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 {SEC(2008) 334}
Date: 2008-03-17
Institutions: European Commission
Subjects: labour law, national implementing measure, social dialogue, worker consultation, worker information

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 17.3.2008 
COM (2008) 146 final 

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 

{SEC(2008) 334} 

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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 

1 

INTRODUCTION 

Directive  2002/14/EC1  (hereinafter:  "the  Directive")  establishes  a  general  framework  for 
informing and consulting employees in the European Community. The Directive consolidates 
the principle of information and consultation of workers, by complementing other Community 
directives  in  this  field2  and  by  filling  a  number  of  gaps  in  national  laws  and  practices.  It 
therefore plays a key role for promoting social dialogue and relations of trust at the level of 
undertakings and establishments, which is vital to ensure a favourable workplace environment 
for innovation, anticipation and adaptation, in the interests of both employers and employees.  

To  this  end,  the  Directive  provides  for  minimum  requirements  regarding  the  principles, 
definitions  and  arrangements  for  information  and  consultation  of  employees  at  undertaking 
level. Given the variety of national situations and practices in the field of industrial relations 
within  the  Union,  Member  States  enjoy  a  large  measure  of  flexibility  as  regards 
implementation  of  the  Directive's  key  concepts  (such  as  "employees'  representatives", 
"employer",  "employees",  etc.)  and  the  arrangements  for  information  and  consultation.  The 
important role of management and labour in this regard is fully recognised by the Directive.  

In  order  to  avoid  placing  administrative,  financial  or  legal  constraints  on  the  creation  and 
development of small and medium-sized undertakings, the provisions of the Directive apply 
only to undertakings employing at least 50 employees, or to establishments employing at least 
20 employees, according to the choice made by the Member State. 

As required by Article 12 of the Directive, the Commission, in the present communication, is 
reviewing  the  application  of  the  Directive,  in  consultation  with  the  Member  States  and  the 
social partners at Community level, with a view to proposing any necessary amendments. 

In  preparation  for  this  review,  the  Commission  addressed  a  questionnaire  to  the  Member 
States  and  to  the  European  social  partners3.  It  also  commissioned  a  study  by  independent 
experts4 and gathered information throughout its ongoing monitoring activity.  

A  staff  report  accompanying  this  communication  deals  in  detail  with  the  various  aspects  of 
the transposition of the Directive in all Member States, drawing also on the replies received to 
the aforementioned questionnaire.  

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OJ L 80 of 23.3.2002, p. 29. 
Directive 94/45/EC, OJ L 254 of 30.9.1994, p. 64; Directive 98/59/EC, OJ L 225 of 12.8.1998, p. 16; 
and Directive 2001/23/EC, OJ L 82 of 22.03.2001, p. 16. 
Annex 2 to the Commission Staff Working Document accompanying the present communication gives 
an overview of the stakeholders' replies to the questions focusing on the review of the Directive. 
Study  on  the  implementation  of  Directive  2002/14/EC  in  the  enlarged  EU,  Synthesis  Report  (to  be 
published soon on DG EMPL's website). 

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2 

TRANSPOSITION OF THE DIRECTIVE 

2.1 
Only  a  few  Member  States  adopted  measures  to  transpose  the  Directive  within  the 
required deadline (FR, HU, NL, PT, SK, FI, UK). Two Member States (DE, AT) notified the 
Commission  that  their  existing  legislation  already  conforms  to  the  Directive's  requirements. 
BG and RO transposed the Directive, as required, before the date of their accession to the EU. 

Thus, the majority of the Member States failed to transpose the Directive on time. Following 
infringement proceedings launched by the Commission, the European Court of Justice issued 
judgments  against  IT,  BE,  LU,  ES  and  EL.  IT,  ES  and  EL  have  meanwhile  adopted 
implementing legislation. BE and LU have transposed the Directive only partially.  

The longer than anticipated time taken in some Member States for transposing the Directive 
may  be  related  to  difficulties  in  generating  the  necessary  consensus  on  key  issues  for  the 
reform of national industrial relations. 

