Evaluation study on the implementation of Directive 2009/38/EC on the establishment of a European Works Council : final report.
Date: 2018-06-25
Institutions: Directorate-General for Employment, Social Affairs and Inclusion
Subjects: EU Member State, EU law - national law, European Works Council, application of EU law, directive (EU), national implementing measure, social partners, worker consultation, worker information

Evaluation study on the 
implementation of Directive 
2009/38/EC on the 
establishment of a European 
Works Council 
Final report 

March 2016 

March 2016 

EUROPEAN COMMISSION 

Directorate-General for Employment, Social Affairs and Inclusion 

Unit Labour law 

Contact: Lucile Castex-Chauve 

E-mail:  Lucile.Castex-Chauve@ec.europa.eu  

European Commission 

B-1049 Brussels 

 
 
 
 
EUROPEAN COMMISSION 

Evaluation study on the 
implementation of Directive 
2009/38/EC on the 
establishment of a European 
Works Council 
Final report 

Directorate-General for Employment, Social Affairs and Inclusion  

Directorate for Employment and Social Legislation, Social Dialogue, Unit B2 – Labour Law 

March 2016 

 
 
 
 
Evaluation study on the implementation of Directive 2009/38/EC on the establishment 
of the European Works Council 

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Evaluation study on the implementation of Directive 2009/38/EC on the establishment 
of a European Works Council 

ABSTRACT 

The  possibility  to  establish  European  Works  Councils  (EWCs)  was  first  introduced  by 
Directive  94/45/EC.  EWCs  are  bodies  representing  European  employees  within 
transnational  companies.  They  aim  at  ensuring  that  employees  are  informed  and 
consulted  by  management  on  any  business  issues  or  decision  that  could  have  an 
impact on employment and working conditions.   

Over  the  years,  a  number  of  legal  and  implementation  challenges  arose  and  the 
original  directive  was  revised  in  2009  through  Directive  2009/38/EC  Directive 
(Recast). 

The  purpose  of  this  evaluation  was  to evaluate  the  transposition  and implementation 
of  Directive  2009/38/EC  Directive  (Recast)  in  the  EEA  countries  and  the  extent  to 
which it has achieved goals of the Recast for instance around encouraging the creation 
of  more  EWCs,  enhancing  the  effectiveness  of  employees’  transnational  information 
and consultation and enhancing legal certainty. Furthermore, the evaluation assessed 
the  costs  and  benefits  of  the  implementation  of  Recast  provisions,  as  well  as 
identifying best practices.  

Amongst  other  things,  an  assessment  of  the  coherence  of  the  Recast  Directive  rules 
with  the  existing  European  legislation  and  policy  developments  in  the  field  employee 
information  and  consultation  was undertaken.  The  national laws  transposing  the  new 
rules of the Directive were assessed against each new provision introducing all the key 
areas of change in the Recast Directive.  

The  evaluation  was  undertaken  using  a  range  of  sources  and  methods,  including  the 
use of existing studies and the EWC database, interviews with employee and employer 
representatives  at  EWCs,  as  well  as  consultations  with  social  partners  at  EU  and 
national level. 

The  final  report  provides  analysis,  conclusions  and  recommendations  on  the 
effectiveness  and  efficiency  of  the  implementation  of  the  Recast  Directive.  It  will 
support the work of the Commission in the preparation of the report to the European 
Parliament,  the  Council  and  the  European  Economic  and  Social  Committee  on  the 
implementation of this Directive due by mid-2016. 

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ABSTRAIT 

La possibilité de créer des comités d'entreprise européens (CEE) a été introduite par la 
Directive 94/45/CE. Les CEE sont des organes représentant les travailleurs européens 
dans  les  entreprises  transnationales  et  leur  objectif  est  de  s’assurer  que  les 
travailleurs sont informés  et consultés sur toute question ou décision d’entreprise qui 
pourrait avoir un impact sur l’emploi et les conditions de travail.  

Au  fil  des  années,  un  certain  nombre  d’enjeux  juridiques  et  de  mise  en  œuvre  sont 
apparus et ont conduit à la refonte de la Directive originale en 2009.  

Cette  étude  a  pour  objectif  d’évaluer  la  transposition  et  la  mise  en  œuvre  de  la 
Directive  2009/38/CE  (Directive  de  refonte)  dans  les  Etats  Membres  de  l’UE  et  de 
l’EEE. Il s’agit également de comprendre si les objectifs de la Directive de refonte ont 
été  atteints,  à  savoir  encourager  la  création  de  plus  de  CEE,  l'amélioration  de 
l'efficacité du processus d’information et de consultation transnationale des travailleurs 
et le renforcement de la sécurité juridique. En outre, l'évaluation a évalué les coûts et 
les avantages de la mise en œuvre des dispositions de la Directive de refonte ainsi que 
l'identification de bonnes pratiques.  

Une évaluation a notamment été entreprise pour évaluer la cohérence des dispositions 
de la Directive de refonte avec la législation européenne en vigueur et l'évolution des 
politiques européennes existantes dans le domaine de l'information et consultation des 
travailleurs. Les législations nationales transposant les nouvelles règles de la Directive 
ont été évaluées pour chaque nouvelle disposition apportant une modification dans un 
des domaines clés de la Directive.  

L'évaluation  a  été  réalisée  à  l'aide  de  différentes  sources  et  méthodes,  comprenant 
entre autres, des études existantes, la base de données  des CEE, des entretiens avec 
des représentants des travailleurs et des employeurs, ainsi que des consultations avec 
les partenaires sociaux au niveau européen et national.  

Le rapport final présente des analyses, conclusions et recommandations sur l'efficacité 
et  l'efficience  de  la  mise  en  œuvre  de  la  Directive  de  refonte.  Ce  rapport  s’inscrira 
dans le  cadre  des  travaux  de  préparation  du  rapport  de la  Commission  au  Parlement 
européen, au Conseil et au Comité économique et social concernant la mise en œuvre 
de cette Directive, qui est attendu d’ici mi-2016.   

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ABSTRAKT 

Die  Möglichkeit,  einen  Europäischen  Betriebsrat 
(EBR)  einzusetzen,  wurde 
ursprünglich  durch  die  Richtlinie  94/45/EG  eingeführt.  Europäische  Betriebsräte  sind 
in  gemeinschaftsweit  operierenden 
Organe,  die  europäische  Arbeitnehmer 
Unternehmen  vertreten  und  gewährleisten  sollen,  dass  die  Arbeitnehmer  von  der 
Unternehmensleitung  über  geschäftliche  Angelegenheiten  oder  Entscheidungen,  die 
sich  möglicherweise  auf  die  Beschäftigungs-  und  Arbeitsbedingungen  auswirken, 
unterrichtet und angehört werden.   

Im  Laufe  der  Jahre  entstanden  jedoch  rechtliche  und  umsetzungsbedingte  Probleme, 
und  die  ursprüngliche  Richtlinie  wurde  durch  die  Richtlinie  2009/38/EG  (Neufassung) 
ersetzt. 

in  dem  diese  neugefasste  Richtlinie 

Zweck  dieser  Evaluierung  war  die  Bewertung  der  Umsetzung  der  Richtlinie 
2009/38/EG  (Neufassung)  in  den  EU-/EWR-Ländern  sowie  die  Bewertung  des 
Umfangs, 
ihre  Ziele  erreicht  hat,  wie 
beispielsweise die Einrichtung von weiteren EWR, eine effektivere länderübergreifende 
Unterrichtung  und  Anhörung  der  Arbeitnehmer  und  die  Förderung  der 
Rechtssicherheit.  Zudem  wurden  die  durch  die  Umsetzung  der  Bestimmungen  der 
neugefassten  Richtlinie  entstandenen  Kosten  und  Vorteile  bewertet  und  erfolgreiche 
Verfahren ermittelt.  

Des  Weiteren  wurden  die  Kohärenz  der  in  der  neugefassten  Richtlinie  enthaltenen 
Bestimmungen  mit  der  bestehenden  europäischen  Gesetzgebung  beurteilt  sowie  die 
politischen  Entwicklungen 
im  Bereich  der  Unterrichtung  und  Anhörung  der 
Arbeitnehmer  bewertet.  Schließlich  wurden  die  der  Neufassung  der  Richtlinie 
angeglichenen  nationalen  Gesetze  mit  den  einzelnen  Bestimmungen,  die  die 
wichtigsten Änderungen der neugefassten Richtlinie darstellen, verglichen.  

Die Evaluierung erfolgte mittels verschiedener  Quellen und Methoden. Dazu gehörten 
beispielsweise  bestehende  Studien  und  die  EBR-Datenbank,  Gespräche  mit 
Arbeitnehmer- und Arbeitgebervertretern in EBR sowie mit Sozialpartnern auf EU- und 
nationaler Ebene. 

Der  Schlussbericht  enthält  eine  Analyse,  Schlussfolgerungen  und  Empfehlungen  zu 
Effektivität  und  Effizienz  der  Umsetzung  der  neugefassten  Richtlinie  und  wird  die 
Kommission bei Erstellung ihres Berichts an das Europäische Parlament, den Rat und 
den  Europäischen  Wirtschafts-  und  Sozialausschuss,  der  Mitte  2016  veröffentlicht 
werden soll, unterstützen. 

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EXECUTIVE SUMMARY  

Background 

  This  summary  covers  the  main  findings  of  the  Evaluation  study  on  the 
implementation  of  Directive  2009/38/EC  on  the  establishment  of  a  European 
Works Council. The purpose of the study was to evaluate the impact of new 
rules  and  changes 
introduced  by  Directive  2009/38/EC  on  the 
establishment  and  operation  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). 

  European Works Councils (EWCs) are bodies representing European employees 
in  transnational  companies.  They  aim  to  ensure  that  employees  are  informed 
and  consulted  by  management  on  any  business  issues  or  decisions  that  could 
have  an  impact  on  employment  and  working  conditions.  The  possibility  to 
establish European Works Councils was  first introduced by Directive 94/45/EC. 
Over  the years,  a  number  of legal  and implementation  challenges  arose  which 
led to the recast of the original Directive in 2009. 

  The  study  methodology  combined  an  analysis  of  secondary  data,  including  an 
analysis  of  the  coherence  of  the  Directive  with  other  EU legislation  addressing 
workers’  information  and  consultation  rights  and  the  articulation  between 
different  information  and  consultation  instruments,  a  legal  analysis  of  the 
national  transposition  and  national  case  law,  and  a  literature  review. 
Additionally,  primary  data  were  collected  from  stakeholders  such  as  EU  and 
national  level  social  partners  and  Member  State  ministries.  Furthermore, 
information  was  gathered  via  interviews  and  surveys  from  employee  and/or 
employer representatives in companies which established EWCs under the new 
rules (henceforth ‘Recast EWCs’), as well as companies which established EWCs 
under Directive 94/45/EC but which have recently renegotiated or revised their 
agreement  in  line  with  the  rules  of  the  Recast  Directive  (later  ‘Renegotiated 
EWCs’). Finally, information was also gathered from companies which concluded 
their  agreement  under  Art.  6  of  Directive  (94/45/EC)  and  have  not  (so  far) 
revised their Agreement (henceforth ‘Art.6 EWCs’). 

  Although the response rate to interview requests was relatively high (at 63%), 
employee  side  representatives  were  more  likely  to  respond  than  employer 
representatives, leading to an imbalance in the responses received and limited 
the information which could be collected on the costs of setting up and running 
an EWC. The legal transposition analysis was rendered more challenging by the 
fact  that  transposition  reports  to  the  Commission  only  include  information  on 
changes to existing legislation, making it more difficult to fully assess provisions 
already in  place  prior  to  the Recast  and  whether  these meet  the  requirements 
of  the  Recast  Directive.  Uncertainties  in  this  analysis  where  addressed  by  a 
further  round  of  consultations  with  relevant  national  ministries.  It  should  be 
noted that the resulting assessment represents the views of the contractor and 
not that of the European Commission. 

Transposition  of  the  Recast  Directive  in  the  EU  Member  States  and  the  EEA 
countries 

Extent  to  which  all  the  provisions  have  been  correctly  transposed  into 
national legislation 

  In  the  majority  of  cases,  the  national  laws  correctly  transposed  the 

provisions of the Directive.   

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Differences, if any, in scope of the EU and EEA countries laws transposing the 
Directive were as follows: 

  15 EU and EEA countries have introduced provisions which are more favourable 
than  those  foreseen  in  the  Directive.  These  relate,  among  other  things,  to 
enhanced rights to means to perform EWC representative duties and enhanced 
definitions of information, consultation and transnational matters.  

  By contrast, in 12 EU and EEA countries at least one national rule was assessed 
as not meeting all the requirements of the Directive.  Only in 4 Member States 
at  least  one  of  the  key  substantive  provisions  of  the  Directive1  was  judged  to 
have  not  been  transposed  fully.  In  9  EU  and  EEA  countries,  a  relatively minor 
non-substantive  provision  (or  part  of  such  provision)  was  not  transposed. 
Among  such  more  significant  shortcomings  in  transposition  were  the failure  to 
provide the right to training for the EWC representatives without loss of wages, 
the  requirement  to  inform  European  social  partners  about  the  start  of 
negotiations and ensuring the SNB right to meet without management. 

Impacts in terms of legal certainty 

  Most stakeholders consulted considered that the Recast Directive has increased 

legal certainty.  

Coherence of the Recast Directive with other existing European legislation  

  The  new  rules  are  generally  consistent  with  other  EU  legislation 

addressing workers information and consultation rights. 

  Key  possible inconsistencies  with the  existing  I&C instruments identified  relate 
to the Recast EWC Directive not including a list of (minimum) information 
to  be  provided  to  employees  in  the  I&C  procedures,  a  specific 
timeframe  for  I&C  procedures  and  do  not  require  an  official 
management  answer  to  an  opinion  from  an  EWC  in  a  consultation 
process (or indeed to reach agreement, as provided by Directive 2002/14/EC).  

Fulfilment of the Directive’s objectives 

Impact on the creation of EWCs and on the continuous functioning of existing 
EWCs 

  Both Directive 94/45/EC and the Recast Directive provided an impetus 
for the setting up of EWCs, although in the case of the Recast, this was 
much less significant in terms of the number of newly created EWCs.  
  Up to 58 EWCs have been newly established in line with the rules of the Recast 
Directive since June 2009. Companies headquartered in France (19%), followed 
by  Sweden  (12%)  and  the  US  (9%)  host  the  largest  number  and  share  of 
Recast  EWCs.  Since  June  2009  more  EWCs  have  been  created  in  the 
‘building & woodwork’, ‘transport’, and different service sectors.  

  On average, companies with Recast EWCs are smaller in terms of number 
of  employees  and  the  average  turnover  than  companies  with  EWCs 
established  under  Articles  13  and  6  of  Directive  94/45/EC.  This  affects  the 
number of employee representatives on EWCs which is smaller in Recast EWCs 
(16 delegates) than in EWCs operating under Articles 13 and 6 (23 delegates).  
  Recast  EWCs  operate  a  slightly  more  frequent  programme  of  plenary 

meetings than other types of EWCs.  

1 Key substantive provisions were considered to relate to the opening and conducting negotiations, role of 
social partners and experts, contents of the subsidiary requirements, general principles and concepts of 
information and consultation and transnational matters, links between the levels of information and 
consultation of employees, role and capacity of employees' representatives and the adaptation cause.  

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  There  has  been  a  significant  improvement  in  ensuring  the  ‘right’  to 
training  for  EWC  representatives  without  a  loss  of  wages.  Reference  to 
this ‘right’ in EWC agreements has increased to 93% (from less than a third of 
the  original  Article  13  agreements  having  such  a  clause).  Two-thirds  of 
interviewed  Recast  EWC  employee  representatives  confirmed  that  employees 
had  made  use  of  their  right  to  training.  Among  those  who  had  requested 
training,  the  vast  majority  (80%)  noted  that  there  had  been  no  particular 
challenges in securing access to it.  

  The  Recast  Directive  has  provided  some  impetus  for  the  renegotiation  of 
existing  EWC  agreements.  117  Article  13  and  Article  6  EWC  agreements 
have  been  renegotiated  since  June  2009.  However,  an  increase  was 
observed  in  the  proportion  of  EWCs  operating  under  the  subsidiary 
rules  (i.e.  minimum  conditions  for  the  EWCs)  since  the  introduction  of  the 
Recast  Directive  (but  data  recording  issues  might  affect  the  reliability  of  this 
finding).  

Impact on the effectiveness of EWCs in guaranteeing employees’ information 
and consultation rights 

  The  impact  of  EWCs  on  restructuring  decisions  remains  limited. 
According to most employer and employee representatives, the consultation of 
EWC  members  has  not  led  to  any  significant  changes  in  corporate  decision-
making.  The  consultation  of  EWC  members  is  however  seen  as  positive  by 
stakeholders to develop a common corporate vision and some EWCs have been 
able  to  influence  processes  of  restructuring  (in  term  of  the  protection  and 
packages offered to affected workers).  

  The  impact  of  the  Recast  on  improving  information  flow  in  EWCs  has 
been  greater  than  its  impact  on  improving  consultation.  Information  is 
considered  to  be  delivered  in  a  relatively  timely  fashion  (e.g.  in  advance  of  a 
decision) in the majority (70%) of cases.  

  A majority of Recast EWCs focus ‘almost exclusively’ on transnational matters. 
There  are  difficulties  in  some  cases  in  relation  to  the  interpretation  of  the 
notion  of  transnationality.  The  extent  to  which  EWCs  can  focus  on 
transnational  matters  depends  on  the  soundness  of  the  interpretation  of 
the concept and the determination of EWC leadership to keep the discussions 
focussed on transnational issues. Some challenges appear to remain in relation 
to the precise interpretation of the concept of transnational matters in practice, 
as  employee  representatives  often lack  sufficient information  to  question  what 
management deem to be transnational or national matters. 

Impact  on  the  role  of  EWCs  in  the  negotiation,  implementation  and 
monitoring of transnational agreements  

  There  has  been  a  limited  impact  of  the  Recast  EWCs  on  the  conclusion 
and  quality  of  transnational  company  agreements.  Only  3  out  of  37 
Recast EWCs2 have concluded such agreements to date. This may be due to the 
fact that many of these EWC have only become operational relatively recently.  

Costs and benefits generated by the Directive 

Fulfilment of worker protection objectives in light of resources utilised 

  The quantifiable costs of setting up EWCs have declined when compared to 
the  experience  of  Article  6  agreements  under  Directive  94/45/EC  (from  EUR 
143,537 to EUR 119,207). These lower costs primarily result from the fact that 
fewer meetings were held with fewer representatives (and therefore associated 

2 Interviews were carried out with 37 out of 58 EWCs set up under the rules of the Recast Directive. 

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meeting  costs)  –  albeit  over  a  longer  period  of  time  –  in  regard  to  EWCs 
established under  the Recast  Directive.  This is linked  to  the  size  of  companies 
negotiating new agreements rather than the provisions of the Recast Directive. 
  Costs  relating  to  the  operation  of  Recast  EWCs  are  similar  to  those  of 
EWCs  established  under  Directive  94/45/EC  and  the  main  problems  of  the 
effective  implementation  of  consultation  in  particular  remain.  Not  much  has 
changed  in  terms  of  EWCs  influencing  company  decisions  on  transnational 
matters, despite the enhanced definition of these concepts.  

  Employee  and  employer  representatives  in  the  Recast  EWCs  are 
positive about the non-quantifiable benefits of their EWC. It is notable that 
the  perceived  benefits  of  having  an  EWC  decreased  among  companies  with 
Recast  EWCs  compared  to  EWCs  established  under  Directive  94/45/EC.  The 
greatest decline in the perceived value of EWCs is in relation to their ability to 
affect  the  impact  of  restructuring  situations  on  employees  and  their 
effectiveness in the exchange of information.  

  At the same time, the perception of non-quantifiable costs also seems to 
have  decreased,  particularly  in  the  eyes  of  employers.  Notable  was  a 
reduction in the employers’ perceptions of EWCs raising employee expectations 
in an unrealistic manner. Employers also considered EWCs less costly  in terms 
of  such  bodies  leading  to  calls  for  transnational  collective  bargaining,  and 
introducing unnecessary rigidities into employee and management relations.   

Extent of the impact of the economic context 

  The operation of the Recast EWCs has not been affected by the economic and 
financial crisis (although the subject matters discussed may have been 
shaped by declining economies, e.g. resulting in restructuring). In those 
cases  where  the  economic  context  affected  the  work  of  the  EWC,  the 
management openly discussed financial concerns of the company and asked the 
EWC members to respect some cost-cutting measures during the difficult times.  

Key recommendations from the study 

1.  There  is  scope  for  the  European  Commission  to  initiate  dialogue  with  the 
responsible  national  authorities  in  relation  to  instances  where,  on  the  basis  of 
available legal texts, the transposition of the Directive appears to be insufficient 
on  key  substantive  aspects  of  the  Directive.  The  assessments  made  in  this 
evaluation  about  shortcomings  in  transposition  should  be  clarified  in  dialogue 
with the national authorities and appropriate action taken.  

2.  Improvements  to  the  legal  concepts  could  be  considered  through  further 

clarifications and sharing of practical examples and best practices. 

In principle, the Directive remains silent on which law shall be chosen to govern 
the negotiations  or  the  national  jurisdiction  governing  the  EWC  agreement  (its 
existing  rules  only  help  to  determine  the  relevant  partner  for  workers 
representatives and define central management). This is left to the discretion of 
both  sides  and  more  prescriptive  action  could  be  taken  to  prevent  possible 
misuses.  This  could include  further  specification in the legislation  on this issue 
(e.g.  stipulating  that  the  national  law  of  the  company’s  European  HQ  should 
govern the EWC agreement; this could include guidance on how the location of 
the  company’s  European  HQ  is  to  be  determined,  such  as  in  relation  to 
management structures or share of employees in the EU, etc.3). 

3.  The  general  Directive  on  information  and  consultation  of  workers  (Directive 
2002/14/EC) goes further than the Recast EWC Directive as regards to defining 

3 Some jurisprudence from national case law is available on this issue (see section 4.6.1 – Manpower case). 

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‘consultation’.  First,  it  provides  for  consultation  ‘with  a  view  to  reaching  an 
agreement’ while the Recast EWC Directive 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 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’.  Second,  the 
general  directive  on  I&C  requires  employers  to  provide  a  response  and  its 
reasons to an opinion. Those two elements could  also be incorporated into the 
Recast Directive in order to strengthen its impact.   
Furthermore,  a  number  of  stakeholders  on  the  employee  side  remarked  that 
more  precise  guidance  could  be  given  on  the  timing  for  information  provision 
and the separation of information and consultation processes. This is due to the 
fact  the  Directive  only  stipulates  that  consultation  should  take  place  ‘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’, which many 
on the employee side argue may be insufficient to ensure effective consultation. 
The  rationale  on  the  employer  side  is  often  that  information  needs  to  remain 
confidential  specifically  for  companies  listed  on  the  stock  market.  The  latter 
should, in principle, already be addressed by requiring EWC members to respect 
such confidentiality.  

Further guidance could be given on the basis of the experience of EWCs which 
have  established  internal  rules  on  the  precise  processes  of  information  and 
consultation  (steps  and  timing  involved).  This  could  be  enhanced  with 
impact  of 
from  relevant  EWC  members  on  the  beneficial 
testimony 
implementing such clear processes.    

4.  The issues of enforcement, sanctions and penalties are left to the national level 
implementation  measures.  As  a  consequence,  provisions  vary  significantly  and 
lead to arguments that in some cases sanctions are not sufficiently dissuasive. 
Further  action  could  be  taken  to  ensure  that  sanctions  and  enforcement 
procedures  are  sufficiently  dissuasive  (such  as  sharing  of  information  on 
different national practices and their impact).  

5.  The creation of additional EWCs (as not all eligible companies have established 
EWCs) could be further supported  through the following actions: More work to 
publicise the legal entitlements and the potential benefits of EWCs to company 
and  employee  representatives  (for  instance  supported  by  European  and 
national social partner organisations). To undertake such outreach and publicity 
work,  the  eligible  companies  without  the  EWCs  would  need  to  be  reached. 
Currently, there is insufficient knowledge about such companies, although some 
initiatives to map these exist (e.g. ETUI database) and European social partners 
(both cross-sectoral and sectoral) have some knowledge of relevant companies. 
To address any knowledge gap, further action could be taken, such as updating 
existing databases of eligible companies without EWCs, involving the ETUI and / 
or  European  social  partners.  The  figure  of  2,400  potentially eligible  companies 
has  been  estimated  some  time  ago,  but  this  is  a  ‘moving  target’  because  of 
significant restructuring processes.  

It could also take the form of the establishment and maintenance of a European 
level contact point for companies/ employees which would like to establish EWC 
and  would  like  assistance,  further  guidance  and  signposting  to  existing 
legislation and EWC practice. Such contact points could be made public also by 
the national authorities in each of the Member States. The contact point at the 

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European level could provide continuous support and assistance in the process 
of  the  creation  of  the  EWCs  (such  service  could  be  contracted  out  to  external 
providers  or  agencies  such  as  Eurofound  entrusted  with  such  task).  Such 
assistance is currently often provided by European social partner organisations, 
but in some cases they also lack knowledge of all potentially eligible companies 
and/or the capacity to assist in each case. As an alternative to a contact point, 
a  webpage  signposting  relevant European  sectoral  social  partner  organisations 
(or relevant national bodies) could also be envisaged, but this have to be linked 
to a resource for the signposted organisations to deal with any queries. 
Exchange  of  practice  (including  at  HR  conferences)  between  the  management 
of  potential  and  existing  EWCs  about  the  work  and  benefits  of  existing  EWCs 
should be reinforced.  
More  examples  of  EWC  operating  in  small  companies  should  be  provided  and 
peer learning between  them encouraged by the European Commission through 
organisation of peer learning events and seminars.  
DG EMPL budget lines are available to support projects which could lead to the 
establishment of EWCs in the set up phase. 

6.  There is scope to consider how to further improve information and consultation 

processes in EWC. 
Sharing best practices and real life examples from existing EWCs on how EWC 
involvement  in  the  corporate  decisions  made  a  positive  contribution  to  the 
company operation and culture across the EU (this evaluation already identified 
a number of such examples). This could include information on how to organise 
and  optimally  implement  information  and  consultation  in  specific  restructuring 
situations  (e.g.  should  whole  EWC  or  enhanced  steering  group  –  involving 
affected  countries  –  be  involved).  Some  EWCs  have  drawn  up  process  plans 
setting  out  distinct  information  and  consultation  steps  which  might  be  of 
interest to other EWCs (see also Recommendation 2). To achieve this, a series 
of seminars and peer learning events could be organised in order to share the 
EWC  practices.  In  such  events,  the  EWC  representatives  could  be  invited  to 
share and discuss the examples of their work in improving the EWC information 
and consultation processes.  
A clearer distinction between the information and consultation phases can help 
EWCs  in  influencing  the  decision  making,  as  well  as  employer  willingness  to 
share relevant information. More precise guidance (in the form of very practice-
oriented  ‘how  to’  guide)  on  the  timing  for  information  provision  and  the 
separation  of  information  and  consultation  processes,  based  on  the  legal 
interpretations of the Recast Directive, the identified court cases and practices 
of the existing EWCs could be discussed via those events/documentations.  

7.  Despite  the  further  clarification  provided  on  the  concept  of  transnational 
matters  by  the  Recast  Directive,  in  practice  significant  uncertainties  and 
tensions remain regarding how this should be interpreted and whether sufficient 
information  is  available  to  employees  to  query  claims  by  management  that 
certain  matters  are  not  transnational.  An  exchange  of  practices  and  guidance 
on  the  results  of  relevant  Court  cases  may  be  of  value  in  this  area.  There  is 
thus  scope  for  the  European  Commission  to  provide  further  guidance  on 
practical  interpretation  of  the  concept  of  transnationality  based  on  existing 
jurisprudence and examples from existing EWCs. The guidance could include a 
non-binding  compendium  of  examples  of  the  national  court  decisions  with 
respect to the interpretation of the transnational matters, examples of existing 
EWC  interpretations  of  transnational  matters  (drawn  for  example  from  EWC 
agreements)  and  assessments  of  the  implications  of  such  examples  for  the 
work of EWCs.  

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8.  Some  EWCs  play  a  role  in  relation  to  concluding  transnational  company 
agreements (although the EWCs do not have such explicit negotiations powers). 
This EWC role could be further clarified through an explicit reference to such a 
role in the EWC related legislation to provide legal clarity and certainty on this 
question.  

9.  The right to training without a loss of wages has been a success of the Recast 
Directive.  As many Recast EWCs are in the early stages of the implementation 
of  their  operations,  a  further  review  in  a  few  years  by  the  European 
Commission may be required to assess the implementation of this right in more 
detail to determine how much and what kind of training has been funded. The 
European  Commission  could  continue  to  finance  projects  with  joint training  for 
EWC  members,  especially  coming  from  smaller  (in  terms  of  turnover) 
companies (see also Recommendation 2).  

10. Identified practices on how to maximise benefits and minimise costs should be 

more widely shared between the EWCs. These include: 

  Exchange of good practice on the role, rights and duties of the EWC members 
as  suggested  in  previous  recommendations  to  maximise  the  potential  value  of 
EWCs. 

  The  existing  EWCs  exploring  effective  ways  in  reducing  meeting  costs  without 
undermining  the  benefits  of  face  to  face  meetings  and  the  ability  to 
communicate with representatives from all different countries by learning from 
the  experience  of  existing  EWCs  (e.g.  on  cost  of  different venues,  potential  to 
use  telephone  or  videoconferences  for certain  types  of  meetings  such  as more 
regular steering groups; cost of language training versus cost of interpretation/ 
translation etc.). 

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RÉSUMÉ  

Informations préliminaires 

  Ce  résumé  évoque  les  principales  observations  de  l’Étude  d’évaluation  de  la 
mise  en  œuvre  de  la  Directive 2009/38/CE  sur  l’institution  d’un  comité 
d’entreprise  européen.  L’objectif  de  cette  étude  consiste  à  évaluer  l’impact 
des  nouvelles  règles  et  des  modifications 
la 
Directive 2009/38/CE  concernant  l’institution  et  le  fonctionnement 
d’un  comité  d’entreprise  européen  ou  d’une  procédure  dans  des 
entreprises de dimension communautaire  et des groupes d’entreprises 
de  dimension  communautaire  en  vue  d’informer  et  de  consulter  les 
travailleurs (Directive de refonte). 

introduites  par 

  Les  comités  d’entreprise  européens  (CEE)  sont  des  organes  représentant  les 
travailleurs  européens  dans  les  entreprises  transnationales.  L’objectif  est  de 
s’assurer  que  les  travailleurs  sont  informés  et  consultés  sur  toute  question  ou  
décision d’entreprise qui pourrait avoir un impact sur l’emploi et les conditions 
de  travail.  La  possibilité  de  créer  des  comités  d’entreprise  européens  a  été 
introduite  pour  la  première  fois  dans la  Directive  94/45/CE.  Au  fil  des  ans,  un 
certain  nombre  d’enjeux  juridiques  et  de  mise  en  œuvre  sont  apparus  et  ont 
conduit à la refonte de la Directive originale en 2009. 

  La  méthodologie  de  l’étude  combine  une  analyse  de  données  secondaires,  y 
compris  une  analyse  de  la  cohérence  de  la  Directive  2009/38/CE  avec 
d’autres législations de l’UE concernant les droits à l’information et à la 
consultation  des  travailleurs  et  son  articulation  avec  les  différents 
instruments  d’information  et  de  consultation  existants  au  niveau  de 
l’UE.  L’étude  se  fonde  également  sur  une  analyse  juridique  de  la 
transposition  de  la  Directive  en  droit  national,  des  études  de  cas 
nationales,  et  une  revue  de  la  littérature  existante.  De  plus,  des  données 
primaires  ont  été  recueillies  auprès  de  différents  acteurs,  tels  que  les 
partenaires sociaux aux niveaux européen et national et les ministres des États 
membres.  En  outre,  des  informations  ont  été  rassemblées  au  travers 
d’entretiens  et  d’enquêtes  menés  auprès  des  représentants  des  travailleurs 
et/ou  des  employeurs  dans  les  entreprises  ayant  créé  des  CEE  selon  les 
nouvelles  règles  (appelés  ci-dessous  « CEE  ‘refonte’»),  ainsi  que  dans  des 
entreprises ayant créé des CEE sur la base de la Directive 94/45/CE, mais ayant 
récemment  renégocié  ou  révisé  leur  accord  conformément  aux  règles  de  la 
Directive de refonte (plus tard, « CEE renégociés »). Enfin, des informations ont 
également  été  rassemblées  auprès  de  entreprises  ayant  conclu  leur  accord 
conformément  à  l’Art. 6  de  la  Directive  (94/45/CE)  et  n’ayant  pas  (encore) 
révisé leur accord (appelés ci-dessous « CEE Art. 6 »). 

  Bien  que  le  taux  de  réponse  aux  demandes  d’entretiens  ait  été  relativement 
élevé (63 %), les représentants des travailleurs ont été plus enclins à répondre 
que  les  représentants  des  employeurs,  ce  qui  a  entraîné  un  déséquilibre  dans 
les réponses reçues et a limité les informations recueillies concernant les coûts 
de  création  et  d’organisation  d’un  CEE.  L’analyse  de  la  transposition  de  la 
Directive s’est avérée plus complexe puisque les rapports de transposition remis 
à la Commission par les Etats Membres ne fournissent que des informations sur 
les  amendements  apportés  à  la  législation  déjà  en  vigueur  lors  de  la  mise  en 
œuvre  de  la  Directive  2009/38/CE.  Il  a  donc  été  plus  difficile  de  comprendre 
quelles  étaient  les  dispositions  déjà  en  place  avant  la  mise  en  œuvre  de  la 
Directive de refonte et si ces dernières répondaient bien aux exigences de cette 
Directive.  Les  incertitudes  de  cette  analyse  ont  été  revues  grâce  à  une  autre 
série  de  consultations  avec  les  ministères  nationaux  concernés.  Il  convient  de 
noter  que  l’évaluation  qui  en  ressort  représente  les  points  de  vue  du 
contractant et non ceux de la Commission européenne. 

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Transposition de la Directive de refonte dans les États membres de l’UE et les 
pays de l’EEE 

Transposition des dispositions de la Directive en droit national 

  Dans  la  majorité  des  cas,  les  dispositions  de  la  Directive  ont 

correctement été transposées en droit national. 

Les  différences  de  transposition  en  droit  national  concernant  le  champ 
d’application de la Directive dans les Etats Membres de l’UE et de l’EEE  

  15  États  membres  ont  introduit  des  dispositions  plus  favorables  que  celles 
prévues  dans la  Directive.  Celles-ci  concernent,  entre  autres,  un  renforcement  
du  droit  d’obtenir  les  ressources  nécessaires  pour  exercer  les  devoirs  de 
représentant  du  CEE  ainsi  qu’une  consolidation  des  définitions  des  concepts 
d’information, de consultation et des questions transnationales. 

  En  revanche,  dans  11 États  membres,  au  moins  une  disposition  nationale  ne 
répondait  pas  à  toutes  les  exigences  de  la  Directive.  Dans  seulement  4 États 
membres, on a estimé qu’au moins une des principales dispositions essentielles 
de  la  Directive4  n’avait  été  que  partiellement  transposée.  Dans  8 États 
membres,  une  disposition  essentielle  relativement  mineure  (ou  une  partie  de 
cette disposition) n’a pas été transposée. Les lacunes les plus significatives en 
termes de transposition sont notamment l’absence de droit à la formation sans 
perte  de  salaire  pour  les  représentants  des  CEE,  l’exigence  d’informer  les 
partenaires  sociaux  européens  sur 
les 
dispositions sur la composition du CEE. 

l’ouverture  de  négociations  et 

Impacts en termes de sécurité juridique 

  La plupart des acteurs consultés ont considéré que la Directive de refonte avait 

renforcé la sécurité juridique. 

Cohérence  de  la  Directive  de  refonte  avec  d’autres  législations  européennes 
existantes 

  Dans  l’ensemble,  les  nouvelles  provisions  sont  conformes  aux  autres 
législations  de  l’UE  concernant  les  droits  à  l’information  et  à  la 
consultation des travailleurs. 

  Les principales incohérences avec les instruments d’information et consultation 
(I&C)  existants  sont  liées  au  fait  que  la  Directive  de  refonte  n’inclut  ni  de 
liste  d’informations  (minimum)  à  fournir  aux  travailleurs  dans  les 
procédures  d’I&C,  ni  de  calendrier  spécifique  pour  les  procédures 
d’I&C,  et  ne  requiert  pas  de  réponse  officielle  de  la  direction  à  une 
opinion provenant d’un CEE au cours d’un processus de consultation (ou 
pour arriver à un accord, tel qu’énoncé par la Directive 2002/14/CE). 

Réalisation des objectifs de la Directive 

Impact sur la création de CEE et sur la continuité du fonctionnement des CEE 
existants 

  La Directive 94/45/CE et la Directive 2009/38/CE ont donné un élan à 
la  mise  en  place  de  CEE,  bien  que,  dans  le  cas  de  la  Directive  de 
refonte, le nombre de CEE créés ait été moins important.  

4 Les principales dispositions essentielles ont été considérées comme liées à l’ouverture et à la conduite de négociations, 
au rôle des partenaires sociaux et des experts, au contenu des exigences subsidiaires, aux principes et concepts généraux 
de l’information, de la consultation et des questions transnationales, l’articulation entre les niveaux d'information et de 
consultation des travailleurs, au rôle et à la capacité des représentants des travailleurs et à la cause d’adaptation.  

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  Depuis  juin 2009,  58 CEE  ont  été  créés  conformément  aux  règles  de  la 
Directive  de  refonte.  Ce  sont  les  entreprises  basées  en  France  (19 %),  suivie 
par  la  Suède  (12 %)  et  les  États-Unis  (9 %)  qui  possèdent  le  plus  grand 
nombre  et la  plus  grande  part  de  CEE 'refonte'.  Depuis  juin 2009,  davantage 
de  CEE  ont  été  créés  dans  les  secteurs  de  la  « construction  et 
menuiserie », du « transport » et dans différents secteurs de services.  
  En  moyenne,  les  entreprises  avec  des  CEE  'refonte'  sont  plus  petites  en 
termes de nombre de travailleurs et de chiffre d’affaires moyen que les 
la 
entreprises  avec  des  CEE  créés  selon 
Directive 94/45/CE.  Cela  affecte  le  nombre  de  représentants  des  travailleurs 
dans  les  CEE  'refonte'  qui  est  inférieur  (16 délégués)  à  celui  des  CEE 
fonctionnant selon les Articles 13 et 6 (23 délégués). 

les  Articles 13  et  6  de 

  Les  CEE  de  la  nouvelle  directive  fonctionnent  avec  un  programme  de 
réunions  plénières  légèrement  plus  fréquentes  que  les  autres  types  de 
CEE. 

  Il y a eu une amélioration significative en vue d’assurer le « droit » à la 
formation  pour  les  représentants  des  CEE  sans  perte  de  salaire.  La 
référence  à  ce  « droit »  dans  les  accords  des  CEE  est  montée  à  93 %  (en 
partant  de  moins  d’un  tiers  des  accords  originaux  au  titre  de  l’Article 13 
comprenant une telle clause). Les deux tiers des représentants des travailleurs 
des CEE 'refonte' interrogés ont confirmé que les travailleurs avaient fait usage 
de leur droit à la formation. Parmi ceux qui avaient demandé une formation, la 
plus  grande  majorité  (80 %)  n’avait  remarqué  aucun  problème  particulier 
dans l’accès à celle-ci. 

  La Directive de refonte a lancé une certaine dynamique pour la renégociation 
d’accords  existants  de  CEE.  117 accords  de  CEE  selon  l’Article 13  et 
l’Article 6  ont  été  renégociés  depuis  juin 2009.  Cependant,  la  proportion  de 
CEE  fonctionnant  selon  les  réglementations  subsidiaires  a  augmenté 
(c. à-d.  les  conditions  minimum  pour  les  CEE)  depuis  l’introduction  de  la 
Directive  de  refonte  (mais  des  problèmes  d’enregistrement  des  données 
peuvent affecter la fiabilité de cette observation). 

Impact  sur  l’efficacité  des  CEE  à  garantir  les  droits  à  l’information  et  à  la 
consultation des travailleurs 

  L’impact  des  CEE  sur  la  restructuration  des  décisions  demeure  limité. 
Selon  la  plupart  des  représentants  des  employeurs  et  des  travailleurs,  la 
consultation  des  membres  des  CEE  n’a  pas  abouti  à  des  modifications 
significatives  dans  la  prise  de  décision  des  entreprises.  Cependant,  la 
consultation des membres des CEE est jugée comme positive par les différents 
acteurs  pour  développer  une  vision  d’entreprise  commune.  De  plus,  certains 
CEE  ont  pu  influencer  les  processus  de  restructuration  concernant  les  aspects 
de protection des travailleurs et les conditions offertes aux travailleurs affectés. 
important  sur 
l’amélioration  du 
les  CEE  que  sur 
l’amélioration  du  processus  de  consultation.  On  estime  que  l’information 
est livrée  en temps  relativement  opportun  (à  savoir,  avant une  décision)  dans 
la majorité des cas (70 %). 

  La  Directive  2009/38/CE  a  eu  un 

flux  d’informations  dans 

impact  plus 

  Une  majorité  des  CEE  créés  sous  l'égide  de  la  Directive  2009/38  traitent 
« presque  exclusivement »  de  questions  transnationales.  Dans  certains  cas,  il 
la  notion  de 
existe  des  difficultés  relatives  à 
transnationalité. Deux facteurs influencent la capacité des CEE à se focaliser 
sur  des  questions  transnationales : la  façon  dont  est interprétée le  concept  de 
transnationalité  et  la  volonté  des  représentants  de  l’employeur  à  garder  les 
discussions axées sur les questions transnationales.  

l’interprétation  de 

  Néanmoins,  certaines  difficultés  demeurent  quant  à  l’interprétation  exacte  du 
concept  de  ‘questions  transnationales’  dans  la  pratique.  En  effet,  les 

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représentants  des  travailleurs  manquent  souvent  d’informations  pour  juger  du 
caractère transnational ou national des sujets discutés. 

Impact  sur  le  rôle  des  CEE  dans  la  négociation,  la  mise  en  œuvre  et  la 
surveillance des accords transnationaux 

  La  Directive  2009/38/CE  a  eu  un  impact  limité  sur  la  conclusion  et  la 
qualité  des  accords  d’entreprise  transnationaux.  À  ce  jour,  seulement  3 
des 37  CEE ‘refonte’5 ont conclu de tels accords. Ceci peut être dû au fait que 
bon  nombre  de  ces  CEE  ne  sont  devenus  opérationnels  que  relativement 
récemment. 

Coûts et bénéfices générés par la Directive 

Réalisation  des  objectifs  de  protection  des  travailleurs  selon  les  ressources 
utilisées 

la  création  de  CEE  sous 

  Les coûts quantifiables de mise en place des CEE ont diminué par rapport 
aux  coûts  engendrés  par 
la 
Directive 94/45/CE (passant de 143 537 EUR à 119 207 EUR). La baisse de ces 
coûts découle principalement de la baisse du nombre de réunions et du nombre 
d  représentants  présents  (et  donc  des  coûts  de  réunions  qui  y  sont  associés) 
quand  bien  même  la  procédure  de  création  de  CEE  s’étalait  sur  un  laps  de 
temps  plus  long  dans  le  cas  des  CEE  ‘refonte’.  Ceci  est  dû  à  la  taille  des 
entreprises qui négocient de nouveaux accords plutôt qu’aux dispositions de la 
Directive de refonte. 

l’Article 6  de 

  Les coûts relatifs au fonctionnement des CEE ‘refonte’ sont identiques à 
ceux  des  CEE  créés  au  titre  de  la  Directive 95/45/CE,  et  les  principaux 
problèmes liés à l’efficacité de la mise en œuvre des dispositions concernant la 
consultation en particulier, restent inchangés. En outre, le degré d’influence des 
CEE  sur les  décisions  d’entreprises  concernant  des  questions  transnationales a 
peu évolué malgré la révision de la définition de ces concepts. 

  Les représentants des travailleurs et des employeurs des CEE ‘refonte’ 
ont un avis positif sur les bénéfices non quantifiables de leur CEE. Il faut 
noter que les bénéfices perçus liés à la création d’un CEE ont diminué dans les  
entreprises  ayant  un  CEE  ‘refonte’,  par  rapport  aux  CEE  créés  selon  la 
Directive 95/45/CE.  Le  déclin  le  plus  important  dans  la  valeur  perçue  des  CEE 
est  lié  à  leur  capacité  d’impacter  les  situations  des  travailleurs  lors  de 
restructurations et leur efficacité lors d’échanges d’informations. 

  Parallèlement, 

la  perception  des  coûts  non  quantifiables  semble 
également avoir diminué, en particulier aux yeux des employeurs. Il est 
important  de  relever  que  les  employeurs  semblent  moins  penser  que  les  CEE  
augmentent les attentes des travailleurs de de façon irréaliste. Les employeurs 
ont  également  jugé  les  CEE  moins  couteux  vis-à-vis  des  exigences  des 
négociations  collectives  transnationales  et  par  rapport  aux  rigidités inutiles  qui 
pourraient survenir dans les relations avec les travailleurs et la direction.  

Étendue de l’impact du contexte économique 

  Le  fonctionnement  des  CEE  ‘refonte’  n’a  pas  été  affecté  par  la  crise 
économique  et  financière  (bien  que  les  sujets  débattus  aient  pu  être 
influencés par ce contexte d’économies en déclin, par exemple, lors de 
la survenue de restructurations). Dans les cas où le contexte économique a 
pu affecter le travail du CEE, la direction a discuté ouvertement des problèmes 
financiers  de  l’entreprise  et  a  demandé  aux  membres  du  CEE  de  respecter 
certaines mesures de réduction des coûts pendant la période de crise. 

5 Des entretiens ont été menés auprès de 37 des 58 CEE mis en place selon les réglementations de la Directive de refonte. 

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Recommandations clés de cette étude 

1.  Il  est  possible  pour  la  Commission  européenne  de  nouer  le  dialogue  avec  les 
autorités  nationales  responsables  concernant  les  instances  où,  sur  la  base  de 
textes  juridiques  disponibles,  la  transposition  de  la  Directive  apparaît 
insuffisante  sur  les  principaux  aspects  essentiels  de  la  Directive.  Les  résultats 
de cette évaluation sur les lacunes de transposition doivent être clarifiés par un 
dialogue avec les autorités nationales, et des mesures appropriées doivent être 
prises. 

2.  Des  améliorations  des  concepts  juridiques  pourraient  être  envisagées  grâce  à 
de  plus  amples  clarifications  et  au  partage  d’exemples  concrets  et  de  bonnes 
pratiques. 

3.  En principe, la Directive ne donne pas d’indications quant à la loi qui doit être 
choisie pour régir les négociations ainsi que la juridiction nationale compétente 
pour  juger  de  l’accord  du  CEE  (les  dispositions  existantes  n’aident  qu’à 
déterminer  le  partenaire  adéquat  pour  les  représentants  des  travailleurs  et  à 
définir la direction centrale). Cela est laissé à la discrétion de chacune des deux 
parties,  et  une  mesure  plus  contraignante  pourrait  être  prise  pour  éviter  de 
possibles  abus.  Ceci  pourrait  inclure  une  nouvelle  spécification  dans  la 
législation  concernant  cette  question  (à  savoir,  la  disposition  selon  laquelle  la 
loi nationale du siège européen de l‘entreprise doit régir l’accord du CEE ; cela 
pourrait  inclure  des  instructions    sur  la  manière  dont  doit  être  déterminée  la 
localisation du siège européen de l’entreprise, en relation avec les structures de 
direction ou la part des travailleurs dans l’UE, etc.6).  

La  Directive    établissant  un  cadre  général  relatif  à  l’information  et  la 
consultation  des  travailleurs  (Directive 2002/14/CE)  va  au-delà  de la  Directive 
de  refonte  en  ce  qui  concerne  la  définition  de  « consultation ».  Tout  d’abord, 
elle  prévoit  une  consultation  « en  vue  d’aboutir  à  un  accord »,  tandis  que  la 
Directive  de  refonte  dispose  que  la  consultation  consiste  en  « l’établissement 
d’un dialogue et l’échange de vues entre les représentants des travailleurs et la 
direction  centrale  ou  tout  autre  niveau  de  direction  plus  approprié,  à  un 
moment, d’une façon et avec un contenu qui permettent aux représentants des 
travailleurs  d’exprimer,  sur  la  base  des  informations  fournies  et  dans  un  délai 
raisonnable,  un  avis  concernant  les  mesures  proposées  qui  font  l’objet  de  la 
consultation,  sans  préjudice  des  responsabilités  de  la  direction,  lequel  pourra 
être pris en compte au sein de l’entreprise de dimension communautaire ou du 
groupe  d’entreprises  de  dimension  communautaire ».  En  outre,  la  Directive 
établissant  un  cadre  général  relatif  à  l’I&C  exige  de  la  part  des  employeurs 
l’apport d’une réponse motivée. Cet élément pourrait également être incorporé 
à la Directive de refonte afin d’en renforcer l’impact. 

De plus, un certain nombre d’acteurs du côté des travailleurs ont mentionné le 
fait que des instructions plus précises pourraient être fournies sur le calendrier 
de  communication  d’informations  et  la  séparation  des  processus  d’information 
et  de  consultation.  En  effet,  la  Directive  mentionne  uniquement  le  fait  que  la 
consultation doit avoir lieu « à un moment, d’une façon et avec un contenu qui 
permettent  aux  représentants  des  travailleurs  d’exprimer,  sur  la  base  des 
informations  fournies  et  dans  un  délai  raisonnable  un  avis  concernant  les 
mesures  proposées  qui  font  l’objet  de  la  consultation».  Un  certain  nombre  de 
personnes du  côté  des travailleurs  soutiennent  que  cela peut  être  insuffisant  pour 
assurer  une  consultation  efficace.  La  justification du  côté des employeurs  consiste 
souvent  à  dire  que  l’information  doit  rester  confidentielle,  en  particulier  pour  les 
entreprises  cotées  en  bourse.  En  principe,  ceci  est  déjà  couvert    par  la  clause  de 

6 Il existe une jurisprudence antérieure sur cette question (voir section 4.6.1 - Cas de Manpower). 

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confidentialité  qui  exige  de  la  part  des  membres  du  CEE  de ne  pas  révéler  à  des 
tiers  les  informations  qui  leur  ont  été  expressément    communiquées    à    titre  
confidentiel. 

De nouvelles instructions pourraient être apportées sur la base de l’expérience 
des  CEE  qui  ont  établi  des  réglementations  internes  sur  les  processus  précis 
d’information  et  de  consultation  (étapes  et  calendrier).  Ceci  pourrait  être 
complété  en  apportant  le  témoignage  de  membres  compétents  du  CEE  sur 
l’impact bénéfique de la mise en place de tels processus clairs et précis.  

4.  Les  questions  relatives  à  l’application, aux  sanctions  et  aux  pénalités  relèvent 
des  mesures  de  mise  en  œuvre  au  niveau  national.  Par  conséquent,  les 
dispositions  varient  de  manière  significative  et  mènent  à  des  débats  selon 
lesquels  les  sanctions  ne  sont  parfois  pas  suffisamment  dissuasives.  De 
nouvelles mesures pourraient être prises pour assurer que les sanctions et les 
procédures d’application soient suffisamment dissuasives (telles que le partage 
d’informations sur les différentes pratiques nationales et leur impact). 

5.  La  création  de  CEE  supplémentaires  (puisque 

toutes 

travailleurs 

les  entreprises 
éligibles/remplissant les critères de la directive n’ont pas créé de CEE) pourrait 
être  davantage  soutenue  par les  actions  suivantes :  plus  d’efforts  pour  rendre 
publics  les  droits  juridiques  et  les  bénéfices  potentiels  des  CEE  aux 
(par ex.,  soutien 
représentants  des  entreprises  et  des 
d’organisations  de  partenaires  sociaux  européens  et  nationaux).  Pour 
entreprendre  un  tel  travail  de  diffusion  et  de  publicité,  il  faudrait  toucher  les 
entreprises  remplissant  les  critères  de  la  Directive  et  n’ayant  pas  encore  de 
CEE.  Actuellement,  la  connaissance  de  telles  entreprises  est  insuffisante,  bien 
que  des  initiatives  pour  en  dresser  une  liste  existent  (à  savoir,  la  base  de 
données  ETUI)  et  que  des  partenaires  sociaux  européens  (à  la  fois 
interprofessionnels  et  sectoriels)  en  aient  connaissance.  Pour  répondre  à  ces 
lacunes, de nouvelles mesures pourraient être prises, telles que la mise à jour 
de bases de données existantes sur les entreprises remplissant les critères de 
la  Directive  et  n’ayant  pas  de  CEE,  impliquant  l’ETUI  et/ou  les  partenaires 
sociaux  européens.  Il  y  a  quelque  temps,  le  nombre  d’entreprises  qui 
remplissent  les  critères  de  la  Directive  de  refonte  a  été  estimé  à  2 400,  mais 
c’est  une  « cible  mouvante »  à  cause  des  processus  de  restructuration 
significatifs. 

Cela pourrait également prendre la forme d’une création et d’une maintenance 
d’un  point  de  contact  au niveau  européen  pour  les  entreprises/travailleurs  qui 
aimeraient créer un CEE et souhaiteraient de l’aide, de nouvelles instructions et 
indications  sur la législation  existante  et les  pratiques  des  CEE.  De  tels  points 
de  contact  pourraient  également  être  rendus  publics  par  les  autorités 
nationales  dans  chacun  des  États  membres.  Le  point  de  contact  au  niveau 
européen  pourrait  apporter  un  soutien et  une  aide  continus  dans le  processus 
de  création  de  CEE  (un  tel  service  pourrait  être  confié  à  des  prestataires  ou 
agences  extérieurs  tels  que  Eurofound).  Une  telle  aide  est  actuellement 
souvent apportée par des organisations de partenaires sociaux européens, mais 
dans  certains  cas,  elles  manquent  d’informations  sur  toutes  les  entreprises 
remplissant  les  critères  de  la  Directive  et  n’ont  parfois  pas  la  capacité 
d’apporter leur aide pour chaque cas. Comme alternative à un point de contact, 
une  page  Web  indiquant  les  organisations  de  partenaires  sociaux  sectoriels 
européens compétentes pourrait également être envisagée (ou des organismes 
nationaux  compétents),  mais  celle-ci  devra  être  liée  à  une  ressource  pour  les 
organisations indiquées pour pouvoir gérer les demandes d’informations.  

L’échange  de  bonnes  pratiques  (y  compris  lors  de  conférences  RH)  entre  la 
direction  des  CEE  potentiels  et  existants  au  sujet  du  travail  et  des  bénéfices 
des CEE existants doit être renforcé. 

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Plus d’exemples de CEE fonctionnant dans des petites entreprises doivent être 
fournis,  et  l’apprentissage  par  les  pairs  et  l’échange  d’expériences  entre  ces 
acteurs  devra  être  encouragé  par  la  Commission  européenne  par  le  biais 
d’organisation d’événements et de séminaires d’apprentissage par les pairs.  

Les  lignes  budgétaires  de  la  DG  EMPL  sont  disponibles  pour  soutenir  des 
projets qui pourraient mener à la création de CEE.  

6.  Il  est  possible  d’examiner  attentivement  comment  améliorer  davantage  les 

processus d’information et de consultation dans les CEE. 

Cela  consisterait  à  partager  les  bonnes  pratiques  et  les  exemples  concrets  de 
CEE  sur  la  manière  dont  l’implication  de  ces  derniers  dans  les  décisions  de 
l’entreprise  a  apporté  une  contribution  positive  au  fonctionnement  et  à  la 
culture  d’entreprise  à  travers  l’UE  (cette  évaluation  a  déjà  identifié  un  certain 
nombre  d’exemples).  Ceci  pourrait  inclure  des  informations  sur  la  manière 
d’organiser  et  de  mettre  en  place  de  façon  optimale  l’information  et  la 
consultation dans des situations de restructuration spécifiques (à savoir, si tout 
le  CEE  ou  un  groupe  de  pilotage  renforcé,  impliquant  les  pays  affectés,  doit 
être  impliqué).  Certains  CEE  ont  élaboré  des  plans  de  processus  pour  la 
conception  d’étapes  d’information  et  de  consultation  distinctes  qui  pourraient 
représenter  un 
la 
Recommandation 2).  Afin  d’y  parvenir,  une  série  de  séminaires  et 
d’événements  d’apprentissage  par  les  pairs  pourraient  être  organisés  afin  de 
partager les pratiques des CEE. Lors de tels événements, les représentants des 
CEE pourraient être invités à partager et à discuter des exemples de leur travail 
d’amélioration des processus d’information et de consultation des CEE. 

les  autres  CEE 

(voir  également 

intérêt  pour 

Une  distinction  plus  claire  entre  les  phases  d’information  et  de  consultation 
peut  aider  les  CEE  à  influencer  la  prise  de  décision,  ainsi  que  la  volonté  des 
employeurs  de  partager  des  informations  pertinentes.  Des  indications  plus 
précises  (sous  la  forme  d’un  guide  très  pratique)  sur  les  délais    pour 
communiquer  l’information  et  la  séparation  des  processus  d’information  et  de 
consultation,  basées  sur  les  interprétations  juridiques  de  la  Directive  de 
refonte,  la  jurisprudence  et  les  pratiques  des  CEE  existants  pourraient  être 
examinées à travers ces événements/documents. 

7.  Malgré 

la  nouvelle  clarification  apportée  au  concept  des  questions 
transnationales  par  la  Directive  de  refonte,  il  reste,  dans  la  pratique,  des 
incertitudes et des tensions significatives concernant la manière dont cela doit 
être  interprété  et  concernant  le  fait  de  savoir  s’il  y  a  un  nombre  suffisant 
d’informations  disponibles  aux  travailleurs  pour  remettre  en  question  les 
affirmations  de  la  direction  selon  lesquelles  certaines  questions  ne  sont  pas 
transnationales.  Dans  ce  domaine,  un  échange  de  bonnes  pratiques  et  des 
conseils pratiques sur les décisions de justice pertinentes peut être utile. Ainsi, 
il  est  possible  pour  la  Commission  européenne  de  fournir  de  nouvelles 
instructions/clarifications  sur 
l’interprétation  pratique  du  concept  de 
transnationalité  basé  sur  la  jurisprudence  existante  et  les  exemples  de  CEE 
existants.  Ces  instructions  pourraient  inclure  un  recueil  non  contraignant 
d’exemples des décisions de justice au niveau national quant à l’interprétation 
des  questions  transnationales,  d’exemples  d’interprétations  des  CEE  existants 
des  questions  transnationales  (tirés  par  exemple  des  accords  des  CEE)  et 
d’évaluations des implications de tels exemples pour le travail des CEE. 

8.  Certains  CEE  jouent  un  rôle  en  relation  avec  la  conclusion  d’accords 
d’entreprise  transnationaux  (bien  que  les  CEE  n’aient  pas  de  tels  pouvoirs  de 
négociation explicites). Ce rôle des CEE pourrait être davantage clarifié par une 
référence explicite à un tel rôle dans le CEE en rapport avec la législation pour 
fournir clarté et certitude juridiques sur cette question. 

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9.  Le droit à la formation sans perte de salaire a été un succès de la Directive de 
refonte. Comme bon nombre de refontes de CEE n’en sont qu’aux débuts de la 
mise  en  place  de leur  fonctionnement, un  examen  plus  poussé  dans  quelques 
années  par  la  Commission  européenne  pourrait  être  nécessaire  pour  évaluer 
plus en  détail la mise  en  place  de  ce  droit  afin  de  déterminer  le  nombre  et le 
type de formations financées. La Commission européenne pourrait continuer à 
financer  des  projets  avec une  formation  conjointe  pour les  membres  des CEE, 
particulièrement  ceux  provenant  des  entreprises  plus  petites  (en  termes  de 
chiffre d’affaires ; voir également la Recommandation 2). 

10. Les  pratiques  identifiées  sur  la  manière  de  maximiser  les  bénéfices  et  de 
minimiser  les  coûts  doivent  être  partagées  plus  amplement  entre  les  CEE.  Il 
s’agit : 

  de  l’échange  de  bonnes  pratiques  sur  le  rôle,  les  droits  et  les  devoirs  des 
membres  des  CEE  tel  que  suggéré  dans  des  recommandations  précédentes 
pour maximiser la valeur potentielle des CEE ; 

  de l’exploration par les CEE existants de manières efficaces de réduire les coûts 
de  réunions  sans  affaiblir  les  bénéfices  des  réunions  en  personne  et  la 
possibilité  de  communiquer  avec  des  représentants  des  différents  pays  en 
apprenant de l’expérience des CEE existants (à savoir, sur le coût de différents 
lieux, la possibilité d’utiliser le téléphone ou des visioconférences pour certains 
types  de  réunions  tels  que  pour  l’organisation  de  réunions  du  comité  restreint 
plus fréquemment ; le coût d’une formation en langue par rapport au coût d’un 
service d’interprétariat/de traduction, etc.) 

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ZUSAMMENFASSUNG  

Hintergrund 

  Diese  Zusammenfassung  gibt  einen  Überblick  über  die  wichtigsten  Ergebnisse 
der  Studie  zur  Evaluierung  der  Umsetzung  der  Richtlinie  2009/38/EG  über  die 
Einsetzung  eines  Europäischen  Betriebsrats.  Ziel  der  Studie  war  es  zu 
bewerten, welche Folgen die neuen Regeln und Änderungen hatten, die 
durch  die  Richtlinie  2009/38/EG  über  die  Einsetzung  eines 
Europäischen  Betriebsrats  oder  die  Schaffung  eines  Verfahrens  zur 
Unterrichtung  und  Anhörung  der  Arbeitnehmer  in  gemeinschaftsweit 
operierenden  Unternehmen  und  Unternehmensgruppen  (Neufassung) 
eingeführt wurden. 

  Europäische  Betriebsräte  (EBR)  sind  Organe,  die  europäische  Arbeitnehmer  in 
gemeinschaftsweit  operierenden  Unternehmen  vertreten  und  gewährleisten 
sollen, dass die Arbeitnehmer von der Unternehmensleitung über geschäftliche 
Angelegenheiten  oder  Entscheidungen,  die  sich  möglicherweise  auf  die 
Beschäftigungs-  und  Arbeitsbedingungen  auswirken,  unterrichtet  und  angehört 
werden.  Die  Möglichkeit,  einen  Europäischen  Betriebsrat  einzusetzen,  wurde 
ursprünglich  durch  die  Richtlinie  94/45/EG  eingeführt.  Im  Laufe  der  Jahre 
entstanden  jedoch  rechtliche  und  umsetzungsbedingte  Probleme,  so  dass  im 
Jahr 2009 eine Neufassung der ursprünglichen Richtlinie verabschiedet 
wurde. 

ferner  eine  Analyse  der  Umsetzung 

  Die vorliegende Studie umfasst eine Analyse von Sekundärdaten, darunter eine 
Analyse der Kohärenz der Richtlinie mit anderen EU-Rechtsvorschriften 
über  die  Unterrichtungs-  und  Anhörungsrechte  der  Arbeitnehmer  und 
Informations-  und 
der  Abstimmung 
zwischen  verschiedenen 
Anhörungsinstrumenten, 
in 
innerstaatliches Recht und des nationalen Fallrechts sowie eine Sichtung der 
Literatur.  Darüber  hinaus  wurden  Primärdaten  unter  Interessenvertretern,  wie 
europäischen  und  nationalen  Sozialpartnern  und  Vertretern  nationaler 
Ministerien,  erhoben.  Zusätzlich  wurden  Informationen  anhand  von  Umfragen 
und  Interviews  gesammelt,  die  zum  einen  unter  Arbeitnehmer-  und/oder 
in  Unternehmen  durchgeführt  wurden,  die  einen 
Arbeitgebervertretern 
Europäischen  Betriebsrat  auf  Grundlage  der  Neufassung  der  Richtlinie 
eingeführt  hatten  (im  Folgenden  als  „Neufassungs-EBR“  bezeichnet),  zum 
anderen  unter  Arbeitnehmer-  und/oder  Arbeitgebervertretern in  Unternehmen, 
die  ihren  Europäischen  Betriebsrat  auf  Grundlage  der  Richtlinie  94/45/EG 
eingerichtet  hatten,  die  Vereinbarung  aber  kürzlich  gemäß  den  Regeln  der 
Neufassung  der  Richtlinie  neu  verhandelt  oder  überarbeitet  hatten 
(„Neuverhandelter  EBR“).  Abschließend  wurden  auch  Informationen  über 
Unternehmen  zusammengetragen,  die  ihre  Vereinbarung  gemäß  Artikel  6  der 
Richtlinie  94/45/EG  geschlossen  und  (bislang)  noch  nicht  überarbeitet  hatten 
(im Folgenden als „Artikel-6-EBR“ bezeichnet). 

