REPORT FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS on the review of Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European cooperative society with regard to the involvement of employees
Date: 2010-09-16
Institutions: European Commission
Subjects: European cooperative, legal status, worker participation

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EUROPEAN COMMISSION 

Brussels, 16.9.2010 
COM(2010) 481 final 

REPORT FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN 
PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND 
THE COMMITTEE OF THE REGIONS 

on the review of Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute 
for a European cooperative society with regard to the involvement of employees 

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REPORT FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN 
PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND 
THE COMMITTEE OF THE REGIONS 

on the review of Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute 
for a European cooperative society with regard to the involvement of employees 

1. 

INTRODUCTION 

Council Regulation (EC) No 1435/20031 (hereinafter “the Regulation”) establishes a 
Statute  for  a  European  Cooperative  Society  (hereinafter  “SCE”)  with  a  view  to 
creating  a  uniform  legal  framework  enabling  cooperatives  from  different  Member 
States  to  plan  and  carry  out  the  reorganisation  of  their  business  on  a  Community 
scale.  Council  Directive  2003/72/EC2  (hereinafter  “the  Directive”)  supplements  the 
Regulation  as  far  as  the  involvement  of  employees3  is  concerned,  with  the  aim  of 
providing for arrangements for the involvement of employees in every SCE, thereby 
ensuring  that  the  establishment  of  an  SCE  does  not  entail  the  disappearance  or 
reduction  of  practices  of  employee  involvement  that  exist  within  the  entities 
participating in its creation. 

As  required  by  Article  17  of  the  Directive,  in  this  Report  the  Commission  is 
reviewing  the  application  of  the  Directive  with  a  view  to  proposing  suitable 
amendments, where necessary. 

In preparation for this review, the Commission commissioned studies by independent 
experts4 and consulted with the Member States and the European Social Partners on 
these studies and the draft report5. 

Given  the  major  similarities  between  the  Directive  and  Council  Directive 
2001/86/EC  on  the  involvement  of  employees  in  the  European  Company  (SE)6 
(hereinafter  the  SE  Directive)  and  the  fact  that  certain  Member  States7  have 

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Council  Regulation  (EC)  No  1435/2003  of  22  July  2003  on  the  Statute  for  a  European  Cooperative 
Society (SCE), OJ L 207, 18.8.2003, p. 1. 
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. 
Involvement  of  employees  means  any  mechanism, 
information,  consultation  and 
participation, through which employees’ representatives may exercise an influence on decisions taken 
within an undertaking (Article 2(h) of the Directive). 
National reports by Labour Asociados (EU25 in 2006-2008) and Milieu (BG, RO) in 2009, Synthesis 
report on EU25 by Labour Asociados in 2007 
Responses to consultation received from BG, CY, CZ, DE, EE, EL, ES, FI, FR, HU, IT, LT, LU, LV, 
PL, PT, SE; BusinessEurope, ETUC, UEAPME  
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 
BG, EE, ES, FI 

including 

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transposed the Directive in the same instrument or by amendments to the legislation 
transposing Directive 2001/86/EC, the Commission refers to its review of the latter8. 

On  horizontal  issues  relating  to  information  and  consultation  rights,  such  as 
protection  and  guarantees  to  employee  representatives  or  confidential  information, 
the  Commission  also  refers  to  its  review  of  Directive  2002/14/EC  establishing  a 
general framework for informing and consulting employees9. 

2. 

TRANSPOSITION OF THE DIRECTIVE COMPLETED IN 2009 

The Commission set up an Expert Group composed of government experts from the 
Member  States  in  order  to  provide  a  forum  to  discuss  the  arrangements  for 
transposing  the  Directive  into  national  legislation.  The  Expert  Group  held  three 
meetings  in  2005  at  which  the  main  issues  arising  from  the  implementation  of  the 
Directive were extensively discussed10. 

Despite  this  preparatory  work,  only  12  Member  States11  transposed  the  Directive 
within the deadline established in the Directive (namely 18 August 2006), and it took 
until March 2009 for the last implementing measures to be adopted12. Infringement 
proceedings were launched by the Commission against 16 Member States13, followed 
by  three  referrals  to  the  European  Court  of  Justice.  The  Court  subsequently  ruled 
against one Member State14. 

