Proposal for a European Parliament and 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 (Recast) {SEC(2008) 2154} {SEC(2008) 2155} {SEC(2008) 2166} {SEC(2008) 2167}
Date: 2008-07-02
Institutions: European Commission
Subjects: European Works Council, European undertaking, group of companies, labour law, worker consultation, worker information

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 7.2.2008 
COM(2008) 419 final 

2008/0141 (COD) 

Proposal for a 

EUROPEAN PARLIAMENT AND 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 

(Recast) 

{SEC(2008) 2154} 
{SEC(2008) 2155} 
{SEC(2008) 2166} 
{SEC(2008) 2167} 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

1. 

2. 

This proposal for recasting is intended to amend 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  employees1,  as  extended  to  the  United 
Kingdom  by  Council  Directive  97/74/EC  of  15 December 19972  and  adapted  by 
Council Directive 2006/109/EC of 20 November 2006 by reason of the accession of 
Bulgaria and Romania3.  

Article 15 of Directive 94/45/EC provides that, not later than 22 September 1999, the 
Commission,  in  consultation  with  the  Member  States  and  with  management  and 
labour  at  European  level,  is  to  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.  In  the  Report  from  the 
Commission  to  the  European  Parliament  and  the  Council  on  the  application  of 
Directive  94/45/EC4,  the  Commission  stated  that  it  would  take  a  decision  on  a 
possible review of the Directive on the basis of the required further assessments and 
the evolution of the other legislative proposals on the involvement of employees.  

General context 

3. 

4. 

1 
2 

3 

4 
5 

Fourteen  years  on  from  the  adoption  of  Directive  94/45/EC,  approximately  820 
European  Works  Councils  are  active,  representing  14.5  million  employees  with  a 
view  to  providing  them  with  information  and  consultation  at  transnational  level. 
They  are  vital  to  the  development  of  transnational  industrial  relations  and  help  to 
reconcile  economic  and  social  objectives  within  the  Single  Market,  particularly 
through the decisive role they play in anticipating and managing change responsibly. 

to 

right 

transnational 

information  and  consultation 

However,  there  are  some  problems  with  the  practical  application  of  Directive 
94/45/EC.  The 
lacks 
effectiveness,  as  the  European  Works  Council  is  not  sufficiently  informed  and 
consulted in the case of restructuring. European Works Councils have been set up in 
only 36% of undertakings falling within the scope of the Directive. There are legal 
uncertainties,  particularly  with  regard  to  the  relationship  between  the  national  and 
transnational levels of consultation, and in cases of mergers and acquisitions. In three 
cases  referred  to  it  for  preliminary  rulings5,  the  Court  of  Justice  of  the  European 
Communities  also  interpreted  the  provisions  of  the  Directive  with  regard  to  the 
communication  of  the  information  required  to  set  up  a  European  Works  Council. 
Lastly, the consistency and linkage of the various directives on the information and 
consultation of employees are insufficient. 

OJ L 254, 30.9.1994, p. 64. 
Council  Directive  97/74/EC  of  15 December 1997  extending  to  the  United  Kingdom  Directive 
94/45/EC (…), OJ L 10, 16.1.1998, p. 22. 
Council  Directive  2006/109/EC  of 20 November 2006  adapting  Directive  94/45/EC  (…) by  reason of 
the accession of Bulgaria and Romania, OJ L 363, 20.12.2006, p. 416. 
COM(2000) 188. 
C-62/99 Bofrost; C-440/00 Kühne & Nagel. C-349/01 ADS Anker GmbH. 

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5. 

European  Works  Councils  need  to  be  up  to  the  task  of  playing  their  full  role  in 
anticipating and managing change and building up a genuine transnational dialogue 
between  management  and  labour.  The  objective  of  this  proposal  is  thus,  in 
conjunction  with  non-regulatory  action,  to  ensure  that  employees’  transnational 
information and consultation rights are effective, increase the proportion of European 
Works Councils established, increase legal certainty and ensure that the directives on 
information and consultation of employees are better linked. 

Existing provisions in the area of the proposal 

6. 

This proposal takes account of the fact that there are other directives in the area of 
the  information  and  consultation  of  employees.  Directive  2002/14/EC  of  the 
European  Parliament  and  of  the  Council  of  11  March  2002  establishing  a  general 
framework  for  informing  and  consulting  employees  in  the  European  Community6 
lays down the general principles to be applied at national level. Directive 98/59/EC7 
and  Directive  2001/23/EC8  are  applicable  where  redundancies  or  transfers  are 
specifically  envisaged.  Directives  2001/86/EC9  and  2003/72/EC10  govern  the 
involvement  of  employees  in  European  Companies  (‘SE’)  and  the  European 
Cooperative Societies (‘SCE’). 

Consistency with other policies and objectives of the Union 

7. 

8. 

6 
7 

8 

9 

10 

11 

Against the background of the Renewed Social Agenda11, this initiative is intended to 
contribute  to  the  European  Union’s  efforts  to  have  all  its  citizens  benefit  from 
globalisation in a balanced way. In conjunction with the reports on restructurings and 
to  encourage 
transnational  company-level  collective  agreements, 
undertakings  and  employees  to  anticipate  and  adapt  to  the  changes  they  must  deal 
with. Through the appropriate involvement of employees, it contributes to improving 
the dialogue between management and labour within transnational undertakings and 
to  construct  a  climate  which  fosters  the  search  for  approaches  which  combine 
flexibility and security.  

it  aims 

This  initiative  is  part  of  the  renewed  Lisbon  strategy,  the  aim  of  which  is,  in 
particular,  to  create  more  higher-quality  jobs  in  a  more  dynamic  and  competitive 
Europe.  It  adds  to  the  promotion  of  best  practice,  for  which  the  European  Union 
continues  to  provide  substantial  aid,  in  support  of  the  social  partners,  particularly 
with regard to the inclusion of issues surrounding the skills and mobility of workers, 
health  and  safety  at  work,  and  the  environment  in  the  European  Works  Councils’ 
activities. It is also part of the Commission’s ‘better regulation’ programme, in that it 
emphasises the need to adapt the legislation to take account of the new economic and 

OJ L 80, 23.3.2002, p. . 
Council  Directive  98/59/EC  of  20 July 1998  on  the  approximation  of  the  laws  of  the  Member  States 
relating to collective redundancies – OJ L 225, 12.8.1998, p. 16. 
Council  Directive  2001/23/EC  of  12  March  2001  on  the  approximation  of  the  laws  of  the  Member 
States  relating  to  the  safeguarding  of  employees'  rights  in  the  event  of  transfers  of  undertakings, 
businesses or parts of undertakings or businesses – OJ L 82, 22.3.2001, p. 16. 
Council  Directive  2001/86/EC  of  8 October 2001  supplementing  the  Statute  for  a  European  company 
with regard to the involvement of employees, OJ L 294, 10.11.2001, p. 22. 
Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative 
Society with regard to the involvement of employees, OJ L 207, 18.8.2003, p. 25. 
Commission  Communication  A  Renewed  Social  Agenda:  Opportunities,  access  and  solidarity  in  21st 
century Europe, COM(2008)xxx, 2008 

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9. 

social  requirements,  particularly  those  concerning  the  increase  in  the  number  and 
scale of transnational restructuring operations.  

This  initiative  intends  to  respect  the  fundamental  rights  and  observe  the  principles 
recognised  in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European 
Union.  In  particular,  this  initiative  seeks  to  ensure  full  respect  for  the  right  of 
employees or their representatives to be guaranteed information and consultation in 
good time at the appropriate levels in the cases and under the conditions provided for 
by  Community  law  and  national  laws  and  practices,  described  in  Article  27  of  the 
said Charter. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT  

Consultation of interested parties  

10. 

11. 

12. 

13. 

12 

13 

14 

Under the terms of Article 138 of the Treaty, the Commission consulted management 
and labour at Community level on the possible direction of Community action in this 
area12.  Trade  union  organisations  came  out  in  favour  of  a  rapid  revision  of  the 
Directive, while employers’ organisations were against such a revision. Management 
and  labour  then  jointly  defined  best  practices  regarding  European  Works  Councils 
and  the  Commission  then  again  consulted  with  them  with  regard  to  the  promotion 
and  implementation  of  those  practices13.  Following  these  consultations,  the 
Commission  considered  that  Community  action  was  advisable  and  consulted 
management and labour at Community level on the content of the planned proposal, 
pursuant to Article 138(3) of the Treaty14. 

In response to the latter consultation, the employers’ organisations BusinessEurope, 
CEEP and UEAPME have declared that they are ready to open negotiations within 
the  context  of  the  European  Social  Dialogue.  The  European  Trade  Union 
Confederation felt that such negotiations were unrealistic. Following a fresh appeal 
to European management and labour, the Commission has noted that no negotiations 
have  been  held  under  Article  138(4)  of  the  Treaty  and  has  decided  to  submit  this 
proposal, given the established need to review the legislation in force. 

BusinessEurope and UEAPME, having prepared themselves to negotiate, submitted 
no opinion on the content of the initiative planned. The CEEP and the organisations 
consulted  which  represent  employers  in  the  fields  of  hotels/restaurants (HOTREC), 
banking  (EBF)  and  trade  (EUROCOMMERCE)  have  stated  their  opinions  on  the 
changes  envisaged,  as  have  the  Association  française  des  entreprises  privées 
(AFEP),  the  American  Chamber  of  Commerce  to  the  European  Union  (AmCham 
EU) and an individual undertaking. 

The  European  Trade  Union  Confederation  (ETUC)  and  the  European  Managers’ 
Network  (CEC)  have  proposed  some  adaptations  to  the  proposals  submitted  for 
consultation,  as  well  as  some  amendments  to  the  Directive.  The  Confederation  of 
Nordic Bank, Finance and Insurance Unions (NFU Finance) Finansforbündet and the 

European Works Councils: Fully realising their potential for employee involvement for the benefit of 
enterprises  and  their  staff  -  First  phase  of  consultation  of  the  Community  cross-industry  and  sectoral 
social  partners  in  the  framework  of  the  review  of  the  Directive  on  European  Works  Councils, 
20 April 2004. 
At  the  same  time  as  those  for  restructuring,  as  part  of  the  Communication  Restructuring  and 
employment COM(2005)120, 31.3.2005. 
C(2008) 660, 20.2.2008. 

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14. 

employees’  representatives  from  six  undertakings  also  took  the  opportunity  to  give 
their opinion. 