(63 %), 

doch  waren  Arbeitnehmervertreter  mit 

  Auf  die  Bitte,  ein  Interview  durchführen  zu  dürfen,  wurde  zwar  relativ  positiv 
größerer 
reagiert 
Wahrscheinlichkeit  gesprächsbereit  als  Arbeitgebervertreter,  was  zu  einem 
Ungleichgewicht  bei  den  Antworten  führte  und  nur  eine  begrenzte  Erhebung 
von  Daten  über  die  bei  der  Einrichtung  und  Tätigkeit  eines  EBR  entstehenden 
Kosten  zuließ.  Zudem  war  die  Analyse  der  Umsetzung  der  Richtlinie  in 
nationales  Recht  insofern  problematisch,  als  die  Umsetzungsberichte  für  die 
Kommission  nur 
Informationen  über  die  Änderung  der  bestehenden 
Rechtsvorschriften  enthalten.  Aus  diesem  Grund  war  es  schwierig,  die  bereits 
vor der Neufassung getroffenen Regelungen zu bewerten und zu beurteilen, ob 
sie  den  Anforderungen  der  Neufassung  der  Richtlinie  genügen.  Diesbezügliche 
Ungewissheiten  wurden  im  Rahmen  weiterer  Gespräche  mit  Vertretern 
zuständiger  nationaler  Ministerien  beseitigt.  An  dieser  Stelle  wird  darauf 

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verwiesen,  dass  die 
Auftragnehmers und nicht die der Europäischen Kommission wiedergeben. 

resultierende  Beurteilung  die  Ansichten  des 

Umsetzung der Neufassung der Richtlinie in den EU-Mitgliedstaaten und den 
EWR-Ländern 

Umfang,  in  dem  alle  Bestimmungen  korrekt  in  innerstaatliches  Recht 
umgesetzt wurden  

  In  der  Mehrzahl  der  Fälle  wurden  die  Bestimmungen  der  Richtlinie 

korrekt in nationales Recht umgesetzt.  

Unterschiede im Hinblick auf den Anwendungsbereich der Gesetze in EU- und 
EWR-Ländern,  die  die  Richtlinie  in  innerstaatliches  Recht  umgesetzt  haben, 
waren wie folgt: 

  15  Mitgliedstaaten  führten  Bestimmungen  ein,  die  die  in  der  Richtlinie 
niedergelegten  Bestimmungen  übertreffen.  Dies  gilt  unter  anderem  für  einen 
umfassenderen  Anspruch  auf  Mittel  zur  Ausübung  der  Pflichten  eines  EBR-
Vertreters  sowie  eine  umfassendere  Definition  der  Begriffe  „Unterrichtung“, 
„Anhörung“ und „länderübergreifende Angelegenheiten“.  

  Dagegen  wurde  in  11  Mitgliedstaaten  mindestens  eine  nationale  Regelung 
ermittelt,  die  der  Bewertung  zufolge  nicht  allen  Anforderungen  der  Richtlinie 
entspricht.  In  nur  4  Mitgliedstaaten  war  den  Untersuchungen  zufolge 
mindestens  eine  der  inhaltlich  wichtigsten  Bestimmungen  der  Richtlinie7  nicht 
komplett in  nationales  Recht umgesetzt  worden.  In  8  Mitgliedstaaten  war  eine 
relativ nebensächliche Bestimmung (oder Teil einer solchen Bestimmung) nicht 
umgesetzt  worden.  Schwerwiegendere  Mängel  bei  der  Umsetzung  bestanden 
unter anderem darin, dass kein Anspruch auf Schulung der EBR-Vertreter ohne 
Lohn-  oder  Gehaltseinbußen,  keine  Vorschrift  zur  Unterrichtung  der 
europäischen  Sozialpartner  über  den  Beginn  von  Verhandlungen  und  keine 
Vorgaben bezüglich der Zusammensetzung des EBR vorgesehen waren.  

Folgen für die Rechtssicherheit 

  Die  meisten  der  befragten  Interessenvertreter  waren  der  Ansicht,  dass  die 

Neufassung der Richtlinie die Rechtssicherheit erhöht hat.  

Übereinstimmung  der  Neufassung  der  Richtlinie  mit  sonstiger  europäischer 
Gesetzgebung  

  Im  Allgemeinen  stimmen  die  neuen  Regeln  mit anderen EU-Richtlinien und 
Instrumenten  über  die  Unterrichtungs-  und  Anhörungsrechte  der 
Arbeitnehmer überein.  

  Wichtige  mögliche  Unstimmigkeiten  mit  den  bestehenden  Unterrichtungs-  und 
Anhörungsinstrumenten,  die  ermittelt  wurden,  beziehen  sich  darauf,  dass 
die  Neufassung  der  EBR-Richtlinie  weder  eine  Liste  der  (Mindest-
)Informationen,  die  den  Arbeitnehmern  bei  den  Unterrichtungs-  und 
Anhörungsverfahren  zur  Verfügung  gestellt  werden  müssen,  noch 
für  die  Unterrichtungs-  und 
irgendwelche  zeitliche  Vorgaben 
Anhörungsverfahren  enthält  und  dass  die  von  einem  EBR  bei  einem 
Anhörungsverfahren vorgelegte Stellungnahme keine offizielle Antwort 
seitens  der  Unternehmensleitung  (bzw.  Einigung  wie  in  der  Richtlinie 
2002/14/EG) erfordert.  

7 Als inhaltlich wichtig wurden Bestimmungen betrachtet, die sich auf folgende Aspekte beziehen: den Beginn und die 
Durchführung von Verhandlungen, die Rolle der Sozialpartner und Sachverständigen, den Inhalt der subsidiären 
Vorschriften, die allgemeinen Prinzipien und Konzepte der Unterrichtung und Anhörung und der länderübergreifenden 
Angelegenheiten, die Abstimmung der Ebenen der Unterrichtung und Anhörung der Arbeitnehmer, die Aufgabe und 
Funktion der Arbeitnehmervertreter und den Anpassungsgrund.  

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Erfüllung der Ziele der Richtlinie 

Wirkung auf die Einrichtung neuer und die Tätigkeit bestehender EBR 

  Sowohl die Richtlinie 94/45/EG als auch die Neufassung der Richtlinie 
gaben Anstoß zur Einrichtung eines EBR, obwohl die Zahl der anlässlich 
der Neufassung eingerichteten EBR wesentlich geringer war.  

  Seit  Juni  2009  wurden  58  neue  Europäische  Betriebsräte  gemäß  den 
Bestimmungen der neugefassten Richtlinie eingerichtet. Die größte Anzahl bzw. 
der  größte  Anteil  dieser „Neufassungs-EBR“  entfiel  dabei  auf  Unternehmen mit 
Hauptsitz  in  Frankreich  (19 %),  gefolgt  von  Schweden  (12  %)  und  den  USA 
(9 %). Zudem wurden seit Juni 2009 mehr EBR in den Bereichen „Bau- und 
Holzindustrie“, 
verschiedenen 
Dienstleistungssektoren gegründet.  

„Transport“ 

und 

in 

  Unternehmen  mit  einem  „Neufassungs-EBR“  haben  im  Durchschnitt 
weniger  Mitarbeiter  und  einen  geringeren  Umsatz  als  Unternehmen  mit 
einem  EBR,  der  gemäß  Artikel  13  und  6  der  Richtlinie  94/45/EG  eingerichtet 
wurde,  ein  Umstand,  der  sich  auch  auf  die  Zahl  der  Arbeitnehmervertreter  in 
dem  EBR  auswirkt:  In  „Neufassungs-EBR“  ist  ihre  Zahl  mit  16  Vertretern 
geringer als in EBR, die laut den Bestimmungen von Artikel 13 und 6 eingesetzt 
wurden und in Durchschnitt 23 Arbeitnehmervertreter umfassen.  

  „Neufassungs-EBR“  halten  etwas  häufiger  Vollversammlungen  als  andere 

Arten von EBR ab.  

  Die  Gewährleistung  des  Rechts  der  EBR-Vertreter  auf  Schulung  ohne 
Lohn-  oder  Gehaltsverlust  hat  sich  deutlich  verbessert.  Der  Anteil  der  EBR-
Vereinbarungen,  die  dieses  Recht  erwähnen,  ist  auf  93 %  gestiegen  (von  den 
ursprünglichen  Artikel-13-Vereinbarungen  beinhaltete  weniger  als  ein  Drittel 
eine  solche  Klausel).  Zwei  Drittel  der  befragten  Arbeitnehmervertreter  eines 
„Neufassungs-EBR“  gaben  an, ihr Recht  auf  Schulung  auch  wahrgenommen  zu 
haben.  Von  denen,  die  eine  Schulung  beantragt  hatten,  meldete  die 
überwiegende  Mehrheit  (80 %),  dass  der  Zugang  zur  Schulung  ohne 
größere Probleme erfolgt sei.  

  Die  Neufassung  der  Richtlinie  gab  auch  einen  gewissen  Anstoß  für  die 
Neuverhandlung  bestehender  EBR-Vereinbarungen.  So  wurden  seit  Juni 
2009  insgesamt  117  gemäß  Artikel  13  und  Artikel  6  getroffene  EBR-
Vereinbarungen  neu  verhandelt.  Allerdings  ist  seit  Neufassung  der  Richtlinie 
offenbar  auch  der  Anteil  an  EBR  gestiegen,  die  die  subsidiären 
für  Europäische  Betriebsräte) 
Vorschriften 
anwenden  –  eine  Feststellung,  die  aufgrund  von  Datenerhebungsproblemen 
jedoch möglicherweise nicht ganz zuverlässig ist.  

(d. h.  Mindestbedingungen 

Wirkung  auf  die  Effektivität  der  EBR  in  Bezug  auf  die  Gewährleistung  der 
Unterrichtungs- und Anhörungsrechte der Arbeitnehmer 

Der 

begrenzt. 

  Der  Einfluss  der  EBR  auf  Umstrukturierungsentscheidungen 

ist 
weiterhin 
und 
Arbeitnehmervertreter  zufolge  hatte  die  Anhörung  von  EBR-Mitgliedern  keinen 
spürbaren  Einfluss  auf  unternehmerische  Entscheidungen.  Dennoch  wird  die 
Anhörung der EBR-Mitglieder von Interessenträgern als nützlich zur Entwicklung 
einer  gemeinsamen  Unternehmensvision  betrachtet,  und  einige  EBR  konnten 
Umstrukturierungsverfahren  beeinflussen  (im  Hinblick  auf  Schutz  und 
Hilfsmaßnahmen für betroffene Arbeitnehmer).  

Arbeitgeber- 

Mehrzahl 

der 

  Die  Neufassung  der  Richtlinie  hatte  einen  größeren  Einfluss  auf  die 
Verbesserung des Informationsflusses in EBR als auf die Verbesserung 
der Anhörung, und in der Mehrzahl der Fälle (70 %) werden die Informationen 
(z. B.  vor  einer 
rechtzeitig  zur  Verfügung  gestellt 
offenbar 
Entscheidung).  

relativ 

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  Die  Mehrheit  der  „Neufassungs-EBR“  konzentriert  sich  „fast  ausschließlich“  auf 
landerübergreifende  Angelegenheiten.  In  einigen  Fällen  ist  die  Interpretation 
des  Begriffs  „länderübergreifend“  jedoch  mit  Problemen  behaftet.  In 
welchem  Maße  sich  die  EBR  länderübergreifenden  Angelegenheiten  widmen 
können,  hängt  von  der  Plausibilität  der  Interpretation  des  Konzepts 
sowie  von  der  Entschlossenheit  der  EBR-Führung  ab,  länderübergreifende 
Angelegenheiten zu einem Schwerpunktthema zu machen. In der Praxis scheint 
die 
länderübergreifenden 
da 
Angelegenheiten 
Arbeitnehmervertreter oftmals nicht über ausreichende Informationen verfügen, 
um  das,  was  die  Unternehmensleitung  als 
landesspezifische  oder 
länderübergreifende Angelegenheit betrachtet, in Frage zu stellen.  

des  Konzepts  der 
etwas 

Interpretation 
weiterhin 

problematisch 

genaue 

sein, 

zu 

Wirkung auf die Rolle des EBR bei Verhandlung, Umsetzung und Beobachtung 
länderübergreifender Vereinbarungen  

  Die „Neufassungs-EBR“ hatten einen begrenzten Einfluss auf den Abschluss 
und  die  Qualität  länderübergreifender  Unternehmensvereinbarungen, 
und  derzeit  haben  nur 3  von  37  „Neufassungs-EBR“8  eine  solche  Vereinbarung 
geschlossen.  Ein  Grund  hierfür  könnte  sein,  dass  viele  dieser  EBR  erst  vor 
relativ kurzer Zeit eingerichtet wurden.  

Kosten und Nutzen der Richtlinie 

Erfüllung  der  Ziele  zum  Schutz  der  Arbeitnehmer 
verwendeten Mittel 

in  Anbetracht  der 

  Im Vergleich zu den Artikel-6-Vereinbarungen, die auf Grundlage der Richtlinie 
94/45/EG  geschlossen  wurden,  sind  die  quantifizierbaren  Kosten  für  die 
Einrichtung  eines  EBR  gesunken  (von  143  537 EUR  auf  119 207 EUR). 
Wichtigster  Grund  hierfür  sind  geringere  Sitzungskosten,  da  von  EBR,  die  auf 
Grundlage der neugefassten Richtlinie eingerichtet wurden, eine geringere Zahl 
von Sitzungen mit einer geringeren Zahl von Vertretern (wenn auch über einen 
längeren  Zeitraum  hinweg)  abgehalten  wurden,  was  jedoch  weniger  durch  die 
Vorschriften der neugefassten Richtlinie, sondern vielmehr durch die Größe der 
Unternehmen bedingt war, die eine neue Vereinbarung geschlossen hatten. 
  Die  laufenden  Kosten  eines  „Neufassungs-EBR“  sind  ähnlich  hoch  wie 
für einen EBR, der auf Grundlage der Richtlinie 94/45/EG eingerichtet wurde. 
Die  wichtigsten  Probleme,  insbesondere  bezüglich  einer  effektiven  Umsetzung 
des Anhörungsverfahrens, bleiben bestehen und auch der Einfluss der EBR auf 
Entscheidungen 
trotz  der 
umfassenderen Definition dieser Konzepte unverändert.  

länderübergreifenden  Angelegenheiten 

ist 

in 

  Arbeitnehmer-  und  Arbeitgebervertreter  der  „Neufassungs-EBR“ 
äußerten sich positiv zu den nicht quantifizierbaren Vorteilen ihres EBR. 
Beachtenswert ist,  dass  die  Vorteile in Unternehmen  mit  einem  „Neufassungs-
EBR“  als  geringfügiger  eingestuft  wurden  als  in  Unternehmen  mit  einem  EBR, 
der auf Grundlage der Richtlinie 94/45/EG eingerichtet wurde. Am deutlichsten 
ausgeprägt war dieser Rückgang in Bezug auf die Fähigkeit des EBR, die Folgen 
einer  Umstrukturierung  für  Arbeitnehmer  zu  beeinflussen,  sowie  in  Bezug  auf 
ihre Effektivität beim Austausch von Informationen.  

  Parallel dazu sind offenbar – insbesondere in den Augen der Arbeitgeber – 
die  nicht  quantifizierbaren  Kosten  gesunken.  Auffallend  war  zudem  der 
Eindruck  der  Arbeitgeber,  dass  der  EBR in  weniger hohem  Maße  unrealistische 
Erwartungen  der  Arbeitnehmer  schürte  und  geringere  Kosten  im  Hinblick  auf 

8 Insgesamt wurden Gespräche mit 37 von 58 Vertretern von EBR geführt, die auf Grundlage der Regeln der neugefassten 
Richtlinie eingerichtet wurden. 

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länderübergreifenden  Tarifverhandlungen  und  die 
die  Forderung  nach 
Einführung  unnötig  starrer  Regeln  für  die  Beziehungen  zwischen  Arbeitgebern 
und Unternehmensleitung verursachte.  

Wirkung des wirtschaftlichen Umfelds 

  Die  Tätigkeiten  der  „Neufassungs-EBR“  wurde  durch  die  Wirtschafts-  und 
Finanzkrise  nicht  beeinträchtigt  (obwohl  der  Konjunkturrückgang  und 
die  daraus  resultierenden  Umstrukturierungen  möglicherweise  die 
Diskussionsthemen  bestimmten).  In  Fällen,  in  denen  der  wirtschaftliche 
Kontext  die  Tätigkeit  der  EBR  beeinflusste,  sprach  die  Unternehmensleitung 
offen  über  finanzielle  Probleme  und  bat  die  EBR-Mitglieder,  während  der 
schwierigen Zeiten einige Sparmaßnahmen zu akzeptieren.  

Die wichtigsten Empfehlungen, die sich aus der Studie ergeben 

1.  In  Fällen, in  denen  wichtige inhaltliche Aspekte  der  Richtlinie  den  verfügbaren 
Rechtstexten  zufolge  offenbar  unzureichend  umgesetzt  wurden,  sollte  die 
Europäische  Kommission  Kontakt  mit  den  zuständigen  Behörden  aufnehmen, 
durch  diese  Evaluierung  aufgezeigte  Umsetzungsmängel  im  Rahmen  eines 
Dialogs mit den nationalen Behörden eingehender erörtern und entsprechende 
Maßnahmen ergreifen.  

2.  Die  rechtlichen  Konzepte  ließen  sich  durch  weitere  Erläuterungen  und  den 

Austausch erfolgreicher Praxisbeispiele verbessern. 

3.  Im  Grunde  enthält  die  Richtlinie  keinerlei  Anhaltspunkte  dazu,  welches  Gesetz 
als Grundlage für die Verhandlungen oder für die nationale Rechtsprechung, die 
für die EBR-Vereinbarung gilt, dienen soll (die bestehenden Vorschriften helfen 
lediglich bei der Wahl des zuständigen Partners für Arbeitnehmervertreter und 
bei Definition der zentralen Unternehmensleitung). Diese Entscheidung ist den 
beiden  Seiten  überlassen  und  ein  möglicher  Missbrauch  ließe  sich  durch 
präskriptivere  Schritte,  wie  weitere  rechtliche  Vorgaben  zu  diesem  Punkt, 
vermeiden.  Beispielsweise  könnte  vorgegeben  werden,  dass  die  EBR-
Vereinbarung  dem  nationalen  Recht  des  Landes  unterliegt,  in  dem  sich  der 
europäische Hauptsitz des Unternehmens befindet, und nach welchen Kriterien 
der  Ort  des  Hauptsitzes  bestimmt  wird  (beispielsweise  auf  Grundlage  der 
Managementstrukturen oder des Arbeitnehmeranteils in der EU usw.9). 

Die Richtlinie zur Festlegung eines allgemeinen Rahmens für die Unterrichtung 
und  Anhörung  der  Arbeitnehmer  (Richtlinie  2002/14/EG)  geht  weiter  als  die 
Neufassung  der  EBR-Richtlinie,  was  die  Definition  des  Begriffs  „Anhörung“ 
betrifft.  Erstens  sieht  sie  eine  Anhörung  vor  „mit  dem  Ziel,  eine  Vereinbarung 
[…]  zu  erreichen“,  während  die  Neufassung  der  EBR-Richtlinie  den  Ausdruck 
„die  Einrichtung  eines  Dialogs  und  den 
„Anhörung“  definiert  als 
Meinungsaustausch  zwischen  den  Arbeitnehmervertretern  und  der  zentralen 
Leitung  oder  einer  anderen,  angemesseneren  Leitungsebene  zu  einem 
Zeitpunkt,  in  einer  Weise  und  in  einer  inhaltlichen  Ausgestaltung,  die  es  den 
Arbeitnehmervertretern  auf  der  Grundlage  der  erhaltenen  Informationen 
ermöglichen,  unbeschadet  der  Zuständigkeiten  der  Unternehmensleitung 
innerhalb  einer  angemessenen  Frist  zu  den  vorgeschlagenen  Maßnahmen,  die 
Gegenstand  der  Anhörung  sind,  eine  Stellungnahme  abzugeben,  die  innerhalb 
des 
der 
gemeinschaftsweit  operierenden  Unternehmensgruppe  berücksichtigt  werden 
kann“.  Zweitens  fordert  die  Richtlinie  zur  Festlegung  eines  allgemeinen 
Unterrichtungs-  und  Anhörungsrahmens  (2002/14/EG)  von  den  Arbeitgebern, 
eine  mit  Gründen  versehene  Antwort  auf  eine  etwaige  Stellungnahme 

gemeinschaftsweit 

Unternehmens 

operierenden 

oder 

9 Hierzu sind einige nationale Rechtsprechungsbeispiele vorhanden (siehe Abschnitt 4.6.1 – „Manpower“). 

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vorzulegen.  Diese  beiden  Elemente  könnten  in  die  Neufassung  der  Richtlinie 
aufgenommen werden, um deren Wirkung zu verstärken.  

Einige  Interessenvertreter  auf  Arbeitnehmerseite  merkten  überdies  an,  dass 
fristgemäßen  Bereitstellung  von 
detailliertere  Leitlinien  bezüglich  der 
Informationen  und  der  Trennung  der  Unterrichtungs-  und  Anhörungsverfahren 
bereitgestellt  werden  könnten.  Die  Richtlinie  besagt  nämlich  nur,  dass  die 
Anhörung  „zu  einem  Zeitpunkt,  in  einer  Weise  und  in  einer  inhaltlichen 
Ausgestaltung“  zu  erfolgen  hat,  „die  es  den  Arbeitnehmervertretern  auf  der 
Grundlage  der  erhaltenen 
[...]  zu  den 
vorgeschlagenen  Maßnahmen,  die  Gegenstand  der  Anhörung  sind,  eine 
Stellungnahme  abzugeben“,  was  zahlreichen  Stimmen  auf  Arbeitnehmerseite 
zufolge für die Gewährleistung einer effektiven Anhörung möglicherweise nicht 
ausreicht.  Auf  Arbeitgeberseite  wird  hierzu  häufig  erklärt,  dass  die  Information 
insbesondere  im  Fall  von  börsennotierten  Unternehmen  vertraulich  bleiben  muss. 
Dies  sollte  im  Prinzip  jedoch  dadurch  sichergestellt  sein,  dass  EBR-Mitglieder  zur 
Wahrung eben dieser Vertraulichkeit verpflichtet werden.  

Informationen  ermöglichen, 

Weitere  Leitlinien  könnten  auf  Grundlage  der  Erfahrungen  von  EBR  erstellt 
werden,  die  präzise 
ihre  Unterrichtungs-  und 
Anhörungsverfahren  (einzelne  Schritte  und  Zeitplan)  aufgestellt  haben.  Durch 
Erklärungen  von  EBR-Mitgliedern  zu  den  Vorteilen,  die  durch  Einführung 
detaillierter  Verfahren  entstehen,  könnten  diese  Leitlinien  zusätzlich  ergänzt 
werden.  

interne  Regeln 

für 

4.  Durchsetzung,  Sanktionen  und  Bußgelder  werden  auf  nationaler  Ebene 
festgelegt.  Folglich  weichen  die  Bestimmungen  stark  voneinander  ab  und 
einigen Stimmen zufolge sind die Sanktionen nicht immer abschreckend genug. 
Durch  zusätzliche  Schritte  (wie  beispielsweise  einen  Austausch  über  nationale 
Praktiken  und  deren  Wirkung)  könnte  sichergestellt  werden,  dass  Sanktionen 
und Durchsetzungsverfahren die gewünschte Wirkung nicht verfehlen.  

5.  Die Einrichtung weiterer EBR (nicht alle in Betracht kommenden Unternehmen 
haben  bereits  einen  EBR  gegründet)  könnte  durch  folgende  Maßnahmen 
unterstützt  werden:  Mehr  Anstrengungen  zur  besseren  Unterrichtung  der 
Unternehmens-  und  Arbeitnehmervertreter  über  die  Rechtsansprüche  und 
potenziellen  Vorteile  eines  EBR  (z. B.  unterstützt  durch  europäische  und 
nationale  Sozialpartnerorganisationen).  Dies  würde  die  Ansprache  der  in 
Betracht  kommenden  Unternehmen  erfordern,  die  bislang  noch  keinen  EBR 
eingesetzt  haben.  Derzeit  sind  nur  unzureichende  Informationen  über  solche 
Unternehmen 
zur  Erstellung 
entsprechender  Verzeichnisse  existieren  (z. B.  EGI-Datenbank)  und  die 
europäischen Sozialpartner – ob nur für eine oder mehrere Branchen zuständig 
–  die  Namen  solcher  Unternehmen  kennen.  Durch  entsprechende  Maßnahmen 
ließe  sich  diese 
(beispielsweise  könnten 
Datenbanken, die die Namen in Betracht kommender Unternehmen ohne einen 
EBR  enthalten,  mit  Unterstützung  des  EGI  und/oder  der  europäischen 
Sozialpartner auf den neuesten Stand gebracht werden). Vor einiger Zeit wurde 
die  Zahl  der  potenziell  in  Betracht  kommenden  Unternehmen  auf  2 400 
geschätzt.  Angesichts  umfassender  Umstrukturierungsverfahren  ist  diese  Zahl 
jedoch ein „bewegliches Ziel“.  

Informationslücke  schließen 

vorhanden, 

Initiativen 

obwohl 

einige 

Eine weitere Möglichkeit ist die Einrichtung einer europäischen Kontaktstelle für 
Unternehmen/Arbeitnehmer,  die  einen  EBR  einsetzen  möchten  und 
Unterstützung,  Beratung  und  Informationen  über  bestehende  Gesetze  und 
EBR-Praktiken  brauchen.  Eine  solche  Kontaktstelle  könnte  eine  kontinuierliche 
Beratung und Unterstützung bei Gründung eines EBR bereitstellen (ein Service, 
der  externen  Anbietern  übertragen  oder  Agenturen  wie  Eurofound  anvertraut 
werden  könnte),  und  ihre  Existenz  könnte  von  den  nationalen  Behörden  der 

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jedoch  nicht 

immer  über  ausreichende  Kenntnis  der 

Mitgliedstaaten  publik  gemacht  werden.  Derzeit  wird  diese  Form  der 
Unterstützung  häufig  von  europäischen  Sozialpartnerorganisationen  geleistet, 
die 
in  Betracht 
jedes  einzelnen 
kommenden  Unternehmen  und  die  zur  Unterstützung 
zu  einer 
Unternehmens  erforderliche  Kapazität  verfügen.  Alternativ 
Kontaktstelle  wäre  eine  Webseite  mit 
Informationen  zu  sektoralen 
europäischen  Sozialpartnerorganisationen  (oder  einschlägigen  nationalen 
Behörden)  denkbar,  die  zur  Bearbeitung  der  Anfragen  jedoch  entsprechende 
Ressourcen benötigen würden. 

Verstärkt  werden  sollte  auch  der  Austausch  von  Praxisbeispielen  über  die 
Tätigkeit  und  Vorteile  eines  EBR  zwischen  der  Leitung  potenzieller  und 
bestehender EBR (unter anderem auf HR-Konferenzen).  

Darüber hinaus wird die Organisation von Seminaren und Veranstaltungen zur 
Verbreitung  weiterer  Beispiele  für  die  Arbeit  der  EBR  in  kleinen  Unternehmen 
und  die  Förderung  des  gegenseitigen  Lernens  durch  die  Europäische 
Kommission empfohlen.  

Die GD EMPL verfügt über Haushaltslinien zur Unterstützung von Projekten, die 
zur Gründung von EBR führen könnten. 

6.  Es  ist  möglich,  die  Unterrichtungs-  und  Anhörungsverfahren  in  EBR  weiter  zu 

verbessern, beispielsweise durch: 

Austausch  erfolgreicher  Verfahren  sowie  echter  Praxisbeispiele  dafür,  wie  die 
Einbeziehung  eines  EBR  in  Unternehmensentscheidungen  die  Kultur  und 
Tätigkeit von Unternehmen in der EU positiv beeinflusst hat (im Rahmen dieser 
Evaluierung wurden bereits einige Beispiele hierfür ermittelt). Dies könnte auch 
Ratschläge zur Organisation und optimalen Umsetzung von Unterrichtungs- und 
Anhörungsverfahren  in  bestimmten  Umstrukturierungssituationen  umfassen 
(z. B.  ob  der  gesamte  EBR  oder  nur  eine  Lenkungsgruppe  einbezogen  werden 
sollte,  die  die  betroffenen  Länder  vertritt).  Einige  EBR  haben  Verfahrenspläne 
mit den einzelnen Unterrichtungs- und Anhörungsschritten erstellt, die auch für 
andere  EBR  interessant  sein  könnten  (siehe  auch  Empfehlung  2).  Zur 
Verbreitung  und  zum  Austausch  dieser  Praktiken  könnten  Seminare  und 
Veranstaltungen  für  gegenseitiges  Lernen  organisiert  werden,  auf  denen 
ausgewählte  EBR-Vertreter  über 
ihre  Tätigkeit  zur  Verbesserung  der 
Unterrichtungs- und Anhörungsverfahren berichten.  

Eine  eindeutigere  Unterscheidung  zwischen  der  Unterrichtungs-  und 
Anhörungsphase kann es den EBR erleichtern, Einfluss auf Entscheidungen des 
Arbeitgebers  sowie  auf  dessen  Bereitschaft  zu  nehmen,  einschlägige 
Informationen mit ihnen zu teilen. Die genannten Veranstaltungen/Dokumente 
könnten  daher  auch  zur  Besprechung  detaillierterer  Leitlinien  (in  Form  von 
stark  praxisorientierten  Ratgebern)  dienen,  die  auf  der  Rechtsauslegung  der 
neugefassten  Richtlinie,  den  dazu  ermittelten  Gerichtsverfahren  und 
bestehenden  EBR-Praktiken  basieren  und  Informationen  über  den  richtigen 
Zeitpunkt  der  Unterrichtung  und  über  die  Trennung  der  Unterrichtungs-  und 
Anhörungsverfahren enthalten.  

7.  Obwohl  die  Neufassung  der  Richtlinie  das  Konzept  der  länderübergreifenden 
Angelegenheiten  genauer  definiert,  herrschen 
in  der  Praxis  weiterhin 
beträchtliche Anspannung und Ungewissheit darüber, wie dies zu interpretieren 
ist  und  ob  die  Arbeitnehmer  über  ausreichende  Informationen  verfügen,  um 
Behauptungen  der  Unternehmensleitung,  dass  gewisse  Angelegenheiten  nicht 
länderübergreifend  seien,  in  Frage  zu  stellen.  Zu  diesem  Punkt  könnte  ein 
Austausch  über  relevante  Gerichtsurteile  nützlich  sein.  Die  Europäische 
Kommission könnte also weitere Leitlinien für die praktische Interpretation des 
Konzepts der länderübergreifenden Struktur bereitstellen und dabei auf erfolgte 

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Rechtsprechung  und  Beispiele  bestehender  EBR  verweisen.  Diese  Leitlinien 
könnten  ein  unverbindliches  Kompendium  von  Beispielen  enthalten,  wie 
länderübergreifende  Angelegenheiten  von  nationalen  Gerichtsurteilen  und  von 
bestehenden  EBR  (z. B.  basierend  auf  EBR-Abkommen)  interpretiert  werden, 
und die Folgen dieser Beispiele für die Tätigkeit der EBR aufzeigen.  

8.  Einige  EBR  sind  am  Abschluss  länderübergreifender  Unternehmensabkommen 
beteiligt  (obwohl  sie  nicht  über  diesbezügliche  explizite  Verhandlungsrechte 
verfügen). Diese Funktion der EBR könnte durch eine explizite Bezugnahme in 
EBR-bezogener  Gesetzgebung  näher  erklärt  werden,  um  die  Rechtslage  zu 
erläutern und in dieser Frage entsprechende Gewissheit zu geben.  

9.  Ein Erfolg  der neugefassten  Richtlinie  war  das  Recht  auf  Schulung  ohne Lohn- 
oder  Gehaltsverlust.  Da  sich  zahlreiche  „Neufassungs-EBR“  noch  in  einem 
frühen Stadium ihrer Tätigkeit befinden, könnte in einigen Jahren eine erneute 
Beurteilung  seitens  der  Europäischen  Kommission  erforderlich  sein,  um  die 
Umsetzung  dieses  Rechts  genauer  zu  bewerten und  zu  ermitteln,  wie  viel und 
welche Art von Schulung finanziert wurde. Die Europäische Kommission könnte 
weiterhin  Projekte  mit  gemeinsamer  Schulung  von  EBR-Mitgliedern 
insbesondere  aus  kleineren  Unternehmen  (d. h.  mit  geringem  Umsatz) 
finanzieren (siehe auch Empfehlung 2).  

10. Es sollte ein intensiverer Austausch zwischen EBR über erprobte Verfahren zur 
Maximierung der Vorteile und Minimierung der Kosten erfolgen. Zum Beispiel: 

  Austausch  bewährter  Praxisbeispiele  bezüglich  der  Aufgaben,  Rechte  und 
Pflichten  der  EBR-Mitglieder  wie  bereits  in  früheren  Empfehlungen  zur 
Maximierung des potenziellen Nutzens der EBR vorgeschlagen; 

  Untersuchung  effektiver  Möglichkeiten  zur  Reduzierung  der  Sitzungskosten, 
ohne die Vorteile eines persönlichen Zusammentreffens und die Möglichkeit der 
Kommunikation  mit  Vertretern  anderer  Länder  zu  verlieren,  wobei  aus  den 
Erfahrungen bestehender EBR gelernt werden kann (beispielsweise in Bezug auf 
die  Kosten  verschiedener  Sitzungsorte,  die  Möglichkeit  von  Telefon-  oder 
Videokonferenzen  für  Sitzungen  wie  die  regelmäßige  Zusammenkunft  von 
Lenkungsgruppen; 
und 
Dolmetscher-/Übersetzungsdiensten usw.). 

Sprachunterricht 

Kostenvergleich 

zwischen 

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List of acronyms 

ABR               Administrative Burden Reduction 

EEA 

EBSCO 

EC 

ECJ 

EIRO 

ELLN 

ETUI 

EWC 

European Economic Area 

Provider  of  research  databases,  e-journals,  magazine  subscriptions, 
ebooks 

European Commission  

European Court of Justice 

European Industrial Relations Observatory 

European Labour Law Network 

European Trade Union Institute 

European Works Council 

HORECA 

Hotel/Restaurant/Café 

HR 

HQ 

I&C 

SE 

SP 

Human resources  

Headquarters   

Information and consultation of workers 

European Company (Societas Europaea) 

Social partners 

SWOT   

Strengths, Weaknesses, Opportunities and Threats 

Glossary of key concepts 

Article 13 

Voluntary  EWC  agreements:  Agreement  concluded  before  Directive 
 94/45/EC  came 
later 
 implementation  deadlines  for  the  UK  and  newer  MS)  and  not  revised 
since to align to the requirements of the DIR 94/45/EC or the recast DIR 
2009/38/EC. 

force  (22.09.1996  -  or  respective 

into 

Article 6 

Agreement concluded or revised since 22.09.1996 and not revised since 
to the requirements of the recast DIR 2009/38/EC. 

Article 14.1b  Agreement concluded or revised between 05.06.2009 and 05.06.2011  

pursuant to Article 6 of DIR 94/45/EC (Article 14.1b). 

Pre-recast 

Agreements following the rules of the Directive (94/45/EC). 

Recast EWCs  Agreements following the rules of the Recast Directive (2009/38/EC) 

Renegotiated EWCs  Article 13 or Article 6 EWC agreements which have been recently 

renegotiated or revised in line with the rules of the Recast Directive. 

Nominal scale Categorically discrete data. 

NVivo 

 Software  package  that  supports  qualitative  and  mixed  methods 
research.  It  facilitates  the  collection,  organisation  and  analysis  of 
content  from  interviews,  surveys,  policy  documents  as  well  as 
quantitative information. NVIVO enables systematic storing, exploration 
and comparison of qualitative data. 

Disclaimer  

The information contained in this publication does not necessarily reflect the position 
or opinion of the European Commission. 

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Table of Contents 

List of acronyms ................................................................................................ 1 
Glossary of key concepts .................................................................................... 1 
Introduction ................................................................................................ 1 
1 

1.1 
1.2 
1.3 

Key features of the Directive 2009/38/EC ................................................. 1 
Evaluation of the Recast Directive ........................................................... 3 
Purpose of this report .......................................................................... 13 

2  Analysis of the coherence of the EWC Recast Directive with the other EU legislation 
addressing workers’ information and consultation (I&C) rights and restructuring policy 
instruments .................................................................................................... 14 

2.1 
2.2 
2.3 
2.4 

Introduction ........................................................................................ 14 
Key findings of the legal coherence assessment with I&C legal instruments  15 
Coherence with the key EU policy developments relating to restructuring ... 19 
Summary of key findings ...................................................................... 23 

3 

Legal analysis of the national transposition of the Recast Directive ................... 25 

Introduction ........................................................................................ 25 
Part 1: Setting up the EWCs ................................................................. 28 
Part 2: Definition of the concepts of information, consultation and 

3.1 
3.2 
3.3 
transnational issues ...................................................................................... 31 
Part 3: Operation of the EWCs .............................................................. 33 
3.4 
Part 4: The role and capacity of employee representatives ....................... 34 
3.5 
Analysis of the national case law ........................................................... 34 
3.6 
Summary of key findings ...................................................................... 39 
3.7 

4  The effects of the Recast Directive on the number and characteristics of EWCs .. 51 

Introduction ........................................................................................ 51 
Background: trends in the creation of worker information and consultation 

4.1 
4.2 
bodies, including the EWCs ............................................................................ 51 
Scale: the number of new EWCs since the Recast Directive....................... 58 
4.3 
4.4 
The characteristics of newly established Recast EWCs .............................. 60 
4.5  Quantitative and qualitative effects on renegotiated EWC agreements ........ 67 
4.6 
derogations from the Directive ....................................................................... 74 
4.7 
characteristics of the EWCs ............................................................................ 76 

The impact of the Recast Directive on the extent of exceptions and 

Key findings: the impact of the Directive on the number and the 

5  Other effects of the Recast Directive............................................................. 78 

The impact on the conclusion of transnational company agreements .......... 78 
5.1 
5.2 
Implementation of the new right for employee representatives to benefit from 
training without loss of salary ......................................................................... 81 
5.3 
new Recast Directive rules ............................................................................. 84 
Summary of key findings: other impacts of the Directive .......................... 85 
5.4 

The effect of the prevailing economic context on the implementation of the 

6  Effects of the Recast Directive on information and consultation in EWCs ........... 86 

Issues arising in relation to the implementation of information and 

Improvements under the Recast Directive with respect to information and 

6.1 
consultation in the Directive 94/45/EC ............................................................. 86 
6.2 
consultation and the definition of transnationality ............................................. 88 
6.3 
Impacts of the Recast EWC Directive on definitions of information and 
consultation in EWC agreements ..................................................................... 89 

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Practical impacts of the Recast EWC Directive on information and the 

6.4 
consultation process in the EWCs operating under the new rules ......................... 92 
6.5 
Practical impacts of the Directive on the information and consultation of EWCs 
in the restructuring situations ........................................................................ 100 
6.6 
Summary of findings on the impact of the Recast Directive on the information 
and consultation in the EWCs ........................................................................ 105 

7  Analysis of costs and benefits associated with the implementation of the Recast 
Directive ........................................................................................................ 106 

The analysis of cost and benefits associated with the changes in the rules in 

7.1 
the EWC set-up phase .................................................................................. 106 
7.2 
Analysis of cost and benefits associated with the changes in the definitions of 
concepts of information, consultation and transnational matters ........................ 118 
7.3 
The analysis of cost and benefits associated with the changes in the rules 
concerning the EWC operation ....................................................................... 125 
7.4 
concerning the role and capacity of employee representatives ........................... 132 
Stakeholder views of non-quantifiable costs and benefits of EWCs ............ 135 
7.5 
The effects of the Recast Directive on the administrative burden .............. 141 
7.6 
Summary of key findings on costs and benefits ...................................... 142 
7.7 

The analysis of costs and benefits associated with the changes in the rules 

8  What are the significant best practices in the implementation of the new rules and 
case studies on the absence of the application of certain provisions of the new rules?

145 

Introduction ....................................................................................... 145 
An overview of the main practical achievements of Recast EWCs to date ... 145 
A review of stakeholder views on how to strengthen the effectiveness of the 

8.1 
8.2 
8.3 
work of EWCs .............................................................................................. 148 

9  Conclusions and recommendations .............................................................. 151 

Conclusions on the effectiveness of the Directive .................................... 151 
Conclusions on the efficiency of the Directive (How did the new rules affect 

9.1 
9.2 
the costs and benefits for workers and for companies? Have the new rules simplified 
the administrative burden? If yes, how and why?) ........................................... 157 

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List of tables 

Table 1.  Overview of methods used .................................................................. 5 

Table 2.  EWC consultations ............................................................................ 11 

Table 3.  Overview of key EU developments in the area of restructuring and their 
links to the EWC Directive ................................................................................. 21 

Table 4.  Additional checks of the national legislation ......................................... 27 

Table 5.  Overview of the national case law (2010-2015) .................................... 35 

Table 6.  Summary assessment of the national legal transposition ....................... 40 

Table 7.  Summary assessment of the key areas of exceeding and not meeting the 
Directive  42 

Table 8.  HQ country breakdown of recast and all EWCs (%) ............................... 58 

Table 9.  Sectoral breakdown of Recast EWC and all worker and information bodies 
(%) 

59 

Table 10. 

Sectoral breakdown of Recast EWCs (n=37) ..................................... 60 

Table 11. 

Number of employees in companies with Recast EWCs ....................... 61 

Table 12. 
information and consultation bodies ................................................................... 61 

Number of employees in the companies with Recast EWCs vs. all worker 

Table 13. 

Turnover (€) ................................................................................. 62 

Table 14. 

Internationalisation: worker presence in EU/EEA countries ................. 62 

Table 15. 

Composition of Recast EWCs: employee delegates............................. 63 

Table 16. 

The organisation and running of annual plenary meetings .................. 64 

Table 17. 

The organisation and running of annual plenary meetings .................. 65 

Table 18. 

Operation of steering committees .................................................... 65 

Table 19. 

Composition of steering committees ................................................ 65 

Table 20. 

Frequency of steering committee meetings ....................................... 66 

Table 21. 

Operation of employee-only preparatory meetings ............................ 66 

Table 22.  Working committees ...................................................................... 66 

Table 23. 
EWC has given an important or the main contribution: a survey of Article 6 EWCs ... 80 

Company has concluded a Transnational Company Agreements to which 

Table 24. 

The views on the national social partners (n=52) .............................. 80 

Table 25. 

Occurrence of a right to training in EWC agreements ......................... 82 

Table 26. 

Number of days of training per year ................................................ 82 

Table 27. 
EWCs) (EUR)................................................................................................... 84 

Estimated annual budget spent on training of EWC members (Recast 

Table 28. 
restructuring 87 

Timing of information and consultation: was the EWC consulted on 

Table 29. 
Change in the timing, level and scope of the information and consultation 
of EWCs on transnational matters – views of national social partners ..................... 91 

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Table 30.  More certainty than before to the type of information to be disseminated 
transnationally via EWC as opposed to local and national information and consultation 
forums, survey of national social partners ........................................................... 96 

Table 31. 
EWCs 

Differences in the negotiation process between the Recast and pre-Recast 
107 

Table 32. 
under Art. 6 of Directive 94/45/EC (in 2014 prices) ............................................ 108 

Comparison of costs of setting up an EWC under Recast Directive and 

Table 33. 
body during the negotiation period? .................................................................. 111 

Did your SNB have preparatory or post-meetings as an employee only 

Table 34. 
sectoral employer federations) during the negotiation process ............................. 113 

SNB supported by the competent EU social partners (e.g. trade unions, 

Table 35. 
the type of information requested? ................................................................... 113 

Did you request support from any external expert or a trade union over 

Table 36. 
negotiations 114 

Time taken to inform and involve the European social partners in the 

Table 37. 

Internationalisation: worker presence in EU/EEA countries ................ 116 

Table 38. 

Composition of Recast EWCs: employee delegates............................ 117 

Table 39. 
practice 

Table 40. 

Functioning of EWC in relation to information and consultation – in 
121 

Satisfaction with the practice of information and consultation within EWC
122 

Table 41. 

Views of the pre-Recast EWCs on the information and consultation ..... 123 

Table 42. 
workers for information dissemination (views of the EU social partners) ................ 123 

The awareness of Recast’s impact on the frequency of and availability of 

National social partner views on the impact of the new rules introduced 

Table 43. 
by the Recast Directive on the extent to which EWCs are used as information and 
consultation forums ........................................................................................ 124 

Table 44. 
transnationality  by different stakeholders ......................................................... 125 

Perception of impact of the definitions of information, consultation and 

Table 45. 

Approx. cost of EWC operation ....................................................... 126 

Table 46. 

Approx. cost of running EWC (N=20) per year ................................. 126 

Table 47. 

Differences in the EWC structure affecting costs of EWC operation...... 127 

Table 48. 

Operation of steering committees ................................................... 129 

Table 49. 

Composition of steering committees ............................................... 129 

Table 50. 

Frequency of steering committee meetings ...................................... 130 

Table 51. 

Perception of impact of the Select Committee by different stakeholders
130 

Table 52. 

Number of days of training per year ............................................... 133 

Table 53. 

Reported costs in pre-Recast EWCs surveyed as part of this evaluation
134 

Table 54. 
EWCs) (EUR).................................................................................................. 134 

Estimated annual budget spent on training of EWC members (Recast 

Table 55. 
amongst the European social partners ............................................................... 134 

The awareness of Recast’s impact on the employee access to training 

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Table 56. 
representatives in the Recast EWCs .................................................................. 145 

EWC’s practical achievements identified by employer and employee  

Table 57. 
EWCs 

A summary of suggestions provided to maximise the effectiveness of the 
148 

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List of figures 

Figure 1. 

Intervention logic, the original EWC Directive (94/45/EC) ..................... 3 

Figure 2. 

Intervention logic, Recast Directive (2009/38/EC) ............................... 3 

Figure 3. 
National social partners’ perceived impact of the Recast Directive on the 
creation of EWCs (in terms of willingness and support of management to set up EWCs 
/ employees willingness and capacity to request the set-up of an EWC) .................. 30 

Figure 4. 
National social partners’ perception of the impact of the new rules on the 
average costs and length of EWC set-up negotiation processes ............................. 31 

Figure 5. 
practical operation of EWCs (n=52) ................................................................... 34 

National social partners’ perceived impact of the Recast Directive on the 

Figure 6. 
legal clarity  46 

National social partners’ perceived impact of the Recast Directive on the 

Figure 7. 
from the Recast Directive ................................................................................. 47 

National social partners’ perceived problems with ‘new rules’ following 

Figure 8. 
ELLN members) ............................................................................................... 48 

Improved legal certainty following the Recast Directive (views of the 

Figure 9.  Worker information and consultation bodies created and effective ....... 52 

Figure 10.  HQ countries of companies where new worker information and 
consultation agreements concluded.................................................................... 54 

Figure 11.  Sectors of companies with new worker information and consultation 
agreements concluded ..................................................................................... 56 

Figure 12.  The number of worker information and consultation agreements 
revised/renegotiated since the Recast Directive ................................................... 57 

Figure 13.  The benefits of training in Recast EWCs ........................................... 83 

Figure 14. 

Implications of the financial crisis on the Recast EWCs ....................... 84 

Figure 15. 
newly-established EWC agreements (views of the EWC) ....................................... 89 

Implementation of the Recast Directive’s definition of Information in 37 

Figure 16. 
newly-established EWC agreements ................................................................... 90 

Implementation of the Recast Directive’s definition of Consultation in 37 

Figure 17.  Employee representatives’ perception of the extent to which information 
is received by EWCs before decisions are made by management ........................... 92 

Figure 18. 

Focus on transnational matters in Recast EWCs................................. 95 

Figure 19.  Employee representatives’ views on employers’ judgement on who should 
be consulted first ............................................................................................. 98 

Figure 20.  Employee representatives views on the level at which employee 
representatives were informed and consulted first ............................................... 99 

Figure 21.  Employee representatives views on the extent to which management 
distinguishes between information and consultation ............................................. 99 

Figure 22.  Extent to which Recast EWCs are consulted prior to the decision making

100 

Figure 23.  Views of employee representatives who have taken part in EWC 
consultations regarding their impact ................................................................. 103 

Figure 24. 

Potential costs and benefits associated with introduction of Art. 4.4 .... 109 

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Figure 25. 

Potential costs and benefits associated with introduction of Art. 5.2.b . 110 

Figure 26. 
Potential costs and benefits associated with introduction of employee only 
SNB meetings ................................................................................................ 111 

Figure 27. 
Potential costs and benefits associated with introduction of the 
involvement of European social partners............................................................ 112 

Figure 28. 
of trade unions and external experts ................................................................. 113 

Potential costs and benefits associated with introduction of involvement 

Figure 29. 
Potential costs and benefits associated with introduction of the 
requirement for a balanced EWC composition ..................................................... 115 

Figure 30. 
44 

Potential costs and benefits associated with introduction of Annex 1.a Rec 
118 

Potential costs and benefits associated with the definition of information, 

Figure 31. 
consultation and transnational matters and their practical functioning in the Recast 
Directive 

120 

Figure 32. 
related to select committees ............................................................................ 129 

Potential costs and benefits associated with introduction of requirements 

Figure 33. 
clause 

Figure 34. 
training 

Potential costs and benefits associated with introduction of the adaptation 
131 

Potential costs and benefits associated with introduction of the right to 
133 

Figure 35.  Views of employers on benefits associated with operation of EWC (%) 136 

 .................................................................................................................... 136 

Figure 36.  Views of employees on benefits associated with operation of EWC (%)137 

Figure 37.  Views of employers on costs associated with operation of EWC (%) .... 138 

Figure 38.  Views of employees on costs associated with operation of EWC (%) ... 139 

Figure 39.  Changes in proportion of employers and employees who agree/strongly 
agree on EWC benefits from 2008 to 2015 survey .............................................. 140 

Figure 40.  Changes in proportion of employers and employees who agree/strongly 
agree on EWC costs from 2008 to 2015 survey .................................................. 141 

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1 

Introduction 

ICF  was  appointed  by DG Employment,  Social  Affairs  and  Inclusion in  February  2015 
to  carry  out  an  evaluation  of  the  implementation  of  Directive  2009/38/EC,  under 
specific Service Order No. VC/2015/0077 of the Framework Contract for the provision 
of  Evaluation  and  Evaluation  Related  Services  to  DG  EMPL  (No.  VC/2013/0083_01). 
This is  the  Final  Report  which  outlines the key  findings  and  presents  conclusions  and 
recommendations of this study. 

1.1  Key features of the Directive 2009/38/EC  

European Works Councils (EWCs) are bodies representing European employees within 
transnational companies. They ensure that employees are informed and consulted by 
management  on  any  business  issues  or  decision  that  could  have  an  impact  on 
employment and working conditions.   

Box 1: European Works Council (EWC) 

EWCs  can  be  established  in  Community-scale  undertakings  employing  more  than 
1,000 employees within the EU Member States and at least 150 employees in each of 
at  least  two  Member  States  and  in  community-scale  groups  of  undertakings 
employing at least 1,000 employees within the Member States and at least one group 
undertaking with at least 150 employees in one Member State and at least one other 
group undertaking with at least 150 employees in another Member State.10 

A  request  by  100  employees  from  two  countries  or  an  initiative  by  the  employer 
triggers  the  process  of  establishing  a  body  or  procedure  to  inform  and  consult 
workers. The composition, competences, and functioning of a EWC are defined by an 
agreement  reached  by  a  'special  negotiating  body'  (SNB)  representing  employees 
and the central management. Subsidiary requirements apply in the absence of such 
an  agreement.  EWCs  are  to  be  informed  and  consulted  on  transnational  issues 
affecting workers. 

The possibility to establish European Works Councils was  first introduced by Directive 
94/45/EC. Over the years, a number of legal and implementation challenges arose and 
the original directive was revised in 2009. 

The  Recast  Directive  2009/38/EC,  aimed  to  address  some  of  these  challenges  by 
pursuing the following objectives: 

  Ensuring 

the  effectiveness  of  employees’ 

transnational 

information  and 

consultation rights,  

  Favouring the creation of new EWCs,  

  Enabling the continuous functioning of existing arrangements,  

  Remedying  the  lack  of  legal  certainty  resulting  from  some  provisions  and  the 

absence of others, 

  Ensuring better links with other Community legislative instruments on information 

and consultation of employees.11  

10 Article 1(1)&(2) Directive 94/45/EC.  
11 Recital 7, 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). 

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Evaluation study on the implementation of Directive 2009/38/EC on the establishment 
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These  goals  were  to  be  achieved  through  a  Recast  of  the  Directive,  including  the 
following key amendments:  

  First,  a  definition  of  the  notion  of  ‘information’  has  been  introduced  in  the 
Recast  Directive.  Directive  94/45/EC  only  referred  to  this  term  but  without 
providing  a  clear  definition.  Directive  2009/38/EC  aimed  to  bring  clarity  and 
reinforce the obligation for the management to inform employees by providing 
guidance on the steps to follow. It states for instance that information must 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’.  

  Another change relating to definitions is the attempt to provide a clarification of 
what was meant by ‘consultation’ in the Directive. The Recast Directive contains 
a  more  detailed  definition  which  now  attempts  to  clarify  the  consultation 
process  by  adding 
this  must  enable  employees’ 
representatives to express an opinion on the basis of the information provided. 
This  attempts  to  reinforce  the  information  and  consultation  rights  of  EWCs 
which  appear  as  two  different  procedures  but  which  are  nonetheless  closely 
interrelated.  

instance 

that 

for 

  One  of  the  main  changes  was  the  insertion  of  a  definition  of  the  concept  of 
‘transnational  matters’.  This  clarified  the  scope  of  matters  EWCs  should  deal 
with (as opposed to national matters that should be dealt at national level). The 
criterion  used  is  that  it  is  the  potential  effects  of  the  subject  that  should 
determine whether this is an EU-level or national-level subject.    

  The  new  rules  also  attempted  to  reinforce  both  the  role  of  the  social  partners 
and employees’ representatives. Indeed, social partners must now be informed 
of the composition of the Special Negotiating Body. Directive 2009/38/EC gives 
a mandate to employee representatives in the EWC to collectively represent the 
employees. It also introduces the obligation for the management to provide the 
EWC  with  means  necessary  to  perform  this  function  and  the  right  to  training 
without loss of wages. 

  New  provisions  also  include  the  granting  of  new  facilities  to  the  Special 
Negotiating Body such as the possibility to have pre- and post- meetings, or the 
presence of experts in the negotiation meetings.  

The  chart  overleaf  presents  intervention  logics  both  for  the  original  Directive 
(94/45/EC)  and  the  Recast  Directive  (2009/38/EC).  This  shows  that  in  fulfilling  the 
objective  of  the  Community  and  the  Member  States  to  enhance  dialogue  between 
management  and  labour  (Article  136  TFEU),  the  Recast  aimed  to  enhance 
transnational information  and  consultation  processes  and  legal  certainty  by  providing 
(clearer) definitions of a number of key concepts such as  ‘information’, ‘consultation’ 
and 
functioning  of  existing 
arrangements  and  without  significantly  increasing  burdens  on  businesses.  This  is 
intended to ensure that information and consultation takes place in a timely fashion in 
order to be effective.  

‘transnationality’,  while  enabling  the  continuous 

The  preamble  to  the  Recast  Directive  also  acknowledges  the  role  played  by 
globalisation  and  associated  restructuring  in  driving  mergers  and  the  greater 
transnationality  of  businesses,  thus  also  requiring  stronger  and  clearer links  between 
national and transnational information and consultation structures. 

Further specification is also provided on set-up procedures (including information to be 
provided  by  the  employer)  and  the  make-up  and  rights  and  duties  of  employee 
representatives,  not  only  in  order  to  support  the  establishing  of  further  EWCs  but  to 
ensure the balanced representation of employees. The Recast also aims to ensure the 
rights  required  to  enable  employee  representatives  to  have  the  skills  and  access  to 
expert  support  required  to  effectively  engage  information  and  consultation  processes 
at transnational level.  

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Ultimately, EWCs are intended to achieve improvements in corporate governance. 

Figure 1.  Intervention logic, the original EWC Directive (94/45/EC)  

Source: ICF, 2015 

Figure 2.  Intervention logic, Recast Directive (2009/38/EC) 

Source: ICF, 2015 

1.2  Evaluation of the Recast Directive 

This evaluation supports the work of the Commission in the preparation of the report 
due  by  5  June  2016  to  the  European  Parliament,  the  Council  and  the  European 
Economic  and  Social  Committee  on  the  implementation  of  this  Directive,  making 

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3 

RATIONALEFORINTERVENTION: EWCs were created as one of the responses to the increasingly transnational nature of EU/EEA businesses and associated restructuring. This called for worker information and consultation structures at European level as existing MS legislation and practices did not cater for the increasing need for cross-border employee representation, with negative effects on information and consultation of employees affected by transnational decisions. The Social Charter of 1989 and the accompanying Social Action Programme called for European action to supplement the national channels of information and consultation in companies or groups of companies operating in several Member States.  Public authorities:•EC staff time for drafting the legislation, monitoring implementation and consulting with stakeholders•MS staff time to draft the legislationEmployers:•Time and resources to set up and operate EWCsEmployees:•Time to set up, participate and carry out duties linked EWC membership Social partners:•Time for contribute to consultations and EWC set up negotiations•Time to contribute to consultations on legislationEU level:•New Directive drafted•Consultations carried out•Monitoring transposition and implementationMS level:•Transposition of the Directive, reporting on tranpositionEmployers:•EWCs set up and operatedEmployees:•EWCs set up, meetings attended and associated duties undertakenSocial partners:•Provision of expertise to support EWC set-up negotiations•Contributions to consultations•National laws transposing the Directive•Number of EWCs set up and operating:Number of EWC meetings held and employee representatives engaged in information and consultation on transnational mattersNumber of transnational changes/events which EWC employee reps have contributed to through timely information and consultationNumber of companies where the information of consultation of employees on transnational matters has improved•EWCs influencing company practices and decision-making, especially in restructuring situations•Improved employee awareness (and acceptance) of management decisions•Improved relations, including trust, between management and employees•Better exchange of information and more opportunities for consultation of worker reps on transnational matters•More structured, permanent and meaningful practice of worker information and consultation at EU level•More systematic worker involvement in transnational company decision making•Improved corporate governance•Increased solidarityINPUTSACTIVITIESOUTPUTSOUTCOMESIMPACTSCONTEXT: Globalisation, growth of transnational restructuring, rapid changes in corporate structures and business environments, liberalisation of world trade.•More structured, permanent and meaningful practice of worker information and consultation at transnational level•More systematic worker involvement in transnational company decision making•Improved corporate governance•Increased solidarityAuthorities:•EC staff time to facilitate consultations, introduce and agree amendments•MS staff time to discuss, agree and introduce amendmentsEmployers:•Time and resources to set up and operate EWCsEmployees:•Time to set up, participate and carry out duties linked EWC membership Social partners:•Time for contribute to consultations, EWC set up negotiations and EWC operationsEU level:•Consultations carried out•RecastDirective drafted•Monitoring transposition and implementationMS level:•Transposition of the RecastDirective; providing information on transpositionEmployers:•EWCs set up and operatedEmployees:•EWC meetings attended and associated duties undertakenSocial partners:•Provision of expertise to support EWC set-up negotiations•Contributions to consultations•Expert inputs to EWC operations•National laws transposing the RecastDirective •Number of newEWCs set up and operating:Number of EWC meetings held in newEWCsNumber of employee reps engaged in information and consultation on transnational matters in newEWCsNumber of transnational changes/events which EWC employee reps have contributed to through timely information and consultation in newEWCsNumber of companies amongst the newEWCs where the information of consultation of employees on transnational matters has improved•Improved legal certainty and clarity over:Consultation and information rights within the EWCs Set up and operations of the EWCs Coordination of workers participation at European and national levels •Improved employee awareness (and acceptance) of management decisions•Improved relations, including trust, between management and employees•Better exchange of information and more opportunities for consultation of worker reps on transnational mattersRATIONALEFORINTERVENTION: A process for revision was included under Article 15 of the 1994 Directive. Furthermore, the recast Directive was agreed in the context of the Community institutions seeking to simplify legislation as part of the ABR Programme (Action Programme for Reducing Administrative Burdens). Political agreement was reached in 2008 to recast the Directive. The aims of the Recast are to ensure the effectiveness of employees’ transnational information and consultation rights by reinforcing and more clearly defining them, to increase the number of EWC and to enable the continuous functioning of the existing ones by clarifying legal uncertainties related to the set up and operation of EWCs. Clarifications concerning coordination of workers’ participation at European and national levels were also introduced. INPUTSACTIVITIESOUTPUTSOUTCOMESIMPACTSCONTEXT: EWCs established but with shortcomings and legal uncertainties especially in relation to the timing, level and content of information and consultation practices in restructuring situations and links with more recent Directives on employee representation. 
 
 
 
Evaluation study on the implementation of Directive 2009/38/EC on the establishment 
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appropriate  proposals  where  necessary.12  The  evaluation  was  conducted  between 
February 2015 and February 2016. 

1.2.1  Evaluation objectives 

The purpose of the study was to evaluate the impact(s) of the implementation of the 
2009/38/EC  Directive,  more  specifically  those  deriving  from  the  changes  made  to 
Directive 94/45/EC ('new rules'). 

A series of key themes were explored in this evaluation, including: 

Transposition of the Directive in the EEA countries 

  Extent to which all the provisions have been correctly transposed into national 

legislation 

  Differences, if any, in worker protection levels between EEA countries 
  Impacts in terms of legal certainty 

Achievement of the Directive’s objectives 

  Impact on the creation of EWCs and on the continuous functioning of existing 

ones 

  Impact on the EWCs’ effectiveness in guaranteeing employees’ information and 

consultation rights 

  Impact on the role of EWCs in the negotiation, implementation and monitoring 

of transnational agreements 

Costs and benefits generated by the Directive 

  Achievement of worker information and consultation objectives in light of 

resources utilised 

  Comparison of the administrative burdens for EWCs before and after June 2011 
  Extent of the impact of the 2011-2014 economic context 

The  specific  evaluation  questions  are  outlined  in  Box  2.  A  full  outline  of  the  data 
analysis approach used in the study is contained in Annex 1. 

Box 2: Evaluation Questions 

The analysis of the legal aspects of the 'new rules':  

(1)  To  what  extent  is  the  transposition  of  the  new  rules  correct  at  national  level? 
What  are  the  main issues/aspects  of  the  Directive  that  remain  or  have  emerged  as 
recurrent  problematic  or  contentious  issues  at  national  and  European  levels  or  in 
their articulation? 
(2)  Where  the  provisions  of  Article  153§3  were  used  by  the  Member  States  for 
implementing  the  Directive,  to  what  extent  had  this  implementation  process  an 
impact  in  terms  of  effectiveness  and  efficiency  of  the  Directive,  in  comparison  with 
the classical way of transposition? 
(3)  To  what  extent  do  national  laws  reflect  similar  or  provide  for  more  protective 
conditions  for  workers  than  the  Directive's  improved  information  and  consultation 
rights for employees?  
(4)  What  are  the  effects  on  legal  certainty  and  clarity  resulting  from  some  of  its 
provisions,  like  the  adaptation  clause  or  the  definition  of  transnationality,  or  the 
absence  of  certain  provisions,  like  on  a  clear  articulation  between  national  and 
European information and consultation procedures?  

12 Article 15 of the Directive 2009/38/EC. 

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(5) In particular how does it impact on the enforcement of rights by the courts? What 
is  the  quantitative-qualitative  dimension  of  litigation  or  complaints  and  debates  in 
the  Member  States?  What  is  the  impact  of  the  new  competence  of  the  members 
representing  the  employees  on  the  EWC  to  represent  the  employees  of  the 
undertaking or group of undertakings? 

The analysis of the socio-economic aspects of the 'new rules' and their 
effectiveness: 

(6) Against the baseline situation (2009), 

  what is  the impact  of  the  Directive  on the  creation  or  the  absence  of  EWCs in 
their  various  contexts  (companies/  sectors/  countries)  as  well  as  the  reasons 
for  this?  How  many  EWC  agreements  were  concluded  or  renegotiated  during 
the reference period (5 June 2009 – 5 June 2011)? 

  what are the current main characteristics of the EWCs: composition, number of 

meetings, existence of select committees and of working groups? 

(7) In what respect/to what extent does the Directive - the 'new rules' - bring a new 
impetus  to  consultation  and  dialogue  in  transnational  companies,  in  particular  as 
regards  the  opening  and  process  of  the  negotiations,  the  enhanced  role  of  trade 
unions  and  employers'  organisations,  the  new  concepts  of  information  and 
consultation? In what respect/to what extent? What is the impact of the use of new 
information and communication technologies? 
(8) How many agreements are still not ruled by the Recast Directive because of the 
derogations  foreseen  in  its  Article  14?  How  many  agreements  apply  the  subsidiary 
requirements? 
(9)  How  is  the  new  right  for  employees'  representatives  to  benefit  from  training 
without loss of salary implemented in practice? 
(10)  To  what  extent  has  the  role  of  EWCs  increased  in  the  negotiation, 
implementation and monitoring of transnational company agreements? 
(11) What is the specific effect of the recast against the prevailing economic context? 
(12)  To  what  extend  is  the  Directive  coherent  with  other  EU  legislation  addressing 
workers' information and consultation rights? 

The costs and benefits, both quantitative and qualitative, related to the 
transposition of the Directive and its effectiveness: 

(13.1) How did the transposition of the new rules of the Directive, including the new 
right for training, affect the benefits and costs, for workers and companies?   
(13.2) How did the recast simplify administrative burden? 

1.2.2  Study Method 

The  methodology  applied  combined  both  primary  and  secondary  data  collection 
methods. An overview of the aims of each method, its application and limitations are 
provided in below. Annex 2 presents detailed methodology of the study. 

The table below lists the tasks undertaken as part of the study and methods used. The 
table  also  provides  an  overview  of  challenges  faced  during  the  fieldwork  or  analysis, 
the way they were addressed and the assessment of the impact of these shortcomings 
on reliability of the final findings and conclusions drawn based on them. 