In almost all Member states, transposition occurred by means of legislation preceded 
by a consultation of the social partners, via procedures which reflected the particular 
tradition of each country15. Social partners played a decisive role in Belgium, where 
the  Directive  was  transposed  by  means  of  a  collective  agreement  at  State  level, 
complemented  by  legislation,  and  in  Italy,  where  social  partners  signed  a  common 
opinion which formed the basis for the legislation transposing the Directive. In most 
Member  States,  the  cooperative  movement  was  associated  with  the  process.  The 
transposition of the Directive has not led to major public debates. 

As  for  the  quality  of  implementation,  the  abovementioned  studies  carried  out  by 
independent  experts  conclude  that,  in  general  terms,  the  national  implementing 

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Communication  from  the  Commission  on  the  review  of  Council  Directive  2001/86/EC  of  8  October 
2001 supplementing the Statute for a European company with regard to the involvement of employees, 
COM(2008)591 final of 30.9.2008 
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  Community,  OJ  L  80 of 
23.3.2002, p. 29; Communication from the Commission to the Council, the European Parliament, the 
European  Economic  and  Social  Committee  and  the  Committee  of  the  Regions  on  the  review  of  the 
application of Directive 2002/14/EC in the EU, COM(2008)146final of 17.3.2008 
The working papers and minutes of the Group can be found at: 
http://ec.europa.eu/social/main.jsp?catId=707&langId=en&intPageId=213 
AT, BG, CZ, DE, DK, FI, HU, NL, PL, SE, SI, UK 
Details of National implementing measures can be found at 
http://ec.europa.eu/social/main.jsp?catId=707&langId=en&intPageId=213 . 
One Member State had taken implementing measures within the deadline but had not notified them to 
the Commission  
Cases C-92/08 for BE; C-82/08 for EL; C-70/08 for LU ruled on 9 October 2008 
In NL: no specific consultation of social partners on Directive 2003/72/EC; in UK: public consultation; 
in ES: joint consultation on Directives 2003/72/EC and 2001/86/EC 

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measures  closely  follow,  often  literally,  the  provisions  of  the  Directive  and  that 
transposition has not revealed any serious irregularities. However, they note certain 
difficulties,  omissions,  deficiencies,  variations  or  supplements16  which  require 
further examination by the Commission. 

3. 

CONTENT OF THE DIRECTIVE IS OFTEN TRANSPOSED VERBATIM 

3.1. 

Priority to negotiation and alternative route for some “ex novo” SCEs 

The  fundamental  principle  and  stated  aim  of  the  Directive  is  to  secure  employees’ 
rights as regards involvement in the decisions that may affect them. Employee rights 
that  were  in  force  before  its  establishment  should  provide  the  basis  for  employee 
rights  of  involvement  in  the  SCE  (the  ‘before  and  after’  principle).  The  primary 
means of seeking to achieve this aim is through an agreement negotiated between the 
management  of  the  legal  entities  concerned  and  the  employees’  representatives.  In 
the absence of agreement within a six-month period (which can be extended to up to 
12  months  by  agreement),  the  Directive  establishes  a  set  of  standard  rules. 
Furthermore,  employees’  representatives  may  decide  not  to  open  negotiations  or  to 
terminate  negotiations,  and  rely  on  the  rules  on  information  and  consultation  of 
employees in force in the Member States where the SCE has employees. 

This priority given to negotiation replicates the system established in the context of 
the  European  Company  (SE).  However,  the  Directive  establishes  an  alternative 
mechanism  related  to  the  possibility  of  creating  SCEs  "ex  novo".  Article  8  of  the 
Directive provides for specific provisions in the case of SCEs established exclusively 
by  natural  persons  or  by  a  single  legal  entity  and  natural  persons,  which  together 
employ  fewer  than  50  employees,  or  employ  50  or  more  employees  in  only  one 
Member  State.  In  such  a  case,  the  national  provisions  on  the  involvement  of 
employees that are applicable to other entities of the same type situated in the same 
Member States are to be applied to the SCE, its subsidiaries and establishments (see 
3.5).  

