COMMISSION STAFF WORKING DOCUMENT Evaluation Accompanying the document Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee Report on the implementation by Member States of Directive 2009/38/EC 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)
Date: 2018-05-14
Institutions: Directorate-General for Employment, Social Affairs and Inclusion, European Commission
Subjects: European Works Council, European undertaking, group of companies, labour law, multinational enterprise, social dialogue (EU), worker consultation, worker information

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 14.5.2018  SWD(2018) 187 final  COMMISSION STAFF WORKING DOCUMENT Evaluation Accompanying the document Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee Report on the implementation by Member States of Directive 2009/38/EC 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) {COM(2018) 292 final}  
 
 
CONTENTS 

I. 

INTRODUCTION .............................................................................................................. 3 

A. 

B. 

Purpose of the evaluation ............................................................................................ 3 

Scope of the evaluation ................................................................................................ 3 

II. 

BACKGROUND TO THE INITIATIVE ....................................................................... 4 

A. 

B. 

C. 

History of the Recast Directive ................................................................................... 4 

Content of the Recast Directive ................................................................................... 5 

Intervention logic ......................................................................................................... 8 

III.  METHODOLOGY .......................................................................................................... 9 

A. 

B. 

Sources of findings ...................................................................................................... 9 

Limitations —robustness of findings ........................................................................ 11 

IV. 

TRANSPOSITION AND IMPLEMENTATION — STATE OF PLAY ..................... 12 

A. 

Transposition overview ............................................................................................. 12 

1.  Establishment of EWCs ............................................................................................. 12 

2.  The concepts of information, consultation and transnationality ................................ 13 

3.  The operation of EWCs ............................................................................................. 13 

4.  The role and protection of employee representatives ................................................ 14 

B. 

Legal certainty ........................................................................................................... 15 

V. 

ANALYSIS OF THE BETTER REGULATION EVALUATION CRITERIA ........... 20 

A. 

Effectiveness .............................................................................................................. 20 

1.  Encouraging the creation of EWCs and their characteristics .................................... 20 

2.  The scope of EWC action: transnational matters ...................................................... 25 

3.  Ensuring the effectiveness of employees’ transnational information and consultation 
rights ................................................................................................................................. 26 

4.  Articulation of the various levels of the information and consultation process ........ 31 

5.  Others measures impacting the effectiveness of the Recast Directive ...................... 32 

6.  Enforcement ............................................................................................................... 36 

B. 

Efficiency ................................................................................................................... 39 

1.  Quantifiable and non-quantifiable costs .................................................................... 39 

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2.  Quantifiable and non-quantifiable benefits ............................................................... 41 

3.  Comparison of the administrative burdens for EWCs before and after June 2011 ... 42 

C. 

D. 

Relevance ................................................................................................................... 43 

Coherence .................................................................................................................. 44 

E.  EU added value ............................................................................................................. 47 

1.  Subsidiarity ................................................................................................................ 47 

2.  Proportionality ........................................................................................................... 48 

VI.  CONCLUSIONS ........................................................................................................... 48 

Annex 1: Procedural information concerning the process to prepare the evaluation ............... 52 

Annex 2: Stakeholder consultation .......................................................................................... 54 

Annex 3: Sources of findings ................................................................................................... 56 

Annex 4: Coherence analysis overview with other EU instruments ........................................ 59 

Annex 5: Enforcement overview .............................................................................................. 61 

Annex 6: Sanctions overview ................................................................................................... 65 

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I. 

INTRODUCTION 

A.  Purpose of the evaluation 

This  evaluation  assesses  the  impact  of  new  rules  and  changes  introduced  by  the  Recast 
Directive  2009/38/EC  on  the  establishment  and  operation  of  a  European  Works  Council 
(‘EWC’)  or  a  procedure  in  Community-scale  undertakings  and  Community-scale  groups  of 
undertakings for the purposes of informing and consulting employees (commonly named ‘the 
Recast Directive’1). 

European  Works  Councils  (EWCs)  are  bodies  representing  European  employees  within 
transnational  companies2.  Through  them,  employees  are  informed  and  consulted  by 
management  on  the  progress  of  the  business  and  any  significant  decision  at  European  level 
that could affect their employment or working conditions. 

Article 153  of  the  Recast  Directive  requires  the  Commission  to  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. 

Since  work  on  this  evaluation  started  before  the  adoption  of  the  2015  Commission  Better 
Regulation Guidelines4, an evaluation roadmap was drawn up in January 2016 to comply with 
them.  In  the  light  of  the  Guidelines,  the  evaluation  draws  conclusions  on  the  effectiveness, 
efficiency, coherence, relevance and the EU added value of the new provisions introduced by 
the Directive. It also provides corresponding analysis and findings. 

B.  Scope of the evaluation 

The  evaluation  focuses  on  the  changes  brought  by  the  Recast  Directive  to  the  original 
Directive  94/45/EC5  as  determined  in  the  evaluation  roadmap.  It  does  not  therefore  analyse 
the entire Directive, only those provisions introduced in the 2009 Recast and their effects on: 
(i) the creation of more EWCs; (ii) the effectiveness of employees’ transnational information 
and consultation rights; and (iii) the improvement of the legal framework. 

1 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 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) (OJ L 122, 16.5.2009, pp. 28-44). 

2 Defined as ‘Community-scale undertakings’ in Article 2(1) (a) of Directive 2009/38/EC. 

3  ‘No  later  than  5 June  2016,  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.’ 

4 https://ec.europa.eu/info/files/better-regulation-guidelines_en. 

5  Council  Directive  94/45/EC  of  22 September  1994  on  the  establishment  of  a  European  Works  Council  or  a 
procedure  in Community-scale  undertakings  and  Community-scale  groups of  undertakings  for  the  purposes  of 
informing and consulting employees — OJ L 254, 30.9.1994, p. 64-72. 

3 

 
 
                                                 
The  evaluation  assesses the  transposition and  the  implementation  of  the  Recast  Directive  in 
the Member States and the extent to which it has achieved its goals set out in its Recital 7: ‘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 while enabling the continuous functioning of existing agreements, 
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.’ 

The geographical scope of this evaluation covers the European Economic Area, i.e. the EU in 
its present composition of 28 Member States plus Norway, Liechtenstein and Iceland. 

The  time  period  covered  is  from  June  2011  (the  date  of  the  transposition  deadline  of  the 
Recast Directive6) to November 2017. 

II.  BACKGROUND TO THE INITIATIVE 

This  section  provides  a  short  description  of  the  history  of  the  Recast  Directive,  its  content, 
objectives and ‘intervention logic’. 

A.  History of the Recast Directive 

The  possibility  to  establish  EWCs  was  first  introduced  by  Directive  94/45/EC7  of 
22 September 1994. It was extended to the United Kingdom by Council Directive 97/74/EC 
of 15 December 1997 and adapted by Council Directive 2006/109/EC of 20 November 2006, 
to  take  account  of  Bulgaria  and  Romania  joining  the  EU.  In  the  implementation  report  of 
4 April  2000  to  Parliament  and  the  Council8,  the  Commission  stated  that  it  would  take  a 
decision on a possible review of the Directive 94/45/EC based on the subsequent assessments 
required  under  the  Directive  and  on  developments  in  the  other  legislative  proposals  on  the 
involvement of employees. 

This  implementation  report  highlighted  the  following  problems  in  the  application  of  the 
Directive: 

 

the  legal  framework  was  not  ensuring  an  adequate  transnational  information  and 
consultation within a reasonable timeframe, especially in restructuring cases; 

6 Except for Croatia, for which the date of accession to the EU (July 2013) is the relevant date. 

7 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31994L0045. 

8 Commission implementation report COM (2000) 188. 

4 

 
 
 
                                                 
 

 

there were practical shortcomings in its application, particularly on the effectiveness of 
the flow of information between the different levels of worker representation; 

the  lack  of  appropriate  training  for  EWC  representatives  to  be  able  to  represent 
workers' interests and ensure transnational communication. 

Also, EWCs have been set up in only 36 %9 of undertakings falling under the Directive. 

A  political  agreement  was  reached  in  2008  under  the  French  EU  Presidency  to  recast  the 
Directive once the social partners had been consulted and their joint input taken into account. 
The  Commission  adopted  a  legislative  proposal  in  July  200810.  Improving  the  efficiency  of 
EWCs was one of the objectives of the action programme for reducing administrative burdens 
in the EU11. 

The European Parliament and the Council adopted the new Directive 2009/38/EC on 6 May 
2009.  Some  amendments  introduced  by  the  co-legislators  reflected  a  joint  position  of  the 
social partners put forward during the adoption process in a joint letter to the Commission12. 
The Recast Directive entered into force on 5 June 2009. In October 2015, it was amended13 to 
include seafarers in its scope of application. 

B.  Content of the Recast Directive 

EWCs can be established in undertakings where the following conditions are met: 

  Community-scale  undertakings  employing  at  least  1 000  employees  within  the 
Member States and at least 150 employees in each of at least two Member States; 

 

  Community-scale group of undertakings14 employing:  

o  at least 1 000 employees within the Member States;  

o  at least two group undertakings in different Member States;  

9 COM(2008) 419 explanatory memorandum. 

10 Commission proposal COM(2008) 419 final and Impact Assessment SEC(2008) 2166. 

11 COM(2009) 544 final of 22.10.2009 and its Annex C. 
12 Joint advice by the social partners on the European Works Council ‘Recast Directive’ of 29 August 2008. 

13  Directive  (EU) 2015/1794 of the European Parliament and of the Council of 6 October 2015  amending 
Directives 2008/94/EC, 2009/38/EC and 2002/14/EC of the European Parliament and of the Council, and 
Council Directives 98/59/EC and 2001/23/EC, as regards seafarers. 
14  Article  2(1)(b)  of  the  Recast  Directive  defines  ‘group  of  undertakings’  as  a  controlling  undertaking  and  its 

controlled undertakings. 

5 

 
 
                                                 
o  at  least  one  group  undertaking  with  at  least  150  employees  in  one  Member 

State; and 

o  at  least  one  other  group  undertaking  with  at  least  150  employees  in  another 

Member State. 

The process of establishing a body or procedure to inform and consult employees is triggered 
by  a  request  by  100  employees  from  two  countries  or  an  initiative  by  the  employer.  The 
composition, competences and functioning of an EWC are laid down in an agreement reached 
by a ‘special negotiating body’ representing employees and central management. Subsidiary 
requirements  apply  in  the  absence  of  such  an  agreement.  EWCs  are  to  be  informed  and 
consulted on transnational issues affecting employees. 

The specific objectives of the Recast Directive 2009/38/EC are15: 

  ensuring  the  effectiveness  of  employees’  transnational 

information  and 

consultation rights; 

  promoting the creation of new EWCs; 

  resolving  the  problems  encountered  in  the  practical  application  of  Directive 

94/45/EC; 

  remedying  the  lack  of  legal  certainty  resulting  from  defects  in  some  provisions 
(such  as  definitions  of  information  and  consultation)  and  the  absence  of  others 
(e.g. definition of transnationality); 

  ensuring  better  links  with  other  EU  legislative  instruments  on  information  and 

consultation of employees. 

The  Recast  Directive  aimed  to  achieve  these  objectives  by  introducing  the  following  main 
substantive provisions: 

  Opening  and  process  of  negotiations:  Article 4  clarifies  the  responsibility  of  local 
management to provide information enabling the launch of negotiations to set up new 
EWCs. Article 5 details the role and composition of the special negotiating body (i.e. 
the body representing employees in the negotiation). 

  Role of trade union and employers’ organisations: Article 5 introduces the obligation 
to  inform  the  trade  unions  and  employers’  organisations  of  the  start  of  negotiations 
establishing an EWC. 

  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 of the Recast 

15 Recital 7 of Recast Directive 2009/38. 

6 

 
 
                                                 
Directive adds a definition of information and brings the definition of consultation into 
line with other Directives16, including the concepts of timing and content appropriate 
to the information and consultation. 

  Transnational  competence  of  the  EWC:  The  EWC’s  competence  is  limited  to 
transnational  issues,  with  the  Recast  Directive  introducing  criteria  that  are  more 
specific to determine the transnational nature of an issue. 

  Links between the levels of information and consultation of employees: Article 12 of 
the  Recast  Directive  introduces  the  principle  of  a  link  between  the  national  and 
transnational levels of information and consultation of employees, with due regard for 
the representative bodies’ competences and areas of action. 

  Role and capacity of employees’ representatives: Article 10 provides that the members 
of an EWC must have the means required to apply the rights arising from the Directive 
to represent collectively the interests of the employees. It also places an obligation on 
the  employees’  representatives  to  report  to  the  employees  they  represent  and  gives 
employees’ representatives the possibility to attend training without loss of salary. 

  Adaptation  clause:  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  applicable  agreement  or  in  accordance  with  the  negotiation 
procedure for a new agreement. 

  Continuity: Under Article 14, the agreements in place under the 1996 Directive are not 
subject  to  the  obligations  arising  from  the  Recast  Directive.  The  same  applies  to 
agreements establishing EWCs between 5 June 2009 and 5 June 2011. 

  Content of the subsidiary requirements: the Annex to the Directive lays down the rules 
applicable  in  the  absence  of  agreement  between  the  management  and  employees 
representatives concerning an EWC’s establishment, composition and competences. 

C.  Intervention logic 

The intervention logic diagram below summarises the problems, purpose, content, outcomes 
and intended impacts of the Recast Directive and their inter-relations. 

16 Directives 2002/14 on a general framework of information and consultation of employees; 98/59 on collective 

redundancies; 2001/86 on involvement of employees in European companies. 

7 

 
 
                                                 
• Low implementation of transnational information and consultation rights 
• Low number of EWCs established in transnational undertakings 
• Lack of effectiveness of information and consultation procedure  
• Legal uncertainty 
• Practical issues deriving from application of Directive 94/45/EC 

Problems 

• Obligation for the management to provide information enabling negotiations 
on the establishment of an EWC to start 
• Obligation to inform social partners at the start of negotiation 
• Definitions of the concepts of information, consultation and transnationality 
• Link between national and EU levels of information and consultation 
• Establishment of subsidiary requirements 

Actions 

• Creation of EWCs in eligible undertakings  
• Employees more fully and more effectively informed and consulted 
• Clearer legal framework for employers and employees 

Outcomes 

• Improved protection of employee rights on information and consultation on  
decisions affecting the company and their working conditions 
• Increased  transparency  for  employees  about  the  economic  and  social 
situation of the company they work for 
• Improved  industrial  relations  between  employers  and  employees,  reduced 
litigation and industrial disputes in situations falling under the remit of EWCs 
• Improved legal certainty for all stakeholders 

Expected 
impacts 
(objectives) 

8 

 
 
 
 
 
 
III.  METHODOLOGY 

This report is based on an analysis of data and information collected from various sources, as 
explained below. 

A.  Sources of findings 

The main sources of information and data used in the evaluation combine the following: 

  a  study  by  an  external  contractor  (‘the  study’)  commissioned  in  201517.  The  final 
report  was  delivered  in  May  2016  and  covers  the  implementation  of  the  Recast 
Directive  in  all  Member  States  since  the  transposition  deadline  of  June  2011.  The 
study  has  been  validated  by  a  steering  group  led  by  the  Commission  (see  Annex  1). 
The external study involved consultation of the following key stakeholders18: 

 

 

the  cross-industry  EU  social  partners  (i.e.  Business  Europe,  European 
Trade Union Confederation, CEEP); 

the 23 European social partner organisations from the key sectors in which 
EWCs are represented; 

  national social partners; 

  a sample of  employee and  employer representatives from companies with  

EWCs established after the adoption of the Recast Directive; 

  a sample of  employee and  employer  representatives from companies with  
EWCs  established  under    Directive  94/45  EWCs  but  with  revised 
agreements under the Recast Directive; 

  a sample of  employee and  employer representatives from companies with 

EWCs established under Directive 94/45 and not amended since; 

 

representatives of Member States; 

  European labour law experts (European Labour Law Network19). 

  expert  group  meetings,  which  took  place  in  November  2015  and  June  2016.  The 
Commission  collected  opinions  on  the  evaluation  and  the  Directive  in  general  from 
national  experts  designated  by  Member  States  and  European  social  partners.  During 
the  meetings,  the  interim  findings  and  the  final  findings  of  the  external  study  were 
presented  and  acknowledged  by  the  members  of  the  expert  group.  The  specific 

17 Evaluation Study on the implementation of Directive 2009/38/EC on the establishment of an EWC, ICF, May 

2016. 