Table 1.  Overview of methods used 

Task 

Method 

Challenges faced 

Mitigating measures 

Coherence 
analysis 

Desk research 

  Difficult to assess 

coherence on a scale  

  Qualitative 

commentary to the 
assessment 

 

Incorporation of 

Impact on the 
findings  
Low / None 

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Task 

Method 

Challenges faced 

Mitigating measures 

Desk research 

Legal analysis 
of the 
national 
transposition 

  Ensuring a consistent 
assessment of the 
national laws across all 
MS 

 

supporting literature 
in the analysis 

Incorporation of 
answers provided by 
representatives of 
MS ministries and 
ELLN 

Survey among 
representatives 
of MS ministries 

  Long response time 
  Difficulties to identify 

relevant staff 
responsible for EWC at 
national level 

  Verification of the 
analysis of the 
national 
transposition by 
representatives of 
ministries  

 

Identification of 
relevant respondents 
in cooperation with 
DG EMPL and 
permanent 
representation of MS 
to the EU  

  Multiple reminders 
about ongoing 
research 

  Sufficient time to 

provide responses  

Impact on the 
findings  

Low / None 

Low / None 

Survey among 
ELLN 

  Long response time 

 

Identification of 
relevant respondents 
in cooperation with 
DG EMPL  

Low / None 

Survey among 
EIRO 

  Lack of interest in 
participation in the 
study without financial 
reword 

Analysis of 
the national 
case law 
pertinent to 
the new rules 

Desk research 

 

Identifying the national 
case law relevant to the 
provisions of the Recast 
Directive 

  Unknown number of 

cases which were solved 
through arbitration 

  Multiple reminders 
about ongoing 
research 

  Sufficient time to 
provide responses 

  Multiple reminders 
about ongoing 
research 

  Sufficient time to 
provide responses 

 

 

Identification of 
cases through 
several available 
sources of 
information 

Identification of 
cases through survey 
with representatives 
of MS, ELLN and 
EWC experts 
involved in the study  

Low 

Medium 

Cost-benefit 
analysis 

Desk research  

Consultation 
with Recast 
EWCs 

Medium / High 

  Benefits of EWC are 

intangible 

  Low response rate to the 
consultation of the 
representatives of 
employers 

  Lack of information on 
the costs of setting up 
the EWC due to staff 
turnover 

  Distinction has been 
made between 
quantifiable and non-
quantifiable costs 
  Benefits generated 
were assessed 
qualitatively 
  Multiple reminders 
about ongoing 
research 

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Task 

Method 

Challenges faced 

Mitigating measures 

Impact on the 
findings  

  Differences between two 
studies in the way the 
information on the costs 
was provided and which 
types of cost were 
included in the 
estimations 

  Small number of sample 
on group of Recast EWC 

  ETUI’s EWC Database 
does not contain 
information on the 
whole population of 
EWCs created 

  ETUI’s EWC Database 
contains information 
about other types of 
information and 
consultation bodies (e.g. 
SE companies)   

Literature 
review 

Desk research  

EWC 
consultations 

Telephone and 
face-to-face 
interviews with 
employer and 
employee 
representatives 
of the Recast 
EWCs  

Telephone 
interviews and 
surveys with 
renegotiated 
EWCs 

 

Initial lack of interest in 
participation in the 
study  

  Lack of information on 
the negotiation process 
of EWC due to staff 
turnover 

 

Initial lack of interest in 
participation in the 
study 

  Wrong classification of 
the EWC based on the 
information in the EWC 
Database 

  Sufficient time to 
provide responses 

  Out-reach to the 

respondents through 
representatives of 
employees in EWC 

  Out-reach to the 

 

respondents through 
representatives of 
social partners 
Information from the 
two studies was 
aligned to allow 
comparisons 

  Consultations with 
EWCs established 
after transposition of 
the Directive to the 
national law 
  Consultations with 
the EU and national 
level social partners 
supplementing the 
information collected 
in the ETUI’s EWC 
Database 

  Where possible other 
types of information 
and consultation 
bodies were 
excluded      

Low 

 

Low 

Identification of 
relevant respondents 
in cooperation with 
EWC experts, social 
partners  

  Multiple reminders 
about ongoing 
research 

  Sufficient time to 
provide responses 

 

Low 

Identification of 
relevant respondents 
in cooperation with 
EWC experts, social 
partners  

  Multiple reminders 
about ongoing 
research 

  Sufficient time to 
provide responses 

  Where possible 
inclusion of the 
interviews with 
wrongly classified 
EWC in other 
relevant parts of the 
study 

Online survey 
with Article 6 
EWCs 

 

Initial lack of interest in 
participation in the 
study 

 

Identification of 
relevant respondents 
in cooperation with 

Medium / High 

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Task 

Method 

Challenges faced 

Mitigating measures 

Impact on the 
findings  

  Lack of information on 
the negotiation process 
of EWC due to staff 
turnover 

  Contamination of the 
survey sample due to 
snowballing  

EWC experts, social 
partners  

  Multiple reminders 
about ongoing 
research 

  Sufficient time to 
provide responses 

  Exclusion of 

responses provided 
by EWCs falling out 
of the scope of the 
survey 

  Higher response rate 

  Analysis of responses 

Consultations 
with social 
partners 

Telephone and 
face-to-face 
interviews with 
EU level social 
partners 

among employers’ than 
workers’ representatives 

  Long response time 

Survey with 
social partners 
at national level 

 

Initial lack of interest in 
participation in the 
study 

  Higher response rate 

among employers’ than 
workers’ representatives 

Low 

Low 

per type of 
organisation 
represented 
  Multiple reminders 
about ongoing 
research 

  Sufficient time to 

provide responses   

 

Identification of 
relevant respondents 
in cooperation with 
EU social partners  
  Analysis of responses 

per type of 
organisation 
represented 
  Multiple reminders 
about ongoing 
research 

  Sufficient time to 

provide responses   

Coherence analysis 

The  relevant  EU  legislation  in  the  area  of  worker  information  and  consultation  (I&C) 
was  mapped  and  reviewed  in-depth  to  assess  the  coherence  of  the  Recast  EWC 
Directive’s  rules  with  existing  European  legislation  and  policy  developments.  Such  a 
systematic mapping of individual legal acts included an assessment of the key areas of 
coherence  (or  otherwise)  of  the  Recast  EWC  Directive  with  other  relevant  legal  acts 
and their consequences for the functioning of the EWCs. In the end eight EU level legal 
acts were assessed using a nominal scale: 

  Highly coherent: when the relevant Recast EWC Directive provisions fully reflect 

the nature of the provisions of the instrument in question 

  Partially coherent: when some of the relevant Recast EWC Directive’s provisions 
reflect  some  of  the  provisions  of  the  instrument  in  question  –  but  not  all  (as 
well as identifying which ones are reflected and which are not) 

  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 coherence 
between the Recast Directive and other specific instruments (which often had different 
focus  from  the  Recast  Directive).  Even  though  the  definitions  were  not  exactly  the 
same, they were nonetheless coherent when bearing in mind the legislator’s intention, 
which was to regulate information and consultation in these very specific situations. It 

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proved  difficult  to  rate  the  different  acts  on  a  scale  because  they  were  different  in 
focus  and  because  no  ‘scale’  really exists  or  has  been  approved  to  rate  coherence  at 
EU level, leaving  any  such  attempt  open  to  interpretation.  Therefore  the  assessment 
using a nominal scale is accompanied with extensive qualitative commentary based on 
an  in-depth  review  of  mapped  legislation  and  policy  developments.  The  in-depth 
review  was  undertaken  on  the  basis  of  a  desk-based  analysis  of  existing  legal  and 
policy  texts.  In  addition,  any  relevant  findings  from  the  supporting  literature  were 
incorporated into the coherence analysis. 

Legal analysis of national transposition  

Under  this  step,  the  national  laws  (EU-28  and  Norway,  Iceland  and  Liechtenstein) 
transposing  the  new  rules  of  the  Directive  were  identified,  collected  and  assessed 
against  each  new  provision  introducing  all  the  ‘major’  areas  of  change  in  the  Recast 
Directive.  

The key challenges encountered in this Task were to ensure a consistent assessment 
of  the  national  laws  across  all  Member  States.  In  several  cases,  the  national 
transposition rules included most of the relevant provisions, but did not explicitly refer 
to one or other particular aspect of the Directive. In these cases, the assessment was 
that the national law  both meets  and  does  not  meet the Directive’s  requirements.  In 
several cases, some of the relevant national provisions relating to the same aspect of 
the Directive were new and introduced after 2009, and some were already existing in 
the pre-2009. In these cases, the assessment was that the provisions are both old and 
new.  

To  ensure  consistent  assessment  across  all  Member  States  additional  consultations 
with  Member  State  ministries,  the  European  Labour  Law  Network  and  EIRO 
correspondents  were  conducted  to  support  the  analysis  (see  below).  Additionally, 
Member States had an opportunity to review and comment the transposition analysis 
at  a  workshop  organised  by  the  European  Commission  in  November  2015  and  after 
the event by submitting their comments to the research team.   

Consultation of Member State ministries, the European Labour Law Network and EIRO 
correspondents 

The legal analysis of the national transposition was supplemented by answers received 
in  a  short  consultation  with  Member  State  ministries,  the  European  Labour  Law 
Network  and  European  Industrial  Relations  Observatory  (EIRO).  The  following 
responses have been received: 

  24 responses from Member States (AT, BE, BG, CY, CZ, DE, EE, ES, FI, FR, IE, IT, 
LI, LT, LU, LV, NL, PL, MT, RO, SE, SI, SK, UK): with 23 responses analysed in the 
final  report,  as  the  Netherlands  provided  the  position  of  the  social  partners  and 
not the  government’s response.  

  27  of  the  European  Labour  Law  Network  (ELLN)  members  from  the  following 
countries: AT, BE, BG, HR, DE, FI, FR, DK, EE, EL, HU, IS, IE, IT, LV, LT, LI, LU, 
MT, NL, NO, PL, PT, RO, ES, SE, UK.  

  None  of  the  European  Industrial  Relations  Observatory  (EIRO)  correspondents 

responded to the short consultation.  

The key challenges encountered in this Task were to clean the data from the surveys 
(as  sometimes  respondents  did  not  provide  responses  in  the  correct  category)  and 
analyse  the  data  provided  (as  sometimes  qualitative  answers  provided  were  not  in 
English or formulations used were unclear). Prior the analysis the responses provided 
were translated, cleaned and clarified with respondents if unclear.  

Analysis of the national case law pertinent to the new rules  

The national case law pertinent to the application of new rules was identified, collected 
and assessed on a systematic basis. In addition, potential cases relating to the lack of 

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consultation  in  the  cases  of  joint  ventures  (where  control  is  shared  equally  by  the 
original  groups  and  whose  accounts  are  not  consolidated  by  these  groups)  were 
examined at the Commission’s request.  

The  key  challenges  encountered  in  this  Task  included  identifying  national  case  law 
relevant  to  the  provisions  of  the  Recast  Directive  (as  opposed  to  the  old  1994 
Directive). The following sources were used to identify national case law: 

 

Information provided by DG EMPL on infringement proceedings (only cases of 
non-communication), 

  European Court of Justice case law, 

  National case law identified in the EWC database,13  

  National case law identified by the European Labour Law Network, Member State 

ministries and EIRO correspondents (see above), 

  National case law identified through the literature review, and 

  Additional national case law identified by the members of the research team 

through additional desk research. 

The  involvement  in  the  study  of  ELLN  members,  Member  States  representatives  and 
EWC experts provided particularly valuable insights in this regard. The identified cases 
might not be exhaustive and cannot be taken as an indicator of whether the rules of 
the Recast Directive have considerably improved legal certainty compared to the “old” 
provisions as we do not dispose of information of how many cases  arose prior to and 
after  the  Recast.  Nevertheless, the identified  cases  show  the  themes  of  the Directive 
which remain problematic.  

Cost-benefit analysis 

One  of  the  key  objectives  of  the  evaluation  was  to  assess  the  costs  and  benefits 
(including in relation to administrative burdens) generated by the changes brought by 
the Recast Directive 2009/38/EC. A distinction has been made in the analysis between 
different types of costs:  

  Set-up costs as one-off costs – this refers mainly to the ‘new rules’ affecting the 

EWC negotiation / set-up phase;  

  Running costs as recurrent costs calculated on an annual basis; and 

  Administrative  costs  (monitoring,  enforcement  and  adjudication/litigation) 
aggregated  since  June  2011  to  provide  an  indication  of  the  frequency  at  which 
legal challenges to the application of the new rules occur.  

A  distinction  has  also  been  made  between  quantifiable  and  non-quantifiable  costs. 
While most costs are quantifiable, most benefits are intangible. The benefits generated 
by the new rules are therefore being mainly assessed qualitatively.   

Where appropriate, costs have been compared to the costs related to the set up and 
operation  of  EWCs  prior  to  the  implementation  of  the  Recast  Directive,  especially  on 
the basis of cost information, by type of agreement where possible (Article 13, Article 
6), from the 2008 preparatory study on the impact assessment on the revision of the 
EWC agreement.  

Despite  multiple  contacts,  employer  representatives  were  less  likely  than  the 
employees  to  agree  to  participate  in  the  study.  Their  lower  response  rate  has  an 
impact on the cost-benefit analysis as they  were the key source of information about 

13 
http://www.ewcdb.eu/list_other_documents.php?webchapter_ID=7&type=National%20Case%20Law&sort=
jurisprudence.  

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costs of running EWC. Additionally, some of the interviewed employer representatives 
did not work at the company when the agreement was negotiated, therefore could not 
provide details of the process and its costs. 

In  the  end  information  on  the  costs  of  running  EWC  was  obtained  for  20  out  of  37 
(54%)  of  the  companies  interviewed.  Due  to  above  mentioned  reasons  even  less 
interviewees were able to provide information on cost of setting up a EWC (13 out of 
37).  Since  only  handful  of  company  representatives  in  the  current  and  in  the  EPEC 
GHK study (2008) were able to provide cost information the analysis of the impact on 
the quantifiable costs should be treated with caution. 

Literature review 

Only  a  handful  of  literature  sources  provided  quantitative  evidence  on  costs  and 
benefits related to EWCs. These were used as benchmarks to support the comparative 
elements of the study by allowing the researchers to compare the findings related to 
Recast  EWCs  with  Article  13  /  Article  6  EWCs.  The  majority  of  post-2011  sources 
reviewed sources provided commentary on the new Directive rather than evidence on 
impacts.  Therefore  the  assessment  of  the  impact  of  the  Directive  relies  mainly  on 
evidence collected as part of this study. 

The information  on  the  general  characteristic  of  EWCs  created  to  date  was  based  on 
the available information in the ETUI’s EWC Database available at www.ewcdb.eu. The 
database  is  the  most  comprehensive  data  source  on  EWCs.  However,  it  does  not 
contain  information  on  the  whole  population  of  EWCs  created  and  some  types  of 
bodies might be underrepresented in it (e.g. non-unionised companies, EWC following 
subsidiary  requirements).  To  mitigate  this  problem,  national  and  EU  level  social 
partners were asked additional questions about changes in  the number of companies 
following  the  subsidiary  requirements.  Furthermore,  a  parallel  study  on  the  EWCs  in 
the  transport  sector  carried  out  by  ICF  on  behalf  of  DG  MOVE  was  a  source  of 
information on the companies which did not reach agreement to set up an EWC.      

The ETUI records information about other types of information and consultation bodies 
(e.g. SE companies). Filtering on EWCs out from this is not straightforward, therefore 
the  data  presented  in  section  4  might  include  a  small  sample  of  other  types  of 
information and consultation bodies. 

EWC consultations 

The consultations with EWC representatives were an important part of the method to 
gather  evidence  on  a  number  of  different  evaluation  questions,  especially  on  the 
practical  impact  of  the  ‘new  rules’  on  the  set  up  and  operation  of  EWCs.  A  short 
overview  of  the  three  different  types  of  consultations  has  been  included  in  Table 
below.  

Table 2.  EWC consultations 

Consultations 

Method 

Rationale 

Response rate 

‘Recast EWCs’: Interviews 
with employer and 
employee representatives 
of the EWCs established 
after June 2011 and EWCs 
established after June 
2009 following the rules of 
the Recast Directive 

Telephone 
and face-to-
face 
interviews 

To gather baseline 
information on newly-
created EWCs operating 
under the Recast rules 

Contact established with employee 
and management representatives of 
all 68 EWCs which were included in 
the original sample, of which 10 
proved to be out of the scope of the 
study. Thus, out of the 58 recast 
EWCs in the sample, interviews 
have been undertaken with 37 
EWCs (overall EWC response rate of 
63%). Interviews were conducted 
with 25 company representatives 
and 34 employee representatives. 
In 22 EWC views of both sides were 
obtained. 

Renegotiated EWCs: EWCs  Telephone 

The goal was to gather 

Contact established with employee 

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Consultations 
which have renegotiated 
their Article 13 or Article 6 
agreement to follow the 
rules of the Recast 
Directive  

Method 
interviews 
and surveys 

Rationale 
further evidence on the 
changes in the functioning 
of old EWCs, of which 
agreement has been 
changed to reflect the ‘new 
rules’ 

Article 6 EWCs: A survey of 
EWCs established before 
June 2011 following Article 
6 rules 

Online survey  To allow comparison 

between ‘recast EWCs’ 
(2009/38/EC) and those 
EWCs operating under the 
Article 6 rules (94/45/EC) 

Response rate 
or management representatives of 
50 EWCs which were included in the 
original sample, of which 5 proved 
to be out of the scope of the 
study14. Out of 45 relevant EWCs 
approached 19 agreed to an 
interview which gives response rate 
of 42%. The total number of 
interviews analysed is higher (23) 
as in 4 EWCs interviews were 
conducted with both sides – 
representatives of management and 
employees. 

A total of 59 representatives of 
EWCs responded to the survey. 
However due to snowballing the 
sample was contaminated and after 
cleaning of the data only 22 
respondents were identified as 
representatives of Art 6 EWC 
established before June 2011. The 
final sample represent 5% of all 
EWCs operating under Art 6 
provisions.  

Social partner consultations at EU level 

In  addition  to  interviews  with  individual  EWC  representatives,  we  have  conducted 
consultations  with  EU  level  social  partners.  The  aim  of  the  interviews  was  to  obtain 
social  partner  views  on  the  impact  of  the  Recast  Directive  of  2009  on  the  setup  and 
operation of new EWCs and observed problems in transposing or interpreting the new 
rules.  

Out  of  the  26  EU  level  social  partners  approached,  14  agreed  to  take  part  in  an 
interview, including: 

  3 cross-sectoral EU social partners 

  11  sectoral  social  partners  from  key  sectors,  including  4  representing  employers 

and 7 representing workers  

The  number  of  refusals  to  participate  in  the  study  was  substantially  higher  among 
employers’ than workers’ representatives. This is due to lack of involvement in EWCs 
among employers’ organisations at the EU and national level.   

Both  employers  and  trade  union  organisations  in  the  property  service  and  security 
sectors  did  not  participate  in  the  interview,  stating  that  companies  or  other  policy 
officers  will  present  their  position  regarding  the  EWCs.  In  four  sectors  (building  and 
woodwork,  public  services,  chemicals,  metal)  the  views  of  only  one  type  of  social 
partners  were  collected  –  in  3  cases  these  were  views  of  workers’  organisations.  In 
four  other  sectors  (food,  HORECA,  agriculture,  services  finance,  insurance,  services 
commerce,  services  information  technology)  interviews  were  conducted  with  both 
employer and trade union representatives. 

Survey of sectoral social partners at national level 

A  total  of  52  national  sectoral  social  partner  organisations  responded  to  an  online 
survey.  They  represent  22  Member  States.  Also  among  this  group  employee 
organisations  (56%)  more  often  participated  in  the  survey  than  employers’ 
organisations (31%). 13% of respondents were trainers or networks of EWCs.       

14 Bodies no longer effective or actually were newly established EWCs. 

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Research on case studies 

Ten  case  studies  were  chosen  reflecting  both  individual  EWC  examples  and  thematic 
case studies.  

1.3  Purpose of this report  

The  purpose  of  this  Final  Report 
is  to  provide  analysis,  conclusions  and 
recommendations on the implementation of this Directive in order to support the work 
of  the  Commission  in  the  preparation  of  the  report  due  by  5  June  2016  to  the 
European  Parliament,  the  Council  and  the  European  Economic  and  Social  Committee 
on  the  implementation  of  this  Directive.  The  Final  Report  consists  of  the  following 
sections: 

  Section 2 presents the results of legal coherence analysis,  

  Section 3 includes the results of legal analysis of national transposition laws, 

  Section  4  includes  an  analysis  of  results  related  to  the  qualitative  and 

quantitative effects of the Recast Directive on new EWCs, 

  Section 5 discussed the interim results on the effects of the Recast Directive on 

information and consultation practices in EWCs, 

  Section 6 examines ‘other effects’, 

  Section  7  provides  an  analysis  of  costs  and  benefits  of  key  Recast  Directive 

provisions,  

  Section 8 identifies key effective practices from the Recast EWCs, 

  Section 9 concludes with conclusions and recommendations.  

The report is accompanied by the following annexes: 

  Annex 1 Overview of analytical framework, 

  Annex 2 Detailed research methodology, 

  Annex 3 Legal coherence assessment,  

  Annex 4 The overall analysis of the national transposition,  

  Annex 5 The detailed analysis of national transposition laws, 

  Annex 6 The results of the surveys, 

  Annex 7 The supporting information on the analysis of costs and benefits, 

  Annex 8 Bibliography 

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2 

Analysis of the coherence of the EWC Recast Directive with 
the other EU legislation addressing workers’ information 
and consultation (I&C) rights and restructuring policy 
instruments  

2.1  Introduction 

One of the objectives of the assignment was to assess the extent to which the Recast 
EWC  Directive  is  coherent  with  other  EU  legislation  addressing  workers'  information 
and  consultation  rights.  A  desk-based  review  of  other  EU  Directives  and  instruments 
pertaining  to  worker  information  and  consultation  was  undertaken  together  with  an 
assessment of relevant literature. The summary of this review is provided in Annex 1. 
The  focus  of  the  coherence  assessment  was  on  the  following  aspects  of  worker 
information and consultation: 

  The definition of the two concepts,  

  Its timing,  

  The list of items to be covered by information and consultation processes.  

The differences in the particular situations where specific I&C instruments apply (e.g. 
in the case of insolvencies, cross-border mergers or transfer of undertakings which are 
relevant but contain less focus on the detail of information and consultation processes) 
were  explored  but  not  included  in  the  assessment  of  the  legal  coherence  due  to  the 
focus of this study on the I&C procedures.  

The  analysis  undertaken  needs  to  be  seen  in  the  context  of  the  Commission’s  own 
work  to  assess  the  coherence  and  complementarity  of  the  existing  I&C  legislation  at 
the  EU  level  taking  place  within  the  overall  Commission’s  REFIT  initiative  to  simplify 
and  reduce  regulatory  costs  and  to  consolidate  legislation  to  ensure  so-called  ‘better 
regulation’ at the EU level.15  

In  2013,  the  Commission  published  the  results  of  its  fitness  check  of  existing  I&C 
legislation at the EU level.16 It concluded that although I&C instruments are generally 
fit  for  purpose,  some  stakeholders  expressed  concerns  about  a  possible  lack  of 
coherence  in  the  definition  and  the  procedures  outlined  for  I&C  across  the 
instruments. The Commission’s assessment was that the differences between the I&C 
instruments  are  due  to  their  diverging  scope  and  the  EU  legislator’s  objectives  in 
formulating  them  (e.g. in  terms  of  content  and  processes  and  I&C  procedures  suited 
to the specific purpose of the legislation).   

Building  on  the  results  of  the  fitness  check,  in  2015  the  Commission  started  a  first 
phase consultation of the European social partners in line with Article 154 TFEU on a 
consolidation  of  the  EU  Directives  on  I&C  of  workers  into  potentially  one  legislative 
instrument.17  In  this  context,  questions about  the  coherence  of legal  provisions  were 
examined again, highlighting the different definitions of the concepts ‘information' and 
‘consultation’ in existing I&C Directives: 

  Directives  98/59/EC  and  2001/23/EC  (on  collective  redundancies  and  on  the 
transfer  of  undertakings  respectively)  do  not  provide  for  specific  definitions  of 
the concepts of ‘information' and ‘consultation’.  By contrast, Directive 2002/14 
on  information  and  consultation  procedures  at  national  level  contains  such 
definitions.  However,  these  are  relatively  succinct  in  comparison  to  the  more 
extensive definitions stipulated in the Recast EWC Directive 2009/38/EC. There 

15 http://ec.europa.eu/smart-regulation/refit/index_en.htm  
16  Commission  Staff  Working  Document,  ‘Fitness  check’,  on  EU  law  in  the  area  of  Information  and 
Consultation of Workers, Brussels, 26.7.2013, SWD(2013) 293 final.  
17 http://ec.europa.eu/social/main.jsp?langId=en&catId=329&newsId=2192&furtherNews=yes  

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are  calls  to  bring  Directive  2002/14/EC  as  well  as  Directives  98/59/EC  and 
2001/23/EC in line with the definitions contained in the recast EWC Directive. 

  Directive 2002/14/EC goes further than the Recast EWC Directive as regards to 
defining ‘consultation’, since it provides for consultation ‘with a view to reaching 
agreement’  while  the  recast  EWC  Directive  states  that  the  opinion  of  workers’ 
representatives ‘may be taken into account' by the employer. 

  However, such comparisons of legal texts need to take account of the  different 
focus of, on the one hand, the three I&C Directives and, on the other hand, the 
EWC  Directive,  with  the  former  focusing  on  information  and  consultation  at 
national and the latter at transnational level.  

2.2  Key findings of the legal coherence assessment with I&C legal 

instruments  

In  total,  eight  I&C  instruments  at  the  EU  level  were  subject  to  the  detailed  legal 
analysis: 

  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/EC  on  cross-border  mergers  of  limited  liability 

companies 

  Council  Directive  2008/94/EC  on  the  protection  of  employees  in  the  event  of 

the insolvency of their employer. 

The Charter of Fundamental Rights of the European Union (hereafter referred to as 
EU  Charter  of  Fundamental  Rights)  by  its  very  nature  provides  a  general  legal 
framework for the I&C of workers in the EU (Article 27). It guarantees workers or their 
representatives  the  right  to  information  and  consultation  in  “good  time”  in  situations 
as set out under EU and national law.   

The Community Charter of Fundamental Social Rights of Workers already foresaw this 
right to information and consultation at “transnational” level under its heading 17. The 
Community Charter outlined all specific situations where information and consultation 
should  take  place  and  which  are  incorporated  under  European  labour  law  Directives. 
Also the EU Charter of Fundamental Rights refers to Community law (thus referring to 
established  rights)  ensuring  that  the  transnational  right  to  information  and 
consultation  must  be  guaranteed.  The  right  as  set  out  under  the  EU  Charter  of 
Fundamental  Rights  also  specifies  that  information  and  consultation  at  national  and 
transnational level (when a EWC is in place) must be provided (at least of issues that 
fall  under  the  EWC  competence).  In  this  regard,  EU  legislation  concerning  I&C 
procedures  must  ensure  that  there  is  a  link  between  both  levels  –  in  rules  for  the 
national  level  and  transnational  level.  The  Recast  Directive  (under  Article  12) 
stipulates  that  I&C  at  transnational  level  must  be  linked  to  national  I&C  procedures, 
taking into account the respective competencies of both levels. In the case of absence 

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of  such  provision in  the EWC  agreement,  Member  States  are  required to  ensure  that 
I&C processes are conducted in the EWC as well as national  employee representative 
bodies  if  company  decisions  are  likely  to  lead  to  significant  changes  in  work 
organisation of contractual relations. 

The  Recast  Directive  clearly  sets  out  under  Article  10.2  that  members  of  the  EWC 
must inform workers’ representatives in the establishments or undertakings that form 
part of a Community-scale group of undertakings, or – if no representative is available 
–  the  workforce  as  a  whole,  of  the  content  of  the  outcome  of  information  and 
consultation  procedures.  Links  between  transnational  and  national  information  and 
consultation  processes  are  thus  set  out.  However,  the  same  is  not  necessarily  true 
with regard to communication from the national to the transnational level. This can be 
relevant as restructuring processes can have different impacts at different levels that 
are not always foreseeable. Directive 2002/14/EC on national I&C provisions foresees 
only  that  rules  shall  be  implemented  without  prejudice  of  former  EWC  Directive 
(94/45/EC),  thus  not  creating  a  direct  link  between  the  national  and  transnational 
level.  

Under Article 12.1 the Recast Directive sets out that I&C of the EWC shall be linked to 
those  of  the  national  employee  representation  bodies,  taking  into  account  their 
respective competencies. However, Article 12.2 specifies that in practice this link shall 
be further regulated by the EWC agreement, and as set out under Article 12.3, in case 
this has not been specified in the EWC Agreement the Member States shall ensure that 
the  processes  of  I&C  are  conducted  in  the  EWC  and  in  the  national  employee 
representation bodies in cases where decisions likely to lead to substantial changes in 
work organisation or contractual relations are envisaged. The linkage between national 
and  transnational  I&C  procedures  and  bodies  in  practice  is  mainly  left  to  negotiating 
parties when setting up the EWC.   

In  cases  where  no  representation  body  or  workers’  representation  is  in  place  this 
linkage of I&C procedures may not be guaranteed, which may thus not give full effect 
to  the  fundamental  right  of  information  and  consultation  as  set  out  under  the  EU 
Charter of Fundamental Rights. Directive 2002/14 does not provide for what happens 
if  no  worker  representation  is  in  place  and  a  clear  co-ordination  with  national  and 
transnational  I&C  processes  cannot  always  be  guaranteed.  It  may  therefore  be 
necessary  to  consider  this  in  cases  of  further  revisions  of  I&C  legislation  to  ensure 
effectiveness  and  legal  certainty  as  these  processes  could  be  considered  by 
management  as  a  burden  or  counter-productive.  It  could  also  undermine  the 
transnational  right  to  information  and  consultation  as  under  such  a  constellation  a 
priority could be given to national I&C, leaving workers representatives to investigate 
what kind of issue should actually be under the competence of the EWC.  

As mentioned above, the Charter sets out that I&C shall take place in “good time” in 
situations  as  set  out  under  EU  law.  Timing  is  crucial  for  I&C  procedures,  particularly 
taking into account that information and consultation processes may take place as two 
distinct steps. Time therefore needs to be provided to have a meaningful dialogue in a 
specific case. The formulation used in the Charter could lead to the interpretation that 
“in  good  time”  may  be  further  specified  for  situations  regulated  under  EU  law.  The 
Recast Directive does indeed specify that information  should take place ’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 2.1 (f)).  With regard to 
consultation, reference is made to this taking place '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' (Article 2.1 (g)). 

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This  concept  is  also  linked  to  the  content  of  and  process  that  information  and 
consultation  can  follow.  The  right  as  set  out  in  the  Recast  Directive  seems  thus 
coherent  with the  Charter’s  right  on information  and  consultation.  In line  with  Article 
6.2  (c)  of  the  Recast  Directive,  it  may  be  considered  that  the  content  of  the  EWC 
Agreement shall further set out the timing for I&C procedures to improve protection of 
workers in this regard. However, the provisions of the Recast Directive could arguably 
have been more specific, using the example of Directive 2001/23/EC on the transfer of 
undertaking  which  specifies  a  more  specific  timeframe  (“in  good  time  and  before 
employees are directly affected” – see also below).   

For the coherence analysis two Directives could not be compared directly with the I&C 
provisions  of  the  Recast  EWC  Directive  because  they  were either  far  more  general in 
scope  or  did  not  contain  provisions  directly  relevant  to  the  information  and 
consultation procedures: 

  Directive 2005/56/EC of the European Parliament and of the Council of 
26 October 2005 on cross-border mergers of limited liability companies 
which concentrates on the participation rights of employees and broadly refers 
to the existing body of I&C instruments at the EU level. 

  Directive 2008/94/EC of the European Parliament and of the Council of 
22  October  2008  on  the  protection  of  employees  in  the  event  of  the 
insolvency  of  their  employer  which  provides  for  employee  protection  in 
cases of insolvencies – rather than information and consultation procedures.  

Amongst  the  remaining  five Directives and instruments  being  analysed,  the  following 
two types of situations are distinguished.  

Two cases where a high level of consistency18with the Directive is identified: 

  Definitions  of  information  and  consultation  and  their  timing  are 
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.  

  Definitions  of  information  and  consultation  in  Directive  2003/72/EC  on 
European  cooperative  societies  are  similar  to  the  provisions  in  the  Recast 
Directive with small adaptations regarding the specific situation of the creation 
of a European cooperative society.  

Three cases where a partial coherence19 with the Directive is identified with regard to 
the definition of core concepts: 

  In Directive 98/59/EC on collective redundancies provisions on the timing 
of  information  and  consultation  are  coherent  with  the  Recast  Directive  as  for 
both  concepts  a  reference  to  ‘in  good  time’ is made.  However,  the  articulation 
of the processes to be followed under this and the Recast EWC Directive is not 
always necessarily clear. This could create time inefficiencies and the  timing of 
consultation in relation to the requirements of both directives is not necessarily 
clear  (who  should  be  consulted  first).  In  addition,  Directive  98/59/EC  also 
provides a clear list of the information to be transmitted to employees which is 
not included in the Recast EWC Directive. A clear link between both instruments 
is missing, potentially leading to legal uncertainties.  

18 High consistency is defined in the evaluation as situations where the wording and definitions used in the 
different legal texts are very close and similar to each other.  
19 Partial coherence was defined in the evaluation as situations where some definitions used in the different 
legal texts were similar or the same, however, other definitions and concepts used in the different legal 
texts were different or absent.  

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  Directive  2001/23/EC  on  transfer  of  undertakings  does  not  provide  a 
definition of the concepts of information and consultation. However, it provides 
a  more  specific  timeframe  (“in  good  time  and  before  employees  are  directly 
affected”) for the information and consultation  processes and provides a list of 
the minimum information which needs to be provided to employees. In addition 
for  “consultation”  it  is  stipulated  that  parties  shall  conduct  a  consultation 
procedure ‘with a view to reach agreement’. The Recast Directive defines that a 
consultation process ends with an opinion that is provided by the EWC in good 
time so that management may still take it into account.  

  Definitions of I&C in the Directive 2002/14/EC on information of workers 
are provided but are more succinct than in the Recast Directive though Article 4 
of  Directive  2002/14/EC  sets  out  practical  arrangements  for  information  and 
consultation.  Directive  2002/14/EC  also  sets  out  the  specific  cases  (in  a  non-
exhaustive  list)  in  which  information  and  consultation  shall  take  place.    The 
Recast  Directive  only  specifies  under  Article 1  (read in  conjunction  with  Article 
6.3) that information and consultation shall relate to “transnational issues that 
significantly  affect  workers  interest”.  In  addition,  line  2  of  the  subsidiary 
requirements  of  Annex  I  of  the  Recast  Directive  indicates  that  the  annual 
meeting  shall  cover  progress  in  business  and  prospects.  Thus  the  Recast 
Directive leaves substantial room for information and consultation procedures in 
terms  of  areas  that  could  be  covered  having  only  a  geographical  limit 
(transnational – shall involve two Member States). However, the list of the type 
of information that needs to be provided, as mentioned in Directive 2002/14/EC 
(which is broader scope than in the Recast EWC Directive) could be regarded as 
setting  minimum  number  of  information  and  consultation  subjects.  The  timing 
set for information and consultation is in line with the provisions of the Recast 
EWC  Directive.  The  definition  of Directive  2002/14/EC  already linked timing  to 
the  content,  fashion  and  preparation  of  a  consultation  process.  In  addition, 
Directive  2002/14/  EC  further  details  under  Article  4.4  (d)  with  regard  to  the 
procedure of consultation that it shall occur in such a way that allows employee 
representatives  to  meet  with  the  employer  and  to  obtain  a  response,  and  the 
reasons  for  that  response,  to  any  opinion  they  might  formulate.  The  Recast 
Directive  only  provides  the  possibility  for  employee  representatives  to  express 
an opinion that central management may take into account. This definition falls 
short of requiring management to provide a response. 

Beyond  the  level  of  coherence  of  the  definitions  of  core  concepts  (e.g.  information, 
consultation etc.), the question of the linkage and articulation between these different 
instruments  in  practice  is  also  worth  considering.  These  shall  be  briefly  mentioned 
here but pertain more to issues of implementation of the rights in practice rather than 
coherence.    The  question  for  linkage  and  articulation  is  particularly  relevant  for  the 
following:  Directive  98/59/EC  on  collective  redundancies;  Directive  2001/23/EC  on 
transfer of undertakings; and Directive 2002/14/EC on information and consultation of 
workers.  While  their  scope  is  to  set  out  information  and  consultation  procedures  at 
national level and in specific cases, these three Directives are directly complementary 
to the provisions of the Recast Directive. Directive 89/59/EC and Directive 2001/23/EC 
specify  what  the  process  of  information  and  consultation  shall  cover  in  cases  of 
collective  redundancies  and  transfer  of  undertakings.  They  impact  differently  on 
coherence:  

  Directive  98/59/EC  –  it  is  relevant  to  consider  what  happens  if  collective 
redundancies  occur  on  a  transnational  scale  –  thus  possibly  falling  within  the 
remit  for  discussions  in  the  EWC.  As  indicated  above,  there  is  no  clear  link 
between both instruments – an issue which may need to be clarified to ensure 
that  the  EWC  first  has  an  opportunity  to  be  informed  and  consulted  (e.g.  on 
alternative measures to potentially avoid redundancies) before information and 

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consultation  takes  place  at  the  national  level  to  shape  the  precise  nature  of 
redundancy processes.  

  Directive  2001/23/EC  also  applies  at  the  establishment  level  directly  involved. 
In a case where a Community-scale undertaking is concerned this also requires 
I&C procedures to be followed in the transferee undertaking and the transferor 
undertaking.  A  situation  of  transfer  of  undertakings  may  well  be  taken  at 
central management level thus shall be discussed first with the EWC possibly at 
a more strategic level (again minimum type of information to be provided is not 
fully set out  – as the Recast Directive requires information to be given so that 
an in-depth assessment is possible – the question that remains with this type of 
definition is however what question is to be assessed in-depth – the impact or 
the decision to transfer in the first place, or both) and then at the level of the 
establishment  concerned.  The  complementary level  of  the  EWC is  not  clear  as 
the  Recast  Directive  does  not  make  a  clear  link  to  the  procedures  of  the 
transfer  of  undertakings  Directive.  The  EWC  level  may  be  undermined  as 
management  will  start  directly  a  national  procedure  in  cases  of  restructuring 
and  the  EWC  may  remain  a  formality  without  management  being  obliged  to 
take note of the EWC opinion.   

  Directive 2002/14/EC sets out national level procedures for I&C and plays a key 
role  for  the  development  of  company  level  dialogue  at  national  level.  It  is 
important  to  note  that  while  this  sets  minimum  standards,  significant 
differences  remain  between  Member  States  in  the  rights  accorded  to  national 
information and consultation bodies (and indeed the traditions and practice for 
such consultations). For Member States that have more protective standards for 
workers  for  I&C  or  more  participatory  models  of  I&C,  this  could  imply  a 
stronger  role  for  those  members  of  the  EWC  from  these  particular  States  and 
potentially 
information  among  EWC 
representatives.   

to  an  unequal 

level  of 

leading 

2.3  Coherence with the key EU policy developments relating to 

restructuring  

The  assessment  of  the  coherence  of the  EWC  Recast Directive is  also  relevant  in  the 
context  of  the  employee  information  and  consultation  rights  in  the  situations  of 
restructuring  at  the  company  level.  A  number  of  important  developments  at  the  EU 
level have occurred in the last years in this area (see Table 2). In contrast to the hard 
law developed in the area of I&C, these instruments are mostly soft law, based on the 
communications  and  policy  directions  provided  by  the  European  Commission  to  the 
partners at the national level.  

As  shown  in  Table  2,  the  EWC  Directive  is  highly  consistent  with  three  soft  law 
instruments  in  the  area  of  restructuring  policies  (i.e.  the  2005  Communication  on 
restructuring,  the  2009  Checklist  for  restructuring  policies  and  the  2013  Quality 
Framework  for  Restructuring).  This  is  because  the  EWC  Directive  aims  to  strengthen 
the  process  of  information  and  consultation  (also  in  situations  of  transnational 
restructuring)  in  the  EWCs  through  clarifying  and  developing  its  key  principles  (such 
as appropriate timing, in-depth examination of impacts, cooperative dialogue between 
management and labour). This in principle is aimed at encouraging the EWCs to play a 
role in fostering  a  more  socially  responsible  management  of  restructuring,  which is  a 
key policy message in the recent EU level policy developments. In addition, the EWC 
Directive  aims  to  reinforce  the  role  and  capacity  of  the  EWCs  in  managing  the 
transnational restructuring. This is consistent with the policy directions in the EU policy 
developments  where  the  EWCs  are  seen  as  a  key  stakeholder  in  the  restructuring 
policies.  

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With respect to the transnational company agreements, the situation is different. The 
EWC  Directive  does  not  explicitly  refer  to  the  role  of  EWCs  in  negotiating  and 
implementing  the  transnational  company  agreements.  However,  in  practice,  some 
EWCs play a role in the negotiation and adoption of such agreements (see section 7), 
even though formally they are not negotiation bodies. Hence, here the legal definitions 
lag behind the actual situation.      

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Table 3.  Overview of key EU developments in the area of restructuring and their links to the EWC Directive  

Year 

Instrument  

Title  

Short summary 

Relevance and links to the EWC 

TCAs  are 
concluded  by  one  or  more 
representatives  of  a  company  or  a  group  of 
companies  on  the  one  hand,  and  one  or  more 
workers’  organisations  on  the  other.  They  cover 
working  and  employment  conditions  and/or 
relations  between  employers  and  workers  or 
their representatives.  20 These initiatives help to 
employment 
anticipate 
developments,  launch  flanking  measures  for 
restructuring  and  manage  human  resources  in 
transnational  companies. 
to 
discrepancy  between  the  transnational  scope  of 
the TCAs and the national norms and references 
exist.  The  EU  supports  development  of  TCAs 
through  exchanges  of  experience, 
financial 
support, monitoring and studies.21  

Issues  related 

cross-border 

communication 

The 
and 
approaches to manage restructuring in a socially 
responsible way 

proposes  ways 

Transnational 
Company 
Agreements 
(TCAs) 

http://ec.europa.e
u/social/main.jsp?
catId=707&langId
=en&intPageId=2
14 

2005 

Communication 
on  restructuring 
and employment  

the 
- 

Communication 
from 
Commission 
Restructuring 
and  employment 
-  Anticipating  and 
accompanying 
restructuring 
in 
order  to  develop 
the 
employment: 
role 
the 
Union  
European 
/* 
COM/2005/0120 
final */23 

of 

food  and 

EWCs  generally  play  an 
important  role  in 
representing  workers  in  the  context  of  TCAs.22 
Companies  involved  in  concluding  TCAs  are 
mostly multinationals in the metal, construction, 
financial  sectors  with 
chemicals 
headquarters 
in  Europe  and  with  well-
established  EWCs.  The  initiative  to  start  a 
transnational  negotiation  often  originates  from 
the EWCs. They have also signed a large number 
of  the  texts,  particularly  the  European  ones, 
even  though  they  have  no  negotiating  powers 
under  Directive  2009/38/EC.  Their  involvement 
in  negotiations  is  at  odds  with  national  systems 
that  make  a  clear  distinction  between  the 
consultative 
employee 
of 
representative  bodies  (works  councils)  and  the 
negotiating  mandates  entrusted  to  trade  unions 
(in  France  for  example)  or  which  utilise  a  single 
trade-union  channel  for  worker  representation 
(in Italy or the Nordic countries for example).  
EWC  role  is  mentioned  as  a  key  to  the 
management 
the 
of 
transnational level  

restructuring 

elected 

role 

at 

Assessment  of  the  coherence  (in  bold  are  the  elements 
leading to the placement in the nominal scale)  
Inconsistent  in  the  legal  text  -  in  practice  mutually 
reinforcing  
The  EWC  Directive  does  not  explicitly  refer  to  the  role  of  the 
EWCs  in  the  area  of  initiating,  negotiating,  concluding  or 
implementing the TCAs. The EWC Directive defines the EWCs as 
information  and  consultation  bodies  but  not  a  negotiation  body 
at the transnational level. In practice (see also section 6.1), the 
EWCs  play  a  role  in  the  development  of  the  TCAs  and  hence 
support  the  transnational  dialogue  between  management  and 
labour  on  a  host  of  issues  of  importance  in  transnational 
companies.  Hence,  the  EWC  Directive  is  inconsistent  with  the 
actual practice as it does not recognise formally the role of some 
EWCs with the respect of the TCAs. 

restructuring 

transnational 

Highly consistent, mutually reinforcing 
The  Directive  aims  to  strengthen  the  role  and  capacity  of 
EWCs  to  help  to  manage  the  transnational  restructuring  and 
thus  supports  the  Communication  seeing  the  EWCs  as  a  key 
player  in  the  management  of  transnational  restructuring.  The 
EWC  Directive  aims  to  support  the  work  of  EWCs  in  managing 
the 
through  clarifying  and 
developing the definitions and process of information and 
consultation  in  the  EWCs  (which  often  relates  also  to  the 
situations  of  transnational  restructuring).  It  aims  to  ensure  that 
the  information  and  consultation  procedures  in  the  EWCs  are 
undertaken on time and in such way as to enable an in-depth 
assessment  of  possible  impacts  and  ensure  meaningful 
consultations between the management and labour about 
the possible impacts. The Directive also puts emphasis on the 
spirit  of  cooperation  in  the  information  and  consultation 
procedures.  

2009 

Checklist 

for  Communication 

The  document  provides  a  set  of  comprehensive  The Communication proposes a set of actions to  Highly consistent, mutually reinforcing 

20 http://ec.europa.eu/social/main.jsp?catId=707&langId=en&intPageId=214.  
21 http://ec.europa.eu/social/main.jsp?catId=707&langId=en&intPageId=214. 
22 Commission Staff Working Document SWD(2012)264, Transnational company agreements: realising the potential of social dialogue. 
23 http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:52005DC0120.  

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Year 

Instrument  

Title  

Short summary 

Relevance and links to the EWC 

checklists  of 
anticipating,  managing 
restructuring  with 
stakeholders confronted with a restructuring.  

concrete  actions  aimed  at 
to 
the 

and 
the  aim 

reacting 
to  help 

company 

restructuring 

framework  outlines  best  practices 

for 
The 
anticipating 
and 
minimising  their  impact  on  workers  and  social 
conditions.26  It  offers  guidance  to  companies, 
workers,  trade  unions,  employers'  organisations 
and  public  administrations  in  order  to  facilitate 
the  process  of  restructuring  for  businesses  and 
workers  via  better  anticipation  and  investment 
in  human  capital,  while  minimising  the  social 
impact.27 

restructuring 
process  

on  “A  shared 
commitment  for 
employment”  – 
2009:  “Checklist 
for 
Restructuring 
Processes”24  

2013 

Quality 
Framework 
Restructuring 

on 

the 
to 
European 
the 
The 

Communication 
from 
Commission 
the 
Parliament, 
Council, 
European 
Economic 
and 
Social  Committee 
and 
the 
Committee  of  the 
Regions, 
EU 
Quality 
Framework 
anticipation 
change 
restructuring. 
Brussels, 
13.12.201325 

for 
of 
and 

the 

manage 
socially 
responsible way which  could also be used  in the 
work of the EWCs 

restructuring 

in  a 

important  players 

in 
EWCs  are  seen  as 
transnational  restructuring.  The  Communication 
states that employees’ representatives, including 
through  EWCs,  are  vital  partners  of  company 
management  in  anticipating  and  managing  the 
development  of  jobs  and  skills  needs  and  in 
conducting particular restructuring operations. 
In  the  management  of  restructuring  processes, 
social  partners  and  sectoral  organisations  are 
asked  to  explore  and  negotiate  all  possible 
options  for  avoiding  redundancies  including  for 
example  to  foster  EU-wide  coordination  of  trade 
to  help  EWCs;  encourage  EU-level 
unions 
transnational 
negotiations 
restructuring; 
on 
professional transition policies.28 

the  event  of 
conduct 

negotiations 

in 

in 

the  EWCs  (which  often  relates  also 

Assessment  of  the  coherence  (in  bold  are  the  elements 
leading to the placement in the nominal scale)  
The  EWC  Directive  aims  to  support  the  work  of  EWCs  in 
managing  the  transnational  restructuring  through  clarifying  and 
developing  the  definitions  and  process  of  information  and 
to 
consultation 
transnational  restructuring).  It  aims  to  ensure  that  the 
information  and  consultation  procedures  in  the  EWCs  are 
undertaken  on  time  and  in  such  way  as  to  enable  an  in-depth 
assessment  of  possible 
impacts  and  ensure  meaningful 
consultations  between  the  management  and  labour  about  the 
possible  impacts.  The  Directive  also  puts  emphasis  on  the  spirit 
of  cooperation  in  the  information  and  consultation  procedures. 
These  elements  of  the  Directive  are  consistent  with  the 
processes  described  in  the  Checklist  to  ensure  that  the 
restructuring  processes  in  the  companies  are  managed  in 
socially responsible way.  
Highly consistent, mutually reinforcing 
The  EWC  Directive  aims  to  support  the  work  of  EWCs  in 
managing  the  transnational  restructuring  through  clarifying  and 
developing  the  definitions  and  process  of  information  and 
consultation 
to 
transnational  restructuring).  It  aims  to  ensure  that  the 
information  and  consultation  procedures  in  the  EWCs  are 
undertaken on time and in such way as to enable an in-depth 
assessment  of  possible  impacts  and  ensure  meaningful 
consultations between the management and labour about 
the possible impacts. The Directive also puts emphasis on the 
spirit  of  cooperation  in  the  information  and  consultation 
procedures.  The  Directive  thus  aims  to  strengthen  the  role 
and  capacity  of  EWCs  to  help  to  manage  the  transnational 
restructuring.  These  elements  echo  the  elements  of  the  Quality 
Framework of Restructuring encouraging the socially responsible 
way  to  manage  restructuring,  including  via  continuous  dialogue 
between  the  management  and  labour.  A  further  area  of 
development should be to promote the Quality Framework to the 
EWCs to use in their information and consultation procedures.  

the  EWCs  (which  often  relates  also 

in 

24 European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities (2009), Checklist on Restructuring Processes.  
25 COM(2013) 882 final, http://ec.europa.eu/social/main.jsp?catId=103&langId=en.  
26 http://europa.eu/rapid/press-release_IP-13-1246_en.htm.  
27 http://europa.eu/rapid/press-release_IP-13-1246_en.htm.  
28 http://ec.europa.eu/social/main.jsp?catId=103&langId=en. 

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2.4  Summary of key findings 

The Directive is highly coherent with the two other EU level legal instruments: 

  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  the  ones  in  the  Recast 
Directive.  

  Definitions of information and consultation are similar in Directive 2003/72/EC on 
European cooperative societies to the provisions in the Recast Directive with small 
adaptations  regarding  the  specific  situation  of  the  creation  of  a  European 
cooperative society.  

The Directive is partially coherent with the three other EU level legal instruments: 

 

In the Directive 98/59/EC on collective redundancies.  

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

 

I&C  definitions  in  the  Directive  2002/14/EC  on  information  and  consultation  of 
workers 

Possible  inconsistencies  with  the  existing  I&C  instruments  identified  relate  to  the 
Recast EWC Directive not including: 

  A list of (minimum) information to be provided to employees in I&C procedures as 
set  out  in  the  Directive  on  collective  redundancies,  Directive  on  transfer  of 
undertakings  and  Directive  on  the  information  and  consultation  of  workers 
providing  for  a  better  linkage  to  these  procedures  in  specific  cases  between 
national and transnational level,  

  A  specific  timeframe  for  the  I&C  procedures  as  specified  in  the  Directive  on 
transfer  of  undertakings’  (e.g.  ‘in  good  time  and  before  employees  are  directly 
affected’), 

  The  requirement  for  management  to  provide  an  official  answer  to  an  opinion 
formulated  by  the  EWC  as  set  out in  the  Directive  on  (national) information  and 
consultation  of  workers  or  indeed  to  consult  ‘with  a  view  to  reaching  an 
agreement’.   

The  EWC Directive is  highly  consistent with three  soft law instruments in  the area  of 
restructuring  policies  (i.e.  the  2005  Communication  on  restructuring,  the  2009 
Checklist for restructuring policies and the 2013 Quality Framework for Restructuring).  

Possible inconsistencies and issues of partial coherence can become problematic when 
they contribute to a lack of legal certainty or coherence with regard to the interplay of 
national  and  transnational  information  and  consultation  instruments  and  I&C  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  arguably  inform  and  consult  EWCs  first  on  such  issues.  However,  if 
national  transposition  legislation  linked  to  collective  redundancies  provides  strong 
consultation rights for workers (e.g. consulting ‘with a view to reach agreement’) this 
could  have  the  effect  of  undermining  the  role  of  the  EWC,  or  at  the  very  least 
rendering  the  interplay  between  transnational  and  national  consultation  more 
problematic. 

Similarly, in  cases  of transfers  of undertakings,  which  could in  certain  situations  also 
have transnational implications, the stipulation that consultation should take place ‘in 
good  time  and  before  employees  are  directly  affected’  could  similarly lead  to greater 
and  earlier  emphasis  being  placed  on  national  information  and  consultation,  at  the 
expense of the role of the EWC.  

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Overall, the existence of different definitions and timescales provided can – at the very 
least – contribute to greater legal uncertainty at company level, which may ultimately 
need  to  be  clarified  by  the  Courts  (thus  potentially  leading  to  lengthy  and  disruptive 
processes of litigation). 

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3 

Legal analysis of the national transposition of the Recast 
Directive  

3.1  Introduction 

The  national  transposition  laws  of  the  Recast  Directive  were  assessed  by  the 
evaluation team using the following analytical categories: 

  The national legislation meets the requirements of the directive 
  The  national  legislation  does  not  meet  the  requirements  of  key  substantive 

provisions. Key substantive provisions are considered to be: 

-  Opening  and  process  of  negotiations.  Article  5  clarifies  the  responsibility  of 
local  management  to  provide  the  information  allowing  negotiations  to  be 
opened with a view to setting up new European Works Councils. In relation 
to  the  composition  of  the  Special  Negotiating  Body,  the  Recast  Directive  is 
modified  to  one  representative  per  10%  portion  of  the  employees  in  a 
Member  State  in  which  at  least  50  employees  are  employed.  The  right  of 
employee representatives to meet without the employer present is clarified. 

-  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  on  setting  up  a  European  Works  Council  and  explicitly 
mentions  the  trade  union  organisations  among  the  experts  on  whom 
employees' representatives may call for assistance in the negotiations. 

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

-  General  principles  and  concepts  of  information  and  consultation.  Article  2 
adds a definition of information and brings the definition of consultation into 
line  with  that  of  more  recent  directives,  including  the  concepts  of  time, 
fashion and content appropriate to the information and consultation. 

-  Transnational  competence  of  the  European  Works  Council.  Article  1 
establishes the principle of the relevant level according to the subject under 
discussion. To achieve this, the competence of the European Works Council 
is limited to transnational issues, and the determination of whether an issue 
is  transnational  is  transferred  from  the  current  subsidiary  requirements  to 
Article  1,  so  that  it  can  be  applied  to  the  European  Works  Councils 
established by agreement. Art.1.4 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'.  However  Recital  16  of  the  Directive  seems  to  be 
broader  enough.  It  underlines  that  the  transnational  character  of  a  matter 
should  be  determined  by  taking  account  of  both  the  scope  of  its  potential 
effect, and the level of management and representation that it involves. For 

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this  purpose,  matters  which  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.  

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

-  Role  and  capacity  of  employees'  representatives.  The  obligation  on  the 
employees'  representatives  to  report  to  the  employees  that  they  represent 
has been moved from the subsidiary requirements of the Directive to Article 
10,  which  thus  deals  with  the  role  of  the  employees'  representatives  and 
their  protection.  The  competence  of  the  members  representing  the 
employees  on  the  European  Works  Council  to  represent  the  employees  of 
the  undertaking  or  group  of  undertakings  is  established.  The  possibility  for 
employees' representatives' to benefit from training without loss of salary is 
also clarified. 

-  Adaptation  clause.  The  agreements  pursuant  to  Article  6  must  include 
provisions  for  amendments  and  renegotiation.  Where  the  structure  of  the 
undertaking  or  group  of  undertakings  changes  significantly,  Article  13 
provides  for  the  agreements in  force  to  be  adapted  in  accordance  with  the 
provisions of the applicable agreement or, by default and where a request is 
made, in accordance with the negotiation procedure for a new agreement in 
which  the  members  of  the  existing  European  Works  Council(s)  are  to  be 
associated.  

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

  The national legislation does not meet the requirement of other provisions (not 

key substantive provisions outlined above). 

  The national legislation exceeds the requirements by providing additional details 
  The  national  legislation  exceeds  the  requirements  and  provisions  are  more 
favourable for the EWCs reps/workers than the provisions of the directive.  

In reading this assessment, the following key methodological remarks should be borne 
in mind: 

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  In  several  cases,  national  transposition  rules  included  most  of  the  relevant 
provisions  of  the  EWC  Directive,  but  did  not  explicitly  refer  to  one  or  several 
particular aspect of the Directive. In these cases, the assessment used was that 
the national law both meets and does not meet the Directive’s requirements.  

  In several cases, some of the relevant national provisions relating to the same 
aspect of the Directive were new and introduced after 2009,  and some already 
existed  in  the  pre-2009  laws.  In  these  cases,  the  assessment  was  that  the 
provisions are both old and new. 

The following sections assess the transposition of the Recast Directive in the four key 
areas: 

  Setting up of the EWCs (part 1), 

  The key concepts of information, consultation and transnationality (part 2),  

  The operation of the EWCs (part 3), 

  The role and protection of the employee representatives (part 4). 

Annex  2  provides  a  detailed  assessment  of  the  transposition  by  key  articles  of  the 
Directive, whereas Annex 3 provides a detailed text of the relevant national laws. The 
analysis  is  provided  of  EU-28  Member  State  national  laws,  as  well  as  the  analysis  of 
national laws in Norway, Iceland and Liechtenstein.  

The  evaluation  also  tested  whether  in  some  instances  the  provisions  of  Recast 
Directive  not  transposed  into  the  national  EWC  legislation  was  included  into  other 
national  legislation  (see  Table  4).  This  was  found  not  to  be  the  case  as  the  broader 
national legislation on worker information and consultation did not contain references 
to some provisions of the Directive.   

Table 4.  Additional checks of the national legislation  

 MS 

Area of the EWC Directive where the 
assessment was ‘not meeting’ the 
Directive provisions 

Other national legislation on worker 
information and consultation 

the 

key 

principle 

Luxembourg  Article  1.2  of  the  Recast  Directive 
stipulates 
of 
information and consultation insofar as 
“the  arrangements  for  informing  and 
consulting  employees  shall  be  defined 
and  implemented  in  such  a  way  as  to 
ensure 
to 
enable  the  company  to  take  decisions 
effectively. 

their  effectiveness  and 

The  national  EWC  transposition  law 
has  no  reference  to  the  arrangements 
for 
consulting 
employees 

informing 

and 

France  

the 

key 

principle 

Article  1.2  of  the  Recast  Directive 
stipulates 
of 
information and consultation insofar as 
“the  arrangements  for  informing  and 
consulting  employees  shall  be  defined 
and  implemented  in  such  a  way  as  to 
to 
ensure 

their  effectiveness  and 

The Labour Code and more especially Title III of 
Book  IV  of  the  Labour  Code  entitled  “European 
works  council  or  transnational  information  and 
consultation procedures of workers”29: does not 
the 
contain 
effectiveness principle enshrined in Article 1.2 of 
the EWC Directive 

transposing 

provisions 

any 

The Labour Code and more especially Title IV of 
Book  III  of  the  Second  Part  of  the  Legislative 
Part  of  the  Labour  Code  entitled  “European 
Works  Councils  or  information  and  consultation 
procedure  in  the  European-scale  companies”30: 
does not contain any provisions transposing the 
effectiveness principle enshrined in Article 1.2 of 

29 www.legilux.public.lu/leg/textescoordonnes/codes/code_travail/Code_du_Travail.pdf.  
30 
http://www.legifrance.gouv.fr/affichCode.do?idArticle=LEGIARTI000025578952&idSectionTA=LEGISCTA000
006177964&cidTexte=LEGITEXT000006072050&dateTexte=20150131. 

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enable  the  company  to  take  decisions 
effectively. 

the EWC Directive 

The  national  EWC  transposition  law 
does  not  contain  specific  provision 
about  the  effectiveness  of  information 
and  consultation  procedures.  French 
law does not use the same wording as 
nonetheless 
the 
recognises 
the 
consultation  must  happen  without 
prejudice 
employer's 
to 
responsibilities. 

but 
fact 

Directive 

that 

the 

the 

UK  

fail 

rules 

EWCs 

and 
apply. 

for  cases  where 

The  Recast  Directive  specifies  the  fall-
the 
back 
negotiations  on  the  establishment  of 
subsidiary 
the 
requirements 
These 
requirements,  applying in  the  absence 
of  an  agreement,  should  draw  a 
fields  where 
distinction  between 
information  is  required  and  those  for 
consultation, 
the 
and 
possibility of obtaining a response, and 
the  reasons  for  that  response,  to  any 
opinions expressed. 

provide 

Information  and  Consultation  of  Employees 
(ICE) Regulations31: ICE defines information and 
defines  consultation, it then  provides  details  on 
when  “information  and  consultation”  should  be 
of 
undertaken, 
no 
circumstances  when 
is 
appropriate, as distinct from consultation 

set 
information 

separate 

just 

but 

is 

law 

National  EWC  transposition 
is 
consistent  with  the  Recast  Directive  - 
there 
a  distinction  between 
consultation and information, but there 
is  no  clear  definition  regarding  when 
consultation  is  appropriate  and  when 
provision of information is appropriate. 

3.2  Part 1: Setting up the EWCs 

In  the  national  transposition  laws,  the  majority  of  countries  meet  the  relevant 
provisions in the Directive on the setting up of the EWCs. The key provisions examined 
here were: 

  Providing necessary information to start the EWC negotiations. This provision is 
important  because  in  situations  where  management  might  be  reluctant  to 
deliver information  (such  as  the number  of  employees in  different  EU  Member 
States),  it  is  more  difficult  to  employee  representatives  to  determine  whether 
thresholds for setting up an EWC are met, and the establishing of contact with 
relevant employee side counterparts can be more challenging. This provision is 
therefore  among  the  measures  aimed  at  encouraging  the  establishment  of 
further EWCs;  

  Rules  about  setting  up  and  operating  the  Special  Negotiation  Body  (SNB). 
These  rules  are  intended  to  support  the  representativeness  of  employees  on 
such  bodies  while  ensuring  the  number  of  individuals  involved  remains 
manageable  both  from  a  financial  and  practical  perspective.  Furthermore,  a 
right  is  provided  to  meet  without  management  to  allow  employee  side 
representatives to discuss and consolidate their negotiating positions;  

  Role  of  social  partners  in  the  negotiations.  Enhancing  the  role  of  the  social 
partners  through  the  requirement  to  inform  them  of  the  establishment  of  an 
SNB  means  that  where  appropriate  they  can  provide  additional  support  and 

31 http://www.legislation.gov.uk/uksi/2004/3426/contents/made.  

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advice,  as  well  as  being  informed  about  the  existence  of  EWCs  within  their 
sector. Entitlements to the use of experts is also clarified, which could support 
the  employee  side  with  additional  expertise  and  experience 
in  their 
negotiations;  

  The  contents  of  the  EWC  agreement.  New  provisions  aim  to  ensure 
representation  of  the  employee  side  which  represents  all  countries  where  the 
company is present (provided certain thresholds are reached); 

  The  contents  of  subsidiary  requirements.  This  is  of  relevance  as  it  sets  the 
framework  of  baseline  provisions  against  which  negotiations  take  place  and 
provide a ‘floor of rights’ should such negotiations fail to bear fruit.  

The  instances  of  exceeding  the  relevant  provisions  relate  to  instances  where  the 
national laws are more favourable to the EWC representatives / workers than the EWC 
directive:  

  In  two  countries  (Lithuania  and  Luxembourg)  the  national  rules  exceed  the 
requirements  of  the  Directive  and  are  more  favourable  for  the  EWC 
representatives/workers  than  the  provisions  of  the  Recast  Directive  by 
specifying  the  time  limit  for  information  transmission,  the  categories  of 
information (in addition to the number of employees) and the possibility to go 
to court if the information is not provided.  

  In  two  countries  (Romania  and  Sweden)  the  national  rules  exceed  the 
requirements  of  the  Directive  by  establishing  a  reserve  list  for  the  SNB 
members  and  additional  provisions for  SNB  membership in  cases  of  significant 
restructuring.  

  In four countries (Austria, Germany, Hungary and Lithuania) the national rules 
exceed the requirements of the Directive and are more favourable for the EWC 
representatives/workers  than  the  provisions  of  the  Recast  Directive  by 
establishing  the need to inform  also  the  national  social  partners, introducing a 
time limit for the information procedure to take place and the official publication 
of the information.  

In  one  country  (Italy)  the  national  rules  exceed  the  provisions  of  the  Directive  by 
specifying  more  detail  in  relation  to  the  balance  of  representation.  However,  the 
extent  to  which  this  is  more  favourable  to  EWC  representatives  /  workers  is 
questionable.  

The  instances  of  not  meeting  the  relevant  provisions  relate  to  a  particular  aspect  of 
the Directive not being explicitly included in the national transposition law. 