3.2. 

Transnational negotiation procedure 

The legislation applicable to the negotiation procedure is that of the Member State in 
which  the  registered  office  of  the  SCE  is  to  be  situated.  As  for  the  start  of 
negotiations,  it  is  the  responsibility  of  the  management  or  administrative  bodies  of 
the  legal  entities  participating  in  setting  up  an  SCE  to  take  the  necessary  steps  as 
soon  as  they  have  drawn  up  a  plan  to  establish  the  SCE.  In  their  implementing 
measures, many Member States go beyond the general terms of the Directive in this 
regard17. 

For the purpose of the negotiations, a special negotiating body (hereinafter “SNB”) 
representing the employees has to be created. The SNB’s members are to be elected 
or  appointed  in  proportion  to  the  number  of  employees  employed  in  each  Member 

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BusinessEurope  member  organisation  CIP  considered  that  the  obligations  established  in  national 
legislation go beyond the Directive in several areas 
Extent  of  prior  information  to  provide:  CZ,  IE,  LT,  PL,  SI;  Information  to  employees  where  no 
representation exists CZ, DE, IE, LT, NL, PT, SI, UK; Maximum period to start negotiations: ES, LT; 
but no reference to "as soon as possible" in PT 

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State  by  the  participating  legal  entities  and  their  subsidiaries  and  establishments18. 
The  method  to  be  used  for  electing  or  appointing  the  members  to  be  elected  or 
appointed  in  their  territory  is  left  up  to  the  Member  States.  Some  Member  States 
have  not  complied  with  the  requirement  of  the  Directive  that  the  methods  used 
should  seek  to  achieve  gender  balance  in  the  SNB19.  The  Directive  addresses  the 
situation  at  the  time  when  the  negotiations  start,  but  does  not  provide  for  cases  in 
which  this  initial  situation  changes  before  the  end  of  the  negotiations.  However, 
several Member States have adopted provisions to deal with such changes20. 

The  role  of  the  SNB  is  to  negotiate  the  arrangements  for  employee  involvement 
within the SCE with the competent organs of the participating entities. However, it 
may also decide not to open negotiations or to terminate negotiations that are already 
ongoing.  While  the  principle  governing  the  adoption  of  decisions  by  the  SNB  is  a 
double absolute majority (absolute majority of its members representing an absolute 
majority of the employees), in the latter case a triple qualified majority is needed (i.e. 
two  thirds  of  the  members  representing  at  least  two  thirds  of  the  employees, 
including  the  votes  of  members  representing  employees  employed  in  at  least  two 
Member  States).  This  triple  majority  is  also  needed  (with  certain  additional 
conditions)  when  the  outcome  of  the  negotiations  is  a  reduction  of  participation 
rights. 

The expenses relating to the negotiations are borne by the participating legal entities. 
Several  Member  States  implemented  this  provision  by  limiting  these  expenses  to 
those  which  were  reasonable,  essential  or  necessary  in  relation  to  the  economic 
burden  imposed  on  participating  entities.  In  others,  an  indicative  or  open  list  of 
expenses  has  been  drawn  up.  Some  transposition  laws  include  both  models21.  In 
addition,  three  Member  States  have  established  a  criterion  to  share  these  expenses 
between the participating entities22.  

The SNB may request the assistance of experts of its choice for the purposes of the 
negotiations.  With  a  few  exceptions23,  national  laws  have  limited  the  number  of 
experts  to  be  funded  by  the  participating  companies  to  one,  as  allowed  by  the 
Directive. 

3.3. 

Autonomy of the parties as to the content of the agreement 

One of the main principles of the Directive consists in allowing the parties to define 
freely the rules which will bind them as far as employees’ involvement is concerned. 

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Additional  seats  for  representation  of  employees  in  case  of  mergers  are  also  provided  for  by  the 
Directive. This element has not been implemented in RO 
FR, LU, MT, RO, SK 
CZ, DE, ES, HU, LV, MT, PL, SI, SK SE, UK. 
Expenses have to be reasonable (EE, MT, UK), essential (NL), necessary (SE), justified and necessary 
(HU)  or  appropriate  (AT,  DK,  FI,  SI);  List  of  expenses  (BE,  CY,  ES,  IT,  LT,  LV,  PT,  SK);  Both 
models (CZ, DE, PL) 
LV, PL, PT 
DE, SE; in BE, a more favourable agreement may provide otherwise; in LV, expenses of "at least" one 
expert to be covered. 

