COMMISSION OF THE EUROPEAN COMVIUNITIES 
C0M(94) 406 final 
Brussels, 20.09.1994 
94/0113 (PRT) 
Reexamined proposal for a 
COUNCIL DIRECTIVE 
on the establishment of a European Works 
Council or a procedure in Community-scale 
undertakings and Community-scale groups of 
undertakings for the purposes of informing and 
consulting employees 
(presented by the Commission pursuant to Article 189 C (d) 
of the EC Treaty) 
EXPLANATORY MEMORANDUM 
On 13 April 1994, the Commission adopted a "Proposal for a Council Directive on the 
establishment of European committees or procedures in Community-scale undertakings 
and Community-scale groups of undertakings for the purposes of informing and 
consulting employees"1. 
The Economic and Social Committee delivered its opinion on 1 June 19942. 
The European Parliament delivered its opinion at first reading on 4 May 19943. 
On 3 June 1994, the Commission adopted an amended proposal under Article 189a (2) 
of the EC Treaty, incorporating a number of the amendments proposed by the European 
Parliament4. 
On 18 July 1994, the Council adopted a common position on the Commission's amended 
proposal5. 
The European Parliament examined the Council's common position at second reading on 
15 September 1994 and approved it subject to 12 proposed amendments. 
The Commission has examined the amendments proposed by the European Parliament at 
second reading, incorporating a number of them into the present reexamined proposal. 
The Commission's position on each of the amendments approved by Parliament at second 
reading is as follows. 
AMENDMENTS 1 AND 2 
These amendments seek to reduce the thresholds indicated in Art. 12(l)(a) and (c) of the 
common position, for the number of employees on the payroll of a Community-scale 
undertaking or group of undertakings, from 1 000 to 500 and from 150 to 100. 
As it pointed out in the course of the first reading in Parliament, the Commission feels 
that the scope of the directive must be limited to the largest European undertakings. 1 000 
OJC 135, 18.5.1994, p. 8. 
Not yet published in the Official Journal. 
Not yet published in the Official Journal. 
OJ C 199, 21.7.1994, p. 10 
OJC 244, 31.8.1994, p.37 
employees has always been regarded as the most appropriate yardstick for this new 
approach to the international information and consultation of workers. The Commission 
would, however, point to the terms of Article 15 of the common position, which states 
that the Commission is required to review the application arrangements within a fixed 
period, with special reference to the workforce size thresholds. This will give the 
Commission an opportunity to take a fresh look at this question. 
The Commission is willing to accept the European Parliament's amendment regarding the 
second threshold (number of workers employed in at least two different Member States). 
AMENDMENT 3 (AND AMENDMENTS 4, ll AND 14) 
Amendment 3 seeks to allow only workers' representatives for the undertakings belonging 
to the group to appoint the the workers' representatives on the special negotiating body. 
Amendments 4, 11 and 14 are also concerned with the arrangements for setting up the 
special negotiating body or the European Works Council, proposing the introduction of 
a number of additional rules. 
The Commission appreciates the desire of the European Parliament to uphold democratic 
principles in setting up these worker-representation bodies. Nonetheless, the Commission 
is convinced that the best approach is not to interfere in existing forms and arrangements 
for employee representation at national level (which are themselves in conformity with 
democratic principles) and to allow them to be used in the procedures imposed by the 
directive, if the Member States so wish. This principle, which is the corollary to the 
principle of subsidiarity, is reflected in Article 2 (1) (d), according to which "employees' 
representatives means the employees' representatives provided for by national law and/or 
practice". 
Introducing uniform and restrictive rules into the text of the directive would seriously 
limit the freedom which it would seem desirable for Member States to enjoy. In addition, 
the proposed rule whereby it would be up to each Member State to lay down the criteria 
for determining supplementary members is impracticable in that, if adopted, it would lead 
to a conflict of laws which would be very difficult to resolve. 
The same arguments can be advanced with regard to Parliament's call for account to be 
taken of the relative significance of the various employee categories, this constituting a 
principle which is completely unknown in much existing national legislation and practice 
and which would therefore be difficult to apply in a uniform and across-the-board 
manner. 
Nonetheless, the Commission can agree to a new recital in the preamble to the 
reexamined proposal stating that Member States may, if they so wish, make provision for 
the representation of the various employee categories. 