2.2  Most of the Member States transposed the Directive by way of legislation. BE and DK 
transposed  it,  in  accordance  with  their  traditions,  by  way  of  both  legislation  and  collective 
agreements.  In  some  Member  States  transposition  entailed  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  consultation  of  the  social 
partners, albeit in different forms and through procedures reflecting the particular tradition of 
each country. 

Some  countries  which  lacked  a  general,  permanent  and  statutory  system  of  information  and 
consultation or of employee representation made use of the transitional provisions laid down 
in Article 10 of the Directive (BG, IE, IT, CY, MT, PL, UK). These allow Member States to 
use higher thresholds  for the  application  of  implementing  measures  in a  first  phase until 23 
March 2007 - 150 employees per undertaking or 100 employees per establishment; and in a 
second  phase  until  23  March  2008  -  100  employees  per  undertaking  or  50  employees  per 
establishment. 

CONCLUSIONS  DRAWN  FROM  THE  ANALYSIS  OF  THE  TRANSPOSING 

3 
MEASURES 

3.1  General remarks 

The  large  majority  of  Member  States  adopted  transposing  measures  that  cover  the  main 
elements  of  Directive  2002/14/EC.  However,  analysis  of  these  measures  has  enabled  the 
Commission  to  identify  a  number  of  issues  where  correct  and  full  transposition  of  the 
Directive's requirements by Member States may be at stake, necessitating further clarification 
or verification. 

3.2 

Article 3 (Scope) 

As regards Article 3, the main thing is to ensure that employees can effectively exercise their 
right  to  information  and  consultation  in  all  undertakings  and  establishments  covered  by  the 
Directive.  This  presupposes  in  particular  the  respect  of  the  thresholds  established  per 
undertaking  or  by  establishment,  or  the  transitional  thresholds  in  the  case  of  countries  that 

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availed themselves of Article 10. It presupposes also the lawful calculation of such thresholds, 
in line with ECJ case-law.  

National provisions excluding from the aforementioned calculation certain young workers or 
workers  with  fixed-term  contracts  of  short  duration  seem  to  pose  problems  and  deserve 
further  examination.  Also  problematic  is  the  compatibility  with  the  Directive  of  the 
transposing measures of those Member States which made use of the options provided for in 
Article  3,  paragraphs  2  and  3,  but  did  not  lay  down  particular  provisions  applicable  in  the 
undertakings or to the categories of workers concerned. 

With regard to the scope of application of the Directive, there is a need to clarify whether the 
national  transposing  legislation  in  some  countries  covers  also  undertakings  which  do  not 
operate for gain. 

3.3 

Article 4 (Practical arrangements for information and consultation) 

The national provisions adopted with a view to transposing this Article vary greatly as to the 
level  of  detail  and  comprehensiveness.  In  several  Member  States,  in  particular  those  with 
long-standing systems of information and consultation, the wording of the national laws does 
not  always  coincide  with  that  of  the  Directive.  Whilst  the  transposing  legislation  has  to  be 
interpreted in conformity with the Directive, certain issues are worthy of further examination, 
not least for reasons of legal certainty and security. 

In particular, in some Member States the transposing legislation provides only for information 
and  not  for  consultation  on  issues  regarding  the  employment  situation,  its  probable 
developments and related anticipatory measures. Furthermore, in some Member States there is 
no  explicit  mention  of  the  employer's  obligation  to  give  reasoned  replies  to  the  employees' 
representatives' opinions or to consult with a view to reaching agreement. 

There  is  also  a  need  to  further  verify  the  situation  in  the  Member  States  whose  legislation 
allows the employer to inform and consult through means other than the defined employees' 
representatives5. 

3.4 

Article 5 (Information and consultation deriving from an agreement) 

This Article provides a good example of the Directive's flexibility, inasmuch as it gives the 
Member  States  the  option  of  entrusting  the  social  partners  with  the  task  of  negotiating  the 
practical  arrangements  for  informing  and  consulting  employees.  These  arrangements  may 
even  be  different  from  those  referred  to  in  Article  4,  provided  that  the  principles  set  out  in 
Article 1 of the Directive as well as any conditions and limitations laid down by the Member 
States are respected.  