The  responses  of  the  organisations  consulted  and  the  contributions  received  have 
been examined in detail and taken account of in the impact assessment process, the 
report on which is included with the proposal. The examination carried out has led 
the Commission to modify certain proposals envisaged in the consultation document, 
for  example  in  relation  to  the  provisions  aimed  at  effective  decision-making  in 
undertakings, 
threshold  for 
representation, seeking balanced representation of employees, reinforcing the select 
committee  and  making  pre-Directive  agreements  more  secure  without  applying  the 
adaptation clause. 

transnational  scope, 

introducing  a 

limiting 

the 

Collection and use of expertise 

15. 

In  addition  to  the  assessments  on  European  Works  Councils  carried  out  by  social 
operators  or  by  academia,  the  Commission  has  asked  external  consultants  to  carry 
out a study to measure the potential impact of various possible options, particularly 
with regard to costs. This study was carried out in 2008 and included a survey of a 
random sample of approximately 10% of active European Works Councils. Both the 
management  and  the  employees’  representatives  of  these  managements  were 
questioned. 

16. 

The  results  of  this  study  were  incorporated  in  the  impact  assessment  and  will  be 
made available to the public on the Commission’s website. 

Impact assessment 

17. 

18. 

19. 

20. 

An  impact  assessment  was  carried  out.  It  made  it  possible  to  precisely  identify  the 
problem  which  action  by  the  European  Union  should  address  and  to  formulate  the 
four  objectives,  i.e.,  ensuring  rights  are  effective,  increasing  the  proportion  of 
European Works Councils established, legal certainty, and the linkage of Community 
legislative instruments on information and consultation of employees, as well as the 
operational  objectives  of  such  action,  and  to  examine  three  options  for  achieving 
them. 

The  first  option  is  for  the  European  Union  to  take  no  new  action.  This  would  not 
enable the objectives described to be reached, 

The  second  option  is  a  non-regulatory  approach  and  additional  promotion  of  best 
practice. This includes increased action on communication, followed if necessary by 
a  proposal  to  boost  the  financial  support  for  the  promotion  of  best  practice  and  a 
recommendation  on  setting  up  and  operating  a  European  Works  Council.  This  has 
several  social  and  economic  advantages,  without  creating  additional  expenses  for 
undertakings.  However,  it  can  only  address  the  objectives  of  legal  certainty  and 
linkage of Community law to a limited extent. 

the  definitions  of 

Reviewing  the  legislation  in  force  is  the  third  option.  It  includes  amendments  to 
Directive  94/45/EC,  mainly  concerning 
information  and 
consultation, the transnational scope of European Works Councils, adaptations to the 
subsidiary  requirements,  the  training  of  employees’  representatives  and  the  role  of 
unions.  Except  for  two  sub-options  concerning  lowering  the  staff  threshold  to  500 
employees  and  setting  up  a  mechanism  to  record  the  agreements,  this  option  is  the 
most suited to achieving the stated objectives, although it places additional costs on 
undertakings.  However,  it  has  only  a  limited  capacity  to  focus  the  attention  of 
operators on improving the transnational information and consultation of employees. 

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21. 

The impact assessment concludes that launching a review of the legislation in force 
in  conjunction  with  non-regulatory  action  on  communication  and  promotion  is  the 
most appropriate. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

22. 

The proposal for recasting comprises the following substantive changes to Directive 
94/45/EC:  

– 

– 

– 

– 

– 

– 

the  introduction  of  general  principles  regarding  the  arrangements  for 
transnational information and consultation of employees, the introduction of a 
definition  of  information,  and  making  the  definition  of  consultation  more 
precise; 

the  limitation  of  the  competence  of  European  Works  Councils  to  issues  of  a 
transnational  nature  and  the  introduction  of  a  link,  defined  as  a  priority  by 
agreement  within  the  undertaking,  between  the  national  and  transnational 
levels of information and consultation of employees; 

clarification of the role of employees’ representatives and of the opportunity to 
benefit  from  training,  as  well  as  recognition  of  the  role  of  trade  union 
organisations in relation to employees’ representatives; 

clarification  of  the  responsibilities  regarding  the  provision  of  information 
enabling  the  commencement  of  negotiations  and  rules  on  negotiating 
agreements to set up new European Works Councils; 

adaptation  of  the  subsidiary  requirements  applicable  in  the  absence  of  an 
agreement to developing needs; 

introduction  of  an  adaptation  clause  applicable  to  agreements  governing 
European  Works  Councils  if  the  structure  of  the  undertaking  or  group  of 
undertakings changes and, unless the adaptation clause is applied, continuation 
of the agreements in force. 

Legal basis 

23. 

The  basis  for  this  legislative  proposal  is  Article  137  of  the  Treaty  which  stipulates 
that the Community is to support and complement the action taken by Member States 
in the field of information and consultation of employees. 

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Subsidiarity principle 

24. 

The objectives of the action envisaged cannot be achieved adequately by the Member 
States, in so far as this involves amending a Community legal act in force governing 
provisions of a transnational nature. The European Union is more up to the task of 
amending such an act and providing for its links with other Community and national 
provisions in this field. In particular, only Community action can introduce changes 
to  the  setting  up  and  operation  of  European  Works  Councils:  such  changes  require 
consistent  and  coordinated  amendments  to  the  legislation  of  the  Member  States, 
since  the  application  of  the  law  of  one  Member  State  affects  the  rights  and 
obligations  of  undertakings  and  employees  in  other  Member  States.  However,  the 
proposal  leaves  to  the  Member  States  the  role  of  adapting  the  provisions  to  the 
national  industrial  relations  systems  and  legal  systems,  particularly  with  regard  to 
determining the arrangements for designating or electing employees’ representatives, 
their protection and determining appropriate penalties. 

Proportionality principle 

25. 

Through  the  priority  it  gives  to  negotiation  at  the  level  of  undertakings,  without 
minimum  rules,  the  Directive  is  extremely  flexible  as  concerns  adapting  the 
operation of the European Works Council to the specific conditions in which it takes 
action,  and  in  its  choice  of  concrete  arrangements  and  the  related  duties.  The 
proposal  preserves  this  flexibility  while  clarifying  the  framework  in  which  it 
operates.  By  keeping  the  application  threshold  at  1 000  employees,  the  proposal 
avoids imposing administrative, financial and legal constraints in a way which would 
hold back the creation and development of small and medium-sized enterprises. 

Choice of instruments 

26. 

4. 

27. 

The review of the legislation in force, which can only be carried out via a directive, 
is complementary to the non-regulatory approach and the promotion of best practice 
carried out in support of management and labour. 

BUDGETARY IMPLICATIONS 

The proposal has no implications for the Community budget. 

5. 

ADDITIONAL INFORMATION 

Simplification and reduction of administrative costs 

28. 

29. 

A  number  of  substantial  changes  are  to  be  made  to  Directive  94/45/EC15.  In  the 
interests of clarity, the proposal recasts that Directive. 

The  proposal  contributes  towards  linking  Directive  94/45/EC  with  other  directives 
concerning the information and consultation of employees, in particular by aligning 
the  definitions,  determining  the  scope  of  the  European  Works  Councils  and 
incorporating  the  arrangements  for  the  links  between  the  levels  of  information  and 
consultation. It thus contributes to a simplification of the legislative framework. 

Review/revision/sunset clause 

15 

OJ  L  254,  30.9.1994,  p.  64. Directive  as  last  amended  by  Directive  2006/109/EC  (OJ  L  363, 
20.12.2006, p. 416). 

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30. 

The proposal includes a review clause under which review is due five years after the 
time-limit for transposition. 

Correlation table 

31. 

The  Member  States  are  required  to  communicate  to  the  Commission  the  text  of 
national provisions transposing the Directive, as well as a correlation table between 
those provisions and the Directive. 

European Economic Area 

32. 

The proposed text is relevant to the EEA and should therefore extend to the EEA. 

Detailed explanation of the proposal 

33. 

34. 

35. 

36. 

The following substantive changes have been made to Articles 1, 2, 4, 5, 6, 10, 11, 
12, 13 and 14 of Directive 94/45/EC and to its Annex. Articles 3 and 9 of Directive 
94/45/EC are slightly adapted while Articles 7 and 8 are unchanged. 

General  principles  and  concepts  of  information  and  consultation.  Article  1  of 
Directive  94/45/EC  stipulates  that  the  arrangements  for  informing  and  consulting 
employees  must  follow  the  general  principle  of  effectiveness.  Article  2  adds  a 
definition of information and brings the definition of consultation into line with that 
of  more  recent  directives,  including  the  concepts  of  time,  fashion  and  content 
appropriate to the information and consultation. 

Transnational competence of the European Works Council. Article 1 establishes the 
principle of the relevant level according to the subject under discussion. To achieve 
this,  the  competence  of  the  European  Works  Council  is  limited  to  transnational 
issues, and the determination of whether an issue is transnational is transferred from 
the  current  subsidiary  requirements  to  Article  1,  so  that  it  can  be  applied  to  the 
European  Works  Councils  established  by  agreement.  It  is  specified  as  relating  in 
particular to the potential effects of an issue in at least two Member States. 

Links  between  the  levels  of  information  and  consultation  of  employees.  Article  12 
introduces  the  principle  of  a  link  between  the  national  and  transnational  levels  of 
information and consultation of the employees with due regard for the competences 
and  areas  of  action  of  the  representative  bodies.  The  arrangements  for  this  link  are 
defined  by  the  agreement  concluded  pursuant  to  Article  6,  which  now  covers  this 
matter. Where there are no such arrangements and where decisions likely to lead to 
substantial  changes  in  work  organisation  or  contractual  relations  are  envisaged,  the 
process would have to start in parallel at national and European level. Since certain 
national  legislation  may  have  to  be  adapted  to  ensure  that  the  European  Works 
Council can, where applicable, receive information earlier or at the same time as the 
national bodies, a clause has been added to stipulate that there must be no reduction 
in the general level of protection of employees. The titles of the directives relating to 
collective  redundancies  and  to  transfers  of  undertakings  have  been  updated  and  a 
reference to the framework Directive 2002/14/EC has been incorporated. 

37. 

Role  and  capacity  of  employees'  representatives.  The  obligation  on  the  employees' 
representatives to report to the employees that they represent has been moved from 
the subsidiary requirements of the Directive to Article 10, which thus deals with the 
role  of  the  employees'  representatives  and  their  protection.  The  competence  of  the 
members  representing  the  employees  on  the  European  Works  Council  to  represent 
the  employees  of  the  undertaking  or  group  of  undertakings  is  established.  The 

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38. 

39. 

40. 

41 

42. 

possibility  for  employees'  representatives'  to  benefit  from  training  without  loss  of 
salary is clarified. 

Opening and process of negotiations. In accordance with the interpretation principles 
of the European Court of Justice16, Article 5 clarifies the responsibility of the local 
managements to provide the information allowing negotiations to be opened with a 
view  to  setting  up  new  European  Works  Councils.  In  order  to  resolve  legal 
uncertainty  and  simplify  the  composition  of  the  special  negotiating  body,  it  is 
modified to one representative per 10% portion of the employees in a Member State 
in which at least 50 employees are employed. The right of employees' representatives 
to meet without the employer being present is clarified. 