AMENDMENT 5 
This amendment seeks to enable employees' representatives from third countries to be on 
the special negotiating body, with undertakings and establishments situated in such 
countries being regarded for this purpose as situated in a Member State. 
The text of the proposed directive as it stands does little or nothing to prevent the 
participation of employees' representatives from third countries, either in the special 
negotiating body or in a European Works Council or in an information and consultation 
procedure. Nonetheless, the directive adopts a voluntarist approach in this regard. This 
is perfectly understandable in that it would not be possible to require the direct 
application of the directive's rules outside the directive's territorial scope (i.e. the territory 
of the eleven Member States to which the directive is addressed). Here too, the 
Commission feels that it is up to Member States, if they think it useful and desirable, to 
introduce the appropriate compulsory measures to impose on undertakings and groups 
whose central management is situated on their territory a wider framework for the 
transnational information and consultation of employees than derives from the directive 
itself. (The directive has to be restricted to its natural field of application, i.e. the territory 
of the eleven Member States concerned.) 
AMENDMENT 7 
Amendment 7 seeks to reduce to one and a half years the three-year period provided for 
in Article 7 (1) of the common position as the period within which the subsidiary 
provisions adopted by the Member States in accordance with the annex do not yet apply. 
This deadline has emerged gradually in the course of institutional discussions on the 
proposal presented by the Commission last April. The proposal then was for a two-year 
period; the Council decided to introduce into its common position a three-year deadline, 
with no opposition from the Commission. The Commission's initial texts (dating from 
1991), on the other hand, provided for only one year. 
The evident point of extending the deadline was to encourage voluntary agreements 
between the special negotiating body and the central management. The Commission is 
sympathetic to this standpoint, as is illustrated by its changing position over time. 
Nonetheless, the Commission realises that extending the deadline has the disadvantage 
of delaying the implementation of the information and consultation mechanisms provided 
for in the directive in extreme situations of unwillingness to implement. 
The Commission therefore agrees to resubmit this question to the Council (on the basis 
of a 2-year period) to enable the Council to reexamine its common position in the light 
of the stance adopted by the European Parliament at second reading. 
AMENDMENT 8 
Amendment 8 sets out to restrict the facility available to Member States to make special 
arrangements for the central management of undertakings established on their territory 
and which pursue directly and essentially the aim of ideological guidance with respect 
to information and the expression of opinions to instances where rules in this field 
already exist in national law. 
The Commission is able to accept this point of view, which has been incorporated into 
the reexamined proposal. 
AMENDMENT 9 
Amendment 9 seeks to give more substance to the measures for the protection of 
employees' representatives set out in general terms in Article 10 of the common position. 
Special mention is made of the prohibition of any form of discrimination and protection 
against dismissal or other sanctions in respect of activities associated with the exercise 
of a mandate as an employees' representative. 
Although it feels that this type of measure was already covered by the wording of Article 
10 of the common position, the Commission is willing to incorporate the required details 
into its reexamined proposal. 
AMENDMENT 10 
This represents a bid by the European Parliament to reduce the period allowed in Article 
15 for review of the directive. 
The Commission can go along with the 5-year period proposed by Parliament. 