The key substantive requirements of the Directive are not met as follows:  

  In  two  countries,  the  national  rules  do  not  meet  the  key  substantive 
requirements  of  the  Directive  (Greece  and  Iceland)  due  to  not  containing  the 
specific  provisions  about  the  information  about  the  start  of  the  EWC 
negotiations to be given to the European social partners.  

  In one country, the national rules do not meet key substantive requirements of 
the Directive (Denmark) due to not containing the specific provisions about the 
meeting of the SNB without the presence of central management.  

Other, non-substantive requirements of the Directive are not met as follows: 

  In  four  countries,  the  national  rules  do  not  meet  other  requirements  of  the 
Directive  (Estonia,  Poland,  Portugal,  the  UK)  as  they  do  not  have  specific 
provisions about all the aspects of the fall-back rules of the Directive.  

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In the survey of the national social partners32, the perceived impact on the actions of 
management  of  the  ‘new  rules’ introduced  by  the  Recast Directive  on  the  creation  of 
EWCs  in  comparison  to  the  1994  Directive.  Some  88%  of  national  social  partners 
agree that the Recast Directive has not brought about a change in the willingness and 
interest of employers to set up an EWC. Specifically, a social partner based in Belgium 
found  it  decreases  employers’  willingness  and  interest.  The  Croatian  and  Norwegian 
social partner found it had increased employers’ willingness and interest to set up an 
EWC. 

The perceived impact in terms of employee willingness/interest to set up an EWC has 
been somewhat greater. Less than half of respondents (40%, especially trade unions) 
found  it  had  increased  the  willingness  and  capacity  of  employees  to  set  up  an  EWC, 
while  60%  (mostly  employers’  organisations)  believed  there  was  no  noticeable 
change.  None  of  the  respondents  found  the  Recast  had  decreased  willingness  and 
capacity for employees to set up an EWC. 

This  could  therefore  be  an  indication  that  from  the  trade  union  side  the  enhanced 
rights  to  obtaining  information  are  seen  to  be  somewhat  useful,  whereas  from  the 
employer side this may be reflective of a view that relevant information has generally 
been provided when requested. 

Figure 3.  National social partners’ perceived impact of the Recast Directive on the 

creation of EWCs (in terms of willingness and support of management to set 
up EWCs / employees willingness and capacity to request the set-up of an 
EWC) 

In terms of employees

40%

60%

 In terms of employers

8%

88%

4%

They have increased the willingness and interest of employers to set up an EWC /  They have increased
the willingness and improved the capacity of employee representatives to request the set-up of an EWC

The situation has remained the same, no noticeable change

They have reduced the willingness and interest of employers to set up an EWC

Source: ICF survey based on 52 national social partner responses. 

Respondents  were  asked  for  their  opinions  of  the  impact  of  the  new  rules  on  the 
negotiation  process  and  specifically  on  the  cost  of  the  negotiation  process.  The  first 
figure  shows  that  a  little  bit  more  than  a  third  of  social  partners  do  not  think  the 
average costs have changed (35%) and many do not know (44%). In total, nine social 
partner organisations (17%) indicated that costs have increased, explaining that more 
rights for employees come with more costs for the employer. A German and a Belgian 
social  partner  find  costs  have  decreased  (4%).  The  German  social  partner  explains 

32  52  responses  from  national  social  partners.  Respondents  are  based  in  Austria,  Belgium  (3),  Bulgaria, 
Croatia, Denmark (4), Estonia, Finland (5), France (4), Germany (2), Hungary (2), Ireland, Italy (2), Latvia, 
Malta, the Netherlands (8), Norway (2), Poland, Portugal, Slovakia (2), Slovenia, Spain (4), Sweden (3) and 
across multiple countries (1).  

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that  the  increased  clarity  in  the  Recast  Directive  has  led  to  greater  efficiency  in 
negotiations. 

Secondly,  national  social  partners  were  asked  about  the  length  of  the  negotiation 
processes following the new rules. As Figure 4 shows, the responses are quite similar 
to those regarding the costs of the negotiations: more than one-third believe this has 
remained  the  same  (37%),  many  do  not  know  (42%).  Four  stakeholders  (including 
two  German  and  one  Swedish  social  partner)  believe  the  length  of  negotiations  has 
decreased  (8%).  Seven  national  social  partners  (including  Belgian  and  Finnish  social 
partners) believe the length has increased (13%). 

As will be further elaborated below, in practice, the number of individuals involved in 
negotiating  processes  has  declined,  but  this  has  been  largely  due  to  companies  with 
smaller  numbers  of  employees  setting  up  EWCs.  At  the  same  time,  the  duration  of 
negotiations  has  increased.  This  could  go  some  way  towards  explaining  the  social 
partner responses obtained, although it is also clear that many organisations have no 
detailed knowledge on this issue. 

Figure 4.  National  social  partners’  perception  of  the  impact  of  the  new  rules  on  the 

average costs and length of EWC set-up negotiation processes 

The length of negotiation period to the set-up of new
EWCs

13%

37%

8%

42%

The average cost of EWC set-up negotiation processes

17%

35%

4%

44%

Have increased

Have remained the same

Have decreased

Don't know

Source: ICF survey based on 52 national social partner responses. 

3.3  Part 2: Definition of the concepts of information, consultation 

and transnational issues 

The key concepts and definitions of information, consultation and transnational issue – 
of  the  Recast  Directive  have  been  implemented  correctly  in  all  Member  States.  
Clearer  definitions  in  this  area  were  intended  to  improve  the  effectiveness  and 
efficiency  of  the  operation  of  EWCs  and  enhance  legal  certainty  with  regard  to  the 
subject matters and processes for transnational information and consultation. 

The majority of Member States have implemented these definitions by transposing the 
text  of the Directive  verbatim.  There  were  no  instances identified  where  the  national 
laws did not meet the requirements of the Directive.  

In  the  case  of  the  definition  of  information,  the  Czech  Republic  exceeds  the 
requirements of the Recast Directive as  ‘information’ may also lead to the expression 
of  an  opinion  and  it  precisely  sets  out  that  information  shall  take  place  before  a 
management decision is implemented.  

In relation to the definition of consultation, three Member States (the Czech Republic, 
Estonia and Germany) implemented provisions exceeding the standards of the Recast 
Directive  by  defining  that  consultation  processes  end  with  a  reasoned  opinion  by 

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management  referring  to  the  opinion  expressed  by  workers’  representatives  on  a 
specific issue under consultation.  

The  definition  of  ‘Transnational  issues’  is  given  a  particular  geographic  scope  in  the 
Recast  Directive.33  However,  decisions  that  concern  the  undertaking  as  a  whole  may 
need  to  be  defined  more  clearly  to  improve  its  understanding.  In  this  regard  five 
Member  States  (Belgium,  Czech  Republic,  Finland,  Hungary  and  Romania)  chose  to 
include  in  their  definition  a  reference  to  issues  that  significantly  affect  workers’ 
interests  and  include  factors  such  as  potential  effect  and  level  of  management  at 
which  the  decision  is  taken,  as  well  as  transfer  of  business  between  the  Member 
States as indicators for what constitutes a ‘transnational issue’. It is not clear from the 
analysis it  has  been  possible  to  carry  out  as  part  of  this  study  whether  such  greater 
specification of the concept has assisted in clarifying when EWC need to get involved 
in  these  countries  (compared  to  others  where  national  law  have  not  included  such 
further clarification). 

Finally,  it  should  be  highlighted  that  the  transposition  of  the  Recast  Directive  has 
considerably renewed these concepts and in all cases (apart from the Czech Republic 
for information and consultation) it has led to new national regulatory provisions. 

All  national  ministry  representatives  responding  to  the  survey  indicated  the 
articulation  in  the  Recast  Directive  had  not  led  any  conflicts  between  national  and 
European information and consultation procedures. France specifically pointed out that 
there  is  no  clear  priority  between  national  and  EWC  information  and  consultation 
procedures  as  both  are  autonomous  procedures,  but  this  did  not  lead  to  any  issues. 
More  specifically,  13  out  of  23  respondents  found  that  the  Recast  EWC  Directive 
provided  more  protective  conditions  for  workers  than  existing  national  provisions 
implementing Directive 2002/14/EC (Austria, Cyprus, Estonia, Spain, Finland, Ireland, 
Latvia,  Italy,  Lithuania,  Malta,  Poland,  Romania  and  Sweden).  Four  Member  State 
representatives found that the Recast Directive provided less protective conditions for 
workers  than  their  national  law  (Belgium,  Bulgaria,  Luxembourg  and  Slovenia).  The 
Czech  Republic,  Germany  and  the  UK  pointed  out  it  was  neither  more  nor  less 
protective  than  its  national  law.  France,  Liechtenstein  and  Slovakia  either  did  not 
answer or noted it did not have enough experience in this area to assess this. 

In  the  European  Labour  Law  Network  (ELLN)  survey34,  two-thirds  of  respondents 
agreed  that  the  Recast  had  improved  legal  certainty  regarding  the  timing  of 
information and consultation procedures. Of the one-third who did not agree (Austria, 
Sweden,  Latvia,  France,  Greece,  Malta,  Romania  and  the  UK)  some  pointed  out  that 
definitions  in  this  regard  were  often  still  open  to  interpretation,  while  Liechtenstein 
believed it was too early to assess this. 

In  the  ELLN  survey,  over  half  (55.6%)  of  the  27  respondents  found  that  the  Recast 
had  provided  for  enhanced  information  and  consultation  rights  for  workers  than  was 
previously  the  case.  Those  who  found  the  Recast  provided  for  less  protective 
conditions  (Austria35,  the  Netherlands,  Croatia,  Sweden,  France,  Italy,  Luxembourg, 
Portugal,  Romania  and  the  UK)  considered  that  their  national  law  provides  more 

33 Definition of Transnational Issues: Information and consultation of employees must occur at the relevant 
level of management and representation, according to the subject under discussion. To achieve that, the 
competence of the European Works Council and the scope of the information and consultation procedure for 
employees governed by this Directive shall be limited to transnational issues. 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. (Art.1.3-1.4, rec.12,15,16). 

34 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. 
35 Which is contradicting the ministry representative view from Austria expressed above.  

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protective conditions, or in the case of Luxembourg the provisions in national law and 
the  Recast  are  similar.  Liechtenstein  indicated  it  found  this  difficult  to  assess. 
Similarly,  the  UK  had  also  pointed  out  it  depends  on  ones  perspective  whether  the 
Recast provides for more or less protective conditions for workers. This follows from a 
more general description regarding the information and consultation procedure. 

Overall, it therefore appears that ministry and academic experts consider that the new 
and enhanced definitions contained in the Recast Directive have contributed to greater 
legal  certainty.  The  extent  to  which  this  is  in  fact  the  case  on  the  ground  will  be 
discussed in more detail in section 6 below. 

3.4  Part 3: Operation of the EWCs  

In  the  national  transposition  laws,  the  majority  of  countries  meet  the  relevant 
provisions in the Directive on the operation of the EWCs.  

The instances of exceeding the relevant provisions related to two countries, where the 
national  rules  exceed  the  requirements  of  the  Directive  (Germany  and  Spain) due  to 
the national laws specifying more extensively the conditions for the adaptation clause 
to be applied.  

The  instances  of  not  meeting  other,  non-substantive  provisions  relate  to  a  particular 
aspect of the Directive not being explicitly included in the national transposition law: 

  In one country, the national rules do not meet the requirements of the Directive 
(Bulgaria) due to the national laws not containing provisions about the number 
of  representatives  on  the  Select  Committee  or  the  absence  of  the  rules 
specifying the working conditions for the Committee.  

  In  four  countries,  the  national  rules  do  not  meet  the  requirements  of  the 
Directive  on  the  general  principle  of  effective  information  and  consultation 
(Finland,  France,  Luxembourg,  and  the  Netherlands).  This  is  because  no  such 
general principle is contained in the national law (Finland, France, Luxembourg, 
and Netherlands).   

In  the  survey,  national  social  partners  were  also  asked  to  indicate  how  the  Recast 
Directive affected the practical operation of the EWCs, following the introduction of the 
Recast’s  new  rules  as  opposed  to  the  1994  Directive.  More  than  one-third  of  the 
respondents  identified  with  the  statement  that  following  transposition  of  the  Recast, 
employee representatives were not empowered in a sufficient manner (38%). Slightly 
fewer  respondents  thought  the  rules  following  the  Recast  empowered  employees 
sufficiently (37%). Respondents identified most with the statement that the new rules 
have  provided  legal  clarity  and  certainty  (40%,  mostly  trade  unions).  Respondents 
identified  least  with  the  statement  that  the  new  rules  had  reduced  burdens  on 
employers  (1  of  52:  a  German  social  partner).  On  the  contrary,  almost  one-third  of 
the  respondents (16,  or  31%) indicated  that  the  new  rules  had  not  reduced  burdens 
on employers (mostly employers’ organisations). 

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Figure 5.  National  social  partners’  perceived  impact  of  the  Recast  Directive  on  the 

practical operation of EWCs (n=52) 

They have provided legal clarity and certainty

They have not empowered employee representatives in
a sufficient manner

They have empowered employee representatives

They have not reduced the burdens on employers

They have not managed to provide the legal clarity and
certainty needed

None of the above

6%

They have reduced the burdens on employers

2%

40%

38%

37%

31%

25%

Source: ICF survey based on 52 national social partner responses. A respondent could identify with multiple 
categories. 

3.5  Part 4: The role and capacity of employee representatives 

In  the  national  transposition  laws,  the  majority  of  countries  meet  the  relevant 
provisions of the Directive on the role, protection and training of EWC members.  

The  instances  where  relevant  provisions  exceed  the  requirements  of  the  Directive 
relate  to  eight  countries  (Austria,  Belgium,  Czech  Republic,  Italy,  Lithuania,  Poland, 
Portugal and Norway) the nature of the means for the EWC members to carry out their 
duties.  This  was  more  favourable  to  the  EWC  representatives  than  the  Directive 
requirements.  Also,  three  countries  (Finland,  Hungary  and  Italy)  provided  for  more 
specific additional provisions on the contents of training and the rate of remuneration 
during the training. These additional provisions are not necessarily more favourable to 
the EWC representatives than the requirements of the Directive.  

The  instances  of  not  meeting  the  relevant  provisions  relate  to  a  particular  aspect  of 
the Directive not being explicitly included in the national transposition law.  

In one country (the UK) national law refer to the right to training in general but do not 
include  a  specific  reference  to  training  without  loss  of  wages  (which  is  a  key 
substantive provision of the Directive). As will be further elaborated below, the specific 
right  to  training  without  loss  of  wages  has  had  an  impact  on  EWC  agreements  and 
access to such rights in practice. 

3.6  Analysis of the national case law  

For the period of 2010 to 2015, the research identified ten EWC relevant national legal 
cases. Most cases occurred in France and Germany, in line with the fact that most of 
the EWC agreements are implemented under the German or French jurisdiction.  

While the number of court cases currently identified remains rather low, it cannot be 
taken  as  an  indicator  of  whether  the  rules  of  the  Recast  Directive  have  considerably 
improved  legal  certainty in  comparison  to  the  “old”  provisions.  We  do  not  dispose  of 
information  of  how  many  cases  were  brought  in  national  courts  before  and  after  the 

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Recast.  In  addition,  a  number  of  court  cases  that  were  identified  in  the  Commission 
impact assessment in 200836 relate to the “old” provisions.  

However the recent cases highlight a number of issues and legal uncertainties relating 
to the following aspects: 

  Installation of an EWC 

  Links of national and European level consultation in particular timing 

  Transnational issue definition and possible I&C subjects 

  Communication between EWC and national level employees 

  Enforcement rights. 

The following table provides an overview of the recent national case law, followed by 
the  analysis  of  key  rulings  by  thematic  areas  of  the  EWC  Directive.  Additionally,  the 
UK  indicated  that  since  the  UK  regulations  transposing  the  provisions  of  the  Recast 
Directive  came  into  effect,  the  Central  Arbitration  Committee  has  considered  eight 
complaints.  Four  of  these  were  withdrawn,  two  led  to  a  decision  of  the  Central 
Arbitration Committee and two are pending in 2016.   

Table 5.  Overview of the national case law (2010-2015)  

MS 

Year 

Name  

Spain37 

2014 

Tenneco  

Key  provisions  of  the 
Recast 
Directive 
concerned in the case  
Invalid consultation 

Spain38 

2014 

Coca Cola  

Invalid consultation   

France39 

2011 

GDF Suez 

Links  between  national 
and European level 

France40 

2014/2015 

Transdev Group  Definition 

of 

France41 

2013 

Peugeot  

France42 

2014 

Manpower 

Germany43  2012 

Visteon 

Germany44  2014 

A. Group 

Germany45  2013 

Amcor  

transnational issue 

Links  between  national 
and European level 
Installation of EWC 

Information 
Consultation/ 
Enforcement 

EWC 

Communication 
between 
employees 
Communication 
between 
employees 

EWC 

& 

and 

and 

Outcome 

a 

a 

shall 

shall 

consultation 

consultation 

process 
consider 

process 
consider 

In 
management 
alternative solutions 
In 
management 
alternative solutions 
National  and  EU  level  I&C  shall  take 
place simultaneously  
Hypothetical  impact  on  the  whole 
undertaking  of  a  measure  does  not 
make it a transnational issue 
National  and  EU  level  I&C  shall  take 
place simultaneously  
Free choice of law to govern the EWC 
agreement 
German  law  does  not  foresee  to 
invalidate/  or  stop  the  managerial 
decision  as  long  as  the  consultation 
was not correctly implemented 
No priority/ superiority of face to face 
transmission of outcomes of I&C EWC 
procedure 
EWC  cannot  directly  communicate 
outcomes to the entire workforce if a 
worker  representative  body  was  in 

36 European Commission, Impact assessment of the European Works Council Directive, SEC(2008) 2166.  
37 http://www.ewc-news.com/en012014.htm, 16.08.2015. 
38 Spanish National Court, Social Chamber, Madrid, Resource no: 79/2014. 
39 French High Court, Paris, 11/00433. 
40 French High Court, Nanterre, 14/02861, Court of appeal of Versailles, 21 May 2015, No. 14/08628. 
41http://www.franceinfo.fr/sites/default/files/2013/01/29/875795/pdf/fichier/arr%C3%AAt_PSA.pdf, 
02.08.2015. 
42 District Court of Paris, TGI de Paris, interim order, 17 July 2014. 
43 German District Court, Amtsgericht Köln 5 BV 208/11. 
44 State Labour Court Baden-Württemberg of 02.10.2014, 11 TaBV 5/14,  http://openjur.de/u/770098.html, 
State Labour Court Lörrach of 08.04.2014 – 4 BV 7/13.  
45 http://www.ewc-news.com/en032013.htm, 16.08.2015. 

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MS 

Year 

Name  

Key  provisions  of  the 
Recast 
Directive 
concerned in the case  

Outcome 

UK46 

2013 

British  Council, 
CAC 

Consultation, 
Transnationality 

place 
Pay  policies  shall  be  excluded  from 
I&C  procedures  of  EWCs;  EWC 
cannot  consult  on  issues  that  fall 
under  the  competence  of  national 
I&C 

3.6.1  Installation of EWCs 

In  one  French  case  (Manpower)  a  French  trade  union  aimed  to  enforce  that  an  EWC 
shall be established under French law. However, the court ruled that management had 
rightly  appointed  its  British  subsidiary  to  negotiate  the  EWC  agreement  under  the 
British  law.  The  Recast  Directive  provides  several  orientations  in  this  respect  and 
normally it shall be the country where central management is located which provides 
the legal basis for the agreements. If central management is located outside the EU, 
the  place  shall  be  the  representative  management  for  the  EU,  otherwise  the 
establishment with the highest number of employees. However, this rule only helps to 
determine  the  relevant  partner  for  workers  representatives  and  define  central 
management.  This  could  indicate  that  in  our  assessment,  in  principle,  the  Directive 
remains silent on which law shall be chosen to govern the negotiations or the national 
jurisdiction governing the EWC agreement. It seems to remain under the discretion of 
the negotiating parties to make this choice.  

3.6.2  Consultation procedures 

The  cases  from  Spain  (Tenneco  and  Coca  Cola)  on  invalid  consultation  procedures 
concerned the interpretation of the timing of I&C procedures. In both cases, it seemed 
that central management had already taken its decision firmly on the measure under 
discussion  (a  closure  of  plants  and  transfer  of  business  between  Member  States). 
Thus, trade unions maintained that the I&C procedures could be no longer regarded as 
efficient  and  no  true  dialogue  could  have  been  developed  in  such  a  case. 
Consequently,  the  court  ruled  that  I&C  procedures  shall  take  place  with  an  actual 
possibility  to  discuss  effects  and  seek  possible  alternatives  to  ensure  the  I&C 
procedures are useful and efficient. This interpretation by the Spanish Courts may be 
considered to go beyond the provisions of the Recast Directive. Its definition is implicit 
on timing and it does not say explicitly that I&C takes place before a measure is taken 
and  that  management  shall  seek  alternatives.  The  Directive  also  specifies  that 
management  may  take  the  EWC’s  views  into  account  without  prejudice  to  their 
obligations.  

3.6.3  Links between national and European level consultation 

There are two court cases that deal with the issue of linking national and transnational 
levels of consultation.  

In  the  two  French  cases  concerning  restructuring (GDF  Suez  and  Peugeot) the  ruling 
was  that  that  the  national  level  and  transnational  levels  shall  be  consulted 
simultaneously.  All  consultation  procedures  must  be  correctly  carried  out  at  all levels 
before  a  decision  may  be  implemented.  In  the  case  of  Peugeot,  the  Court  further 
stated  that  the  establishment  level  works  council  could  await  the  outcome  of  the 
transnational  level  procedure  before  giving  an  opinion.  Either  way,  both  level 
consultation  procedures  must  be  completed  before  management  may  further 
implement  a  measure.  This  outcome  provides  for  complementarity  at  both  levels.  It 

46 http://www.ewc-news.com/en022013.htm, 16.08.2015. 

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could also lead to a more strategic way of organising consultations in such a way that 
different level representation bodies assess the different aspects of the measure or to 
ensure  that  this  could  also  be  carried  out  jointly.  This  interpretation  would  certainly 
improve the efficiency of I&C procedures at all levels.  

3.6.4  Transnational issues and possible I&C matters 

There are two cases in which the Court (in case of the UK it is the Central Arbitration 
Council) had to rule over issues at stake on whether they were transnational.  

In the French case (Transdev), it concerned the measure of a payment advance which 
led to the commencement of the procedure of insolvency of a subsidiary of the French 
part  of  the  Community undertaking.  The  EWC  claimed it  should  have  been  consulted 
on  the  matter.  The  Court  assessed  in  its  decisions  (first  instance  and  appeal)  both 
factors to determine whether an issue is of transnational nature:  

 

 

the geographical limit – has to involve two Member States; and  

the factor that it shall affect the group as a whole.  

While  the  first  factor  could  be  quickly  excluded,  the  second  factor  lead  to  further 
discussions. In order to determine whether a measure could impact the company as a 
whole  the  judges  also  referred  to  the  “significant  impact  of  EU  workforce  interests” 
and  “substantial  changes  in  work  organisation”.  The  EWC  agreement  combined  the 
definitions of the Directive by stating that transnational  defines the questions relating 
to at least two sites in two different Member States or questions which, regardless of 
the  number  of  Member  States  involved,  are  of  significance  for  European  workers 
concerning  the  scale  of  their  potential  impact  or  the  transfer  of  activities  between 
Member States.  

For this assessment, factors such as the size of the workforce of the French subsidiary 
were  used  and  group  company  level  plans  of  restructuring  to  assess  scale  of  their 
potential impact. The workforce of the subsidiary only represented 2.5% of the overall 
workforce  in  the  EU  and  the  restructuring  plans  did  not  refer  to  France.  In  addition, 
the Court held that the advancement of a payment as such did not produce an impact 
on a European scale thus a link to “significant impact” and transnational matters could 
not be made. The Court concluded that the measure was solely of national nature and 
management did not need to consult the EWC.  

However,  the  judges  did  state  that  while  this  measure  may  lead  to  important 
consequences  and  potential  impact  for  the  European  workforce,  at  that  stage, 
however  this  can  only  be  regarded  as  a  hypothesis  and  cannot  be  proven.  This  last 
note  makes  it  clear  that  in  some  cases  of  restructuring  the  EWC  cannot  be  properly 
consulted  at  an  early  stage.  The  notion  of  restructuring  and  potential  transnational 
impact  may  be  further  discussed  at  the  EU  level  in  a  guidance  note  to  make  I&C 
procedures more efficient in particular at an early stage. This case also highlights why 
national  and  European  level  I&C  are  closely  linked  because  it  is  important  that  both 
levels are aware of measures discussed at all levels of the establishment. Sometimes 
the  national  company  strategy  (in  particular  in  the  headquarter  country)  may  only 
impact much later on the European workforce. 

In  the  second  case  involving  an  undertaking  in  the  UK  (British  Council,  CAC),  the 
Arbitration  Council  did  not  decide  as  such  whether  the  measure  was  of  transnational 
nature but it focussed on the subject matter of the measure in question (which related 
to pay policies). In addition, this case can also be linked to the issue of  the linkage of 
national  and  European  competence  of  workers  representation  bodies.  The  Council 
argued that because pay policies are excluded from regulation at EU level it cannot, by 
consequence, also be a transnational subject matter for the EWC. As a result, it is only 
the  national  level  representation  bodies  to  be  consulted  on  such  a  measure.  Even  if 
the  matter  may  be  of  transnational  interest,  the  EWC  cannot  be  competent  and  is 

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excluded from such I&C. The link between the scope of the EU treaties and the scope 
in this respect of EU Directives poses the following questions: 

  Are  there  subjects  that  by  nature  can  be  excluded  from  transnational  I&C 
procedures  if  the  parties  did  not  expressly  include  the  matter  in  their 
agreement?  

  In  addition,  while  only  the  national  level  may  be  competent  but  the  measure 
still produces a transnational and significant impact for the European workforce, 
shall the transnational level EWC still be left out from the I&C procedures?  

The Recast Directive remains indeed silent on these points.  

3.6.5  Communication  between 

the  EWC  and 

the  national 

level 

representatives  

The  two  German  cases  dealt  with  the  communication  of  the  outcomes  of  an  I&C 
procedure from the EWC to national worker representation bodies.  

In  the  case  of  the  A.  Group,  two  members  of  the  EWC  Select  Committee  wished  to 
present the outcomes of the I&C procedure in person locally at a plant site. However, 
management  refused  to  cover  the  costs  for  such  travel  and  also  did  not  see  any 
reason  why  both  of  the  representatives  had  to  carry  out  such  a  task.  It  was  further 
argued  that  only  Select  Committee  members  shall  carry  out  such  information  of  the 
outcome. The Court ruled that the German transposition text does say that only Select 
Committee  members  can  do  so  but  any  member  of  the  EWC  can  inform  national 
employee  representation  or  workforce.  There  is  no  primacy  either  of  the  fact  that 
information shall be given in person and not via video conferencing.  

In the second case (Amcor), the EWC intended to communicate with national workers 
representatives via the intranet webpage. The Court ruled that there is no immediate 
right  to  communicate  with  the  workforce  directly  if  the  national  workforce 
representation  bodies  were  in  place.  In  the  German  context,  information  must  be 
provided  for  the  relevant  workers  representatives  and  shall  not  immediately  be 
communicated to the entire workforce. This ruling thus delimits the possibility of direct 
communication  with  the  workforce  which  seems  however  within  the  intentions  of 
Article  6.1  (c)  of  the  Recast  Directive  which  does  refer  only  to  workers 
representatives.  

3.6.6  Enforcement 

In the German case Visteon the Court declared the consultation procedure invalid and 
the EWC claimed that the Court shall stop the measure in question for as long as that 
the  consultation  was  not  correctly  carried  out.  However,  such  a  measure  to  enforce 
the EWC rights does not exist under the German law. While German law foresees such 
a  measure  for  breaches  of  national  level  I&C  procedures  it  has  not  been  applied  for 
transnational  I&C  procedures.  German  law  foresees  in  cases  of  breaches  only  a 
monetary fine. In the case in question the Court ordered a fine of 15,000 Euros. This 
decision  has  been  much  criticised  arguing  that  such  low  fines  encourage  the 
undertakings not to carry out I&C procedures. It can be debated whether this sanction 
is an appropriate measure to ensure the compliance and dissuasiveness not to comply. 
The problem of effective, proportionality and dissuasiveness of sanctions has also been 
discussed in a recent EU policy paper by the ETUI47.  

47  Jagodzinski,  R.  (2014),  Implementation  of  enforcement  provisions  of  the  European  Works  Council 
Directive: are sanctions really effective, proportionate and dissuasive?, ETUI - policy papers. 

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3.6.7  Findings from the interviews  

All  but  one  of  the  European  social  partners  interviewed  (14)  were  not  aware  of  any 
disputes  between  the  management  and  employees  over  the  new  provisions  of  the 
Directive. Hence, the general view was that the level of disagreements has remained 
the  same  following  the  Recast  Directive.  Only  one  social  partner  organisation  was 
aware  of  the  legal  dispute  over  the  operation  of  the  new  Directive  (EWC  Eiffage). 
However,  the  interviewees  pointed  out  (a  number  of)  disagreements  between 
management and employees over: 

  Training – who should decide the contents of the training.   

  Transnationality – the definition of the issues which should be covered by EWC 
and  after  the  Recast  Directive,  the  number  of  disagreements  in  this  regard 
increased due to point 16 of the DIR. 

  Consultation  –  how  long  should  it  take  to  conduct  the  consultation  (in-depth 
assessment),  how  much information  should  be  provided,  how  many  meetings, 
how much they have time to react.   

  Expert – who should choose the advisor, how long he should advice, who pays 

for him.    

3.7  Summary of key findings  

The  analysis  below  was  undertaken  by  the  ICF  team  during  the  evaluation  and  does 
not reflect the official position of the European Commission.  

3.7.1  Key findings of the transposition analysis  

A  total  of  17  Recast  Directive  provisions  were  assessed  in  the  legal  transposition 
analysis  at  the  national  level  (see  Tables  6  and  7).  In  the  majority  of  cases,  the 
national regulations met the provisions of the Directive  by transferring the text of the 
Directive  verbatim  or  using  very  similar  wording  to  transpose  the  spirit  of  the 
Directive.   

15  Member  States  additionally  introduced  more  detailed  provisions  than  those 
foreseen in the Directive  while  remaining  within  the  Directive.  Such  regulations  were 
rated  as  exceeding  the  requirements  of  the  Directive.  This  was  most  frequently 
observed in the Czech Republic,  Hungary, Italy and Lithuania (in each country, three 
provisions of the Directive were exceeded).  

The  key  areas  where  national  rules  exceeded  the  provisions  of  the  Directive  are  as 
follows (see Table 6): 

  During  the  process  of  negotiations  to  establish  the  EWC  –  an  obligation  to 
inform  not  only  the  European,  but  also  the  national  social  partners  (Austria, 
Germany);  the  possibility  to  go  to  Court  if  the  management  does  not  provide 
the required information (Lithuania, Luxembourg); establishing a reserve list for 
the  SNB  members  (Romania)  and  additional  wider  provisions  for  the  wider 
composition of the Special Negotiating Body in cases of significant restructuring 
(Sweden). All these provisions are more favourable to the EWC representatives 
/ workers.  

  More  extensive  provisions  of  means  for  the  EWC  members  to  perform  their 
duties – guaranteed access for EWC members to local establishments (Austria, 
Belgium);  specific  details  on  defining  the  means  (Czech  Republic,  Portugal, 
Norway);  duration  of  annual  leave  for  EWC  members  (Italy).  All  these 
provisions are more favourable to the EWC representatives / workers.  

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of a European Works Council 

  In  relation  to  the  training  of  EWC  members  –  defining  the  rate  for  pay  during 
training (Finland,  Poland),  contents  of  training  (Italy).  These  provisions  do  not 
necessarily per se are more favourable to the EWC representatives / workers. 

  More generous conditions to initiate the adaptation clause (Germany, Spain).  

  More  extensive  definitions  of  consultation  (Czech  Republic)  and  transnational 
matters  (Hungary,  Romania).  All  these  provisions  are  more  favourable  to  the 
EWC representatives / workers.  

In  contrast,  in  12  EEA  countries  at  least  one  national  rule  was  assessed  as  not 
meeting  all  the  requirements  of  the  Directive.  However,  only  in  4  EEA  countries  at 
least  one  of  the  key  substantive  provisions  of  the  Directive  was  not  transposed 
correctly.  In  other  countries,  a  relatively  minor  non-substantive  provision  (or  part  of 
the provision) was not transposed.  

The  key  areas  of  national  regulations  not  meeting  the  provisions  in  the  key 
substantive provisions of the Directive are as follows (see Table 6): 

  No  specific  reference  ensuring  the  SNB  right  to  meet  without  management 

(Denmark); 

  No  specific  reference  to  the  requirement  to  provide  information  to  European 
social partners on the composition of the special negotiating body and the start 
of the negotiations (Greece, Iceland); 

  No specific reference to ensuring EWC members receive training without loss of 

wages (UK). 

The  key  areas  where  other  but  not  key  substantive  provisions  (as  currently  defined) 
were not transposed in the Member States laws are as follows:  

  Lack  of  restriction  of  the  number  of  the  standing  committee  members  which 

could also be interpreted as exceeding the requirements (Bulgaria); 

  No  specific  reference  to  the  subsidiary  requirements  or  not  all  aspects  of 

subsidiary requirements included (Estonia); 

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

  No  specific  reference  to  regularity  of  the  select  committee  consultations 

(Poland); 

  No specific reference to SNB composition (Portugal).  

In  three  countries  (Belgium,  Italy  and  Norway)  the  transposition  of  the  Recast  was 
undertaken  on  the  basis  of  collective  agreements  between  the  social  partners.  This 
method  of  transposition  did  not  lead  to  instances  of  incorrect  transposition.  The 
stakeholders  consulted  in  this  evaluation  (independent  labour  law  experts,  national 
social  partners  and  the  Ministry  representatives)  also  did  not  identify  challenges 
associated with this form of transposition.   

Table 6.  Summary assessment of the national legal transposition  

 MS 

Total 
number of 
provisions 
assessed 

Austria 

Belgium 

17 

17 

March 2016 

Total number 
of 'exceeds' 
(additional 
more 
favourable 
conditions) 
2 

1 

Total number 
of exceeds 
(additional 
conditions) 

Total number 
of 'Meets' 

Total number of 
'Does not meet a 
key substantive 
provision' 

Total number of 
'Does not meet’ 
(not a key 
substantive 
provision) 

15 

16 

40 

 
 
 
 
 
 
 
 
 
Evaluation study on the implementation of Directive 2009/38/EC on the establishment 
of a European Works Council 

 MS 

Bulgaria 

Cyprus 

Croatia  

Czech Republic 

Denmark 

Estonia 

Finland 

France 

Germany  

Greece 

Hungary 

Ireland 

Italy 

Latvia 

Lithuania 

Luxembourg  

Malta 

Netherlands 

Poland 

Portugal 

Romania 

Slovakia 

Slovenia 

Spain 

Sweden 

UK 

EEA countries 

Iceland 

Liechtenstein 

Norway  

Total 
number of 
provisions 
assessed 

Total number 
of 'exceeds' 
(additional 
more 
favourable 
conditions) 

Total number 
of exceeds 
(additional 
conditions) 

Total number 
of 'Meets' 

Total number of 
'Does not meet a 
key substantive 
provision' 

Total number of 
'Does not meet’ 
(not a key 
substantive 
provision) 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

17 

3 

2 

2 

1 

3 

1 

1 

1 

2 

1 

1 

1 

1 

1 

2 

16 

17 

17 

14 

16 

16 

15 

16 

15 

16 

14 

17 

14 

17 

15 

15 

17 

16 

15 

15 

15 

17 

17 

16 

16 

15 

16 

17 

16 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

Source: ICF analysis of national transposition laws. 

March 2016 

41 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Evaluation study on the implementation of Directive 2009/38/EC on the establishment of a European Works Council 

Table 7.  Summary assessment of the key areas of exceeding and not meeting the Directive   

 MS 

Austria 

Belgium 

Bulgaria 

Cyprus 

Croatia  

Czech Republic 

Denmark 

Estonia 

Finland 

France 

Germany  

Greece 

Hungary 

March 2016 

Key areas of 'Exceeds' (more favourable / additional)  

Key areas of 'Does not meet' (substantive / non-substantive provisions)  

 

 

 

(more  favourable):  additional  obligation  to  inform  national  social 
partners of the negotiations (not only the European social partners) 

(more favourable): added a provision providing that the EWC must be 
granted  access  to  the  establishments  and  undertakings  after 
providing  information  to  the  local  management  of  the  establishment 
or undertaking 

(more  favourable):  the  Belgian 
legislation  also  refers  to  the 
employees’  representatives  of  the  technical  production  units  as  a 
whole  located  in  Belgium  who  must  be  granted  necessary  time  and 
means in addition to the members of the EWC.  

  None 

  None 

  None 

 

(non-substantive):  does  not  restrict  the  number  of  the  standing  committee 
members (this could also be interpreted as exceeding the requirements)  

  None 
  None 
 
 

(more favourable): More extensive definition of consultation  

(more  favourable):  The  link  to  national  consultation  procedures  is 
information  and 
also  applied 
consultation procedures 

in  case  of  other  supranational 

  None 
  None 
  None 

 

(more  favourable):  More  extensive  definition  of  means  for  the  EWC 
members to operate  

  None 
  None 

 

(additional):  Clarifies  the  rate  of  pay  for  any  time  spent  on  EWC 
related duties and training outside working hours.  

  None 

  Substantive: no provision for the SNB to meet without management  
  Non-substantive: not all specific provisions about the subsidiary requirements are 

included  

  Non-substantive:  the  FI  law  does  not  make  direct  reference  to  the  'ability  of  the 
company  to  take  decisions  effectively'.  The  only  relevant  sentence  was  found 
within the definition of 'consultation' which states that the consultation should take 
place 'without prejudice to the responsibilities of the management'.  

  Non-substantive:  does  not  contain  specific  provision  about  the  effectiveness  of 

information and consultation procedures  

 

 

(more  favourable):  Additional  obligation  to  inform  national  social 
partners of the negotiations (not only the European social partners). 

(more  favourable):  In  the  adaptation  clause,  the  written  request  of 
100  employees  to  request  change  to  the  EWC  agreement  is  not 
required, implying any number of employees can make the request 

  None  

  None 

  Substantive: no provision to inform the European social partners about the start of 

 

(more  favourable):  The  provision  includes  the  obligation  for  the 
employment  ministry  to  publish  the  names  and  contacts  of  the 

SNB negotiations  

  None  

42 

 
 
 
Evaluation study on the implementation of Directive 2009/38/EC on the establishment of a European Works Council 

 MS 

Key areas of 'Exceeds' (more favourable / additional)  

Key areas of 'Does not meet' (substantive / non-substantive provisions)  

 

 

member of the Special Negotiating Body on the official journal. 

(more  favourable):  Considers  as  'transnational  issues',  not  only 
matters concerning the undertaking as a whole or two establishments 
in  two  different  MSs,  but  also  matters  which  may  be  of  relevance 
considering the scope of their potential effects. 

(additional):  More  specifications  given  on  the  training  to  which  EWC 
members and SNB members are entitled to (e.g. training in language 
and legal skill). Absence fee foreseen for the time of the training also 
foreseen. 

  None 
 

(more  favourable):  Defines  a  minimum  level  of  annual  leave  for 
members  of  the  EWC.  In  addition,  members  are  entitled  to  better 
conditions in case these are defined by national agreements 

 
 

(additional) Additional provisions on the contents of training. 

(additional):  The  national  legislation  provides  a  more  specific 
definition  of  the  "balanced  representation  of  employees"  (as 
suggested by the "Joint Agreement") 

  None 
 

(more  favourable):  In  the  opening  of  negotiations,  the  transposition 
law specifies the time limit (30 days) as well as various of categories 
of  information  that  must  be  submitted  by  the  management.  The 
national  law  also  provides  a  possibility  to  go  to  court  if  the 
management refuses to provide the  information  or there is a dispute 
over the correctness of information.  

  None 
  None 

  None  
  None 

Ireland 

Italy 

Latvia 

Lithuania 

Luxembourg  

 

 

(more favourable): The time limit is specified to inform the European 
social partners of the start of negotiations. 

(more  favourable):  The  non-provision  of  the  information  to  start  the 
negotiations  as  required  by  the  Directive  is  recognised  as  an  offense 
under Luxembourgish law. 

  Non-substantive:  no  reference  to  the  arrangements  for  informing  and  consulting 
employees  shall  be  defined  and  implemented  in  such  a  way  as  to  ensure  their 
effectiveness and to enable the company to take decisions effectively 

Malta 

Netherlands 

  None 
  None 

 

 

(more  favourable):  Adding  cost  of  remuneration  for  participation  in 
training 

(more  favourable):  Specifically  mentions  that  EWC  members  should 
be  provided  with  the  financial  and  material  resources  needed  to 
perform their duties. In addition to Article 28 of the Portuguese 2009 
Law  establishes  several  additional  conditions  for  the  protection  of 
employee' representatives and their role.  

Poland 

Portugal 

March 2016 

  None 
  Non-substantive: there is no provision stating the arrangements for informing and 
consulting  employees  shall  be  defined  and  implemented  in  such  a  way  as  to 
ensure their effectiveness and to enable the company to take decisions effectively 
  Non-substantive:  the  transposition  does  not  mention  that  the  select  committee 

should be able to consult regularly. 

  Substantive:  10%  provision  is  specified  only  for  the  SNB  composition,  not  the 

EWC composition 

 

43 

 
 
 
  
 
 
 
Evaluation study on the implementation of Directive 2009/38/EC on the establishment of a European Works Council 

Key areas of 'Exceeds' (more favourable / additional)  

Key areas of 'Does not meet' (substantive / non-substantive provisions)  

(more favourable): More extensive definition of transnational matters  

(more favourable): A reserve list for SNB is established 

 MS 

Romania 

Slovakia 

Slovenia 

Spain 

 
 
  None 
  None 
 

(more  favourable):  More  specifications  are  included  in  the  national 
law  regarding  the  Adaptation  clause.  The  national  law  specifies  the 
minimum  number  of  members  that  should  form  the  negotiating 
committee.  

Sweden 

 

favourable):  Additional  provisions  are  given  for  where 
(more 
negotiations are initiated in the  case of significant restructuring, that 
go beyond the provisions in the Directive, making extra demands with 
regard to the composition of the SNB. 

UK 

  None 

 
Iceland 

EEA countries 

  None 

  None 

  None 
  None 
  None 

  None 

  Non-substantive:  no  clear  definition  regarding  when  consultation  is  appropriate 

and when provision of information is appropriate.   

  Substantive: The obligation on central management does not include an obligation 
to provide time off during working hours to undertaking training, or remuneration 
for such time off 

  Substantive:  there  is  no  obligation  to  provide  the  European  social  partners  with  
information on the composition of the special negotiating body and the start of the  
negotiations  

Liechtenstein 

Norway  

  None 
  Substantive:  the  law  specifies  the  EWC  agreement  needs  to  include 
the budget for EWC activities, and the management needs to ensure 
sufficient meetings, travel accommodation and translation costs 

  None 
  None 

Source: ICF analysis of national transposition laws

March 2016 

44 

 
 
 
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of a European Works Council 

3.7.2  Key views of the stakeholders  

This  overall  positive  picture  of  the  transposition  at  the  national level is  confirmed  by 
the  analysis  of  stakeholder  views  in  the  evaluation,  including  the  national  labour 
ministry  representatives  (23  respondents),  national  social  partners  (mostly  trade 
unions)  (52  respondents),  the  European  social  partners  (14  stakeholders)  and  the 
labour law experts (27 respondents).  

3.7.2.1  Views from the Member State representatives  

The Member States were asked to identify the main challenges in transposing the new 
rules  of  the  Recast  EWC  Directive.  Out  of  23  respondents48  from  the  national  labour 
ministries, 4 countries identified challenges in transposing the new rules. For Belgium, 
these  arose  when  considering  the  practical  application  of  the  law  (including  the 
definitions  of  key  concepts,  questions  when  the  renegotiation  is  obligatory,  how  to 
implement the right to training in practice). Sweden experienced some issues but  did 
not give further detail other than having asked the Commission for clarification. Latvia 
experienced  issues  transposing  Articles  13  and  14  of  the  Recast  Directive,  but  does 
not give further detail as to what the issue was. Poland indicates while it did not have 
any  significant  issue,  a  discussion  did  occur  around  the  election  procedures  of  EWC 
members and members of the Special Negotiating Body.  

Furthermore,  Member  States  were  asked  what  aspects  of  the  Recast  had  improved 
legal certainty. 11 out of 23 national ministry representatives answered legal certainty 
had improved across all aspects. Two countries (Belgium and Slovakia) responded that 
for many aspects it was too early to tell. The Czech Republic, Spain and Luxembourg 
did not provide an assessment. Ireland points out that the Directive was not an issue 
of  particular  importance  in  Irish  context,  hence  they  have  no  further  information  on 
whether  legal  clarity  has  improved.  Belgium,  Estonia,  Italy,  Latvia,  Luxembourg  and 
Sweden pointed out a few aspects where the Recast had not improved legal certainty. 
In  Italy  (right  to  organise  meetings  before  and  after  meetings  with  central 
management, role and capacity of EWC representatives and subsidiary requirements) 
Estonia  (definition  of  information,  consultation  and  right  to  request  external 
expertise),  Latvia  (specific 
role  and  capacity  of  EWC 
representatives,  subsidiary  requirements)  and  Sweden  (right  to  request  external 
expertise,  role  and  capacity  of  EWC  representatives)  this  was  the  case  because 
national provisions already provided this certainty. For Belgium this related to specific 
information rights and the adaptation clause. With regard to causes, it pointed out the 
challenges in transposing the Recast as a cause. Luxembourg did not provide further 
explanation.  The  role  and  capacity  of  the  EWC  is  most  mentioned  as  not  having 
improved  in  legal  clarity  (4),  but  in  3  cases  this  was  because  there  was  already 
enough legal clarity. In one case no reason was provided. 

information 

rights, 

Many Member States reported no experience with enforcement as the transposition is 
quite recent or as there are no EWCs in the Member State it does not apply. However, 
Bulgarian,  French,  Austrian,  German  and  Swedish  representatives  pointed  out 
enforcement  has  become  easier  due  to  the  improved  legal  certainty.  Italy  indicates 
enforcement  has  become  easier  for  employers’  organisations,  but  not  so  much  for 
employees  as  those  rules  are  more  open  for  interpretation  (e.g.  it  is  left  for  the 
management to decide whether the EWCs fall under the old or new rules of the Recast 
Directive). 

As  the  transposition  of  the  Recast  Directive is  still  relative  recent,  not many Member 
States have identified outstanding legal issues. Member States identifying some issues 

48  Belgium,  Bulgaria,  Czech  Republic,  Germany,  Estonia,  Ireland,  Spain,  France,  Italy,  Cyprus,  Latvia, 
Liechtenstein,  Lithuania,  Luxembourg,  Malta,  Austria,  Poland,  Romania,  Slovenia,  Slovakia,  Finland  and 
Sweden and the UK.  

March 2016 

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Evaluation study on the implementation of Directive 2009/38/EC on the establishment 
of a European Works Council 

are Italy, Germany and France. In Italy there is a call from employee organisations to 
define timescales for information and consultation more clearly by specifying these in 
national  agreements.  Germany  points  out  it  is  not  quite  clear  when  and  with  what 
content the information needs to be provided. France has identified some outstanding 
issues. With regards to the set-up of EWCs this relates to the timing of the information 
of  the  European  social  partners,  and  the  timing  of  the  negotiations.  As  for  the 
functioning  of  the  EWCs,  this  concerns  the  articulation  between  the  EWC  and  the 
national employee representation bodies in absence of an agreement. In Poland there 
not  many  EWC  have  been  set  up,  however  this  is  due  to  economic  constraints,  not 
legal constraints. One particular situation explored in the survey was the operation of 
EWCs  in  cases  of  joint  ventures.  Member  States  were  asked  if  they  knew  of  such 
examples in their countries, but none were identified. 

3.7.2.2  Views of the national social partners  

Amongst  the  national  social  partner  respondents,  across  various  aspects  considered 
(see  Figure  5)  40%  of  the  respondents  agreed  that  the  Recast  had  improved  legal 
clarity  and  certainty  (mostly  trade  unions).  The  national  social  partners  who  did  not 
find  the  Recast  had  improved  legal  clarity  were  based  in  Belgium,  Finland,  Hungary, 
Malta,  the  Netherlands,  Slovakia,  Spain  and  Sweden.  One  transnational  trade  union 
organisation also agree with this assessment.  

Figure 6.  National  social  partners’  perceived  impact  of  the  Recast  Directive  on  the 

legal clarity 

New rules on operation of EWCs

40%

New definitions and clarifications

54%

New rules concerning the set-up of EWCs

Role and capacity of employee representatives

33%

33%

None of the above

21%

Other

6%

Source: ICF International survey based on 52 national social partner responses 

National social partners were also asked to indicate which of the rules relating to those 
categories  had  proved  problematic  (see  Figure  7).  These  results  show  that  44%  of 
respondents did not come across any problems with the new rules. However, 31% of 
all respondents did indicate they had encountered issues with the new definitions and 
clarifications  (e.g.  application  of  the  confidentiality  rule,  the  right  to  training  and 
development of necessary EWC representative competences). 

Furthermore,  national  social  partners  were  asked  to  indicate  whether  they  believed 
the  rules  of  the  Recast  Directive  had  increased  the  number  of  legal  disputes.  A 
majority of 85% indicated that the level of EWC specific complaints and litigation had 
remained the same. Two social partners (from Belgium and the Netherlands) indicated 
that  the  number  of  disputes  had  increased,  while  two  social  partners  (German  and 
French)  believed  they  had  decreased.  In  parallel,  three  social  partners  (two  from 
Spain, one from Denmark) indicated that the number of legal disputes had increased, 
while one social partner (Polish) believed they had decreased. 

When  asked  what  the  main  reasons  for  disputes  are,  answers  seem  to  diverge. 
However, the following issues are mentioned at least a couple of times: disputes as a 

March 2016 

46 

 
 
 
 
Evaluation study on the implementation of Directive 2009/38/EC on the establishment 
of a European Works Council 

result of differences in employer versus employee perspectives over what constitutes 
sufficient  time  for  information  and  consultation  and  meaningful  information  and 
consultation  procedures  in  practice;  definition  of  ‘transnational’  matters;  number  and 
interpretation in the EWC meetings, and informing EWCs in time and sufficiently about 
the changes and restructuring of companies. 

Figure 7.  National social partners’ perceived problems with ‘new rules’ following from 

the Recast Directive 

None of the above

44%

New definitions and clarifications

31%

Role and capacity of employee representatives

New rules on operation of EWCs

19%

23%

New rules concerning the set-up of EWCs

12%

Other

8%

Source: ICF International survey based on 52 national social partner responses 

3.7.2.3  Views of the European social partners  

Half of interviewees (7 out of 14 stakeholders) were of the view that the new Directive 
has helped to increase legal certainty, especially in relation to the definition and timing 
of information and consultation, the role of employee representatives in the EWC and 
the adaptation clause. Three interviewees thought it was too early to see the impact of 
the Directive and two interviewees saw a number of negative impacts of the Directive 
in  relation  to  legal  certainty  (unclear  definition  of  in-depth  assessment  in  the 
information process, unclear definition of means necessary to set up an EWC, unclear 
definition of transnational matters, too long a timeframe of 3 years to set up an EWC).  

When  asked  about  the  examples  of  countries  or  sectors  where  there  have  been 
particular  problems  in  transposing  or  interpreting  the  new  rules,  most  of  the 
interviewees did not see any patterns. Where mentioned, they considered that usually 
Belgium, France, Germany and the Nordic countries are perceived as going beyond the 
requirements  of  the Directive.  In terms  of  sectoral issues,  the implementation  of  the 
EWCs  in  the  HORECA  sector  was  considered  to  be  problematic  because  companies 
operate in franchising systems and outsource big departments. Another social partner 
thought  that  the  implementation  of  the  Directive  to  some  degree  depends  on  the 
sector  and  the  tradition  of  employee  representation.  Also,  in  large  transnational 
companies  with  members  from  many  different  countries  it  is  difficult  to  manage  the 
dialogue  because  of  the  multitude  different  national  regulations  /  traditions  of  social 
dialogue – but this is not seen to be due to transposition difficulties.  

The interviewees were not aware of any particular issues when the transposition took 
place via collective agreements in countries like Belgium and Italy.  

3.7.2.4  Views of the labour law experts  

The members of the European Labour Law network were also asked their views on the 
aspects  of  the  Recast  Directive  improving  the  legal  certainty.  Among  the  27 
respondents,  almost  half  agreed  legal  certainty  had  increased  across  all  mentioned 
aspects  (12  respondents  from  Austria,  Denmark,  Estonia,  Norway,  Croatia,  the 

March 2016 

47 

 
 
 
 
 
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of a European Works Council 

Netherlands, Greece, Italy, Spain, Lichtenstein, Lithuania and the UK). In contrast, the 
legal  certainty  concerning  the  right  to inform  the  European  social  partners  about  the 
start of EWC negotiations was most often cited as not having improved, though to put 
this into context, a majority (78%) did think it improved.  

Figure 8.  Improved  legal  certainty  following  the  Recast  Directive  (views  of  the  ELLN 

members) 

Adaptation clause

Fall-back rules (subsidiary requirements in Annex I)

Role and capacity of EWC representatives (rights and
obligations)

Information to the European social partners about the
establishment of the EWC and role of social partners as experts

SNB right to organise meetings before and after meetings with
central management

SNB right to request external expertise

SNB specific information rights

Right to training for EWC members

Definition of transnational matters for information and
consultation

Definition of consultation

Definition of information

Yes

Neutral

No Missing

23

23

24

1

1

2

3

1

3

20

1

6

26

23

21

24

24

24

26

1

4

5

1

3

3

3

1

Source: ICF International survey of 25 ELLN members 

When  asked  about  remaining  legal  issues  with  the  implementation  of  the  Recast 
Directive  in  their  countries,  many  ELLN  respondents  maintained  that  many  countries 
have not had much experience with the law yet. However, three respondents indicate 
issues with setting up the EWC (Croatia49, Germany50 and Italy51) and six respondents 

49  Especially  to  organise  a  workers  meeting  in  big  companies.  Namely,  the  elections  are  valid  solely  if  at 
least 50% of employees with a right to vote attended the elections (Article 19(1)). If there were not enough 
employees attended, the election are organised again regardless of the number of employees attending the 
election.  
50  Section  23  of  the  European  Works  Councils  Act  does  not  explicitly  provide  for  an  election  of 
representatives  in  case  that  no  workers´  representation  exists  under  the  Works  Constitution  Act 
(Betriebsverfassungsgesetz). 
Applicability of obligation to provide necessary information (Article 4(4) of Directive 2009/38/EC) is not clear 
if it is uncertain whether the Directive applies.  
On a literal interpretation, section 18(1): implementing of Article 6(2) lit. c, e, g and Article 12(2) sentence 
2 of Directive 2009/38/EC is a mere recommendatory provision. 
Duty  of  confidentiality  (section  35)  does  not  explicitly  relate  to  “information  which  has  expressly  been 
provided to them in confidence“ (Article 8(1) of Directive 2009/38/EC). 

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with their functioning (Croatia, Germany, Hungary, the Netherlands, Romania and the 
UK). Issues stem from:  

  broadly defined concepts which leave room for interpretation: 

-  Transnational  matters  although  decided  by  the  central  management  could 
be  formally  adopted  as  “strategies”.  These  decisions  are  adopted  by  the 
national  managements  and  therefore  are  seen  as  national  matters  without 
the right of EWCs to be informed and consulted. 

-  One  of  the  topics  left  to  the  national  law-makers  by  the  initial  Directive 
94/45/EC,  and  later  on  by  the  Directive  2009/38/EC  is  the  issue  of 
sanctions.  Recital  35  and  the  new  Recital  36  specify  that  the  national 
legislator must provide for effective, dissuasive and proportionate sanctions 
in case of violation of the Directive. However, the Romanian sanctions are of 
very little significance. 

- 

In the UK, there were concerns on both sides about the operation of EWCs. 
For  example,  employers  felt  that  some  employee  representatives  on 
occasion did not appreciate the need for prudent cost management and the 
speed  with  which  organisations  needed  to  make  decisions.  They  could  lack 
an awareness of their responsibilities to colleagues. They suggested that this 
had a negative impact on EWCs. Employers also referred to the increase in 
EWC  costs  caused  by  the  enlargement  of  EU  membership.  On  the  other 
hand, trade unions felt that employers too often saw EWCs as a burden on 
business. The quality of information and consultation was poor in their view. 
Central  management  have  often  claimed  that  the  manager in  an individual 
country is responsible for consultation only for the manager to deny this or 
state  that  they  have  insufficient  information  to  consult  on.  Unions 
experienced  attempts  to  sideline  them  at  national  and  European  level.  In 
certain cases unions have been shut out of meetings and refused access to 
SNBs  to  advise  on  draft  agreements.  Balloting  processes  could  be 
problematic,  and  representatives  had  to  ask  several  times  for  basic 
information  relating  to  the  structure  and  employee  numbers  in  the 
undertaking.  

  clashes between the national law and specific EWC law, e.g.: 

- 

In Germany, according to section 1(7) of the European Works Councils  Act, 
the European Works Council and national representatives must be informed 
and  consulted  simultaneously  at  the  latest.  Article  12(2)  sentence  1  of 
Directive  2009/38/EC),  on  the  other  hand,  leaves  it  completely  to  the 
parties concerned to reach an agreement on possible priorities. In addition, 
it is not entirely clear whether the adaptation clause also applies to cases of 
organic  growth  of  a  business.  Moreover,  the  expert  considered  it  doubtful 
whether  the  cases  mentioned  in  section  37  have  to  be  interpreted 
restrictively.  

-  The  articulation  between  the  two  levels  of  information  and  consultation  is 
problematic. The Netherlands has implemented the EWCD in an Act separate 
from  the  national  Works  Council  Act  to  emphasise  that  there  exists  no 
hierarchy between the two institutions, that they have their separate sets of 
scope,  rights  and  obligations.  However,  because  of  this  and  because  the 
national works councils has more rights, the EWC is regarded as a waste of 
time  (especially  in  a  Community-scale  undertaking  with  its  seat  in  the 
Netherlands).  The  fear  sometimes  exists  that  the  procedure  with  the  EWC 
complicates and troubles the procedure with the national works council. 

51 Where the time limit of 3 years is considered to be too long and should be reduced to 1 year. 

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Six  respondents  also  indicated  issues  around  enforcement  (Germany,  Finland, 
Hungary, Italy, Romania and the UK), half of those were concerned with the severity 
of  sanctions  (in  italic).  A  foreseen  potential  issue  in  the  survey  were  cases  of  joint 
ventures,  however  none  of  the  respondents  indicate  there  are  such  cases  in  their 
countries. 

In  the  majority  of  cases,  the  national  regulations  met  the  provisions  of  the Directive 
by  transferring  the  text  of  the  Directive  verbatim  or  using  very  similar  wording  to 
transpose the spirit of the Directive.   

15 Member States introduced more favourable (to the EWC representatives / workers) 
provisions than those foreseen in the Directive – in the EWC negotiation process, more 
extensive means to perform EWC duties, rate of pay during the EWC member training, 
more extensive definitions of information, consultation and transnational matters.  

In  contrast,  in  11  Member  States  at  least  one  national  rule  was  assessed  as  not 
meeting all the requirements of the Directive.  

However, only in 4 Member States at least one of the key substantive provisions of the 
Directive  was  not  transposed  correctly.  In  other  Member  States,  a  relatively  minor 
non-substantive  provision  (or  part  of  such  provision)  was  not  transposed.  The  key 
substantive  aspects  not  transposed  correctly  were  the  lack  of  providing  the  right  to 
training  without  loss  of  wages,  the  requirement  to  inform  European  social  partners 
about the start of negotiations and provisions on the composition of the EWC.   

The  number  of  national  court  cases  challenging  the  provisions  of  the  Directive  was 
low.  

Stakeholder responses confirm the positive assessment of legal transposition. 

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4 

The  effects  of  the  Recast  Directive  on  the  number  and 
characteristics of EWCs 

4.1  Introduction 

One  of  the  main  aims  of  the  evaluation  was  to  assess  the  impact  of  the  Recast 
Directive on the number and characteristics of new EWCs. Specifically, this included an 
analysis of the impact on: 

  Scale: The number of new EWCs created since the Recast Directive, and 

  Scope: The qualitative characteristics of EWCs created since the revision of the 
Directive, comparing the characteristics of new EWCs (2009/38/EC) with those 
operating under Article 6 rules (94/45/EC).  

This section is based on the following data sources and analyses: 

  An analysis of statistics from the ETUI’s EWC database52: these statistics should 
however be regarded as indicative only for this particular study as the statistics 
include  not  only  EWCs  but  also  other  types  of  worker  information  and 
consultation  structures,  such  as  Societas  Europaea  (SE)  works  councils53  and 
international work councils and committees. The ETUI’s database of EWCs is the 
most  comprehensive  source  of  information  on  the  EWCs,  nevertheless  it  does 
not  contain information  on the  whole  population  of  EWCs  created.  Particularly, 
non-unionised  companies,  EWC  following  subsidiary  requirements  might  be 
underrepresented  in  it.  ETUI  in  their  analysis  and  publications  usually  covers 
both  EWCs  and  SEs,  arguing  that  these  transnational  information  and 
consultation  bodies  draw  upon  the  same  model  of  and  have  similar  aims. 
Therefore  the  ETUI’s  database  also  records  information  about  other  types  of 
information  and  consultation  bodies  and 
is  not 
straightforward.  The  data  presented  in  this  section  might  thus  include  a  small 
sample of other information and consultation bodies.  

filtering  only  EWC 

  An analysis of key features of newly-established EWCs, on the basis of findings 
from  interviews  with  management  and  employee  representatives  of  37  Recast 
EWCs,  complemented  when  relevant,  with  findings  from  the  Article  6  survey 
(22  respondents)  as  well  as  surveys  and  interviews  with  the  national  and  EU 
social partners (52 and 14 respondents respectively). 

  Comparative  baseline  data 

from  other  sources 

(including  Eurofound 

publications, the 2008 GHK study on the EWCs).  

4.2  Background:  trends  in  the  creation  of  worker  information  and 

consultation bodies, including the EWCs 

The  aim  of  this  section  is  to  set  the scene  by  comparing  the  number  of  new  EWCs 
created and renegotiated over the last 30 years (between 1985 and 2015). However, 
as  mentioned  above,  these  statistics  should  be  regarded  as  indicative  only  as 
they  include  not  only  EWCs  but  also  other  types  of  worker  information  and 
consultation structures,  such  as  SE works  councils  and international  work  councils 
and committees.  

52 http://www.ewcdb.eu/index.php.  
53 SE companies are a special legal form of a 'European company', with its own legislative framework, under 
the EU Regulation (2157/2001). The SE status allows companies incorporated in different Member States to 
merge or form a holding company or joint subsidiary to void the legal and practical constraints arising from 
the different national legal systems. The legislative EU framework also provides for the involvement of 
employees in such SE (through the special supplementary Directive (2001/86/EC). It sets out to ensure that 
the establishment of an SE will not mean the disappearance or watering down of existing employee 
involvement arrangements in the companies concerned,  
http://ec.europa.eu/social/main.jsp?catId=707&langId=en&intPageId=212.  

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1,296  worker  information  and  consultation  bodies  have  been  created  to  date54.  The 
number of active bodies has increased every year between 1985 and 201355. In 1985, 
just 6 such bodies were active while in 2013, 1,048 were counted as still being active. 
This has recently slightly increased to 1,07256. According to the ETUI’s 2015 facts and 
figures,  EWCs make up  88%  of these. Based  on  this information,  there  are  currently 
943 active EWCs in existence57.  

The  trend  in  newly  created  worker  information  and  consultation  bodies  shows  that 
after  an  initial  high  in  1996,  the  number  of  additional  bodies  created  declined  to  an 
annual average of around 50 until 2009, and to around 20+ in the post-2009 period. 
As  shown  by  Figure  9,  the  peak  in  the  number  of  new  agreements  concluded 
happened  just  prior  to  the  entry  into  force  of  the  original  Directive  (94/45/EC).  The 
other  peaks  occurred  3-5  years  after  this,  and  again  in  the  years  before  the 
transposition  of  the  Recast  Directive.  Therefore,  these  trends  suggest  that  the 
Directives  brought  about  an  impetus  to  complete  agreements  before  the 
transposition deadlines of original and recast Directives in order to benefit from 
‘interim  rules’.  However,  there  has  been  an  overall  downward  trend  in  the 
number of new agreements signed since 2000. 

Figure 9.  Worker information and consultation bodies created and effective 

Source: ICF, on the basis of data from the ETUI’s EWC database filtered out only EWC.  

Terminology:  Article  13  agreements  are  voluntary  EWC  agreements  concluded  before  Directive  94/45/EC 
came  into  force  (22.09.1996  -  or  respective  later  implementation  deadlines  for  the  UK  and  newer  MS). 
Article 6 agreements are EWC agreements concluded or revised between 22.09.1996 and the transposition 
deadline for Recast Directive (June 2011). Article 14.1b refers to agreements concluded during the period of 
June 2009 and June 2011 when the EWCs were able to choose to follow either Article 6 rules or the rules of 
the  Recast  Directive.  Recast  EWC  agreements  are  agreements  following  the  rules  of  the  Recast  Directive 
(2009/38/EC) 

54 http://www.ewcdb.eu/index.php  
55 ETUI (2013), Creation of EWC bodies – evolution: 
http://www.ewcdb.eu/documents/freegraphs/2013_11_EN.pdf  
56 ETUI (2015), Statistics and Graphs, http://www.ewcdb.eu/statistics_graphs.php  
57 Based on ETUI (2015), European Works Councils and SE Works Councils in 2015, p. 13. 