Role of trade union and employers' organisations Article 5 introduces the obligation 
to inform the trade union and employers' organisations of the start of negotiations on 
setting  up  a  European  Works  Council  and  explicitly  mentions  the  trade  union 
organisations  among  the  experts  on  whom  employees'  representatives  may  call  for 
assistance in the negotiations. 

Content  of  the  subsidiary  requirements  (which  apply  in  the  absence  of  an 
agreement).  The  Annex  draws  a  distinction  between  fields  where  information  is 
required  and  those  where  consultation  is  required,  and  introduces  the  possibility  of 
obtaining  a  response,  and  the  reasons  for  that  response,  to  any  opinions  expressed. 
With  a  view  to  anticipating  such  eventualities,  the  exceptional  circumstances 
requiring information and opening the possibility of a select committee meeting are 
extended to include circumstances in which decisions are envisaged that are likely to 
affect the employees' interests to a considerable extent. In order to enable the select 
committee  to  perform  this  more  important  function,  its  maximum  number  of 
members  is  set  at  five  and  a  provision  is  added  stipulating  that  the  conditions 
enabling it to exercise its activities on a regular basis must be met. 

Adaptation  clause  and  agreements  in  force.  The  agreements  pursuant  to  Article  6 
must  include  provisions  for  amendments  and  renegotiation.  Where  the  structure  of 
the undertaking or group of undertakings changes significantly, Article 13 provides 
for  the  agreements  in  force  to  be  adapted  in  accordance  with  the  provisions  of  the 
applicable agreement or, by default and where a request is made, in accordance with 
the negotiation procedure for a new agreement in which the members of the existing 
European  Works  Council(s)  are  to  be  associated.  These  European  Works  Councils 
will continue to operate, possibly with adaptations, until a new agreement is reached. 
They  will  then  be  dissolved  and  the  agreements  terminated.  Except  where  this 
adaptation clause applies, the agreements in force concluded in anticipation will still 
not fall under the provisions of the Directive and there will be no general obligation 
to renegotiate those concluded pursuant to Article 6. 

Other  provisions.  In  Article  6,  the  establishment  and  the  operation  of  a  select 
committee  are,  where  applicable,  part  of  the  content  of  the  agreement.  Article  15 
provides for a review clause under which review is due five years after the time-limit 
for transposition. In the Annex, the composition of the European Works Council set 
up in the absence of an agreement is aligned with the new composition of the special 
negotiating body. 

16 

See point 5 above. 

EN 

9 

   EN 

                                                 
(cid:208) 94/45/EC (adapted) 

2008/0141 (COD) 

Proposal for a 

⌦ DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE ⌫ COUNCIL 

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 

 ⌦ (Text with EEA relevance) ⌫ 

⌦ THE  EUROPEAN  PARLIAMENT  AND ⌫  THE  COUNCIL  OF  THE  EUROPEAN 
UNION, 

Having  regard  to  the  Agreement  on  social  policy  annexed  to  Protocol  14  on  social  policy 
annexed to the Treaty establishing the European Community, and in particular Article 2 (2) 
thereof, 

⌦ Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article 137 thereof, ⌫ 
Having regard to the proposal from the Commission ⌦ 17, ⌫ 
Having regard to the opinion of the European Economic and Social Committee ⌦ 18 ⌫ , 
⌦ Having regard to the opinion of the Committee of the Regions19, ⌫ 

Acting  in  accordance  with  the  procedure  referred  to  in  Article  189c  ⌦ 251  of  the 
Treaty ⌫⌦ 20 ⌫ , 

⌦ Whereas: ⌫ 

(cid:216) new 

(1) 

A number of substantial changes21 should be made to 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 employees22. In the interests of clarity, that 
Directive should be recast. 

17 
18 
19 
20 
21 
22 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
See Annex II, part A. 
OJ  L  254,  30.9.1994,  p.  64. Directive  as  last  amended  by  Directive  2006/109/EC  (OJ  L  363, 
20.12.2006, p. 416). 

EN 

10 

   EN 

 
 
 
                                                 
(cid:208) 94/45/EC recital 1 (new) 

On the basis of the Protocol on Social Policy annexed to the Treaty establishing the European 
Community,  the  Kingdom  of  Belgium,  the  Kingdom  of  Denmark,  the  Federal  Republic  of 
Germany,  the  Hellenic  Republic,  the  Kingdom  of  Spain,  the  French  Republic,  Ireland,  the 
Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the 
Portuguese  Republic  (hereinafter  referred  to  as  ‘the  Member  States’),  desirous  of 
implementing the Social Charter of 1989, have adopted an Agreement on Social Policy;  

Article 2 (2) of the said Agreement authorizes the Council to adopt minimum requirements by 
means of directives; 

(cid:208) 94/45/EC recital 2 (adapted) 

(cid:216) new 

(2) 

(3) 

Pursuant  to  Article  15  of  Directive  94/45/EC,  the  Commission  has,  in  consultation 
with the Member States and with management and labour at European level, reviewed 
the operation of the said Directive and, in particular, examined whether the workforce 
size thresholds were appropriate, with a view to proposing suitable amendments where 
necessary. 

Having consulted the Member States and management and labour at European level, 
the Commission submitted a report23 on the application of Directive 94/45/EC to the 
European Parliament and the Council.  

(cid:208) 94/45/EC recital 4 (adapted) 

Point 17 of the Community Charter of Fundamental Social Rights of Workers provides, inter 
alia,  that  information,  consultation  and  participation  for  workers  must  be  developed  along 
appropriate lines, taking account of the practices in force in different Member States; and that 
‘this  shall  apply  especially  in  companies  or  groups  of  companies  having  establishments  or 
companies in two or more Member States’; 

The  Council,  despite  the  existence  of  a  broad  consensus  among  the  majority  of  Member 
States,  was  unable  to  act  on  the  proposal  for  a  Council  Directive  on  the  establishment  of  a 
European Works Council in Community-scale undertakings or groups of undertakings for the 
purposes of informing and consulting employees24, as amended on 3 December 199125; 

(cid:208) 94/45/EC recital 5 (adapted) 

The Commission, pursuant to Article 3 (2) of the Agreement on Social Policy, has consulted 
management and labour at Community level on the possible direction of Community action 

(cid:208) 94/45/EC recital 6 (adapted) 

23 
24 
25 

COM(2000) 188, 4.4.2000. 
OJ No L 39, 15. 2. 1991, p. 10. 
OJ No L 336, 31. 12. 1991, p. 11. 

EN 

11 

   EN 

 
 
 
 
 
 
                                                 
on  the  informtion  and  consultation  of  workers  in  Community-scale  undertakings  and 
Community-scale groups of undertakings. 

The  Commission,  considering  after  this  consultation  that  Community  action  was  advisable, 
has again consulted management and labour on the content of the planned proposal, pursuant 
to  Article  3  (3)  of  the  said  Agreement,  and  management  and  labour  have  presented  their 
opinions to the Commission. 

(cid:208) 94/45/EC recital 7 (adapted) 

Following this second phase of consultation, management and labour have not informed the 
Commission  of  their  wish  to  initiate  the  process  which  might  lead  to  the  conclusion  of  an 
agreement, as provided for in Article 4 of the Agreement. 

(cid:208) 94/45/EC recital 8 (adapted) 

(cid:216) new 

(4) 

(5) 

(6) 

(7) 

Pursuant to Article 138(2) of the Treaty, the Commission consulted management and 
labour at Community level on the possible direction of Community action in this area. 

Following  this  consultation,  the  Commission  considered  that  Community  action  was 
advisable  and  again  consulted  management  and  labour  at  Community  level  on  the 
content of the planned proposal, pursuant to Article 138(3) of the Treaty. 

Following  this  second  phase  of  consultation,  management  and  labour  have  not 
informed the Commission of their shared wish to initiate the process which might lead 
to the conclusion of an agreement, as provided for in Article 138(4) of the Agreement. 

It is necessary to modernise Community legislation on transnational information and 
consultation  of  employees  with  a  view  to  ensuring  the  effectiveness  of  employees’ 
transnational  information  and  consultation  rights,  increasing  the  proportion  of 
European  Works  Councils  established,  resolving  the  problems  encountered  in  the 
practical application of Directive 94/45/EC and remedying the lack of legal certainty 
resulting from some of its provisions or the absence of certain provisions, and ensuring 
that Community legislative instruments on information and consultation of employees 
are better linked. 

(8) 

Pursuant  to  Article  1  of  the  Agreement  ⌦ 136  of  the  Treaty ⌫,  one  particular 
objective  of  the  Community  and  the  Member  States  is  to  promote  dialogue  between 
management and labour.  

(cid:208) 94/45/EC recital 3 (adapted) 

(cid:216) new 

(9) 

This  Directive  is  part  of  the  Community  framework  intended  to  support  and 
complement  the  action  taken  by  Member  States  in  the  field  of  information  and 
consultation of employees. This framework should keep to a minimum the burden on 
undertakings  or  establishments  while  ensuring  the  effective  exercise  of  the  rights 
granted. 

EN 

12 

   EN 

 
 
 
 
 
(cid:208) 94/45/EC recital 9 

(10)  The  functioning  of  the  internal  market  involves  a  process  of  concentrations  of 
undertakings,  cross-border  mergers,  take-overs,  joint  ventures  and,  consequently,  a 
transnationalisation of undertakings and groups of undertakings. If economic activities 
are  to  develop  in  a  harmonious  fashion,  undertakings  and  groups  of  undertakings 
operating in two or more Member States must inform and consult the representatives 
of those of their employees that are affected by their decisions. 

(cid:208) 94/45/EC recital 10 

(11)  Procedures  for  informing  and  consulting  employees  as  embodied  in  legislation  or 
practice in the Member States are often not geared to the transnational structure of the 
entity  which  takes  the  decisions  affecting  those  employees.  This  may  lead  to  the 
unequal  treatment  of  employees  affected  by  decisions  within  one  and  the  same 
undertaking or group of undertakings. 

(12)  Appropriate provisions must be adopted to ensure that the employees of Community-
scale  undertakings  ⌦ or  Community-scale  groups  of  undertakings ⌫  are  properly 
informed and consulted when decisions which affect them are taken in a Member State 
other than that in which they are employed. 

(cid:208) 94/45/EC recital 11 (adapted) 

(13) 

In  order  to  guarantee  that  the  employees  of  undertakings  or  groups  of  undertakings 
operating  in  two  or  more  Member  States  are  properly  informed  and  consulted,  it  is 
necessary to set up European Works Councils or to create other suitable procedures for 
the transnational information and consultation of employees. 