18 See Annex 2 for a list of stakeholders consulted. 

19 http://www.labourlawnetwork.eu/ 

9 

 
 
 
                                                 
comments  made  by  Member  States  (UK,  Croatia)  on  the  transposition  analysis  were 
taken into account in the assessment presented in this staff working document. 

  extensive  data  collection  and  analysis  deriving  from  various  studies  on  EWCs, 

principally: 

  European  Works  Councils  and  SE  works  councils  in  2015,  Facts  and  figures, 

ETUI (Stan De Spiegelaere and Romuald Jagodzinski) 2015. 

  Variations  on  a  theme?  The  implementation  of  the  EWC  Recast  Directive,  ETUI 

(Romuald Jagodzinski) 2015. 

  Linking  information  and  consultation  procedures  at  local  and  European  level, 

Eurofound (Filip Dorssemont and Peter Kerckhofs) 2015. 

  European  Works Council developments  before, during and after  the  crisis, (Peter 

Kerckhofs) 2015. 

  EWCs assessments and requirements, Report to the ETUC — ETUC 2016. 

  Too  little  and  too  late?  —  Evaluating  the  European  Works  Councils  Recast  Directive, 

ETUI (Stan De Spiegelaere) 2016. 

  EWCs  on  the  move:  management  perspectives  on  the  development  of  a 
transnational institution for social dialogue, KU Leuven CESO, 2016, co-financed 
by Business Europe. 

  European Journal of Industrial Relations, volume 23, issue 3 — September 2017. 

  documentation from projects which received grant support from the Commission 

The  Commission  organises  a  yearly  call  for  proposals20  to  fund  operations  aimed  at 
developing  employee  involvement  in  undertakings.  This  covers  any  mechanism,  including 
information,  consultation  and  participation,  through  which  employees’  representatives  may 
exercise an influence on decisions to be made within the company. The outcomes of relevant 
projects on EWCs were taken into account in this evaluation21. 

A  public  consultation  was  judged  unnecessary  and  was  therefore  not  carried  out.  This  was 
because various key stakeholders22 were already consulted via the study at company, national 

20  Commission  call  for  proposals  —  ‘Information,  consultation  and  representation  of  representatives  of 
undertakings’ Directorate-General  for  Employment,  Social  Affairs  and  Inclusion  (DG  EMPL)  Prerogative 
and  Specific  competencies  —  Commission  Decision  C(2016)6596/F1  for  call  for  proposals  2017. 
http://ec.europa.eu/social/main.jsp?catId=629&langId=en&callId=511&furtherCalls=yes. 

21 See Annex 3. 

22 83 interviews and 34 surveys conducted by the external contractor, see Annex 2. 

10 

 
 
                                                 
and EU levels (see Annex 2), and given the highly specialised knowledge needed to respond 
meaningfully  to  evaluation  questions  on  the  new  provisions  introduced  by  the  2009  Recast 
Directive. 

B.  Limitations —robustness of findings 

The Commission identified some limitations in the methods and data used in this evaluation. 

For the study, the sample of employees, employers and social partners interviewed was made 
based  on  a  balanced  selection  taking  into  account  geographic  location,  as  well  as  different 
sizes  and  types  of  labour  markets.  This  included  covering  the  main  models  of  industrial 
relations  systems  extant  in  the  EEA.  However,  the  number  of  respondents  among  EWC 
practitioners  was  slightly  lower  among  employers  than  employees23.  Interviews  with 
stakeholders  and  comparisons  with  secondary  data  sources  were  used  to  cross  check  and 
assess  stakeholders’  statements.  The  Commission  used  a  wide  range  of  sources  in  this 
triangulation process to ensure that the assessment was as exhaustive as possible (see Section 
III.A ‘Sources of findings’). However, some limitations in the availability of relevant data are 
due  to  the  fact  that  this  evaluation  took  place  relatively  early  in  the  implementation  of  the 
Recast  Directive.  Some  EWC  practitioners  considered  themselves  to  be  in  an  ongoing 
learning  process  and  could  not  always  draw  conclusions  on  their  experience  of  the  new 
provisions. In addition, there was some bias in the interview data, as interviews did not cover 
failures to negotiate EWCs. 

The  compliance  assessment  also  faced  some  methodological  challenges,  particularly  in 
assessing  the  significance  of  divergence  between  the  Recast  Directive  and  national 
transposing  provisions.  The  Commission  and  the  contractor  therefore  established  agreed 
definitions underlying  the  mapping  to  determine  whether  national legislation  was compliant 
or not, notably by identifying the ‘key substantive provisions’ in the Recast Directive. 

Key substantive provisions were agreed to be: 

  opening and process of negotiations; 

 

role of trade unions and employers’ organisations; 

  content of the subsidiary requirements (which apply in the absence of an agreement); 

  general principles and concepts of information and consultation; 

 

 

transnational competence of the EWC; 

role and capacity of employees’ representatives; 

 

the adaptation clause. 

23 Response rate of 63 % for interviews of employers and employees representatives, with participation from the 

employee side 15% higher. 

11 

 
 
                                                 
IV.  TRANSPOSITION AND IMPLEMENTATION — STATE OF PLAY 

This section sets out the state of play on the transposition of the Recast Directive provisions in 
the  national  legislation,  based  on  the  study  and  their  effects  on  legal  certainty.  This 
transposition analysis was mainly conducted in four main areas: 

  establishment of the EWCs; 

 

the concepts of information, consultation and transnationality; 

 

the operation of EWCs; 

 

the role and protection of employee representatives at company level. 

The  analysis  also  determined  whether  the  Member  States  have  implemented  provisions, 
which go beyond the minimum standards imposed by the Directive. 

The transposition assessment of the EU rules on enforcement is described in Section V-A-6. 

A.  Transposition overview 

1.  Establishment of EWCs 

The provisions assessed here are related notably to  

 

 

 

 

the information the employer has to provide to start the EWC negotiations;  

the rules governing the special negotiating body (Article 5);  

the role of the social partners in the negotiations;  

the content of the EWC agreement (Article 6). 

Most  Member  States  properly  transposed  the  EU  legislation.  In  some  cases,  Member  States 
included more detailed provisions that go beyond the minimum requirements in the Directive. 
For instance, in Lithuania and Luxembourg, the legislation specifies a time limit for sending 
information,  the  categories  of  information  to  be  provided,  and  establishes  the  possibility  to 
bring  a  case  before  the  courts  in  case  the  information  is  not  provided.  Austria,  Germany, 
Hungary and Lithuania also established an obligation to inform national social partners of the 
intention to launch an EWC negotiation, not only the European social partners as referred to 
in Recital 27. 

However,  in  two  countries  (Greece  and  Iceland)  the  national  provisions  do  not  seem  to 
contain specific provisions on the information to be given to the European social partners at 
the start of the EWC negotiations. 

12 

 
 
 
2.  The concepts of information, consultation and transnationality 

To improve the clarity of the legal framework, the Recast Directive redefined the concepts of 
information, consultation and transnationality in Articles 2(f), 2(g) and 1(4) respectively. 

Those three concepts have been properly implemented in all the Member States. In addition, 
more extensive provisions were adopted in the Czech Republic, Germany and Estonia — for 
instance  requiring  the  consultation  process  to  end  with  a  reasoned  opinion  from  the 
management referring to the opinion expressed by employees’ representatives. 

3.  The operation of EWCs 

The operation of EWCs is covered in Section III of the Recast Directive. 

Most national legislation meets the requirements on the operation of EWCs by transposing the 
text of the Directive verbatim. 

Article 13  of  the  Recast  Directive  (‘Adaptation  clause’)  lays  down  a  requirement  to 
renegotiate  the  EWC  agreement  if  significant  changes  are  made  to  the  structure  of  the 
undertaking. The renegotiation is launched at the initiative of the employer or at the request of 
100 employees in at least two Member States. 

Spanish and German legislation transposing Article 13 varies slightly from the EU provisions 
when  specifying  the  conditions  of  application:  German  legislation  does  not  require  a 
minimum  of  100  employees  to  issue  the  written  request,  while  Spanish  legislation  specifies 
the minimum number of representatives that should form the special negotiating body. 

In  Denmark,  the  national  rules  do  not  seem  to  fully  meet  one  of  the  key  substantive 
requirements  of  the  Directive,  namely  establishing  a  possibility  for  the  special  negotiating 
body to meet without the presence of central management. 

4.  The role and protection of employee representatives 

Member States have properly transposed the provisions on the role, protection and training of 
EWC representatives. 

In  three  Member  States  (Finland,  Hungary  and  Italy)  some  provisions  go  beyond  the 
requirements  of  Article 10  as  they  also  cover  the  content  of  training  and  the  rate  of 
remuneration. 

Areas where other provisions (beyond those identified as key substantive provisions) were not 
transposed in national legislation are: 

  no  restriction  on  the  number  of  the  select  committee  members  (which  could  also  be 

interpreted as exceeding the requirements) (Bulgaria); 

  only partial reference to the subsidiary requirements (Estonia); 

13 

 
 
 
 
 
  no specific reference to the general principle that information and consultation must be 
effective  and  enable  companies  to  take  decisions  effectively  (Finland,  France, 
Luxembourg and the Netherlands); 

  no specific reference to the regularity of the select committee24 consultations (Poland); 

  no specific provision on the composition of the special negotiating body (Portugal). 

To  conclude,  in  most  of  the  Member  States  covered  by  the  Recast  Directive,  national 
legislation is generally compliant with the Directive by transferring the text of the Directive 
verbatim  or  by  adopting  a  very  similar  wording.  Only  in  three  Member  States  does  the 
national  legislation  not  seem  fully  compliant  with  the  minimum  standards  set  out  in  key 
substantive provisions25 and in 11 Member States for other provisions. 

The  analysis  concluded  that  15  Member  States  have  provisions  that  are  more  detailed  than 
those in the Recast Directive. These were assessed as going beyond the Directive’s minimum 
standards,  in  that  they  are  more  protective  for  employees  and/or  more  precise  than  the 
provisions in the Directive. 

B.  Legal certainty 

This  section  assesses  the  Recast  Directive’s  impact  on  legal  certainty  in  the  Member  States 
for transnational information and consultation of workers. 

The  evidence  presented  here  results  from  information  collected  principally  from  ministry 
representatives, national social partners, European social partners and labour law experts, and 
from an analysis of national case-law. 

Various  national  and  European  social  partners  were  interviewed  for  the  study26.  40 %  of 
national  social  partners  agreed  that  the  Recast  Directive  had  improved  legal  clarity  and 
certainty for the type of information to be disseminated, while for one other third it did not 
generate  any  changes.  The  remainder  stated  that  they  could  not  assess  the  impact  of  the 
Recast  Directive  on  legal  clarity  and  certainty  due  to  lack  of  experience  with  its  new 
provisions.  

Half  of  European  social  partners  confirmed  that  the  Recast  Directive  increased  clarity  and 
legal  certainty,  especially  for  the  definition  of  information  and  consultation,  the  role  of 
workers’ representatives, the adaptation clause (Article 13), and the right to training. On the 
other hand, a further 40 % considered that it was too early to identify such impacts reliably.  

24 Recital 30 lays defines the role of the select committee as  allowing" 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."  

25 Denmark, Greece, Iceland. 

26 ICF study p. 47. 

14 

 
 
                                                 
Some employee representatives drew attention to: (i) the ongoing lack of legal clarity over the 
scope of a transnational matter; and (ii) the resources allocated by employers to support the 
work of EWC members (financial and material resources, interpretation, budget for external 
expertise) to fulfil the obligation of Article 10 for employers to provide the means for EWC 
representatives to fulfil their functions. Finally, the timing of the information and consultation 
procedure in the event of restructuring is sometimes unclear. However, 85 % of the national 
social  partners interviewed stated that the volume of litigation related to EWCs had in their 
opinion not changed since the adoption of the Recast Directive. 

For the Member States, 12 out of 23 national ministry representatives27 responded that legal 
certainty  had  improved  across  all  aspects.  For  the  others,  either  it  was  too  early  to  draw 
reliable conclusions on this point or, for few Member States28, the Recast did not bring further 
legal clarifications on specific points such as the right to request external expertise for EWCs 
members, the timing of information and consultation, and the capacity of the EWC. 

Many  Member  States  reported no specific experience of enforcement as  the transposition is 
recent or there are few EWCs in the Member State concerned29. Austrian, Bulgarian, French, 
German and Swedish representatives pointed out that enforcement had become easier due to 
improved  legal  certainty.  Employers’  organisations  in  Italy  indicated  that  enforcement  had 
become easier, but employees’ organisations did not fully share this view, as for them some of 
the agreements still leave substantial room for interpretation of certain concepts that are not 
clearly defined, such as the scope of competence. 

Among  the  27  respondents  in  the  contractor’s  interviews  with  the  European  Labour  Law 
Network experts, half agreed that legal certainty had improved for all aspects covered by the 
Directive. Two thirds of respondents agreed that the Recast had improved legal certainty on 
the timing of information and consultation procedures. Half of the 27 respondents considered 
that the Recast had provided for better  information and consultation rights  for workers than 
was previously the case. 

For  experts  from  Croatia,  Germany,  Hungary,  the  Netherlands,  Romania  and  the  UK,  some 
issues remain over the functioning of EWCs, in particular their scope, and the identification of 
the  transnational  nature  of  topics  that  are  covered  by  the  information  and  consultation 
requirement. The interplay between the national and European levels of consultation can also 
constitute a challenge in practice when the national legislation or the EWC agreement do not 
precisely  specify  the  order  of  the  consultations  (i.e.  should  they  take  place  in  parallel,  or 
should the national consultation be conducted before or after the European-level one). 

Volume of litigation: 

There  is  a  perception  among  the  social  partners  and  experts  that  the  volume  of  litigation 
before and after the entry into force of the Recast Directive did not change. 

27 Some countries did not reply to the questionnaire. 

28 Belgium, Estonia, Italy, Latvia, Luxembourg, Sweden 

29 From interviews carried out under the study and expert meetings that took place in 2015 and 2016. 

15 

 
 
                                                 
At national level, the number of court cases challenging provisions of the Directive is low or 
very low30. 

The report31 on the implementation of Directive 1994/45/EC stated that the original Directive 
gave rise to few disputes, but there are no objective data that could allow for comparison of 
the  volume  of  litigation  before  and  after  the  Recast.  This  makes  it  difficult  to  measure  the 
impact of the Recast on this point. 

National court case analysis on legal certainty: 

For the period 2010-2015, the study examined in depth 10 national court cases that addressed 
issues  relevant  to  EWCs.  Most  occurred  in  France  and  Germany,  in  line  with  the  fact  that 
most of the EWC agreements are implemented under French or German jurisdiction. 

There  is  no  information  indicating  which  of  these  cases  were  brought  before  the  national 
courts before and after the Recast, so it is not possible to conclude whether the Recast had an 
impact on national litigation. 

The  10  cases  highlight  a  number  of  issues  and  legal  uncertainties  around  the  following 
aspects: 

  Establishment of an EWC 

A French case (Manpower) concerned the choice of the national law under which an 
EWC should be established. While the French trade union argued for France, the court 
ruled  in  favour  of  the  management’s  decision  to  appoint  its  British  subsidiary  to 
negotiate the EWC agreement under UK law. The case highlighted some issues over 
the  discretion  that  the  Recast  Directive  leaves  to  the  negotiating  parties  as  to  the 
choice of jurisdiction governing the EWC agreements. 

 

Information and consultation procedures 

Two  cases  from  Spain  (Tenneco  and  Coca  Cola)  concerned  the  interpretation  of  the 
timing  of  information  and  consultation  procedures.  In  both  cases,  it  seemed  that 
central management had already firmly decided on the measure under discussion. For 
that reason, trade unions maintained that the information and consultation procedures 
were  invalid.  The  court  ruled  that  these  procedures  should  include  a  genuine 
possibility to discuss potential impacts and seek possible alternatives to ensure that the 
procedures are useful and efficient. This interpretation by the Spanish Courts may be 
considered to go beyond the Recast Directive, which states that ‘“consultation” means 
the  establishment  of  dialogue  and  exchange  of  views  between  employees’ 
representatives  and  central  management  or  any  more  appropriate 
level  of 
management,  at  such  time,  in  such  fashion  and  with  such  content  as  enables 
employees’  representatives  to  express  an  opinion  on  the  basis  of  the  information 

30 European Centre of Expertise data November 2017. 

31 Commission implementation report COM (2000) 188. 

16 

 
 
                                                 
provided  about  the  proposed  measures  to  which  the  consultation  is  related,  without 
prejudice  to  the  responsibilities  of  the  management,  and  within  a  reasonable  time, 
which  may  be  taken  into  account  within  the  Community-scale  undertaking  or 
Community-scale group of undertakings’. 

