interests in connection with employment. A similar provision is stipulated in Article 22(1) LC as regards trade unions.

With regard to the content of consultation, according to Article 15/B.2 LC, consultation shall cover at least the areas specified in Article 21(2), Article 22(1 and 2) and Article 65(3 and 4) LC, and the matters specified in the agreement between the employer and the works council or trade union.

The Netherlands : New Article 5 (6) WOR, introduced by Act of 2.12.2004 amending WOR, reiterates Article 4 (2) of the Directive. In addition, several other provisions regulate in more detail the area: In particular, the employer has the duty to provide the works council with all information and data reasonably required for the performance of the duties of the works council (art. 31 WOR). Art. 31a and 31b WOR impose on the employer the obligation to inform the works council twice a year on financial information in particular on the activities and results of the undertaking over the past period, and once a year on social information in particular on the number and different groups of persons who work in the undertaking and the social policy conducted over the past year as regards such persons. Article 24, paragraph 2 WOR states that the business owner must notify to the works council at least twice per year all planned decisions relating to the matters indicated in Articles 25 and 27. Article 25 WOR regulates the right to prior consultation whilst Article 27 WOR deals with the right of approval. . The first applies in the case of important changes in respect of work organisation; the second applies in the case of important changes in respect of an employee’s contract of employment.

Austria : Several provisions regulate, sometimes in detail, the involvement of employees at the workplace. Article 90 ArbVG stipulates that the works council is entitled to request from the possessor of the establishment (Betriebsinhaber) to take measures in all matters affecting the employees' interests. Article 91 ArbVG provides for a general right of the works council to be informed by the possessor of the establishment on all matters affecting the employees' economic, social, health or cultural interests. Furthermore, Article 92 ArbVG regulates the obligation of the possessor of the establishment to hold consultations with the works council every 3 months per year and – on demand – every month. These consultations cover current affairs, general principles of managing the establishment in social, personal, economic and technical matters as well as the organisation of labour relations. On the occasion of these consultations the owner of the enterprise has to inform about important matters. A works council is entitled to request documents that are necessary for the consultation. In addition, a series of other provisions specify that the possessor of the establishment and the works council co-operate (Mitwirkung) on social, personnel and economic matters. These include training, recruitment, posting, termination of employment relationships etc. (in particular Articles 94 ff ArbVG). Article 108 ArbVG deals, in detail, with the information, and consultation upon demand, on economic matters. Article 109 ArbVG provides that in certain cases, - i.e. on the occasion of a “business reorganisation” (which includes the reduction, shut-down or relocation of a [part of an] establishment, the termination of employment relationships with a considerable number of employees, a merger with other companies, a change of the company’s object, of its facilities or of the work or business organization, the implementation of new working methods or of considerable measures of rationalisation or automation, or a change of the company’s legal form or of its ownership structure) - the employer is obliged to inform the works council about the planned changes as soon as possible, and in any case in good time so that a consultation can still be held thereon. The works council is entitled to propose measures to prevent, eliminate or alleviate adverse effects of a business reorganisation for the employees. For these purposes a works agreement – a so called “social plan” (“Sozialplan”) - can be concluded in certain cases.

Portugal : As regards works councils, they are entitled to receive all information necessary for the performance of their activities and to participate in the restructuring of the undertaking, particularly with regard to training or when there is a need to change working conditions (Article 354(1) LGLC). According to article 356 LGLC, the right of information covers the following areas: a) general activity plans and the budget; b) the organisation of production and its impact on the staff and the equipment; c) the situation regarding supplies; d) sales forecasts, volume and management; e) staff management and drawing up of basic criteria, amount of the payroll and its distribution over the professional scale, social benefits, minimum productivity and extent of absenteeism; f) accounting situation of the undertaking, including the balance sheet, profit and loss accounts, and quarterly accounts; g) financing arrangements; h) taxes and parafiscal charges; i) plans to change objectives, share capital and diversification of the undertaking’s production activities. Employers are also obliged to require the prior opinion of works councils with regard to a series of actions, in particular all measures which result in a substantial decrease of the undertaking’s number of employees or a substantial deterioration of their working conditions and all decisions likely to result in substantial changes in work organisation or in contractual relations, as well as in the closure of establishments or production lines (Article 357 LGLC).

As regards trade union representatives (shop stewards), Article 503 LC reiterates Article 4(2) of the Directive.

Slovenia : By virtue of Article 89 WPMA, the employer is bound to keep the works council informed about issues relating in particular to: the economic position of the company; the development targets of the company; the state of production and sales; the economic position of the branch as a whole; changes of activity; any decline in economic activity; changes in the organisation of production; technological changes; the annual accounts and annual report; other issues under mutual agreement.

At a request from the works council the employer is bound to allow inspection of the documentation required to obtain an insight into the abovementioned matters.

In addition to this, Article 89 WPMA states that the employer is bound to inform the works council and request joint consultations on the status of the company and personnel issues before taking decisions on these issues. The latter two types of issues are further specified in Articles 93 and 94 WPMA.