(cid:208) 94/45/EC recital 12 

(cid:216) new 

(14)  The  arrangements  for  informing  and  consulting  employees  need  to  be  defined  and 
implemented  in  such  a  way  as  to  ensure  their  effectiveness  with  regard  to  the 
provisions  of  this  Directive.  To  achieve  this,  information  and  consultation  of  the 
European  Works  Council  should  make  it  possible  to  give  an  opinion  to  the 
undertaking in a timely fashion, without calling into question undertakings’ ability to 
adapt.  Only  dialogue  at  the  level  where  directions  are  prepared  and  effective 
involvement  of  employees’  representatives  are  capable  of  meeting  the  need  to 
anticipate and accompany change. 

(15)  Workers and their representatives must be guaranteed information and consultation at 
the  relevant  level  of  management  and  representation,  according  to  the  subject  under 
discussion. To achieve this, the competence and scope of action of a European Works 
Council must be differentiated from that of national representative bodies and must be 
limited to transnational matters. 

(16)  The transnational character of a matter should be determined by taking account of both 
the scope of its potential effects, and the level of management and representation that 

EN 

13 

   EN 

 
 
 
 
 
it involves. For this purpose, matters which concern the entire undertaking or group or 
at least two Member States are considered to be transnational. 

(17) 

It is necessary to have a definition of the concept of controlling undertaking relating 
solely  to  this  Directive  and  not  prejudging  definitions  of  the  concepts  of  group  or 
control which might be adopted in texts to be drafted in the future ⌦ in other acts ⌫. 

(cid:208) 94/45/EC recital 13 (adapted) 

(cid:208) 94/45/EC recital 14 

(18)  The  mechanisms  for  informing  and  consulting  employees  in  such  undertakings  or 
groups  must  encompass  all  of  the  establishments  or,  as  the  case  may  be,  the  group's 
undertakings located within the Member States, regardless of whether the undertaking 
or the group's controlling undertaking has its central management inside or outside the 
territory of the Member States. 

(cid:208) 94/45/EC recital 15 

(19) 

In accordance with the principle of autonomy of the parties, it is for the representatives 
of  employees  and  the  management  of  the  undertaking  or  the  group's  controlling 
undertaking to determine by agreement the nature, composition, the function, mode of 
operation,  procedures  and  financial  resources  of  European  Works  Councils  or  other 
information  and  consultation  procedures  so  as  to  suit  their  own  particular 
circumstances. 

(20) 

In  accordance  with  the  principle  of  subsidiarity,  it  is  for  the  Member  States  to 
determine who the employees' representatives are and in particular to provide, if they 
consider  appropriate,  for  a  balanced  representation  of  different  categories  of 
employees. 

(cid:208) 94/45/EC recital 16 

(cid:216) new 

(21) 

It is necessary to clarify the concepts of information and consultation of employees, in 
line with the definitions in the most recent directives on this subject and those which 
apply  within  a  national  framework,  with  the  triple  objective  of  reinforcing  the 
effectiveness  of  the  dialogue  at  transnational  level,  permitting  suitable  linkage 
between  the  national  and  transnational  levels  of  the  dialogue  and  ensuring  the  legal 
certainty required for the application of this Directive. 

(22)  The  definition  of  ‘information’  needs  to  take  account  of  the  goal  of  allowing 
employees' representatives to carry out an appropriate examination, which implies that 
the information be provided at such time, in such fashion and with such content as are 
appropriate. 

(23)  The definition of ‘consultation’ needs to take account of the goal of allowing for the 
potential  expression  of  an  opinion  which  will  be  useful  to  the  decision-making 
process,  which  implies  that  the  consultation  must  take  place  at  such  time,  in  such 
fashion and with such content as are appropriate. 

EN 

14 

   EN 

 
 
 
 
 
(cid:208) 94/45/EC recital 22 

(24)  The  information  and  consultation  provisions  laid  down  in  this  Directive  must  be 
implemented in the case of an undertaking or a group's controlling undertaking which 
has  its  central  management  outside  the  territory  of  the  Member  States  by  its 
representative agent, to be designated if necessary, in one of the Member States or, in 
the  absence  of  such  an  agent,  by  the  establishment  or  controlled  undertaking 
employing the greatest number of employees in the Member States. 

(cid:216) new 

(25)  The responsibility of undertakings or groups of undertakings in the transmission of the 
information  required  to  commence  negotiations  must  be  specified  in  a  way  that 
enables  employees  to  determine  whether  the  undertaking  or  group  of  undertakings 
where  they  work  is  a  Community-scale  undertaking  or  group  of  undertakings  and  to 
make the necessary contacts to draw up a request to commence negotiations. 

(26)  The  special  negotiating  body  must  represent  employees  from  the  various  Member 
States  in  a  balanced  fashion.  Employees’  representatives  must  be  able  to  cooperate 
together to define their positions in the negotiations with the central management. 

(27)  Recognition  must  be  given  to  the  role  which  trade  union  organisations  can  play  in 
negotiating and renegotiating the constituent agreements of European Works Councils, 
providing support to employees’ representatives who express such a need. In order to 
enable  them  to  monitor  the  establishment  of  new  European  Works  Councils  and 
promote  best  practice,  trade  union  and  employers'  organisations  may  be  informed  of 
the commencement of negotiations.  

(28)  The  agreements  governing  the  establishment  and  operation  of  European  Works 
Councils  must  include  the  methods  for  making  modifications  thereto,  terminating 
them  or  renegotiating  them  when  necessary,  particularly  where  the  make-up  or 
structure of the undertaking or group of undertakings is modified.  

(29)  Such  agreements  must  lay  down  the  arrangements  for  linking  the  national  and 
transnational levels of information and consultation of employees appropriate for the 
particular  conditions  of  the  undertaking  or  group  of  undertakings.  The  arrangements 
must be defined in such a way that they respect the competences and areas of action of 
the  representation  bodies,  in  particular  with  regard  to  anticipating  and  managing 
change. 

(30)  These  agreements  must  provide  for  the  establishment  and  operation  of  a  select 
committee  in  order  to  permit  coordination  and  greater  effectiveness  of  the  regular 
activities of the European Works Council, together with information and consultation 
at the earliest opportunity where exceptional circumstances arise.  

(31)  Employees' representatives may decide not to seek the setting-up of a European Works 
Council or the parties concerned may decide on other procedures for the transnational 
information and consultation of employees. 

(cid:208) 94/45/EC recital 18 

EN 

15 

   EN 

 
 
 
(32)  However,  pProvision  should  be  made  for  certain  subsidiary  requirements  to  apply 
should  the  parties  so  decide  or  in  the  event  of  the  central  management  refusing  to 
initiate negotiations or in the absence of agreement subsequent to such negotiations. 

(cid:208) 94/45/EC recital 17 (adapted) 

(33) 

In  order  to  play  their  representative  role  to  the  full  and  ensure  that  the  European 
Works Council is useful, employees’ representatives must report to the employees that 
they represent and must be able to receive the training they require.  

(cid:216) new 

(cid:208) 94/45/EC recital 21 

(34)  Provision  should  be  made  for  the  employees'  representatives  acting  within  the 
framework  of  the  Directive  to  enjoy,  when  exercising  their  functions,  the  same 
protection  and  guarantees  similar  to  those  provided  to  employees'  representatives  by 
the legislation and/or practice of the country of employment. They must not be subject 
to  any  discrimination  as  a  result  of  the  lawful  exercise  of  their  activities  and  must 
enjoy adequate protection as regards dismissal and other sanctions. 

(35)  The Member States must take appropriate measures in the event of failure to comply 

with the obligations laid down in this Directive. 

(cid:208) 94/45/EC recital 24 

(cid:216) new 

(36)  For  reasons  of  effectiveness,  consistency  and  legal  certainty,  there  is  a  need  for 
linkage  between  the  Directives  and  the  levels  of  information  and  consultation  of 
employees  established  by  Community  and  national  law.  Priority  must  be  given  to 
negotiations  on  these  procedures  for  linking  information  within  each  undertaking  or 
group of undertakings. If there are no agreements on this subject and where decisions 
likely to lead to substantial changes in work organisation or contractual relations are 
envisaged,  the  process  must  start  in  parallel  at  both  national  and  European  level  in 
such a way that it respects the competences and areas of action of the representation 
bodies.  Opinions  expressed  by  the  European  Works  Council  should  be  without 
prejudice  to  the  competence  of  the  central  management  to  carry  out  the  necessary 
consultations  in  accordance  with  the  schedules  provided  for  in  national  legislation. 
National  legislation  may  have  to  be  adapted  to  ensure  that  the  European  Works 
Council can, where applicable, receive information earlier or at the same time as the 
national bodies, but must not reduce the general level of protection of employees.  

(37)  This  Directive  should  be  without  prejudice  to  the  information  and  consultation 
procedures  referred  to  in  Directive  2002/14/EC  of  the  European  Parliament  and  of 

(cid:216) new 

EN 

16 

   EN 

 
 
 
 
 
 
Council  of  11  March  2002  establishing  a  general  framework  for  informing  and 
consulting  employees  in  the  European  Community26  and  to  the  specific  procedures 
referred  to  in  Article  2  of  Council  Directive  98/59/EC  of  20 July 1998  on  the 
approximation of the laws of the Member States relating to collective redundancies27 
and  Article  7  of  Council  Directive  2001/23/EC  of  12  March  2001  on  the 
approximation  of  the  laws  of  the  Member  States  relating  to  the  safeguarding  of 
employees'  rights  in  the  event  of  transfers  of  undertakings,  businesses  or  parts  of 
undertakings or businesses28. 

(38)  Special treatment should be accorded to Community-scale undertakings and groups of 
undertakings  in  which  there  exists ⌦ existed ⌫,  at  the  time  when  this  Directive  is 
brought  into  effect  ⌦ on  22 September 1996 ⌫,  an  agreement,  covering  the  entire 
workforce, providing for the transnational information and consultation of employees. 

(cid:208) 94/45/EC recital 23 (adapted) 

(cid:216) new 

(39)  Where the structure of the undertaking or group of undertakings changes significantly, 
for  example,  due  to  a  merger,  acquisition  or  division,  the  existing  European  Works 
Council(s) must be adapted. This adaptation must be carried out as a priority pursuant 
to  the  clauses  of  the  applicable  agreement,  if  such  clauses  permit  the  required 
adaptation to be carried out. If this is not the case and a request establishing the need is 
made, negotiations, in which the members of the existing European Works Council(s) 
must  be  involved,  will  commence  on  a  new  agreement.  In  order  to  permit  the 
information and consultation of employees during the often decisive period when the 
structure is changed, the existing European Works Council(s) must be able to continue 
to operate, possibly with adaptations, until a new agreement is concluded. Once a new 
agreement  is  signed,  the  previously  established  councils  must  be  dissolved,  and  the 
agreements  instituting  them  must  be  terminated,  regardless  of  their  provisions  on 
validity or termination. 