Most Member States provide for the possibility of social partner agreement on the  practical 
arrangements. Some Member States make a distinction between pre-existing agreements and 
agreements  adopted  subsequent  to  the  Directive.  However,  the  requirements  established  by 
pre-existing agreements do not always fit in with the provisions laid down in the Directive. 
For example, pre-existing agreements may not provide for any time frame for informing and 

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Account is to be taken, in this regard, of Recital 16 of the Directive, which provides that the Directive is 
without prejudice to those systems which provide for the direct involvement of employees, as long as 
they are always free to exercise the right to be informed and consulted through their representatives. 

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consulting  employees;  furthermore,  they  may  not  provide  for  consultation  but  merely  for 
seeking the views of employees and they may not be subject to enforcement provisions.  

More  generally,  in  some  Member  States  there  is  no  explicit  mention  of  the  Directive's 
requirement that the social partners respect the principles laid down in Article 1, where they 
agree on practical arrangements which differ from those set out in Article 4. 

In  this  connection,  it  is  necessary  to  clarify  the  conditions,  including  the  thresholds,  under 
which the employees may express reserves or challenge  pre-existing  agreements  in order to 
assess whether their right to information and consultation is impaired.  

3.5 

Article 6 (Confidential information) 

Most  Member  States  transposed  this  provision  by  using  general  terms,  broadly  similar  to 
those laid down in the Directive, without specifying them further, leaving this to case-law or 
to  agreements  between  management  and  labour.  Some  Member  States  transposed  it  in  a 
minimalist way, omitting certain terms and thus raising questions as regards the compatibility 
of the implementing acts with the Directive.  

While effective protection of employers' legitimate interests in regard to confidentiality must 
be  ensured,  effective  exercise  of  the  right  of  employees  to  information  and  consultation 
should not be impaired by employers' unwarranted recourse to the confidentiality clause. 

Some other issues deserve also closer attention: 

•  The lack of any explicit provisions in the transposing legislation regarding continuation of 
the  confidentiality  obligation,  even  after  expiry  of  the  term  of  office  of  the  employees' 
representatives, or the limitation of such an obligation to a defined period after expiry of 
the term of office.  

•  The  possibility  that  specific  laws  characterize  an  information  as  confidential,  without 
specifying the underlying criteria, in particular whether there is any legitimate interest of 
the undertaking or any risk of prejudice to it, according to objective criteria. 

•  The conformity of national acts which provide that a piece of information is confidential 
by the mere fact that the employer entrusts it in confidence and loses this quality only after 
the competent party decides that it is not of a confidential nature. 

Furthermore,  with  regard  to  the  last  paragraph  of  Article  6,  on  administrative  or  judicial 
review procedures, the Commission noticed that some Member States have not taken specific 
measures to transpose this provision.  

3.6 

Article 7 (Protection of employees' representatives) 

All  Member  States  seem  to  give  adequate  protection  and  guarantees  to  employees' 
representatives, in order to enable them to properly perform their duties. To this end, Member 
States  provide  above  all  for  a  right  to  paid  time  off  as  well  as  for  protection  against 
employers'  actions  disadvantaging  or  discriminating  against  the  employees'  representatives 
while carrying out their tasks, or even, in certain cases, after their term of office. 

3.7 

Article 8 (Protection of rights) 

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All  Member  States  provide  for  adequate  administrative  or  judicial  procedures  in  order  to 
ensure respect of the obligations imposed by the Directive. In most countries, monitoring and 
control is assigned to the Labour Inspectorate. Disputes may be brought before specific bodies 
and/or courts.  