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The  Directive  makes  it  clear  that  the  agreement  is  not  subject  to  the  standard  rules 
unless it provides otherwise. All national implementing measures follow this line24. 

In order to assist the negotiating parties, the Directive contains a list of items to be 
addressed in the agreement. This list includes the procedures for the renegotiation of 
the agreement, where appropriate, in the event of structural changes occurring after 
the creation of the SCE. This is an important addition to similar lists included in the 
SE Directive and in Directive 94/45/EC on European Works Councils (EWCs)25. 

There are, however, two important limitations to the autonomy of the parties. Where 
an SCE is established by means of transformation, the agreement has to provide for 
at least the same level of all elements of employee involvement as those which exist 
within the cooperative to be transformed into an SCE26. In addition, the possibility to 
provide for employees to be entitled to participate fully in general meetings, which 
has been added by the Directive to the items which may be agreed upon, is limited by 
Article 9 of the Directive (see 3.6). 

3.4. 

Standard rules to be applied in the absence of an agreement 

3.4.1.  Conditions for the application of the standard rules 

The  standard  rules  apply  only  in  a  subsidiary  manner,  i.e.  (a)  if  the  negotiating 
parties  so  agree,  or  (b)  if  no  agreement  has  been  concluded  by  the  deadline  of  six 
months (under certain circumstances one year) and if, on the part of the participating 
entities,  their  competent  bodies  decide  to  continue  with  the  registration  of  the  SCE 
and,  on  the  part  of  the  employees,  the  SNB  has  not  decided  either  not  to  open 
negotiations or to terminate negotiations already opened. 

is  concerned,  and 

As  far  as  employee  participation 
than 
transformation, the Directive establishes a minimum percentage of workers covered 
by  participation  (25%  in  the  case  of  a  merger  and  50%  in  all  other  cases)  for  the 
standard  rules  to  apply.  However,  even  if  those  percentages  are  not  reached,  a 
decision by the SNB to apply the standard rules  is  sufficient. Almost27 all Member 
States followed these rules and none made use of the option offered by the Directive 
not to apply standard rules on participation in case of merger.  

in  cases  other 

3.4.2.  Body representing the employees 

In  the  standard  rules,  employees  exercise  their  rights  to  be  involved  in  the  SCE 
through  a  Representative  Body  (hereinafter  “RB”).  The  RB  is  composed  of 
employees of the SCE and its subsidiaries and establishments elected or appointed by 
the  employees’  representatives  in  proportion  to  the  number  of  their  employees 

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However with a difference for ES: the standard provisions also apply where the agreement "contains no 
specific provision therein" 
MT, RO do not include this adaptation in the list 
DE adds the same limitation where the cooperative switches from a dualistic to a monistic management 
structure or vice versa 
CY  applies  the  50%  percentage  also  to  mergers;  UK  makes  no  reference  to  the  transformation 
(however,  as  UK  has  no  system  of  board-level  participation,  the  risk  that  a  cooperative  with 
participation  would  loose  its  participation  regime  under  the  standard  rules  while  transforming  into  an 
SCE is very limited) 

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employed  in  each  Member  State28.  Its  composition  needs  to  be  adapted  to  take 
account  of  changes  occurring  in  the  SCE  and  its  subsidiaries  and  establishments. 
Four  years  after  its  establishment  it  has  to  decide  whether  to  open  negotiations  on 
concluding an agreement or to continue under the standard rules.  

While  the  transposition  of  these  provisions  has  been  ensured  in  general  terms  by 
Member States, some omissions have been detected as regards the select committee 
to be elected when the size of the RB so warrants, the entitlement of the members of 
the  RB  to  time  off  without  loss  of  wages  and  adaptation  to  changes29.  There  are 
variations  in  the  size  of  the  RB  required  to  trigger  the  establishment  of  a  select 
committee.  As  regards  the  right  of  the  RB  to  be  assisted  by  experts  of  its  choice, 
most Member States made use of the possibility to limit the financing by SCE to one 
expert, in the same way as for the SNB. 

