WRITTEN QUESTION E-0872/01

by Ilda Figueiredo (GUE/NGL) to the Commission

(22 March 2001)

Subject: European works councils

On 17 May 1996 the Samu Auchan group, which is based in France, has operations in Spain, Italy, Luxembourg, and Portugal, and employs some 37 000 people, concluded an agreement with a number of French trade unions with a view to drawing up the Auchan European Works Council Agreement, which was deposited with the Lannoy Industrial Tribunal (conseil des prud'hommes) on 28 May 1996.

Under this agreement, which the group management sent to the employees, employee representatives from the different countries have been invited to serve on the European Works Council.

Point 2.2 of the agreement stipulates that the members of the council must be appointed by the most representative staff organisation in each company (or the central works council, where this exists) in accordance with procedures to be determined by each organisation on the basis of an agreement between the management and the representatives of the trade unions or the staff representatives, if the company staff is not unionised. This is the provision which the management has invoked to reject one of the official representatives of the Portuguese employees and have her replaced by a substitute.

Given that the agreement was laid down solely by French management and employee representatives, does the Commission consider it right for it to be imposed on companies based in other Member States without observing their national laws and practices governing the appointment or election of employee representatives?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(5 June 2001)

The agreement signed on 17 May 1996 establishing a European Works Council within the Samu Auchan group has to be considered as a so-called pre-Directive agreement ruled by Article 13 of Council Directive 94/45/EC of 22 September 1994 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(1).

Article 13 of the Directive provides that Community-scale groups of undertakings, which, by the date of transposition of the Directive, have concluded agreements providing for transnational information and consultation of employees and covering the entire workforce, shall not be subject to the obligations arising from the Directive.

The rationale for this provision is, that the Community legislator wished to reserve special treatment and flexibility for those undertakings and groups of undertakings which had already anticipated the obligations arising from the Directive and at the same time to maintain the voluntary and consensual approach that is intended to be the hallmark of its application. This means that no legal rules prevail on what the parties agreed and that the content of a valid Article 13 agreement cannot be scrutinised other that in relation to that Article and the relevant national provisions implementing that Article.

Article 13 of Directive 94/45/EC has been implemented into French law by Article 5 of Law No 96-985 of 12 November 1996 on the information and consultation of employees in Community-scale undertakings and Community-scale groups of undertakings and on development of collective bargaining(2).

Given that the above-mentioned agreement within the Samu Auchan group is ruled by French law and that France has properly incorporated into its national law the provisions of the above-mentioned Directive, the Commission wants to underline, that any issues arising in this area are a matter for the national industrial relations' procedures, and/or the national courts in the first instance.

(1) OJ L 254, 30.9.1994.

(2) The Community-scale undertakings and groups of undertakings which already have, on the date this law is enacted, an agreement covering the entire workforce and providing for bodies or for other forms of information, exchange of views and dialogue at Community level, shall not be subject to the obligations arising from Chapter X of title III of volume IV of the Labour Code as worded as a result of this law. This shall also be the case where such agreements run out and the signatory parties decide to renew them. However, the provisions in Article L 439-24 of the Labour Code in the drafting resulting from this law, shall apply to the groups of undertakings referred to in the first paragraph, which have established bodies for information, exchange of views and dialogue at Community level.(unofficial translation).