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The available literature uses the estimates of around 2,498 companies which meet the 
relevant criteria to establish an EWC.58 Given that there are currently around 943 
EWCs59  and  the  trend  has  been  for  the  creation  of  around  20+  EWCs  per 
annum since the transposition deadline for the Recast Directive, the potential 
to  create  additional  EWCs  has  not  yet  been  fully  exploited.  Given  that  one  of 
the goals of the Recast was to encourage the creation of more EWCs this has maybe 
not  been  fully  achieved.  The  reasons  for  not  establishing  EWCs  –  and  indeed  for 
employee  representatives  not  to  request  the  setting  up  of  an  SNB  –  are  not  entirely 
clear. What will be shown below is that in companies headquartered in countries with 
a  tradition  of  strong  employee  information  and  consultation  and  in  large  multi-
nationals  headquartered  outside  the  EU  (but  meeting  the  relevant  thresholds),  the 
setting up of such bodies has proved more likely than in companies with headquarters 
in Member States without such a strong tradition and in larger companies. As will be 
discussed  below,  the  Recast  did  lead  to  more  ‘smaller’  multi-national  companies  to 
establish EWCs, but these did not include too many such companies very close to the 
required  size  threshold.  Furthermore,  although  the  Recast  has  also  brought  the 
establishment  of  more  EWCs  in  sectors  previously  not  so  strongly  represented  (see 
below),  it  remains  true  that  certain  sectors  (metalworking,  chemicals  etc.)  are  not 
only often larger, but also tend to have a stronger tradition of trade union activity and 
thus the push for information and consultation bodies to be established. 

Figure  10  offers  an  overview  of  the  countries  where  the  companies  with  new  EWC 
agreements are headquartered. It shows that Germany is the country of headquarter 
for  most  of  these  companies,  followed  by  France,  the  US  and  the  UK.  It  is  however 
worth  recalling  that  many  of  the  worker  information  and  consultation  agreements  in 
companies based in Germany are SE works councils which are generally governed by a 
different  EU  legislation  (unless  they  chose  to  operate  under  the  rules  of  the  EWC 
Directive).  

58 ETUI, updated in 2009 database of companies which are in the scope of the Directive: 
http://www.ewcdb.eu/search_results_companies.php.  
59 ETUI (2015), Statistics and Graphs, http://www.ewcdb.eu/statistics_graphs.php.  

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Figure 10. HQ countries of companies where new worker information and consultation 

agreements concluded 

Art. 13 (>22.09.1996) n=342

Art. 6 (23.09.1996-
09.06.2009) n=561

Art. 14.1b 
(09.06.2009-
05.06.2011) n=49

Recast (06.06.2011) 
n=80

33
%

Germany

United…
France
Sweden
Belgium
Netherlands
Finland
Italy
Denmark
Austria
Ireland
Portugal
Czech Republic
Greece
Poland
Cyprus
Spain
Hungary
Luxembourg
Slovenia

Switzerland
Norway
Iceland
Liechtenstein

United States
Japan
South Korea
Australia
Singapore
India
South Africa
United Arab…

Canada
Russia
Mexico
Saudi Arabia

19%

14%

10%

6%
4%
4%
3%
3%
3%
2%
1%
0%
0%
0%
0%
0%
0%
0%
0%
0%

6%
2%
0%
0%

16%

6%

0%
0%
0%
0%
0%
0%
0%
0%
0%
0%

15
%11
%12
%
7%

4%
7%
4%
4%
3%
3%
1%
0%
1%
0%
0%
1%
0%
0%
0%
0%

3%
1%
0%
0%

1%
0%
1%
0%
1%
0%
0%
0%
0%
0%
0%

16
%

41
%

14
%

2%

4%

0%
0%

6%
4%
2%
2%
2%
0%
0%
0%
0%
0%
0%
0%
0%
0%

0%

4%

0%
0%

14
%

2%
0%
0%
0%
0%
0%
0%
0%
0%
0%
2%

8%

13
%

6%
4%
5%
4%
3%
0%
1%
1%
0%

6%

0%
1%
0%
0%
1%
1%
0%

4%

0%
0%
0%

6%

0%
1%
0%
0%
1%
0%
0%
0%
1%
0%
0%

Source:  ICF,  on  the  basis  of  data  from  the  ETUI’s  EWC  database.  Notes:  see  preceding  Figure  for 
explanations.  

The EU accession process has been important for the further development of EWCs (in 
terms  of  numbers  of  EWC  representatives).  Indeed,  the  growing  number  of  EU 
Member  States  goes  hand  in  hand  with  the  growing  involvement  of  employees’ 
representatives  from  these  countries.  In  2013,  out  of  the  1,048  active  EWCs,  270 
included  one  or  more  representatives  from  a  Member  State  that  joined  the  EU  in 
2004. Over seventy EWCs have at least one employee representative from Bulgaria or 
Romania  and  10  had  a  representative  from  Croatia60.  In  some  of  the  newer  Member 
States,  the  election  of  EWC  representatives  provided  particular  challenges  in  the 

60  ETUI,  Active  EWC  bodies  and involvement  of  employees  or  observers  from  new  EU  member  states  and 
applicant countries, http://www.ewcdb.eu/documents/freegraphs/2013_11_EN.pdf.  

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absence of a strong national tradition of employee representation and information and 
consultation. 

Worker  information  and  consultation  bodies  cover  a  wide  range  of  sectors.  The 
metalworking  sector  is  by  far  the  sector  with  the  greatest  number  of  transnational 
worker  information  and  consultation  bodies  (400+),  followed  by  the  chemical  sector 
with in excess of 200 bodies. This is not surprising given the strong tradition of social 
dialogue and high levels of trade union representation in these sectors. There are no 
significant  differences  in  the  sectoral  activity  before  and  after  the  transposition 
deadline  for  the  recast  Directive,  although  it  is  apparent  that  the  share  of  new 
agreements in ‘other services’, ‘commerce services, ‘public services’ and ‘building and 
woodwork’ are growing in importance. 

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Figure 11. Sectors of companies with new worker information and consultation agreements concluded 

Art. 13 (>22.09.1996) n=342

Art. 6 (23.09.1996-
09.06.2009) n=561

Art. 14.1b (09.06.2009-
05.06.2011) n=49

Recast (06.06.2011) n=80

Metal

Chemicals

37%

29%

39%

39%

18%

18%

31%

18%

Food, Agriculture,
Horeca

11%

Building & Woodwork

8%

Services finance

Other services

Services Commerce

Graphical

4%

6%

5%

5%

Transport

2%

Services IBITS

1%

Textile

3%

Public Services

0%

Other

0%

9%

8%

8%

4%

4%

5%

4%

4%

3%

2%

0%

9%

8%

8%

4%

4%

5%

4%

4%

3%

2%

0%

6%

6%

10%

12%

8%

6%

2%

0%

0%

0%

4%

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Source:  ICF,  on  the  basis  of  data  from  the  ETUI’s  EWC  database.  Notes:  see  preceding  Figure  for 
explanations.  

A considerable amount of renegotiation of existing EWC agreements has taken place in 
the years since the Recast Directive. Information from  the EWC database suggests 
that  a  total  of  122  worker  information  and  consultation  agreements  have 
been  revised  since  June  2009.  However,  this  figure  includes  all  different  types  of 
agreements,  not  only  EWCs,  and  the  renegotiations  have  not  automatically  led  to  a 
revision of Article 13 or Article 6 EWC agreements in line with the rules of the Recast 
Directive.  However,  our  evidence,  which  is  discussed  in  section  5.5  below,  points  to 
the  fact  that  a  proportion  of  these  renegotiations  have  led  to  an  alignment  of  EWC 
agreements with the new definitions and rules introduced by the Directive. 

Figure 12. The  number  of  worker 

information  and  consultation  agreements 

revised/renegotiated since the Recast Directive 

Source: ICF, on the basis of data from the EWC database. Notes: see Figure above for explanations.  

The  next  sections  discuss  the  scale  (the  number  of  new  EWCs  established  under  the 
Recast  Directive)  and  scope  (their  key  characteristics)  of  the  new  agreements,  and 

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wherever  possible,  comparing  these  characteristics  with  those  of  other  active worker 
information and consultation bodies.  

4.3  Scale: the number of new EWCs since the Recast Directive  

There  are  up  to  58  EWCs  that  have  been  newly  established  in  line  with  the 
rules of the Recast Directive since June 2009. However, a small number of these 
58  –  at  least  3  -  have  been  created  as  a  result  of  a  de-merger  or  another  form  of 
reorganisation.  This  means  that  at  least  some  of  the  employees  in  these  companies 
may  have  been  covered  by  another  EWC  agreement  before,  although  they  may  not 
have  stayed  with  the  company  they  were  originally  employed  with  after  the 
reorganisation. Due  to  the  fast,  on-going  nature  of  restructuring,  the  situation in the 
companies that fall under the rules of the EWC Directive changes fairly frequently so 
that any assessment at a given point in time is a snapshot of the ‘current’ situation.  

In relation to Recast EWCs, four-fifths are companies headquartered in the EU 
(see  Table  8).  This  is  slightly  more  than  the  72%  of  all  worker  information  and 
consultation bodies which are headquartered in the EU. Some 14% of the new EWCs 
are headquartered outside the EU/EEA, mainly in the US. Seven per cent are based in 
one of the EEA countries.  France hosts the largest number and share of Recast 
EWCs  with  19%,  followed  by  Sweden  with  12%,  the  US  with  9%  and 
Germany with 7%. Germany hosts the largest number of all worker information and 
consultation  bodies  established  since  the  EWC  Directive  was  revised,  but  –  as 
previously stated- many of these bodies are SE works councils and thus governed by 
different EU legislation61.  

Table 8.  HQ country breakdown of recast and all EWCs (%) 

Country 
type 
EU 

Headquarter country 

All  worker 
consultation bodies (N=990)* 

information  and 

Recast 
(N=58) 

EWCs 

Difference 

Germany 

France 

United Kingdom 

Sweden 

Netherlands 

Belgium 

Italy 

Finland 

Denmark 

Austria 

Spain 

Ireland 

Luxembourg 

Greece 

Cyprus 

Slovenia 

Czech Republic 

Portugal 

72% 

13% 

12% 

12% 

8% 

6% 

4% 

4% 

4% 

3% 

2% 

1% 

1% 

0% 

0% 

0% 

0% 

0% 

0% 

79% 

7% 

19% 

5% 

12% 

5% 

5% 

5% 

3% 

0% 

2% 

7% 

2% 

2% 

2% 

0% 

0% 

0% 

0% 

+ 

- 

+ 

- 

+ 

- 

+ 

+ 

- 

- 

= 

+ 

+ 

+ 

+ 

= 

= 

= 

= 

61 As established under SE works councils regulating the involvement of employees in European companies 
(under the Directive (2001/86/EC)).  

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Country 
type 

Headquarter country 

All  worker 
consultation bodies (N=990)* 

information  and 

Recast 
(N=58) 

EWCs 

Difference 

EEA 

Other 

Poland 

Slovenia 

Hungary 

Switzerland 

Norway 

Iceland 

Liechtenstein 

United States 

Japan 

Canada 

Australia 

South Africa 

South Korea 

Singapore 

United Arab Emirates 

Saudi Arabia 

Mexico 

India 

Russia 

0% 

0% 

0% 

7% 

5% 

2% 

0% 

0% 

22% 

17% 

3% 

1% 

0% 

0% 

0% 

0% 

0% 

0% 

0% 

0% 

0% 

2% 

2% 

0% 

7% 

5% 

2% 

0% 

0% 

14% 

9% 

0% 

2% 

0% 

0% 

2% 

0% 

0% 

2% 

0% 

0% 

0% 

+ 

+ 

= 

= 

= 

= 

= 

= 

- 

- 

- 

+ 

= 

= 

+ 

= 

= 

+ 

= 

= 

= 

*Source: European Trade Union Institute (ETUI), EWC database 4/2015. Note: the statistics should be read 
with care due to big differences in the samples (990 vs 58).  Legends: = the share (%) has remained the 
same, + the share (%) has increased, - the share (%) has decreased. 

According  to  the  sectoral  classification of  the EWC  database,  nearly a third of new 
Recast  EWCs  are  active  in  the  ‘metal’  sector  (29%),  followed  by  ‘chemicals’ 
and ‘building & woodwork’ with a 12% share each. This is largely in line with the 
sectoral breakdown of all worker information and consultation bodies, but the sectors 
where  –  in  comparative  terms  –  more  EWCs  have  been  created  than  before 
include  ‘building  &  woodwork’,  ‘transport’,  and  different  service  sectors 
(‘industry,  business  and  information  technology  services’,  ‘public  services  such  as 
utilities’  and  ‘other  services’].  It  is  however  worth  pointing  out  that  many  of  the 
affected  companies  are  active in  more than  one  sector  and  the  sectoral  classification 
may change over time as companies expand to offer new goods and services or scale 
down their business in others.  

Table 9.  Sectoral  breakdown  of  Recast  EWC  and  all  worker  and  information  bodies 

(%) 

Sector* 

Metal 
Chemicals 
Food, Agriculture, Horeca 
Building & Woodwork 
Services finance 
Graphical 
Other services 
Services, commerce 
Transport 

All  worker 
information  and 
consultation bodies (N=990)** 
38% 
21% 
10% 
8% 
6% 
6% 
5% 
4% 
4% 

29% 
12% 
9% 
12% 
2% 
0% 
7% 
3% 
10% 

- 
- 
- 
+ 
- 
- 
+ 
- 
+ 

Recast EWCs 
(N=58) 

Difference  

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Sector* 

information  and 
All  worker 
consultation bodies (N=990)** 

Recast EWCs 
(N=58) 

Difference  

Business 

and 
Technology 

Industry, 
Information 
Services  
Public Services 
Textile 
Other 

3% 

2% 
3% 
0% 

9% 

7% 
0% 
0% 

+ 

+ 
- 
= 

*  Based  on  the  classification  of  www.ewcdb.eu.  **Source:  European  Trade  Union  Institute  (ETUI),  EWC 
database 4/2015. Note: the  columns do not add  up to 100% as one company can  be active in more than 
one sector. Legends: = the share (%) has remained the same, + the share (%) has increased,  - the share 
(%) has decreased. 

4.4  The characteristics of newly established Recast EWCs 

4.4.1  The research sample  

The  analysis  in  this  section  is  based  on  information  from  37  Recast  EWCs  whose 
management  and  employee  representatives  were  interviewed  as  part  of  this  study. 
These 37 companies come from a wide variety of sectors ranging from manufacturing 
to  a  range  of  services  (see  Table  10).  86%  of  the  sample  companies  have  global 
headquarters  in  the  EU/EEA.  The  most  represented  country  of  headquarter  in  the 
sample  is  France,  reflecting  their  dominance  among  all  Recast  EWCs.  France  is 
followed  by  Switzerland,  Belgium,  Germany  and  Sweden.  As  previously  indicated, 
Germany is not more significantly represented as many new transnational information 
and  consultation  agreements  negotiated  during  this  period  were  excluded  from  this 
study (as they are  SE works council agreements rather than EWCs).  

Table 10.  Sectoral breakdown of Recast EWCs (n=37) 

Headquarters 
Global  

Belgium 
US/Denmark 
Belgium 
UK 
Belgium 
Finland 
Finland 
Italy 
Switzerland 
Spain 
France 
France 
Sweden 
Norway 
Sweden 
France 
France 
France 
Switzerland 
Germany 
Switzerland 
Germany 
Germany 
US 
Italy 
Canada 
Poland 
Saudi Arabia 
Austria 
Luxembourg 
France 
Switzerland 
US 
US 
Slovenia  

March 2016 

European 

Belgium 
Denmark 
Belgium 
UK 
Belgium 
Finland 
Finland 
Italy  
UK (EU HQ) 
Spain 
France 
France 
Sweden 
Norway 
Sweden 
France 
France 
France 
Switzerland 
Germany 
Switzerland 
Germany 
Germany 
Ireland 
Italy 
UK 
Poland 
Netherlands 
Austria 
Luxembourg 
France 
Switzerland 
Switzerland 
UK 
Slovenia  

Main area of activity* 

Electricity 
Metal works 
Food 
Manufacturing 
Bathroom solutions 
Services (technology) 
Building & Woodwork (building and industrial services) 
Manufacturing (Manufacture of cement) 
Road/air/sea freight and logistics 
Private security 
Transport and logistics 
Rail 
Chemicals 
Renewable Energy Production 
Building Services 
Service voucher 
Utilities 
Services (benefits and expense management mainly) 
Beverage machinery manufacturing 
Railway engineering 
Car suppliers 
Optical Industry 
Transport, maritime and ports 
Packaging 
Manufacture of energy and telecom cables 
Services IBITS 
Paper Industry 
Chemicals 
Rail 
Stainless Steel industry 
Insurance broker 
Agrofood industry 
Water 
Laboratory services 
Production of electricity operated household appliances 

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Headquarters 
Global  
Netherlands 
Sweden 

European 
Netherlands 
Sweden 

Main area of activity* 

Metal 
Building & Woodwork 

Source: ICF interviews with the EWCs. * Based on the classification / description of interviewees in the new 
EWCs. 

4.4.2  Characteristics  of  companies  hosting  Recast  EWCs:  a  comparison  with 

other types of EWCs 

4.4.2.1  Number of employees 

The  companies  operating  newly-established  Recast  EWCs  are,  in  general,  medium-
sized  multi-national  companies.  The  average  global  number  of  employees  in  the 
Recast EWCs belonging to the sample is 24,599 of which around 16,612 are employed 
in the EU/EEA. The average number of workers in the European headquarter country 
is 11,539. The smallest company in the sample has just some 1,400 workers globally 
while  the  largest  has  some  250,000  workers.  Several  companies  in  the  sample  have 
fewer than 100 workers in the European HQ country, with the smallest one employing 
just 21 staff in the European HQ country.  

Table 11.  Number of employees in companies with Recast EWCs  

Average 
Scope 
24,599 
Global 
EU/EEA 
16,612 
European HQ country  11,539 

Lowest* 

1,400 
1,400 
21 

Highest* 
250,000 
236,000 
214,000 

Sources:  based  on  information  from  annual  reports  and  interviewees  from  30  out  of  37  companies  in  the 
sample *Figures may be rounded. 

In  order  to  compare  the  size  of  companies  with  EWCs  negotiated  under  the  Recast 
Directive with EWCs set up under the rules of Directive 94/45/EC, two main points of 
comparison are available.  

Firstly,  the  2008  Preparatory  study  for  an  impact  assessment  of  the  EWC  Directive 
researched  a  total  of  70  EWCs  operating  under  Article  6  and  Article  13  rules62.  The 
companies in this sample employed, on average, 49,000 workers globally and 29,000 
workers  in  the  EU/EEA.  Thus,  when  compared  to  this  sample,  companies  which 
have  set  up  Recast  EWCs  are  quite  considerable  smaller  (by  around  12,000 
employees) than companies which established EWCs previously under Article 
13  (EWCs  established  prior  to  the  transposition  deadline  for  EWC  Directive 
94/94/EC) and Article 6 (of the original EWC Directive). 

This is also confirmed by a comparison of employee numbers of Recast EWCs with the 
sizes  of  all  other  worker  information  and  consultation  bodies  (including  EWCs) 
registered in the EWC database. As shown in the Table below, Recast EWCs appear to 
include  a  smaller  share  of  large  employers  and  larger  share  of  comparative  small 
employers (in the context of the thresholds for establishing EWCs) than other worker 
information and consultation bodies.  

Table 12.  Number  of  employees  in  the  companies  with  Recast  EWCs  vs.  all  worker 

information and consultation bodies63  

Scope  

Unknown 
Small (< 5,000 employees in EEA) 

Recast EWCs 
(N=37) 
13.5% 
49% 

All worker information and 
consultation bodies* (N=972) 
10% 
37% 

62 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission. 
63  In  global  terms,  44%  of  the  companies  in  the  sample  have  more  than  10,000  workers,  22%  have 
between  5,000  and  10,000  workers  and  28%  have  fewer  than  5,000  workers.  Global  worker  figures  were 
not available for 6% of the sample (2 companies). 

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Scope  

Recast EWCs 
(N=37) 

All worker information and 
consultation bodies* (N=972) 

(between  5,000  and  10,000 

Medium 
employees in EEA) 
Large (10,000+ employees in EEA) 

13.5% 

24% 

16% 

37% 

*Sources: ICF interviews with the EWCs; European Trade Union Institute (ETUI), EWC database, 6/2015 

Overall, this finding may not be so surprising given that in the past the EWC  ‘take-up’ 
rates  have  gone  hand-in-hand  with  the  size  of  the  workforce.  Indeed,  early  ETUI 
studies  showed  that  the  EWC  take-up  rate  more  than  doubled  with  a  growth  of  a 
workforce from just 5,000 to 10,00064.  

4.4.2.2  Turnover  

This finding indicating that companies with Recast EWCs may be smaller, on average, 
than  companies  which  set  up  EWCs  under  the  Article  13  and  Article  6  rules,  is  also 
supported by findings on the turnover of companies in question. As shown in the Table 
below, the average turnover of companies with Article 13 and Article 6 EWCs 
is  around  five  times  higher  than  the  average  turnover  of  companies  with 
EWCs established under the Recast Directive. 

Table 13.  Turnover (€)  

Scope 
Recast EWCs 
EWCs  operating  under  Article  13 
and Article 6 rules* 

Average 
EUR 4.2 billion 

Lowest 

EUR 197 million 

Highest 
EUR 32.2 billion 

EUR 20 billion  

EUR 54 million 

EUR 202 billion 

* EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission. 

4.4.2.3  Internationalisation 

Existing studies65 on EWCs have shown that there is a direct relationship between the 
degree  of  internationalisation  attained  by  a  company  and  the  likelihood  of  an  EWC 
being established. Companies with operations in fewer countries have a lower take-up 
rate than companies present in most EU/EEA countries. It was therefore interesting to 
compare  the  rate  of  internationalisation  of  companies  with  Recast  EWCs  with  that  of 
companies with EWCs operating under the rules of the previous Directive.  

Only  a  minor  difference  was  detected  in  the  rate  of  internationalisation.  The 
companies hosting Recast EWCs are present, on average, in 12 countries. Companies 
hosting Article 13 and Article 6 EWCs are present in 14 countries, on average.  

Table 14.  Internationalisation: worker presence in EU/EEA countries 

Scope 

Recast EWCs* 

EWCs operating under Article 13 
and Article 6 rules** 

Average 

Lowest 

Highest 

12 

14 

2 

2 

28 

29 

*based on information from interviewees from 37 out of 37 companies in the sample. ** EPEC GHK (2008), 
Preparatory  study  for  an  Impact  Assessment  of  the  European  Works  Council  Directive,  European 
Commission. 

4.4.3  Background of Recast EWC agreements 

The  average  time  Recast  EWCs  have  operated  is  2.9  years.  The  newest  EWC 
agreements were drawn up earlier this year (2015). This has an important implication 
on  the  findings  in  this  study  in  that  many  do  not  have  considerable  experience  in 
running  their  EWC;  in  several  cases  only  one  or  two  plenary  meetings  have  taken 

64 Kerckhofs, P. (2002), European Works Councils: Facts and Figures, ETUI.  
65 Kerckhofs, P. (2006), European Works Councils: Facts and figures ETUI. 

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place since the establishment of the body. Six  out of the first 37 Recast EWCs in the 
sample  have  already  revised  their  original  agreements,  mainly  as  a  result  of 
reorganisation that has led to mergers and take-overs. 

The agreements of Recast EWCs whose global or European headquarters are in the EU 
are all (100%) governed by the national legislation of the country where the 
company’s global or European headquarters are based. Only the five companies 
of  which  European  HQs  are  outside  the  EU  (Norway  or  Switzerland)  operate 
(necessarily)  under  the legislation  of  another  country (EU  country).  Three  of the  five 
had chosen to follow German or French law in relation to their EWC, while one follows 
Swedish law and another follows UK law. Therefore, on the basis of evidence from the 
first 37 Recast EWCs,  the trend found in other studies of companies preferring 
a  governing  legislation  of  a  country,  such  as  the  UK,  where  the  legislation 
related  to  worker  information  and  consultation  is  deemed  as  being  weaker 
than in other countries, does not appear to affect new EWCs.  

4.4.4  Composition of the Recast EWCs 

This section examines the composition of Recast EWCs by outlining their key features 
and  identifies  any  potential  differences  or  similarities  with  the  composition  of  other 
types of EWCs.  

in 

these 

The first findings on the composition of Recast EWCs suggests that  EWCs operating 
under  the  new  rules  are  considerable  smaller  bodies  than  EWCs  operating 
under  Article  13  and  Article  6  rules  (in  line  with  the  smaller  overall  number  of 
employees 
companies).  The  average  number  of  employee 
representatives  is  16,  with  the  smallest  Recast  EWC  in  the  sample  having  just  8 
employee representatives in total and the largest one having 34 members. According 
to  the  2008  preparatory  study  on  the  revision  of  the  EWC  directive,  the  number  of 
employee  EWC  delegates  in  EWCs  established  under  Article  13  and  Article  6  varies 
from  5  to  47,  with  an  average  of  2366.  When  compared  against  data  from  the  EWC 
database, more than half of the Recast EWCs have fewer than 15 employee members, 
while only 8% of ‘all EWCs’ falling into this smallest size category. 

No evidence has been collected on the Directive itself causing this difference, 
but – as indicated above - it is more likely to do with the sizes of companies 
in  question;  the  companies  of  Recast  EWCs  are  smaller  and  slightly  ‘less 
international’ and have fewer employees than the companies that set up EWCs under 
the rules of the original Directive. 

Table 15.  Composition of Recast EWCs: employee delegates 

Number of employee representatives 
Average 
- Maximum 
- Minimum  
Number of employee representatives 
<15 
15-29 
30-39 
40-75 

Recast EWCs* 
16 
34 
8 
Recast EWCs* 
54% 
41% 
5% 
0% 

Other EWCs** 

23 
47 
5 

Other I&C bodies*** 
8% 
26% 
60% 
6% 

*based  on  information  from  interviewees  from  37  companies  in  the  sample.  **  EPEC  GHK  (2008), 
Preparatory  study  for  an  Impact  Assessment  of  the  European  Works  Council  Directive,  European 
Commission. ‘Other EWCs’ refers to EWCs operating under Article 13 and Article 6 rules. ***European Trade 
Union Institute (ETUI), Statistics and Graphs -maximum number of representatives, 7/2015.  

66 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission. 

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The  Recast  EWCs  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.  

In less than a third of Recast EWCs (32%), the employee delegates represent all the 
EU/EEA countries where they employ staff. However,  there are many countries where 
companies  with EWCS  have  employees  which  do  not  have  a  direct  representative  on 
the EWC. 

4.4.5  The  organisation  of  the  EWC  meetings  schedule:  a  comparison  of 

practices of Recast EWCs with other EWCs 

4.4.5.1  Plenary meetings 

The frequency of meetings can have an important impact on the quality of information 
exchanges  between  management  and  employees  as  well  as  the  extent  to  which  the 
EWC is used as a forum for consultation on important transnational matters. Starting 
with  the  programme  of  annual  plenary  meetings,  the  study  findings  suggest  that 
Recast  EWCs  operate  a  slightly  more  frequent  programme  of  plenary 
meetings  than  other  types  of  EWCs.  Two-fifths  of  Recast  EWCs  (40%)  in  the 
sample  organise  two  annual  plenary  meetings  while  the  rest  organise  one  annual 
plenary  meeting  per  year  (two  respondents  did  not  answer).  On  the  other  hand, 
several EWCs in the sample have so far organised 2-3 extra-ordinary meetings a year 
which are becoming an almost regular part of the schedule in order to ensure on-going 
and  timely  information  exchange  in  cases  of  restructuring  situations.  These  trends 
suggest an overall increase in the frequency of ordinary meetings as only 26% 
of  all  worker  information  and  consultation  bodies  registered  in  the  EWC  database 
appear  to  organise  two  or  more  annual  plenary  meetings  (however,  it  needs  to  be 
borne  in mind  that  not  many newly  established EWCs  would  also  not have  had  more 
than two ordinary meetings).  

Video-conferencing  does  not  appear  to  be  frequently  used,  although  one  of  the 
smallest  EWCs,  operating  in  the  telecoms  sector,  organises  one  of  the  two  annual 
plenary meetings using video-conferencing. 

Table 16.  The organisation and running of annual plenary meetings 

Number  of  annual 
plenary meetings 

Recast 
(N=35) 

EWCs* 

1  
2 
3 
4 
5+ 

60% 
40% 
0% 
0% 
0% 

EWCs 
operating 
under  Article  13 
and Article 6 rules  
(N=70)** 
60% 

40% 

All  worker 
consultation bodies*** (N=972) 

information 

and 

74% 
24% 
1% 
2% 
0% 

*based  on  information  from  interviewees  from  35  out  of  37  companies  in  the  sample.  **  based  on  EPEC 
GHK  (2008),  Preparatory  study  for  an  Impact  Assessment  of  the  European  Works  Council  Directive, 
European  Commission.  Data  refer  to  EWCs  operating  under  Article  13  and  Article  6  rules.  The  study  used 
different  scale  therefore  detailed  breakdown  of  the  number  of  meetings  was  not  possible.  ***European 
Trade Union Institute (ETUI), Statistics and Graphs -maximum number of representatives, 7/2015.  

4.4.5.2  Extra-ordinary meetings 

All but two Recast EWCs in the sample (94%) have provisions in their agreements to 
hold  extra-ordinary  meetings in  situations  of  transnational  change  /  restructuring.  In 
some  cases,  this  right  is  extended  to  the  members  of  the  steering  committee  only. 
This is largely in line with the trend across EWCs operating under Article 13 and Article 
6  rules  (88%  of  such  agreements  include  provisions  to  hold  such  extra-ordinary) 
meetings.  

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Table 17.  The organisation and running of annual plenary meetings 

right 

to  hold  extra-ordinary 

A 
meetings specified in the agreement 
Yes 
No 

Recast EWCs* (N=35)  Other EWCs** (N=70) 

94% 
6% 

88% 
12% 

*based on information from interviewees from 35 out of 37 companies in the sample. ** EPEC GHK (2008), 
Preparatory  study  for  an  Impact  Assessment  of  the  European  Works  Council  Directive,  European 
Commission. ‘Other EWCs’ refers to EWCs operating under Article 13 and Article 6 rules.  

Nearly  half  of  the  new  Recast  EWCs  (42%)  have  already  made  use  of  this 
‘right’  to  organise  extra-ordinary  meetings,  holding  between  one  and  six  extra-
ordinary  meetings  since  the  EWC  was  launched  (which,  on  average,  was  2.9  years 
ago).  

4.4.5.3  Steering committee meetings 

The Recast Directive formalised the role of steering committees in that it introduced a 
right to establish such as steering body and laid out some rules regarding the number 
of  members  (‘maximum  of  five  members’)  and  the  frequency  of  meetings  (‘the 
conditions enabling it to exercise its activities on a regular basis must be met’). This 
right  has  not  been  taken  up  by  all  new  Recast  EWCs:  four  out  of  35  Recast 
EWCs  in  the  sample  are  not  operating  one.  This  trend  is  largely  in  line  with  the 
trend in other types of EWCs. 

Table 18.  Operation of steering committees 

Operation of a steering committee 
Yes 
No 

Recast EWCs* (N=35)  Other EWCs** (N=70) 
89% 
11% 

88% 
12% 

*based on information from interviewees from 35 out of 37 companies in the sample. ** EPEC GHK (2008), 
Preparatory  study  for  an  Impact  Assessment  of  the  European  Works  Council  Directive,  European 
Commission. ‘Other EWCs’ refers to EWCs operating under Article 13 and Article 6 rules.  

Almost a fifth (23%) of all Recast EWC steering committees exceed the maximum limit 
of employee side members specified in the Directive, in that they have 6-10 members 
instead  of  the  maximum  of  5.  This  tends  to  apply  to  larger  EWCs  where  there  is  a 
desire for greater national representation in the steering committee to be maintained. 
However,  with  an  average  number  of  steering  committee  members  of  4.5,  overall 
there is a slight tendency towards smaller steering committees, but more so because 
of the smaller size of Recast ‘companies’ and ‘EWCs’, rather than for other reasons. On 
average,  one  management  representative  liaises  with  the  steering  committee, 
although this number ranges from zero to six.  

Table 19.  Composition of steering committees 

Employee members 
Average 
Maximum 
Minimum 
Share of employee members (%)  
- 5 or fewer members 
- More than 5 members 
Management ‘members’ 
Average 
Maximum 
Minimum 

Recast EWCs* (N=30) 

Other EWCs** (N=70) 

5 
4.5 
15 
10 
2 
2 
Recast EWCs* (N=30)  Other EWCs** (N=70) 
77% 
23% 
Recast EWCs* (N=30)  Other EWCs** (N=70) 
2 
1 
4 
6 
0 
0 

NA 
NA 

*based on information from interviewees from 30 out of 37 companies in the sample. ** EPEC GHK (2008), 
Preparatory  study  for  an  Impact  Assessment  of  the  European  Works  Council  Directive,  European 
Commission. ‘Other EWCs’ refers to EWCs operating under Article 13 and Article 6 rules.  

The  steering  committees  of  Recast  EWCs  tend  to  meet,  on  average,  three  times  a 
year.  

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Table 20.  Frequency of steering committee meetings 

Frequency of meetings 
Average 
Maximum 
Minimum 

Recast EWCs* (N=31)  Other EWCs** (N=70) 
3 
3 
12 
6 
0 
0 

*based on information from interviewees from 31 out of 37 companies in the sample. ** EPEC GHK (2008), 
Preparatory  study  for  an  Impact  Assessment  of  the  European  Works  Council  Directive,  European 
Commission. ‘Other EWCs’ refers to EWCs operating under Article 13 and Article 6 rules.  

4.4.5.4  Employee-only preparatory meetings 

Amongst  the  Recast  EWCs  there  is  a  slight  decline  in  the  share  of  EWCs  that 
operate employee only preparatory meetings. Reasons for this could include the 
use of online communication channels in the regular work of the EWCs and exchange 
of information on a regular basis.  

Table 21.  Operation of employee-only preparatory meetings 

Frequency of meetings 
Yes 
No 

Recast EWCs* (N=35)  Other EWCs** (N=70) 
77% 
23% 

96% 
4% 

*based on information from interviewees from 35 out of 37 companies in the sample. ** EPEC GHK (2008), 
Preparatory  study  for  an  Impact  Assessment  of  the  European  Works  Council  Directive,  European 
Commission. ‘Other EWCs’ refers to EWCs operating under Article 13 and Article 6 rules.  

4.4.5.5  Working groups 

Many  EWCs  operate  working  groups  to  deal  with  specific  subjects  or  allow  employee 
delegates  from  different  branches/sub-sectors  of  the  business  to  discuss  matters 
concerning them. More than one-third of Recast EWCs (36%) have set one up, 
which  is  a  higher  share  than  among  Article  13  and  Article  6  EWCs  that  were 
researched in 2008. The topics of working groups of  Recast EWCs are in line with the 
topics of other EWCs and include topics such as: 

  Code of conduct and sustainability 

  Work-life balance 

  Health and safety 

  Employment and training 

  Business sub-groups 

  Human resources 

  Business and financial matters.  

The working groups of Recast EWCs tend to feature a very diverse mix of structures, 
compositions and meeting arrangements. Some are so new that they are yet to meet 
while others meet as / when needed, on average one to three times a year.  

Table 22.  Working committees 

Types of meetings 
Yes 
No 

Recast EWCs* (N=33) 
36% 
64% 

Other EWCs** (N=70) 

29% 
71% 

*based on information from interviewees from 33 out of 37 companies in the sample. ** EPEC GHK (2008), 
Preparatory  study  for  an  Impact  Assessment  of  the  European  Works  Council  Directive,  European 
Commission. 

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4.5  Quantitative and qualitative effects on renegotiated EWC 

agreements 

In  parallel  to  newly  established  EWCs  since  the  Recast  Directive,  a  number  of  EWCs 
have renegotiated their EWC agreements over this period. The evaluation analysed the 
nature  of  renegotiated  agreements  and  their  impact  on  the  aims  of  the  worker 
information  and  consultation.  In  total,  23  respondents  took  part  in  the  survey, 
including  15  employee  representatives,  seven  employer  representative  and  one 
external  expert  (see  Annex  2  for  the  detailed  information  on  the  profile  of  the 
respondents).  Respondents  represented  19  companies,  as  in  4  companies  both  sides 
were  interviewed.  The  interviewed  companies  equate  to  42%  of  bodies  which  were 
identified as EWCs which have renegotiated their Article 13 or Article 6 agreement to 
follow the rules of the Recast Directive. 

A  case  study  was  also  undertaken  in  the  evaluation  to  explore  the  effects  of 
renegotiation in one EWC in detail.  

Case  study  findings:  a  renegotiation  of  the  EWC  agreement  in  a  company  in  the 
Mobility and Safety sector 

The three largest achievements since the renegotiation, are the three agreements: 

  Occupational health and safety (framework agreement),  

  Demographic change (position paper with recommendations for action/action plans),  

  Code of Conduct (from 2003; renegotiated). 

The  company  along  with  the  EWC  hereby  commits,  at  the  European  level  vis-a-vis  its 
employees,  to  establish  a  concrete  framework  for  working  conditions  in  all  companies  and 
undertakings throughout Europe. The development and implementation of the framework will 
be followed in regular workshops with the EWC and HR. A joint communication from HR and 
the  EWC  to  all  management  levels  and  company  executives  is  planned  at  the  beginning  of 
2016  urging  the  levels  concerned  to  implement  the  recommendations.  In  2016  there  will 
furthermore  be  a  new  focus  put  on  Controlling  and  Monitoring.  In  the  field  of  health  there 
have  already  been  agreements  on  actions  for  preventing  addiction.  The  concept  is  very 
successful  within  the  company.  Unfortunately  the  negotiations  were  not  simple.  Particularly 
around  disputes  with  the  trade  unions  who  did  not  wish  to  surrender  their  negotiating 
mandate  to  the  EWC.  The  EWC  nevertheless  decided  to  bring  the  negotiations  to  a 
conclusion. 

The Directive should grant the possibility for employee representatives,  in  co-operation with 
the trade unions, but also under leadership/coordination of the employee representatives, to 
conclude transnational company agreements  

A further example of good practice is the involvement of the EWC as soon as the situation at 
a site becomes critical. This means that the information and consultation procedure does not 
have to take place at the last minute when everyone is under pressure, but enables the EWC 
to follow the entire process. 

4.5.1  Reasons for renegotiating the latest/current EWC agreement 

This section focuses on the rationale behind the renegotiation of the EWC agreement, 
and how this renegotiation took place. 

4.5.1.1  Main reasons for renegotiating the latest EWC agreement 

Out  of  23  respondents,  the  majority  indicated  that  the  main  reason  for 
renegotiating  was  the  wish  to  comply  with  the  new  rules  in  the  new  2009 
Directive  (13,  or  57%).  Most  of  these  respondents  were  employees  (nine).  Besides, 
an equal number of respondents reported that the main reason for renegotiating was 
the  need/wish  to  improve  the  effectiveness  of  the  existing  EWC  (four  or  17%),  the 

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restructuring  /  changing  operations in  the  company  (four  or  17%)  or  another reason 
(four or 17%).   

Eight respondents further specified the reasons for renegotiating: 

  Renegotiation clause in the agreement. 

  Part of a regular process of renewal of the agreement.  

  Need for more transparency on stakeholders’ roles and responsibilities. 

  Willingness to improve the text in the agreement (including grammar etc.). 

  Creation of sub-committees per activity to deal with high levels of information, 
which  could  not  be  dealt  with  only  in  plenary  meetings;  need  to  better  define 
information/consultation  procedures,  which  used  to  be  vague;  and  need  to 
secure further training days for EWC members.  

  The  main  change  concerned  the  right  to  call  an  extra-ordinary  meeting: 
previously  this  was  only  the  right  of  employers,  and  the  agreement  was 
changed so that employees were also given a right to do so.  

4.5.1.2  Initiative  to  start  the  renegotiation  process  of  the  latest  EWC 

agreement 

According  to  the  survey  respondents,  the  renegotiation  process  for  the  latest  EWC 
agreement  started  mostly  at  the  initiative  of  EWC  employee  representatives  (10 
respondents,  or  43%  -  including  seven  employees),  or  following  a  joint  initiative  of 
EWC  employer  and  employee  representatives  (eight  respondents,  or  35%  - including 
seven  employees).  Only  three  respondents  (including  two  employers)  reported  that 
the renegotiation started at the initiative of EWC employer representatives.  

4.5.1.3  Length of the renegotiation process 

Almost  three-quarters  of  the  various  renegotiation  processes  took  more  than  three 
months (16, or 70%): five took between three and six months (22%); three between 
six and nine months (13%); three between nine and 12 months (13%); and five took 
more than 12 months (22%). 

Five  respondents  (22%)  reported  that the  renegotiation  process  took  less  than  three 
months, and two respondents said they did not know/did not remember. 

4.5.1.4  Number  of  –  plenary  or  steering  committee  –  meetings  held  for  the 

renegotiation process 

More than half of the respondents (12 out of 23, or 52%) indicated  that between one 
and five meetings were held for the renegotiation process: five respondents reported 
one  meeting  (22%);  two  respondents  reported  three  meetings  (9%);  and  five 
respondents reported five meetings (22%).  

In  addition,  only  one  respondent  respectively  reported  that  six,  seven,  nine  and  ten 
meetings were held for the renegotiation process. Two respondents indicated that six 
or  seven  meetings  were  necessary.  Almost  a  quarter  of  the  respondents  (five  out  of 
23, or 22%) said they did not know/did not remember how many meetings were held. 

4.5.1.5  Specific  aspects  to  the  new  agreement  that  were  difficult  to  agree 

upon 

Ten respondents (43%) reported no specific difficulties related to the new agreement. 
More  than  half  of  the  survey  respondents  mentioned  specific  aspects  to  the  new 
agreement that were difficult to agree upon, notably: 

  The  definition  and  meaning  of  ‘transnationality’  (five  respondents),  e.g.  the 
‘meaning of transnational decision’, the ‘definition of transnational matters’, or 

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the  ‘concept  of  transnational  question  when  something  important  happens  in 
only one country’. 

  Disagreements  on  the  number  of  representatives  (three  respondents),  which 
can  be  due  to  differences  in  national  legislation  on  EWCs:  e.g.  ‘the  French 
legislation  allows  the number  of  representatives  to  be  counted  on  the  basis  of 
all employees, including inactive and consultants, while the German legislation 
is  more  restrictive  in  this  regard.  This  meant  that  France  was  going  to  get, 
proportionally, more employee members than other countries.’  

  Disagreements around the number of meetings to be organised per year (three 
respondents),  e.g.  ‘the  number  of  annual  plenary meetings  was  hard  to  agree 
on’. 

  Definitions and process of information and consultation (two respondents). 

  Other issues mentioned by single respondents included: 

  Payment for support of experts: ‘the company did not want to bear these costs.  

They agreed on 5,000 EUR to cover costs of the external experts’.  

  Discussion on the right articulation between EU and national level. 

 

‘Minutes, confidentiality, more teleconference meetings instead of on-site’. 

4.5.1.6  Role  and 

impact  of  the  external  experts 

in  supporting  the 

renegotiation process 

The  large  majority  of  survey  respondents  said  they  appointed  an  external  expert  to 
help  with  the  renegotiation  process  (16  out  of  23,  i.e.  70%  -  mostly  employees:  11 
out  of  16).  The  appointed  experts  included  mostly  ‘unionists’,  ‘legal  experts’  and 
‘experts from ETF’, but also ‘specialists’ and ‘external consultants’.  

Respondents mentioned the following main impacts of these experts: 

  Ensuring that employees’ representatives are better aware of their (legal) rights 

and obligations. 

  Supporting the negotiation and communication process. 

  Aligning the agreements with the law. 

  Acting as facilitators between the management and employees’ representatives. 

  Helping  to  implement  all  important  issues  from  the  EU  Directive  2009  and 

providing an overview of other agreements to compare theirs with others. 

  Increasing the speed of the negotiation process. 

Six  respondents  (three  employees  and  three  employers)  said  they  did  not  appoint 
such an external expert. One respondent indicated that one employee  participated in 
the social dialogue committee at EU level, and could thus be considered as an expert. 
Another  respondent  reported  that  they  preferred  negotiating  an  agreement  directly 
with their  employee  delegates  rather  than  having  external  experts  taking  care  of  the 
negotiations.  This  respondent  also  said  that  ‘an  expert  from  the  national  employers 
federation read the draft agreement, gave suggestions, but  [they] only took some of 
them into consideration’.  

4.5.2  Key  changes  in  the  latest  agreement  in  relation  to  information  and 

consultation 

This section focuses on the main changes in the latest EWC agreement, in relation to 
the information and consultation.  

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4.5.2.1  Changes  to  the  definition  of  ‘information’  provision  within  the  EWC 

agreement   

Almost  two-thirds  of  the  respondents  (15  out  of  23,  or  65%)  indicated  that  the 
definition of ‘information’ provision within their EWC agreement changed following the 
latest  revision  of  the  agreement.  This  was  the  case  for  two-thirds  of  the  employees 
(10),  more  than  half  of  the  employers  (four),  and  the  external  expert.  Eight 
respondents  (five  employees  and  three  employers)  reported  that  the  definition  of 
‘information’ provision within their EWC agreement has not changed. 

13  respondents  provided  further  information  on  the  changes  to  this  definition, 
including: 

  Better  definition  in  the  national  law  than  in  the  EU  law,  and  additional  power 
provided  to  EWCs  (although  the  timing  of  information  provided  could  be 
improved). 

  The new definition of the national law was taken over. 

  The renewed agreement took over the definition of the Recast directive. 

  Alignment  of  the  definition  with  the  Recast  Directive,  e.g.  ‘creation  of  sub-
committees per activity due to the high request of information that could not be 
‘better  definition  of 
the  plenary  meeting’, 
dealt  with 
information/consultation  procedures’,  and  ‘securing  double  training  days  for 
EWC members’.  

just 

in 

  A better definition of the situations in which information has to be provided to 

the EWC. 

  EWC  and  management  commit  themselves  to  ‘start  and  complete  the 

information and consultation process at the earliest time possible’. 

4.5.2.2  Changes to the definition of ‘consultation’ within the EWC agreement  

Almost two-thirds of respondents (15 out of 23, or 65%) indicated that  the definition 
of  ‘consultation’  within  their  EWC  agreement  changed  following  the  latest  revision  of 
the  agreement.  This  was  the  case  for  two-thirds  of  the  employees  (10),  more  than 
half  of  the  employers  (four),  and  the  external  expert.  Eight  respondents  (five 
employees  and  three  employers)  reported  that  the  definition  of  ‘consultation’  within 
their EWC agreement has not changed. 

13 respondents provided further information on the changes to this definition. Most of 
them  indicated  that  the  Recast  Directive  provided  clearer  definitions,  which  they 
followed and aligned on. Some respondents indicated the following:  

 

 

 

‘A  real  consultation  right  was  enshrined  in  the  agreement,  which  was  not  the 
case in the previous agreement.’  

‘We added something about the organisation of the meetings’ 

‘Addition of outsourcing and of the costs and benefits of transnational issues’ 

4.5.2.3  Changes  to  the  definition  of  ‘transnational  matters’  within  the  EWC 

agreement 

A large majority of respondents (14 out of 23, or 61%) indicated that the definition of 
transnationality  changed  following  the  latest  revision  of  the  agreement  (nine 
employees and five employers). On the other hand, nine respondents (six employees, 
two  employers  and  the  external  expert)  reported  that  the  definition has  not  changed 
following the latest revision of the agreement. 

10  respondents  provided  further  information  on  the  changes  to  this  definition, 
including:  

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  Alignment with the Recast Directive. 

  More  specific  definition,  including  the  scope,  potential  effects  and  level  of 
‘matters 

management 
concerning at least two different undertakings’, ‘affecting 5% of the staff’, etc. 

‘matter  affecting 

two  countries’, 

involved,  e.g. 

  The  renewed  agreement  ‘took  over  the  definition  of  the  Recast  Directive’  and 
added  that  a  project  can  be  considered  as  a  transnational  issue  if  it  ‘has  an 
important impact for the whole group, even if it affects only one single Member 
State’’. 

  A  question  can  be  raised  if  it  affects  at  least  50%  of  the  staff  (even  in  one 
Member  State).  The  Steering  committee  can  ask  for  a  meeting  with  the 
management. 

  Definition tailored to the company. 

  Alignment  of  employee  and  management 

representatives’  views  on 
that  affect  Community-scale  undertakings  or 
transnational: 
Community-scale  groups  of  undertakings  as  a  whole  or  at  least  two 
establishments or two undertakings located in different member states.’ 

‘matters 

4.5.2.4  Practical  application  of  information  and  consultation  provisions  since 

the latest re-negotiation of the agreement 

Almost  three-quarters  of  the  respondents  (17  out  of  23,  or  74%)  reported  no 
noticeable  change  to  the  work  of  the  EWC  as  an  employee  information  forum 
compared  to  how  it  worked  under  the  previous  agreement  (two-thirds  of  the 
employees, six employers and the external expert). Five respondents (four employees 
and one employer) said that the work of the  EWC as an employee information forum 
has improved since the latest revision of the agreement. Only one employee reported 
that it has deteriorated, and indicated that there were now fewer meetings as a result 
of the changes to the agreement (where fewer meetings are scheduled). 

Almost  two-thirds  of  respondents  (15  out  of  23,  or  65%)  reported  no  noticeable 
change to the work of the EWC as an employee consultation forum compared to how it 
worked  under  the  previous  agreement  (nine  employees,  five  employers  and  the 
external expert). Almost one-third of the respondents (seven out of 23, or 30%) said 
that the work of the  EWC as an employee  consultation forum has improved since the 
latest  revision  of  the  agreement (five  employees  and  two  employers).  One employee 
reported  that  the  work  of  the  EWC  as  an  employee  consultation  forum  has 
deteriorated. 

  More  than  two-thirds  of  the  respondents  (16  out  of  23,  or  70%)  reported  no 
noticeable  change  to  the  work  of  the  EWC  as  a  forum  for  exchanging 
information  and  views  on  transnational  matters  only,  compared  to  how  it 
worked under previous agreement (11 employees and five employers). 

Six  respondents  (three  employees, two  employers  and  the  external  expert)  said that 
the  work  of  the  EWC  as  a  forum  for  exchanging  information  and  views  on 
transnational  matters  only  has  improved  since  the  latest  revision  of  the  agreement. 
One  employee  indicated  that  this  has  deteriorated  since  the  latest  revision  of  the 
agreement. 

Almost  three-quarters  of  the  respondents  (17  out  of  23,  or  74%)  reported  no 
noticeable change to the link and relationship between EWC and national information 
and  consultation  forums,  compared  to  how  it  worked  under  previous  agreement  (11 
employees, five employers and the external expert). 

The  overall  sense  that  the  operation  of  EWC  which  had  re-negotiated  agreements  in 
line  with  the  enhanced  definitions  of  the  Recast  Directive  have  stayed  the  same  or 
improved somewhat could be indicative of a number of things: 

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 

 

the EWCs which have found it possible to re-negotiate their agreement already 
functioned  relatively  well  and  therefore  no  significant  change  was  required, 
although some small improvements have been achieved in some cases. 

the  new  definitions  do  not  significantly  serve  to  enhance  the  clarity  of  the 
content  and  process  of  information  and  consultation  and  what  constitutes 
transnational  matters  and  therefore  operations  have  remained  more  or  less 
unchanged. 

As will be further discussed in section 6 below, it is likely that with regard to the issues 
of  consultation  and  transnationality,  the  latter  is  the  predominant  reason  for  the 
assessment of the impact of revised agreements. 

4.5.2.5  Potential disputes with the company over the functioning of the EWC 

The  majority  of  survey  respondents (12  out  of  23,  or  52%) indicated  that  their  EWC 
had  not  faced  any  disputes  with  the  company  over  the  functioning  of  the  EWC.  This 
was  reported  by  the  majority  of  employees  (eight),  less  than  half  of  the  employers 
(three) and the external expert.  

In  addition,  five  respondents  did  not  know/remember  (three  employees,  two 
employers). 

One  quarter  of  respondents  (four  employees  and  two  employers)  reported  disputes 
over the functioning of the EWC. The key messages are presented below: 

  Difficulties to find a common position on the functioning of the information and 
consultation  process  (e.g.  level  of  formality  of  the  process)  and  on  the 
articulation between EWC level and National I/C bodies level. 

  Discussions  about:  agenda  of  meetings;  future  of  the  company  (e.g.  mergers 
and de-mergers); time spent by EWC members to fulfil their responsibilities. 

 

‘Although the EWC was not able to change a restructuring process, it managed 
to  change  the  timing  of  the  process  through  consultation.  This  type  of 
consultation  process  was  useful  and  improved  the  cooperation  between  both 
sides for both sides – management and EWC – to gather further insights on the 
restructuring  project.  Now  the  management  rather  approaches  some  projects 
by first testing results and evaluating possible effects’. 

4.5.3  Achievements and challenges in the renegotiated EWCs  

Survey  respondents  were  also  asked  about  the  main  achievements  of  and  remaining 
challenges for their EWC.  

4.5.3.1  Greatest achievements of the EWC to date 

The  survey  respondents  mentioned  the  following  key  achievements  of  the  EWC  to 
date: 

  Increased  transparency  of  the  roles  and  responsibilities  of  all  stakeholders: 
better  relationships  between  the  parties;  mutual  respect  and  trust  between 
employee  representatives  and  the  management;  increased  collaboration; 
informal dialogue; early management of issues; low level of conflicts 

  Effective exchange of information; faster transmission of economic and financial 
information  between  parties;  improved  quality  of  information  provided  to  the 
EWC; improved online communication platforms 

  Higher number of country representatives 

  More productive meetings as the employees get to meet alone one day before 
the  joint  meeting,  benefit  from  trainings  and  discuss  on  the  most  important 
issues to be debated with the management afterwards 

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  Organisation  of  the  plenary  meeting,  which  allows  EWC  members  to  go  into 
small  groups  and  different  members  of  the  management  to  answer  specific 
questions   

  Stability of EWC members, low turnover rate 

  Better  awareness  of  their  rights  among  workers,  e.g.  EWC  members 
campaigned  to  have  the  same  maternity  policies  in  Poland  as  in  Sweden,  and 
the  central  management  agreed  with  employee  representatives  (therefore 
disagreeing  with  local  management)  and  introduced  improved  maternity 
policies in Poland   

  Common  position  adopted  on  different  agreements,  e.g.  on  Demography, 

Health and Safety, and Code of Conduct 

  Creation of a working group on health and safety within the EWC, which helped 
to  take  concrete  actions  in  different  countries  to  increase  the  prevention  of 
accidents 

  Strengthened social dialogue at national level 

  Revision and improvement of staff satisfaction surveys and safety management 

systems following feedback from EWC members 

  One respondent highlighted the following elements as key successes: ‘The EWC 
acts  as  the  voice  of  employees in  Europe.  It  considers  employees’ interests in 
company  decisions  […]  and  helps  to  keep  as  many  jobs  as  possible  in  the 
company  in  Europe  under  human  conditions.  […]  In  a  restructuring  case,  the 
EWC had analysed the situation correctly while this was not taken into account 
by the management, which recognised at a later stage that the decision taken 
was  wrong  and  that  they  learned  a  lesson  from  the  EWC.  […]  The  increased 
number  of  meetings  and  improved  structure  and  functioning  of  the  EWC  have 
improved  the  timing  of  information  procedures.  […]  The  information  process 
has improved since the introduction of the new definition. […] In some subjects 
the EWC reached good results and relationships with management improved. It 
has become a real forum with more visibility among workers. […] The EWC has 
become  more  European:  EWC  members  are  representing  EU  matters  and  not 
their national interests any more’. 

4.5.3.2  Main remaining challenges for the EWC going forward 

The survey respondents mentioned the following key remaining challenges: 

  Having the EWC recognised as an important institution by the management and 

ensuring the right to consultation is enforced in practice 

  Decreasing the negotiating period 

  Harmonising the number of EWC delegates per country 

  Increasing the number of meetings 

  Better  taking  the  employees’  views  into  consideration  when  taking  decisions, 

and ensuring the management does not always oppose negotiations 

  Improving participation rights 

  Giving  more  prevalence  to  union  officials  as  members  of  the  EWC  to  allow  a 

more constructive dialogue on key issues 

  Ensuring the company’s structure remains international and keeps its EU focus  

  Reinforcing the EWC as a consultation body and making sure the EWC becomes 

a real communication platform between employees and the management 

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  Increasing  the  culture  of  social  dialogue  and  enhancing  the  circulation  of 

information to all employees 

  Preventing  EWC  members  from  using  the  EWC  as  an  information  and 

consultation forum for local issues 

  Renegotiating the internal codes of conduct 

  Safeguarding jobs and the right to conclude legal agreements directly with the 

employer 

  Dealing with different cultural backgrounds and managing language issues 

  Better defining ‘transnational’ decisions and agreeing on the same definition 

4.6  The  impact  of  the  Recast  Directive  on  the  extent  of  exceptions 

and derogations from the Directive 

One of the evaluation questions for the assignment concerns the extent to which the 
new rules have reduced the number of exceptions and derogations from the Directive, 
especially in terms of: 

  The number of Recast EWCs applying the subsidiary requirements, 

  The  number  of  agreements  not  ruled  by  the  Directive  because  of  the 

derogations foreseen in the Article 14. 

In  the  ETUI  database  out  of  1,072  EWCs  created  to  date,  only  17  are  reported  to 
follow  subsidiary  requirements  as  part  of  both  Directives.  This  accounts  for  around 
1.5% of the total number of EWCs.  

Since  the introduction  of the  Recast Directive, the  ETUI  database  reveals  that only  6 
bodies  are  operating  under  the  subsidiary  requirements;  which  are  set  out  in  the 
Directive  and  must  be  followed  if  an  employer  refuses  to  negotiate  after  receiving  a 
request to do so or, after 3 years  both sides fail to reach agreement on the terms of 
the  EWC67.  These  requirements  impact  on  the  number  of  meetings  required  with 
employees and when employees should be consulted in cases of major changes in the 
employment situation. So, for example, under these requirements, EWCs only need to 
meet  once  a  year  with  their  employees  and  some  companies  prefer  this  than  to 
renegotiate an EWC agreement which might require more meetings.  

Compared  to  the  number  of EWCs  created  under  the  Recast  rules, this indicates less 
than  one  in  ten  (8%)  of  EWCs  under  the  Recast  Directive  apply  subsidiary 
requirements.68  By  comparison,  before  June  2009  eleven  EWCs  operated  under  the 
subsidiary requirements. This is 1% of all EWCs created (operational/still in existence 
and  non-operational)  under  the  previous  directive  (Article  13  &  6)  and  only  2%  of 
EWCs created under Article 6 of Directive 94/45/EC.  

These  figures  therefore  suggest  an  increase  in  the  proportion  of  EWCs 
operating  under  subsidiary  rules  since  the  introduction  of  the  Recast 
Directive.  However,  it  should  be  noted  that  the  ETUI  database  may  underrepresent 
the number of EWCs which follow  the subsidiary requirements (under the Recast and 
original  Directive)  because,  for  example,  some  companies  who  failed  in  negotiations 
might not want to make it public and therefore might not have declared themselves or 

67 
http://www.lewissilkin.com/Knowledge/2013/November/~/media/Knowledge%20PDFs/Employment/Europe
an%20Works%20Councils.ashx. 
68 From the interviews conducted, however, this proportion is much smaller (1 out of 37 Recast EWCs) – a 
German company where both management and SNB decided jointly to let the three year negotiation period 
pass and opted for the subsidiary requirements. 

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another reason may be that companies might still be in the 3 year  negotiation period 
and the outcome of which are yet to appear in the figures.  

According  to  interviews  conducted  with  the  EU  level  social  partners  as  part  of  the 
study, many respondents did not perceive any impact on the level of EWCs operating 
under  subsidiary  requirements  and  others  responded  that  they  simply  did  not  know 
what the impact was. However, one suggested there was possibly a slight increase in 
the numbers  following  subsidiary  requirements  due  to  the fact that it  can  be  seen to 
be easier to follow subsidiary requirements than to negotiate enhanced provisions with 
employees.  A  counterbalancing  factor,  however,  would  include  the  desire  for 
companies to finalise negotiations quickly so as to maintain a good PR profile.   

In  this  regard,  it  is  important  to  investigate  why  EWC  negotiations  fail  in  order  to 
assess  the  factors  contributing  to  the  use  of  derogations  from  the  Directive.  From 
interviews conducted as part of the study, only 1 out of 37 Recast EWCs interviewed 
opted  for  the  subsidiary  requirements,  the  reason  being  that  both  management  and 
SNB decided jointly to let the 3 year negotiation period  expire given the difficulties in 
the  relationship  between  management  and  works’  representatives.  Based  on  a  study 
to evaluate the effectiveness of the European Works Councils in the transport sector69, 
from interviews with worker representatives from companies with either intentions to 
start  negotiations  or  ongoing  EWC  negotiations,  a  number  of  reasons  for  EWC 
inactivity or failure emerged: 

  A  lack  of  a  common  strategy  of  worker  representations  and  mistrust  among 
worker  representatives,  caused in  some  cases  due to  disagreements  over  how 
and  which  workers’  representatives  were  appointed  to  the  Special  Negotiating 
Body. 

  Lack  of  common  interest  between  national  /  local  workers’  representatives  for 

the setting up of the EWC. 

  Lack of common interest to deal with transnational issues in the EWC. This may 
arise for  example if  management  already  provides  more  extensive information 
on  transnational  matters  despite  not  being  obliged  to  within  national  level 
information 
national  workers’ 
representatives felt that they would have more impact in the national industrial 
relations framework with regard to national specific solutions. 

consultation 

procedures; 

also, 

and 

  Management  resistance  to  setting  up  an  EWC  and  thus  delaying  set  up  via 

slowing down negotiation processes e.g. delays in replies etc. 

  Mistrust  between  workers  and  employers  preventing  effective  meetings  and 

information exchange. 

Another  type  of  derogation  from  the  Recast  Directive  are  the  EWCs  created  or 
renegotiated in the interim period between June 2009 and June 2011 (so-called Article 
14b EWCs). In the whole population of EWCs created and functioning to date, Article 
14b  EWCs  constitute  only  3%  of  all  such  bodies.  Article  14b EWCs  negotiated  during 
the transposition period constitute 27% of all EWCs established since the adoption of 
the  Recast  directive.  This  represents  a  lower  proportion  compared  to  the  number  of 
Article 13 agreements when 45% of EWCs were created prior to entry into force of the 
rules of the previous Directive 94/45/EC. 

69 ICF (2015), Study to evaluate the effectiveness of the European Works Councils in the transport sector. 

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4.7  Key findings: the impact of the Directive on the number and the 

characteristics of the EWCs  

4.7.1  Limited creation of new EWCs 

The  trend  has  been  for  the  creation  of  around  20+  EWCs  per  annum  since  the 
transposition  deadline  for  the  Recast  Directive,  hence,  the  potential  to  create  the 
EWCs has not yet been fully exploited. Given that one of the goals of the Recast was 
to encourage the creation of more EWCs, this has maybe not been fully achieved. The 
reasons  for  not  establishing  EWCs  are  not  entirely  clear.  What  is  clear  is  that 
companies headquartered in countries with a tradition of strong employee information 
and  consultation  and  in  large  multi-nationals  headquartered  outside  the  EU  (but 
meeting the relevant thresholds), the setting up of such bodies has proved more likely 
than in companies with headquarters in Member States without such a strong tradition 
and in smaller companies. Although the Recast has also brought the establishment of 
more  EWCs in  sectors  previously  not  so  strongly  represented  (see  below), it  remains 
true that certain sectors (metalworking, chemicals etc.) are not only often larger, but 
also  tend  to  have  a  stronger  tradition  of  trade  union  activity  and  thus  the  push  for 
information and consultation bodies to be established. 

4.7.2  Renegotiation of existing agreements  

In  quantitative  terms,  the  Recast  Directive  has  provided  some  impetus  for  the 
renegotiation of existing agreements.  117 Article 13 and Article 6 EWCs agreements 
have been renegotiated since June 2009.  

Out of the recently renegotiated EWCs, around two-fifths adapted their agreement and 
relevant  definitions  in  line  with  the  new  Directive,  nearly  a  third  continued  to  follow 
the ‘old’ rules (either Article 13 or Article 6).  

The  revision  of  the  EWC  Directive  has  given  an  impetus  for  many  existing  EWCs  to 
review their agreement, even when the main reason was not to revise it according to 
the new rules but to revise it following broader business re-organisation or to address 
shortcomings in existing practices.  

The revisions of Article 13 and Article 6 agreements in line with the rules of the Recast 
Directive  have  not  necessarily  been  done  to  take  into  consideration  changes 
introduced by the Directive, but in many cases (albeit not all) the  changes introduced 
have  been  done  in  light  of  the  strengths  and  weaknesses  in  existing  practices  and 
priorities of each EWC. 

The ‘new rules’ that have had the greatest impact on the renegotiation processes have 
tended to concern: 

  Inclusion of new definitions on ‘information’, ‘consultation’ and ‘transnationality’ 

  Adaptation clause 

  A right to training 

  Role and protection of employee representatives. 