(40)  Unless this adaptation clause is applied, the agreements in force should be allowed to 
continue in order to avoid their obligatory renegotiation when this would be pointless. 
long  as  agreements  concluded  prior  to 
Provision  should  be  made 
22 September 1996  under  Article  13  of  Directive  94/45/EC  remain  in  force,  they 
should  continue  not  to  be  subject  to  this  Directive,  and  there  should  be  no  general 
obligation  to  renegotiate  agreements  concluded  pursuant  to  Article  6  of  Directive 
94/45/EC prior to the entry into force of this Directive.  

that  as 

(41)  Without  prejudice  to  the  possibility  of  the  parties  deciding  otherwise,  the  European 
Works Council set up in the absence of agreement between the parties must, in order 
to  fulfil  the  objective  of  this  Directive,  be  kept  informed  and  consulted  on  the 
activities of the undertaking or group of undertakings so that it may assess the possible 

(cid:208) 94/45/EC recital 19 

26 
27 
28 

OJ L 80, 23.3.2002, p. 29. 
OJ L 225, 12.8.1998, p. 16. 
OJ L 82, 22.3.2001, p. 16. 

EN 

17 

   EN 

 
 
 
                                                 
impact on employees' interests in at least two different Member States. To that end, the 
undertaking  or  controlling  undertaking  must  be  required  to  communicate  to  the 
employees'  appointed  representatives  general  information  concerning  the  interests  of 
employees and information relating more specifically to those aspects of the activities 
of  the  undertaking  or  group  of  undertakings  which  affect  employees'  interests.  The 
European Works Council must be able to deliver an opinion at the end of that meeting. 

(42)  Certain decisions having a significant effect on the interests of employees must be the 
subject of information and consultation of the employees' appointed representatives as 
soon as possible. 

(cid:208) 94/45/EC recital 20 

(cid:216) new 

(43)  The  content  of  the  subsidiary  requirements  which  apply  in  the  absence  of  an 
agreement and serve as a reference in the negotiations must be clarified and adapted to 
developments  in  the  needs  and  practices  related  to  transnational  information  and 
consultation. A distinction should be made between fields where information must be 
provided and fields where the European Works Council must also be consulted, which 
involves  the  possibility  of  obtaining  a  response  and  the  reasons  for  that  response  to 
any  opinions  expressed.  To  enable  the  select  committee  to  play  the  necessary 
coordinating role and deal effectively with exceptional circumstances, such committee 
must be able to have up to five members and be able to consult regularly.  

(44)  Since  the  objectives  of  this  Directive,  namely  the  improvement  of  the  right  to 
information  and  to  consultation  of  employees  in  Community-scale  undertakings  and 
Community-scale  groups  of  undertakings,  cannot  be  sufficiently  achieved  by  the 
Member  States  and  can  therefore  be  better  achieved  at  Community  level,  the 
Community  may  adopt  measures,  in  accordance  with  the  principle  of  subsidiarity  as 
set out in Article 5 of the Treaty. In accordance with the principle of proportionality 
set  out  in  the  said  Article  of  the  Treaty,  this  Directive  does  not  go  beyond  what  is 
necessary to achieve these objectives. 

(45)  This Directive respects the fundamental rights and observes the principles recognised 
in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European  Union.  In 
particular, this Directive seeks to ensure full respect for the right of workers or their 
representatives  to  be  guaranteed  information  and  consultation  in  good  time  at  the 
appropriate  levels  in  the  cases  and  under  the  conditions  provided  for  by  Community 
law and national laws and practices (Article 27 of the Charter of Fundamental Rights 
of the European Union). 

(46)  The obligation to transpose this Directive into national law should be confined to those 
provisions  which  represent  a  substantive  change  as  compared  with  the  earlier 
Directives.  The  obligation  to  transpose  the  provisions  which  are  unchanged  arises 
under the earlier Directives. 

(47)  This  Directive  should  be  without  prejudice  to  the  obligations  of  the  Member  States 
relating to the time-limits set out in Annex II, Part B for transposition into national law 
and application of the Directives. 

EN 

18 

   EN 

 
 
⌦ HAVE ⌫ ADOPTED THIS DIRECTIVE: 

(cid:208) 94/45/EC (adapted) 

SECTION I 

GENERAL 

Article 1 

Objective 

1. The purpose of this Directive is to improve the right to information and to consultation of 
employees in Community-scale undertakings and Community-scale groups of undertakings. 

(cid:208) 94/45/EC (adapted) 
(cid:214) new 

2.  To  that  end,  a  European  Works  Council  or  a  procedure  for  informing  and  consulting 
employees shall be established in every Community-scale undertaking and every Community-
scale  group  of  undertakings,  where  requested  in  the  manner  laid  down  in  Article  5(1),  with 
the purpose of informing and consulting employees under the terms, in the manner and with 
the  effects  laid  down  in  this  Directive.  (cid:214) The  arrangements  for  informing  and  consulting 
employees shall be defined and implemented in such a way as to ensure the effectiveness of 
the  procedure  and  to  enable  the  undertaking  or  group  of  undertakings  to  take  decisions 
effectively.  

(cid:216) new 

3. Information and consultation of employees must occur at the relevant level of management 
and representation, according to the subject under discussion. To achieve this, the competence 
of the European Works Council and the scope of the information and consultation procedure 
for workers governed by this Directive shall be limited to transnational issues. 

4.  Matters  shall  be  considered  to  be  transnational  where  they  concern  the  Community-scale 
undertaking  or  Community-scale  group  of  undertakings  as  a  whole,  or  at  least  two 
undertakings or establishments of the undertaking or group situated in two different Member 
States. 

(cid:208) 94/45/EC 

35. Notwithstanding paragraph 2, where a Community-scale group of undertakings within the 
meaning  of  Article  2(1)(c)  comprises  one  or  more  undertakings  or  groups  of  undertakings 
which are Community-scale undertakings or Community-scale groups of undertakings within 
the meaning of Article 2(1)(a) or (c), a European Works Council shall be established at the 
level of the group unless the agreements referred to in Article 6 provide otherwise. 

46. Unless a wider scope is provided for in the agreements referred to in Article 6, the powers 
and competence of European Works Councils and the scope of information and consultation 
procedures established to achieve the purpose specified in paragraph 1 shall, in the case of a 
Community-scale undertaking, cover all the establishments located within the Member States 

EN 

19 

   EN 

 
 
 
 
and, in the case of a Community-scale group of undertakings, all group undertakings located 
within the Member States. 

57. Member States may provide that this Directive shall not apply to merchant navy crews. 

1. For the purposes of this Directive: 

Article 2 

Definitions 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

‘Community-scale undertaking’ means any undertaking with at least 1000 employees 
within the Member States and at least 150 employees in each of at least two Member 
States; 

‘group  of  undertakings’  means  a  controlling  undertaking  and  its  controlled 
undertakings; 

‘Community-scale  group  of  undertakings’  means  a  group  of  undertakings  with  the 
following characteristics: 

– 

– 

– 

at least 1000 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 150 employees in 
another Member State; 

‘employees'  representatives’  means  the  employees'  representatives  provided  for  by 
national law and/or practice; 

‘central  management’  means  the  central  management  of  the  Community-scale 
undertaking  or,  in  the  case  of  a  Community-scale  group  of  undertakings,  of  the 
controlling undertaking; 

(cid:216) new 

‘information’  means  transmission  of  data  by  the  employer  to  the  employees' 
representatives  in  order  to  enable  them  to  acquaint  themselves  with  the  subject 
matter and to examine it; information shall be given at such time, in such fashion and 
with  such  content  as  are  appropriate  to  enable  employees'  representatives,  in 
particular,  to  conduct  an  appropriate  study  and,  where  necessary,  prepare  for 
consultation; 

(cid:208) 94/45/EC (adapted) 
(cid:214) new 

(fg) 

‘consultation’  means  the  exchange  of  views  and  establishment  of  dialogue  ⌦ and 
exchange of views ⌫ between employees' representatives and central management 
or any more appropriate level of management (cid:214) , at such time, in such fashion and 
with  such  content  enables  employees'  representatives  to  express  an  opinion  on  the 
basis of the information provided and within a reasonable time to the competent body 
of the Community-scale undertaking or Community-scale group of undertakings ; 

EN 

20 

   EN 

 
 
 
(cid:208) 94/45/EC (adapted) 

gh) 

hi) 

‘European Works Council’ means the council established in accordance with Article 
1(2)  or  the  provisions  of  the  Annex,  with  the  purpose  of  informing  and  consulting 
employees; 

‘special  negotiating  body’  means  the  body  established  in  accordance  with  Article 
5(2)  to  negotiate  with  the  central  management  regarding  the  establishment  of  a 
European Works Council or a procedure for informing and consulting employees in 
accordance with Article 1(2). 

2. For the purposes of this Directive, the prescribed thresholds for the size of the workforce 
shall be based on the average number of employees, including part-time employees, employed 
during the previous two years calculated according to national legislation and/or practice. 

Article 3 

Definition of ‘controlling undertaking’ 

1. For the purposes of this Directive, ‘controlling undertaking’ means an undertaking which 
can exercise a dominant influence over another undertaking (‘the controlled undertaking’) by 
virtue, for example, of ownership, financial participation or the rules which govern it. 

2. The ability to exercise a dominant influence shall be presumed, without prejudice to proof 
to  the  contrary,  when ⌦ an  undertaking ⌫  ,  in  relation  to  another  undertaking  directly  or 
indirectly: 

(a) 

holds a majority of that undertaking's subscribed capital; 

or 

(b) 

controls a majority of the votes attached to that undertaking's issued share capital; 

or 

(c) 

can  appoint  more  than  half  of  the  members  of  that  undertaking's  administrative, 
management or supervisory body. 

3.  For  the  purposes  of  paragraph  2,  a  controlling  undertaking's  rights  as  regards  voting  and 
appointment  shall  include  the  rights  of  any  other  controlled  undertaking  and  those  of  any 
person or body acting in his or its own name but on behalf of the controlling undertaking or of 
any other controlled undertaking. 

(cid:208) 94/45/EC (adapted) 

4.  Notwithstanding  paragraphs  1  and  2,  an  undertaking  shall  not  be  deemed  to  be  a 
‘controlling undertaking’ with respect to another undertaking in which it has holdings where 
the  former  undertaking  is  a  company  referred  to  in  Article  3(5)(a)  or  (c)  of  Council 
Regulation 
1989 
⌦ 20 January 2004 ⌫ on the control of concentrations between undertakings29. 