REEXAMINED PROPOSAL FOR A 
COUNCIL DIRECTIVE 
on the establishment of a European Works Council or 
a procedure in Community-scale undertakings 
and Community-scale groups of undertakings for the purposes 
of informing and consulting employees 
COMMON POSITION AMENDED TEXT 
Citations 
Recitals 1-15 
Recital 15 a (new) 
Recitals 16-22 
Article 1 
Article 2 Unchanged 
Unchanged 
Whereas, in accordance with the 
principle of subsidiarity, it is for the 
Member States to determine who are the 
employees' representatives and to make 
provision, should they think fit, for 
balanced representation of the various 
categories of employees 
Unchanged 
Unchanged 
1. For the purposes of this Directive: 
a) "Community-scale undertaking" 
means any undertaking with at 
least 1 000 employees within the 
Member States and at least 150 
employees in each of at least two 
Member States; a) "Community-scale undertaking" 
means any undertaking with at 
least 1 000 employees within the 
Member States and at least 100 
employees in each of at least two 
Member States; 
Point (b) Unchanged 
c) "Community-scale group of 
undertakings" means a group of 
undertakings with the following 
characteristics: 
- at least 1 000 employees within 
the Member States; 
- at least two group undertakings 
in different Member States; and 
- at least one group undertaking 
with at least 150 employees in 
one Member State and at least 
one other group undertaking with 
at least 159 employees in another 
Member State; 
Points (d) to ûù 
Paragraph 2 
Articles 3-6 
Article 7 c) "Community-scale group of 
undertakings" means a group of 
undertakings with the following 
characteristics: 
- at least 1 000 employees within 
the Member States; 
- at least two group undertakings 
in different Member States; and 
- at least one group undertaking 
with at least 100 employees in 
one Member State and at least 
one other group undertaking with 
at least 100 employees in another 
Member State; 
Unchanged 
Unchanged 
Unchanged 
1. In order to achieve the objective in 
Article 1 (1), the subsidiary requirements 
laid down by the legislation of the 
Member State in which the central 
management is situated shall apply: 
- where the central management 
and the special negotiating body 
so decide, or 
- where the central management 
refuses to commence negotiations 
within six months of the request 
referred to in Article 5 (1), or 
- where, after three years from the 
date of this request, they are 
unable to conclude an agreement 
as laid down in Article 6 and the 
special negotiating body has not 1. In order to achieve the objective in 
Article 1(1), the subsidiary requirements 
laid down by the legislation of the 
Member State in which the central 
management is situated shall apply: 
- where the central management 
and the special negotiating body 
so decide, or 
- where the central management 
refuses to commence negotiations 
within six months of the request 
referred to in Article 5 (1), or 
- where, after two years from the 
date of this request, they are 
unable to conclude an agreement 
as laid down in Article 6 and the 
special negotiating body has not 
taken the decision provided for in 
Article 5 (5). 
Paragraph 2 
Article 8 
Paragraphs 1 and 2 
3. Each Member State may lay down 
particular provisions for the central 
management of undertakings in its 
territory which pursue directly and 
essentially the aim of ideological 
guidance with respect to information and 
the expression of opinions. taken the decision provided for in 
Article 5 (5). 
Unchanged 
Unchanged 
3. Each Member State may lay down 
particular provisions for the central 
management of undertakings in its 
territory which pursue directly and 
essentially the aim of ideological 
guidance with respect to information and 
the expression of opinions, provided that 
such provisions already exist in national 
law. 
Article 9 Unchanged 
Article 10 
Members of special negotiating bodies, 
members of European Works Councils 
and employees' representatives exercising 
their functions under the procedure 
referred to in Article 6 (3) shall, in the 
exercise of their functions, enjoy the 
same protection and guarantees provided 
for employees' representatives by the 
national legislation and/practice in force 
in their country of employment. 
No provision made Unchanged 
Thev may be subject to no 
discrimination bv virtue of their activity 
and shall enjoy protection from 
dismissal, apart from in exceptional 
circumstances which justify the said 
dismissal, and protection from other 
sanctions imposed by reason of oral or 
written action and interventions 
connected with the exercise of their 
mandate. 
This shall apply in particular to 
attendance at meetings of special 
negotiating bodies or European Works 
Councils or any other meetings within 
the framework of the agreement referred 
to in Article 6 (3), and the payment of 
wages for members who are on the staff 
of the Community-scale undertaking or 
the Community-scale group of 
undertakings for the period of absence 
necessary for the performance of their 
duties. Unchanged 
Articles 11-14 Unchanged 
Article 15 
Not later than *, the Commission 
shall, in consultation with the Member 
States and with management and labour 
at European level, review its operation 
and, in particular, examine whether the 
workforce size thresholds are appropriate 
with a view to proposing suitable 
amendments to the Council, where 
necessary. Not later than *, the Commission 
shall, in consultation with the Member 
States and with management and labour 
at European level, review its operation 
and, in particular, examine whether the 
workforce size thresholds are appropriate 
with a view to submitting suitable 
amendments to Parliament and the 
Council, where necessary. 
Article 16 Unchanged 
Annex 
* six years after the adoption of this Directive Unchanged 
* five years after the adoption of this Directive 
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