  Articulation  between  national  and  European-level  consultation,  in  particular  over 

timing 

In two French cases concerning restructuring (GDF Suez and Peugeot) the ruling was 
that the national level and transnational levels must be consulted simultaneously. All 
consultation  procedures  must  be  correctly  carried  out  at  all  levels  before  a  decision 
may be implemented. 

  Definition of ‘transnational’ issues 

A  French  case  (Transdev)  concerned  the  payment  of  an  advance  which  led  to  the 
launch  of  insolvency  proceedings  for  a  subsidiary  of  the  French  part  of  the 
Community  undertaking.  The  EWC  claimed  it  should  have  been  consulted  on  the 
matter. The Court concluded that the measure was of a solely national nature and that 
management were not obliged to consult the EWC. The Court also stated that while it 
is  conceivable  that  the  measure  might  have  significant  consequences  in  future  and  a 
potential impact for the European workforce, at the stage when the matter was brought 
before  the  court  this  could  only  be  regarded  as  an  unproven  hypothesis.  This  makes 
clear  that  the  transnational  nature  of  a  matter  may  or  may  not  emerge  later  in  the 
process and in any case after the point at which the EWC should have been consulted. 
This  shows  the  close  link  between  national  and  European-level  information  and 
consultation  and  the  importance  of  both  the  national  and  European  works  councils 
being aware of measures under discussion at all levels of the establishment.    

In a second case, in the UK (British Council, CAC), the Arbitration Council did not 
rule as such on whether the measure was of a transnational nature but focused on the 
subject  matter  of  the  measure  in  question  (pay  policies).  The  Council  argued  that 
because  pay  policies  are  excluded  from  regulation  at  EU  level  they  couldn’t  by 
consequence also be a transnational subject matter for the EWC. As a result, it is only 
the national-level representation bodies that must be consulted on such a measure. 

  Communication between EWC representatives and national employees 

Two German cases dealt with the communication of the outcomes of an information 
and consultation procedure from the EWC to national worker representation bodies. 

In the case of a multinational group, the management refused to cover the travel costs 
of  two  EWC  Select  Committee  members  who  wished  to  present the  outcomes  of  an 
information and consultation procedure in person locally at a plant site, and did not see 
any  reason  why  both  of  the  representatives  had  to  carry  out  the  task.  It  was  further 
argued  that  only  Select  Committee  members  might  provide  such  information  on  the 
outcome  of  an  information  and  consultation  procedure.  The  Court  ruled  that  the 
German  transposition  text  restricts  the  function  of  informing  the  workforce  of  the 

17 

 
 
outcome  of  information  and  consultation  procedures  to  Select  Committee  members, 
but  found  that  under  the  Directive,  any  member  of  the  EWC  can  inform  national 
employee representation or the workforce. There is no obligation stipulating the means 
of  sending  this  information,  whether  in  person  or  via  video  conferencing.  Both  are 
compatible with the Directive. 

In the second case (Amcor), the EWC intended to communicate a report directly to the 
whole workforce via their intranet webpage. The central management brought a case 
against  this  direct  communication.  The  Court  ruled  that  an  EWC  has  no  right  to 
directly communicate with the workforce on the company intranet if there is a works 
council  present  in  the  respective  country  or  workplace.  The  Court  referred  to 
Article 10(2) of the Recast Directive, according to which the EWC  ‘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 (…)’. 

  Enforcement rights 

In the Visteon case (Germany), the Court declared the consultation procedure invalid 
and the EWC claimed that the Court should stop the measure in question as long as the 
consultation  was  not  correctly  carried  out.  However,  such  a  measure  to  enforce  the 
EWC’s rights does not exist under German law, which provides only for a monetary 
fine in cases of breaches of obligations deriving from the EWC legislation. In the case 
in  question  the  Court  ordered  that  the  company  pay  a  fine  of  EUR 15 000.  The 
decision  was  much  criticised  on  the  grounds  that  imposing  a  fine  that  is  relatively 
modest  given  the  amounts  at  stake  in  the  decisions  in  question  is  not  a  sufficient 
disincentive  to  prevent  undertakings  from  avoiding  information  and  consultation 
procedures. 

At EU level, there have been no preliminary rulings of the Court of Justice of the EU on the 
Recast  Directive.  The  Commission  has  received  only  one  formal  complaint  on  the 
implementation of the Recast Directive. This related to the level of sanctions in Finland. 

The  low  number  of  cases  at  national  and  EU  level  tends  to  indicate  that  there  is  not  much 
litigation over implementation of the Recast Directive and that it does not generate issues that 
cannot be resolved through legal interpretation using the existing systems. This could be due 
to  several  factors  such  as  the  Recast’s  improvement  of  the  definitions  of  key  concepts  and 
social partners’ capacity to find solutions through practice and social dialogue based on their 
growing  experience  of  EWCs.  However,  it  could  also  be  linked  to  problems  with  access  to 
enforcement and capacity to act in justice32. 

Overall, it appears from the evidence provided by stakeholders and legal experts that the new 
and  enhanced  definitions  contained  in  the  Recast  Directive  may  have  contributed  to  greater 
legal  certainty.  However,  the  lack  of  reliable  statistics  on  volume  of  litigation  is  not  at  this 
stage  conclusive  and  other  reasons  may  have  led  to  the  modest  volume  of  cases  brought 

32 See enforcement analysis below in Chapter 5. 

18 

 
 
                                                 
before the justice systems. The improvement of the legal framework does not systematically 
solve all practical issues faced by the social partners while operating EWCs, as described in 
Section V-A below. 

V.  ANALYSIS OF THE BETTER REGULATION EVALUATION CRITERIA 

A.   Effectiveness 

This  section assesses how the Recast  Directive supported the closure of gaps  and loopholes 
identified before its adoption, specifically by: (i) increasing the number of EWCs; (ii) solving 
practical  issues  by  better  defining  the  scope  of  EWCs’  competences;  (iii)  ensuring  the 
effectiveness  of  the  information  and  consultation  process;  and  (iv)  ensuring  the  linkage 
between EU and local levels of information and consultation. 

1.   Encouraging the creation of EWCs and their characteristics 

Quantitative overview of EWCs 

From 1997 to 2001, the annual number of EWCs newly established each year was between 50 
and 100, while between 2002 and 2008 it decreased to 30/40 per year33. The trend has been 
for  the  creation  of  around  20  EWCs34  gross  each  year  since  the  Recast  Directive’s 
transposition  deadline  (June  2011).  While  the  Recast  Directive  did  not  stop  the  declining 
trend in the creation  of EWCs and  has  not  completely achieved its objectives  in  this  regard 
yet, the absolute number of European Works Councils increased following the adoption of the 
Recast Directive. There are currently more than 1 060 EWCs35, compared with an estimated36 
total of 2400 companies where the thresholds for the establishment of EWCs have been met. 

The  graph  below,  derived  from  the  ETUI  database,  provides  an  overview  of  changes  in  the 
total  number  of  EWCs  since  the  end  of  1980s;  the  bottom  line  shows  the  net  creation  of 
EWCs  (EWCs  created  vs  EWCs  dissolved).  The  impact  of  the  Recast  Directive  can  be 
observed after June 201137: 

33 Courrier hebdomadaire 2198 p 36 Kerckhofs 2013. 

34 ICF Study Figure collected in January 2016. 

35 ETUI EWCs and SE Works Councils in 2015. 

36 This is an estimate as no EU register exists of companies meeting the thresholds for eligibility to establish an 

EWC. 

37 Too little too late? Evaluating the European Works Councils Recast Directive, ETUI (Stan De Spiegelaere) 

2016, page 22 (Figure 1). 

19 

 
 
 
 
                                                 
Source ETUI database-Report Too little too late Evaluating the EWC directive-Stan De Spiegelaere-Report 138-
2016 

Analysis of the ETUI EWC database shows that around 118 EWCs have been created since 
the  adoption  of  the  Recast  Directive.  However,  EWCs  have  also  been  dissolved38,  mainly 
because  of  mergers  and  acquisitions.  The  largest  number  of  post-recast  EWCs  is  in  France 
(19 %), followed by Sweden (12 %), the US (9 %) and Spain (7 %). 

Out  of  the  overall  number  of  EWCs,  20 %  are  established  in  companies  headquartered  in 
Germany,  followed  by  France  and  the  United  Kingdom.  EWCs  are  also  active  in 
multinational companies headquartered in the US, Switzerland and Japan with activity in the 
EU  meeting  the  thresholds  for  establishment  of  EWCs.  There  are  few  EWCs  set  up  in  new 
Member  States  (five  in  Hungary,  one  in  Poland)  registered  in  the  ETUI  EWC  database  in 
2016,  reflecting  the  low  numbers  of  multinational  companies  headquartered  in  the  new 
Member States. 

The rationale for establishing EWCs under the Recast provisions was principally the need to 
comply with the Directive. However, the distribution by Member State also reflects the nature 
of  the  industrial  relations  culture:  countries  with  a  culture  fostering  development  of 
transnational social dialogue tend to have a larger proportion of EWCs.  Three types of EWCs 
coexist, depending on their legal basis: 

- 

- 

‘Article 6  EWCs’  are  EWCs  fully  covered  by  the  Recast  Directive39  and  all  its 
obligations (see also section below on subsidiary requirements). Some 117 agreements 
have been renegotiated under the Recast Directive. 

‘Article 13 EWCs’: Article 13 of the Recast Directive created the possibility for pre-
existing  works  council  agreements  concluded  before  September  199640  to  continue 

38 An estimated 10 EWCs are dissolved per year according to the ETUI EWC Database. 

39 Article 6. 

20 

 
 
 
 
                                                 
without  being  obliged  to  implement  the  Recast  Directive.  Some  395  EWCs  are 
functioning under pre-directive EWCs. 

- 

‘Article 14(1)(b)  EWCs’:  the  Recast  Directive  extended  the  exemption  to  EWCs 
negotiated during the transition period from June 2009 to June 201141 which were not 
obliged  to  implement  the  new  provisions  created  in  the  Recast  Directive.  3 %  of 
EWCs function under this article. 

According to the ETUI EWC database, 40 % of active EWCs are still functioning under pre–
Recast  rules.  During  the  transition  period,  83  agreements  were  signed,  largely  consisting  of 
amendments or extensions to existing agreements. 

The Recast Directive has provided some impetus for the renegotiation of existing agreements, 
despite the fact that it permits existing agreements to continue unrevised. However, it is not 
possible to isolate the impact of the Recast Directive on the revision of existing agreements 
from drivers of broader business re-organisations or shortcomings in existing practices. It is 
useful  to  recall  that  the  objective  of  the  Recast  Directive  was  to  increase  the  proportion  of 
eligible  undertakings  establishing  a  EWC  while  ‘enabling  the  continuity  of  existing 
agreements’ (Recital 7). It does not therefore constitute a failure of the Recast that its rules do 
not apply to all existing EWCs. 

The evaluation concludes that the Recast Directive did not lead to an increase in the rate of 
creation of EWCs. The reasons for this are complex and multiple: 

  The  lack  of  awareness  of  legal  requirements  among  those  affected  (20 %  of 
respondents from German works councils in eligible companies did not know of the 
existence of EWCs42). 

  There is no automatic obligation to establish a EWC even if the undertaking meets the 
thresholds; it has to be requested by 100 workers or established at the initiative of the 
employer.  Representative  European  social  partner  organisations  in  the  sector  do  not 
have the right to trigger the written demand. 

  The location of companies headquartered in countries with a less developed tradition 
of employee information and consultation, such as many of the southern and central 
and eastern Member States 

  Companies  with  EWCs  are  larger  and  more  transnational  in  extent  than  the 
companies  potentially  covered  by  the  Recast  Directive  that  have  not  yet  set  up  an 
EWC43. 

40 Transposition deadline of Directive 1994/45/EC. 

41 Transposition deadline of Directive 2009/38/EC. 

42 Too little too late? Evaluating the European Works Councils Recast Directive, ETUI (Stan De Spiegelaere) 

2016, page. 

21 

 
 
 
                                                                                                                                                         
  A  significant  volume  of  mergers  and  acquisitions  in  some  sectors  such  as  transport 
led  to  numerous  dissolutions  of  EWCs,  which  lowered  the  net  rate  of  creation  of 
EWCs. 

  The  duration  of  EWC  negotiations:  on  average  it  takes  2  to  3  years  from  the 
establishment of the special negotiating body to conclusion of the EWC agreement. 

  The structure of some undertakings means that the thresholds for establishing a EWC 
may not formally be met. An example of this is the widespread use of franchising by 
some multinational companies in the catering sector. 

  The  lack  of  appropriate  enforcement  measures  in  some  Member  States  when  the 

obligations arising from the Recast Directive are not met. 

  Scepticism  among  employers  about  the  added  value  of  EWCs  compared  with  the 

costs and resource implications of establishing and operating them. 

  The  possibility  to  use  other  instruments  such  as  Societas  Europaea  (SEs44)  which 

offer other means of keeping employees informed and consulting with them.  

  Some  of  these  factors,  which  restrict  the  potential  growth  in  the  number  of  EWCs, 
may indicate that the Recast Directive had a positive impact on keeping the net rate of 
creation  of  new  EWCs  positive.  Close  to  half  of  all  eligible  companies  have  now 
established an EWC, but if the issues set out above are addressed in a more targeted 
manner, there is potential to achieve greater take-up. 

Characteristics of EWCs following the Recast Directive:  

New EWCs are generally created in large multinational companies in the metal, services and 
chemical sectors (with more than 10 000 workers). However, compared with before the 2009 
Recast, there is a growing proportion of smaller companies (with more than 5 000 workers) 
establishing  EWCs  in  sectors  such  as  textile,  transport  and  services45.  The  indication  that 
companies with recast EWCs may be smaller in terms of number of workers is confirmed by 
analysis of average turnover, which for those companies is five times lower than for EWCs 
established under previous rules. 

According  to  the  study,  EWCs  operating  under  the  new  rules  are  on  average  considerably 
smaller  than  EWCs  operating  under  Article 13  and  Article 6  rules,  in  line  with  the  smaller 

43 https://www.etui.org/Publications2/Reports/European-Works-Councils-Facts-and-Figures-2016 

44  Council  Regulation  (EC)  No  2157/2001  of  8 October  2001  on  the  Statute  for  a  European  company  (SE); 
Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with 
regard to the involvement of employees. 

45 Too little too late? Evaluating the European Works Councils Recast Directive, ETUI (Stan De Spiegelaere) 

2016, page. 

22 

 
 
                                                                                                                                                         
overall  number  of  employees  in  these  companies.  The  average  number  of  employee 
representatives  is  16,  compared  to  23  among  EWCs  established  under  Directive  94/45/EC. 
However, this depends obviously on the company size and structure: those EWCs, operating 
under new rules, involve on average four representatives of the management, although up to 
nine or ten can be involved in the EWC. This is largely in line with trends in other EWCs. 

Recast  EWCs  operate  a  slightly  more  frequent  programme  of  plenary  meetings  than  other 
types of EWCs. 40 % of sampled EWCs organise two annual plenary meetings, while the rest 
organise one plenary meeting per year. 

94 %  of  EWCs  have  provisions  in  their  agreements  to  hold  extraordinary  meetings  in 
situations  of  transnational  change/restructuring.  In  some  cases,  this  right  is  available  to  the 
members of the steering committee only. 

Among the Recast EWCs, there has been a slight decline in the share of EWCs that operate 
employee-only  preparatory  meetings  (77 %  compared  to  96 %).  This  may  be  due  to  the 
impact  of  new  technology  (online  communication  channels)  on  the  regular  exchange  of 
information. 

More  than  one  third  of  Recast  EWCs  (36 %)  have  set  up  a  working  group  to  follow  up 
meetings or prepare extraordinary meetings, compared to 29 % of Article 6 and 13 EWCs. 

The  following  sections  examine  to  what  extent  the  new  provisions  of  the  Recast  Directive 
impacted the functioning of the EWCs. 

2.  The scope of EWC action: transnational matters  

The Directive limits the competence of the EWC to transnational matters. The criteria used to 
determine  whether  a  matter  is  transnational  or  national  are  related  to  the  number  of 
undertakings concerned and the extent of its potential effects.   

Article 1(4)  of  the  Directive  specifies  that  ‘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’. 

Recital  16  provides  additional  details:  '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  it  involves.  For  this  purpose,  matters  that  concern  the 
entire undertaking or group or at least two Member States are considered to be transnational. 
These  include  matters  which,  regardless  of  the  number  of  Member  States  involved,  are  of 
importance  for  the  European  workforce  in  terms  of  the  scope  of  their  potential  effects  or 
which involve transfers of activities between Member States.’ 

The Directive establishes quantitative (Article 1(4)) and some qualitative (Recital 16) factors 
for  establishing  whether  an  issue  is  transnational.  The  transposition  analysis  concludes  that 
Member States did not go beyond the EU minimum standards by defining the concept in more 
detail. 