(EEC)  No 4064/89  ⌦ 139/2004 ⌫ 

21  December 

of 

29 

OJ No L 395 24, 30. 12. 1989 29.1.2004, p. 1. 

EN 

21 

   EN 

 
 
 
 
                                                 
(cid:208) 94/45/EC 

5. A dominant influence shall not be presumed to be exercised solely by virtue of the fact that 
an office holder is exercising his functions, according to the law of a Member State relating to 
liquidation,  winding  up,  insolvency,  cessation  of  payments,  compositions  or  analogous 
proceedings. 

6.  The  law  applicable  in  order  to  determine  whether  an  undertaking  is  a  ‘controlling 
undertaking’ shall be the law of the Member State which governs that undertaking. 

Where the law governing that undertaking is not that of a Member State, the law applicable 
shall  be  the  law  of  the  Member  State  within  whose  territory  the  representative  of  the 
undertaking or, in the absence of such a representative, the central management of the group 
undertaking which employs the greatest number of employees is situated. 

7.  Where,  in  the  case  of  a  conflict  of  laws  in  the  application  of  paragraph  2,  two  or  more 
undertakings from a group satisfy one or more of the criteria laid down in that paragraph, the 
undertaking which satisfies the criterion laid down in point (c) thereof shall be regarded as the 
controlling  undertaking,  without  prejudice  to  proof  that  another  undertaking  is  able  to 
exercise a dominant influence. 

SECTION II 

ESTABLISHMENT OF A EUROPEAN WORKS COUNCIL OR AN 
EMPLOYEE INFORMATION AND CONSULTATION PROCEDURE 

Article 4 

Responsibility for the establishment of a European Works Council or an employee 
information and consultation procedure 

1.  The  central  management  shall  be  responsible  for  creating  the  conditions  and  means 
necessary for the setting-up of a European Works Council or an information and consultation 
procedure,  as  provided  for  in  Article  1(2),  in  a  Community-scale  undertaking  and  a 
Community-scale group of undertakings. 

2. Where the central management is not situated in a Member State, the central management's 
representative  agent  in  a  Member  State,  to  be  designated  if  necessary,  shall  take  on  the 
responsibility referred to in paragraph 1. 

In  the  absence  of  such  a  representative,  the  management  of  the  establishment  or  group 
undertaking employing the greatest number of employees in any one Member State shall take 
on the responsibility referred to in paragraph 1. 

3. For the purposes of this Directive, the representative or representatives or, in the absence of 
any such representatives, the management referred to in the second subparagraph of paragraph 
2, shall be regarded as the central management. 

4.  The  management  of  every  undertaking  belonging  to  the  Community-scale  group  of 
undertakings  and  the  central  management  or  the  deemed  central  management  of  the 
Community-scale undertaking or group of undertakings shall be responsible for obtaining and 
transmitting  to  the  parties  concerned  by  the  application  of  this  Directive  the  information 

(cid:216) new 

EN 

22 

   EN 

 
 
required  for  commencing  negotiations  referred  to  in  Article  5,  and  in  particular  the 
information concerning the structure of the undertaking or the group and its workforce. This 
obligation shall relate in particular to the information on the number of employees referred to 
in Article 2(1)(a) and (c). 

(cid:208) 94/45/EC 

Article 5 

Special negotiating body 

1.  In  order  to  achieve  the  objective  in  Article  1(1),  the  central  management  shall  initiate 
negotiations  for  the  establishment  of  a  European  Works  Council  or  an  information  and 
consultation procedure on its own initiative or at the written request of at least 100 employees 
or their representatives in at least two undertakings or establishments in at least two different 
Member States. 

2.  For  this  purpose,  a  special  negotiating  body  shall  be  established  in  accordance  with  the 
following guidelines: 

(a) 

The  Member  States  shall  determine  the  method  to  be  used  for  the  election  or 
appointment of the members of the special negotiating body who are to be elected or 
appointed in their territories. 

Member States shall provide that employees in undertakings and/or establishments in 
which there are no employees' representatives through no fault of their own, have the 
right to elect or appoint members of the special negotiating body. 

The  second  subparagraph  shall  be  without  prejudice  to  national  legislation  and/or 
practice  laying  down  thresholds  for  the  establishment  of  employee  representation 
bodies. 

(b) 

The  special  negotiating  body  shall  have  a  minimum  of  three  members  and  a 
maximum of members equal to the number of Member States. 

(cid:208) 2006/109/EC Art. 1 et Annexe 

(cid:216) new 

(b) The members of the special negotiating body shall be elected or appointed in proportion to 
the  number  of  employees  in  each  Member  State  by  the  Community-scale  undertaking  or 
Community-scale  group  of  undertakings,  by  allocating  in  respect  of  each  Member  State  in 
which at least 50 employees are employed one seat per portion of employees employed in that 
Member State amounting to 10%, or a fraction thereof, of the number of employees employed 
in all the Member States taken together; 

(c) 

In these elections or appointments, it must be ensured: 

– 

firstly, that each Member State in which the Community-scale undertaking has 
the 
one  or  more  establishbments  (SIC!  establishments)  or 

in  which 

(cid:208) 94/45/EC 
(cid:214) new 

EN 

23 

   EN 

 
 
 
 
 
 
Community-scale group of undertakings has the controlling undertaking or one 
or more controlled undertakings is represented by one member, 

– 

secondly, that there are supplementary members in proportion to the number of 
employees  working  in  the  establishments,  the  controlling  undertaking  or  the 
controlled  undertakings  as  laid  down  by  the  legislation  of  the  Member  State 
within the territory of which the central management is situated. 

(dc) 

The  central  management  and  local  management  (cid:214) and  the  competent  European 
workers' and employers' organisations  shall be informed of the composition of the 
special negotiating body (cid:214) and of the start of the negotiations . 

3.  The  special  negotiating  body  shall  have  the  task  of  determining,  with  the  central 
management, by written agreement, the scope, composition, functions, and term of office of 
the  European  Works  Council(s)  or  the  arrangements  for  implementing  a  procedure  for  the 
information and consultation of employees. 

4.  With  a  view  to  the  conclusion  of  an  agreement  in  accordance  with  Article  6,  the  central 
management  shall  convene  a  meeting  with  the  special  negotiating  body.  It  shall  inform  the 
local managements accordingly. 

Before and after any meeting with the central management, the special negotiating body shall 
be entitled to meet, using the necessary means for communication, without representatives of 
the central management being present. 

(cid:216) new 

(cid:208) 94/45/EC (adapted) 
(cid:214) new 

For  the  purpose  of  the  negotiations,  the  special  negotiating  body  may  ⌦ request ⌫ 
assistance ⌦ with its work ⌫ from experts of its choice (cid:214) , for example representatives of 
appropriate  Community-level  trade  union  organisations.  Such  experts  may  be  present  at 
negotiation  meetings  in  an  advisory  capacity  at  the  request  of  the  special  negotiating  body, 
where appropriate to promote coherence and consistency at Community level . 

(cid:208) 94/45/EC 

5. The special negotiating body may decide, by at least two-thirds of the votes, not to open 
negotiations in accordance with paragraph 4, or to terminate the negotiations already opened. 

Such a decision shall stop the procedure to conclude the agreement referred to in Article 6. 
Where such a decision has been taken, the provisions in the Annex shall not apply. 

A new request to convene the special negotiating body may be made at the earliest two years 
after the abovementioned decision unless the parties concerned lay down a shorter period. 

6. Any expenses relating to the negotiations referred to in paragraphs 3 and 4 shall be borne 
by the central management so as to enable the special negotiating body to carry out its task in 
an appropriate manner. 

In compliance with this principle, Member States may lay down budgetary rules regarding the 
operation of the special negotiating body. They may in particular limit the funding to cover 
one expert only. 

EN 

24 

   EN 

 
 
 
Article 6 

Content of the agreement 

(cid:208) 94/45/EC 

1.  The  central  management  and  the  special  negotiating  body  must  negotiate  in  a  spirit  of 
cooperation  with  a  view  to  reaching  an  agreement  on  the  detailed  arrangements  for 
implementing the information and consultation of employees provided for in Article 1(1). 

(cid:208) 94/45/EC 
(cid:214) new 

2. Without prejudice to the autonomy of the parties, the agreement referred to in paragraph 1 
between the central management and the special negotiating body shall determine: 

(a) 

(b) 

(c) 

the 
the  undertakings  of 
establishments  of  the  Community-scale  undertaking  which  are  covered  by  the 
agreement; 

the  Community-scale  group  of  undertakings  or 

the  composition  of  the  European  Works  Council,  the  number  of  members,  the 
allocation  of  seats  (cid:214) ,  taking  into  account  where  possible  the  need  for  balanced 
representation  of  employees  with  regard  to  their  activities,  category  and  gender,  
and the term of office; 

the  functions  and  the  procedure  for  information  and  consultation  of  the  European 
Works Council (cid:214) and the arrangements for linking information and consultation of 
the  European  Works  Council  and  national  employee  representation  bodies,  in 
compliance with the principles set out in Article 1(3) ; 

(d) 

the venue, frequency and duration of meetings of the European Works Council; 

(e) 

where necessary, the composition, the appointment procedure, the functions and the 
procedural rules of the select committee set up within the European Works Council; 

(cid:216) new 

(ef) 

the financial and material resources to be allocated to the European Works Council; 

(cid:208) 94/45/EC 

(cid:208) 94/45/EC (adapted) 
(cid:214) new 

(fg) 

the (cid:214) date of entry into force  ⌦ of the agreement and its ⌫ duration de l'accord 
(cid:214) ,  the  arrangements  for  amending  or  terminating  the  agreement  and  the  cases  in 
which  the  agreement  should  be  renegotiated   and  the  procedure  for  its 
renegotiation (cid:214) , including, where necessary, when the structure of the Community-
scale undertaking or Community-scale group of undertakings changes . 

EN 

25 

   EN 

 
 
 
 
 
(cid:208) 94/45/EC 

3.  The  central  management  and  the  special  negotiating  body  may  decide,  in  writing,  to 
establish one or more information and consultation procedures instead of a European Works 
Council. 

The agreement must stipulate by what method the employees' representatives shall have the 
right to meet to discuss the information conveyed to them. 

This information shall relate in particular to transnational questions which significantly affect 
workers' interests. 

4.  The  agreements  referred  to  in  paragraphs  2  and  3  shall  not,  unless  provision  is  made 
otherwise therein, be subject to the subsidiary requirements of the Annex. 

5. For the purposes of concluding the agreements referred to in paragraphs 2 and 3, the special 
negotiating body shall act by a majority of its members. 

Article 7 

Subsidiary requirements 

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 taken 
the decision provided for in Article 5(5). 