The national transposing measures provide also for administrative or, in certain cases, penal 
sanctions  and  determine,  in  several  cases,  the  minimum  and/or  maximum  amounts  of  such 
sanctions. These amounts vary considerably among Member States. They may depend on the 
legal form of the employer (natural or legal person), the size of the undertaking, the relative 
gravity  of  the  infringement  in  relation  to  comparable  ones,  the  dissuasive  effect  in  practice, 
etc.  A  number  of  Member  States  provide  for  particularly  effective  sanctions  in  case  the 
employer takes decisions without respecting his/her information and consultation obligations: 
such  decisions  may  be  suspended  or  even  declared  null  and  void.  In  a  few  countries,  non-
compliance may also be taken into account when determining the measures to be taken by the 
employer  in  order  to  compensate  for  disadvantages  suffered  by  employees  in  cases  of 
restructuring. 

It  is  necessary  to  check  whether  the  measures  in  place  ensure  that  infringements  of  the 
Directive, including where employees' representatives violate their confidentiality obligation, 
are liable to sanctions which are effective, proportionate and dissuasive.  

Article  9  (Link  between  this  Directive  and  other  Community  and  national 

3.8 
provisions) 

Most national transposing acts stipulate that they do not affect or are without prejudice to the 
national provisions transposing other directives in the field of information and consultation6. 
The interaction of the aforementioned directives does not seem to be a problem in countries 
which transposed all directives in a single act, in particular by amending their Labour Code. It 
may become an issue in cases where such transposition was carried out through different acts 
in ways that could appear to be not wholly coherent, in terms either of the beneficiaries of the 
information  and  consultation  rights  (possible  duplication  of  the  actors)  or  of  the  procedural 
modalities of such information and consultation.  

4 

REVIEW OF THE APPLICATION OF THE DIRECTIVE 

As indicated above, in accordance with Article 12 of the Directive, the Commission consulted 
the  Member  States  and  the  European  social  partners  by  means  of  a  questionnaire  on  the 
review of the application of the Directive7. 

4.1 

Position of the Member States 

As regards the question on the practical application of the Directive, including attainment of 
its  objectives,  several  Member  States  highlighted  the  fact  that  their  legislation  has  long 
provided  for  information  and  consultation  of  employees  in  undertakings/establishments. 
Several other Member States responded that it is too early to provide a definite answer, given 
the early stage of implementation of the Directive. 

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See footnote 2. 
For  an  overview  of  the  replies  see  Annex  2  of  the  Commission  Staff  Working  Document  cited  in 
footnote 3 above. 

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All Member States find the Directive sufficiently flexible and suitable.  

Several Member States noted that the impact of the national transposing measures upon their 
industrial  relations  systems  is  expected  to  be  minimal,  given  that  they  already  had  long-
standing  legislation  in  this  area.  Other  Member  States  considered  the  impact  as  positive, 
whilst some pointed out that it is too early to make an assessment.  

The majority of Member States do not see a need to revise the Directive. Still several others 
pointed  out  that  it  is  too  early  for  such  revision.  Two  Member  States  replied  in  the 
affirmative. 

As regards the question on the need to clarify any provision of the Directive, most Member 
States replied in the negative. Some pointed out that it is too early to assess such need. Two 
Member States replied in the affirmative. 

Most  Member  States  have  not  identified  any  difficulties  connected  to  the  links  between  the 
different EU directives in the field of information and consultation and therefore do not see 
any need to improve coherence between them. However, three Member States replied in the 
affirmative. Some others pointed out that it is too early to assess such need.  

4.2 

Position of the European Social Partners 

All  the  social  partners  consulted  point  out  that,  in  general,  the  Directive's  impact  on  each 
Member State depends on the extent to which a developed national system of information and 
consultation  is  already  in  place.  The  practical  significance  and  impact  of  the  Directive  is 
appreciated  differently.  For  BusinessEurope  the  Directive's  impact  is  still  uncertain,  as  the 
application  of  the  Directive  might  lead  in  some  countries  to  an  accumulation  of  legislation 
and the imposition of a one-size-fits-all approach. Furthermore, the objective of empowering 
the  social  partners  through  the  adoption  of  agreements  has  not  been  achieved  in  several 
countries. UEAPME also draws attention to the risk that the Directive may impose a unified 
model in some Member States, and generate red tape and social unrest. CEEP notes that the 
national  implementing  measures  in  general  meet  the  Directive's  objective,  and  adds  that  in 
some  countries  the  implementation  of  the  Directive  has  favoured  certain  employees' 
representatives to the detriment of others.  