3.4.3.  Transnational information and consultation 

As far as information and consultation are concerned, the competence of the RB is 
confined to questions of a transnational nature. In order to exercise this competence, 
the RB has the right to hold a meeting with the competent body of the SCE at least 
once a year on the basis of regular reports drawn up by the competent body on the 
development of the business, employment and organisation of the SCE. In addition, 
the  RB  is  entitled  to  receive  information  when  there  are  exceptional  circumstances 
that affect employees’ interests to a considerable extent; to request the holding of an 
extraordinary  meeting  in  order  to  be  informed  and  consulted;  and  to  express  an 
opinion.  A  further  meeting  can  be  requested  if  this  opinion  is  not  followed  by  the 
SCE.  National  implementing  measures  do  not  reveal  any  specific  features  in  this 
regard. 

3.4.4.  Board-level employee participation 

As for employee participation, the standard rules provide in the main that the level of 
participation  in  the  SCE  is  determined  by  the  level  of  participation  in  the 
participating  entities  before  the  SCE  was  established.  Therefore,  if  none  of  the 
participating  entities  was  governed  by  participation  rules  before  the  SCE  was 
registered, the latter does not have to lay down provisions for employee participation. 

When there are several forms of participation, the SNB shall decide which of those 
forms will apply to the SCE. Most Member States make use of the option to adopt 
rules  by  default  in  this  regard,  mainly  by  choosing  the  participation  regime  which 
covers the largest number of employees.  

3.5. 

National  provisions  applicable  to  SCEs  established  ex  novo  and  employing 
fewer than 50 employees or 50 or more employees in only one Member State 

Unlike  SEs,  SCEs  can  be  established  "ex  novo",  by  natural  persons  or  by  a  single 
legal  entity  and  natural  persons.  Article  8  of  the  Directive  lays  down  specific 
provisions in such a case. When a single SCE employs fewer than 50 employees, or 

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DE provisions take into account employees of the whole group  
No internal meetings of select committee in SK, no time off to training without loss of wages in PT and 
UK, no adaptation in UK 

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employs  50  or  more  employees  in  only  one  Member  State,  there  is  no  compulsory 
negotiation process and the national provisions on the involvement of employees that 
apply to other entities of the same type situated in the same Member States are to be 
applied  to  the  SCE,  its  subsidiaries  and  establishments.  However,  a  negotiation 
procedure will be launched if it were to be required by one third of the employees or 
if the threshold of 50 employees were to be reached after the registration of the SCE. 
There is a specific provision to maintain participation where the seat of the SCE is 
transferred  to  another  Member  State.  In  general,  Member  States  have  transposed 
these new provisions verbatim. 

3.6. 

Limited entitlement to participation in general meetings with a right to vote 

Article 9 of the Directive provides for a new  method  of  involvement  of  employees 
compared to the other directives in this field: namely the entitlement of employees or 
their representatives to participate in the general meeting, or in the section or sectoral 
meeting if it exists, with a right to vote. This occurs in the case of transformation, by 
applying  standard  rules  where  such  participation  was  present  in  the  participating 
cooperative(s), or by agreement.  

However,  the  entitlement  to  participate  in  general  meetings  is  subject  to  the 
limitation laid down in Article 59(4) of the Regulation: namely that the possibility of 
such  participation  was  acknowledged  by  national  provisions  prior  to  August  2003. 
Only  Three  Member  States  are  in  that  situation:  Denmark,  for  which  such 
participation  is  common  practice,  Hungary  and  Luxembourg.  All  except  seven 
Member States30 have undertaken to transpose this article verbatim. 

3.7. 

Common provisions of directives dealing with the involvement of employees 

The  provisions  of  the  Directive  do  not  differ  from  those  of  the  other  directives 
dealing  with  involvement  of  employees  as  regards  definitions,  reservation  and 
confidentiality,  the  spirit  of  cooperation  governing  the  relationship  between  the 
employees’  representatives  and  the  competent  body  of  the  SCE,  and  also  the 
protection  and  guarantees  provided  for  employees’  representatives.  Member  States 
have  also  implemented  them  in  the  same  way.  The  Commission  refers  to  previous 
reports in this field (see introduction). 