23 

 
 
According  to  the  findings  of  the  study,  most  Recast  EWCs  focus  ‘almost  exclusively’  on 
transnational  matters.  Of  the  employees’  representatives  interviewed,  some  30 %  stated that 
the EWC was solely focused on transnational issues, while the remainder indicated that theirs 
was almost solely focused on transnational matters. This is a surprising result given the formal 
restriction of the scope of EWCs to transnational matters. It can be explained by the fact that 
EWC  members  generally  also  have  a  role  as  national  representatives,  so  national  concerns 
often remain more pressing and are introduced into the work of the EWC. The ability of an 
EWC  to  remain  solely  focused  on  transnational  matters  depends  on  the  clarity  with  which 
distinctions between national and transnational issues are delineated by both sides. The extent 
to which representatives of one country dominate the balance of representatives on an EWC 
can also have an impact in weighting its work towards a single Member State. 

Similarly  to  the  employee  representatives,  most  employer  representatives  interviewed 
indicated  that  their  EWC  almost  exclusively  focused  on  transnational matters.  A  number  of 
respondents on the management side explained that  keeping EWCs as a transnational forum 
can  be  quite  challenging,  as  employees’  representatives  tend  to  bring  up  local  issues  at  the 
EWC meetings. 

Feedback  from  European  social  partners  reveals:  (i)  difficulties  in  some  cases  over  how  to 
interpret  the  notion  of  transnationality;  and  (ii)  some  confusion  over  the  notion  of 
transnationality due to the strategic nature of certain decisions, stock exchange rules and the 
difficulty of determining if certain matters qualify as transnational. 

The study commissioned by Business Europe also shows a mixed picture as to the perceptions 
of  effectiveness  of  the  concept  of  transnationality.  It  found  that  while  the  criterion  in  the 
Directive  according  to  which  a  matter  is  transnational  if  two  or  more  Member  States  are 
concerned is the principal element used, some agreements go beyond this and set quantitative 
criteria46. 39 % of interviewed managers found that the Recast Directive led neither to change 
in the EWC agreement in this respect nor to a reform of EWC practice. 20 % indicated that 
changes have been implemented because of the Recast.  

Good  practices  have  been  developed  by  the  social  partners,  such  as  the  inclusion  of  a 
transnationality clause in the agreement defining the scope of competence of the EWC, with 
for instance a set of criteria going beyond Article 1(4)47. The ETUI study concludes that this 
is  where  the  Recast  Directive  has  had  a  tangible  effect:  it  found  that  the  probability  of 
including  transnationality  definitions  in  EWC  agreements  increased  from  65 %  to  around 
85 % due to the Recast Directive48. 

Overall, feedback suggests that a majority of newly established Recast EWCs focus ‘almost 
exclusively’ on transnational matters. Difficulties remain, however, in some cases over how to 

46  European  Works  Councils  on  the  move:  management  perspectives  on  the  development  of  a  transnational 

institution for social dialogue, KU Leuven (Valeria Pulignano and Jeff Turk) 2016, pages 83-85. 

47 Study ASTREE IR Share 2016. 

48 Too little too late? Evaluating the European Works Councils Recast Directive, ETUI (Stan De Spiegelaere) 

2016, page 62. 

24 

 
 
                                                 
interpret the notion of transnationality, which creates some confusion concerning the type of 
information to disseminate to EWC members. 

3.  Ensuring  the  effectiveness  of  employees’  transnational 

information  and 

consultation rights 

This section examines whether the new provisions ensured effective transnational dialogue in 
companies,  in  particular  whether  they  ensured  that  relevant  information  was  passed  on  in 
sufficient  time  to  enable  the  EWC  to  express its  opinion  and  for  the  management  to  take  it 
into account before implementing their initiatives.  

EWCs must be informed and consulted on management decisions affecting their employment 
and working conditions. In practice, the EWC can address a wide range of topics such as the 
introduction  of  new  technologies,  development  of  a  new  branch  of  activity,  or  mergers, 
acquisitions and restructuring. 

The  absence  of  a  full  and  detailed  definition  of  information  and  consultation  in  the  1994 
Directive led to diverging interpretations of these concepts in transposing legislation and  —
perhaps more significantly — in their practical application49. 

Therefore,  the  Recast  Directive  aimed  to  improve  effectiveness  by  introducing  a  precise 
definition  of  information  and  consultation  in  Article 2(f)  and  (g),  whereas  the  original 
Directive gave only an indication of what information and consultation could mean. 

Article 2(f) defines ‘information’ as: 

‘(..) 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  to  undertake  an in-depth  assessment  of  the possible  impact  and, 
where  appropriate,  prepare  for  consultations  with  the  competent  organ  of  the  Community-
scale undertaking or Community-scale group of undertakings.’ 

Article 2(g) defines consultation as follows: 

‘(..)establishment of dialogue and exchange of views between employees’ representatives and 
central  management  or  any  more  appropriate  level  of  management,  at  such  time,  in  such 
fashion and with such content as enables employees’ representatives to express an opinion on 
the basis of the information provided about the proposed measures to which the consultation 
is  related,  without  prejudice  to  the  responsibilities  of  the  management,  and  within  a 
reasonable time, which may be taken into account within the Community-scale undertaking or 
Community-scale group of undertakings’. 

49  European  Commission  (2008),  Consultation  of  the  European  social  partners  on  the  revision  of  Council 
Directive  94/45/EC  of  22 September  1994  on  the  establishment  of  a  European  Works  Council  or  a 
procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes 
of 
at: 
http://ec.europa.eu/social/main.jsp?catId=707&langId=en&intPageId=211. 

employees, 

consulting 

informing 

available 

and 

25 

 
 
                                                 
There  is  evidence  that  the  Recast  Directive  has  led  to  definitions  of  information  and 
consultation  being  included  in  more  EWC  agreements.  According  to  the  ETUI  study:  ‘the 
need for clear definitions was clearly accepted as a best practice that was proliferating, but 
the  fact  that  the  Recast  included  clear  definitions  gave  a  serious  boost  to  the  likelihood  of 
EWC  agreements  including  such  definitions’50.  Since  2009,  a  large  majority  of  newly 
established EWCs have adopted the definition of information and consultation set out in the 
Recast Directive. 

On  the  basis  of  the  37  interviews  conducted  among  EWC  members  operating  a  Recast 
EWC51, it was found that  more than 75 %  of agreements transpose closely the definition  of 
information  and  consultation  but  also  provide  more  details  on  practice,  such  as  how  the 
information  should  be  provided,  and  when  and  how  confidential  information  should  be 
treated. Some of these agreements contain additional provisions beyond the requirements of 
the  Recast  Directive  such  as  a  list  of  information  to  be  provided  or  an  extensive  list  of 
subjects  for  consultation.  Some  provisions  go  further  by  laying  down  the  timing  for 
consultation  or  by  obliging  the  employer  to  consult  the  local  works  council  before 
consultation at EU level. 

In  the  European  Labour  Law  Network  survey52,  two  thirds  of  respondents  agreed  that  the 
Directive  had  improved  legal  certainty  on  the  timing  of  information  and  consultation 
procedures.  Of  the  one  third  who  did  not  agree  (Austria,  France,  Greece,  Latvia,  Malta, 
Romania, Sweden and the UK), some pointed out that the definitions in this regard were often 
still open to interpretation. 

For  most  social  partners,  the  Recast  Directive  improved  the  legal  framework  for  the 
information and consultation process. Raising awareness of social partners’ rights and duties 
has been a major effect of this EU legislation. 

Information: 

From  the  management  perspective,  companies  operating  under  the  new  rules  (60 %  of 
interviewees)  do  not  report  any  technical  difficulties  in  providing  information  to  EWC 
members. 

However, the management representatives indicated that the definition of which information 
to communicate was not always clear, due to difficulties in determining which decisions have 
or do not have a transnational dimension. 
The study53 concluded that the information is delivered in a timely manner for the majority of 
employee  representatives  consulted  (76 %  of  the  cases).  Concretely,  this  means  that  the 

50 Too  little too late? Evaluating the European Works Councils Recast Directive, ETUI (Stan De Spiegelaere) 

2016, page 61. 

51 ICF Study p 91. 

52 In the evaluation, the independent labour law experts in the European Labour Law Network were surveyed to 
obtain their views about the Recast Directive. A total of 27 experts replied to the survey. 

53 ICF study p 93. 

26 

 
 
                                                 
employer provides the required information sufficiently in advance of a decision to allow for 
reflection within the EWC and for it to provide an opinion during the consultation phase. The 
timely  transmission  of  information  could  also  lead  to  improvement  in  the  relationship 
between employees’ representatives and employers. 

Nevertheless, the concept of timeliness leaves room for interpretation and dispute, particularly 
if it is not specified in more detail in the EWC agreement. 

From the inputs of employee representatives,54 it can be concluded that the Recast provisions 
had  a  positive  effect  on  the  information  process  in  practice,  but  some  shortcomings  were 
identified: 

  an extensive use of confidentiality clauses based on Article 8 of the Recast Directive 
(e.g.  stock  market  rules  cited  as  preventing  employers  from  sharing  specific 
information for companies on the stock market exchanges); 

 

insufficient sanctions for the late provision of information; 

  a lack of resources and competences to support information and consultation processes 
(no possibility to use external expertise, limited timelines for consultation phases); 

 

lack of clarity about the transnational competences of the EWC, leading to disputes. 

Consultation: 

The Recast Directive defines the consultation process as enabling employee representatives to 
express an opinion based on the information provided. 

The Recast brought more clarity on this point and a vast majority of Recast EWC agreements 
reflect  the  new  definition  of  consultation.  Recast  EWCs  are  more  likely  than  other  types  of 
EWC to be consulted earlier in the decision-making process. However, there is evidence that 
in some cases the consultation remains only a formal step rather than an opportunity to seek 
and  consider  a  substantive  opinion  from  the  EWC55.  The  effectiveness  of  the  consultation 
depends largely of the quality, quantity and timeliness of the information provided.  

For workers’ representatives56, the consultation process shows deficiencies in practice despite 
the  improvement  of  the  legal  framework  and  the  insertion  of  definitions  in  the  EWC 
agreements.  The  main  reasons  they  cited  were:  (i)  a  lack  of  joint  understanding  regarding 
consultation or the absence of consultation; (ii) limited timelines for consultation phases; (iii) 
no possibility to make use of external expertise; (iv) extensive use of confidentiality clauses 

54 ETUC-EWC assessment and requirements. 

55 ICF study p 94. 

56 ETUI survey conducted among EWC coordinators 2016 — project co-financed by the European Commission. 

27 

 
 
 
 
 
 
 
                                                 
that could limit the recourse to external support such as from national or European trade union 
federations and prevent the share of information with the company workforce. 

Most  employer  representatives  of  newly  established  EWCs  interviewed  indicated  that 
consultations  of  EWC  members  have  not  led  to  changes  in  the  decision-making  process,  or 
indeed  to  a  different  decision57.  The  Directive  seems  therefore  to  leave  managerial 
prerogatives  largely  unchanged.  Respondents  on  the  management  side  argued  that  the 
consultation  of  EWC  members  brings  benefits  to  all  parties  in  many  ways,  such  as:  (i) 
improving  the  common  understanding  of  issues  among  members;  (ii)  explaining  decisions; 
(iii) initiating positive discussions leading to valuable proposals for action depending on the 
topics  discussed  (introduction  of  new  technology,  purchase  of  company,  mergers,  trend  of 
employment, investments, collective redundancies). 

Overall, the Recast Directive has improved the quality and scope of the information workers 
receive.  However,  the  study  shows  that  the  consultation  right  could  be  more  effective,  as 
EWC  members  seem  to  have  little  influence  on  the  decision-making  process  in  their 
companies. This is particularly the case of restructuring, as described below. 

Impact of EWC in cases of restructuring: 

The study shows that EWCs’ experiences of EWCs of restructuring are diverse. Only 26 % of 
interviewed  employee  representatives  reported  that  their  EWC  was  consulted  before  a 
decision  was  made  by  the  management.  For  almost  40 %  of  the  employee  representatives 
interviewed who have had some involvement in the EWC consultation process, this has not 
led  to  any  changes  to  the  restructuring  plans  or  decisions  of  their  respective  employer. 
However,  in  some  cases  it  had  a  positive  impact  on  the  effects  and  consequences  for 
employees impacted by the restructuring58. 

Similarly, in a study by the Catholic University of Leuven (KU Leuven) 72 % of interviewed 
managers (62 % companies with Article 13 EWCs and 81 % from companies with Article 6 
EWCs)  indicated  that  the  EWC  was  informed  some  time  in  advance  of  the  managerial 
decision being implemented, but after the strategic decision was finalised59. At the same time, 
the perception of the impact of the EWC on restructuring varied: nearly 40 % of managers in 
companies with Article 6 EWCs considered there was such an impact, compared to less than 
20 % in those with Article 13 EWCs. 

These  figures  are  unlikely  to  be  definitive.  Many  of  the  companies  examined  are  still 
‘experimenting’ with their EWCs and considered themselves to be in a learning process.  

57 ICF study p 95. 

58 ICF study page 103. 

59  European  Works  Councils  on  the  move:  management  perspectives  on  the  development  of  a  transnational 

institution for social dialogue, KU Leuven (Valeria Pulignano and Jeff Turk) 2016, pages 44-47. 

28 

 
 
                                                 
Nevertheless,  the  EU  Quality  Framework  for  Restructuring60  does  provide  a  tool  for  social 
partners to address the challenges of preparing for and implementing restructuring. The tool, 
which takes the form of a soft-law instrument setting out good practices for anticipating and 
monitoring  restructuring  for  the  stakeholders  involved,  could  have  a  positive  impact  on  the 
functioning of EWCs. 

4.  Articulation of the various levels of the information and consultation process 

Article 12  of  the  Directive  establishes  the  principle  of  linkage  between  the  national  and 
European levels of consultation. These should be defined by the social partners in the EWC 
agreement. If not, Member States should ensure that information and consultation takes place 
at  both  levels.  Recital  37  provides  guidance  about  the  order  of  the  processes  by  putting 
forward two main alternatives: the information and consultation of the EWC takes place either 
before or at the same time as the workplace-level information and consultation. 

A Eurofound study has examined the interplay between information and consultations at EU 
and  workplace  levels61  .  The  study  identified  a  variety  of  situations  in  the  Member  States 
where most EWCs are headquartered: 

 

 

 

 

information  and  consultation  linked  at  both  levels,  without  any  indication 
about how or when (France); 
information  and  consultation  linked  at  both  levels,  within  a  reasonable  time 
(UK) or in a coordinated way (Italy), but the indication about how and when 
the processes should be linked is imprecise; 
the  process  should  be  simultaneous  (Belgium)  or  ‘as  far  as  possible’ 
simultaneous (the Netherlands); 
if not before, then simultaneously (suggesting that, ideally, one should happen 
before the other) (Germany). 

The  scope  of  information  and  consultation  at  local  level  differs  from  that  at  the  European 
level.  The  nature  of  local-level  information  and  consultation  also  varies  between  countries. 
Furthermore,  the  existence  of  co-determination  rights,  injunction  rights  or  more  or  less 
dissuasive  sanctions  to  enforce  local-level  information  and  consultation  rights  may  also 
influence  the  way  Member  States  and  social  partners  at  each  level  perceive  the  issue  of 
linking.  The  issue  of  linking  cannot  be  solved  entirely  by  social  partners’  arrangements 
because they do not have the power to deviate from the national provisions that apply in each 
of the Member States considered here. French court rulings suggest that the priority rule can 
only  be  invoked  by  some  actors,  and  only  for  the  sake  of  the  effectiveness  of  employees’ 

60  Commission  Communication  on  an  EU  Quality  Framework  for  Anticipation  of  Change  and  Restructuring, 

COM(2013) 882. 

61 Linking information and consultation procedures at local and European levels, Eurofound (Filip Dorssemont, 

Peter Kerckhofs), 2015, page 1. 

29 

 
 
 
 
 
                                                 
information and consultation rights at a lower level. Such an approach encourages local and 
European employees’ representatives62 to seek a consensus. 

5.  Others measures impacting the effectiveness of the Recast Directive 

Role of social partner and employee representatives: 

The  Directive  also  aims  to  strengthen  both  the  role  of  the  social  partners  and  employees’ 
representatives.  Social  partners  must  now  be  informed  of  the  composition  of  the  special 
negotiating  body  (SNB)  before  an  EWC  is  set  up.  The  Recast  Directive  also  provides  that 
employee  representatives  in  the  EWC  must  have  the  means  to  collectively  represent  the 
employees. 