ETUC  considers  that  the  Directive  has  a  positive  impact,  particularly  in  terms  of  making 
industrial relations more participative, notwithstanding the vagueness of some provisions, the 
weakness  of  procedures  and  sanctions,  and  the  absence  of  reference  to  trade  unions.  It  also 
drew attention to attempts to deviate from existing procedures and representative bodies. 

All  the  European  social  partners  agree  that  the  Directive  is,  in  general,  sufficiently  flexible 
and suitable. 

As regards the questions on the need to review and to clarify the Directive, BusinessEurope, 
UEAPME and CEEP replied in the negative. On the contrary, ETUC noted that the Directive 
could be improved and clarified regarding a number of issues.  

BusinessEurope  and  UEAPME  do  not  see  the  need  to  improve  coherence  between  the 
directives  in  the  field  of  information  and  consultation,  and  have  instead  advised  the 
Commission  to  evaluate  the  existing  EU  provisions  in  terms  of  their  added  value  under  the 
better regulation initiative. CEEP noted that the specific directives take precedence over the 
general one (i.e. Directive 2002/14/EC), whilst adding that some of its members question the 

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need for the latter Directive. ETUC pointed out that it would be necessary to harmonise the 
existing directives in order to avoid “double tracks” in which different actors are required to 
deal  with  the  same  issue.  It  also  urges  an  update  of  Directive  94/45  on  European  works 
councils in order to keep it consistent with the standards set in Directive 2002/14/EC, which is 
more advanced in certain respects. 

4.3 

Assessment  

The implementation of the Directive represents an important step forward in the consolidation 
of  the  right  to  information  and  consultation  enshrined  in  the  EU  Charter  of  Fundamental 
Rights. The Directive is expected to contribute to the approximation of the national systems 
across the EU through the establishment, by way of minimum requirements, of a general and 
flexible  framework  for  information  and  consultation  of  employees  in  all  Member  States.  A 
particularly  significant  impact  is  expected  in  the  Member  States  which  did  not  previously 
have a general, permanent and statutory system of information and consultation of employees' 
representatives8. 

The  implementation  of  the  Directive  necessarily  takes  place  within  the  context  of  the 
industrial relations systems of the Member States. It is generally accepted that the Directive is 
sufficiently flexible to be adapted to the national situation of each Member State. However, 
whilst  the  Directive  refers  to  the  national  definitions  of  key  concepts,  including  that  of 
"employees'  representatives",  its implementation has given rise in certain countries  to lively 
and  sometimes  lengthy  debates  on  how  to  organise  the  system  of  workers'  representation, 
whether by single or double channel (i.e. by works councils and trade unions), or admitting 
mixed solutions.  

While a majority of opinions suggest broadly positive prospects as to the overall impact of the 
Directive, clearly more time is needed to make a definite assessment, as the Directive has not 
yet generated its full impact. Just over two years have passed since the transposition deadline. 
Also,  there  has  been  a  considerable  delay  in  transposing  the  Directive  in  several  Member 
States, and in a few it has not yet been transposed entirely. It is too early for comprehensive 
evidence-based  research9  into  the  application  of  the  Directive  in  all  EU  Member  States10. 
Furthermore, the Directive's requirements do not yet apply to all the undertakings covered by 
it,  given  that  some  Member  States  took  advantage  of  the  transitional  period  and  currently 
restrict its application to undertakings employing more than 100 employees.  