The  overall  sense  that  the  operation  of  EWC  which  had  re-negotiated  agreements  in 
line  with  the  enhanced  definitions  of  the  Recast  Directive  have  stayed  the  same  or 
improved  somewhat  (with  regard  to  consultation  and  transnationality  issues  in 
particular)  is  most  likely  due  to  the  fact  that  the  new  definitions  in  practice  do  not 
significantly serve to enhance the clarity of the content and process of information and 
consultation and what constitutes transnational matters.  

4.7.3  Reduction of derogations and exceptions from the Directive  

An increase in the proportion of EWCs operating under subsidiary rules (i.e. minimum 
conditions for the EWCs) since the introduction of the Recast directive is observed (but 
data recording issues might affect the reliability of this finding) 

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On a more positive side, there were fewer EWCs negotiated in the transposition period 
of  the  Recast  Directive  compared  to  the  number  of  EWCs  negotiated  in  the 
transposition  period  of  the  original  Directive.  This  indicates  less  inclination  of  the 
companies  to  make  use  of  the  perceived  more  lenient  rules  from  the  previous 
Directive.  

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5 

Other effects of the Recast Directive  

This section provides evaluation findings on other ‘effects’ of the Recast Directive: 

  The  role  of  ‘old’  and  ‘new’  EWCs  in  the  negotiation,  implementation  and 

monitoring of the transnational company agreements;  

  Practical  implementation  of  the  new  right  for  employee  representatives  to 

benefit from training without loss of salary;  

  The influence of the prevailing economic context on the implementation of the 

new rules of the Recast Directive.  

5.1  The 

impact  on  the  conclusion  of  transnational  company 

agreements  

Transnational  company  agreements  (TCAs)  are  typically  concluded  between  worker 
and management representatives on a specific issue applicable in the company across 
more  than  one  Member  State.  They  usually  cover  various  aspects  of  working  and 
employment  conditions  (such  as  health  and  safety,  mobility)  and  relations  between 
employers and workers or their representatives. The texts of agreements apply then in 
more than one Member State where the company is based.70  

The work of the European Commission in this area includes support to the  exchanges 
of  experience  between  companies  concluding  the  agreements,    and  monitoring 
(including a database of agreements maintained jointly with ILO), as well as setting up 
of an expert group which has produced a number of studies in this regard.71 

EWCs generally play a role in representing workers in the context of TCAs. Companies 
involved in concluding TCAs are mostly large multinationals in the metal, construction, 
chemicals  food  and  financial  sectors  with  headquarters  in  Europe  and  with  well-
established  EWCs.  The  initiative  to  start  a  transnational  negotiation  often  originates 
from  the  EWCs.  EWCs  have  signed  a  large  number  of  such  texts,  even  though  they 
have  no  formal  negotiating  powers  under  the  Recast  Directive.  Their  involvement  in 
negotiations  is  at  odds  with  national  systems  that  make  a  clear  distinction  between 
the consultative role of elected bodies (works councils) and the negotiating mandates 
entrusted to trade unions (in France for example) or which utilise a single trade-union 
channel for worker representation (in Italy or the Nordic countries for example).  

However,  the  evidence  in  the  evaluation  shows  only  a  limited  impact  of  the 
Recast  EWCs  on  the  conclusion  and  quality  of  the  transnational  company 
agreements.  Only  a  minority  of  Recast  EWCs  have  concluded  such 
agreements,  and  the  European  social partners interviewed  rated the  EWC impact in 
this  area  as insignificant.  Only the national social partners had a more positive 
view in this respect.  

Out  of  37  new  Recast  EWCs  assessed  in  depth  in  the  evaluation,  a  transnational 
company  agreement  was  negotiated  in  three  companies  on  the  following  issues  (see 
the box below for detailed case study findings): 

  UN Global Compact – 1 company  

  Health & Safety and Equal treatment - 1 company  

  Safety at work – 1 company. 

In a further five companies, the interviewees indicated that such agreements have not 
yet  been  negotiated,  but  they  expect  such  texts  to  be  negotiated  in  the  near  to 
medium term future.  

70 http://ec.europa.eu/social/main.jsp?catId=707&langId=en&intPageId=214.  
71 Ibid.  

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The limited number of such texts thus far negotiated could therefore be due to the fact 
that  many  EWCs  established  under  the  Recast  have  only  relatively  recently  begun 
their  operations  and  further  developments  along  these  lines  could  be  expected  in 
future. 

Case study findings: the role of Recast EWCs in the TCAs  

EWC A:  

The  EWC  has  concluded  two  European  framework  agreements  on  Health  &  Safety  in  June 
2014 and on Equal treatment in March 2015. The EWC has prepared the negotiation and one 
of  its  working  groups  ensures  the  follow  up.  A  negotiation  is  ongoing  about  Strategic 
Workforce  Planning  agreement.  According  EPSU,  the  EWCs  Representatives  from  Finland, 
France, Germany, Italy, Luxembourg, The Netherlands, Belgium, Poland, Sweden, the United 
Kingdom  and  Spain  met  for  the  5th  time  on  24  September  2015  on  this  issue.  The 
negotiations focused on how to set up a European Observatory of Skills into the company and 
how to carry out:  

  Regulatory monitoring of business activities with an analysis of any possible 

consequences on employment and skills;  

  Monitoring of changes to commercial trends (changing demands of customers-

tenders);  

  Monitoring of changes to the technologies specific to business activities and an 

analysis of any possible consequences on employment and skills; 

  An analysis of the requirements for qualifications, skills.  

It  appears  to  be  a  good  practice  to  set  up  working  group  that  will  prepare  a  negotiation, 
which  will  be  manage  by  unions  but  mainly  with  members  participating  within  the  working 
group, and that will become after the signature, a follow-up committee. 

EWC B: 

One  of  the  main  achievements  of  the  EWC  in  the  transport  sector  is  the  conclusion  of  a 
framework  agreement  and  a  Charter  on  Social  Rights  and  Ethics.  These  texts  provide  for  a 
framework and principles to be respected in all the countries where the company is based.  

The Social Rights and Ethics Charter  

This  Charter applies to all employees in all  the company and  subsidiaries and the EWC is  in 
charge  of  having  the  Charter  applied  everywhere.  As  mentioned  in  the  Charter,  it  aims  at 
“fostering a climate of enhanced mutual trust and respect in a work environment in which no 
form  of  discrimination  or  harassment  may  be  tolerated”.  In  an  annex  a  Corporate  Social 
Responsibility statement is also attached and “ensures that the activity of the company goes 
hand in hand with the promotion of social values and environmental quality”.  

The Charter covers the following areas:   

  Health and safety and dignity at the workplace 

  Employment, wages, working time and working conditions  

  Equality 

  Social dialogue  

This  Charter  also  puts  a  strong  emphasis  on  making  sure  that  all  the  principles  and 
fundamental rights enshrined in this text are respected by all subcontractors with whom the 
company maintains relations anywhere in the world.  

Framework Agreement on Outstations & Commercial organisations 

A framework agreement has been adopted and provides details on how to conduct the social 
dialogue  in  all  the  Member  States  in  which  the  company  operates.  It  is  not  binding  but 
national  trade  unions  have  welcomed  this  initiative.  Indeed,  as  this  agreement  has  been 
signed by the top management, the local management can hardly derogate to it.  

These  initiatives  are  particularly  relevant  in  a  context  of  search  of  economic  profit  where 
companies use more and more subcontractors or create subsidiaries to be competitive.  

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In the survey of EWCs following the Article 6 rules, out of 22 companies responding to 
this question, a Transnational Company Agreement had only been concluded in three 
companies (where it was considered that the EWC has given an important or the main 
contribution).  

Table 23.  Company  has  concluded  a  Transnational  Company  Agreements  to  which 
EWC has given an important or the main contribution: a survey of Article 6 
EWCs 

Yes/No 
Yes 
No 
Don’t know 
Total 

Number 
3 
13 
6 
22 

Share (%) 
14% 
59% 
27% 
100% 

Source: ICF analysis of Article 6 survey results (n=22).  

In  the  interviews  with  the  European  social  partners  (14  in  total),  most  stakeholders 
had no information on this particular question. Where the EWC impact was identified, 
it affected mainly the quality of the agreement.  

Less  than  a  third  of  the  national  social  partners  (29%)  thought  that  the  activities  of 
EWCs  had  led  to  an  increase  in  the  number  of  TCAs,  while  48%  thought  they  have 
increased  the  quality  of  TCAs.  More  than  two-thirds  of  the  respondents  (69%)  said 
that  EWCs  did  not  play  a  significant  role  in  the  negotiation  of  new  transnational 
company  agreements.  More  than  half  of  the  respondents  (52%) indicated  that  EWCs 
have neither improved nor reduced the quality of Transnational Company Agreements. 

Table 24.  The views on the national social partners (n=52) 

Impact on the number of TCAs 

Number of 
responses  

Impact on the quality of TCAs 

Number of 
responses   

EWCs have increased the number of 
TCAs/European Framework Agreements 
EWCs have reduced the number of 
TCAs/European Framework Agreements 
EWCs have not played a significant role 
in the creation of new of TCAs/European 
Framework Agreements 
Total  

15 

1 

36 

52 

EWCs have increased the quality of 
TCAs/European Framework Agreements 
EWCs have reduced the quality of 
TCAs/European Framework Agreements 
EWCs have neither improved nor 
reduced the quality of Transnational 
Company Agreements 
Total 

25 

N/A 

27 

52 

Source: ICF survey of national social partners.  

Since 2011, the European Commission funded a number of projects led by the social 
partners  to  build  capacity,  exchange  knowledge  and  further  support  the  work  of 
EWCs.72  The  issue  of  EWC  involvement  in  the  TCAs  has  also  been  covered  in  these 
projects.  The  project  UNI  Europa  EWCs:  Fit  for  Purpose  (VS/2013/510),  which 
organised five  workshops  with  over  100  trade union  representatives, EWCs  members 
and  coordinators  from  25  multinational  companies,  recommended  to  ‘develop 
activities with a view to […] define guidelines on a transnational company agreement’. 
The  possible  role  and  added  value  of  the  Transnational  Company  Agreements  were 
also  discussed  in  the  workshops  organised  in  the  framework  of  the  project  VS 
2012/3019  (training  for  employee  representatives  in  the  new  Member  States  and 
candidate countries in the construction sector organised by  the EFBWW).  This shows 
that  the  issue  of  the  EWC  involvement  in  the  TCAs  remains  topical  in  the  work  of 
EWCs,  with  the  need  to  provide  further  clarity  on  the  EWC  involvement  in  the  work 
accompanying the TCAs (see also section 3.2).  

The available research has also highlighted the increasing involvement of EWCs in the 
negotiation and implementation of the TCAs. EWCs are shown to become increasingly 
involved in the TCAs, especially in the context of managing the restructuring processes 

72 http://ec.europa.eu/social/main.jsp?catId=707&langId=en&intPageId=211.  

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in  the  companies.73  TCAs  on  restructuring  are  considered  to  be  examples  of  good 
practice  in  this  area.74  Such  EWC  involvement  in  the  TCAs  has  been  especially 
detected when the EWC agreements explicitly included the competence for the EWC to 
conclude  such  agreements.  Such  competences  are  provided  to  EWCs  in  companies 
that  include  Allianz  SE,  Crédit  Lyonnais,  Danone,  Danske  Bank  and  Solvay.75  This 
involvement  in  the  TCAs  is  also  becoming  increasingly  complex  and  is  considered  to 
require the development of further means and tools for the EWCs. This coincides with 
the  overall  policy  attention  at  the  European  level  devoted  to  the  support  of  TCAs, 
including the considerations of the European Commission.76 

5.2  Implementation of the new right for employee representatives to 

benefit from training without loss of salary 

5.2.1  Background 

The  Recast  Directive  introduced  a  new  right  to  training  for  employee  EWC 
representatives  without  loss  of  wages.  This  was  in  response  to  a  need  for  employee 
representatives to acquire a better understanding of the legal context related directly 
to  EWCs  but  also  to  industrial  relations  processes  (such  as  information  and 
consultation),  as  well  as  business  and  financial management  and  processes,  in  order 
to  carry  out  their  employee  representative  duties  in  EWCs  in  a  more  effective 
manner.77 There is also demand for the language training among EWC members.  

A study of Eurocadres found that  “the issue of training seems to be a real challenge, 
as  40%  of  the  respondents  did  not  receive  any  training  on  the  new  legislation  on 
information  and  consultation  either  at  the  national  or  European  level.  The  actual 
situation  on  this  topic  varies  widely  from  one  country  to  another  and  no  common 
pattern  can  be  found,  inasmuch  as  training  may  depend  on  trade  union  policies  or 
EWC agreements”.78 The 2008 preparatory study on the impact assessment on EWCs79 
concluded  that  over  half  of  the  companies  (58%)  with  Article  13  or  Article  6  EWCs 
offered a right for their EWC members to training but in a number of cases this ‘right’ 
referred to English language training only and in others it actually referred to rights for 
employee  representatives  of  national  worker  councils  rather  than  those  of  EWCs. 
Others argued that any reasonable training requests were usually approved as long as 
they were relevant, which is not the same as a ‘right’ to training. 

Research  by  the  ETUI  on  the  right  to  training  has  concluded  that  there  has  been  a 
significant  improvement  in  this  regard  following  the  Recast  Directive,  with  the  ‘right’ 
being  now  included  in  nine  out  of  ten  new  agreements  signed.  As  shown  by  Table 

73 Jagodzinski R. (2015), Variations on a theme? The implementation of the EWC Recast Directive, ETUI. 
74 Report Group of Experts Implementation of Recast Directive 2009/38/EC on European Works Councils, 
December 2010. 
75 De Spiegelaere S., Jagodzinski R. (2015), European Works Councils and SE Works Councils in 2015, Facts 
& figures, ETUI. The example of Solvay EWC is especially interesting. Since 1999, Solvay has signed several 
Transnational Company Agreements regarding health and safety, social policy and sustainable development. 
The last agreement installed a profit-sharing system which directly impacts the income of the Solvay 
employees. 
76 Commission Staff Working Document, Transnational company agreements: realising the potential of social 
dialogue, Brussels, 10.9.2012, SWD(2012) 264 final.  
77 The specific training needs for the EWC members have also been outlined in the academic research, 
Miller, D. (2001), Transnational worker representation and transnational training needs: the case of 
European works councils. International Journal of Training & Development. 5, 1, 34.  
78  Sample  of  42  EWC  –  type  of  agreement  not  specified.  Eurocadres  (2013),  Professional  and  Managerial 
Staff 
at: 
http://www.tek.fi/cmis/browser?id=workspace%3A//SpacesStore/5933049b-80ef-4dd3-9b3e-
261a1dade47a&filename=/kansainvalinen-vaikuttaminen/ewc-eurooppalainen-
yritysneuvosto/Competencies_EWC_Effectiveness.pdf.  
79 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission. 

effectiveness, 

competencies 

improving 

available 

EWC´s 

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below, the occurrence of this ‘right’ in the agreements has increased to 93% from less 
than a third of the original Article 13 agreements having such clause. 

Table 25.  Occurrence of a right to training in EWC agreements 

Before 1996 

1996 – 2000 

2001 – 2009 

Since 2009 

Yes 

No 

31% 

69% 

51% 

49% 

72% 

28% 

93% 

7% 

Source: 
http://www.etui.org/Publications2/Books/Benchmarking-Working-Europe-2014, p. 99 

Benchmarking 

Working 

Europe, 

(2014), 

ETUI 

available 

at: 

5.2.2  Evaluation findings 

The  evaluation  has  explored  the  qualitative  dimensions  of  this  right  by  examining 
whether  this  right  actually  materialises  in  practice.  Two-thirds  of  employee 
representatives  confirmed  that  employees  had  made  use  of  this  right  to 
training without loss of wages, whereas one-third confirmed that this was not the 
case.  Overall,  the  main  reasons  for  the  lack  of  take-up  of  training  in  the  new  EWCs 
included: 

  The  EWC  was  just  recently  established  and  the  members  had  not  yet  had  the 

time to consider training requests. 

  There was no demand among members (yet). 

Among those who had requested training, the vast majority (80%)  of EWC members 
noted that there had been no particular challenges in securing it. The remaining ones 
(20%)  consistently  identified  one  challenge  of  the  reluctance  of  the  management  to 
allow such training to take place or leave to be taken. In one particular case the issue 
was  caused  by  decentralisation  of  the  responsibility  to  finance  EWC  related  training 
from  central  to  local  management.  The  practical  implication  of  this  was  that  the 
members coming from countries with the weakest tradition of worker information and 
consultation  suffered  most  as  local  managers  in  these  countries  were  not  as 
supportive  of  training  as  managers  in  countries  where  worker  representatives  play  a 
bigger role and have more rights.  

Those  members  of  Recast  EWCs  that  have  taken  up  this  right  have  received,  on 
average, 1-3 days of training per year. 

Table 26.  Number of days of training per year 

0 

Up to 5 days 

5-10 days 

10+ days 

Share of respondents (%) 23 

65 

12 

0 

Source: Based on a survey of employee representatives of Recast EWCs: 26 valid responses out 37 EWCs in 
the sample.  

The  most  common  topics  of  training  included  legal  (mentioned  by  25%  of 
respondents)  and  economic  (15%)  affairs,  as  well  as  languages  and  communication 
skills  (37%).  In  other  cases,  employees  were  given  training  on  specific  transversal 
skills,  such  as  negotiation,  or  the  training  took  the  form  of  team  building.  In  other 
cases training was specific to the work in the different aspects of EWCs. 

5.2.3  Benefits and costs of training  

The benefits of training identified by the employee members have been manifold and 
relating to several aspects, including improved soft skills and better awareness of the 
EWC  mandate  and  possibilities  as  well  the  legal  EWC  framework  and  different 
experiences of other EWCs (see Figure 13).  

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Figure 13. The benefits of training in Recast EWCs 

Enhanced mutual understanding, trust and 
understanding 

Improved soft skills: communication, language 
and negotiation skills 

Improved understanding of financial 
management of multi-national corporations 

Increased buy-in and ability to contribute to the 
EWC; at the same time more realistic 
expectations of potential achievements of EWCs 

Source: Interviews with the employee members of Recast EWCs.  

Since 2011, the European Commission funded a number of projects led by the social 
partners  to  build  capacity,  exchange  knowledge  and  further  support  the  work  of  the 
EWCs.80  The  key  activity  financed  in  such  projects  was  the  training  and  information 
exchange  provided  to  the  different  EWC  members.  The  results  of  these  projects 
showed  that  the  participants  in  the  seminars  were  better  equipped  with  knowledge, 
confident and able to fulfil their EWC mandate following the training.81 Individual EWC 
representatives  were  more  aware  of  their  rights,  and  more  determined  to  ensure 
employers  meet  their  legal  obligations  to  inform  and  consult  at  European  level.  The 
implementation  of  joint  EWC  member  training  sessions  enables  trainers  belonging  to 
partner  trade  unions  to  respond  to  the  needs  of  information  and  training  of  their 
members,  based  on  a  practical  knowledge  of  the  latest  legal  texts;  knowledge  of 
existing  good  practices  in  terms  of  transnational  social  dialogue,  information  and 
consultation  process,  and  link  between  national  and  European  information  and 
consultation levels. 

In terms of quantifiable costs of training to the companies, 22 EWCs operating under 
Article  6  rules  had  an  annual  average  EWC  training  expenditure  of  around  EUR 
43,800.82  

15  Recast  EWCs  (where  the  cost  data  was  provided  to  the  evaluation)  report 
significantly lower training costs, with the annual average training cost of around EUR 
12,000 (these cost estimates do not tend take into account travel costs or time costs, 
but  mostly  costs  related  to  the  fees  for  trainers  and  possible  venue  costs,  when 
applicable). No geographical or sectoral patterns were identified.  

The  potential  reduction  in  the  training  costs  compared  with  the  Article  6  EWCs  is 
unlikely  to  be  directly  related  to  the  Recast  Directive  per  se,  but  more  likely  to  be 
associated  with  a  smaller  companies  operating  the  Recast  EWCs  and  the  fact  that 
many Recast EWCs are very new with only a year to two operation behind them. This 
means  that  in  some  Recast  EWCs  the  new  EWC  employee  representatives  have  not 
yet requested or organised the training.  

This  has  also  been  highlighted  by  a  recent  Eurofound  study  which  found  that  “the 
EWCs  studied  here  did  not  show  significant  changes  in  their  functioning  directly 
resulting from the recast Directive. This might be because they are examples of EWCs 
that had already developed beyond the previous legal minimum requirements by, for 
example,  having  implemented  provisions  on  the  training  of  EWC  members,  holding 
more than one annual plenary meeting or having further fine-tuned their information 
and consultation mechanisms”.83  

80 http://ec.europa.eu/social/main.jsp?catId=707&langId=en&intPageId=211.  
81 Based on ICF analysis of the final project activity reports.  
82 Source: ICF survey of 22 EWCs.  
83 Eurofound (2015), European Works Council developments before, during and after the crisis, p.1. 

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Table 27.  Estimated annual budget spent on training of EWC members (Recast EWCs) 

(EUR) 

None  <5,000  5,000-10,000  10,000-20,000  20,000-30,000 

30,000+ 

Share of respondents 21% 

37% 

10.5% 

5% 

10.5% 

16% 

Source: Based on a survey of employee representatives of Recast EWCs: 19 valid responses out of 37 EWCs 
in the sample.  

The EU social partners were also asked to comment on the practical implications of the 
introduction  of  this  new  ‘right’  to  training  without  loss  of  wages.  Two  of  the  thirteen 
respondents  identified  this  as  the  biggest  practical  success  of  the  new  Directive. 
Several  raised  concerns  about  potential  bias  in  the  content  of  training  courses 
providing  as  they  tend  to  be  either  management  or  trade  union  led,  rather  than 
‘independent’.  One  respondent  called  for  more  simultaneous  training  of  management 
and  worker  representatives.  Several  stakeholders  also  raised  concerns  around  this 
right  potentially  causing  disagreements  as  a  result  of  costs  and  relevance  of  training 
courses now that the availability and access to training has improved. 

5.3  The effect of the prevailing economic context on the 

implementation of the new Recast Directive rules 

The  majority  of  respondents  from  the  management  and  employee  representatives  of 
Recast EWCs as well as those that have recently renegotiated their agreement in line 
with  the  new  rules  stated  that  the  financial  crisis  had  not  really  affected  the 
work  of  their  EWCs.  This  is  because  many  new  EWC  negotiation  processes  started 
after  the  worst  period  of  the  crisis  in  the  HQ  country  and  the  prevailing  economic 
climate  was  therefore  no  longer  that  negative  or  had  already  become  ‘the  new 
normal’. However, in those cases where the economic context affected the work of the 
EWCs, it had the following implications (see Figure 14). 

Figure 14. Implications of the financial crisis on the Recast EWCs 

Companies became more aware of costs and 
weighed up the costs and benefits of all 
 
activities (not only EWC related) more carefully 

Financial concerns of the company, and 
potential cost-cutting measures dominate EWC 
meetings in terms of their contents 

 

The management openly discussed the financial concerns of the company and asked EWCs members to 
respect some cost-cutting measures during difficult times (i.e. reduced number of interpreters, cheaper 
hotel, cutting the length of the plenary meeting from 3 to 2.5 days, etc.) 

Source: Interviews with management and employee representatives of Recast and Renegotiated EWCs.  

The  EU  social  partners interviewed in  the  evaluation  were  also  asked to  consider  the 
impact of the financial crisis. About half of the representatives consulted did not think 
the  financial  crisis  had  had  any  particular  or  significant  effect  on  the  set  up  or 
operation  of  EWCs.  Sometimes,  however,  the  overwhelming  turmoil  in  the  industry 
had side-lined social dialogue as a priority topic.   

Those that highlighted a more visible impact stressed an increased number of matters 
to be considered for EWCs (including a greater number of restructuring processes) and 
the loss of EWC members. One of the interviewees highlighted that in some companies 
the  crisis  and  the  management  of  its  effects  caused  frictions  while  in  others  it 
increased  cooperation  between  the  two  sides  as  both  wanted  to  work  towards  the 
future (and sustainability) of the company.  

The available research also indicates a mixed evidence on the impact of the crisis on 
the work of the EWCs. The impact of the crisis on the work of the EWCs is considered 

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to  have  been  indirect  via  the  changes  to  company  set  in  motion  by  the  economic 
crisis.84  The  restructuring  cases  occurring  in  the  aftermath  of  the  crisis  (especially in 
the  financial  and  automobile  sectors)  did  challenge  the  existing  EWCs  to  provide  an 
adequate  response.85  However,  the  research 
found  that  such  crisis-related 
restructuring  also  offered  some  EWCs  an  opportunity  to  clarify  information  and 
consultation procedures. 

5.4  Summary of key findings: other impacts of the Directive  

The evidence shows a limited impact of the EWCs on the conclusion and quality of the 
transnational  company  agreements.  Only  a  minority  of  EWCs  have  concluded  such 
agreements,  and  the  European  social  partners  interviewed  rated  the  EWC  impact  in 
this area as insignificant. This is at least partly due to the fact that many Recast EWCs 
have  not  been  operational  for  a  long  period  of  time  and  this  finding  could  therefore 
change in the years to come. 

There  has  been  a  significant  improvement  in  the  ‘right’  to  training  without  loss  of 
salary.  The  occurrence  of  this  ‘right’  in  the  agreements  has  increased  to  93%  from 
less than a third of the original Article 13 agreements having such clause. Two-thirds 
of interviewed  Recast EWCs  employee representatives  confirmed  that  employees  had 
made  use  of  their  right  to  training  without  loss  of  wages.  Among  those  who  had 
requested  training,  the  vast  majority  (80%)  of  EWC  members  noted  that  there  had 
been no particular challenges in securing it.  

The economic and financial crisis had not really affected directly the work of the EWC. 
In  those  cases  where  the  economic  context  affected  the  work  of  the  EWC,  the 
management openly discussed the financial concerns of the company and asked EWCs 
members to respect some cost-cutting measures during difficult times.  

84 Eurofound (2015), European Works Council developments before, during and after the crisis, p.1.  
85 Fetzer, T. (2012), From nationalism to European patriotism? Trade unions and the European works council 
at General Motors, Journal of European Public Policy, April 2012, Vol. 19 Issue 3, p342-357.  

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6 

Effects of the Recast Directive on information and 
consultation in EWCs 

This  section  provides  an  examination  of  the  effects  of  the  Recast  Directive  on  the 
primary functions of EWCs: 

  Receiving information from the management on transnational matters;  

  Serving  as  a  consultation  forum  on  corporate  decisions  or  strategies  

(e.g. restructuring).   

First,  this  section  provides  an  overview  of  the  issues  that  arose  under  the  original 
Directive of 1994 in relation to the concepts of information and consultation, as well as 
transnationality.  This  is  followed  by  a  brief  description  of  the  rationale  and  the  new 
provisions  of  the  Recast  Directive,  in  particular  its  definitions  of  ‘information’, 
‘consultation’ and ‘transnational matters’. Then, the analysis is provided of the survey 
with  the  EU  and  national  partners  and  from  interviews  with  employer  and  employee 
representatives of Recast EWCs.  

The  aim  of  this  section  is  to  highlight  the  main  effects  of  the  rules  of  the  Recast 
Directive  on  the information  and  consultation functions  of  EWCs,  and in  particular  on 
the extent to which the views of the EWC are taken into account in the transnational 
corporate decisions pertaining to business restructuring.  

6.1  Issues arising in relation to the implementation of information 

and consultation in the Directive 94/45/EC 

The  main  rationale  behind  the  drafting  of  the  original  EWC  Directive  of  1994  was  to 
provide  an  effective  means  for  workers  to  be  informed  and  consulted  on  such 
developments  which  can  and  do  affect  decisions  on  employment  and  working 
conditions (c.f. Article 1.1 of the Directive). It thus sought to bridge a “representation 
gap”  between  increasingly  transnational  corporate  decision  making  and  employees’ 
nationally defined information and consultation rights86.  

Directive 94/45/EC itself does not contain a full definition of the “information” concept, 
beyond  mentioning  that  it  “shall  relate  in  particular  to  transnational  questions  which 
particularly affect workers’ interests”87. Consultation is defined in the Directive as the 
“exchange of views and establishment of dialogue between employees’ representatives 
and central management or any more appropriate level of management”88. 

The  absence  of  a  full  and  detailed  definition  of  information  and  consultation  in  the 
1994  Directive  led  to  different  interpretations  of  these  concepts  in  transposing 
legislation and – maybe more significantly  in their practical application89.  

A  2006  report  by  Eurofound  on  European  Works  Councils  and  Transnational 
Restructuring  and  the  Preparatory  study  for  an  impact  assessment  of  the  EWC 
Directive  carried  out  by  GHK  in  2008  both  found  that  “although  most  EWCs  are,  on 
paper, well equipped to deal with issues surrounding restructuring (e.g. in respect to 
the nature of the information they should regularly receive and through the possibility 
of holding extraordinary meetings), it is rare for agreements to state  – and in reality 

86 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission. 
87 Article 6(3) of Directive 94/45/EC. 
88 Article 2(1)(f) of Directive 94/45/EC. 
89  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 
informing 
at: 
http://ec.europa.eu/social/main.jsp?catId=707&langId=en&intPageId=211.  

employees, 

consulting 

available 

and 

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for  meetings  to  occur  in  time  to  allow  for  meaningful  consultation  or  for  the  EWC’s 
position to be taken into account prior to restructuring decisions being taken”90. 

Eurofound‘s  2006  study  which  included  a  review  of  agreements  concluded  under  the 
1994  Directive  (Article  6  agreements)  showed  that  only  28%  of  them  make  explicit 
reference to the provision of information and consultation in good time91. This finding 
is echoed by a study conducted by ETUC in 2014 which reveals that less than one in 
twenty  (4.1%)  EWC  established  before  2009  contained  robust  definitions  of 
information and consultation92.  

The absence of an exhaustive definition of information and consultation in most of the 
agreements under the 1994 Directive resulted in issues regarding the extent to which 
these  bodies  were  able  to  meet  their  original  purpose  as  set  out  in  the  Directive. 
Surveys  conducted  in  200593  and  200894  provided  baseline  information  regarding 
timing of provided information and consultation in restructuring processes.  

Table 28.  Timing  of  information  and  consultation:  was  the  EWC  consulted  on 

restructuring 

When 
Before the decision was finalised 
Before  the  decision  was  made 
public 
After the decision was made public  20% 
30% 

  Not at all 

The 2005 study (N=473) 
20% 
30% 

Same time as the board 

  Before press release 
  When announced to the press 

The 2008 study (N=45) 

20% 
4% 
38% 
18% 
20% 

Source:  Waddington  J.  (2005),  University  of  Manchester,  and  EPEC  GHK  (2008),  Preparatory  study  for  an 
Impact Assessment of the European Works Council Directive, European Commission. 

The  results  show  that  EWCs  under  the  1994  Directive  had  limited  opportunities  to 
influence transnational corporate restructuring decisions through the exercise of their 
information and consultation function.  

Work  conducted  by  Eurofound95  confirmed  that  in  the  majority  of  cases  information 
was  only  be  provided  to  the  EWC  employee  representatives  after  the  decisions  had 
been taken by the board. In particular, the study suggested that this was the result of 
a very narrow application of the notion of “consultation” on the basis of the wording of 
the Directive.  

The  limited  role  of  EWCs  in  restructuring  was  also  influenced  by  the  lack  of  a  clear 
definition  of  transnationality  in  the  1994  Directive,  which  was  considered  by  the 
Eurofound study to work against the purpose of EWCs. 

The survey conducted for the Eurofound study showed that  employers and a majority 
of employee representatives argued that detailed discussions on the implementation of 
restructuring  processes  should  be  left  to  the  local  level.  Their  understanding  of  the 
legislation  was  that  while  EWC  members  can  be  informed  of  transnational  decisions 
with  the  possibility  of  discussing  them  or  asking  questions,  detailed  consultations  or 

90 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission., p. 73. 
91 Eurofound (2006), European Works Council and transnational restructuring, p. 14. 
92 ETUI (2014), Benchmarking Working Europe, p. 99. 
93 Waddington J. after: European Commission (2008), Staff Working Document accompanying the Proposal 
for  a  Directive  of  the  European  Parliament  and  the  Council  on  the  establishment  of  a  European  Works 
Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for 
the purposes of informing and consulting employees (recasting), COM(2008) 419 final, p. 18. 
94 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission.  
95 Eurofound (2008), European Works Councils in practice: Key research findings Background paper, p. 5. 

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negotiations  subsequently  take  place  at  the  national  or  local  level  –  i.e.  the  level 
generally directly impacted by restructuring decisions. 

The 2008 study of GHK showed that 80% of the survey respondents (both employers 
and  workers)  considered  that  the  EWC  information  and  consultation  processes  had 
made no difference to the implementation of restructuring plans. 

The  studies  on  the  functioning  of  EWCs  under  the  1994  Directive  raised  issues 
regarding provisions on the timeliness of information and consultation and the precise 
nature of the consultation process, as well as highlighting the need for greater clarity 
regarding  the  concept  of  transnationality.  They  revealed  a  contrast  between  the 
aspirational  role  that  EWCs  could  potentially  play  in  the  context  of  transnational 
restructuring  and  the  often  minimalist  interpretation  of  the  existing  rules  of  the 
Directive  in  practice.  The  lack  of  clear  definitions  in  the  original  Directives  was 
considered to be a weakness in this regard. 

6.2  Improvements under the Recast Directive with respect to 

information and consultation and the definition of 
transnationality 

To  remedy  issues  around  the  appropriate  information  and  consultation  of  EWCs  and 
the concept of transnationality, the Recast Directive aimed to increase legal certainty96 
by  introducing  definitions  which  are  in  line  with  other  Community  legislative 
instruments97 (in particular the 2002 Societas Europaea (SE) Directive98). 

Directive  2009/38/EC  aimed  to  bring  clarity  and  reinforce  the  obligation  for  the 
management  to  inform  employees  by  providing  guidance  on  the  steps  to  follow.  It 
states  that  information  must  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’99 meaning that information, in terms of both 
form and content, should be delivered in such a way that it enables the EWC to carry 
out a detailed examination of the potential effects of planned decisions in preparation 
for possible consultations with competent management representatives100. 

Another change relating to definitions is the  attempt to provide a clarification of what 
was  meant  by  ‘consultation’  in  the  Directive.  The  new  Directive  2009/38/EC  brought 
more  details  to  this  definition  which  now  attempts  to  clarify  the  consultation  process 
by adding for instance that this must ‘enable employees’ representatives to express an 
opinion  on  the  basis  of  the  information  provided’101.  This  attempts  to  reinforce  the 
information and consultation rights of EWCs which appear as two different procedures 
but which are nonetheless strongly interrelated.   

One  of  the  main  changes  was  also  the  insertion  of  a  definition  of  ‘transnational 
matters’.  The  criterion  used  for  determining  transnational  matters  is  ‘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’102. This sought to clarify the scope of matters 

96  Recital  7,  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). 
97 Article 2 of Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company 
with regard to the involvement of employees (‘the SE Directive’). 
98 Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with 
regard to the involvement of employees. 
99 Article 2(1)(f) of Recast Directive 2009/38/EC. 
100  http://www.worker-participation.eu/European-Works-Councils/Recast-Directive/Frequent-Questions-on-
the-recast-EWC-directive-2009-38-EC. 
101 Article 2(1)(g) of Recast Directive 2009/38/EC. 
102 Article 1(4) of Recast Directive 2009/38/EC. 

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EWCs  should  deal  with  compared  to  national  or  matters  that  should  be  dealt  with  at 
the national or local level respectively. 

The effects of these changes in practice have been recently assessed. The 2014 ETUI’s 
review  of  EWC  agreements  shows that there has  been improvement in  the  quality  of 
definitions used in the agreements. Since 2009, a majority of newly-established EWCs 
have  adopted  the Recast  Directive’s  definitions  of information  and  consultation  (57% 
of all EWC agreements)103. 

6.3  Impacts of the Recast EWC Directive on definitions of 
information and consultation in EWC agreements 

6.3.1  Definitions of information  

Out  of  the  37  companies  operating  a new  ‘Recast  EWC’  and  analysed in  detail in  the 
evaluation,  25  (or  73%)  have  an  agreement  which  transposes  closely  the 
definition  of  information  in  the  Directive  2009/38/EC.  This  also  includes  eight 
EWC agreements which refer to specific circumstances (e.g. to make decisions quickly 
in  a  competitive  environment),  include  time  limits  for  the  provision  of  information 
(e.g.  30  days  before  a  meeting)  or  even  specific  rules  about  the  information  to  be 
provided  and  how  this  should  be  treated  (e.g.  with  reference  to  the  stock  market 
rules).  This  indicates  an  additional  more  extensive  definition  of  information  in  a 
substantial number of EWCs.  

Four  companies  have  an  agreement  which  only  partially  covers  the  definition  of 
information  provided in  the  Recast  Directive  and  falls  short  of  the  definition  provided 
in  the  Recast  Directive.  This  applies  to  the  agreements  where  only  part  of  the 
information  definition  of  the  Recast  Directive  has  been included  or  only  the  areas  for 
which information has to be provided are defined. Of the 37 companies, 5 companies 
have an EWC agreement which does not include a definition of information.    

Figure 15. Implementation  of  the  Recast  Directive’s  definition  of  Information  in  37 

newly-established EWC agreements (views of the EWC)  

Partly in line 
with Directive, 
11%

No definition, 
14%

Not in line with 
Directive, 3%

Source: ICF interviews with the EWC members. 

In line with 
Directive, 73%

103 ETUI (2014), Benchmarking Working Europe, p. 99. 

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6.3.2  Definitions of consultation 

Of the 37 new, ‘Recast EWCs’ interviewed (and with valid information for this section), 
28  (or  76%)  have  an  agreement  which  transposes  closely  the  definition  of 
consultation  in  the  Directive  2009/38/EC.  Three  companies  have  an  agreement 
which  only  partially  covers  the  definition  of  consultation  provided  in  the  Recast 
Directive.  Here,  “partially  in  line”  is  applied  to  agreements  which  do  not  provide  an 
actual definition of consultation or which do not make a clear distinction between the 
definitions “information” and “consultation”. Six companies have an agreement which 
does not include a definition of consultation. 

Figure 16. Implementation  of  the  Recast  Directive’s  definition  of  Consultation  in  37 

newly-established EWC agreements 

Partly in line 
with Directive, 
8%

No definition, 
16%

In line with 
Directive, 76%

Source: ICF interviews with the EWC members. 

In  summary,  the  majority  of  new  agreements  include  definitions  of  information  and 
consultation  in  line  with  the  Recast  Directive.  A  small  number  of  new  agreements  in 
the  sample  (approx.  15%)  do  not  contain  either  of  these  definitions.  For  around  a 
third of the new agreements, the definitions of information and consultation have been 
re-interpreted  to  various  degrees.  Certain  agreements  interpret  information  and 
consultation in a way that falls short of the definitions provided in the Directive, while 
other  agreements  provide  further  specific  rules  or  criteria  in  relation  to  these  two 
concepts.  

In  the  case  study  (see  Box  below),  out  of  15  EWC  agreements  reviewed  in  depth,  a 
third contained extensive lists of subjects of the information to be provided to the EWC 
and over a half contained more extensive rules for consultation process in the EWC.  

Case  study  findings:  comparison  of  the  definition  of  information  and  consultation  in 
15 EWC agreements concluded since 2011  

The evaluation team examined in depth the specific definitions  of information and  consultation 
in  15  EWC  agreements  (randomly  selected).104  The  absolute  majority  of  15  EWC  agreements 
used verbatim or more extensive definitions of information and consultation.  

In relation to defining ‘information’:  

104 http://www.ewcdb.eu/search_agreements.php.  

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  Six agreements used the verbatim definition of information in the Recast Directive; 

  Five agreements used a more extensive definition by providing an extensive list of subjects 

for information;  

  Three agreements did not contain a definition of information; 

  One  agreement  was  using  a  definition  of  information  which  was  less  extensive  than  the 

Recast Directive. 

In relation to defining ‘consultation’:  

  Eight  agreements  used  a  more  extensive  definition  by  providing  an  extensive  list  of 
subjects  for  consultation;  timing  for  consultation  (4  weeks);  required  the  provision  of 
information to local working councils and Unions before consultation at the European level 

  Four agreements used the verbatim definition of consultation in the Recast Directive; 

  Three agreements did not contain a definition of consultation.  

Views  among  the  EU  and  national  social  partners  provided  to  this  evaluation  were 
mixed  regarding  the  impact  of  the  Recast  Directive  as  regards  the  definitions  of 
information and consultation. While around two-thirds of respondents (65%) hold the 
view  that  the  situation  has  remained  the  same  as  under  the  previous  Directive,  less 
than one-third (29%) indicated that, in practice, there have been improvements in the 
timing, level  and  scope  of  the information  and  consultation  of EWCs  on transnational 
matters.  

Indeed, for most social partners, the Recast Directive constitutes a clearer legal basis 
with  regard  to  the  information  and  consultation  process.  Others  argued  that  EWC 
members  have  a  better  knowledge  of  their  rights  and  duties  thanks  to  the  Recast 
Directive, and that this will further improve with experience in applying the new rules 
on information and consultation. 

All  of the  national  social  partners  who provided  a  reason  as to  why  they  thought  the 
situation had improved commented on the greater awareness by representatives and 
employers about the Directive. Out of these respondents, three specifically mentioned 
that  representatives  are more  aware  of  what is  expected from  the  employer  and  ask 
for their rights to be met.  

Table 29.  Change in the timing, level and scope of the information and consultation of 
EWCs on transnational matters – views of national social partners 

Decline 

No change 

Improvement 

Number  

Share (%) 

3 

6 

34 

65 

15 

29 

Source: ICF survey of national social partners, based on 52 responses to the question. 

Among  the  national  social  partners  (primarily  trade  unions)  who  indicated  “no 
change”,  some  of  the issues  raised  were  that  the  Recast  Directive  was  considered  to 
be  not  ambitions  enough  with  the  new  definitions,  there  is  no  obligation  among 
companies  to  implement  the  wording  of  the  definitions  (e.g.  allowing  Article  13 
agreements to continue to stay in force); insufficient sanctions for late information and 
consultation,  and  that issues  around  confidentiality  and  ‘stock  market  rules’  continue 
to hamper effective information and consultation in practice. 

Motivation,  understanding  and  buy-in  from  senior  management  is  key  for  the 
implementation of the Directive to be successful. Some respondents have pointed out 
that corporate culture and management’s openness to change play an important part 
in this respect.  

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6.4  Practical impacts of the Recast EWC Directive on information and 
the  consultation  process  in  the  EWCs  operating  under  the  new 
rules 

The  analysis  of  the  impacts  of  the  Recast  Directive  focusses  on  stakeholders’  views 
regarding  the  timing  and  quality  of information  provided,  the  process  of  consultation 
(including its timeliness) and the extent to which employee views are taken on board. 
Furthermore,  this  section  highlights  the  issues  around  the  articulation  of  different 
levels of information and consultation and delivers an assessment of the factors which 
contribute to the good/poor functioning of information and consultation processes. 

6.4.1  Timeliness and quality of information and consultation processes 

In  the  Recast  Directive,  timeliness  refers  to  providing  information  ‘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’. 
Consultation processes must ‘enable employees’ representatives to express an opinion 
on the basis of the information provided.’ 

6.4.1.1  Views of employee representatives 

According  to  the  feedback  from  34  employee  representatives,  information  is 
considered to be delivered in a timely fashion (e.g. in advance of a decision) in 
practice in the majority (76%) of cases.  

Figure 17. Employee  representatives’  perception  of  the  extent  to which  information is 

received by EWCs before decisions are made by management 

No, 24%

Information is received by 
EWCs before decisions are 
made by management

Yes, 76%

Source: ICF interviews conducted with 33 EWC employee representatives.  

Many among them have also argued that when information is disseminated in a timely 
manner  it  results  in  improvements  in  the  relationship  between  members  of  the 
management and staff representatives. Some other respondents argued that there is 
some  room  for  improvement,  and  that  inconsistencies  can  also  arise  in  the  timely 
dissemination of information. This seems to be related to the nature of the information 
itself and its degree of complexity (e.g. complex company level financial information).  

Some  respondents  have  criticised  how  management  members  consider  what 
constitutes  timeliness  in  the  dissemination  of  information.  As  has  been  the  case  for 
EWCs  established  under  Directive  94/45/EC,  stock  market  rules  are  often  quoted  by 
management as reasons for not revealing information earlier. 

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Employee  representative  in  an  IT  company:  “The  management  says  that  the 
company  is  transparent.  The  EWC  receives  information  2-3  days  before  everybody 
else.  Last  year  the  reorganisation  was  made  and  the  EWC  was  not  informed  –  the 
management claimed that they took the decision on the same day. The company is 
on the stock exchange; this limits timing to provide information.” 

A considerable number of the companies have not had an EWC for very long, therefore 
some  of  the  respondents  were  unable  to  assess  the  situation  of  transmitting  the 
information. Some of them have reported that the transmission process can be slowed 
down due to the fact that EWC operations are still in their infancy and that it can take 
time before such processes can be carried out more fluidly. 

It appears that there is considerable variation in terms of the effects of the Directive 
on  information  transmission,  according  to  the  responses  provided  by  the  employee 
representatives.  Timeliness  remains  a  concept  which  is  open  to  interpretation  as  no 
specific timescales are provided in the Recast Directive or most transposing legislation 
at  the  national  level.  The  timeliness  of  information  provision  also  seems  to  vary 
depending on the contents of the information disseminated. As a result, a number of 
respondents  take  the  view  that  the  consultation  rights  of  employee  representatives 
can be negatively affected in such circumstances. 

6.4.1.2  Views of management 

From  the  feedback  obtained  from  employer  representatives,  most  companies 
operating under the new rules (60%) have not experienced any technical difficulties in 
providing  information  to  the  EWC  members.  On  the  other  hand,  some  employer 
representatives  have  indicated  that  issues  with  the  transmission  of  information  arise 
from difficulties in determining which decisions have a transnational impact and what 
this impact may be. 

Employer  representative  in  a  steelmaking  company:  “No  difficulties  [in  providing 
information] but the main challenge is to identify the transnational impact of projects 
and then to anticipate the information/consultation if needed.” 

Employer representative in an industrial company: “[We] find it difficult as this is very 
vaguely  formulated  in  the  Directive  and  nationally:  not  sure  when  the  impact  is 
national  only  or  transnational.  This  is  a  hotly  debated  issue  between  employees  and 
the company.” 

Other feedback indicates that employers can take it upon themselves to decide which 
transnational  issues  require  rapid  communication  and  which  are  only  delivered  to 
regular plenary meetings (which can lead to some time delay).  

Employer  representative  in  a  corporate  services  company:  “No  difficulties  have  been 
experienced.  However,  the  management  do  not  provide  transnational  information 
continuously. It has to select ‘important’ information, which needs to be passed to the 
EWC (or Select Committee) immediately, and ‘less important’ information that lead to 
an information at the next plenary meeting.” 

A  number  of  arguments  made  also  highlight  that  fact  that  priority  in  providing 
information  continues  to  be  given  to  the  national  level  of  worker  information  and 
consultation  (even  when  this  pertains  to  transnational  matters).  Stock  market  rules 
and concerns over breaches of confidentiality also continue to be quoted as concerns 
by employer representatives and are provided as reasons for consultations with EWCs 
not being a priority.  

Employer representative in an electricity company: “Information gets out in the press 
before the meetings. Management don’t see informing the EWC as a priority. National 

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workers  councils  will  discuss  topics  first.  Topics  discussed  at  the  EWC  level  generally 
have already been discussed in the National Works Council.” 

Most of the employer representatives of newly-established EWCs interviewed indicated 
that  the  consultations  of  EWC  members  have  not  led  to  changes  in  the  decision-
making process, or indeed to a different decision. Only a few employer representatives 
mentioned  that  the  opinions  of EWC  employee  representatives  are usually  taken into 
account in the company decisions. Others have indicated that it is too soon to tell as 
their respective EWCs have not been operating long enough (and/or have not yet dealt 
with restructuring situations).  

Many respondents on the management side have argued that the consultation of EWC 
members  brings  benefits  to  all  parties  in  many  ways:  for  example,  the  consultation 
process  improves  the  common  understanding  of  issues  among  members  and  also 
leads to fruitful discussions and useful suggestions. 

In summary, the delivery of information is defined in the Directive as information that 
is  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’.  Clear  differences  can  be  shown  in  relation  to  how  this  is  further 
defined in national legislation, individual agreements and in practice. In some cases, it 
is  not  clear  how  implementation  in  practice  meets  the  requirement  of  allowing 
employees’  representatives  to  undertake  an  in-depth  assessment  of  the  possible 
impact’, thus limiting the consultation process in practice.  

The  majority  of  employee  representatives  are  generally  satisfied  with  their 
experiences in the timeliness of information transmission and argue that where this is 
provided,  it  has  improved  their  relationships  with  management.  Overall,  employer 
representatives  of  newly-established  EWCs  do  not  consider  that  they  experience 
particular  difficulties  in  disseminating  information  to  EWC  members  in  a  timely 
manner;  but  highlight  issues  in  determining  which  decisions  have  a  transnational 
impact. Employer feedback indicates that internal decisions are being taken as to what 
information  needs  to  be  provided  to  EWCs  and  when  it  should  be  provided.  In 
addition, other rules (i.e. stock market rules) are often invoked as reasons which are 
considered to prevent them from disseminating information to EWC members in good 
time. 

According  to  most  employer  representatives,  the  consultation  of  EWC  members  has 
not  led  to  any  changes  in  corporate  decision-making.  The  consultation  of  EWC 
members is however seen as positive by most employer representatives as a means of 
developing a common corporate vision. 

6.4.2  Practical impacts of the Recast Directive on the ability of newly-

established EWCs to focus on transnational matters  

The  Recast  Directive  introduced  the  following  criterion  for  determining  transnational 
matters:  ‘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.  This  section 
provides  an  initial  analysis  of  stakeholder  views  on  the  extent  to  which  their  EWC 
focusses solely and sufficiently on transnational matters. 

6.4.2.1  Views of employee representatives 

Of  the  employee  representatives  interviewed  in  34  different  companies  (see  Figure 
18), 10 indicated that their EWC was  solely focused on transnational issues while the 
majority  –  i.e.  21  respondents  –  indicated  that  theirs  was  almost  solely  focused  on 
transnational matters. Only one respondent indicated that the company EWC was not 
sufficiently  focused  on  transnational  matters  and  commented  on  the  fact  that  some 
employee  representatives  seek  to  bring  national  issues  to  the  EWC  table.  Five 

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respondents  were  unable  to  express  a  view  due  to  the  fact  that  the  EWC  of  their 
respective company had only recently become operational.  

Figure 18. Focus on transnational matters in Recast EWCs  

62%

64%

29%

20%

12%

3%

Solely focused on
transnational matters

Almost solely focused on
transnational matters

Not sufficiently focused on
transnational matters

6%

4%

No response

Employee representatives (N=34)

Employer representatives (N=25)

Source:  Based  on  34  interviews  conducted  with  EWC  employee  representatives  and  25  employer 
representatives. 

An issue raised was that some employee representatives lack sufficient knowledge or 
training  on  which  issues  should  be  considered  to  be  transnational.  Furthermore, 
because of their role as national representatives, national concerns often remain more 
pressing.  In  the  worst  cases,  discussions  and  questions  can  sometimes  relate  to 
national or local issues at the expense of the core transnational matters. 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  articulated  by  both 
sides.  The  extent  to  which  representatives  of  one  country  dominate  the  balance  of 
representatives on an EWC can also have an impact here. 

Employee  representative  of  a  rail  transport  company:  “[There  are]  a  lot  of  Franco-
French  issues  as  [the  company]  has  a  wide  majority  of  activities  in  France.  Plus, 
French employees have a specific status.” 

Employee  representative  in  a  telecommunications  company:  “For  the  employees  the 
company  as  whole  is  important.  Which  makes  it  easier  to  focus  on  the  transnational 
matters.” 

A  number  of  employee  representatives  mentioned  that  information  on  national  and 
local  matters  is  sometimes  given  by  management  where  appropriate  in  an  effort  to 
ensure transparency, but that no questions are taken during EWC meetings. In certain 
EWCs,  it  appears  that  the transmission  of  information  on  national  or  local  matters  is 
not incompatible with discussions on transnational matters, depending on the specific 
circumstances. From the feedback obtained, it also appears that the ability to keep an 
EWC  as  a  transnational  forum  can  depend  on  the  style  of  management  within 
companies. 

6.4.2.2  Views of management 

Again,  a  majority  of  the  company  representatives  interviewed  –  i.e.  16  out  of  25 
respondents  –  indicated  that  their  EWC  was  almost  solely  focused  on  transnational 
matters against only five respondents who indicated that their EWC was solely focused 
on transnational matters (see Figure 18). Only one company representative indicated 

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that the company EWC was not sufficiently focused on transnational matters; a further 
two gave no response.  

A number of respondents on the management side explained that keeping EWCs as a 
transnational forum can be quite challenging as certain employee representatives tend 
to bring up local issues at the EWC meetings. Again, feedback gathered suggests that 
a  lot  depends  on  the  firmness  of management  representatives  or  the  EWC  employee 
chair as to whether EWC discussions remain focused on transnational matters. 

Other employer representatives have pointed out that identifying what constitutes as 
‘transnational  matters’  is  made  difficult  given  the  imprecision  of  the  definition  in  the 
Directive,  and  there  are  also  difficulties  around  the  distinction  between  transnational 
and strategic matters.  

6.4.2.3  Views of social partners 

Feedback  from  other  EU  social  partners  reveals  that  there  is  some  confusion  around 
the  notion  of  transnationality  due  to  the  strategic  nature  of  certain  decisions,  stock 
exchange  rules,  and  the  difficulty  determining  if  certain  matters  qualify  as 
transnational. 

EU  sectoral  social  partner:  “There  is  a  problem  in  defining  how  many  people 
impacted  make  the  matter  which  should  be  consulted  at  the  EU  level  (%  of  staff, 
number  or  employees,  how  many?).  When  the  local  level  has  to  be  consulted  it  is 
difficult to manage this process because the social dialogue traditions and legislation 
differs between countries.” 

EU sectoral social partner: “The [Recast] Directive made the distinction on the types 
of  information  provided.  But  still  there  is  uncertainty  over  the  level  of  details 
provided  to  employees.  It  is  not  clear  if  the  information  provided  is  sufficiently 
detailed at the EWC level.” 

EU  sectoral  social  partner:  “The  rule  is  still  unclear  and  leaves  a  lot  of  room  for 
interpretation.  Redundancies  in  one  country  are  still  argued  to  be  the  national 
matter  and  not  the  matter  for  EWC,  even  though  it  turns  out  that  waves  of 
redundancies are occurring in several countries.” 

Views were also mixed among the national social partners surveyed as to whether the 
Recast Directive provides more certainty on the type of information to be disseminated 
transnationally via EWC as opposed to local and national information and consultation 
forums.  But,  it  appears  overall  that  their  view  is  that  the  Directive  has  improved 
clarity  regarding  the  type  of information  to  be  disseminated  (37%)  but  that  changes 
are very slow and that there is still a gap between theory and practice.  

Table 30.  More certainty than before to the type of information to be disseminated 
transnationally via EWC as opposed to local and national information and 
consultation forums, survey of national social partners 

Number  
Share (%) 

Don’t know 
19 
37% 

No 
14 
27% 

Yes 
19 
37% 

Source: Survey of national social partners, based on a sample of 52 responses to the question.  

6.4.2.4  Summary 

According  to  the  interview  feedback,  there  were  very  few  differences  of  opinion 
between  employer  and  employee  representatives  from  the  same  company  regarding 
the  extent  to  which  their  respective  EWC  focuses  on  transnational  matters.  Where 
opinions  diverged  within  the  same  company,  employee  representatives  were  more 
likely  to  argue  that  their  EWC  focussed  solely  or  mainly  on  transnational  matters, 
whereas employer representatives were more likely to interpret items being raised by 

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employee representatives as purely national. This highlights that differences in opinion 
can  remain  on  which  decisions  should  be  considered  to  have  transnational  impact 
under the definition offered by the Directive.  

Most  of  the  EU  social  partners  interviewed  so  far  are  of  the  opinion  that  the  Recast 
Directive  has  not  sufficiently  improved  legal  certainty  regarding  the  definition  of 
transnational  matters.  They  have  expressed  the  view  that  there  are  inherent 
difficulties  in  distinguishing  between  purely  transnational  and  national  matters, 
especially in increasingly globalised businesses, and that, as a result, this leaves EWCs 
room  for  interpretation.  Similarly  EU  social  partners  in  the  construction  and 
telecommunications  sector  have  raised  concerns  around  the  actual  criteria  (e.g. 
number of workers affected in two or more countries) for considering matters as being 
transnational  in  nature,  which  creates  some  confusion  as  to  which  level  of 
representation should be consulted first.  

In summary, the following conclusions can be drawn: 

  Feedback  suggests  that  a  majority  of  newly-established  ‘Recast’  EWCs    focus 

‘almost exclusively’ on transnational matters 

  Difficulties  remain  however  in  some  cases  around  the  interpretation  of  the 
notion  of  transnationality,  which  creates  further  confusion  concerning  the  type 
of information to disseminate to EWC members 

  There are also difficulties in ensuring EWCs are a transnational forum as some 
employee representatives use them as a platform for voicing what management 
consider to be national or local-level concerns 

  Experiences  show  that  the  extent  to  which  EWCs  can  focus  on  transnational 
matters depends on the soundness of the interpretation of the concept and how 
well  meeting  chairs  perform  in  keeping  discussions  focused  on  transnational 
issues.  

In  this  regard  it  is  worth  noting  that  some  EWC  agreements  contain  more  detailed 
definitions of the concept of transnationality (see box below with the findings from the 
case study).  

Case  study  findings: definitions  of  transnationality  in  15  EWC  agreements  negotiated 
since 2011  

The  evaluation  team  assessed  the  definition  of  transnational  matters  in  15  EWC  agreements 
(randomly selected).105The majority of 15 EWC agreements used a verbatim or more extensive 
definition of the transnational matters:   

  Seven agreements used the verbatim definition of transnational matters from the Recast 

Directive. 

 

 

In  four  agreements,  the  definition  was  more  extensive:  by  specifying  precisely  which 
matters are considered transnational; specifying that transnational issue needs to affect 
at  least  100  employees  in  the  affected  country;  defining  that  what  is  considered 
transnational  is  up  to  the  President  and  Secretary  to  decide  and  giving  the  EWC 
precedence over other information and consultation bodies. 

In  one  agreement,  the  definition  of  transnational  matters  is  less  extensive  than  the 
Recast Directive (no reference to the Community-scale undertaking or Community-scale 
group of undertakings as a whole). 

  Three agreements do not contain a definition of transnational matters.  

105 http://www.ewcdb.eu/search_agreements.php.  

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It is clear that in the absence of full information, it is often difficult for employee side 
representatives to judge from the outset whether a matter is of transnational concern 
on  not.  Good  interactions  between  employee  side  representatives  from  different 
countries can help in the matter but remains dependent on the quality of information 
provision by management. 

6.4.3  Practical  impacts  of  the  Recast  Directive  on  the  articulation  of 

information and consultation processes at different levels 

The  Recast  Directive  also  sought  to  achieve  greater  clarity  with  regard  to  the 
articulation  of  information  and  consultation  processes  at  different  transnational  and 
national levels.106 As  only transnational matters are to be discussed by the EWC, the 
discussion  of  the  articulation  of  different  levels  of  information  and  consultation  is 
closely linked to the transposition and interpretation of the concept of transnationality. 

Over  half  of  the  employee  representatives  in  the  Recast  EWCs  considered  that  their 
employer  was  clear  which  level  (EWC/national/local)  should  be  consulted  first. 
Conversely, only in 3 companies this was considered to be the case.  

Figure 19. Employee  representatives’  views  on  employers’  judgement  on  who  should 

be consulted first  

No response, 
35%

Is your employer
clear  which level 
(local/national/EWC) 
to inform and consult first?

Yes, 56%

No, 9%

Source: Based on 34 interviews conducted with EWC employee representatives.  

There  appears  thus  to  be  a  good  understanding  among  employers  that  EWCs  should 
receive  information  on  transnational  matters  first,  but  it  does  not  necessarily  mean 
that  this  always  happens  in  practice.  This  is  reflected  in  the  answers  given  by  the 
employee representatives interviewed, which show that around a quarter of EWCs are 
not informed (and consulted) first in restructuring situations.  

106 Article 12 specifically states among other things that ‘Information and consultation of the European 
Works Council shall be linked to those of the national employee representation bodies, with due regard to 
the competences and areas of action of each and to the principles set out in Article 1(3). The arrangements 
for the links between the information and consultation of the European Works Council and national 
employee representation bodies shall be established by the agreement referred to in Article 6. Where no 
such arrangements have been defined by agreement, the Member States shall ensure that the processes of 
informing and consulting are conducted in the European Works Council as well as in the national employee 
representation bodies in cases where decisions likely to lead to substantial changes in work organisation or 
contractual relations are envisaged.  

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Figure 20. Employee  representatives  views  on  the 

level  at  which  employee 

representatives were informed and consulted first 

At which level have employee representatives been informed and 
consulted about restructuring in your company? 

35%

21%

26%

18%

EWC Only

EWC first with nat. and/or
local WCs

Nat. and/or local WCs
first

No response

Source: Based on 34 interviews with EWC employee representatives. 

The  figure  above  shows  that,  in  many  cases,  the  information  (and  consultation)  of 
EWCs and national or local works councils takes place simultaneously.  

Qualitative feedback from  the interviews  suggests  that for  companies’  headquartered 
in countries with traditionally strong national works councils, national/local information 
and consultation bodies often continue to be informed first.  

However,  the  feedback  obtained  from  employee  representatives  suggests  that  the 
difference  between  information  and  consultation  is  not  always  taken  into  account  by 
the  EWCs.  This  depends  on  factors  such  as  the  possibility  to  organise  extraordinary 
meetings,  the  intensity  of  relations  between  management  and  staff,  and  to  a  lesser 
extent, on the national legislation under which the agreement is enforced. 

Figure 21. Employee  representatives  views  on  the  extent  to  which  management 

distinguishes between information and consultation  

Not applicable, 15%

No response, 20%

Yes, 35%

Is there a 
distinction/separation 
between the information 
and the consultation stage 
in your EWC?

Other, 6%

No, 24%

Source: Based on interviews with 34 EWC employee representatives.  

A majority of the EU social partners interviewed consider that the recast Directive did 
not  provide  significantly  greater  clarity  on  the  articulation  of  the  different  levels  of 
information and consultation. 

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In  summary,  there  appears  to  be  a  good  level  of  agreement  between  employer  and 
employee  representatives  on  who  should  be  consulted  first  on  different  decisions, 
although uncertainties about the interpretation of transnationality remain. 

6.5  Practical  impacts  of  the  Directive  on  the  information  and 

consultation of EWCs in the restructuring situations 

Of  the  37  companies  operating  Recast EWCs  assessed  in-depth in the  evaluation,  20 
have undergone restructuring since their EWC was set up.  

Interview  feedback  shows  that  the  experiences  of  Recast  EWCs  in  restructuring 
situations are diverse. They reveal that there are considerable differences among the 
companies  examined  in  their  practices  and  procedures  for  informing  and  consulting 
EWC  members  on  restructuring  plans  or  decisions.  In  some  EWCs,  the  influence  on 
restructuring decisions has been considerable (see Box below).  

Case study findings: the impact of restructuring from the EWC in Beckers and ColArt  

There has been some restructuring of the company in recent years. Following investment in new 
facilities  in  Liverpool  the  company  sought  to  consolidate  manufacturing  facilities  in  Liverpool, 
with  job  losses  in  the  midlands  and  south  east.  Further  there  has  been  some  movement  of 
manufacturing jobs from Germany to the UK. As part of the restructuring process the company 
designed  and  provided  retraining  for  workers  whose  job  was  at  risk  and  also  undertook  to 
provide assistance to workers to relocate to the new manufacturing facility.    

Through consultation with the EWC there were fewer job losses than originally projected by the 
employer. The company spent more on retraining staff in Germany than they had planned. The 
retrained staff in Germany were then able to work on expanding areas of the business in their 
own  country.  In  addition  a  trans-Europe  relocation  package  was  provided  (though,  in  practice 
there was no take up for this).  

In  many  cases,  Recast  EWCs  are  informed  of  restructuring  plans  either  before  or  at 
the  same  time  as  national/local  works  councils.  However,  this  does  not  mean  that 
EWCs are routinely informed before a decision has been made. In fact, quarter of the 
employee  representatives  interviewed  have  revealed  that  their  EWC  was  consulted 
after the restructuring decision had already been made. 

Figure 22. Extent to which Recast EWCs are consulted prior to the decision making 

Not applicable, 15%

No response, 15%

Has your EWC 
been consulted 
before or after a decision 
made by management?

Before, 35%

Other, 9%

After, 26%

Source: Based on interviews with 34 EWC employee representatives. 

A  slightly  smaller  proportion  of  EWCs  under  the  Recast  Directive  (35%)  receive 
information  on  restructuring  decisions  prior  to  a  decision  being  made  than  was 
previously  the  case  (see  the  case  study  in  the  Box  below).  The  GHK  (2008)  study 

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showed  that  38%  of  EWC  received  information  at  the  same  time  as  the  board 
(whereas in all other cases this was only received just before or at the same time as 
announcements were made to the press).  

Case study findings: the impact of the Air France EWC on restructuring 

Restructuring at Air France/KLM has been an on-going subject for the last five years. The search 
for more cost-efficient procedures  have led  Air France to move its activities to Central  Eastern 
countries  also  considering  non-EU  Eastern  countries.  It  also  increasingly  uses  sub-contractors 
and  is  intensifying  activities  of  its  subsidiaries  such  as  Transavia  which  provides  for  working 
conditions which are not as good as the ones in Air France/KLM.   