The analysis of national legislation shows that all Member States provide that the European 
social  partners  must  be  informed  of  the  composition  of  the  SNB  and  the  start  of  the 
negotiation. However, few Member States provide practical details on how the process should 
be carried out; in Estonia and Hungary for instance, the name and contacts details of the SNB 
Members should also be shared. In Belgium, the information must be given at the latest when 
the first SNB meeting took place. 

According to over half of the interviewed representatives of recast EWCs, there has been an 
upward trend in the extent to which European social partners are being informed and involved 
in negotiations to establish an EWC: more than 50 % under the Recast Directive compared to 
less  than  40 %  in  2008.  However,  European  social  partners  are  still  not  systematically 
informed of ongoing negotiations and therefore cannot fully support the stakeholders in this 
exercise. 

Right to training without loss of wages: 

Article 10 of the Recast Directive introduces the obligation for the management to provide the 
members of the EWC with the necessary means to perform their functions under the Directive 
and the right  to training without loss of wages. This  section assesses how the new right  for 
employees’  representatives  to  receive  training  without  loss  of  salary  is  implemented  in 
practice. 

The  2008  impact  assessment  highlighted  that  despite  the  right  to  training  being  explicitly 
mentioned in half of the agreements; in reality, it took the form only of training for national 
works council issues or of English-language learning. 

  The right to training is now included in 58 % of the agreements signed63. Two thirds 
of  employee  representatives  confirmed  that  they  made  use  of  the  right  to  training 
without loss of wages. 

62 Ibid, pages 1-2. 

63 Too little too late? Evaluating the European Works Councils Recast Directive, ETUI (Stan De Spiegelaere) 

2016, page 54. 

30 

 
 
 
 
 
                                                 
  Among those who requested training, a large majority (80 %) of EWC members noted 
that there had been no particular challenges in securing it, but some 20 % stated that 
local management posed obstacles to employee representatives securing training. 

Those  members  who  took  up  this  right  have  received,  on  average,  1-3  days  of  training  per 
year. 

The  most  common  topics  of  training  included  legal  issues  (mentioned  by  25 %  of 
respondents)  and  economic  affairs  (15 %),  language  and  communication  skills  (37 %),  and 
more  general,  cross-cutting  skills  such  as  negotiation  capacity  building.  In  other  cases, 
training was specific to the work in the different aspects of EWCs. 

European  social  partners  were  also  asked  to  comment  on  the  practical  implications  of  the 
introduction under the Recast of the new ‘right’ to training without loss of wages. Two of the 
13 respondents identified this as the biggest practical success of the new Directive. However, 
several raised concerns about potential bias in the content of training courses, since they tend 
to be management- or trade union-led, rather than ‘independent’. 

82 %  of  the  interviewees  (on  a  basis  of  56  interviews)  of  the  KU  Leuven/Business  Europe 
study indicated that the training requirements of the Recast Directive resulted in no change to 
the operation of the EWC, as the training already existed in practice. At the same time 10 % 
stated  that  changes  have  been  implemented  in  conjunction  with  the  new  legislation  (e.g. 
including a right to training by an expert for all EWC representatives). The analysis concluded 
that the access to training was not affected by the sector, country of origin or company size64. 

The  inclusion  of  training  provisions  in  the  Recast  Directive  was  intended  to  develop  the 
capacity  of  EWCs  by  ensuring  that  representatives  have  the  appropriate  skills  to  actively 
participate  in  the  work  of  the  EWC.  Both  Business  Europe  and  the  European  Trade  Union 
Confederation (ETUC) argued that training was not a controversial issue and that the content 
of  training  should  be  decided  through  agreement  between  senior  management  and  EWC 
representatives within each company65. 

  Subsidiary requirements 

The Recast Directive sets out in its Annex entitled ‘Subsidiary Requirements’ the default rules 
of procedure that apply to the functioning of an EWC in the absence of a specific agreement 
between  the  management  and  employees  representatives  concerning  the  establishment,  the 
composition and competence of the EWC. 

Article 7 lays down the various cases when the subsidiary requirements are applicable: 

  when the central management and the SNB decide; 

64  European  Works  Councils  on  the  move:  management  perspectives  on  the  development  of  a  transnational 

institution for social dialogue, KU Leuven (Valeria Pulignano and Jeff Turk) 2016, page 85. 

65 ICF Study 2016. 

31 

 
 
 
 
                                                 
  when  the  central  management  refuses  to  open  negotiations  6  months  after  a  request 

was made; 

 

in the absence of agreement after 3 years from the start of negotiations. 

The Annex draws a distinction between fields where information is required and those where 
consultation is required. It also introduces the possibility to obtain a response to any opinions 
expressed, and the reasons for that response. Lastly, it provides details on the composition of 
the select committee. 

According  to  the  ETUI  EWC  database,  12  EWCs  are  functioning  based  on  the  subsidiary 
requirements. 

  Transnational company agreements  

Transnational  company  agreements  (TCAs)  are  a  form  of  social  dialogue  in  multinational 
companies.  They  codify  reciprocal  commitments  whose  scope  extends  to  the  territories  of 
several  states  and  which  have  been  concluded  between  one  or  more  representatives  of  a 
company  or  group  of  companies  and  one  or  more  workers’  organisations.  TCAs  use  cross-
border social dialogue as a way to improve international working standards. They address a 
wide  range  of  subjects,  such  as  anticipating  and  managing  change  and  restructuring,  skills 
development,  training,  mobility,  health  and  safety  at  work,  and  equality  and  anti-
discrimination. 

By  end  of  2015,  more  than  200  agreements  had  been  registered,  covering  over  10  million 
workers in multinational companies, most of them with headquarters in the EU. Information 
on  existing  agreements  is  available  in  a  database  on  the  European  Commission’s  website66. 
While there is no EU-level legal framework governing TCAs, the Commission issued a staff 
working document in 200867. 

EWCs  play  a  role  in  representing  workers  in  the  negotiation  of  TCAs.  Companies  signing 
TCAs are predominantly multinationals in the metal, construction, food and finance sectors, 
and they usually already have an established EWC. Despite not having any formal bargaining 
power, EWCs have signed a large number of TCA agreements68. 

The  2016  external  study  concluded  that  EWCs  regulated  by  the  Recast  Directive  have  a 
limited impact on the conclusion and the quality of TCAs. Of the 37 Recast EWCs, only three 
have signed TCAs. These relate to health and safety at work and the establishment of a charter 
on social rights and ethics. Among the social partners interviewed, more than 60 % indicated 

66 http://ec.europa.eu/social/main.jsp?catId=978&langId=en. 

67  The  role  of  transnational  company  agreements  in  the  context  of  increasing  international  integration, 

SEC(2008)2155. 

68 http://ec.europa.eu/social/main.jsp?catId=978&langId=en. 

32 

 
 
 
 
 
                                                 
that EWCs did not play a significant role in the negotiation of TCAs, and for half of them the 
EWCs did not have an impact on the quality of TCAs. 

However,  in  cases  of  restructuring,  EWCs  appeared  to  become  increasingly  involved  in  the 
negotiation  and  implementation  of  TCAs69:  some  EWC  agreements  explicitly  include  the 
competence for EWCs to conclude such agreements70. 

A case study of the role of EWCs in TCAs in the metalwork sector indicated that in practice 
EWCs go beyond their formal information  and consultation role relatively frequently.  More 
companies,  than  was  formerly  believed  to  be  the  case,  are  promoting  the  regulation  of 
industrial  relations  and  working  conditions  at  European  company  level.  Taken  together,  the 
number of informal arrangements and formal agreements point to the growing importance of 
transnational, supra-state industrial relations and regulations at company level, and a growing 
negotiating role for EWCs71. 

6.   Enforcement 

Directive 94/45/EC included only a general requirement for the Member States to provide for 
‘appropriate  measures  in  the  event  of  failure  to  comply  with  this  Directive’,  and  more 
specifically,  to  ensure  that  ‘adequate  administrative  or  judicial  procedures  are  available  to 
enable the obligations deriving from this Directive to be enforced’. 

The  Recast  Directive  introduced  criteria  for  sanctions  and  obliged  the  Member  States  to 
amend their national enforcement systems so that they conform to the new standards. 

The  amendment  on  enforcement  and  sanctions  introduced  by  the  Recast  Directive  had  two 
elements: 

Firstly, the addition of Article 10(1): ‘Without prejudice to the competence of other bodies or 
organisations  in  this  respect,  the  members  of  the  European  Works  Council  shall  have  the 
means  required  to  apply  the  rights  arising  from  this  Directive,  to  represent  collectively  the 
interests of the employees of the Community-scale undertaking or Community-scale group of 
undertakings.’ 

Secondly, two new recitals: 

69 Variations on a theme? The implementation of the EWC Recast Directive, ETUI (Romuald Jagodzinski editor) 

2015, page 28. 

70 ICF study p 81. 

71 Transnational company agreements and the role of European Works Councils in negotiations: A quantitative 
analysis in the metalworking sector, ETUI (Torsten Müller, Hans-Wolfgang Platzer and Stefan Rüb) 2013, 
page 85. 

33 

 
 
 
 
 
 
 
 
 
 
                                                 
 

 

(35)  ‘The  Member  States  must  take  appropriate  measures  in  the  event  of  failure  to 
comply with the obligations laid down in this Directive.’ 

(36) ‘In accordance with the general principles of Community law, administrative or 
judicial  procedures,  as  well  as  sanctions  that  are  effective,  dissuasive  and 
proportionate  in  relation  to  the  seriousness  of  the  offence,  should  be  applicable  in 
cases of infringement of the obligations arising from this Directive.’ 

First,  the  capacity  of  EWCs  to  seek  legal  redress  varies  from  one  EU  Member  State  to 
another. In four Member States (Austria, France, Romania and Sweden) EWCs have full legal 
personality, allowing  EWCs'  representatives  to initiate judicial  proceedings  on  behalf  of  the 
EWC and to represent the EWC in relations with third parties. In a further 11 countries (the 
Czech  Republic,  Finland,  Germany,  Ireland,  Latvia,  Lithuania,  the  Netherlands,  Poland, 
Slovakia,  Spain  and  Hungary,)  EWCs  can  be  a  party  in  legal  proceedings.  In  a  further  five 
(Belgium,  Ireland,  Estonia,  Luxembourg,  Slovenia,  Slovakia,  Italy  and  the  UK),  only  EWC 
members or trade unions have the capacity to act in justice an action on EWC matters72. 

Second,  another  element  that  influences  the  capacity  to  bring  an  action  before  the  courts  in 
cases  of  litigation  is  the  cost  of  proceedings.  In  the  vast  majority  of  countries,  rules  on 
financial  means  and  the  legal  costs  of  proceedings  are  limited  to  the  general  provisions  of 
Article 10(1) of the Recast Directive, under which the members of the EWC ‘shall have the 
means  required  to  apply  the rights  arising  from [the] Directive’.  The  data  collected via  the 
European Centre of Expertise in Labour Law73 show that no legislation lays down a dedicated 
budget  or  financial  means  for  court  fees  in  cases  of  potential  litigation  between  EWCs  and 
business.  However,  most  experts74  consider  that  the  costs  could  generally  be  part  of  the 
operating  expenses  of  the  EWC.  In  some  Member  States  (Bulgaria,  Romania  and  Austria), 
industrial relations litigation is exempted from court fees. 

Disputes over the establishment or functioning of EWCs can also be resolved in 15 Member 
States  via  alternative  dispute  mechanisms  such  as  conciliation,  mediation  or  arbitration75. 
Those alternative mechanisms are not specially designed for EWCs (they are available for any 
private  dispute),  except  in  the  case  of  Italy,  where  a  dedicated  Conciliation  Committee  was 
established to provide proposals to solve EWC-related disputes within 20 days. Therefore, the 
capacity to seek legal redress on behalf of members of EWCs varies across Europe and often 
depends on trade unions’ capacity to act. 

Finally,  the  type  and  level  of  sanctions  have  a  direct  impact  on  the  effectiveness  of  the 
enforcement  of  the  Directive.  Recital  36  of  the  Directive  sets  three  criteria  that  must  be 

72 ECE Data November 2017 — see annex 5. 

73 ECE Data November 2017 — Annex 5. 

74 See Annex 5. 

75 ECE data November 2017 Annex 5. 

34 

 
 
 
 
 
                                                 
fulfilled  by  the  sanctions  regime  (effectiveness,  dissuasiveness  and  proportionality).  Article 
11(2) of the Directive, which places responsibility on the Member States to ensure ‘adequate 
administrative or judicial procedures’, complements these criteria. 

According to the analysis of national legislation, we can distinguish the following models for 
handling violations of EWC rights: 

-  countries  where  a  violation  of  EWC  rights  is  considered  an  administrative  or  labour 
law  offence  (Austria,  Cyprus,  Ireland,  Italy,  the  Czech  Republic,  the  UK,  Spain, 
Slovakia, Lithuania, Malta, Finland and Portugal); 

-  countries  where  a  violation  of  EWC  rights  is  considered  a  criminal  offence  (France, 

Poland, Germany, Cyprus, Greece, Luxembourg and Belgium); 

The sanctions provided for in most Member States consist of financial penalties. 

There are significant differences in the levels of minimum and maximum financial penalties 
for a breach of EWC rights. 

In some Member States, depending on the type of violation, the minimum fines can be as low 
as  EUR 23  (Malta)  or  EUR 30  (Lithuania)  per  worker.  The  maximum  fine  can  be  around 
EUR 15 000  in  Germany  and  EUR 7 500  in  France,  while  in  other  countries  it  can 
theoretically  be  as  high  as  EUR 100 000  (Slovenia),  EUR 115 000  (UK)  or  EUR  187 515 
(Spain)76.  The sanctions also vary according to the degree of violation of the law. However, 
violations  related  to  establishing  the  EWC  carry  more  dissuasive  sanctions  than  violations 
related  to  its  operation.  In  Luxembourg  and  Croatia,  the  respective  laws  punishing  national 
labour law breaches are stronger than those applying to breaches of EWC provisions are. 
Finally,  labour  law  experts  from  10  Member  States77  indicated  enforcement  issues  and 
specifically the lack of dissuasive sanctions as an obstacle to the effectiveness of the Recast 
Directive.  In  addition,  they  highlighted  the  lack  of  experience  in  enforcement  of  the  Recast 
Directive, as in Bulgaria, Romania, Hungary, Cyprus and Malta no or very few EWCs exist 
under national law. 

Employee representatives stressed that differences in the levels and scope of sanctions set at 
national level were an obstacle to effective redress and an insufficient incentive for the respect 
of EWC rights. They argue for a revision of the Recast Directive to introduce an obligation to 
nullify  company  decisions  where  information  and  consultation  procedures  have  been 
breached,  on  the  condition  that  the  national  trade  unions  directly  affected  by  the  decision 
support suspension and/or nullification78. 

76 See Annex 6 ECE Data November 2017. 

77 Germany, Finland, Lithuania, Italy, Romania, the UK, Luxembourg, Austria, France, Hungary. 

78  ETUC  Position  paper  For  a  modern  European  Works  Council  (EWC)  Directive  in  the  Digital  Era,  March 
https://www.etuc.org/documents/etuc-position-paperfor-modern-ewc-directive-digital-era#.Wh1v-

2017 
f6ouAg. 

35 

 
 
 
 
                                                 
While this solution is not proposed by employer organisations, they also recognise the need to 
improve measures enforcement measures of the Recast Directive79. 

The  evidence  of  the  operation  of  the  redress  and  sanction  system  indicates  that  it  does  not 
fully meet the objectives of the availability of ‘appropriate measures’ to be pursued where the 
obligations  relating  to  an  EWC  are  not  met.  There  is  no  consistent  practice  across  Member 
States  as  to  whether  EWCs  have  the  legal  status  to  bring  an  action  before  the  courts.  In 
addition,  the  lack  of  dedicated  financial  means  could  constitute  an  obstacle  to  pursuing  a 
judicial  remedy,  and  the  nature  and  level  of  sanctions  are  in  many  cases  not  effective, 
dissuasive and proportionate. 

B.  Efficiency 

This  section  assesses,  in  line  with  the  Better  Regulation  Guidelines,  the  costs  and  benefits 
generated by the Recast Directive and  analyses the extent to which it creates administrative 
burdens or has the potential to reduce them. 

The explanatory memorandum of  the Directive80 identified  the following potential  areas for 
simplifying  and  reducing  administrative  burden:  ‘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.’ 

The following  section presents the findings on costs generated by the provisions introduced 
by the Recast Directive and their benefits for the establishment and functioning of EWCs. 

1.  Quantifiable and non-quantifiable costs 

The study provided a qualitative and quantitative analysis of the costs associated with changes 
introduced by the Recast Directive. 