2. The subsidiary requirements referred to in paragraph 1 as adopted in the legislation of the 
Member States must satisfy the provisions set out in the Annex. 

SECTION III 

MISCELLANEOUS PROVISIONS 

Article 8 

Confidential information 

1.  Member  States  shall  provide  that  members  of  special  negotiating  bodies  or  of  European 
Works Councils and any experts who assist them are not authorised to reveal any information 
which has expressly been provided to them in confidence. 

The same shall apply to employees' representatives in the framework of an information and 
consultation procedure. 

This  obligation  shall  continue  to  apply,  wherever  the  persons  referred  to  in  the  first  and 
second subparagraphs are, even after the expiry of their terms of office. 

EN 

26 

   EN 

 
 
 
2. Each Member State shall provide, in specific cases and under the conditions and limits laid 
down  by  national  legislation,  that  the  central  management  situated  in  its  territory  is  not 
obliged to transmit information when its nature is such that, according to objective criteria, it 
would seriously harm the functioning of the undertakings concerned or would be prejudicial 
to them. 

A  Member  State  may  make  such  dispensation  subject  to  prior  administrative  or  judicial 
authorisation. 

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, on condition that, at the 
date  of  adoption  of  this  Directive  such  particular  provisions  already  exist  in  the  national 
legislation. 

Operation of the European Works Council and the information and consultation 
procedure for workers 

Article 9 

The  central  management  and  the  European  Works  Council  shall  work  in  a  spirit  of 
cooperation with due regard to their reciprocal rights and obligations. 

(cid:208) 94/45/EC 

The  same  shall  apply  to  cooperation  between  the  central  management  and  employees' 
representatives in the framework of an information and consultation procedure for workers. 

(cid:208) 94/45/EC 

Article 10 

⌦ Role and ⌫ Pprotection of employees' representatives 

(cid:208) 94/45/EC (adapted) 

(cid:216) new 

1.  Without  prejudice  to  the  competence  of  other  bodies  or  organisations  in  this  respect,  the 
members  of  the  European  Works  Council  shall  collectively  represent  the  interests  of  the 
employees  of  the  Community-scale  undertaking  or  Community-scale  group  of  undertakings 
and shall have the means required to apply the rights stemming from this Directive. 

2. Without prejudice to Article 8, the members of the European Works Council shall inform 
the  representatives  of  the  employees  of  the  establishments  or  of  the  undertakings  of  a 
Community-scale group of undertakings or, in the absence of representatives, the workforce 
as a whole, of the content and outcome of the information and consultation procedure carried 
out in accordance with this Directive. 

EN 

27 

   EN 

 
 
 
 
(cid:208) 94/45/EC (adapted) 

3.  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 protection and guarantees similar 
⌦ to  those ⌫  provided  for  employees'  representatives  by  the  national  legislation  and/or 
practice in force in their country of employment. 

(cid:208) 94/45/EC 

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. 

4. In so far as this is necessary for the exercise of their representative duties in an international 
environment,  the  members  of  the  special  negotiating  body  and  of  the  European  Works 
Council shall be have access to training without loss of wages. 

(cid:216) new 

(cid:208) 94/45/EC 

Article 11 

Compliance with this Directive 

1. Each Member State shall ensure that the management of establishments of a Community-
scale  undertaking  and  the  management  of  undertakings  which  form  part  of  a  Community-
scale  group  of  undertakings  which  are  situated  within  its  territory  and  their  employees' 
representatives or, as the case may be, employees abide by the obligations laid down by this 
Directive, regardless of whether or not the central management is situated within its territory. 

2. Member States shall ensure that the information on the number of employees referred to in 
Article  2(1)(a)  and  (c)  is  made  available  by  undertakings  at  the  request  of  the  parties 
concerned by the application of this Directive. 

32.  Member  States  shall  provide  for  appropriate  measures  in  the  event  of  failure  to  comply 
with  this  Directive;  in  particular,  they  shall  ensure  that  adequate  administrative  or  judicial 
procedures are available to enable the obligations deriving from this Directive to be enforced. 

43.  Where  Member  States  apply  Article  8,  they  shall  make  provision  for  administrative  or 
judicial appeal procedures which the employees' representatives may initiate when the central 
management  requires  confidentiality  or  does  not  give  information  in  accordance  with  that 
Article. 

Such  procedures  may  include  procedures  designed  to  protect  the  confidentiality  of  the 
information in question. 

EN 

28 

   EN 

 
 
 
 
Article 12 

(cid:208) 94/45/EC (adapted) 

Link between this Directive and other ⌦ Community and national ⌫ provisions 

(cid:208) 94/45/EC (new) 

1.  This  Directive  shall  apply  without  prejudice  to  measures  taken  pursuant  to  Council 
Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member 
States  relating  to  collective  redundancies30,  and  to  Council  Directive  77/187/EEC  of  14 
February  1977  on  the  approximation  of  the  laws  of  the  Member  States  relating  to  the 
safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts 
of businesses31. 

2. This Directive shall be without prejudice to employees' existing rights to information and 
consultation under national law. 

(cid:216) new 

1. Information and consultation of the European Works Council shall be linked with that of 
the national representation bodies, with due regard for the competences and areas of action of 
each and for the principles set out in Article 1(3). 

2. The arrangements for the links between the information and consultation of the European 
Works  Council  and  national  employee  representation  bodies  shall  be  established  by  the 
agreement  referred  to  in  Article  6.  Such  agreement  must  comply  with  the  provisions  of 
national law on the information and consultation of employees. 

3.  Where  no  such  arrangements  have  been  defined  by  agreement,  the  Member  States  shall 
ensure  that  the  processes  of  informing  and  consulting  the  European  Works  Council  and  the 
national bodies start in parallel in cases where decisions likely to lead to substantial changes 
in work organisation or contractual relations are envisaged. 

4.  This  Directive  shall  be  without  prejudice  to  the  information  and  consultation  procedures 
referred to in Directive 2002/14/EC and to the specific procedures referred to in Article 2 of 
Directive 98/59/EC and Article 7 of Directive 2001/23/EC. 

5.  Implementation  of  this  Directive  shall  not  be  sufficient  grounds  for  any  regression  in 
relation  to  the  situation  which  already  prevails  in  each  Member  State  and  in  relation  to  the 
general level of protection of workers in the areas to which it applies. 

(cid:208) 94/45/EC (adapted) 
(cid:214) new 

Article 13 

Agreements in force 

30 

31 

OJ No L 48, 22. 2. 1975, p. 29. Regulation as last amended by Directive 92/56/EEC (OJ No L 245, 26. 
8. 1992, p. 3. 
OJ No L 61, 5. 3. 1977, p. 26. 

EN 

29 

   EN 

 
 
 
 
                                                 
1.  Without  prejudice  to  paragraph  23,  the  obligations  arising  from  this  Directive  shall  not 
apply  to  Community-scale  undertakings  or  Community-scale  groups  of  undertakings  in 
which, on the date laid down in Article 14(1) for the implementation of this Directive or the 
date  of  its  transposition  in  the  Member  State  in  question,  where  this  is  earlier  than  the 
abovementioned  date,  there  ⌦ was ⌫  is  already  an  agreement  ⌦ on  22  September 
1996 ⌫,  covering  the  entire  workforce,  providing  for  the  transnational  information  and 
consultation of employees (cid:214) , in so far as such agreements are still in force  . 2. When the 
⌦ these ⌫  agreements  referred  to  in  paragraph  1  expire,  the  parties  to  those  agreements 
may decide jointly to renew them. Where this is not the case, the provisions of this Directive 
shall apply. 

(cid:216) new 

2. Without prejudice to paragraph 3, this Directive does not establish a general obligation to 
renegotiate the agreements concluded pursuant to Article 6 of Directive 94/45/EC between 22 
September 1996 and the date provided for under Article 15 of this Directive. 

3.  Where  the  structure  of  the  Community-scale  undertaking  or  Community-scale  group  of 
undertakings changes significantly, and either in the absence of provisions established by the 
agreements  in  force  pursuant  to  Article  6  or  to  this  Article,  or  in  the  event  of  conflicts 
between  the  relevant  provisions  of  two  or  more  agreements  applicable,  the  central 
management shall initiate the negotiations referred to in Article 5 on its own initiative or at 
the written request of at least 100 employees or their representatives. 

At  least  three  members  of  the  existing  European  Works  Council  or  of  each  of  the  existing 
European Works Councils shall be members of the special negotiating body, in addition to the 
members elected or appointed pursuant to Article 5(2). 

During the negotiations, the existing European Works Council(s) shall continue to operate in 
accordance  with  any  arrangements  agreed  between  the  members  of  the  European  Works 
Council(s) and the central management. 

When the new European Works Council established following the procedure referred to in the 
first subparagraph takes up its activities, the previously existing European Works Council(s) 
shall be dissolved and the agreement(s) instituting them shall be terminated. 

(cid:208) 94/45/EC (adapted) 

Article 14 

Final provisions 

1.  Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative  provisions 
necessary to comply with this Directive no later than 22 September 1996 or shall ensure by 
that date at the latest that management and labour introduce the required provisions by way of 
agreement, the Member States being obliged to take all necessary steps enabling them at all 
times  to  guarantee  the  results  imposed  by  this  Directive.  They  shall  forthwith  inform  the 
Commission thereof. 

2.  When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  shall  be  accompanied  by  such  reference  on  the  occasion  of  their  official 
publication. The methods of making such reference shall be laid down by Member States. 

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Article 15 14 

Review by the Commission 

Not  later  than  22  September  1999,  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. 

Five years after the date specified in Article 15 of this Directive, the Commission shall report 
to the European Parliament, the Council and the European Economic and Social Committee 
on the implementation of this Directive, making appropriate proposals where necessary. 

(cid:216) new 

(cid:208)  

Article 15 

Transposition 

1.  Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative  provisions 
necessary  to  comply  with  Articles  […]  and  Annex  I,  points  […]  [The  articles  and  annexes 
which  have  been  changed  as  to  the  substance  by  comparison  with  the  earlier  Directive]  no 
later than […] or shall ensure that management and labour introduce on that date the required 
provisions by way of agreement, the Member States being obliged to take all necessary steps 
enabling  them  at  all  times  to  guarantee  the  results  imposed  by  this  Directive.  They  shall 
forthwith communicate to the Commission the text of those provisions and a correlation table 
between those provisions and this Directive. 

When Member States adopt those provisions, they shall contain a reference to this Directive 
or be accompanied by such a reference on the occasion of their official publication. They shall 
also  include  a  statement  that  references  in  existing  laws,  regulations  and  administrative 
provisions to the directive repealed by this Directive shall be construed as references to this 
Directive.  Member  States  shall  determine  how  such  reference  is  to  be  made  and  how  that 
statement is to be formulated. 