4. 

ISSUES RAISED BY THE IMPLEMENTATION AND APPLICATION OF THE DIRECTIVE 

4.1. 

Absence of experience 

As far as the Commission is aware, only seventeen SCEs had been established by 8 
May  2010,  none  of  which  had  a  significant  number  of  employees31.  Even  if, 
according  to  organisations  representing  cooperatives,  other  SCEs  were  to  be 
established,  experience  of  both  the  implementation  and  the  application  of  the 
Directive is lacking. 

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CY, DE, EE, PT, RO, SK, UK which provisions did not acknowledge such participation 
Preliminary results of a study carried out for the Commission by Cooperatives Europe, EURICSE and 
EZAI Foundation: 17 SCEs recorded (1 in 2006, 5 in 2008, 7 in 2009 and 4 in early 2010) in 9 Member 
states (5 in IT, 3 in SK, 2 in HU, 2 in BE, 1 in DE, LIE, NL, ES, SE) with a total of 32 employees..  

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4.2. 

Complexity of the provisions  

Understanding the national implementing provisions of both the Regulation and the 
Directive  may  present  a  challenge  to  smaller  organisations32.  As  for  the  Directive, 
the existence of two different routes governing the involvement of employees in the 
SCE  –  negotiation  or  national  rules  -  as  well  as  the  specific  provisions  on  the 
participation  in  general  assemblies  needs  to  be  properly  understood.  However,  as 
Member  States  have  quite  literally  transposed  the  Directive  in  specific  laws,  the 
implementation does not add to complexity. Moreover, social actors involved in the 
cooperative  movement  and  in  the  trade  union  movement  stress  that  the  complexity 
lies  instead  in  the  statute,  and  they  have  taken  actions  since  2006,  often  with  the 
financial support of the Union, designed to prepare the setting up of mechanisms for 
information, consultation and participation in SCEs. 

4.3. 

Specificities of cooperatives 

Cooperatives differ from limited companies in several respects. They have their own 
legislation,  which  is  different  from  company  law  in  some  Member  States,and  they 
may  even  be  qualified  as  civil  associations  rather  than  companies  under  national 
law33, with some specific laws applying to certain types of cooperatives (agricultural, 
housing, credit or health). As regards individual employment relationships, there are 
no  apparent  differences  for  the  most  relevant  aspects.  However,  there  are  some 
specific features as regards collective relations, to account for the difference between 
workers  who  are  members  of  the  cooperative  and  those  who  are  not.  While  these 
specificities  raise  no  particular  problems  as  regards  information  and  consultation, 
they  do  present  a  more  complex  picture  with  regard  to  collective  agreements  or 
board-level participation34.  

Some concerns have been raised by national cooperative movements that SCE may 
undermine the cooperative principles, but these concerns focus on the statute itself, 
not  on  employee  involvement.  The  independent  experts  have  identified  a  positive 
impact of the transposition of the Directive on Labour law and on Cooperative law. 
The Commission also notes that the implementation of the Directive has acted as an 
incentive  for  joint  work  and  developments35  between  trade  unions  and  the 
organisations representing the cooperatives at national and European levels.  

4.4. 

Common issues on transnational involvement of employees 

Some  issues  are  common  to  the  various  directives36  dealing  with  transnational 
involvement  of  employees  and  in  particular  to  the  Directive  2001/86/EC  (the  SE 
Directive). 

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36 

BusinessEurope  member  organisation  SN  noted  that  "though  the  mechanism  can  be  said  to  be  rather 
complicated  it  has  become  some  kind  of  standard  procedure  for  employee  participation",  being 
organised as a whole in the same manner as for the SE.  
Own legislation in ES, HU, PL, PT, SE; civil associations in NL 
For example in CY private agreements and not collective ones; in HU no board-level participation 
Notably through projects financed under budget line 04.03.03.03 
Directives  94/45/EC  recast  by  Directive  2009/38/EC  on  European  works  Councils,  SE  Directive 
2001/86/EC – see above), Directive 2005/56/EC of the European Parliament and of the Council of 26 
October 2005 on cross-border mergers of limited liability companies, OJ L 310, 25.11.2005, p. 1. 