In this context, the following provisions have been identified as potentially affecting the costs 
of EWCs in the take-up phase as well as in their functioning: 

 

the  responsibility  of  the  employer  to  provide  the  necessary  information  to  start 
negotiations (Article 4(4)); 

79  Business 

Europe 

EWC  Recast  Directive 
https://www.businesseurope.eu/sites/buseur/files/media/position_papers/social/2017-02-
09_european_works_councils_recast_directive.pdf. 

position 

paper 

the 

on 

February 

2017 

80 COM(2008) 419 final,  paragraphs 28 and 29. 

36 

 
 
 
 
 
 
                                                 
 

 

 

the composition (Article 5(2)(b)) and number of meetings (Article 5(4)) of the special 
negotiating body; 

informing social partners at EU level (Article 5(2)(c)) and involving trade unions and 
external experts (Article 5(4)); 

the  right 
(Article 10(4)). 

to 

training  for  employees’  representatives  without 

loss  of  wages 

The  study  concluded  that  quantifiable  costs  of  setting  up  EWCs  were  lower  than  for  the 
Article 6 agreements under Directive 94/45/EC (falling from EUR 143 537 to EUR 119 207). 
Costs were lower primarily because for EWCs established under the Recast Directive fewer 
meetings  were  held  with  fewer  representatives  in  the  special  negotiating  body,  resulting  in 
lower associated meeting costs. This is mainly explained by the smaller size of the companies 
launching negotiations to set up EWCs after the Recast. 
According  to  the  study  conducted  by  KU  Leuven81,  95 %  of  EWC  agreements  include  a 
clause  stipulating  that  the  company  will  cover  the  basic  expenses  of  EWC  activity,  such  as 
travel and accommodation costs, administrative assistance and communication facilities. 

Looking  at  comparable  cost  estimates  (fixed  costs  only)  for  the  operation  of  EWCs 
established under Article 6 of Directive 94/45/EC and those under the Recast Directive, there 
are  few  differences  in  average  annual  running  costs  (EUR 153 667  and  EUR 160 900 
respectively).  When  taking  into account  not  only  fixed  costs  but  also  expenditure  related  to 
the  time  spent  by  employees  on  EWC-related  activities,  the  average  total  cost  of  a  Recast 
EWC per year is EUR 240 000, or 0.009 % of the company turnover. 

According  to  the  study  conducted  by  KU  Leuven,  the  cost  of  operating  an  EWC  varies 
significantly  over  the  full  range  of  companies  that  have  one:  the  median  annual  cost  was 
EUR 60 250, although the actual range was between EUR 10 000 and 1 000 00082. 

Two  thirds  of  the  Recast  EWC  members  availed  themselves  of  the  right  to  training.  The 
training  costs  reported  by  Recast  EWCs  are  significantly  lower  than  those  for  EWCs 
established under Article 6. This  could  partly  be  explained because some of the new EWCs 
have only been operating for a limited period and have not yet had the opportunity to assess 
training needs and provide training. 

In  terms  of  the  quantifiable  costs  of  training  to  the  companies,  22  EWCs  operating  under 
Article 6  rules  had  an  annual  average  EWC  training  expenditure  of  around  EUR 43 80083 
(part  of  the  above-mentioned  operational  costs).  The  overall  annual  costs  of  operating  an 
EWC may depend on the structure of the EWC and the number of meetings held. Although 
the  number  of  EWC  members  is  lower  in  the  EWCs  established  since  2011,  the  country 
coverage  is  slightly  higher,  which  can  impact  translation  and  interpretation  needs.  The  KU 
Leuven  study  also  concluded  that  the  variation  in  costs  and  lack  of  a  direct  relationship 

82  European  Works  Councils  on  the  move:  management  perspectives  on  the  development  of  a  transnational 

institution for social dialogue, KU Leuven (Valeria Pulignano and Jeff Turk) 2016, page 55. 

83 Source: ICF survey of 22 EWCs. 

37 

 
 
                                                 
 
between  the  costs  and  the  number  of  representatives  and  meetings  may  also  indicate  that 
companies  use  EWC  meetings  for  different  purposes  (e.g.  costs  could  increase  when  an 
extensive restructuring is under way). 

The KU Leuven research shows an overall positive perception of the cost-benefit balance of 
the  EWCs.  In  their  survey,  54 %  of  interviewed  managers  considered  that  the  benefits  do 
justify the costs, 19 % responded that the costs were not matched by the benefits, and a further 
26 % answered that the key issue was compliance with the legislation rather than whether the 
benefits justified the costs.  

2.  Quantifiable and non-quantifiable benefits 

Benefits  from  EWCs  operating  under  the  Recast  Directive  are  essentially  non-quantifiable. 
They relate to topics such as: (i) the development of social dialogue in the company; (ii) the 
reinforcement of mutual trust on both sides of the industrial relationship; (iii) better informed 
strategic decision-making; and (iv) better targeted measures accompanying structural changes. 

The entitlement to employee-only pre-and post-negotiation meetings was considered a benefit 
as  it  allowed  the  employee  side  to  prepare,  become  more  familiar  with  the  legislation  and 
consolidate views following discussions with management. 

The use of experts in negotiations also increased (to nearly 70 %) and was considered helpful 
in  providing  advice  on  the  detail  of  new  legislation  also  in  sharing  expertise  from  other 
existing EWCs. 

The  right  to  training  established  by the  Recast  Directive is  considered  to  be  beneficial.  The 
benefits  of  training  identified  by  the  employee  members  have  been  manifold  and  relate  to 
improved soft skills and better awareness of the EWC mandate and possibilities, as well the 
legal  EWC  framework  and  different  experiences  of  other  EWCs.  Some  employee 
representatives  highlighted  the  ‘professionalisation’  of  EWC  representatives.  However,  the 
impact  of  the  right  on  actual  training  received  is  difficult  to  assess,  as  it  would  require  a 
longer-term analysis. 

The  study  showed  that  employee  and  employer  representatives  are  generally  positive  about 
the benefits of their EWC, with employee representatives positive to a greater extent. 

In  the  KU  Leuven  study,  as  many  as  77 %  considered  that  EWCs  effectively  assisted 
management  in  issues  such  as  conflict  resolution,  encouraging  support  for  management 
initiatives,  explaining  managerial  practice,  creating  an  appropriate  atmosphere,  facilitating 
employment transfers across EU Member States and promoting corporate identity84. 

However,  the  external  study  found  that  the  perceived  benefits  of  having  an  EWC  have 
reduced among companies with Recast EWCs compared to EWCs established under Directive 
94/45/EC. There have been some small improvements in the perception of employers, notably 
their  perception  that  having  an  EWC  leads  to  more  effective  decision-making,  enhanced 
productivity,  improved  ability  to  communicate  with  employee/employer  representatives  and 

84  European  Works  Councils  on  the  move:  management  perspectives  on  the  development  of  a  transnational 

institution for social dialogue, KU Leuven (Valeria Pulignano and Jeff Turk) 2016, pages 63-75. 

38 

 
 
                                                 
increased  trust.  By  contrast,  employees  seem  to  have  a  more  negative  view  following  the 
Recast. Most notably, there has been a decrease in perceived value of EWCs in their ability to 
influence company decisions. Apart from the question of methodological comparability (two 
separate surveys, involving different size samples of employee and employer representatives), 
this change may reflect the fact that there is now greater accumulated experience of operating 
EWCs,  including  the  finding  that  the  impact  on  company  decision-making  in  restructuring 
situations  is  limited.  At  the  time  of  the  original  Directive,  there  may  have  been  greater 
optimism  about  the  potential  impact  of  EWCs  among  employee  representatives.  Another 
reason  for  this  change could  be  that  after  2008  many  companies  went  through  restructuring 
due to the economic crisis. Even if they did not make redundancies, 2008 was the start of a 
period  of  greater  uncertainty  for  employees  and  this  may  be  reflected  in  the  more  sceptical 
attitude of employee representatives. 

3.  Comparison of the administrative burdens for EWCs before and after June 2011 

Administrative  burdens  are  typically  defined  as  obligations  for  businesses  to  provide 
information about aspects of their operations to the public authorities85. 

The  Recast  Directive  did  not  have  a  specific  objective  to  reduce  administrative  burdens;  in 
fact it introduced an additional obligation for companies to inform European social partners 
about  the  start  of  the  EWC  negotiations.  However,  the  costs  associated  with  informing 
European social partners were considered by the companies to be very low. 

Although  this  was  not  specified  in  the  Recast  Directive,  national  EWC-related  legislation 
could  introduce  a  legal  requirement  for  companies  to  register  the  EWC  agreement  with  the 
national authorities. Of 23 employer representatives responding, only a third (8 respondents) 
indicated that such obligation existed and that they had followed it. In other words, in practice 
this is rarely implemented and unlikely to lead to significant administrative burden. 

Furthermore,  according  to  the  study  conducted  by  KU  Leuven,  84 %  who  responded  to  the 
question on constraints argued that the Recast Directive had added no additional constraints to 
EWC practice86. 

C.  Relevance 

The objectives of the Recast Directive are still relevant. The role of EWCs was considered as 
relevant, or highly relevant, by all stakeholders involved (e.g. employers, public authorities, 
trade unions), not only employees. 

Social  partners  explicitly  recognise  the  need  to  develop  transnational  social  dialogue  at  EU 
level. 70 % of the employers consulted87 recognised the added value of EWCs, rising to 83 % 

85 

European  Commission,  Better  Regulation  Guidelines 
regulation/guidelines/docs/br_toolbox_en.pdf. 

Toolbox, 

http://ec.europa.eu/smart-

86  European  Works  Councils  on  the  move:  management  perspectives  on  the  development  of  a  transnational 

institution for social dialogue, KU Leuven (Valeria Pulignano and Jeff Turk) 2016, page 88. 

87 Ibid, page 73. 

39 

 
 
 
                                                 
in large companies. According to them, EWCs provide a mechanism to cascade information 
throughout the undertaking, to promote employee engagement in the strategic development of 
a  multinational  company.  The  EWC  also  creates  leverage  between  the  EU  and  local  levels, 
smoothing  the  way  for  the  introduction  of  strategic  initiatives,  and  leading  to  qualitative 
improvements  in  the  company’s  strategic  solutions.  More  broadly,  EWCs  constitute  a 
valuable instrument for capacity building for transnational social dialogue at company level, 
which complements that taking place at other levels. 

In terms of the objective of improved employee protection, the Recast Directive was found to 
make an important contribution to ensuring transnational social dialogue at company level. 

From  the  employers’  side88,  EWCs  are  also  perceived  as  bringing  about  a  ‘learning  curve’, 
through which both employer and employee representatives develop a common understanding 
of  the  environment,  challenges  and  constraints  of  the  operation  of  the  company.  This 
generates mutual benefits and helps the two sides to find compromise solutions. 

EWCs play an important role in reconciling economic and social objectives within the single 
market,  especially  in  a  changing  world  of  work.  They  provide  a  privileged  platform  for 
exchanges between employees’ representatives and employers on business issues or decisions 
that could have an impact on employment or working conditions in undertakings active across 
several Member States. 

EWCs  contribute  to  the  implementation  of  the  European  Pillar  of  Social  Rights  adopted  on 
17 November 201789, particularly principle 8: ‘Workers or their representatives have the right 
to be informed and consulted in good time on matters relevant to them, in particular on the 
transfer,  restructuring  and  merger  of  undertakings  and  on  collective  redundancies.  Support 
for increased capacity of social partners to promote social dialogue shall be encouraged.’ 

D.  Coherence 

This section summarises the main findings on the consistency of the Recast Directive with the 
relevant EU legislation on worker information and consultation. 

In  2013,  the  Commission  carried  out  a  ‘Fitness  Check’90  of  EU  law  on  information  and 
consultation  of  workers,  covering  the  Directives91  on:  (i)  collective  redundancies;  (ii) 
information  and  consultation  of  employees;  and  (iii)  transfer  of  undertakings.  The  Fitness 
Check  concluded  that  the  three  Directives  are  generally  relevant,  effective,  coherent  and 
mutually reinforcing and, thus, broadly fit for purpose, but it also pointed to some gaps and 
shortcomings  in  the  scope  and  operation  of  the  Directives.  The  Recast  EWC  Directive  was 

88 Ibid page 78. 

89 http://ec.europa.eu/social/main.jsp?langId=en&catId=89&newsId=9003&furtherNews=yes. 

90 SWD(2013) 293 final of 26.7.2013. 

91 Directives 98/59/EC,2002/14EC,2001/23/EC 

40 

 
 
 
 
 
 
 
                                                 
excluded  from  the  Fitness  Check  exercise,  particularly  because  it  concerns  worker 
information  and  consultation  in  a  transnational  context,  but  also  because  the  end  of  the 
transposition  period  was  too  recent  (expired  in  June  2011)  and  because  the  Directive  itself 
included provision for a specific evaluation of its implementation. 

The  provisions  of  the  Recast  Directive  have  been  mapped  and  reviewed  in  depth  to  assess 
their consistency with existing European legislation and policy developments listed below: 

  Charter of Fundamental Rights of the European Union (2000); 

  Council Directive 98/59/EC of  20 July 1998 on the approximation of the laws of the 

Member States relating to collective redundancies; 

  Council Directive 2001/23/EC 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; 

  Council  Directive  2001/86/EC  of  8 October  2001  supplementing  the  Statute  for  a 

European company with regard to the involvement of employees; 

  Council  Directive  2002/14/EC  establishing  a  general  framework  for  informing  and 

consulting employees in the European Community; 

  Council  Directive  2003/72/EC  of  22 July  2003  supplementing  the  Statute  for  a 

European Cooperative Society with regard to the involvement of employees; 

  Council  Directive  2005/56/EC92  on  cross-border  mergers  of 

limited 

liability 

companies. 

Due to the lack of established methodology to rate coherence at EU level, the legal acts were 
assessed using the following scale: 

-  highly coherent: when the relevant Recast Directive provisions fully reflect the nature 

of the provisions of the instrument in question; 

-  partially  coherent:  when  some  of  the  relevant  Recast  Directive’s  provisions  reflect 
only  a  part  of  the  provisions  of  the  instrument  in  question  or  show  some 
inconsistencies; 

-  not  coherent  (if  other  legal  acts  are  not  in  tune  with  the  provisions  included  in  the 

Recast Directive); 

The  key  challenges  encountered  in  the  analysis  were  to  assess  precisely  the  consistency 
between the Recast Directive and other specific instruments (which often had a different focus 
from the Recast Directive), taking into account the variety of definitions and objectives of the 
respective rules. 

92  Replaced  by  Directive  (EU)  2017/1132  of  the  European  Parliament  and  of  the  Council  of  14 June  2017 

relating to certain aspects of company law, OJ L 169, 30.6.2017, p. 46-127. 

41 

 
 
 
 
                                                 
The Directive is highly coherent with the following instruments: 

  The  definitions  of  information  and  consultation  and  their  timing  provided  in  Directive 
2001/86/EC  (supplementing  the  Statute  for  a  European  company  with  regard  to  the 
involvement of employees) are very similar to those in the Recast Directive. 

  The  definitions  of  information  and  consultation  in  Directive  2003/72/EC  on  European 
cooperative societies are similar to those in the Recast Directive, with small adaptations 
for the specific situation of creating a European cooperative society. 

  The  three  soft-law  instruments  on  restructuring  policies:  the  2005  Communication  on 
restructuring,  the  2009  Checklist  for  restructuring  policies  and  the  2013  Quality 
Framework for Restructuring. 

Some possible inconsistencies have been identified between the Directive and the following 
three EU legal instruments: 

  Directive 98/59/EC on collective redundancies: 

The  Directives  on  collective  redundancies,  on  transfer  of  undertakings  and  on  the 
information  and  consultation  of  works  provide  a  list  of  (minimum)  information  to  be 
provided to employees in information and consultation procedures, which provides a better 
linkage to these procedures in specific cases between national and transnational level. 

  Directive 2001/23/EC on transfer of undertaking: 

The Directive on transfer of undertakings lays down a specific timeframe for the information 
and consultation procedures (e.g. ‘in good time and before employees are directly affected’). 

  Directive 2002/14/EC on information and consultation of workers: 

The  Directive  on  (national)  information  and  consultation  of  workers  lays  down  a 
requirement for management to provide an official answer to an opinion of the EWC or to 
consult ‘with a view to reaching an agreement’.  

For a detailed coherence analysis of each directive, see Annex 4. 