One of its key EWC features is the quality of social dialogue which led to making decisions ‘more 
social’ where restructuring occurred in the company.  

This  quality  of  social  dialogue  in  the  EWC  is  explained  by  good  communication  between  EWC 
members  and  the  management.  The  management  provides  the  necessary  information  for 
plenary  meetings  in  advance  and  there  is  on-going  communication  between  EWC  members 
thanks  to  an  online  platform  only  accessible  to  them  where  they  can  share  information. 
Dissemination  of  the  outcomes  of  meetings  is  also  done  as  far  as  possible  and  a  website 
presenting  the  EWC  members,  their  work  and  their  achievement  has  been  created. 107  Finally, 
there  is  also  good  stability  in  EWC  members  which  enables  people  to  cooperate  well  together 
and benefit from training sessions tailored-made to their needs which enable to go further than 
the basic introductory sessions.  

In  addition,  the  ETF  is  part  of  the  EWC  and  guides  members  when  they  have  questions  about 
technical  aspects.  The  Agreement  also  provides  a  “Movement  rights”  which  was  very  welcome 
by  EWC  members.  It  enables  them  to  have  access  to  undertakings  belonging  to  the  Air 
France/KLM Group in order to meet, on their own premises, elected employees' representatives, 
regular  employees  or  trade  union  representatives.  They  may  visit  the  sites  of  these 
undertakings after informing the local appropriate management concerned108.  

The  good  communication  is  also  present  in  the  existence  of  permanent  working  groups  where 
EWC  are  active  but  where  non-members  are  also  welcome  to  share  their  experience.  Several 
working  groups  exist  on  the  main  categories  of  jobs  existing  in  the  company  i.e.  commercial, 
maintenance  and  cargo.  Another  working  group  is  in  charge  of  social  indicators  where  it 
coordinates and updates the information on number of employees and sites of Air France/KLM in 
Europe  and  across  the  world.  Finally,  another  working  group  is  in  charge  of  organising  the 
hearing of the Chair of the EWC who once per year presents the strategy of the Group. All the 
organisation of the EWC is actively coordinated by the steering committee who is also a point of 
contact  for  the  management.  It  coordinates  the  preparing  of  meetings,  liaise  for  the  logistics 
and  is  in  charge  of  the  online  platform/library  where  members  of  the  steering  committee 
gathers  the  country  reports  done  by  EWC  members  of  different  Member  States.  This  reports 
gives  an  overview  of  the  economic  situation  of  the  country  and  is  a  key  document  to  better 
understand the context of each country.  

The  EWC  is  considered  to  have  had  positive  impact  on  decisions  in  the  framework  of 
restructuring  procedures.  Indeed,  the  EWC  which  was  informed  before  the  local  and  national 
level of restructuring cases with a transnational feature, was consulted at a moment where the 
management  could  still  take  some  aspects  into  account.  The  EWC  was  able  to  formulate 
recommendations  and  making  the  management  more  aware  of  the  social  component  and  the 
social  impact of their decision. This led to the modifications  of some decisions. For instance, a 
new  call  center  in  London  was  given  the  status  of  an  Air  France/KLM  entity  and  not  just 
subcontractor.  

In  cases  where  the  EWC  was  informed  and  consulted  before  a  restructuring  decision 
had been taken, this appears to be linked to the readiness of management to pass on 
such  information  (see  case  study  in  the  Box  below),  procedural  aspects  such  as  the 

107 http://www.cge-air-france-klm.com/.  
108 Article 21 of the latest Air France/KLM EWC Agreement. 

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clear distinction between the information and consultation phase and the possibility for 
whole EWCs or steering committees to hold extraordinary meetings.  

Case study findings: a positive impact of EWC in Kuehne & Nagel  

Both employer and employee representatives consider that consultation with the EWC has had a 
positive  impact  on  restructuring  discussions  in  cases  of  the  outsourcing  of  specific  business 
activities. 

In 2013/2014, the company piloted the outsourcing of facilities management in three countries 
with  the  aim  of  outsourcing  a  number  of  tasks.  The  goal  of  the  project  on  the  part  of  the 
company  was  to  generate  synergies  and  lower  costs  to  the  business  by  5%.  The  outsourcing 
was  to  affect  catering,  cleaning,  building  maintenance,  mail  and  security  services  and  was  to 
affect 149, 51 and 56 workers in France, Germany and the UK respectively.  

The EWC was informed early and EWC representatives (via the expanded Steering Group) were 
able  to  meet  with  all  outsourcing  contractors  to  discuss  the  proposed  conditions  for  workers 
transferring  to  the  new  contractor.  Through  these  detailed  discussions,  it  was  ensured  that  all 
benefits (even extra-contractual ones) would be transferred across. It was also ensured that in 
this process nobody was made redundant and existing terms and conditions were protected for 
3 years. It was also ensured that employees received any required training upon transfer within 
a three month period. An agreement was also reached that in the roll out of the project to other 
EU Member States, affected employees would obtain the same benefits as those agreed for the 
pilot  countries.  The  EWC  was  given  access  to  the  names  of  all  affected  workers  and  it  was 
possible  for  the  EWC  chair  and  relevant  steering  group  members  to  consult  individually  if 
requested by the employee with each worker and to provide advice which was much appreciated 
by staff and also made the transfer process run more smoothly for the employer. 

The  agreement  reached  with  the  EWC  has  been  used  since,  not  only  in  the  realisation  of  the 
facilities  management  project,  but  also  other  outsourcing  initiatives  in  the  field  of  IT  and 
financial services. In each case, the EWC was able to advise employees and to redeploy where 
possible, and have a common goal for no enforced redundancies.  

In  each  case,  the  EWC’s  expertise  was  seen  to  help  in  gathering  information  in  different 
member  states  on  the  term,  conditions  and  non-contractual  benefits  to  be  protected  and  in 
communicating directly with staff. 

Particularly  notable  is  the  proactive  co-operation  of  EWC  Steering  Committee  members  with 
management  in  restructuring  situations  and  its  role  in  informing  and  consulting  employees 
affected by outsourcing situations. The ability to reach an agreement at EWC level for a uniform 
approach to be taken in similar situations also shows the added value of the work of this body. 

The  distinction  between  the information  and  consultation  phases, i.e.  guaranteeing  a 
time  lag  between  the  two  aspects,  appears  to  be  important  in  securing  the 
consultation  rights  of  EWC  members.  It  is  worth  mentioning  that  this  distinction  is 
required in practice under the legislation of certain Member States (e.g. France).  

In  companies  where  there is  no  distinction  between  the information  and  consultation 
phases, this may not necessarily mean that EWC members were only informed after a 
restructuring  decision  had  been  made.  However,  based  on  the  feedback  gathered 
here, the lack of a distinction between these two phases appears to affect negatively 
the consultation rights of EWC members.  

The  findings  also  reveal  that  the  provision  to  hold  extraordinary  meetings  can  also 
have  a  positive  effect  in  terms  of  securing  the  consultation  rights  of  EWC  members, 
and  is  also  a  means  of  empowering  EWC  steering  committees  and  enhancing  trust 
between  management  and  staff  representatives.  The  example  provided  below 
illustrates this point. 

Employee  representative  of  a  logistics  company:  “The  EWC  has  been  able  to  have  a 
facilities 
positive  effect 
management project piloted in three countries with the aim of outsourcing a number 
of  tasks.  The  EWC  steering  committee  was  informed  about  this  project  well  in 
advance.  In  the  three  pilot  countries,  the  outsourcing  project  was  to  affect  300 

in  restructuring  situations.  [For 

instance,  with  the] 

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company  workers.  EWC  members  were  able  to  meet  with  all  outsourcing  contractors 
to  discuss  employees’  working  conditions  [with  their]  new  employer.  It  was  ensured 
that all benefits (even extra-contractual ones) [would be] transferred across. This was 
achieved.  EWC  [representatives  were]  able  to  [discuss  directly  with]  each  affected 
worker. Nobody was made redundant and the [contractual] terms and conditions were 
protected  for  3  years.  An  agreement  was  also  reached  that  in  the  roll  out  of  the 
project to other Member States, affected employees would obtain the same benefits as 
those agreed for the pilot countries.” 

Feedback  also  shows  that  in  cases  where  EWC  members  have  been  consulted  on 
restructuring matters, the resulting impacts have remained fairly limited.  In a limited 
number  of  cases,  this  is  due  to  the  fact  that  restructuring  plans  do  not  necessarily 
entail  job  losses.  EWC  members  may  not  always  feel  entirely  concerned  with certain 
restructuring plans as a consequence, as the example below shows. 

Employee  representative  of  an  energy  company:  “For  the  acquisition  of  a  new 
company, the EWC was consulted at an early stage before a decision had been made. 
For  the  rebranding,  the  EWC  members  were  informed  before  an  announcement  was 
made  to  the  media.  The  EWC  members  had  ultimately  no  strong  views  about  the 
acquisition  or  the  rebranding.  However,  a  working  group  was  charged  with  following 
up on the developments.” 

It is important to draw a distinction between information and consultation taking place 
and such processes having an impact on final outcomes. Generally speaking, feedback 
from  employee  representatives  suggests  that  the  impact  of  EWCs  on  restructuring 
decisions is quite limited.   

Figure 23. Views  of  employee  representatives  who  have  taken  part  in  EWC 

consultations regarding their impact 

Not applicable, 
15%

Yes, 21%

No response, 20%

Has the EWC consultation 
process made any difference 
to the restructuring plans of
management in your company? 

Don't know, 6%

No, 38%

Source: Based on interviews with 34 EWC employee representatives 

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.   

Given  that  many  of  the  EWCs  looked  at  in  this  study  have  only  been  established 
relatively  recently,  feedback  from  employer  representatives  suggests  that  the 
consultation rights of EWC members may improve with time. In other words, many of 

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the companies examined are still at a stage of “experimentation” with their respective 
EWC. 

Very few examples of the impact of EWCs on restructuring decisions were provided by 
the EU and national social partners interviewed. The examples were mostly limited to 
a  better  understanding  among  EWC  members  of  the  rationale  of  company  decisions, 
as well as consultation practices within EWC changing for the better albeit slowly. 

An  EU  sectoral  social  partner:  “The  biggest  benefit  of  having  an  EWC  is  for 
employees  to  better  understand  decisions,  rather  than  to  change  them  (...)  The 
[Recast]  Directive  has  enhanced  [transparency]  giving  management  a  unique 
opportunity to meet employees from different levels, cultures and explain them the 
vision of the company.” 

On  the  whole,  the  feedback  from  EU  and  national  level  social  partners  therefore 
suggests that Recast EWCs do not play a critical role in restructuring situations 
in practice.  

These findings from the evaluation reflect the findings from previous research on the 
EWC impact in restructuring situations.  

The overall finding in the existing literature (which also covers EWCs established prior 
to the Recast Directive) is that whilst there is a great variation in the effectiveness of 
the EWCs in the restructuring situations to exercise their information and consultation 
functions,  few  examples  are  detected  where  EWC  have  influenced  transnational 
company  restructuring.109  A  number  of  EWCs  have  in  fact  been  able  to  help  ensure 
that employment and social aspects are taken into account to a varying extent in the 
implementation of restructuring.110 The key two types of problems identified relate to: 

  Timing  and  clear  differentiation  between  the  information  and  consultation 

phases; 

  Linking and differentiation between the consultation of EWCs and consultations 

of local / national worker representation structures.111 

Given  the  range  of  problems  encountered  in  the  EWCs  dealing  with  restructuring 
decisions, some analysts have argued for a more realistic expectation of the EWC role 
– focussed on the ameliorating the impact of restructuring rather than the expectation 
on the reduction of scale or costs of restructuring.112 

A range of supporting factors has been identified in the literature. One key facilitating 
factor  identified  was  the  presence  of  joint  EWC  texts  on  the  arrangements  in  the 
restructuring situations,113 as well as the provisions of the agreement establishing the 
EWC’s  right  to  hold  extraordinary  meetings114,  supportive  management  attitudes 
(including  international  outlook  of  company  leadership  and  HR  departments),115 
ongoing  and  established  communication  between the  EWC  and  the  management  and 
overcoming the constraints imposed by confidentiality requirements and stock-market 
rules.  In  addition,  the  existence  of  strong  local  /  national  structures  of  worker 

109 Eurofound (2006), European Works Councils and transnational restructuring.  
110 Eurofound (2008), European Works Councils in practice: Key research findings, Background paper. 
111 Expert Group (2010) Report Group of Experts Implementation of Recast Directive 2009/38/EC on 
European Works Councils. 
112 BIS (2010), Impact Assessment, Implementation of the Recast European Works Council Directive.  
113 Eurofound (2006), European Works Councils and transnational restructuring.  
114 As a single annual meeting is not considered to be sufficient to empower the EWC to deal with the 
situations of continuous restructuring, De Spiegelaere S., Jagodzinski R. (2015), European Works Councils 
and SE Works Councils in 2015, Facts & figures, ETUI.  
115 Marginson P.,  Lavelle J., Quintanilla J.,  Adam D., and Sánchez-Mangas R. (2013), Variation in 
approaches to European Works Councils in multinational companies. ILRReview, 66(3).  

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information  and  consultation  can  help  to  ensure  the  involvement  of  EWCs  in  the 
transnational restructuring situations. 116 

6.6  Summary of findings on the impact of the Recast Directive on the 

information and consultation in the EWCs  

The  majority  of  Recast  EWC  agreements  reviewed  contain  definitions  of  information 
and  consultation  in  line  with  the  Recast  Directive.  Around  one  in  five  include 
definitions  which  are  partially  in  line  with  those  of  the  Directive  but  can  indeed  add 
greater specificity – but a small number do not contain any definitions at all.  

These findings are reflected in the feedback obtained from the EU-level, with just over 
half indicating  that  the  Recast Directive  has led  to improvements in the timing,  level 
and  scope  of  the  information  and  consultation  of  EWCs,  but  with  other  highlighting 
remaining  issues.  Less  than  one-third  of  the  national  social  partners  (29%)  indicate 
that the Recast Directive has led to improvements in the timing, level and scope of the 
information  and  consultation  of  EWCs,  while  almost  two-thirds  of  the  respondents 
(65%)  said  the  situation  has  remained  the  same  or  that  there  was  no  noticeable 
change. 

The  majority  of  Recast  EWCs  focus  'almost  exclusively'  on  transnational  matters. 
There  are  difficulties  in  some  cases  in  relation  to  the  practical  interpretation  of  the 
notion of transnationality. Experiences show that the extent to which EWCs can focus 
on  transnational  matters  depends  on  the  soundness  of  the  interpretation  of  the 
concept  and  the  determination  of  meeting  chairpersons  in  keeping  focusing 
discussions onto transnational issues only.  

Recast EWCs are more likely to be consulted earlier in the process of decision making. 
However,  the  impact  of  EWC  members'  opinions  on  restructuring  decisions  remains 
limited.  According  to  most  employer  representatives,  the  consultation  of  EWC 
members has not led to any changes in corporate decision-making. The consultation of 
EWC  members  is  however  seen  as  positive  by  stakeholders  to  develop  a  common 
corporate vision.  

A clearer distinction between the information and consultation phases can help EWCs 
in  influencing  decision  making,  as  well  as  employer  willingness  to  share  relevant 
information. Extraordinary  meetings  can  empower  EWC  members,  especially  steering 
committees, in consultations. 

Remaining  weaknesses  in  the  consultation  could  be  linked  to  the  fact  that,  albeit 
enhancing  the  definition  of  consultation,  there  is  no  specific  requirement  (as  in  the 
case in other I&C Directives), for consultation to take place before a decision is taken 
or  for  management  to  provide  a  reasoned  response  on  an  input  received  from  the 
EWC  (or  indeed  to  consult  with  a  view  to  reaching  agreement).    It  can  also  remain 
difficult  to  employee  side  representatives  to  assess  which  issues  might  be  of  a 
transnational nature if they do not have access to sufficient information to judge such 
matters.

116 Fetzer, T. (2008), European Works Councils as risk communities. European Journal of Industrial Relations 
14(3): 289-308. 

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7 

Analysis  of  costs  and  benefits  associated  with  the 
implementation of the Recast Directive  

One of the objectives of the evaluation was to assess the costs and benefits (including 
costs and benefits and increased or reduced administrative burdens) generated by the 
changes  brought  about  by  the  Recast  Directive  2009/38/EC.  The  analysis  relies  on 
findings from the various parts of primary and secondary research.  

The analysis of the costs and benefits associated with the ‘new rules’ brought about by 
the recast Directive in this report includes the following: 

  An analysis of cost and benefits associated with the changes in the rules 
concerning the establishment of new EWCs (Part A of the cost and benefit 
analysis framework). 

  An analysis of cost and benefits associated with the changes in the rules 
related  to  definitions  and  concepts  on  ‘information’,  ‘consultation’  and 
‘transnationality’ (Part B of the cost and benefit analysis framework). 

  An analysis of cost and benefits associated with the changes in the rules 
concerning  the  operation  of  EWCs  (Part  C  of  the  cost  and  benefit  analysis 
framework). 

  An analysis of cost and benefits associated with the changes in the rules 
concerning the role and capacity of employee representatives (Part D of 
the cost and benefit analysis framework). 

  A  summary  of  different  stakeholder  views  of  non-quantifiable  costs  and 
benefits  associated  with  the  recast  Directive  (this  refers  to  the  views  of 
management  and  employee  representatives  of  Recast  EWCs  –  in  comparison 
with the views of management and employee representatives of Article 13 and 
Article 6 EWCs, national social partners and EU social partners). 

  Identification of administrative burdens or indeed reductions in them.  

7.1  The analysis of cost and benefits associated with the changes in 

the rules in the EWC set-up phase 

The  study  provided  a  qualitative  and  quantitative  assessment  of  the  additional  costs 
and  benefits  associated  with  changes  introduced  by  the  Recast  EWC  Directive 
2009/38/EC  to  the  process  of  setting  up  an  EWC.  This  section  firstly  analyses  the 
overall costs of establishing a Recast EWC. This is then followed by the assessment of 
key  costs  and  benefits  associated  with  following  changes  made  to  the  process  of 
establishing the EWC: 

  The responsibility of the employer to provide the necessary information to start 

negotiations (Art 4.4), 

  The composition (Art. 5.2.b) and number of meetings (Art. 5.4) of the Special 

Negotiating Body (SNB), 

  Informing  social  partners  at  the  EU  level  (Art.  5(2).c)  and  involving  trade 

unions and external experts (Art 5.4), 

  Balanced representation of employees (Art.6.2.b), 

  Subsidiary  requirements  which  apply  in  the  absence  of  an  agreement  (Annex 

1.a. Rec 44).  

This section analyses the consequences of each change, followed by an assessment of 
the  overall  impact  of  changes  made  on  the  cost  and  indeed  benefits  due  to  a 
potentially improved realisation of negotiating processes.   

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7.1.1  Impact on the quantifiable costs of setting up the EWC 

Changes  introduced  by  the  Recast  Directive  could  have  an  impact  on  the  cost  of 
setting up the EWC. Due to the more specified requirement to furnish information, the 
potentially higher number of SNB members, meetings and the inclusion of experts one 
could expect an increase in costs. In order to verify this hypothesis, the evidence from 
social partners (EU and national level) and companies (set up under Recast Directive 
and previously under Art. 6117) was collected. Since only handful of companies – both 
in the current and in the 2008 study – were able to provide any cost estimations, the 
values presented have to be treated with caution (for more details on costs see Annex 
7). According to the data available, the average cost of a negotiating process to reach 
an  EWC  agreement  under  the  Recast  rules  was  EUR  111,871.  On  average  this 
amounts to 0.01% of company turnover.   

Compared  to  the  EWCs  established  under  Art.  6  of  Directive  94/45/EC,  fewer 
employee  and  management  representatives  were  involved  in  negotiation  processes 
under  the  Recast.  The  SNB  also  met  (in  person)  less  frequently.  Nevertheless,  the 
whole process took slightly longer (see Table 31).  

Table 31.  Differences  in  the  negotiation  process  between  the  Recast  and  pre-Recast 

EWCs  

Recast EWC in 2015 (N=37) 

Art. 6 EWC in 2008 (N=22) 

Average number of meetings 

Average number of employer 
representatives 

Average number of employee 
representatives 

3 

3 

9 

4 

7 

12 

Average length of the negotiations  14 months 

13 months 

Source:  Interviews  with  employer  and  employee  representatives  of  Recast  EWCs.  EPEC  GHK  (2008), 
Preparatory  study  for  an  Impact  Assessment  of  the  European  Works  Council  Directive,  European 
Commission. 

To estimate if the cost of negotiations increased compared to Art. 6 EWC, the way the 
costs were calculated was aligned in the two studies.118 The table below indicates that 
the  cost  of  setting  up  an  EWC  decreased  (by  EUR  24,000  –  see  Table  32  for 
details) – mainly due to the smaller SNB size and lower number of meetings. Both of 
these  changes  are  associated  with  the  type  of  companies  which  currently 
establish  EWC  (smaller  in  size)  than  the  legislative  changes  made  in  the 
Directive.   

117 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission.  
118 The EPEC GHK study conducted in 2008 made the following assumptions to calculate the cost of the 
negotiation process: 

  The time spent on preparation, training costs, expert fees and administrative costs due to a 

shortage of reliable information from companies were excluded. 

  The following assumption have been made:  

- 

- 
- 
- 

all the meetings last one day (thus the subsistence and translation costs have been calculated 
for one day only),  

all the employee delegates require travel and one night of accommodation,  

all the meetings have been provided with translation apart from other forum meetings,  

at that time four face-to-face meetings have been held during the negotiation period. 

Similar assumptions were made in the current study.  

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Table 32.  Comparison of costs of setting up an EWC under Recast Directive and under 

Art. 6 of Directive 94/45/EC (in 2014 prices) 

Recast  EWC  in  2015 
(N=37) 

Art.  6  EWC  in  2008  
(N=22) 

One F2F SNB meeting: Fixed costs 

 €      23,196  

 €      20,810  

One F2F SNB meeting: Time costs 

 €      16,539  

 €      15,074  

Total: Fixed costs 

Total: Time costs 

 €      69,589  

 €      83,241  

 €      49,618  

 €      60,296  

Total cost of EWC set-up 

 €      119,207119  

 €     143,537  

Source: Interviews with employer representatives of Recast EWCs. EPEC GHK (2008), Preparatory study for 
an Impact Assessment of the European Works Council Directive, European Commission. Note: Findings must 
be  read  with  caution  given  the  very  small  number  of  companies  which  were  able  to  provide  information 
about  costs.  All  the  information  based  on  estimates  referring  to  2014  as  opposed  to  prices  when  the 
negotiations were held. 

The  above  comparison  does  not  include  additional  cost  which  might  be  borne  by 
companies  which  established  EWC  under  the  Recast  Directive  –  such  as  the  cost  of 
experts. Over two thirds of management and employee representatives reported that 
external experts were invited to support the negotiating phase.  

7.1.2  The  costs  and  benefits  of  providing  necessary 

information  for 

commencing the EWC negotiations 

Article  4.4  is  a  response  to  some  company  practices  which  appear  to  obstruct  the 
establishment of an EWC.120 The new article obliges companies to obtain and transmit 
the  information  required  to  commence  negotiations.  This  includes  information  about 
the structure of the company and its workforce, including confirmation on whether the 
company  meets  the  thresholds  of  the  Directive.  Additionally,  according  to  the 
European  Court  of  Justice,  the  identity  and  addresses  of  employee  representative 
bodies 
for  the  purpose  of  commencing  EWC 
negotiations.121 Potential benefits and costs of the obligations on central management 
to  facilitate  the  start  of  negotiations  are  presented in  Figure  24  followed  by  evidence 
from various sources regarding the consequences of the new requirement.  

is  also  essential 

information 

119 This cost is slightly above the average costs of negotiations reported in Table 2 due to the different 
methods of calculations. In Table 2, the data was used from the available 15 EWCs which have provided 
such information. In Table 5, the cost data from the 15 EWCs was extrapolated to the whole sample of 37 
EWCs.  
120  Bofrost  C-62/99  of  29  March  2001  and  Kühne  &  Nagel  C-440/00  of  13  January  2004.  After:  Picard,  S. 
(2010),  European  Works  Councils:  a 
to  Directive  2009/38/EC,  ETUI, 
https://www.etui.org/Publications2/Reports/European-Works-Councils-a-trade-union-guide-to-directive-
2009-38-EC, p. 70. 
121  Picard,  S.  (2010),  European  Works  Councils:  a  trade  union  guide  to  Directive  2009/38/EC,  ETUI, 
https://www.etui.org/Publications2/Reports/European-Works-Councils-a-trade-union-guide-to-directive-
2009-38-EC, p. 71. 

trade  union  guide 

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Figure 24. Potential costs and benefits associated with introduction of Art. 4.4  

Source: ICF 

On  balance,  the  obligation  imposed  by  the  Recast  Directive  on  management  did 
provide some greater legal certainty but was not seen to have had a significant impact 
on the negotiating process. Where costs were identified they were linked to prolonged 
time  needed  for  negotiations  while  benefits  related  to  improved  information 
transmission and therefore more informed negotiations. 

7.1.3  Setting up a special negotiation body (SNB) 

7.1.3.1  Composition of the Special Negotiating Body 

The Recast Directive changed the rules on the composition of the SNB. It was argued 
that  the  minimum  (3)  and  maximum122  number  of  SNB  members  in  Directive 
94/45/EC needed to be replaced with a more flexible system because: 

  The  composition  of  the  SNB  and  its  representativeness  plays  a  pivotal  role  in 

the legitimacy of the agreements.123  

  It  is  difficult  to  apply  the  rule  on  a  maximum  number  of  SNB  members  in 
practice.  Member  States  with  a  small  number  of  employees  should  be 
represented through a group arrangement or indirectly.124 

  The  system  set  up  in  Directive  94/45/EC  may  lead  to  imbalances  in 

representation on the SNB.125 

122  Directive  94/45/EC,  Art.  5.2.b.  maximum  number  of  members  equal  to  the  number  of  Member  States 
which was 17 at the time when the Directive was originally adopted. 
123  Béthoux,  É.  (2004),  Les  comités  d’entreprise  européens  en  quête  de  légitimité,  Travail  et  emploi, 
http://travail-emploi.gouv.fr/publications/Revue_Travail-et-Emploi/pdf/98_2637.pdf.  
124  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 
informing 
at: 
http://ec.europa.eu/social/main.jsp?catId=707&langId=en&intPageId=211. 

employees, 

consulting 

available 

and 

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Art. 4.4 Central and local managements are responsible for providing the information allowing negotiations to be opened to set up a new EWCCOSTSBENEFITSPotential benefits relate to a more informed and transparent working environment for the SNB and thereby a smoother negotiation process and less expensive negotiation period without delays caused by lack or incomplete information.Potential costs relate to the collection and dissemination (and potential translation) of information (especially related to the structure of the company and data on the number of employees in all countries and all parts of the business) to inform the start-up negotiations.Additional information provision (time, translations) that goes beyond information that would have been made available anywayIncreased transparency of negotiationsGreater clarity over responsibility, thus less risk for dispute over information provisionIncreased transparency within the company if company structures are not transparent enough to allow employees to judge if the company meets the relevant criteriaQuicker, more successful and consequently less expensive negotiation period as a result of availability of information Increased empowerment of employee representatives in negotiationsGrowing trust between employees and management 
 
 
  
  
                                         
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Due to above the issues, the Recast Directive defined a new system of allocating SNB 
seats proportionally to the share of employees in the Member State – 1 seat per 10% 
of  the  whole  company  workforce.  This  change  could  potentially  increase  the  cost  of 
setting  up  the  EWC  due  to  a  higher  number  of  employees  participating  in  the 
negotiating process. On the other hand, it could improve the process of identifying the 
SNB members as there is no need to cover all Member States. Potential benefits and 
cost  of  the  new  composition  of  the  SNB  are  presented  in  Figure  24  followed  by 
evidence from various sources regarding the actual impacts of the new rules. 

Figure 25. Potential costs and benefits associated with introduction of Art. 5.2.b 

Source: ICF 

The  dominant  view  of  this  impact  of  this  change  expressed  by  employee 
representatives in Recast EWCs and other stakeholders was the Recast Directive itself 
had little impact on the costs associated with setting up a SNB. At the same time no 
specific benefits were identified either, for instance in terms of increasing transparency 
or fairer representation of workers. 

7.1.3.2  Employee only meetings of the SNB 

Article 5.4 of the Recast Directive stipulates that the SNB has the right to meet alone 
before and after any meeting with the central management. This was done to facilitate 
employee-only  meetings  to  prepare  the  negotiations  and  discuss  any  arising  issues 
and challenges in confidence without the presence of management. Potential benefits 
and costs of additional SNB meetings are presented in Figure 26 followed by evidence 
from various sources regarding the actual impacts of the new rules.  

125  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 
informing 
at: 
http://ec.europa.eu/social/main.jsp?catId=707&langId=en&intPageId=211.  

employees, 

consulting 

available 

and 

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Figure 26. Potential  costs  and  benefits  associated  with  introduction  of  employee  only 

SNB meetings  

Source: ICF. 

According  to  employee  representatives,  in  almost  two  thirds  of  companies  the  SNB 
met  on  their  own  prior  to  meetings  with  management.  Although  the  meetings  were 
held  face-to-face,  they  were  additionally  supported  with  email  exchanges  and 
teleconferences.  

Table 33.  Did your SNB have preparatory or post-meetings as an employee only body 

during the negotiation period?  

Employees (N=34) 

Yes 

No 

Don’t know / not available 

62% 

26% 

12% 

Source: ICF interviews with Recast EWC employer representatives  

The preparatory meetings were used to agree on the list of questions and on a draft 
agreement  text  to  be  submitted  to  management  for  discussion.  The  meetings  held 
after  negotiating  sessions  with  management  were  used  to  discuss  results  and  next 
steps.  The  number  and  length  of  the  meetings  varied  from  only  1  to  2  hours  before 
and  after  each  negotiation  meeting.  The  main  benefits  of  such  meetings  were 
considered  to  be the  ability  to  get to  know  each  other,  exchange information,  obtain 
more  detailed  knowledge  of  items  to  be  discussed  and  agree  on  common  positions. 
Negative  issues  identified  were  linked  to  a  lack  of  experience,  time  or  only  partial 
country  representation.  Despite  the  introduction  of  the  right  to  hold  such  employee 
only preparatory meetings, it is interesting to note that the number of EWCs actually 
holding  such  meetings  was  lower  in  the  Recast  EWC  consulted  for  this  study  than 
among those surveyed for the 2008 study (62% compared to 98%). This may be due 
to  the  greater  use  of  other  remote  communication  technology,  but  this  assumption 
cannot be verified. 

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7.1.4  The role of social partners and experts in the EWC negotiations  

7.1.4.1  Involvement of the European social partners 

The  Recast  Directive  introduced  an  additional  requirement  for  central  or  local 
management  to  inform  European  workers’  and  employers’  organisations  about  the 
start  of 
transposition  could  additionally  enhance 
transparency  by  obliging  companies  to  register  EWC  agreements  in  national 
registers.126 The aim of this change was to enable an exchange of  good practices and 
traceability of EWC agreements.127  

the  negotiations.  National 

Potential benefits and costs of providing information to the EU level social partners are 
presented in Figure 27 followed by evidence from various sources regarding the actual 
impacts of the new rules. 

Figure 27. Potential costs and benefits associated with introduction of the involvement 

of European social partners  

Source: ICF 

The  Recast  Directive  also  strengthened  and  clarified  the  role  of  trade  unions  and 
experts at the negotiation stage. As already indicated above, the SNB can be assisted 
by experts (including experts from the European social partners), which may improve 
the  process  of  negotiations  by  providing  specific  expertise  but  this  can  also  increase 
the cost of setting-up the EWC (see Figure 28). 

126  Picard,  S.  (2010),  European  Works  Councils:  a  trade  union  guide  to  Directive  2009/38/EC,  ETUI, 
https://www.etui.org/Publications2/Reports/European-Works-Councils-a-trade-union-guide-to-directive-
2009-38-EC, p. 74. 
127  Picard,  S.  (2010),  European  Works  Councils:  a  trade  union  guide  to  Directive  2009/38/EC,  ETUI, 
https://www.etui.org/Publications2/Reports/European-Works-Councils-a-trade-union-guide-to-directive-
2009-38-EC, p. 71. 

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Figure 28. Potential  costs  and  benefits  associated  with  introduction  of  involvement  of 

trade unions and external experts  

Source: ICF analysis 

Over  half  (56%  according  to  employee  and  64%  according  to  employer 
representatives)  of  companies  with  the  EWC  established  under  the  Recast  Directive 
informed  and  involved  social  partners  in  the  negotiating  process.  This  is  higher 
compared to 41% of EWCs established before 2011 which informed relevant EU level 
social  partners  about  the  start  of  negotiation  process  and  were  supported  by  them 
(see Table 34).  

Table 34.  SNB  supported  by  the  competent  EU  social  partners  (e.g.  trade  unions, 

sectoral employer federations) during the negotiation process 

Recast employees 
(N=31) 

Recast employers 
(n=24) 

Pre-recast EWCs 
(N=22) 

Yes 

No 

Don’t know 

56% 

32% 

12% 

64% 

12% 

24% 

Source: ICF survey of Recast EWCs and Article 6 EWCs (n=22). 

41% 

9% 

50% 

Similarly over half (68% of Recast EWC employee representatives) indicated that they 
had requested assistance from external experts. These were legal experts, trade union 
delegates,  EWC  consultants,  or  technical  experts  (e.g.  on  HR,  collective  bargaining). 
Compared with EWCs established before 2011, a slightly higher number of companies 
used external experts during negotiations. 

Table 35.  Did you request support from any external expert or a trade union over the 

type of information requested? 

Recast EWC employees (N=32) 

Pre-recast EWC (N=22) 

Yes 

No 

Don’t  know  /  not 
available 

68% 

24% 

8% 

60% 

40% 

- 

Source: ICF survey of Recast EWCs and Article 6 EWCs (n=22). 

Representatives  of  Recast  EWCs  reported  that  where  the EU level  social  partners  did 
not  provide  any  support  this  was  due  to  the  staff  turnover  in  the  EU  level 
organisations, perceived lack of interest in medium to small multinationals negotiating 
the  Recast  EWCs  and  time  lag  to  appoint  the  social  partner  representatives  to 
accompany the negotiation process.  

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Where available, European social partners supported the SNBs in the form of training 
(dedicated  or  open  to  EWCs  across  Europe),  flyers,  advice  or  guidance  on  the  legal 
EWC  framework,  social  dialogue  and/or  collective  bargaining  and  drafting  of  the 
agreement.  As  a  result,  employee  representatives  felt  better  informed  about  the 
Directive, scope of the agreement, information needed from the management in order 
to  draft  the  agreement.  The  EU level  social  partners  also informed  them  about  other 
EWC  successful  negotiations  and  how  to  reach  a  consensus  between  employees' 
coming  from  different  social  dialogue  cultures.  The  expert  support  provided  was 
considered to be beneficial in providing legal clarifications on the EWC legal framework 
and the negotiation process, building awareness of EWC rights and competences, and 
offering expertise from other EWC experiences.  

The support led to the employee representatives being more aware of their rights. The 
external  expertise  also  gave  the  employees  and  employers  confidence  that  the 
established EWC is in line with new Directive. This aspect was especially important in 
the early years after introduction of the Directive – when the negotiations were mainly 
lead by lawyers and external experts.  

Employer  representatives  in  the  Recast  EWCs  also  identified  a  number  of  positive 
benefits  of  involving  the  European  social  partners  and  experts,  including  supporting 
the  negotiations  and  compromise  searching,  help  with  drafting  the  agreement  and 
informing  about  the  EWC  practices  from  other  EWCs  in  the  sector.  However,  some 
more  negative  experiences  were  also  shared,  including  the  clash  of  cultures  of 
industrial  relations  between  more  combative  style  coming  from  the  European  level 
unions and more negotiation oriented style of national trade unions (which was what 
the company was used to).  

The  costs  associated  with informing  the  European  social  partners  were  considered  to 
be low as for the majority of companies this took very little time (see Table 36).  

Table 36.  Time  taken  to  inform  and  involve  the  European  social  partners  in  the 

negotiations  

Time taken 

Number of respondents (n=16) 

Less than half a day  

About 1 day  

About 2 days 

More than 2 days  

13 

1 

1 

1 

Source: ICF interviews with Recast EWC employers (n=16 responses to this question).  

By contrast, both types of EU level social partner organisations128 maintained that the 
provision of informing the European social partners is rarely enforced. Informing them 
about the start of the negotiating process depends on the company’s tradition of social 
dialogue, the specific sector and the country of headquarter (and the national tradition 
of  information  and  consultation).  The  information  provided  is  not  really  due  to  the 
impact of the new Directive but previous knowledge and cooperation of the company 
with  the  EU  level  social  partners.  One  interviewee  argued  that  there  is  a  gap  in  the 
transposition  because  the  Article  requires  companies  and  employees  to  know  about 
the  relevant  organisations  at  European  level.  If  the  national  legislation  does  not 
provide  information  on  the  names  of  organisations  to  be  informed  and/or  trade 
unions/managers  with  specific  knowledge  are  not  involved  in  the  setting  up  of  the 
EWC,  there  is  a  significant  knowledge  gap.  One  representative  of  an  employers’ 
organisation  questioned  the  rationale  of  this  requirement  since  the  employer 
organisations  were  less  interested  in  this  information  in  general  and  employees 

128 This question was not included in the national social partner survey.  

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organisations  probably  helped  the  process  of  setting  up  the  EWC  therefore  they 
possibly already know that agreement is being negotiated.  

7.1.5   Balanced representation of employees on the EWC  

Article 6.2.b specifies that the EWC agreement should take into account the need for a 
balanced  representation  of  employees  on  the  EWC  (with  regard  to  their  activities, 
category  and  gender,  and  the  term  of office)  and  provide  arrangements for  adapting 
it.  The  rationale  for  this  change  was  that  the  composition  of  the  EWCs  needs  to  be 
improved to reflect in a more balanced way the workforce represented in the EWC. 

The  Recast Directive  also  specified  that  one  representative  of  the  EWC is  elected  per 
10% portion of the employees in a Member State  in which at least 50 employees are 
employed.  This  change  was  intended  to  strengthen  the  balanced  geographical 
representation of the EWC.  

Potential  benefits  and  cost  of  the  balanced  composition  of  the  EWC  are  presented  in 
Figure  29  followed  by  evidence from  various  sources  regarding  the  actual impacts  of 
the new rules.  

Figure 29. Potential costs and benefits associated with introduction of the requirement 

for a balanced EWC composition   

Source: ICF 

In  the  Recast  EWC  interviews  with  employee  representatives,  60%  of  respondents 
thought  their  EWCs  achieved  balanced representation  (at least in  relation  to  a  single 
aspect  of  geography  /  gender  /  activities)  whereas  40%  of  respondents  through  this 
was  not  achieved.  Where  the  balanced  representation  was  achieved,  this  was  due  to 
the  elections  and  negotiations  procedures  paying  attention  to  the  balance  of 
representation, 
to  appoint  balanced 
representatives or the introduction of quotas (for gender). The factor hindering a more 
balanced representation related to the lack of central EWC control over the election of 
EWC  representatives  in  each  country.  In  addition,  some  specific  factors  were  also 
identified: 

the  willingness  of  national  partners 

  Geographical  balance:  was  difficult  to  achieve  where  EWC  was  covering 

countries with less strong tradition of employee representation; 

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  Gender:  was  difficult  to  achieve  in  the  companies  with  the  workforce 

traditionally dominated by one gender;  

  Activities:  was  difficult  to  achieve  where  certain  types  of  workers  were  less 
used  to  worker  information  and  consultation  culture  and  hence  less  prone  to 
participate in the EWCs.  

Respondents  to  the  survey  of  pre-Recast  directive  EWCs  indicated  that  they  have 
between zero and ten employer representatives in their EWC, and between two and 54 
employee  representatives.  The  majority  of  respondents  have  between  one  and  nine 
employer  representatives  (50%)  and  between  10  and  32  employee  representatives 
(50%).  On  average,  there  are  respectively  four  and  25  employer  and  employee 
representatives per EWC.  

More than three-quarters of the respondents (17 out of 22, or 77%) reported that not 
all the EU/EEA countries where their company has employees are represented by their 
own EWC member. It was the case for only five respondents. The main reasons for not 
having employee representatives in the EWC from all EU/EEA countries are: 

  The low number of employees in some countries (14 respondents); 

  The lack of interest to engage in the EWC (six respondents); 

  The  lack  of  tradition/expertise  to  engage  in  employee  representation  duties 

(three respondents); and 

  The  lack  of  management  support  to  identify  individuals  for  such  roles  (three 

respondents). 

The  results  of  the  interviews  with  management  and  employee  representatives  of 
Recast  EWCs  show  only  minor  differences  in  the  rate  of  internationalisation  between 
companies operating under different types of EWCs. Indeed, companies hosting Recast 
EWCs are present, on average, in 12 countries, while companies hosting Article 13 and 
Article  6  EWCs  are  present,  on  average,  in  14  countries  –  as  illustrated  in  Table  37 
below. 

Table 37.  Internationalisation: worker presence in EU/EEA countries 

Scope 

Average 

Lowest 

Highest 

Recast EWCs* 

12 

EWCs  operating  under  Article  13 
and Article 6 rules** 

14 

2 

2 

28 

29 

*based on information from interviewees from 37 out of 37 companies in the sample. ** EPEC GHK (2008), 
Preparatory  study  for  an  Impact  Assessment  of  the  European  Works  Council  Directive,  European 
Commission. 

As for the composition of Recast EWCs, the survey conducted for this study  suggests 
that  the  EWCs  operating  under  the  new  rules  are  much  smaller  bodies  than  EWCs 
operating  under  Article  13  and  Article  6  rules.  The  average  number  of  employee 
representatives  is  16,  with  the  smallest  Recast  EWC  in  the  sample  having  just  eight 
employee  representatives in  total  and  the largest  one 34  members.  According  to  the 
2008  preparatory  study  on  revision  of  the  EWC  directive,  the  number  of  employee 
EWC  delegates  varies  from  five  to  47,  with  an  average  of  23129.  When  compared 
against data from the EWC database, more than half of the Recast EWCs have fewer 
than 15 employee members, while only 8% of ‘all EWCs’ fall into this group. 

129 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission. 

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No evidence has been collected on the Directive itself causing this difference, but it is 
more  likely  to  do  with  the  sizes  of  companies:  the  companies  of  Recast  EWCs  are 
smaller and slightly ‘less international’ than the companies that set up EWCs under the 
rules of the old Directive.  

Table 38.  Composition of Recast EWCs: employee delegates 

Number of employee representatives 

Recast EWCs* 

Other EWCs** 

Average 

- Maximum 

- Minimum  

16 

34 

8 

23 

47 

5 

Number of employee representatives 

Recast EWCs* 

Other I&C bodies*** 

<15 

15-29 

30-39 

40-75 

54% 

41% 

5% 

0% 

8% 

26% 

60% 

6% 

*based on information from interviewees from 37 out of 37 companies in the sample. ** EPEC GHK (2008), 
Preparatory  study  for  an  Impact  Assessment  of  the  European  Works  Council  Directive,  European 
Commission. ‘Other EWCs’ refers to EWCs operating under Article 13 and Article 6 rules.  

***European  Trade  Union  Institute  (ETUI),  Statistics  and  Graphs  -maximum  number  of  representatives, 
7/2015.  

The  Recast  EWCs  engage  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 too.  

Overall, there have  been  positive  changes  to  improve  the  balanced  representation  of 
the EWCs, especially in relation to the gender composition, but progress has not been 
made uniformly in all EWCs and in relation to all aspects of representation. There are 
usually few or no problems with the balance representation of different countries but 
the equal representation in terms of gender, type of employees is difficult to achieve 
(or not achieved at all) because the national laws and practices determine the process 
of  elections  of EWC  representative.  In practice,  therefore  this  provision is  considered 
to  be  difficult  to  implement  centrally  when  the  election  of  the  members  takes  place 
locally.      

7.1.6  Fall-back rules 

Fall-back  rules  were  introduced  in  the  Recast  Directive  to  ensure  that  a  ‘minimum 
level’ of provisions apply in situations where management and worker representatives 
fail  to  negotiate  an  EWC  agreement  within  the  specified  timeframe.130  The  potential 
benefits  and  costs  of  following  subsidiary  requirements  are  presented  in  Figure  29 
followed  by  the  evidence  from  social  partners  at  EU  and  national  level  regarding  the 
impact of the new rules on the number of companies following them.  

130 Subsidiary requirements applying in the absence of an agreement draw a distinction between fields 
where information is required and those for consultation, and provide the possibility of obtaining a response, 
and the reasons for that response, to any opinions expressed. Annex 1.a, rec.44:  The content of the 
subsidiary requirements which apply in the absence of an agreement and serve as a reference in the 
negotiations must be clarified and adapted to developments in the needs and practices relating to 
transnational information and consultation. A distinction should be made between fields where information 
must be provided and fields where the European Works Council must also be consulted, which involves the 
possibility of obtaining a reasoned response to any opinions expressed. To enable the select committee to 
play the necessary coordinating role and to deal effectively with exceptional circumstances, that committee 
must be able to have up to five members and be able to consult regularly. 

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Figure 30. Potential  costs  and  benefits  associated  with  introduction  of  Annex  1.a  Rec 

44 

Source: ICF 

Only 1 out 37 (or 2.7%) Recast EWCs interviewed in the evaluation followed the fall-
back  rules  and  the  subsidiary  requirements  since  the  introduction  of  the  new  rules. 
This  is  lower  than  8%  of  all  Recast  EWCs  following  the  subsidiary  rules,  but  higher 
than 1.5% of all EWCs created so far subsidiary requirements (see section 5.6).  

Half of the social partners at EU level (n=7) commented on the number of companies 
following subsidiary requirements. Four of them do not associate this number with the 
changes  in  the  Directive.  Similarly,  national  social  partners  do  not  associate  any 
increasing  trend  in  number  of  companies  following  subsidiary  requirements  with  the 
changes  in  the  Directive  but  rather  to  the  lack  of  will  of  individual  companies  to 
establish  the  EWC.  Overall,  the  national  social  partners  could  not  comment  on  the 
impact of the Directive (56%) or did not notice any changes in this regard (31%).   

Overall,  the  use  of  subsidiary  requirements  amongst  the  Recast  EWCs  is  very  low, 
albeit being higher than among all EWCs created so far. However, the social partners 
attribute  this  not  to  the  changes  in  the  Directive  but  more  to  the  willingness  of  the 
company to negotiate successfully an EWC agreement.  

7.2  Analysis of cost and benefits associated with the changes in the 
information,  consultation  and 

definitions  of  concepts  of 
transnational matters  

With  the  introduction  of  the  Recast  Directive,  a  number  of  important  concepts  were 
defined or clarified:  

  Clarification of the concept of ‘information’ and introduction of a definition in the 

Directive (Art. 2(f));131 

  Clarification  of  the  definition  ‘consultation’  which  now  gives  criteria  to  respect 

the consultation process (Art. 2(g)).132 

131 According to Article 2(f) in the Recast Directive, the term ‘information’, means transmission of data by 
the employer to the employees’ representatives in order to enable them to acquaint themselves with the 
subject matter and to examine it; information shall be given at such time, in such fashion and with such 
content as are appropriate to enable employees’ representatives 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. 
132 In the Recast Directive, Article 2 (g), the term consultation, means ’ the establishment of dialogue and 
exchange of views between employees’ representatives and central management or any more appropriate 

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  Clarification of the notion of ‘transnational matters’ that should be dealt at the 
transnational level by EWCs as opposed to the national bodies (Art. 1(3), 1(4), 
rec. 12, 15, 16).133  

  Link  with  information  and  consultation  at  national  level:  Information  and 
consultation  of  the  EWC  shall  be  linked  to  those  of  the  national  employee 
representation bodies (Art. 12).  

  General  principle  of  effective  information  and  consultation:  The  arrangements 
for  informing  and  consulting  employees  shall  be  defined  and  implemented  in 
such a way as to ensure their effectiveness and to enable the company to take 
decisions effectively (Art. 1.2, rec.14). 

The  legal  changes  sought  to  bring  greater  clarity  and  certainty  to  the  work  of  the 
EWCs  and  align  these  definitions  to  the  concepts  defined  in  the  other  existing 
information  and  consultation  legislation  (see  section  3).  This  section  analyses  the 
costs  and  benefits  of  these  changes  in  the  Recast  Directive.  Potential  benefits  and 
information,  consultation  and 
costs  of 
transnationality are presented in Figure 31, followed by evidence from various sources 
regarding the consequences of the new requirements. 

introduction  of  a  definition  of 

the 

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’ 
133 Definition of Transnational Issues: Information and consultation of employees must occur at the relevant 
level of management and representation, according to the subject under discussion. To achieve that, the 
competence of the European Works Council and the scope of the information and consultation procedure for 
employees governed by this Directive shall be limited to transnational issues. 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. (Art.1.3-1.4, rec.12, 15, 16).   

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Figure 31. Potential  costs  and  benefits  associated  with  the  definition  of  information, 
consultation and transnational matters and their practical functioning in the 
Recast Directive  

Source: ICF.  

7.2.1.1  Views of the employer and employee representatives of Recast EWC  

To  a  certain  degree,  it  is  challenging  to  identify  additional  costs  arising  from  the 
enhanced  definition  of  information,  consultation  and  transnationality  in  the  Recast 
Directive,  as  requirements  to  inform  and  consult  on  measures  having  an  impact  on 
employment  and  working  conditions  at  transnational  level  already  existed  under 
Directive 94/45/EC. The question is therefore whether these definitions have brought 
about  a  need  for  additional meetings, legal  advice  or  have indeed  served  to  delay  or 
change  management  decisions  (with  a  resulting  costs  rather  than  a  benefit  –  which 
could also be the case in the long term).  

Nine companies indicated that they had to seek legal or expert advice on whether the 
EWC should deal with an issue as opposed to local or national worker information and 
consultation  forums.  This  cost  across  the  nine  companies  ranged  from  EUR  5  000  to 
EUR 25 000 with the average cost of legal advice being around EUR 15 000. None of 
the  companies  in  the  sample  faced  any  legal  disputes  with  workers  representatives 
over  the  functioning  of  the  EWC  information  and  consultation  processes  which  would 

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have  entailed  legal  costs  (this  was  confirmed  by  both  employer  and  employee 
representatives interviewed, although one employee representative pointed out a legal 
dispute  in  the  EWC  set-up  phase).  This  is  lower  compared  to  the  EWCs  surveyed  in 
2008 where about a half of the 58 companies surveyed faced legal disputes either in 
the EWC set-up phase or during the operation of the EWC.134 

According  to  employee  representatives,  less  than  a  half  of  (10  out  of  25)  companies 
have  established  EWC  specific  information  communication  platforms  (such  as 
discussion  forums,  intranet  sites,  shared  sites  for  uploading  documents).  For  most 
such  companies,  the  costs  of  running  such  platforms  were either  difficult  to estimate 
separately or low due to the use of existing standard company-wide operations. Only 
one company indicated that the maintenance of such platform is quite labour intensive 
(and there is a part-time secretary working for the EWC).  

The majority of employee representatives (24 out of 34 interviewees) considered that 
the information flow in their EWC works in practice. Relevant information tends to be 
provided, and some consultation does take place on the face of it, although it is rare 
initially  proposed  by  management.  Where 
that  this  changes  the  approach 
dissatisfaction  with  the  information  and  consultation  process  is  being  expressed, 
interviewees  pointed  out  very  late  timing  of  providing  information  and  the  fact  that 
this  did  not  allow  for  any  real  consultation.  In  many  cases,  decisions  were  already 
taken  before  consultation  took  place  and  there  was  little  scope  for  the  EWC’s 
meaningful involvement (see also section 7.5).  

Overall, respondents seem to be more positive about information provision than about 
consultation  processes  (see  Table  38).  Indeed,  while  23%  of  the  respondents 
indicated that their EWC ‘always’ received information on transnational matters before 
the  decisions  have  been  made,  only  5%  indicated  that  their  EWC  was  ‘always’ 
consulted. Besides, respectively 27% and 32% of the respondents reported that their 
EWC was ‘never’ informed nor consulted. 

Table 39.  Functioning of EWC in relation to information and consultation – in practice 

Always 

Often 

Sometimes 

Rarely 

Never 

23% 

9% 

27% 

14% 

27% 

5% 

14% 

36% 

14% 

31% 

EWC receiving 
information on 
transnational matters 
affecting employee in 
more than one country 
before the decisions have 
been made 

EWC is consulted on 
transnational matters 
affecting employee in 
more than one country 
before the decisions have 
been made 

Source: Survey of pre-Recast EWCs employee representatives, based on 22 responses to the question.  

The level  of  satisfaction  of  respondents  about  the  practice  of information  within  their 
EWC  is  relatively  low,  since  only  5%  reported  being  very  satisfied  and  27%  fairly 
satisfied  with  the  use  of  their  EWC  as  an  information  forum.  Half  of  the  respondents 
indicated  being  somewhat  satisfied,  and  18%  reported  not  being  satisfied  at all.  The 
situation  is  worse  regarding  the  practice  of  consultation  within  respondents’  EWC. 
Indeed,  41%  of  the  respondents  indicated  being  not  at  all  satisfied  with  the  use  of 

134 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission. 

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their  EWC  as  a  consultation  forum, 27%  reported  being  somewhat  satisfied  and  only 
32%  reported  being  fairly  satisfied.  No  respondent  was  very  satisfied  with  the 
situation. The detailed responses are presented in Table 39 below.  

Table 40.  Satisfaction with the practice of information and consultation within EWC 

Very satisfied  Fairly satisfied  Somewhat satisfied  Not satisfied at all 

EWC as an information 
forum 

EWC as a consultation 
forum 

5% 

0% 

27% 

32% 

50% 

27% 

18% 

41% 

Source: Survey of pre-Recast EWC employee representatives, based on 22 responses to the question.  

The  following  main  challenges  were  identified  in  relation  to  their  EWC  as  an 
information and consultation forum: 

  Lack of respect for the right to consultation;  

  Issue with receiving timely information for consultation, e.g. timing of meetings 

in line with the changes within the organisation; 

  Lack of information coming from the management, e.g. lack of willingness from 

management to provide information in good time;  

  Difficulty  in  getting  continuous  and  stable  employee  representatives  from  all 
countries  and  companies;  lack  of  pro-activeness  and  low  interest  of  some 
employee  representatives;  conflict  between  representatives  belonging  to 
different unions, without actually being constructive. 

  Language barriers, which prevent fruitful dialogue;  

  Coordination  and  harmonisation  of  documents  between  sectors  and  business 

lines;  

  Socially  responsible  workforce  reduction,  transfer  of  work  to  other  countries; 

and 

  Merging of divisions within the Group structure and the resulting impact on the 

headcount.  

In the interviews with Recast EWCs, with regard to the articulation of information and 
consultation  processes  at  different levels,  the  majority  of  employers  were  considered 
by  the  employee  representatives  to  be  clear  which  level  of  worker  representation 
needs to be consulted first (see Figure 19).  

This  shows  a  good  understanding  amongst  the  companies  that  EWCs  should  receive 
information on transnational matters first, but this does not necessarily mean that this 
always  happens  in  practice.  This  is  reflected  in  the  answers  given  by  the  employee 
representatives  interviewed,  which  show  that  around  a  quarter  of  EWCs  are  not 
informed  (and  consulted)  first  on  corporate  strategy  and  in  restructuring  situations 
(see Figure 20).  

The  figure  above  shows  that,  in  many  cases,  the  information  (and  consultation)  of 
EWCs  and  national  or  local  works  councils  takes  place  simultaneously.  Qualitative 
feedback from the interviews suggests that, for companies headquartered in countries 
with  traditionally  strong  national  works  councils,  national/local  information  and 
consultation bodies often continue to enjoy the privilege of being informed first.  

7.2.1.2  Views of the pre-Recast Directive EWCS 

The  survey  with  the  22  EWCs  established  before  the  Recast  Directive  showed that in 
only 32% of such EWCs the information is received always or often, whereas in around 

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a third the information is never received by the EWC (see Table 41). The situation was 
even worse in relation to the consultation where only 19% of the EWCs were always or 
often consulted on transnational matters.   

Table 41.  Views of the pre-Recast EWCs on the information and consultation  

EWC is receiving information on 
transnational matters affecting employee 
in more than one country before the 
decisions have been made 

EWC is consulted on transnational 
matters affecting employee in more 
than one country before the 
decisions have been made  

Always 

Never 

Often 

Rarely 

Sometimes 

N 

5 

6 

2 

3 

6 

% 

23% 

27% 

9% 

14% 

27% 

N 

1 

7 

3 

3 

8 

% 

5% 

32% 

14% 

14% 

35% 

 Total 

22 

100% 

22 

100% 

Source: ICF Survey with Art. 6 EWC (N=22). 

7.2.1.3  Views of the social partners 

As  part  of  this  evaluation,  14  European  social  partners  provided  their  views  on  the 
impact  of  the  ‘new  rules’.  The  European  social  partner  respondents,  both  employer 
and  employee  organisations’  representatives,  reported  a  greater  clarity  on  certain 
provisions of information, consultation and transnational matters.  But problems do 
still  remain  with  the  interpretation  of  these  concepts  in  practice,  with 
employee  representatives  in  particular  often  considering  that  definitions  and 
requirements remain too vague. Particular concerns were expressed that the  level of 
‘consultation and real dialogue is very limited and a key problem’; the timing of 
information  provision  was  seen  to  impact  on  the  potential  for  real  consultation  and 
other rules (such as stock market rules) were often cited as a hindrance to the timely 
delivery of information.  

European level social partners were also asked whether the new provisions on the link 
with  information  and  consultation  at  national  level  have  resulted  in  more  frequent 
dissemination of information towards workers, and/or in more time given to employee 
representatives to carry out their information dissemination duties (see Table 42). 

Table 42.  The  awareness  of  Recast’s  impact  on  the  frequency  of  and  availability  of 

workers for information dissemination (views of the EU social partners)   

Employers 
organisations 

Workers organisations   Total 

Positive impact 

1 

impact 

No 
remain) 

Don’t know 

Total 

(problems 

3 

1 

5 

2 

6 

1 

9 

3 

9 

2 

14 

Source: ICF interviews with European level social partners (n=14) 

A  large  majority  of  respondents  (nine  out  of  14,  or  64%)  reported  that  the  Recast 
Directive  had  no  impact  on  this  issue.  Employers’  representatives  mentioned  that 
problems  remain  regarding:  lack  of  clarity  about  ‘what  constitutes  confidential 
information’; lack of meetings (only one is foreseen) to allow for ‘an efficient operation 
of the EWC'; limited representation of employees, who do not have sufficient means to 

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disseminate  information;  and  limited  ‘linkages  with  local  bodies  (e.g.  local  trade 
unions), which makes it difficult to disseminate the information’. 

Around  two  thirds  of  the  national  social  partners  surveyed  as  part  of  this  evaluation 
felt  that  the  new  rules  introduced  had  none  or  very  little  impact  in  relation  to 
timing,  the  level  and  scope  of  information  and  consultation  of  EWCs  on  the 
transnational  matters  (see  Table  43).  Just  under  one  third  felt  that  there  was  an 
improvement.  

Table 43.  National social partner views on  the impact of the new rules introduced by 
the  Recast  Directive  on  the  extent  to  which  EWCs  are  used  as  information 
and consultation forums 

Employers 
organisation 
(N=16)  

Trade 
union 
(N=29) 

Other 
(N=7) 

Total 
(N=52) 

The  situation  has  remained  the  same,  no 
noticeable change 

69% 

59% 

86% 

65% 

There has been a decline in the timing, level and 
scope  of  the  information  and  consultation  of 
EWCs on transnational matters 

There  has  been  an  improvement  in  the  timing, 
level  and  scope  of 
information  and 
consultation of EWCs on transnational matters 

the 

Source: ICF survey with national social partners. 

6% 

7% 

0% 

6% 

25% 

34% 

14% 

29% 

The reasons put forward by those who  felt the situation had largely unchanged since 
the introduction of new rules included:  

  The Directive was not ambitious enough, only introducing modest legal changes 

to information and consultation concepts;  

  Lack  of  enforcement  and  sanctions  in  cases  of  poor  information  and 

consultation with the EWCs;  

  Where    it  had  been  implemented,  ‘the  majority  is  characterised  by  poor 

implementation of rules’,  

  Financial  and  economic  crisis  and  the  focus  on  costs  reduced  the  company 

willingness to engage in the information and consultation with the EWCs.  

National social partners who did in fact feel there was an improvement as a result of 
the new rules cited the clearer legal basis for timing and I&C of EWCs on transnational 
matters contained in the Directive, contributing to the empowerment of employees to 
seek  involvement  in  such  matters  and  at  the  same  time  increasing  pressure  on 
employers to implement the Directive.  

The  reasons  why  6%  of  national  social  partners  contacted  felt  that  there  was  a 
worsening of the situation include the legal definitions being too vague, management 
not  being  able  to  fulfil  their  obligations  due  to  secrecy  preventing  them  from 
communicating  information,  and  stock  exchange  rules  overriding  the  EWC  directive 
and legislation. 

7.2.1.4  Summary  

The  table  below  summarises  views  of  different  stakeholders  regarding  the  impact  of 
the  changes  in  the  definition  of  information,  consultation  and  the  transnational 
matters  in  the  Recast  Directive.  The  majority  view  in  the  Recast  EWCs  was  that  the 
information  and  consultation  processes  in  the  EWCs  are  working  with  the  benefits 
articulated  in  relation  to  a  better  informed  decision  making  and  better  intercompany 
relations.  The  costs  or  difficulties  in  applying  the  concepts  of  the  information  and 

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consultation processes are not considered to be taxing. This positive finding contrasts 
with  the  experiences  of  pre-Recast  EWCs  (where  the  majority  of  cases  do  not  apply 
information  and  consultation  properly)  and  the  views  of  the  social  partners  at  the 
European  and  national  level.  They  acknowledged  the  improvements  in  the  clarity  of 
the definitions, but pointed out a number of problems to be addressed.  In summary, 
on  the  face  of  it,  there  appears  to  be  a  good  level  of  agreement  between  employer 
and employee representatives on who should be consulted first on different decisions, 
although uncertainties and practical issues of implementing this in practice remain. 

Table 44.  Perception  of  impact  of  the  definitions  of  information,  consultation  and 

transnationality  by different stakeholders 

Source of 
information 

Perception of impact  

Employer 
representatives in 
recast EWCs 
(N=25) 

Employee 
representatives in 
recast EWCs 
(N=34) 

Half companies held extraordinary EWC meetings to provide information and 
consultation (average of 3 meetings)  

A minority reported difficulties in providing information and consultation  

Half  companies established specific EWC information platforms, which costs are 
considered to be low  

The majority considered that the information process in their EWC works in 
practice, although need for improvements is also noted. Very little consultation 
with the possibility to effect change in practice  

EU level social 
partners (N=14) 

Greater clarity on certain aspects but problems remain with the application of 
information, consultation on transnational matters in practice  

National level 
social partners 
(N=52) 

Comparison with 
pre-recast EWCs 
(N=22) 

Source: ICF analysis.  

The definitions introduced had none or very little impact due to lack of obligation 
to implement, enforcement and sanctions 

Only a third of such EWCs are regularly informed and consulted about 
transnational matters 

7.3  The analysis of cost and benefits associated with the changes in 

the rules concerning the EWC operation 

This  section  discusses  the  overall  costs  of  the  EWC  operation  under  the  Recast 
Directive, as well as the key costs and benefits of the following changes in the Recast 
Directive affecting the operation of the EWC: 

  Select  committee:  In  order  to  enable  the  select  committee  to  perform  a  more 
important  function,  its  maximum  number  of  members  is  set  at  five  and  the 
conditions  enabling  it  to  exercise  its  activities  on  a  regular  basis  must  be  met 
(Annex 1.d, rec.44). 

  Adaptation  clause:  Where  the  structure  of  the  company  changes  significantly, 
and either in the absence of provisions established by the agreements in force 
or  in  the  event  of  conflicts,  the  central  management  shall  initiate  the 
negotiations  referred  to  in  Article  5  on  its  own  initiative  or  at  the  written 
request of at least 100 employees (Art. 13).   

This  section  analyses  in  detail  consequences  of  the  each  change,  followed  by  overall 
impact of changes made on the cost of operation of EWC.  

7.3.1  Key costs of operating the EWC  

This  section  describes  and  estimates  the  key  types  of  quantifiable  costs  of  EWC 
operation and discusses changes in those between post-2011 and pre-2011 EWCs.  

The  interviewees  were  asked  to  provide  information  about  various  types  of  costs, 
including:  venue,  accommodation,  travel  costs  for  participants,  subsistence  costs, 

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translation  costs,  interpretation  costs,  administrative  support,  cost  of  experts, 
dissemination  costs,  paid  time  off  for  EWC  employee  members  to  attend  meetings, 
management  time,  cost  of  training.  Only  a  handful  of  company  representatives  were 
able  to  break  down  the  EWC  cost  into  detailed  headings,  therefore  the  interviewees 
were also asked to provide an estimation of the overall costs of organising one plenary 
meeting and running EWC throughout a year. The cost estimates were later compared 
with the costs reported in the 2008 study.135    

The  representatives  of  management  were  asked  to  provide  an  estimate  cost  of  one 
plenary  meeting  and  the  annual  cost  of  the  running  of  the  EWC  (see  Table  44). 
Companies’  own  calculations  and  estimates  on  their  annual  EWC  expenditure  range 
from  under  50,000  to  500,000.  The  Recast  EWC  show  lower  annual  budget  diversity 
than  Art.  6  EWCs  interviewed  in  2008.  At  the  time  representatives  of  companies 
reported EWC expenditure in the range of EUR 7,500 to EUR 2.3 million.136  

According  to  employers’  estimations  one  in  two  companies  spend  less  than  EUR 
50,000 on one plenary meeting. With 40% of companies having two plenary meetings 
per  year  this  translates  to  two  thirds  of  companies  spending  less  than  EUR  100,000 
annually on the EWC.  