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As  to  the  misuse  of  procedures,  the  independent  experts37  point  out  that  several 
Member  States38  have  not  transposed  Article  13  of  the  Directive  which  requires 
Member States to take appropriate measures with a view to preventing the misuse of 
an SCE for the purpose of depriving employees of rights to employee involvement or 
of  withholding  such  rights.  As  it  had  been  the  case  for  the  SE  Directive39,  the 
Commission deems this to be a potential cause of concern. 

The  protection  of  participation  rights  where  a  European  company  or  Cooperative 
Society converts into a company or cooperative of national statute has been raised in 
the  context  of  the  review  of  the  SE  Directive40.  To  address  this  issue,  Directive 
2005/56/EC on cross-border mergers obliges the company to adopt a legal form that 
allows for the exercise of participation rights41.  

The  independent  experts  point  to  the  absence  of  provisions  in  the  Directive  as 
regards the enforceability of the agreement on employee involvement42. The recast of 
the  Directive  on  European  Works  Councils  led  to  fresh  approaches  in  this  area,  as 
employee  representatives  will  have  the  means  required  to  apply  the  rights  arising 
from the Directive to collectively represent the employees' interests. 

Issues  relating  to  the  key  definitions  of  the  Directive,  such  as  "employees' 
representatives",  "involvement  of  employees",  "information",  "consultation", 
"participation", "participating legal entities" are raised in the same way as for other 
directives,  particularly  the  SE  Directive  2001/86/EC.  There  is  a  case  for  a  more 
coherent approach to these definitions across the directives. 

5. 

CONCLUSIONS 

The  Directive  has  been  transposed  in  all  Member  States  only  since  March  2009. 
There is therefore a lack of experience in the practical application of the Directive. 

Furthermore, the Directive is not a stand-alone piece of legislation. It complements 
the  SCE  Regulation  and  shows  striking  similarities  with  other  directives  governing 
the involvement of employees, such as the SE Directive. The Commission considers 
that the outcome of the evaluation of these directives and of the Regulation needs to 
be taken into account before launching any future revision process.  

These conclusions are shared by all Member States43 and social partners44 who have 
expressed their views in the consultation process to draw up this report. 

37 
38 
39 
40 
41 

42 
43 

See reference to Studies by Labour Asociados and Milieu in footnote 4 
EL, HU, IE, NL, SI; needs further investigation for BG, CZ, LV and PT  
See point 3.6 of report COM(2008)591 
See point 4.4 of report COM(2008)591 
SE  also  noted  that  fresh  ideas  on  the  way  to  deal  with  important  changes  as  regard  the  number  of 
employees after the creation of a company under a European statute have also been raised in the context 
of the 2009 discussion in Council of Article 35 of the proposal for a Regulation on a European Private 
Company. 
National implementing measures of ES and PT however provide for legal efficiency of the agreement. 
See  list  of  answers  in  point  1  (introduction);  some  Member  States  consider  that  any  future  revision 
process should focus on the Regulation and the concept of European Cooperative Society, rather than 
on the Directive. 

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It  is  necessary  to  inquire  into  the  reasons  for  the  very  low  take-up  of  the  EU  legal 
framework for cooperatives, before considering any moves towards a revision of the 
Directive. 

This  Report  has  identified  some  issues45  that  merit  further  consideration.  The 
Commission  will  continue  monitoring  the  correct  implementation  of  the  Directive, 
and promoting capacity-building of stakeholders46.   

44 

45 

46 

ETUC considers that there is no need to simplify the Directive and that, in the event of a revision of the 
Regulation, there would be a need to consult the social partners. Business Europe member organisation 
CIP considers that any revision of the legislation should avoid creating additional burdens for business. 
In particular on transnational negotiation procedure, misuse of procedures and transversal issues across 
directives on employee involvement.  
The  Commission promotes  actions with  these  aims,  in  particular  under  budget  heading 04.030303  — 
Information, consultation and participation of the representatives of undertakings. 

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