Possible  inconsistencies  might  contribute  to  a  lack  of  legal  certainty  or  coherence  over  the 
interplay  of  national  and  transnational  information  and  consultation  instruments  and 
information  and  consultation  rights  pertaining  to  particular  situations  (e.g.  collective 
redundancies,  transfers  of  undertakings,  etc.).  For  instance,  employers  in  companies 
undergoing transnational restructuring processes potentially involving collective redundancies 
in several countries should generally inform and consult EWCs first on such issues. National 
transposition legislation linked to collective redundancies provides that consultation rights for 
workers  are  ‘with  a  view  to  reaching  agreement’  with  management,  which  differs  from  the 
equivalent provision of the Recast EWC Directive. However, the EWC has a clearly distinct 
role  compared  to  the  national  works  council:  the  former  is  a  vehicle  for  exchange  of  views 

42 

 
 
 
 
about the transnational matter subject to consultation while the latter concerns views from the 
local perspective on national or local issues. Similarly, in cases of transfers of undertakings, 
which  could  in  certain  situations  also  have  transnational  implications,  consultation  should 
take place ‘in good time and before employees are directly affected’ while the EWC should be 
consulted  at  such  time,  in  such  fashion  and  with  such  content  to  express  its  opinion  in  a 
reasonable timeframe93. 

These  discrepancies  are  explained  by  the  different  goals  and  contexts  of  application  of  the 
respective EU instruments  listed above, which were designed especially for the purposes  of 
collective  redundancies  or  transfer  of  undertakings.  While  the  scope  of  the  information  and 
consultation of EWC is wider and applies to all transnational topics affecting the employment 
conditions of the workers, EWCs are not a negotiating body. 

Overall, the Recast is considered to be generally highly consistent with other EU legislation 
addressing  workers  information  and  consultation  rights.  Discrepancies  in  the  detailed 
provisions  concerning  information  and  consultation  reflect  differences  in  the  purpose  of  the 
different legal acts. 

E.  EU added value 

1.  Subsidiarity 

EWCs  have  an  exclusive  focus  on  transnational  issues  and  exist  only  in  multinational 
undertakings.  Recital  45  of  the  Directive  states  that:  ‘the  improvement  of  the  right  to 
information and to consultation in community-scale undertakings (…) cannot be sufficiently 
achieved by the Member States and can therefore be better achieved at community level’. In 
other words, the information and consultation process at transnational level can be regulated 
only by an EU legal act issued only by the EU and afterwards transposed into national law. 
EU minimum requirements in this area guarantee a level playing field for companies and the 
same minimum level of protection of workers. 

The Recast Directive leaves it to the Member States to adapt the provisions to their 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 sanctions. 

Also, the social partners play a key role in implementing the legislation via the negotiation of 
EWC agreements. If they do not come to an agreement, subsidiary requirements are provided 
in the Annex to the Recast Directive94. This decentralised implementation enables information 
and consultation mechanisms and structures to be adapted to the specific characteristics of the 
given  companies.  It  avoids  rigidity  in  obligations  or  slowing  down  of  efficient  company 

93 Article 2(g) of Directive2009/38 

94 Article 7. 

43 

 
 
 
                                                 
decision-making,  while  also  ensuring  appropriate  and  adapted  consultation  and  decision-
making procedures. 

In  addition,  the  principle  of  subsidiarity  is  translated  into:  (i)  the  right95  for  the  special 
negotiating  body  to  stop  the  procedure  of  establishing  an  EWC  with  a  two-thirds  majority; 
and  (ii)  the  choice  left  by  Article 1(2)  for  a  procedure  for  information  and  consultation, 
without the establishment of an institutionalised EWC. The evidence shows that the number 
of cases where this option was taken is extremely small. 

In  the  hypothesis  that  the  Directive  were  to  be  repealed,  transnational  dialogue  could  only 
exist  in  multinational  companies  on  a  voluntary  basis  or  under  the  European  Company 
(Societas  Europaea  (SE))  Statute96.  The  information  and  consultation  process  in  the  SE 
depends primarily on the agreement reached with the employees when the SE is created. The 
information  and  consultation  procedure  would  occur  only  at  national  level97  on  the  basis  of 
Directive  2002/14/EC  and  would  not  provide  for  comprehensive 
information  and 
understanding of companies’ decisions affecting employment conditions at EU level. 

2.  Proportionality 

The Directive is flexible on how to adapt the EWC’s operation to specific circumstances and 
it  permits  the  choice  of  concrete  implementation  arrangements  and  related  rights  and 
obligations. The Recast Directive has clarified the legal framework in which it operates and 
has translated the principle of proportionality in the following ways: 

 

 

 

in  Article 1(2)  the  arrangements  for  the  information  and  consultation  procedure 
must  be  defined  and  implemented  in  such  a  way  as  to  ensure  their  effectiveness 
and  to  enable  the  undertaking  or  group  of  undertakings  to  take  decisions 
effectively; 
in Article 8(2) Member States are required to provide conditions and limits on the 
transmission  of  information  where  it  could  seriously  harm  the  functioning  of  the 
company,; 
in Article 5(2) the Member States are required to determine the applicable method 
for the composition of the special negotiating body. 

As  shown  in  the  previous  sections,  the  Recast  Directive  does  not  impose  administrative, 
financial  and  legal  obligations  in  a  way  that  would  constitute  an  unreasonable  burden  for 
companies. 

95 Article 5. 

96  Directive  2001/86  supplementing  the  statute  for  a  European  Company  with  regard  to  the  involvement  of 

employees and Annex Section 2. 

97 Directive 2002/14. 

44 

 
 
 
                                                 
VI. 

 CONCLUSIONS 

The core findings of the evaluation are as follows: 

  Compliance 

Most Member States have properly transposed the EU legislation. While most provisions are 
implemented  verbatim  in  national  legislation,  some  countries  have  adopted  more  detailed 
provisions that go beyond the minimum requirements of the Recast Directive. For instance, in 
Germany,  the  Czech  Republic  and  Estonia,  the  consultation  process  ends  with  a  reasoned 
opinion by the management referring to the opinion expressed by employees’ representatives.  

Most  stakeholders  and  practitioners  consulted  considered  that  the  Recast  Directive  has 
improved  the  clarity  of  the  legal  framework,  but  challenges  remain  in  practice,  particularly 
while negotiating or applying the EWC agreement at company level. The previous trend for a 
low volume of litigation at national level has continued since the Recast. No cases have been 
brought at EU level. 

  Effectiveness 

The  Recast  Directive  provided  some,  albeit  limited,  impetus  for  setting  up  EWCs  and 
renegotiating existing EWC agreements, with the creation of around 20 EWCs per year since 
its  implementation  in  2011,  mainly  in  companies  headquartered  in  France,  Sweden  and  the 
US. Recast EWCs tend also to be established in smaller companies. It is estimated that half of 
the eligible companies have not yet established a EWC. The reasons for this are complex and 
multiple, ranging from the lack of awareness of legal requirements to the changing structure 
of companies themselves. While this indicates that it is not realistic to aim for 100 % coverage 
of all eligible companies, there is substantial scope for increased take-up of EWCs. 

While  the  concept  of  transnationality  is  better  defined  in  the  Recast  Directive,  it  has  often 
proved difficult to interpret definitively in practice. 

The Recast Directive improved information of workers in terms of quality and scope but there 
are  challenges  over  the  effectiveness  of  the  consultation  right:  despite  having  the  right  to 
express  an  opinion,  EWC  members  seem  to  have  limited  direct  influence  on  the  decision-
making process in their companies, particularly during restructuring. 

Nevertheless, EWCs are perceived by employers as useful instruments bringing benefits to all 
parties  in  many  ways,  such  as  improving  the  common  understanding  of  issues  among 
members,  explaining  decisions,  initiating  positive  discussions  and  leading  to  valuable 
proposals for action or measures depending on the topics discussed. 

On enforcement, the assessment highlights a variety of situations in Member States regarding 
their capacity to seek legal redress. In half of the Member States alternative dispute settlement 
mechanisms are in place. The evaluation observed the weakness of dedicated means for the 
EWCs  to  enforce  their  rights  and  the  lack  of  dissuasive  and  proportionate  sanctions  in  a 
majority of Member States. 

45 

 
 
 
  Efficiency 

The Recast Directive did not create additional costs for employers compared to the previous 
Directive. Quantifiable costs for setting up EWCs seem to even have decreased compared to 
the 1994 Directive, but this may simply reflect the smaller size of the companies setting up 
EWCs following the Recast. For most employers, the benefits outweigh the related costs. The 
right  to  training  without  loss  of  wages  is  largely  in  place  and  constitutes  a  major  gain  for 
EWC  representatives,  enabling  them  to  better  exercise  their  roles  within  multinational 
companies. 

The evaluation concludes that the Recast Directive does not impose administrative, financial 
and legal obligations in a way, which would constitute an unreasonable burden for companies. 

  Relevance 

All stakeholders consider the Recast Directive as relevant. The need to develop transnational 
dialogue  further  is  acknowledged  by  the  social  partners.  As  for  the  objective  of  improved 
employee protection, the Directive was found to make an important contribution to ensuring 
transnational  social  dialogue  at  company  level.  EWCs  provide  a  mechanism  to  cascade 
information throughout the undertaking, create leverage between the EU and local levels and 
thus make it easier to introduce strategic initiatives, leading to qualitative improvements in the 
strategic solutions identified by the company.  

  Coherence 

information  and  consultation  rights, 

The  new  rules  are  generally  consistent  internally  as  well  as  with  other  EU  legislation 
addressing  workers’ 
the  Charter  of 
Fundamental Rights. The differences are justified given the respective instruments’ different 
purposes and objectives. While the scope of the information and consultation of EWC applies 
to  all  transnational  topics  affecting  the  employment  conditions  of  a  company’s  workers, 
EWCs are not a negotiating body so therefore have a different objective than information and 
consultation  at  local  level,  which  involves  trying  to  reach  an  agreement  between  workers’ 
representatives and employers98. 

including 

  EU added value 

The EWCs have a genuine EU transnational dimension. Only an EU legal act, transposed into 
national legislation, can regulate this issue.  

The  Recast  Directive  allows  Member  States  to  adapt  the  provisions  to  national  industrial 
relations  and  legal  systems,  particularly  when  determining  the  arrangements  for  designating 
or electing employees’ representatives, protecting them and determining appropriate penalties. 

If  the  Directive  were  to  be  repealed,  the  absence  of  any  regulation  on  EU  transnational 
dialogue would have two consequences: (i) EU transnational dialogue would be reduced to a 

98 Article 4 of Directive 2002/14/EC. 

46 

 
 
                                                 
dialogue  relying  only  on  the  willingness  of  the  employers’  and  workers’  representatives  at 
company level; or (ii) it would be regulated only in European companies. 

47 

 
 
 
 
 
 
Annex 1: Procedural information concerning the process to prepare the evaluation  
Within  the  Commission,  the lead Directorate-General  (DG) for the evaluation  of the Recast 
Directive 2009/38/EC on the establishment of a European Works Council is DG Employment, 
Social Affairs and Inclusion (DG EMPL). Representatives of other relevant DGs or services 
were invited to participate in an inter-service steering group to accompany the evaluation. 

The  following  DGs  or  departments  participated  in  preparing  the  evaluation:  the  Secretariat-
General, the Legal Service, DG GROW, DG JUST and DG MOVE. 

The Steering Group met on various occasions: 

Kick-off meeting 

23/02/2015 

Meeting on the inception report 

20/04/2015 

Meeting on the interim report 

08/09/2015 

Meeting on the draft final report 

11/12/2015+02/2016 

Meeting on the draft staff working 
document 

09/12/2016 + 08/11/2017 

Roadmap / work programme references 

The roadmap for this evaluation is published under http://ec.europa.eu/smart-
regulation/roadmaps/docs/2016_empl_011_evaluation_european_works_council_en.pdf 

48 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
For the Commission work programme, see the Communication on Regulatory Fitness and 
Performance (REFIT): Results and Next Steps’, COM (2013) 685. See also the 2015, 2016 
and 2017 Commission work programmes. 

Regulatory Scrutiny Board 

This evaluation was not selected for presentation to the Commission’s Regulatory Scrutiny 
Board. 

49 

 
 
 
 
 
Annex 2: Stakeholder consultation 
The contractor set up specific tools customised for each type of stakeholder and each type of 
EWC agreement (i.e. either created before the Directive, between 2009 and June 2011, which 
is the transposition deadline in national law of the Directive). These tools were: 

  a specific online survey created for the national social partners; 
  a topic guide of EU social partners; 
  an online survey for the EWCs set up prior to June 2011; 
  a specific questionnaire drawn up for Member States’ representatives. 

Figure 1: Topic guide of EU social partners 

Sector 

Employer organisations 

Employee organisations 

Metal 

Council of European Employers of the Metal, 
Engineering and Technology-Based Industries 
(CEEMET) 

European Metal employees’ Federation 
(EMF) 

Chemicals 

European chemical employers’ group 

industriAll 

Public services 

European Public Administration Network 
(EUPAN) 

EPSU 

Services Finance, 
insurance 

CEA, AMICE and BIPAR 

UNI Europa-Finance 

Building and woodwork 

European Construction Industry Federation 

European Federation of Building and 
Wood employees 

European Confederation of woodworking 
industries 

Services, information 
technology 

The European Telecommunications Network 
Operators’ Association 

UNI Europa 

Property, services, 
security 

CoESS 

UNI Europa-Property Services 

Services, commerce 

EuroCommerce 

UNI Europa-Commerce 

Food, catering, 
agriculture  

FOODDRINKEUROPE 

EFFAT 

HOTREC 

GEOPA-COPA 

50 

 
 
 
 
 
 
 
 
 
Figure 2: Consultation with EWCs 

Date when created  Number of 

Method 

EWC which 
will be 
contacted for 
interviews and 
surveys  

53* 

Face-to-face, video and 
telephone interviews 

Up to 15 (see 
notes)* 

Face-to-face, video and 
telephone interviews 

Since 6 June 2011 
(when the use of 
the Recast rules 
became 
compulsory) 

Between June 2009 
and June 2011, and 
which decided to 
follow the rules of 
the Recast 
Directive even if 
they could have 
opted out and 
followed those of 
the original EWC 
Directive 
(94/45/EC) 

15* 

Face-to-face, video and 
telephone interviews 

Since 2009 

34* 

Survey 

83  

34 

Face-to-face, video and 
telephone interviews 

Survey 

Consultations with the 
representatives of EWCs 
newly created to follow 
the rules of the Recast 
Directive 

Consultations of EWCs 
which have renegotiated 
their original EWC 
agreement in line with 
the rules of the Recast 
Directive 

TOTAL 

*The figures exclude SE companies as they operate under a different Directive (2001/86/EC). See the revised minutes and the 
revised inception report for further information. 

51 

 
 
 
Annex 3: Sources of findings 
ICF Evaluation of the Recast Directive, commissioned by DG EMPL, final study May 2016. 

European Journal of Industrial Relations, volume 23, issue 3 — September 2017 

European Centre of Expertise in Labour Law — May 2016-November 2017 

https://www.businesseurope.eu/sites/buseur/files/media/position_papers/social/2017-02-
09_european_works_councils_recast_directive.pdf 

https://www.etuc.org/documents/etuc-position-paperfor-modern-ewc-directive-digital-
era#.Wh1v-f6ouAg 

European Labour Law Network — 2015-2016. 

Too little and too late? Evaluating the European Works Councils Recast Directive — Stan De 
Spiegelaere, Researcher at the European Trade Union Institute — June 2016. 

EWCs  on  the  move:  management  perspectives  on  the  development  of  a  transnational 
institution for social dialogue, KU Leuven CESO, 2016, co-financed by Business Europe. 

EWCs assessments and requirements — Report to the ETUC — ETUC 2016. 

European Trade Union Institute (ETUI), European works councils and SE works councils in 
2015, Facts and figures Stan de Spiegelaere-Romuald Jagodzinski — 2015. 

Variations  on  a  theme?  The  implementation  of  the  EWC  Recast  Directive  —  ETUI  —
Romuald Jagodzinski — 2015. 

Linking  information  and  consultation  procedures  at  local  and  European  level  —  Peter 
Kerckhofs, Eurofound 2015. 

Astrees  —  IR  Share  ‘Gérer  la  représentation  transnationale  des  travailleurs’  —  Comment 
relever efficacement le défi des comités d’entreprise européen — 2016. 

DG Move Evaluation — European works council in transport sector. 

https://ec.europa.eu/transport/sites/transport/files/themes/social/doc/final_report_ewcs_in_tra
nsport.pdf 

Report of the Group of Experts (December 2010) on the implementation of Recast Directive 
2009/38/EC  on  European  Works  Councils  —  Report  of  the  Group  of  Experts  (December 
2010). 

