Opinion of the Economic and Social Committee on the 'Communication from the Commission on worker information and consultation`

(96/C 212/08)

On 20 November 1995, the Commission decided to consult the Economic and Social Committee, under Article 198 of the Treaty establishing the European Community, on the above-mentioned communication.

The Section for Social, Family, Educational and Cultural Affairs, which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 2 May 1996. The Rapporteur was Mrs Engelen-Kefer and the Co-Rapporteur was Mr Boussat.

At its 336th Plenary Session (meeting of 29 May 1996), the Economic and Social Committee adopted the following Opinion by 118 votes to 3, with 13 abstentions.

1. Adequate understanding of the Commission communication on worker information and consultation requires some differentiation between the questions raised.

2. The arrangements for worker information and consultation are not the same as the machinery for worker participation at company level or in the company organs provided for by company law. There is a qualitative difference between the two instruments. The Commission does not draw this necessary distinction, but treats both as equivalent. Its observations and three stated options are therefore based on a false premise.

3. Consequently, it seems advisable to adopt a separate approach to information and consultation arrangements, which already exist to some extent in almost all the Member States, and participation which, though established practice in certain EU countries, involves different procedures and objectives.

4. A precondition of any Community initiative is knowledge of all existing national legislation. The Commission communication provides no such analysis. Only a comparative analysis, however, will make it possible to establish the degree of legislative convergence or divergence between individual countries and the extent to which Community action is advisable and necessary. The Commission should therefore initiate a review of this subject and, to this end, should carry out a comparative study.

5. This is a highly complex and sensitive topic, which primarily concerns relations between employers and workers and their representative bodies. It seems particularly appropriate and desirable that such a topic should first be discussed by the social partners within the established framework of social dialogue and the results of this debate awaited. In this connection, the following observations seem relevant.

6. All existing Community Directives deal exclusively with worker information and consultation. The Directive on the European Works Council provides a transnational legal framework on these matters for enterprises and groups of enterprises operating Community-wide.

7. The Directives on collective redundancies and the safeguarding of employees' rights in the event of transfers of undertakings provide for the information and consultation of existing worker-representative bodies, though only at national level.

8. Before embarking on a possible new European initiative on workers information and consultation, the comparative study (mentioned in point 4) should be submitted to, and discussed by, the social partners, so that they might judge if it is opportune to draw up an EU framework regulation, preferably stemming from an agreement, which could be fleshed out at national level. Implementation of the European Works Council Directive has shown that it is highly conducive to voluntary negotiations if the legislator provides such a framework and allows the social partners a certain period in which to formulate detailed provisions.

9. The texts on the six social-law instruments referred to by the Commission must also be examined individually since they relate to legal forms of companies and associations which are extremely different, subject to great variation from one country to another and unevenly distributed. Above all, however, these separate instruments cover very different procedures for worker participation, which is the subject of the Commission communication.

10. The proposals relating to the European Company Statute focus both on worker information and consultation and on the more far-reaching participation of worker representatives at the level of company organs. Rules covering greater involvement of this sort already exist in some, though not all, Member States. Neither the European Works Council Directive, which is restricted to worker projected information and consultation, nor any projected general framework legislation on worker information and consultation at national level (subject to point 8) offer an adequate substitute for company-level participation.

11. Adoption of the European Company Statute must not enable enterprises in Member States providing for greater involvement to avoid this wider obligation by adopting the European legal form.

12. There can be no question of transposing the particular participation model of only one or a few Member States to the rest of the Community. At the same time, it must not be possible to circumvent worker participation with the aid of a Community legal instrument. Workers in the countries concerned should not suffer a loss of rights deriving from Europe's inability to provide for involvement at a level beyond that of mere information and consultation.

13. This fact automatically rules out Commission Options 2 and 3 for Member States in which workers already enjoy more comprehensive participation rights. Consequently, a solution must be found which ensures that existing national participation legislation cannot be limited or circumvented by any form of European Company.

14. At all events, this concern that existing participation legislation could be circumvented relates to the European Company Statute. It also applies to the other forms of European undertaking (European Association, European Cooperative, European Mutual Society). It would be advisable to disassociate these from the European Company Statute and provide for separate adoption of the corresponding Regulations. This decision should be taken as quickly as possible in order to establish a level playing field between corporate enterprises and partnerships of people. To shorten this period, relations between employees and future European cooperatives, mutual societies and associations, in their functions as employers, should be covered by appropriate provisions taking account of their specificity. Representatives of cooperatives, mutual societies and associations must be involved in the drawing up of such a European legal framework.

Done at Brussels, 29 May 1996.

The President

of the Economic and Social Committee

Carlos FERRER