Therefore,  the  Commission  does  not  currently  envisage  proposing  amendments  to  Directive 
2002/14/EC.  Whilst  its  provisions  could  be  improved  and  rendered  more  precise  regarding 
certain  specific  points,  the  Commission  considers  that  the  national  implementing  measures 

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information  and  consultation:  early  experience  under 

Cf. the quantitative data cited in PL's reply to the questionnaire (Technical Annex). As regards the UK, 
see  "Employment  Practices  of  MNCs  in  Organisational  Context:  A  Large-Scale  Survey,  June  2007, 
http://www2.warwick.ac.uk/fac/soc/wbs/projects/mncemployment 
Apart  from  the  UK,  where  a  report  has  recently  been  published  (first  phase  of  a  research  project: 
the  ICE  Regulations", 
"Implementing 
Employment  Relations  Research  Series  N°  88,  September  2007),  there  is  merely  some  anecdotal 
evidence  in  some  Member  States  regarding  in  particular  the  interaction  between  works  councils  and 
trade  unions,  the  effectiveness  (or  shortcomings)  of  the  information  and  consultation  procedures  in 
practice, and the awareness (or lack thereof) of the stakeholders concerning their rights and obligations.  
Cf., in this regard, Synthesis Report (footnote 4 above); "Impact and Assessment of EU Directives in 
the field of Information and Consultation", PE 385.646, European Parliament 2007. 

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should  be  given  some  time  to  bed  down  in  the  industrial  relations  systems  of  the  Member 
States.  

One aspect of the Directive may, however, require action. Article 3(3) gives Member States 
the  possibility  to  exclude  from  the  personal  scope of its  application crews  of vessels plying 
the high seas. However, such exclusion is conditional upon the Member States laying down 
"particular  provisions"  covering  this  category  of  workers.  On  October  10th  2007,  the 
Commission  adopted  a  Communication  on  "reassessing  the  regulatory  social  framework  for 
more and better seafaring jobs in the EU" in the context of the Blue Book on Maritime Policy 
adopted the same day. The Communication, which addresses the Directive under Section 3c), 
launched  a  first  phase  consultation  of  the  social  partners  which  may  lead  to  further  EU 
measures to ensure adequate protection of the information and consultation rights of seagoing 
workers11.  

5 

CONCLUSIONS  

The main challenge now is to ensure the full and effective transposition and enforcement of 
the Directive. This requires the active involvement not only of the Commission, in its role as 
guardian of the Treaty, but also of the Member States, who play a crucial role in this respect, 
as  it  is  their  obligation  to  ensure  the  correct  implementation  and  application  of  Community 
law in practice.  

As  stipulated  by  the  Directive12,  management  and  labour  may  assume  a  leading  role  in 
defining the arrangements for informing and consulting employees in a way which best suits 
their  needs  and  wishes.  This  is  the  case  in  several  Member  States  with  strong  traditions  of 
social partnership. Certainly, the relevant requirements of the Directive should be respected in 
this regard13.  

As  indicated  above,  the  Commission  has  identified  a  number  of  outstanding  issues  which 
raise either questions of interpretation of the Directive or doubts as regards the compliance of 
implementing measures with the Directive. The Commission intends to examine such issues 
more closely in co-operation with the national authorities of the Member States concerned. If 
necessary, it will, on a case-by-case basis, launch infringement proceedings under Article 226 
EC.  

It  is  encouraging  that  certain  Member  States  have  already  introduced  draft  legislation14  in 
order to remedy shortcomings identified in connection with the transposition of the Directive. 

In  addition,  the  Commission  intends  to  take  further  action  aimed  at  facilitating  correct 
enforcement of the Directive. Knowledge by management and labour of their respective rights 
and obligations in the area of information and consultation is an indispensable prerequisite for 
the  full  and  effective  exercise  of  these  rights  in  the  workplace.  The  Commission  intends  to 
undertake action geared to awareness-raising, as well as to promote exchange of best practices 
and  to  enhance  capacity-building  of  all  stakeholders,  by  way  of  seminars,  training  courses, 

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14 

COM(2007) 591 final of 10.10.2007. 
See in particular Recital 23, Articles 5 and 11(1) of the Directive. 
See notably section 3.4 above. 
Draft legislation in EL (maritime sector), LT and PL. 

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studies  and  financial  support  for  projects  submitted  by  representatives  of  employers  and 
employees15. 

It is not currently envisaged to propose amendments to the Directive. 

15 

The  Commission  promotes  several  actions  with  these  aims,  in  particular  under  budget  heading 
04.030303 – Information, consultation and participation of the representatives of undertakings. 

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