Commission  Report  (2000)  —  on  the  application  of  the  Directive  on  the  establishment  of  a 
European  Works  Council  or  a  procedure  in  Community-scale  undertakings  and  Community-

52 

 
 
scale  groups  of  undertakings  for  the  purposes  of  informing  and  consulting  employees 
COM(2000) 188. 

http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:52000DC0188 

Preparatory study for an impact assessment of the European Works Council Directive, EPEC 
GHK (2008). 

http://ec.europa.eu/social/BlobServlet?docId=2421&langId=en 

Impact assessment on the revision of the European Works Council Directive SEC(2008) 2166 

http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:52008SC2166. 

EC Projects funded via the call for proposals on information, consultation and representatives 
of undertakings: 

Reference of the project 

Name of the beneficiary 

Title of the action 

2014 
VP/2014/003/0048 

VP/2014/003/0103  

VP/2014/003/0008 

European Federation of 
Building and Woodworkers 

Katholieke Universiteit 
Leuven, represented by KU 
Leuven Research & 
Development 
Instituto Sindical De Trabajo, 
Ambiente Y Salud 

VP/2014/003/0022  

Federazione Autonoma 
Bancari Italiani 

VP/2014/003/0123 

Association Travail Emploi 
Europe Société 

GPICC — Practical EWC 
guide on Information and 
Consultation 
The perspective of 
management on European 
Works Councils 

SCORE: The Scope of 
COrporate social 
REsponsability and the 
contribution of work councils 

To.Be.E. EWC — Towards a 
better employee involvement 
in undertakings: roles and 
tasks of the main actors in 
establishing and improving 
European Works Councils 

Promoting active and 
efficient European Works 
Councils: EWC guidelines 
for HR managers 

VP/2014/003/0218 

European Trade Union 
Confederation 

ETUC action for Worker 
Participation 

53 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
2015 
VP/2015/003/0049 

European Trade Union 
Confederation 

ETUC conference for EWCs 
2016 

54 

 
 
 
 
 
 
 
Annex 4: Coherence analysis overview with other EU instruments 

Directive  Relevance and 

Scope 

Assessment of the  consistency 

Coherent with the Recast Directive as it provides a general 
framework for all employees to be informed and consulted 
no matter what the situation is. 

Partially coherent — mutually reinforcing 
(brings specifications for the situation of collective 
redundancies). 
Coherent with the Recast Directive in scope but does not 
contain any definitions of information and consultation. 
However, the timing of information and consultation is 
highly coherent with the Recast Directive as for both 
concepts there is a reference to ‘due time’ in the case of 
information and ‘good time’ for the concept of consultation. 
It also provides a clear list of the information needed to be 
sent to employees, which complements the Recast Directive. 

Partially coherent — mutually reinforcing 
Directive 2001/23/EC is complementary to the Recast 
Directive as it provides specific detail on the situation of 
transfers of undertakings. While no specific definition is 
provided, the Directive stipulates that consultation must take 
place with a view to reaching an agreement. However, it 
provides a more specific timeframe for the information and 
consultation procedures and provides a minimum list of the 
information needed to be given to employees.  

Charter of 
Fundamental 
Rights of the 
European 
Union 
Collective 
redundancies 
Council 
Directive 
98/59/EC 

Transfers of 
Undertakings 
Directive 
2001/23/EC 

links to the 
EWC 
Article 27 pertains to 
employees’ rights to 
information and 
consultation within 
the undertaking. 
Sets out rules on the 
information and 
consultation of 
employees’ 
representatives before 
collective 
redundancies are 
made. Also sets out 
provisions on practical 
support for employees 
who are laid off. 

This applies to all 
employees in the EU. 

Information and 
consultation provisions 
only apply in cases of 
collective redundancies in 
establishments employing 
more than 10 employees. 
In addition, this Directive 
does not apply to public 
administrative bodies or 
establishments governed 
by public law. 

Relevant to 
Information and 
Consultation 
Directives at national 
level. All Member 
States except 
Lithuania have 
provisions for 
information and 
consultation, either 
with works councils 
or trade union 
representatives. Most 
also have 
arrangements for 
information and 
consultation when no 
such formal 
organisation exists. 

The Directive applies to 
any transfer of an 
undertaking, business, or 
part of an undertaking or 
business to another 
employer as a result of a 
legal transfer or merger. 
This Directive applies to 
any public and private 
undertakings engaged in 
economic activities 
whether or not they are 
operating for gain as long 
as one of the entities is 
situated within the 
territorial scope of the 
Treaty. Public 
administrative authorities 
are not covered by this 
Directive. 

This Directive only 
applies in the case of a 
creation of a European 
company, regardless of 
whether this is done via 
merger or a classic 
creation of such a 
company. 

Highly coherent — mutually reinforcing. 
Definitions of information and consultation are provided in 
the Directive 2001/86/EC and are very similar to those in the 
Recast Directive. The timing of information is more precise 
as it concerns the specific case of the creation of a European 
company. The timing of the consultation is also in line with 
the Recast Directive, using a very similar wording. There is 
also a mention of specific information that needs to be 
passed on.  

European 
Company 
Statute 
Council 
Directive 
2001/86/EC 

The Directive ensures 
that the establishment 
of an SE does not 
entail the 
disappearance or 
reduction of practices 
of employee 
involvement existing 
within the companies 
participating in the 
establishment of an 
SE. Companies 
participating in the 
formation of a 
European company 
must negotiate with 
the employees via a 
special negotiating 

55 

 
 
 
 
 
 
 
 
Directive  Relevance and 

Scope 

Assessment of the  consistency 

Information 
and 
Consultation 
of employees 
Directive 
2002/11/EC 

links to the 
EWC 
body made up of 
employee 
representatives.  
The Directive marked 
the introduction of 
employees’ general 
rights to information 
and consultation 
through permanent 
bodies across the 
European Union for 
the first time. The 
Directive establishes a 
general framework for 
informing and 
consulting employees 
and plays a key role in 
promoting social 
dialogue (on a 
national level). 

As this Directive regulates 
information and 
consultation at national 
level, there is no mention 
of a criterion of 
transnationality. As a 
result, the obligation to 
inform and consult applies 
to: 
undertakings employing 
at least 50 employees in 
any one Member State, or 
establishments employing 
at least 20 employees in 
any one Member State. 

Coherent with the Recast Directive. It complements the 
Recast Directive well by providing a legal framework for 
information and consultation at national level. 

Definitions in the Directive 2002/14/EC are provided but are 
more succinct than in the Recast Directive. The timing of 
information and consultation is in line with the Recast 
Directive. 

The Recast Directive only provides for the possibility for 
employee representatives to express an opinion that central 
management may take into account. This definition does not 
go as far as under the national framework, which entitles 
employees to obtain a response. 

European 
Cooperative 
Society 
Directive 
2003/73/EC 

Information, 
consultation and in 
some cases, 
participation 
procedures at 
transnational level are 
to be used whenever a 
European cooperative 
is created. 

This Directive only 
applies in the case of a 
creation of a European 
cooperative society and 
concerns a specific 
situation. It is 
complementary to the 
Recast Directive. 

Cross-Border 
Mergers 
Directive 
2005/56/EC 

This Directive only 
applies to cross-border 
mergers of limited 
liability companies as 
defined in the Directive. 

Employee 
participation systems 
should apply to cross-
border mergers where 
at least one of the 
merging companies 
already operates under 
such a system. 
Employee 
participation in the 
newly created 
company will be 
subject to negotiations 
based on the model of 
the European 
Company Statute. 

Highly coherent — mutually reinforcing 
Definitions of information and consultation are similar in to 
the ones in the Recast Directives with small adaptations for 
the specific situation of creating a European cooperative 
society. The timing of information and consultation is in line 
with the Recast Directive. Clear elements have been 
identified for transmission to employees. The Directive only 
applies to the creation of a European cooperative society, 
regardless of whether this creation comes out of a merger or 
from a typical company creation. 
Coherent 

Relates to participation rights but directly refers to the 
existing information and consultation provisions under EU 
law. 
Directive 2005/56/EC concentrates on participation rights of 
employees. However, a reference is made to information and 
consultation according to other Information and 
Consultation Directives reviewed in this exercise. 

56 

 
 
 
 
 
 
 
 
 
 
 
Annex 5: Enforcement overview  
(Source: European Center of Expertise Network November 2017) 

Member 
states  

Austria 

Capacity to bring 
actions before the 
courts for the 
EWC 
Yes and legal 
status  

Alternative dispute 
settlement 
mechanisms 

No, but pre-trial 
mediation99 during 
court proceedings 

Belgium 

Bulgaria 

Croatia 

Only individual 
EWC members101 
and trade unions 
can act for EWCs, 
no legal status 
Yes 

No  

Yes  

Yes102 

Agreement between 
parties allowed  

Yes, mediation 
procedure under 
tripartite mechanism 
Yes103  

Cyprus 

No  

Czech 
Republic 

No legal status but 
the EWC has the 
right to be a party 
to civil judicial 
proceedings in 
disputes on: 

Autonomous means to enable 
the EWC to act 

No dedicated budget but costs 
related to the activities of EWC 
and select committees are borne 
by central management100. 
Labour law issues are exempted 
from court fees below 
EUR 2 500 
Cost of judicial proceeding are 
considered as operating 
expenses so should be borne by 
central management 

Statutory release for EWCs from 
labour court fees 
Cost of judicial proceeding are 
considered as operating 
expenses so should be borne by 
central management 
No  

No 

99 Zivilrechtsmediationsgesetz, ZivMediatG transposing mediation directive 2008/52. 

100 Art 197 of the labour constitution Act. 

101 Advice No 1756  of National labour council on implementation of Directive 2009/38. 

102 Art 155 of the Labour Act. 

103 Mediation Act No 202/2012. 

57 

 
 
 
                                                 
- the provision of 
information which 
the employer 
refused to provide 
to the EWC; and 
- the confidentiality 
of the provided 
information 
No legal status of 
EWC to act in 
ordinary court. 
Special negotiating 
body and social 
partners can act in 
labour courts 
No  
No  
Yes, legal 
personality but a 
legitimate interest 
is required105 
Yes 

Denmark 

Estonia 
Finland 
France 

Germany 

Cooperation 
committee at 
company level 

No  

Yes104  
No  
Special negotiating 
body can initiate a 
mediation procedure 

No 
No  
No but EWC must have the 
financial resources to fulfil its 
mission 

No 

Cost of judicial proceedings are 
considered as operating 
expenses so should be borne by 
central management. However, 
those costs are not charged for 
EWCs in labour court 
proceedings 
no 
Costs of judicial proceedings are 
considered as necessary and 
justified costs of the special 
negotiating body so should be 
borne by central management 
No 

Greece 
Hungary 

Yes 
Yes 

No 
Yes106 

Ireland 

Italy 

No107,  only 
individual workers 
representatives 
No, only local 

Yes, arbitration 

Yes108, conciliation 

No 

104 Conciliation act RTI/2009//59/385. 

105 Art 31 code procédure civile. 

106 Section 291 292 293 of Hungarian Labour Code. 

107 1996 Act transposing Directive 2009/38. 

58 

 
 
                                                 
procedure 

Yes, conciliation and 
arbitration 
Yes, conciliation 

No but public conciliation is free 
of charge 
No 

Yes 

No 
No  

No 

No 

Yes111 

No 
Considered as ‘reasonable 
expenses’  that should be borne 
by central management110 
No 

Cost of judicial proceedings are 
considered as operating 
expenses so should be borne by 
central management 
No, but cases before labour 
courts are exempt from fees 

No  

No, only establishment and 
operating budgets provided for 

trade unions can 
act 
No 

Latvia 

Luxembourg 

Lithuania  An EWC can bring 
action before the 
courts in limited 
cases109  
No, only an 
individual worker 
representative can 
act 
No 
Yes 

Malta 
Netherlands 

Poland 

Portugal 

Romania 

Slovakia 

No legal 
personality, but can 
act when dispute 
concerns access to 
confidential 
information 
Yes  

Yes, specific 
provision on 
disclosure of 
confidential 
information 
The special 
negotiating body 
and the members of 
the EWC can act 

108 Legislative Decree No 113 of 2012. 

109  In  the  event  of  refusal  to  provide  the  necessary  information  (by  the  employer  on  the  grounds  that  the 
information  is  confidential);  in  the  event  of  violation  by  the  company’s  management  of  the  obligation  to 
provide  the  information  about  the  structure  of  the  group,  numbers  of  employees,  (Article  11(5)  of  the 
LEWC). 

110 EWC Act paragraph 20. 

111 Law 192/2006 on mediation. 

59 

 
 
 
                                                                                                                                                         
Slovenia 

Yes112 

Spain 

Yes, legal 
personality 

Sweden 

Yes113 

No, but general 
arbitration 
mechanism possible 
between workers and 
employee 
representatives 
Yes, conciliation, 
mediation and 
arbitration service 
dedicated to 
collective labour 
mechanisms 
Yes, arbitration 

Cost of judicial proceeding are 
considered as operating 
expenses so should be borne by 
central management 

No 

No  

112 Para 3 of Article 45 of the ZDSS. 

113 Act on European Works Council 2011:427. 

60 

 
 
                                                 
Annex 6: Sanctions overview 
(Source: European Center of Expertise Network 2017) 

Country 

Type of sanction 

Level of financial penalties114 

Austria 

Administrative offence1 

Belgium 

Criminal sanction and 
administrative offence 

Bulgaria 

 Administrative offence 

Croatia 

Administrative offence 

Cyprus 

Criminal sanctions 

Maximum EUR 20 0001 per breach and 
EUR 40 000 if recurrent. 
Minimum fine EUR 71 

Sanction related to establishment of 
EWC: between EUR 400 and EUR 8 000, 
multiplied by the number of employees 
concerned. 
Sanction related to operation of EWC: 
between EUR 200 and EUR 4 000, 
multiplied by the number of employees 
concerned 
Minimum EUR 750 and maximum 
EUR 15 000  

Maximum between EUR 900 and  
EUR 2000; sanctions for a work council 
legislation offence are higher (between 
EUR 4 000 and EUR 8 000) 
Imprisonment up to 2 years and fine up to 
EUR 34 000 

Czech 
Republic 

Administrative offence, fines  

Max EUR 7 700 

Denmark 

Administrative offence, fines 

Up to the appreciation of the judge 

114 For countries outside of the euro area, the figures in national currencies have been converted into euros for 

ease of comparison. 

61 

 
 
 
                                                 
Estonia 

Administrative offence, fines 
applied by the Labour 
Inspectorate 

Ranges between EUR 800 and EUR 3 200  

Finland 

Administrative offence, fines 

Maximum EUR 30 000  

France 

Criminal sanction and 
administrative offence 

Germany 

Criminal sanction and 
administrative offence 

Greece 

Criminal and administrative 
sanction 

Sanction related to establishment of 
EWC: Imprisonment up to 1 year and fine 
up to EUR 7 500 
Sanction related to operation of EWC: 
fine up to EUR 7 500. 
Sanction related to establishment of 
EWC: Imprisonment up to 2 years and fine 
Sanction related to operation of EWC: 
fine up to EUR 15 000 
Imprisonment up to 2 years and fine 
between EUR 300 and EUR 50 000 

Hungary 

Administrative offence 

No sanctions laid down in law (Act 
repealed in 2012) 

Ireland 

Administrative offence, fines 

Up to EUR 222 219 

Italy 

Latvia 

Administrative offence, 
sanctions applied by the Labour 
Inspectorate 

Ranges between EUR 1 033 and EUR 
30 988 

Administrative offence, 
sanctions applied by the Labour 
Inspectorate 

n/c 

Lithuania 

Administrative offence, 
sanctions applied by the Labour 
Inspectorate 
Luxembourg  Criminal  and civil sanctions 

Malta 

Criminal sanctions 

Netherlands  Civil sanctions 

Ranges between EUR 30 and EUR 3 000 

Minimum EUR 251 and maximum 
EUR 3 750 
Minimum of EUR 23 and maximum 
EUR 11 646.87 per worker 
n/c 

62 

 
 
  
 
Poland 

Criminal sanction 

Restriction of liberty and maximum fine of 
EUR 1 250 

Portugal 

Administrative offence, fines 

n/c 

Romania 

Administrative offence, fines 

Ranges between EUR 445 and EUR 890 

Slovakia 

Administrative offence, fines 

Up to EUR 100 000 

Slovenia 

Administrative offence, fines 

Sanction related to establishment of 
EWC: fine between EUR 20 000 and 
EUR 100 000  
Sanction related to operation of EWC: 
fine between EUR 2 000 and EUR 5 000 

Spain 

Administrative offence, fines 

Sanction related to establishment of 
EWC: fine up to EUR 187 515 
Sanction related to operation of EWC: 
fine up to EUR 6 250 

Sweden 

Reparation of damages 

n/c 

UK 

Penalty imposed by the 
employment appeal tribunal 

Up to EUR 110 000  

63