Moreover, Article 96 WPMA stipulates that the employer is bound to submit to the works council for consent certain decisions which may result in an increase or reduction of the staff affecting a significant number of workers.

Slovakia : The employer shall inform in an understandable manner and in an appropriate time the employees’ representatives on its economic and financial situation and on the presumed development of its activities (Article 238(2) LC). In addition, by virtue of Article 237(2) LC, the employer shall negotiate in advance with employees’ representatives on mainly: a) the state, structure and presumed development of employment and planned measures, mainly if employment is threatened, b) certain issues of the undertaking's social policy, measures for the improvement of hygiene at work and the work environment, c) decisions which may lead to basic changes in the organization of labour or in contractual conditions, d) organizational changes in connection with the reduction or cessation of the activities of the undertaking or a part of it, merger, incorporation, splitting or change of the legal form of the undertaking.

Finland : The Co-operation Act 2007 regulates in great detail the content and procedure of employees' information and consultation in the undertakings. In particular, Article 10 provides for information on the financial position, Article 12 on the employment relationships, Article 13 on the principles for use of external labour. The employees' representatives have furthermore the right to request additional information. Several issues are subject to co-operation negotiations, in particular the plan regarding personnel and training objectives; the principles of use of temporary agency work; the changes in business operations affecting the personnel and work arrangements; the transfer of the undertaking; the reduction of personnel, etc. Prior to commencement of the co-operation negotiations, the employer has to provide the information necessary for the discussions (cf. articles 22 and 36 Act 2007).

As regards the co-operation law concerning the local government, the co-operation procedure is drafted in a similar way as in Act 2007, although the structure of the two laws differs.

Sweden : Under Section 19 MBL, an employer is obliged to keep employees' organisations to which he is bound by a collective bargaining agreement informed on the development of the business in respect of production and finance, and the guidelines for personnel policy. Under Section 19a MBL, an employer not bound by a collective agreement is obliged to give the information indicated in Section 19 above also to employees' organisations that have members at the workplace.

In accordance with Sections 11-13 MBL, the consultation obligation also includes a duty to make information available. In connection with the negotiation procedure, an employer must, in good time, provide such information as is relevant to the matter under negotiation. The general right to negotiate, as provided for in Section 10 MBL, also includes the right to obtain relevant information prior to negotiations.

The right of negotiation covers decisions regarding any significant change in the employer's business activities as well as any decisions by the employer regarding significant changes in working or employment conditions of employees belonging to the employees' organisation with which the employer is bound by a collective bargaining agreement (Section 11 MBL).

Furthermore, when such an organisation so requires, the employer must also negotiate with it in instances other than those provided for in Section 11 above, in accordance with Section 12 MBL.

If a matter specifically concerns the working or employment conditions of employees belonging to an employees' organisation in respect of which the employer is not bound by a collective bargaining agreement, the employer is obliged, under Section 13, to enter into negotiations with the organisation.

Furthermore, where an employer is not bound by a collective agreement, he is also obliged to negotiate with all affected employees' organisations on matters relating to termination of employment due to shortage of work or the transfer of an undertaking, business or part of a business covered by Section 6 b of the Employment Protection Act (1982:80).

In addition, pursuant to Section 10 of the Co-determination Act, an employees' organisation has the right to negotiate with the employer in matters concerning the relationship between the employer and members of the organisation who are or have been employed by the employer. The employer has a similar right to negotiate with the employees' organisation.

3.4.3 According to Article 4(3) of the Directive, "information shall be given at such time, in such fashion and with such content as are appropriate to enable, in particular, employees' representatives to conduct an adequate study and, where necessary, prepare for consultation."

Some Member States reiterated or largely reproduced the aforementioned provision in their transposing legislation (EL, IE, IT, CY, MT, PL, RO, UK). Other Member States specified it further as follows:

Belgium : Article 4(3) of the Directive corresponds to a considerable number of, sometimes very detailed, provisions laid down in several laws, decrees, regulatory acts and collective agreements. The information, depending on its content, has to be provided once a year, every 3 months or occasionally, sometimes in writing (with a commentary or a summary) or by way of transmission of pertinent documentation. The timing is also defined in a detailed way in certain provisions, such as in article 3 CCT 9 which provides that the information and consultation have to take place prior to the decisions and allow the works council to proceed to an exchange of views, in which its members will be able to present their opinions, suggestions or objections. Also, article 7 CCT 9 provides that the (occasional) information on collective dismissals or recruitments should be given as soon as possible and, in any case, prior to the decision (see also article 11 CCT 9 on mergers, closures or important structural modifications of the undertaking, and articles 25 and 30 AR 1973).

Bulgaria : In accordance with Article 7c LC, employees’ representatives have the right to be informed by the employer in a way which would enable them to assess the possible implications of the envisaged measures and to request the necessary information from the employer if such information has not been provided within the established time limit. Art