2.  Member  States  shall  communicate  to  the  Commission  the  text  of  the  main  provisions  of 
national law which they adopt in the field covered by this Directive. 

Article 16 

Repeal 

Directive 94/45/EC, as amended by the Directives listed in Annex II, Part A, is repealed with 
effect  from  […]  [day  after  the  date  set  out  in the first subparagraph of Article 15(1) of this 
Directive], without prejudice to the obligations of the Member States relating to the time-limit 
for transposition into national law of the Directives set out in Annex II, Part B. 

References  to  the  repealed  Directive  shall  be  construed  as  references  to  this  Directive  and 
shall be read in accordance with the correlation table in Annex III. 

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Article 17 

Entry into force 

This Directive shall enter into force on the [twentieth] day following that of its publication in 
the Official Journal of the European Union. 

Articles  […]  and  Annex  I,  points  […],  [The  articles  and  annexes  which  are  unchanged  by 
comparison with the earlier Directive] shall apply from [day after the date set out in the first 
subparagraph of Article 15(1)]. 

This Directive is addressed to the Member States. 

Article 16 18 

(cid:208) 94/45/EC 

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(cid:208) 94/45/EC 

ANNEX I 

SUBSIDIARY REQUIREMENTS 

referred to in Article 7 of the Directive 

1. 

In  order  to  achieve  the  objective  in  Article  1(1)  of  the  Directive  and  in  the  cases 
provided  for  in  Article  7(1)  of  the  Directive,  the  establishment,  composition  and 
competence of a European Works Council shall be governed by the following rules: 

(a)  The  competence  of  the  European  Works  Council  shall  be  limited  to 
information  and  consultation  on  the  matters  which  concern  the  Community-
scale undertaking or Community-scale group of undertakings as a whole or at 
least  two  of  its  establishments  or  group  undertakings  situated  in  different 
Member States. 

In  the  case  of  undertakings  or  groups  of  undertakings  referred  to  in  Article 
4(2), the competence of the European Works Council shall be limited to those 
matters  concerning  all  their  establishments  or  group  undertakings  situated 
within the Member States or concerning at least two of their establishments or 
group undertakings situated in different Member States. 

(cid:216) new 

(a)  The  competence  of  the  European  Works  Council  shall  be  determined  in 

accordance with Article 1(3). 

The  information  of  the  European  Works  Council  shall  relate  in  particular  to  the 
structure,  economic  and  financial  situation,  probable  development  and  production 
and  sales  of  the  Community-scale  undertaking  or  group  of  undertakings.  The 
information and consultation of the European Works Council shall relate in particular 
to  the  situation  and  probable  trend  of  employment,  investments,  and  substantial 
changes  concerning  organisation,  introduction  of  new  working  methods  or 
production  processes,  transfers  of  production,  mergers,  cut-backs  or  closures  of 
undertakings, establishments or important parts thereof, and collective redundancies. 

The  consultation  shall  be  conducted 
the  employees' 
representatives can meet with the central management and obtain a response, and the 
reasons for that response, to any opinion they might express. 

in  such  a  way 

that 

(cid:208) 94/45/EC (adapted) 

(b)  The  European  Works  Council  shall  be  composed  of  employees  of  the 
Community-scale  undertaking  or  Community-scale  group  of  undertakings 
elected or appointed from their number by the employees' representatives or, in 
the absence thereof, by the entire body of employees. 

The election or appointment of members of the European Works Council shall 
be carried out in accordance with national legislation and/or practice. 

(c)  The European Works Council shall have a minimum of three members  and a 

maximum of 30. 

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Where  its  size  so  warrants,  it  shall  elect  a  select  committee  from  among  its 
members, comprising at most three members. 

It shall adopt its own rules of procedure. 

(d) 

In the election or appointment of members of the European Works Council, it 
must be ensured: 

– 

– 

that  each  Member  State 

firstly, 
the  Community-scale 
undertaking has one or more establishments or in which the Community-
scale  group  of  undertakings  has  the  controlling  undertaking  or  one  or 
more controlled undertakings is represented by one member, 

in  which 

secondly,  that  there  are  supplementary  members  in  proportion  to  the 
number  of  employees  working  in  the  establishments,  the  controlling 
undertaking or the controlled undertakings as laid down by the legislation 
of  the  Member  State  within  the  territory  of  which  the  central 
management is situated. 

(cid:216) new 

(c)  The members of the European Works Council shall be elected or appointed in 
proportion  to  the  number  of  employees  in  each  Member  State  by  the 
Community-scale  undertaking  or  Community-scale  group  of  undertakings,  by 
allocating in respect of each Member State in which at least 50 employees are 
employed  one  seat  per  portion  of  employees  employed  in  that  Member  State 
amounting to 10%, or a fraction thereof, of the number of employees employed 
in all the Member States taken together; 

(d)  To  ensure  that  it  can  coordinate  its  activities,  the  European  Works  Council 
shall  elect  a  select  committee  from  among  its  members,  comprising  at  most 
five  members,  which  must  have  the  conditions  enabling  it  to  exercise  its 
activities on a regular basis. 

(cid:208) 94/45/EC (adapted) 
(cid:214) new 

  ⌦ It shall adopt its own rules of procedure; ⌫ 

(e)  The central management and any other more appropriate level of management 

shall be informed of the composition of the European Works Council. 

(f) 

Four  years  after  the  European  Works  Council  is  established  it  shall  examine 
whether to open negotiations for the conclusion of the agreement referred to in 
Article  6  of the  Directive or  to  continue  to apply  the subsidiary  requirements 
adopted in accordance with this Annex. 

Articles 6 and 7 of the Directive shall apply, mutatis mutandis, if a decision has 
been taken to negotiate an agreement according to Article 6 of the Directive, in 
which  case  ‘special  negotiating  body’  shall  be  replaced  by  ‘European  Works 
Council’. 

2. 

The  European  Works  Council  shall  have  the  right  to  meet  with  the  central 
management  once  a  year,  to  be  informed  and  consulted,  on  the  basis  of  a  report 
drawn  up  by  the  central  management,  on  the  progress  of  the  business  of  the 

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3. 

Community-scale  undertaking  or  Community-scale  group  of  undertakings  and  its 
prospects. The local managements shall be informed accordingly. 

The  meeting  shall  relate  in  particular  to  the  structure,  economic  and  financial 
situation, the probable development of the business and of production and sales, the 
situation  and  probable  trend  of  employment,  investments,  and  substantial  changes 
concerning  organization,  introduction  of  new  working  methods  or  production 
processes,  transfers  of  production,  mergers,  cut-backs  or  closures  of  undertakings, 
establishments or important parts thereof, and collective redundancies. 

there  are  exceptional  circumstances  (cid:214) or  decisions   affecting 

Where 
the 
employees' interests to a considerable extent, particularly in the event of relocations, 
the  closure  of  establishments  or  undertakings  or  collective  redundancies,  the  select 
committee  or,  where  no  such  committee  exists,  the  European  Works  Council  shall 
have the right to be informed. It shall have the right to meet, at its request, the central 
management,  or  any  other  more  appropriate  level  of  management  within  the 
Community-scale  undertaking  or  group  of  undertakings  having  its  own  powers  of 
decision,  so  as  to  be  informed  and  consulted  on  measures  significantly  affecting 
employees' interests. 

Those members of the European Works Council who have been elected or appointed 
by  the  establishments  and/or  undertakings  which  are  directly  concerned  by  the 
measures  (cid:214) circumstances  or  decisions   in  question  shall  also  have  the  right  to 
participate in the ⌦ where a ⌫ meeting  is  organised with the select committee. 

This information and consultation meeting shall take place as soon as possible on the 
basis of a report drawn up by the central management or any other appropriate level 
of  management  of  the  Communityscale  (SIC!  Community-scale)  undertaking  or 
group  of  undertakings,  on  which  an  opinion  may  be  delivered  at  the  end  of  the 
meeting or within a reasonable time. 

This meeting shall not affect the prerogatives of the central management. 

(cid:214) The information and consultation procedures provided for in the above circumstances shall 

be carried out without prejudice to Article 1(2) and Article 8 of this Directive.  

4. 

The  Member  States  may  lay  down  rules  on  the  chairing  of  information  and 
consultation meetings. 

Before  any  meeting  with  the  central  management,  the  European  Works  Council  or 
the  select  committee,  where  necessary  enlarged  in  accordance  with  the  second 
paragraph  of  point  3,  shall  be  entitled  to  meet  without  the  management  concerned 
being present. 

Without prejudice to Article 8 of the Directive, the members of the European Works 
Council shall inform the representatives of the employees of the establishments or of 
the  undertakings  of  a  Communityscale  (SIC!  Community-scale)  group  of 
undertakings or, in the absence of representatives, the workforce as a whole, of the 
content  and  outcome  of  the  information  and  consultation  procedure  carried  out  in 
accordance with this Annex. 

The European Works Council or the select committee may be assisted by experts of 
its choice, in so far as this is necessary for it to carry out its tasks. 

The operating expenses of the European Works Council shall be borne by the central 
management. 

5. 

6. 

7. 

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The  central  management  concerned  shall  provide  the  members  of  the  European 
Works Council with such financial and material resources as enable them to perform 
their duties in an appropriate manner. 

In  particular,  the  cost  of  organising  meetings  and  arranging  for  interpretation 
facilities  and  the  accommodation  and  travelling  expenses  of  members  of  the 
European  Works  Council  and  its  select  committee  shall  be  met  by  the  central 
management unless otherwise agreed. 

In  compliance  with  these  principles,  the  Member  States  may  lay  down  budgetary 
rules regarding the operation of the European Works Council. They may in particular 
limit funding to cover one expert only. 

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(cid:207) 

ANNEX II 

Part A 

Repealed Directive with its successive amendments 
(referred to in Article 16) 

Council Directive 94/45/EC 

(OJ L 254, 30.9.1994, p. 64) 

Council Directive 97/74/EC 

(OJ L 10, 16.1.1998, p. 22) 

Council Directive 2006/109/EC 

(OJ L 363, 20.12.2006, p. 416) 

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Part B 

Time-limits for transposition into national law 
(referred to in Article 16) 

Directive 

Time-limit for transposition 

94/45/EC 

97/74/EC 

2006/109/EC 

22.09.1996 

15.12.1999 

1.1.2007 

_____________ 

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ANNEX III 

CORRELATION TABLE 

Directive 94/45/EC 

This Directive 

Article 1(1) 

Article 1(2) 

- 

- 

Article 1(3) 

[…] 

Annex 

- 

Article 1(1) 

Article 1(2), first sentence 

Article 1(2), second sentence 

Article 1(3) and (4) 

Article 1(5) 

[…] 

Annex I 

Annexes II and III 

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