Table 45.  Approx. cost of EWC operation 

Approx. cost of one EWC plenary meeting 
(N=20) 

Approx. annual cost of the running of the EWC 
(N=20) 

Less than €25,000 

€25,000 - €50,000 

€50,000 - €75,000 

€75,000 - €100,000 

€100,000 - €150,000 

€150,000 - €200,000 

€200,000 - €250,000 

More than €250,000 

35% 

15% 

30% 

10% 

5% 

5% 

0% 

0% 

Less than €50,000 

€50,000 - €100,000 

€100,000 - €150,000 

€150,000 - €250,000 

€250,000 - €300,000 

€300,000 - €350,000 

€350,000 - €450,000 

More than €450,000 

25% 

40% 

5% 

0% 

5% 

15% 

0% 

10% 

Note: Findings must be read with caution given the small sample sizes. 

Source: Interviews with employer representatives of Recast EWCs. 

Based on the values reported in ranges, the annual operational costs can be estimated 
at EUR 165,000. The estimates of total EWC running costs made by representatives of 
Recast  EWC  translate into  0.008%  of  the  company turnover.  It  should  be  noted  that 
these are only fixed costs of running EWC and does not include staff time.    

Table 46.  Approx. cost of running EWC (N=20) per year  

Total cost  

Share of the running cost in 
company turnover in 2014 

Cost per EWC member 

Min 

 45,000  

Average 

 165,000  

Max 

 500,000  

0.001% 

0.008% 

0.046% 

 € 1,125  

 € 5,708  

 € 19,118  

Source: Interviews with employer representatives of Recast EWCs. Note: Findings must be read with caution 
given the small sample sizes. 

135 Prices as of 2014. EPEC GHK (2008), Preparatory study for an Impact Assessment of the European 
Works Council Directive, European Commission.  
136 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission, p. 38. 

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In  the  two  studies  (conducted  in  2008  and  in  2015)  the  interviewees  were  given 
flexibility  whether  or  not  to  include  staff  costs  in  the  overall  EWC  budget.  These 
differences  in  reporting  were  taken  into  account  by  comparing  the  companies  which 
included  similar  types  of  costs  in  their  estimates.  Additional  limitation  in  comparing 
the  costs  of  EWC  operation  lay in  the way  the interviewees  were  able to  provide  the 
information. In the 2015 study the interviewees provided their estimations in ranges, 
which  were  later  recalculated  into  averages  to  allow  the  comparison  with  values 
reported in the 2008 study. 

Overall  the  comparison  of  average  costs  (with  or  without  employees’  time)  suggests 
that the operation of EWC under Recast Directive is less expensive:      

  Only  four  representatives  of  EWC  established  after  2011  included  in  their 
estimates  of  annual  EWC  costs  time  of  employees  and  management.  In  this 
group, the average EWC budget is EUR 237,500. That is over EUR 60,000 lower 
than of those EWCs surveyed 2008 (EUR 300,000 in 2014 prices, including staff 
time).137 

  A comparison of information from companies which included only fixed costs in 
their  estimates  shows  little  difference  between  Recast  EWCs  and  those 
established  under  Directive  94/45/EC  (EUR 153,667  and  EUR  160,900 in  2014 
prices respectively).138 

The  annual  costs  of  the  operation  of  an  EWC  relate  to  the  structure  of  EWC  and  the 
number of different meetings held. As seen in  Table 47, although the number of EWC 
members is lower in the EWCs established since 2011, the country coverage is higher 
which  may  influence  the  translation  costs.  On  average,  the  companies  established 
under  the  Recast  Directive  have  a  lower  number  of  plenary  meetings,  though  the 
share of companies with two meetings is higher. 

Table 47.  Differences in the EWC structure affecting costs of EWC operation 

Recast EWC: 2015 (N=37) 

Art. 6 EWC (N=22) 

EWC structure: 

  Number of EWC members 
(employee and employer 
representatives) [Average] 

  Number of countries 

represented by EWC members 
[Average] 

Annual plenary meetings: 

  % of companies with 2 annual 

plenary meetings 

  Number of annual plenary 

meetings [Average] 

Steering committee: 

  % of companies with steering 

committee  

  Number of steering committee 

members – employees 
[Average] 

19 

11 

40% 

1.4 

89% 

5 

23 

9 

33% 

2.0 

88% 

5 

137 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission, p. 38. 
138 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission, p. 38. 

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  Number of steering committee 
members – management 
[Average] 

 

Average number annual 
steering committee meetings 
[Average] 

Other meetings 

  % of companies with 
preparatory meeting 

  % of companies with working 

groups  

  % of companies with 

provisions to hold extra-
ordinary meetings 

1 

3 

77% 

36% 

97% 

2 

3 

96% 

29% 

88% 

Source: Interviews with employer and employee representatives of Recast EWCs. European Commission 
(2008), Staff Working Document accompanying the Proposal for a Directive of the European Parliament and 
the Council on the establishment of a European Works Council or a procedure in Community-scale 
undertakings and Community-scale groups of undertakings for the purposes of informing and consulting 
employees (recasting), COM(2008) 419 final. 

The  above  comparison  does  not  include  additional  costs  which  might  be  borne  by 
companies which established an EWC under the Recast directive – such as the cost of 
training  or  experts.  In  the  2008  study  the  average  annual  training  budget  was  more 
than  EUR  50,500  (expressed  in  2014  prices)  in  all  countries  including  companies 
headquartered  in  France  which  stood  out  from  the  rest.  This  number  is  substantially 
lower  in  the  group  of  Recast  EWC  which  on  average  have  annual  training  budget  of 
EUR 12,900, which translates to EUR 744 per EWC member. 

7.3.2  Select committee  

The  Recast  Directive  further  formalised  the  role  of  steering  committees  in  that  it 
introduced a right for their operation and laid out some rules regarding the number of 
members (‘maximum of five members) and the frequency of meetings (‘the conditions 
enabling  it  to  exercise  its  activities  on  a  regular  basis  must  be  met’).  This  was  to 
enhance  the  effectiveness  of  the  negotiation  process  between  workers  and  the 
management while minimising its costs and administrative burden.139  

Potential  benefits  and  costs  of  the  requirements  related  to  select  committees  are 
presented  in  Figure  32,  followed  by  evidence  from  various  sources  regarding  the 
consequences of the new requirement.    

139 European Commission (2010), Report of Group of Experts on implementation of Recast Directive 
2009/38/EC on European Works Councils. 

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Figure 32. Potential  costs  and  benefits  associated  with  introduction  of  requirements 

related to select committees 

Source: ICF 

The  new  rights  concerning  steering  committee meetings in the Recast Directive  have 
not been taken up by all new Recast EWCs, since four out of 35 Recast EWCs  whose 
management and employee representatives were interviewed in the evaluation are not 
operating one. This trend is largely in line with the trend in other types of EWCs. 

Table 48.  Operation of steering committees 

Operation of a steering committee 

Recast EWCs* (N=35)  Other EWCs** (N=70) 

Yes 

No 

89% 

11% 

88% 

12% 

*based on information from interviewees from 35 out of 37 companies in the sample. ** EPEC GHK (2008), 
Preparatory  study  for  an  Impact  Assessment  of  the  European  Works  Council  Directive,  European 
Commission. ‘Other EWCs’ refers to EWCs operating under Article 13 and Article 6 rules.  

Almost a fifth (23%) of all Recast EWC steering committees exceed the maximum limit 
of EWC employee members specified in the Directive, since they have between six and 
ten  members  instead  of  the  maximum  of  five.  This  tends  to  apply  to  larger  EWCs, 
where  national  representation  in  the  steering  committee  wants  to  be  maintained. 
However, with an average number of steering committee members of four-and-a-half, 
overall  there  is  a  slight  tendency  towards  smaller  steering  committees,  but  more  so 
because  of  the  smaller  size  of  Recast  ‘companies’  and  ‘EWCs’,  rather  than  for  other 
reasons.  On  average,  one  management  representative  liaises  with  the  steering 
committee, although this number ranges from zero to six.  

Table 49.  Composition of steering committees 

Employee members 
Average 
Maximum 
Minimum 
Share of employee members (%)  
- 5 or fewer members 
- More than 5 members 
Management ‘members’ 
Average 
Maximum 
Minimum 

Recast EWCs* (N=30) 

Other EWCs** (N=70) 

4.5 
5 
10 
15 
2 
2 
Recast EWCs* (N=30)  Other EWCs** (N=70) 
77% 
23% 
Recast EWCs* (N=30)  Other EWCs** (N=70) 
2 
1 
4 
6 
0 
0 

NA 
NA 

*based on information from interviewees from 30 out of 37 companies in the sample 

** EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission. ‘Other EWCs’ refers to EWCs operating under Article 13 and Article 6 rules.  

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The  steering  committees  of  Recast  EWCs  tend  to  meet,  on  average,  three  times  a 
year.  

Table 50.  Frequency of steering committee meetings 

Frequency of meetings 
Average 
Maximum 
Minimum 

Recast EWCs* (N=31)  Other EWCs** (N=70) 
3 
3 
12 
6 
0 
0 

*based on information from interviewees from 31 out of 37 companies in the sample 

** EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission. ‘Other EWCs’ refers to EWCs operating under Article 13 and Article 6 rules.  

The large majority of respondents to the survey of pre-Recast directive EWCs reported 
that  their  EWC  operated  a  Steering  committee  (17  out  of  22,  or  77%).  In  the  pre-
Recast  EWCs  surveyed  in  the  evaluation,  the  majority  of  respondents  have,  on 
average, between one and four employer representatives (50%) and between two and 
nine  employee  representatives  (59%)  in  their  steering  committee.  The  number  of 
employer  representatives  ranges  between  zero  and  14,  with  an  average  of  three  per 
steering  committee.  The  number  of  employee  representatives  ranges  between  zero 
and 16, with an average of six per steering committee. 

On  average,  there  are  two  plenary  meetings,  between  four  and  five  steering 
committee  meetings  and  between  three  and  four  working  group  meetings  organised 
each  year,  according  to  the  survey  respondents.  Three  respondents  indicated  having 
three  plenary  meetings  per  year;  six  respondents  reported  having  between  six  and 
eight  steering  committee  meetings  per  year;  and  three  respondents  reported  having 
between seven and eight working group meetings per year. 

Among  renegotiation  EWC  agreements,  the  number  of  steering  committee  meetings 
being  held  stayed  largely  the  same  (61%  of  cases)  and  increased  in  26%  of  cases. 
Only one EWC reported having removed the Select Committee in order to ensure that 
a Select Committee dominated by members from the HQ country dominated the EWC. 

The  table  below  summarises  views  of  different  stakeholders  regarding  the  impact  of 
the  changes  in  relation  to  the  Select  Committee.  Overall,  the  obligation  imposed  by 
the  recast  Directive  did  have  an  impact  as  the  Select  Committees  are  more 
widespread amongst the Recast EWCs.   

Table 51.  Perception of impact of the Select Committee by different stakeholders 

Source 
information 

of 

Perception of impact  

Almost 90% Recast EWCs operate Select Committees  

Recast EWCs (n=37) 

Almost a fifth (23%) of all Recast EWC steering committees exceed the maximum 
limit of EWC employee members specified in the Directive 

Comparison with 
pre-recast EWCs 
(N=22) 

Slightly fewer Article 6 EWCs have a Select Committee (78%), average of 3 
members  

Benchmarking with 
other EWCs 

86% of EWC agreements contain provisions for the establishment of a select 
committee 

Source: ICF analysis 

7.3.3  Adaptation clause 

The  Recast  Directive  established  provisions  for  the  amendments  and  renegotiation  of 
the EWC agreements when the circumstances change.140 This aimed to ensure greater 

140 Adaptation Clause: Where the structure of the Community-scale undertaking or Community-scale group 
of undertakings changes significantly, and either in the absence of provisions established by the agreements 

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legal  certainty  in  the  work  of  EWCs  as  well  as  providing  an  impetus  for  the 
renegotiations of the agreements when the circumstances change.141 Potential benefits 
and  costs  of  the  obligations  relating  to  the  introduction  of  an  adaptation  clause  are 
presented  in  Figure  33,  followed  by  evidence  from  various  sources  regarding  the 
consequences of the new requirement. 

Figure 33. Potential  costs  and  benefits  associated  with  introduction  of  the  adaptation 

clause 

Source: ICF.  

Around 40% (12 out of 31) Recast EWC employer representatives reported that they 
had revised the EWC agreement, to respond to the changes in the company structure, 
and the identified need for improvements in the EWC structure. According to employer 
representatives, in eight Recast EWC agreements there is an explicit clause to review 
the  EWC  agreement-  either  on  a  regular  basis  (i.e.  going  above  the  requirements  of 
the Directive) or when a certain proportion of employees request it (in conformity with 
the adaptation clause).  

The majority of respondents (12 out of 23, or 52%) to the survey of companies which 
renegotiated  their  agreement  after  the  introduction  of  the  Recast  Directive  reported 
that  they  had  such  an  adaptation  clause  already  before  the  renegotiated  agreement, 
and that this clause is also in the latest version of their agreement (six employers and 
six  employees).  Four  employees  indicated  that  such  a  clause  was  added  as  a  new 
element to the latest agreement. Almost a third of the respondents (seven out of 23, 
or 30%) indicated that their agreement did not include such a clause (five employees, 
one employer and the external expert). 

Renegotiating  an  EWC  agreement  can  be  a  good  way  to  update  it  according  to  the 
changed context or to improve the existing rights. An ETUI report142 highlights that ‘as 
many  as  one  in  every  two  active  EWCs  are  based  on  agreements  valid  for  an 
indeterminate  period,  […]  which  means  they  can  be  changed  only  by  an  explicit 
demand  for  renegotiation  or  the  termination  of  the  agreement  by  one  of  the  two 
parties’. The other EWCs analysed by ETUI have agreements valid for a specific period 
(generally  four  years).  Among  the  agreements  that  are  valid  for  a  specific  period, 

in force or in the event of conflicts between the relevant provisions of two or more applicable agreements, 
the central management shall initiate the negotiations referred to in Article 5 on its own initiative or at the 
written request of at least 100 employees or their representatives in at least two undertakings or 
establishments in at least two different Member States. 
141 European Commission (2010), Report of Group of Experts on implementation of Recast Directive 
2009/38/EC on European Works Councils. 
142 ETUI (2015), Facts and figures.  

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‘29% have an article that foresees a tacit renewal of the agreement, and for the other 
71% explicit renewal or renegotiation will be necessary at the end of the term’. 

The  ETUI  further  highlighted  that,  ‘of  all  the  active  EWC  bodies,  at  least  35%  have 
already  renegotiated  their  agreement.  […]  Nevertheless,  approximately  half  of  the 
pre-directive  EWCs  have  not  been  renegotiated  meaning,  that  these  EWCs  have  not 
had the opportunity to incorporate some regulatory or company changes. The SE WCs 
have  been  rarely  renegotiated  as  most  of  them  have  been  established  much  more 
recently. Moreover, SE WCs are generally established in companies which already had 
a working EWC but changed their legal structure’. 

Dissolution cases concerned 240 of the total number of EWC bodies set up. The main 
causes  for  dissolution  are  ‘structural  changes  within  the  companies’,  e.g.  a  merger 
with or acquisition by another company. The ETUI states that, in such cases, ‘either a 
new EWC is negotiated, or the existing EWCs merge to form a single new body. Of the 
total  EWC  dissolutions  6%  can  be  attributed  to  changes  in  the  legal  status  of  a 
company  and  another  6%  to  bankruptcies  or  companies  being  sold.  Only  2%  of  the 
known  dissolutions  have  occurred  due  to  the  company  no  longer  falling  within  the 
scope  of  the  directive  (decrease  in  number  of  employees)  and  only  1%  have  been 
directly  linked  to  a  lack  of  interest  in  the  EWC’.  According  to  the  ETUI  report,  it 
appears that, once established, EWCs generally perform well. 

Overall,  the  obligation  imposed  by  the  Recast  Directive  did  have  an  impact  as  a 
significant proportion of Recast EWCs have already renegotiated their agreement and 
the  presence  of  adaptation  clause  is  noted  in  a  quarter  of  Recast  EWC  agreements. 
However,  it  must  be  noted  that  around  52%  of  EWC  which  had  renegotiated  their 
agreement already had such a clause prior to the renegotiation. 

7.4  The analysis of costs and benefits associated with the changes in 

the rules concerning the role and capacity of employee 
representatives 

The  study  aimed  to  provide  qualitative and  quantitative  assessment  of the  additional 
costs and benefits associated with changes introduced by Recast Directive 2009/38/EC 
to the rules concerning the role and capacity of employee representatives. Comparing 
to the Directive 94/45/EC the key changes have been made which affect their role and 
rights: 

  Role and protection of employee reps: The members of the EWC shall have the 
means  required  to  apply  the  rights  arising  from  the  directive  to  represent 
collectively the interests of the employees. They shall inform employees of the 
content and outcome of the information and consultation procedure carried out 
within the EWC (Art.10.1-2). 

  Right  to  training:  Employees'  representatives  shall  be  provided  with  training 

without loss of wages (Art.10.4, rec.33). 

These  changes  were  introduced  to  provide  greater  legal  certainty  and  protection  of 
EWC  members  and  build  their  competences  through  a  right  to  training.  This  section 
analyses the consequences of the each change, followed by overall impact of changes 
made on the capacity of employee representatives. Potential benefits and costs of the 
obligations  of  the  right  to  training  are  presented  in  Figure  34,  followed  by  evidence 
from various sources regarding the consequences of the new requirement. 

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Figure 34. Potential  costs  and  benefits  associated  with  introduction  of  the  right  to 

training  

Source: ICF 

As  shown  in  section  6.2.3,  two-thirds  of  Recast  EWC  employee  representatives 
confirmed  that  employees  had  made  use  of  the  right  to  training,  whereas  one-third 
confirmed that this was not the case. This is an increase compared to over half of the 
companies surveyed in 2008 (58%) offer a right for their EWC members to training.143 

Overall, the main reasons for the lack of take-up of training in the new EWCs included: 

  The  EWC  was  just  recently  established  and  the  members  had  not  yet  had  the 

time to consider training requests. 

  There was no demand among members (yet). 

Among those who had requested training, the vast majority (80%)  of EWC members 
noted that there had been no particular challenges in securing it. The remaining ones 
(20%)  consistently  identified  one  challenge  of  the  reluctance  of  the  management  to 
allow such training to take place or leave to be taken. Those members of Recast EWCs 
that have taken up this right have received, on average, 1-3 days of training per year. 

Table 52.  Number of days of training per year 

0 

Up to 5 days 

5-10 days 

10+ days 

Share of respondents (%) 23 

65 

12 

0 

Source: Based on a survey of employee representatives of Recast EWCs: 26 valid responses out 37 EWCs in 
the sample.  

The  most  common  topics  of  training  included  legal  (mentioned  by  25%  of 
respondents)  and  economic  (15%)  affairs,  as  well  as  languages  and  communication 
skills  (37%).  In  other  cases,  employees  were  given  training  on  specific  transversal 
skills,  such  as  negotiation,  or  the  training  took  the  form  of  team  building.  In  other 
cases training was specific to the work in the different aspects of EWCs. 

In  terms  of  quantifiable  costs  of  training  to  the  companies,  amongst  the  22  EWCs 
operating under Article 6 rules surveyed as part of this evaluation half had the training 
budget below €10,000 (of 14 EWCs reporting such costs). 

143 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission. 

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Table 53.  Reported costs in pre-Recast EWCs surveyed as part of this evaluation  

Training budget  

Less than €5,000  

€5,000 < €10,000  

€10,000 < €20,000  

€20,000 < €30,000   

More than €30,000  

Don’t know 

Nothing 

 Total 

N 

6 

1 

2 

1 

2 

8 

2 

22 

% 

27% 

5% 

9% 

5% 

9% 

36% 

9% 

100% 

Source: ICF survey of Article 6 EWCs (n=22). 

The companies surveyed in 2008  had an average annual training expenditure of  EUR 
43,800.144  But  a  closer look  at  the  cost  estimates  reveals that the French  companies 
spend  on  average  EUR  76,700  per  year  on  the  EWC  training  while  companies  from 
other countries have an average EWC training cost of EUR 24,800.   

As  shown  in  section  6.2.3,  Recast  EWCs  (where  the  cost  data  was  provided  to  the 
evaluation)  report  significantly  lower  training  costs,  with  the  annual  average  training 
cost of around EUR 12,000 (these cost estimates do not tend take into account travel 
costs  or  time  costs,  but  mostly  costs  related  to  the  fees  for  trainers  and  possible 
venue  costs,  when  applicable)  (see  Table  54).  No  geographical  or  sectoral  patterns 
were identified.  

The  potential  reduction  in  the  training  costs  compared  with  the  Article  6  EWCs  and 
EWCs surveyed in 2008 is unlikely to be directly related to the Recast Directive per se. 
This  is  more  likely  to  be  associated  with  a  smaller  companies  operating  the  Recast 
EWCs  and  the  fact  that  many  Recast  EWCs  are  very  new  with  only  a  year  to  two  of 
operation behind them. This means that in some Recast EWCs the new EWC employee 
representatives have not yet requested or organised any training.  

Table 54.  Estimated annual budget spent on training of EWC members (Recast EWCs) 

(EUR) 

None  <5,000  5,000-10,000  10,000-20,000  20,000-30,000 

30,000+ 

Share of respondents 21% 

37% 

10.5% 

5% 

10.5% 

16% 

Source: Based on a survey of employee representatives of Recast EWCs: 19 valid responses out of 37 EWCs 
in the sample.  

Half  of the European  social  partners interviewed  considered  the new  right  to  training 
had  a  positive  impact  on  the  employee  representative  access  to  training  (see  Table 
55).  

Table 55.  The  awareness  of  Recast’s  impact  on  the  employee  access  to  training 

amongst the European social partners  

Employee representatives being given 
more time to carry out their EWC 
information dissemination duties 

Impact on the employee representatives’ 
access to training 

Employers 

Workers 

Total  Employers 

Workers 

Total 

144 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission. 

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organisations  organisations  

organisations  organisations  

Positive 
impact 

No impact 

Negative 
impact 

Don’t know 

Total 

1 

3 

1 

5 

2 

4 

2 

1 

9 

3 

4 

5 

2 

14 

3 

1 

1 

5 

7 

1 

1 

9 

7 

4 

1 

2 

14 

Source: ICF interviews with European level social partners 

Overall, the obligation imposed by the recast Directive did have a significant impact on 
the  EWC  member  access  to  training  with  the  right  to  training  being  now  more 
widespread  in  the  EWCs.  The  costs  of  training  in  the  Recast  EWCs  is  lower  in 
comparison  to  the  EWCs  surveyed  in  2008,  which  could  be  due  to  the  recent 
establishment of Recast EWCs where time is needed for the employee representatives 
to understand and address their training needs.  

7.5  Stakeholder  views  of  non-quantifiable  costs  and  benefits  of 

EWCs 

This  section  discusses  findings  on  the  non-quantifiable  costs  and  benefits  associated 
with the operation of EWCs under the Recast Directive, as perceived by employers and 
employees  as  well  as  their  representative  organisations  at  national  and  EU  levels.  It 
also  looks  at  how  these  perceptions  relate  to  those  of  EWCs  established  under  the 
Directive EC/94/45, as measured in 2008145. 

Specifically, this section focuses on the following three aspects: 

  Benefits related to the operation of EWCs in companies; 

  Costs/inconveniences associated with the EWCs; 

  Whether the benefits outweigh the costs of having an EWC. 

7.5.1  The  views  of  management  and  employee  representatives  of  Recast 

EWCs 

Findings  are  available  from  interviews  with  25  employers  and  34  employee 
representatives. Some respondents pointed out their EWCs were still in such an early 
stage that it is too early to assess their impact, benefits in particular: when EWCs are 
very  new  or  still  being  established,  costs  are  incurred  but  the  benefits  may  not  be 
evident yet.  

Benefits of EWCs 

Generally,  there  was  agreement  between  employers  and  employees  that  the  Recast 
EWCs provided a platform that facilitated the communication of information. However, 
assessment  of  whether  this  led  to  constructive  dialogue  varied  across  companies. 
Respondents who mentioned dialogue and cooperation generally responded positively 
regarding the benefits of operating their EWC. Respondents who were less positive on 
the  benefits  of  EWCs  mentioned  the  interference  of  national  issues  in  the  EWC 
meetings  and  one-sided  communication  (i.e.  initiative  was  only  taken  by  either 
management or employee representatives, with the other party being unresponsive or 
dismissive). Both employer and employee representatives take a more neutral position 
regarding  the  benefits  of  operating  their  EWC,  which  may  reflect  that  many  EWCs 
have only recently been set up. 

145 EPEC GHK (2008), Preparatory study for an Impact Assessment of the European Works Council Directive, 
European Commission. 

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The perception of employer representatives regarding the benefits of the operation of 
an  EWC  in  their  company,  following  the  Recast  Directive  shows  an  overall  positive 
view.  A majority of 80% of employers found their EWC had led to an improved ability 
to talk to employee representatives. Most employer representatives were also positive 
about  their  EWC  enabling  more  effective  exchange  of  information  (68%)  as  well  as 
increasing  trust  between  management  and  workers  and  improving  employees’ 
understanding  of  management  decisions  (both  60%).  An important  function  of  EWCs 
for employers seems to be the ability to inform employees on the company’s strategy 
and  build  support  for  this  strategy,  improve  relations  and  receive  feedback  on  key 
strategic issues. 

Overall,  employer  representatives  did  not  perceive negatively  the  (potential)  benefits 
of EWC’s, however, they were largely neutral regarding EWC’s ability to reduce rates 
of industrial action, enhance productivity and improve effective decision-making. 

Figure 35. Views of employers on benefits associated with operation of EWC (%) 

Source: ICF survey based on responses from 25 employer representatives of Recast EWCs 

The  figure  below  summarises  employee  representatives’  perceptions  on  benefits  of   
their  EWC.  As  is  the  case  with  employers,  most  employees  were  positive  especially 
regarding  the  improved  ability  to  talk  to  employer  representatives  (74%).  Most  also 
agreed  (or  strongly  agreed)  that  the  EWC  had  led  to  a  more  effective  exchange  of 
information  (71%)  and  had  improved  relations  between  the  management  and 
employees  (59%).  For  more  than  half  of  employee  representatives  an  important 
function  of  the  EWC  was  honesty  and  transparency  from  central  management.  The 
EWC is also recognised as a useful platform for employees to talk about transnational 
issues amongst themselves. It can facilitate the exchange of good practices, and help 
set up or serve the function of national employee representation in countries that do 
not traditionally have a strong trade union presence. 

Employee  representatives  did  not  have  an  explicitly  negative  attitude  towards  any  of 
the  benefits  the  survey  mentioned,  but  some  of  the  benefits  were  largely  regarded 
from  a  neutral  position.  More  than  40%  of  employees  were  neutral  on  whether  the 

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EWC had ‘reduced rates of industrial action’, ‘enhanced productivity’ and ‘helped in a 
situation of organisational change’. 

Figure 36. Views of employees on benefits associated with operation of EWC (%) 

Source: ICF International survey based on responses from 34 employee representatives of Recast EWCs 

7.5.1.1  Non-quantifiable costs of EWCs 

Some of the survey results differ between employer and employee respondents, which 
may illustrate different priorities. Generally, however, neither employee nor employer 
representatives find that their EWC has led to many significant non-quantifiable costs. 
Many employers do find that it increased bureaucracy (52%). For employees this was 
not  so  much  an  issue  (12%).  To  a  lesser  extent  than  benefits,  respondents  pointed 
out that in some cases the costs were too early to be assessed.  

Most  employer  representatives  agreed  (or  agreed  strongly)  that  their  EWC  had 
increased bureaucracy. Other potential costs resulting from running the EWC as listed 
in  the  survey  were not  seen  as  an issue  by  the  majority  of  respondents,  but several 
employers pointed out the financial costs associated with running the EWC as well as 
the extra time required of staff. 

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Figure 37. Views of employers on costs associated with operation of EWC (%) 

Source: ICF International survey based on responses from 25 employer representatives of Recast EWCs 

Other difficulties and barriers that employers identified in relation to running an EWC 
were  often  very  specific  to  the  company  itself.  A  couple  of  examples  that  were 
mentioned with some recurrence are:  

  Issues  resulting  from  the  internal  organisation  of  the  company.  Where 
companies  have  very  different lines  of business,  of  which  management  do  not 
work  together  much,  have  to  communicate  across  these  different  lines  of 
business in a single EWC.  

  Where companies may have employees in countries with very different cultures, 
this  means  that  besides  the  language  barrier  that  is  mentioned  by  both 
employer  and  employee  representatives,  there  may  be  some  cultural 
differences to overcome that can affect the atmosphere of the negotiations.  

  Both  employer  and  employee  representatives  acknowledge  that  sometimes 
first,  before 

national  challenges  and 
transnational issues can be effectively addressed at the EWC level. 

interests  need  to  be  overcome 

  Cases  of  restructuring  (both  redundancies  as  well  as  acquirements)  may 
present  as  a  barrier  or  challenge  as  this  will  need  to  be  reflected  in  the 
representation in the EWC. 

Employee  representatives  do  not  perceive  many  non-quantifiable  costs  as  a  result  of 
running their EWC (see Figure 38). However, they do identify a number of challenges 
and barriers. A few are identified here, but the low number of observations means this 
must  be  seen  as  isolated  cases,  not  necessarily  as  a  general  cost  observed  across 
EWCs.  

Employees also identify challenges with employee representation. For example: raising 
the  visibility  of  the  EWC  among  employees  and  managing  expectations  of  what  the 
EWC  can  do  among  employees.  Some  mentioned  their  EWC  lacked  decision-making 
powers  as  part  of  their  challenge.  This  mainly  related  to  expectations  established  in 

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relation  to  national  representation  bodies  with  decision-making  powers.  Where  such 
bodies  have  co-determination  powers,  EWCs  were  often  perceived  to  be  weak 
information and consultation bodies. 

Figure 38. Views of employees on costs associated with operation of EWC (%) 

Source: ICF survey based on responses from 34 employee representatives of Recast EWCs. 

Views  of  national  and  European  social  partners  on  the  non-quantifiable  costs  and 
benefits  of  Recast  EWCs  were  generally  more  neutral,  beyond  arguing  that  the 
clarification  of  the  rules  has  been  beneficial.  This  may  be  due  in  some  cases  to  the 
lack of involvement with or knowledge of EWC (particularly in the case of employers’ 
organisations).  More  details  on  the  result  of  consultations  with  social  partner 
organisations can be found in Annex 7. 

7.5.2  Weighting up benefits against costs 

Recast  EWC  employers  and  employer  representatives  and  to  a  greater  extent 
employee  representatives  are  positive  about  the  benefits  their  EWC  provides.  And 
while  it  is  clear  there  are  costs,  especially  for  the  employer,  these  relate  to  direct 
financial  cost  and  costs  in  personnel  time,  as  opposed  to  negatively  influencing 
relationships and trust in the organisation. 

National social partners (mainly trade unions) are largely neutral regarding costs and 
benefits  of  EWCs  that  adhere  to  the  new  rules  following  the  Recast  Directive. 
Especially  on  benefits  many  replied  they  were  neutral.  Similarly,  most  respondents 
were either neutral or did not think the EWCs following the new rules resulted in that 
particular cost. 

The survey and interview results indicate a positive balance in favour of benefits, but 
it  should  be  acknowledged  that  this  does  not  come  without  costs  and  challenges. 
Running  and  EWC  does  cost  time  and  money,  and  the  fact  that  each  organisation  is 
different  means  there  are  barriers  to  overcome  that  are  unique  for  each  company. 
However,  even  taking  into  account  these  challenges,  on  the  whole  most  are  positive 
about the value added. 

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7.5.3  Comparisons with the Directive 94/45/EC 

As  the  Recast  aimed  to  improve  the  functionality  of  Directive  94/45/EC  it  is 
appropriate to compare the results we have set out here with the results of the early 
impact assessment for EWCs before the Recast (as set out in ‘A Preparatory Study for 
an Impact Assessment of the European Works Councils Directive’, 2008).  

7.5.3.1  Comparison of benefits  

The figure below represents the change and direction of change of the proportions of 
respondents  who  had  a  positive  perception  (agreed  or  strongly  agreed)  on  EWC 
benefits  from  the  2008  (original  Directive)  to  the  2015  (Recast)  survey.  The  survey 
results  from  the  analysis  of  the  EWCs  based  on  the  original  Recast  contain  49 
responses from employer representatives, and 41 from employee representatives. 

Figure 39. Changes  in  proportion  of  employers  and  employees  who  agree/strongly 

agree on EWC benefits from 2008 to 2015 survey 

…improved ability to talk to employee/employer …

…enhanced productivity

…helped in a situation of organisational change

…better corporate culture at European level

…more effective exchange of information

…increased trust between management and workers

…improved relations between the management and …

…improved employees' understanding of …

…more effective decision-making

-29

-27

-17

-18

-19

-20

-21

-7

1

4

0

-10

-11

-14

-3

-5

-5

5

Employees

Employers

Source: ICF survey (2015: 25 employers and 34 employees) and GHK survey (2008: 49 employers and 41 
employees)  The  arrows  on  the  left-hand  side  of  the  0  line  represent  a  decrease  in  the  perceived  benefit 
from the original Directive to the recast, the right-hand side represents an increase. The colour  of the bar 
determines whether this concerns employers’ or employees’ perception. 

The figure shows that perceived benefits have reduced with the Recast, however there 
are a few small improvements in the perception of employers, notably their perception 
of the EWC leading to more effective decision-making, enhanced productivity and the 
improved  ability  to  talk  to  employee/employer  representatives  and  increased  trust. 
Employees seem to have a more negative view following the Recast and have changed 
their  opinion  from  the  2008  survey  more  significantly.  Most  notably,  we  see  a 
decrease  in  perceived  value  of  EWCs  in  their  ability  to  help  in  a  situation  of 
organisational  change  and  their  effectiveness  in  exchange  of  information  (change  of 
almost  30  percentage  points).  This may  be  due to  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 around the potential impact 
of EWCs in the area among employee representatives. 

Another  reason  for  this  change  could  be  that  many  companies  after  2008  went 
through  some  restructuring  due  to  the  economic  crisis.  Even  if  they  did  not  make 
redundancies, it was a period of greater uncertainty for employees and that could be 
reflected in this finding. When asked whether the credit crunch has had an impact on 
the set up of the EWC, by far most respondent say this is not the case, but a few point 
out  that  it  has  had  a  great  impact  on  the  rest  of  the  operations  of  the  company.  It 

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must also be taken into account that some responses on the benefits of EWCs based 
on  the  Recast  were  neutral  as  it  was  too  early  to  make  this  assessment,  which  will 
impact the comparison with the original Directive. 

7.5.3.2  Comparison of costs 

The figure below represents the change and direction of change of the proportions of 
respondents who had a negative perception (disagreed or strongly disagreed) on EWC 
costs from the 2008 (original Directive) to the 2015 (Recast) survey.  

Figure 40. Changes  in  proportion  of  employers  and  employees  who  agree/strongly 

agree on EWC costs from 2008 to 2015 survey 

…led to calls for transnational collective bargaining

…led to breaches of confidentiality

…introduced unnecessary rigidities into employee 
relations

…raised employee expectations (in an unrealistic 
manner)

-31

…led to coordinated industrial action

…slowed down managerial decision-making

…increased bureaucracy

Employees

Employers

-15

-11

-17

1

1

0

0

-1

-2

0

-6
-6

-7

Source: ICF survey (2015: 25 employers and 34 employees) and GHK survey (2008: 49 employers and 41 
employees. The bars on the left-hand side of the 0 line represent a decrease in the perceived cost from the 
original Directive to the Recast, the right-hand side represents an increase. The colour of the bar determines 
whether this concerns employers’ or employees’ perception. 

Perceptions  on  cost,  on  balance,  seem  to  have  decreased,  especially  in  the  eyes  of 
employers.  Notably  we  see  a  reduction  in  employers’  perception  on  EWCs  raising 
employee expectations in an unrealistic manner (31 percentage points: in 2008 51% 
agreed  this  was  a  cost,  in  2015  only  20%  agreed).  Employers  also  considered  EWCs 
less costly in terms of them leading to calls for transnational collective bargaining, and 
introducing  unnecessary  rigidities  into  employee  relations.  Employees  on  the  other 
hand  thought  EWCs  led  more  so  to  calls  for  transnational  collective  bargaining,  but 
only marginally so.  

7.6  The effects of the Recast Directive on the administrative burden  

Administrative  burdens  are  typically  defined  as  obligations  for  businesses  to  provide 
information about the aspect of their operations to the public authorities.146  

The  Recast  Directive  introduced  an  additional  obligation  in  this  respect  for  the 
companies  to  inform  the  European  social  partners  about  the  start  of  the  EWC 
negotiations,  although  this  does  not  strictly  qualify  as  an  additional  administrative 
burden. As shown in section 8.1.4, this requirement is not uniformly implemented by 
the  companies.  Over  half  (56%  according  to  employee  and  64%  according  to 
employer representatives) companies with the EWC established under recast Directive 

146 European Commission, Better Regulation Guidelines Toolbox, http://ec.europa.eu/smart-
regulation/guidelines/docs/br_toolbox_en.pdf.  

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informed  and  involved  social  partners  in  the  negotiating  process.  Furthermore,  the 
costs  associated  with informing  the  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  the  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  they  followed 
it.  Hence,  in  practice,  this  is  rarely  implemented  and  unlikely  to  lead  to  significant 
administrative burden.  

7.7  Summary of key findings on costs and benefits  

Based  on  the  information  presented  above,  the  following  findings  on  the  quantifiable 
and non-quantifiable costs of the provisions introduced by the Recast Directive which 
relate to the set-up, operation and adaptation of EWCs can be highlighted. 

7.7.1  Set-up of EWCs: quantifiable and non-quantifiable costs and benefits 

The  main  new  provisions  of  the  Recast  Directive  which  impact  the  set-up  of  EWC 
relate  to  requirements  regarding the  provision  of information, the  composition  of  the 
SNB,  the  entitlement  to  employee  only  pre-and  post-meetings;  the  involvement  of 
experts  and  the  need  to  inform  European  level  social  partners  about  the  start  of 
negotiations.  These  new  requirements  could  arguably  have  increased  costs  linked  to 
the provision of the information provision (e.g. staff time, translation costs etc.); have 
increased  the  costs  of  meetings  due  to  rules  regarding  the  composition  of  SNBs  and 
the  involvement  of  experts  and  raised  administrative  costs  linked  to  informing 
European social partners, among other things. Benefits were  considered to potentially 
revolve around greater clarity, smoother negotiating processes and more appropriate 
worker representation, etc.  

The findings of this study show that the quantifiable costs of the set-up of EWCs have 
declined  when  compared  to  the  experience  of  Article  6  agreements  under  Directive 
94/45/EC  (from  EUR  143,537  to  EUR  119,207).  These  lower  costs  primarily  result 
from the fact that fewer meetings were held with fewer representatives (and therefore 
associated  meeting  costs)  –  albeit  over  a  longer  period  of  time  –  in  regard  to  EWCs 
established  under  the  Recast  Directive.  This  is  linked  to  the  size  of  companies 
negotiating new agreements rather than the new provisions enacted as a result of the 
Recast. 

In term of non-quantifiable costs and benefits, reference was made to the benefits of 
greater legal clarity with regard to information requirements, but overall the impact of 
this was seen to be limited in practice. Similarly, the rules around the composition of 
the  SNB  were  considered  to  have  had  a  limited impact  and  developments  here  were 
again  mainly  determined  by  the  size  and  geographical  representation  of  the 
companies  negotiating  agreements  post-2011.  On  the  other  hand,  the  entitlement  to 
employee-only pre-and post-negotiation meetings was considered to be a benefit as it 
allowed  the  employee  side  to  prepare, become  more  familiar with  the legislation  and 
to  consolidated  views  following  the  discussions  with  management.  As  such  meetings 
took place on the same day as full negotiating sessions, no particular additional costs 
arose. 

According  to  over half  of  representatives  of  Recast  EWCs,  there  has  been  an upward 
trend in  the  extent to  which  European  social  partners  were informed  and involved in 
EWC  set-up  negotiations.  This  view  was  not  necessary  reflected  by  European  social 
partners  who  did  not  consider  that  they  were  routinely informed  of  the  start of  such 
negotiations,  but  that  this  rather  depended  on  the  country  of  headquarter  of  the 
company (and relevant industrial relations traditions) or previous connections between 
the company and their organisation. The use of experts in negotiations also increased 
(to nearly 70%) and was considered to be helpful in providing advice on the detail of 

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new  legislation  and  expertise  from  other  existing  EWCs.  Quantifiable  costs  of  these 
provisions are seen to be low and benefits cannot be quantified. 

With  regard  to  the  requirement  for  balanced  representation  of  EWC  (and  SNB) 
members  in  terms  of  gender,  experience  etc.,  many  EWC  argued  that  this  was 
achieved  as  well  as  possible  but  the  possibility  to  do  so  was limited  by the  nature  of 
the businesses (women over-or under-represented etc.) and employee representative 
election/appointment processes which cannot be controlled by the EWC itself. 

The use of the new subsidiary requirements was found to be relatively low among the 
sample  Recast  EWCs  consulted  for  this  study  (only  1  company  followed  these  rules 
based  on  a  common  agreement  between  employers  and  employees).  This  was 
attributed  more  to  the  willingness  of  employers  to  negotiate  and  less  to  the 
requirements of the Recast Directive. 

7.7.2  Operation  of  EWCs:  quantifiable  and  non-quantifiable  costs  and 

benefits 

The main provisions of the Recast Directive impacting the operation of EWCs relate to 
enhanced definitions of information, consultation and transnationality; rules regarding 
the  establishment  of  a  Select  Committee,  requirements  regarding  the  articulation  of 
information  and  consultation  at  different  levels  and  more  specific  rules  and  rights  of 
employee representatives on EWCs. 

The quantifiable costs of these changes were assessed by looking at the annual costs 
of operating an EWC (compared to the costs established for Article 6 agreements), as 
the  new  rules  could  arguably  impact  on  the  number  of  meetings  being  held  and  the 
level of training provided, amongst other things. 

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  difference  in  annual  running  costs  (EUR  153,667  and  EUR 
160,900  respectively).  For  EWCs  which  could  provide  fixed-  as  well  as  time  costs  of 
running  a  Recast  EWC,  the  costs  were around  EUR 240,000.  The  annual  costs  of  the 
operation  of  an  EWC  relate  to  the  structure  of  EWC  and  the  number  of  different 
meetings held. Although the number of EWC members is lower in the EWC established 
since 2011, the country coverage is slightly higher which may influence the translation 
costs. Interestingly, the training costs reported by Recast EWCs are significantly lower 
than those measured among EWCs established under Article 6, but this could partly be 
due  to  the  fact  that  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. 

Despite  the  more  detailed  definition  of  ‘transnational  matters’  provided in the Recast 
Directive, a relatively high number of companies (9 out of 37 reported that they had 
to  seek  legal  advice  in  relation  to  issues  of  transnationality,  with  an  average  cost  of 
such advice at EUR 15,000). However, this is lower than half of the companies which 
faced legal disputes surveyed in 2008. 

Few  non-quantifiable  costs  of  the  new  provisions  were  highlighted  which  were 
additional to what was already required or provided previously.  

The  rules  regarding  the  right  to  the  establishment  and  the  number  of  employee  side 
representatives on the Select Committee can be seen to have had a limited impact in 
practice.  The  share  of  EWCs  establishing  Select  Committees  has  remained  more  or 
less the same and the number of employee side representatives and meetings held is 
also more or less unchanged. 

Two  thirds  of  employee  side  representatives  in  Recast  EWC  have  accessed  training. 
The  right  established  by  the  Recast  is  considered  to  be  beneficial  but  its  impact  on 
actual training received is difficult to assess as many EWCs are early in their period of 
establishment. 

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Provisions in the Recast which were aimed to provide greater clarity on the articulation 
of  information  and  consultation  mechanisms  at  different  levels  must  also  be  seen  to 
have  had  only  a  limited  impact  as  although  both  employer  and  employee 
representatives  declare  that  they  are  clear  about  the  ‘hierarchy’  of  consultation 
mechanisms, some uncertainties remain in practice.  

On the wider and critical question of whether the enhanced definitions of information, 
consultation  and  transnationality have led  to  greater legal  certainty  and  an improved 
operation  of  EWCs  with  regard  to  their  core  functions,  the  general  estimation  is  that 
information  flow  has  improved  (only  32%  of  employee  representatives  in  article  6 
EWCs  declared  that information  was  provided  regularly  whereas  this  figure  was  70% 
for  Recast EWCs).  In many  cases, information  was  considered  to have  been  supplied 
in a timely fashion, but in some EWCs concerns remain that the timing of information 
does not allow for a realistic process of consultation (in some cases the two phases are 
not  separated  which  is  considered  to  be  an  issue).  Although  consultation  is  seen  to 
take  place  on  the  face  of it, in most  cases  this is  seen  to have little  or  no impact  on 
final company decisions. Concerns also remain about the understanding of the concept 
of  ‘transnationality’  as  it  is  generally  up  to  company  to  interpret  what  is  a 
transnational  matter  and  without  the  relevant  information,  employee  representatives 
are unable to assess whether a matter is or is not indeed transnational. The question 
of confidentiality around stock market rules also remains a stumbling block in practice 
as information is often provided late with reference to such rules. 

Overall, it can therefore be said that the quantifiable cost (and benefit) impact of the 
Recast Directive is limited as most changes in this area are linked to size and nature of 
companies  negotiating  new  agreements.  Non-quantifiable  costs  are  also  generally 
considered  to  be  negligible.  Although  there  are  seen  to  be  some  benefits  linked  to 
greater  legal  certainty  and  information  provision  is  related  more  positively  by 
employee representatives in Recast EWCs, the role of these transnational information 
and consultation bodies with regarding to actual consultation remain very limited and 
uncertainties  remain  in  practice  over  the  concept  of  transnationality  and  restrictions 
are reported over the timing of information with reference to confidentiality rules. 

7.7.3  Comparison  of  the  administrative  burdens  for  EWCs  before  and  after 

June 2011 

The additional administrative burden on the Recast EWCs resulted from the obligation 
to inform the European social partners about the start of the EWC negotiations. It was 
in practice implemented by around a half of the EWCs and was considered to incur low 
costs. 

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8  What are the significant best practices in the 

implementation of the new rules and case studies on the 
absence of the application of certain provisions of the new 
rules? 

8.1  Introduction  

This  section  summarises  the  evaluation  findings  on  the  effective  practices  in  the 
implementation of the new rules of the Recast Directive, based on: 

  Views from the interviews with the Recast EWCs,  

  Case studies on the specific aspects of the EWC functioning.  

8.2  An overview of the main practical achievements of Recast EWCs 

to date 

Employee and management representatives of Recast EWCs identified a number of the 
practical  achievements  of  the  newly  established  EWCs  (see  Table  56).  The  views  of 
management  and  employee  representatives  largely  coincided  with  regard  to  the 
assessment  of  these  practices.  The  achievements  were  mostly  soft,  including  better 
information  and  consultation  within  the  company,  better  intercompany  relations  and 
better  dialogue  between  different  national  representatives  and  sites  of  the  company.  
For a number of EWCs, it was too early to identify their practical achievements due to 
the recent nature of the establishment of their EWC.  

Table 56.  EWC’s  practical  achievements  identified  by  employer  and  employee  

representatives in the Recast EWCs 

Number of respondents 

Better 
intercompany 
relations 

Employers (n=24)  

Employees (n=33)  

14 

21 

Better 
transnational 
relations 
between 
national 
employee 
representatives 
4 

19 

Better 
information and 
communication 

Other 

12 

23 

6 (no achievements 
yet) 
5 (no achievements 
yet) 

Source: ICF interviews with 37 Recast EWCs. Respondents provided multiple answers.  

Some examples given by management representatives are highlighted below. 

“Improved understanding among employees of the issues that need to be taken into consideration when 
making  restructuring  plans,  improved  understanding  of  how  difficult  the  company  finds  it  to  make 
business decisions which might lead to job losses” – A management representative from a transnational 
company in the chemical sector 

“Our EWC is a good thing for both sides: it helps to understand how the other side is thinking. In the end 
the EWC can lead to better business decisions as employees understand that we are all part of the same 
group.  It  helps  to  build  trust”  –  A  management  representative  of  a  Swedish  EWC  in  the  construction 
sector  

“The  EWC  improves  the  quality  of  social  dialogue  within  the  group”  –  A  French  management 
representative in the utilities sector 

“There are no practical, tangible achievements yet – it is too early. However, EWC members have started 
to prepare for a future transnational negotiation about the role and means of union representatives within 
the  group  (recognition  of  acquired  skills  during  the  mandate,  specific  career  management...).  (…)  The 
EWC has also asked to set up works councils in countries or entities where they don't currently exist.” – A 
management representative of a French company in the service sector  

“It is too soon. But (…) it has been useful to transmit a clear message about the company in Europe.” - A 
management representative of a Spanish EWC in the private security sector  

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Some examples given by the employee representatives are included below. 

“Transmission  of  transnational  information  has  increased,  information  exchange  between  worker 
representatives  in  different  countries  has  increased,  and  communication  between  management  and 
employee  representatives  from  non-HQ  countries  has  improved”  –  An  employee  representative  of  a 
Finnish company in the service sector 

“Communication and understanding between employer and employees has improved. The company also 
has  a  better  understanding  of  the  positions  of  unions  in  different  countries.”  –  An  employee 
representative of a Swedish company in the construction sector 

“We  achieved  mutual  understanding  on  the  situation  at  the  different  sites.  Some  employee-employer-
questions which were blocked by local management have been resolved after the problem was addressed 
at the central management level” – An employee representative of a German company in the steel sector 

“To have the top management at the meetings to ask direct question from. The central management is 
open  and  transparent  and  that  helps  national  I&C  bodies”  –  An  employee  representative  of  a  Swiss 
company in the agro-food industry 

In addition to such soft achievements, a number of respondents also mentioned very 
concrete  EWC  initiatives  and  interventions  to  date,  thus  demonstrating  a  practical 
impact of the EWC work. This covered:  

  EWC  inputs  into  companywide  operational  processes  (concrete  examples 
included:  using  the  EWC  representatives  to  explain  better  to  employees  why 
certain  company  procedures  (e.g.  staff  procedures)  are  important  to  the 
company; EWC initiative to regulate health and safety on a transnational basis; 
EWC supporting communication in integrating a new company in the case of the 
mergers).  

  EWC provided training and information to build the capacity of its members to 

perform their roles more effectively). 

  EWC  helped  in  situations  of  restructuring  (to  address  restructuring  in  a  more 
socially  responsible  way,  to  extend  the  employment  termination  deadlines,  to 
ensure benefits are maintained in cases of transfer of staff).  

  Several  case  studies  undertaken  of  concrete  EWCs  in  the  evaluation  also 

demonstrate the achievements of EWCs: 

  The  EWC in the  Ardagh  group is working  well  (according  to  both management 
and  employee  representatives)  through  collaborative  discussions  on  key 
strategic matters, say over key matters, team joint working and collaboration, 
sharing of key strategic information, and increased trust and confidence in each 
other.  The EWC  took  a  joint initiative  on  the  Code  of  Conduct  and  Compliance 
Hotline introduction across the company.  

  The  Elia  EWC  is  an  interesting  case  because  it  is  only  present  in  Belgium  and 
Germany as it is a rather small multinational operating under Belgian law.  It is 
a  good  example  of  how  EWCs  appear  to  be  more  effective  in  smaller 
multinationals present in only 2-3 countries. 

Case study findings: the experiences of Ardagh EWC  

The EWC in the Ardagh Group has achieved a number of successes since its establishment in 
2012.  The  EWC  has  quarterly  meetings.  A  local  intranet  EWC  site  for  members  has  been 
established  with  closed  forum  and  discussion  groups  being  run.  The  EWC  has  facilitated  an 
exchange of information on policies and procedures of common interest across the company. 
It has also fostered the intra-company culture of negotiation and debate to find solutions and 
to discuss the key performance indicators.  

Information  exchange  between  the  EWC  and  management  is  taking  place  regularly, 
information  is  received  on  common  policies,  supported  by  a  number  of  teleconferences  to 
keep the EWC up to date on developments. Every quarter, the EWC receives an information 
package with the description of the bond report and financial data on the company. This leads 
to  collaborative  discussions  on  key  strategic  matters,  as  well  as  joint  team  working  and 

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collaboration,  sharing  of  key  strategic  information,  increased  trust  and  confidence  in  each 
other. Ultimately, the EWC helps to support the establishment of good industrial relations.  

In concrete terms, the EWC had an influence on the development of the contents of the Code 
of  Conduct  and  the  Ardagh  Compliance  Hotline  by  providing  comments,  suggestions  and 
reflections  on  how  these  could  be  further  developed.  The  Select  Committee  was  involved  in 
an early stage to support the implementation process, fine–tune documentation etc. Besides 
that  on  a  local  level  the  EWC  members  discussed  the  proposals  within  their  country  works 
councils (e.g. DE, NL) or negotiation committees (e.g.. UK) or local shop stewards and gave 
the necessary feedback to the Select committee. 

A number of key success factors are identified: 

  The  2012  agreement  for  the  Ardagh  group  EWC  was  negotiated  as  a  result  of  the 
merger of two  companies which previously  had their own  EWCs. Hence, there was  a 
familiarity,  experience  and  continuity  in  operating  an  EWC.  The  quality  of  the  EWC 
agreement is recognised as a key building block for its subsequent work.  

  There  is  support  for  the  work  of  the  EWC  from  the  global  management  of  the 
company which means a supportive environment for the EWC to operate. It also helps 
to  ensure  sufficient  funding,  regular  flow  of  strategic  information  and  high  level 
management  expertise  for  the  work  of  the  EWC  (e.g.  presentations  at  the  EWC 
meetings).  

  There is a solution-oriented culture of mutual respect and dialogue and recognition of 

the EWC’s expertise in discussing strategic company matters.  

Case study findings: the experiences of Elia Group EWC  

  The  Elia  Group’s  EWC  is  characteristic  of  the  recent  move  by  many  medium-sized 
transnational  companies  to  set  up  an  EWC,  following  the  adoption  of  the  Recast 
Directive. While the interviewees stated that the Recast Directive had no influence on 
the company’s decision to set  up an EWC,  what emerges from this particular case is 
that  the  EWC  was  seen  as  an  instrument  to  bring  together  employees  from  two 
countries with a different work culture.  

  The company is characterised by good and honest relationships between management 
and staff representatives. On this basis, EWC operations have so far been carried out 
with ease.  

  The  annual  cost  of  EWC  operations  constitutes  0.006%  of  Elia  Group’s  annual 
turnover, which is below the 0.008% average for EWCs established after adoption of 
the Recast Directive. 

  External legal experts took part in the negotiation process, brining clarification to the 
notions  on  “information”  and  consultation”.  Trade  Union  experts  are  now  involved  in 
the  company’s  EWC  activities,  ensuring  that  all  members  are  aware  of  their  rights 
while providing more general guidance to this fairly young structure.   

  The  information  exchange  process  is  perfectly  transparent,  and  thus  the  information 
that has so far been shared has been clear to all EWC representatives. The members 
invest  the  time  needed  to  prepare  for  the  meetings  and  to  structure  discussions 
around clear and open questions to the management.  

  The  agreement  provides  for  the  possibility  to  hold  extraordinary  meetings.  While  no 
such  meetings  have  yet  taken  place  due  to  restructuring  events  or  decisions,  the 
steering committee customarily holds informal post-meetings and debriefs to pick up 
on  certain  points  raised  during  the  plenary  meetings  in  order  to  bring  further 
clarifications  to  all  members  for  the  sake  of  transparent  communication  and 
information exchange.   

  EWC employee representatives consider that information exchange has been fair and 

frank and has created conditions which are conducive to sound social dialogue.  

  The  right  to  training  without  loss  of  wages  is  being  used  by  the  EWC  members,  and 

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this  is  facilitated  by  the  fact  that  this  right  is  already  secured  in  both  Belgian  and 
German  law.  So  far,  training  activities  have  focused  on  communication  and  cultural 
diversity.  The  aim  is  to  strengthen  mutual  understanding  between  management  and 
employees, but also between staff members from Belgium and Germany.  

  Given  the  size  of  the  company  and  the  good  relationships  between  management 
members  and  staff,  there  is  willingness  among  the  EWC  members  to  implement 
practical changes to improve the effectiveness the proceedings. For instance, there is 
now  a  move  to  make  English  the  common  language  in  meetings  in  order  to  make 
savings  on  interpretation  and  translation.  The  use  of  English  is  also  encouraged  and 
facilitated by the fact that only two countries are represented.  

  Switching  to  videoconferencing  for  EWC  meetings  has  also  been  considered  and  this 
has  so  far  not  been  met  with  any  particular  reluctance  by  the  members.  In  fact, 
members have shown themselves  quite keen to  implement such  changes in order to 
make meetings more lively and interesting. This again can be attributed to the size of 
the  company  and  the  close  relationships  between  the  management  and  staff 
representatives.  

  One of the criticisms of the EWC is that bi-annual plenary meetings are insufficient to 

ensure continuity in the discussions.    

8.3  A  review  of  stakeholder  views  on  how  to  strengthen  the 

effectiveness of the work of EWCs 

Employer representatives, employee representatives and EU level social partners were 
asked to identify ways of enhancing the benefits of EWC activities and of reducing  the 
costs of running them (see Table 57).  

The  views  of  employer  representatives  were  rather  homogenous  overall,  particularly 
as  regards  ways  of  reducing  EWC  operational  costs.  Conversely,  views  among  the 
employee  representatives  interviewed  were  relatively  diverse  and  occasionally 
conflicted  with  the  views  of  employer  representatives.  Few  EU-level  social  partners 
expressed their views on these particular subjects. 

Across these three groups, many respondents expressed the view that savings should 
be  made  on  translation  and  interpretation  costs  linked  to  EWC  meetings  and 
accompanying documentation. Responses were rather more  varied regarding ways of 
enhancing the benefits of EWC activities.  

Table 57.  A  summary  of  suggestions  provided  to  maximise  the  effectiveness  of  the 

EWCs  

Employer members 

Employee members  

EU social partners 

Enhancing 
benefits 

Clarifying the role of members 

Keeping discussions focused  

Flexibility  in  the  frequency  of 
meetings for discussions to be 
in 
latest 
developments 

keeping  with 

Further  specifying  the  rights 
and duties of members 

Strengthening 
representation 

employee 

Additional  meetings  to  enhance 
trust  between  employer  and 
employee representatives 

Improving access to training 

Clarifying  the  role  of  external 
experts  and  the  respective 
roles of EU and national trade 
unions 

Reducing 
costs 

Translation/interpretation: 
encourage 
common language 

the  use  of  a 

Videoconferencing  (instead  of 
face-to-face meetings) 

Videoconferencing 
to 
supplement  (not  replace!)  face-
to-face  meetings,  potentially  as 
a way to increase the number of 
meetings 

Translation/interpretation 

Videoconferencing (in addition 
to face-to-face meetings)  

Meetings  in  more  “modest” 
venues 

Source: ICF interviews with Recast EWCs and European social partners.  

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8.3.1.1  Recommendations to enhance the benefits of EWCs 

A  number  of  employer  representatives  in  Recast  EWCs  pointed  out  that  discussions 
should  focus  on  the  most  relevant  and  newsworthy  topics  to  stimulate  engagement 
among  members  and  make  EWC  activities  worthwhile  for  all.  The  need  for  flexibility 
regarding  the  frequency  and  scale  of  meetings  depending  on  the  intensity  of 
transnational corporate developments was also mentioned. 

Certain employer respondents also expressed the view that the EWC members should 
have  a  better  understanding  of  their  mandate  so  that  communication  between  the 
different  parties  can  be improved.  This  issue  was  particularly  raised  by  the  employer 
representatives of multinational companies operating in five or more countries. 

A  considerable  number  of  employee  representatives  asked  for  changes  to  the 
legislation to enhance the benefits of EWCs. Overall, many argued that the legislation 
should be more prescriptive on the rights and duties of EWC members in a way as to 
ensure  that  employee  representatives  are  consistently  informed  and  consulted  on  all 
issues  of  transnational  relevance.  One  particular  employee  representative  of  a  large 
industrial services company pointed out that there should be a rule which guarantees 
the participation of staff representatives from all the countries in which a company has 
operations.  

Elsewhere, another noteworthy contribution was made by an employee representative 
of a multinational insurance company who argued that trust and cooperation between 
all members would be enhanced if meetings were held more frequently. Openness in 
the  relations  between  management  and  staff  was  more  widely  identified  as  an 
important factor for guaranteeing the success of EWC activities.  

A  number  of  the  EU  social  partners  interviewed  have  pointed  out  that  training,  in 
particular for employee representatives, was a critical element. An EU social partner in 
the  construction  industry  argued  that  training  was  important  to  enable  employee 
representatives  to  engage  successfully  in  discussions  in  order  to  reach  common 
agreements with management representatives.  

Clarifying  the  need  for  external  expertise  and  the  respective  roles  of  national  and 
European trade unions were also identified by several EU social partners as important 
actions to enhance the benefits of EWCs.  

8.3.1.2  Recommendations to reduce the costs of running the EWCs  

Translation was identified by the employer representatives as the main item for which 
costs could be reduced. This issue was raised by employer representatives in smaller 
multinational companies who favoured the use of a common language at meetings.  

A considerable number of employer representatives suggested that EWC meeting costs 
could  be  substantially  reduced  through  the  use  of  videoconferencing.  Many  of  them 
also  pointed  out  that  the  use  of  this  technology  would  enable  EWC  members  to 
address  relevant  topics  more  frequently  to  keep  the  momentum  of  discussions  and 
negotiations going.  

A  considerable  number  of  employee  representatives  also  identified  translation  and 
interpretation  as  costly  items.  However,  the  views  of  employee  representatives 
occasionally  conflicted  with  those  of  employer  representatives  as  regards  the 
achievement  of  cost  reduction.  There  was  some  reluctance  among  employee 
representatives to replace face-to-face meetings with videoconferencing, arguing that 
meeting  members  in  person  is  a  more  effective  way  of  stimulating  discussions  and 
securing engagement.  

Few  of the  respondents  amongst the  EU  social  partners  made  specific  suggestions  to 
reduce  EWC  costs.  Overall,  the  views  of  certain  EU  social  partners  reflected  those  of 
other  stakeholders  (e.g.  limiting  the  number  of  translations  required,  using 

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videoconferencing  where  appropriate,  or  organising  meetings  in  more  “modest” 
venues).  

A case study undertaken in the evaluation shows how EWCs operate in companies with 
small number of employees to minimise the costs of the EWC operation. 

Case study findings: the EWC in Arctic Paper  

This  is  an  interesting  case  of  EWC  in  a  relatively  small  company  –  compared  to  other 
multinational  corporations  – which implemented various solutions to keep down the costs of 
operating an EWC.  

The  cost  of  annual  EWC  operation  of  EUR  25,000  constitutes  0.003%  of  Arctic  Paper’s 
turnover in 2014, which is below an average of 0.008% in other EWCs established after the 
adoption of the Recast Directive. The low costs of the Arctic Paper’s EWC can be attributed to 
a small number of countries represented in the body (reflecting the size of the workforce and 
its  representation  in  relatively  few  countries).  The  translation  of  EWC  meetings,  which 
constitute  the  highest  share  of  EWC  costs,  is  also  kept  to  a  minimum.  Although  more  than 
four  countries  are  represented,  translation  is  required  only  in  three  languages  (Swedish, 
Polish,  and  German)  because  of  the  language  capacity  of  employee  side  members. 
Additionally, outsourcing the translation services and having the meetings in Poland allow the 
company to run the EWC relatively cost effectively. 

Booking  flights  months  in  advance  and  organising  the  meetings  in  smaller  Polish  cities  but 
with good connection with Sweden and Germany (e.g. Poznan instead of Warsaw) is another 
example of efficiencies implemented. The employees would like to visit the mills in the other 
countries  but  understand  the  company’s  policy  to  cut  unnecessary  expenses.  Meetings 
organised  in  the  mills  could  save  the  cost  of  renting  the  conference  room,  but  on  the  other 
hand  would  require  more  time  for  employees  to  travel  to  the  destination  and  would  not 
reduce the costs of accommodation. 

The efficiencies are the result of the company’s practice but also expert’s advice, who already 
during the negotiations made suggestions how to set up a cost efficient EWC. 

The EWC is an additional forum to provide information about the company to the employees. 
It  improved  the  trade  unions’  understanding  of  the  company’s  decisions.  Though,  according 
to  an  employer  representative,  the  same  could  be  achieved  by  having  meetings  with  the 
company board at the national level. 

Half-day preparatory meetings among employees help to integrate them and agree the final 
agenda and questions for the management.  

Also a good practice of the EWC are its inputs into restructuring decisions. The management 
provides  information  ahead  of  decisions  being  made  which  contributes  to  mutual  trust  and 
good cooperation with employees. 

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9 

Conclusions and recommendations  

9.1  Conclusions on the effectiveness of the Directive  

9.1.1  Effectiveness of new legal rules in the Directive (To what extent is the 

transposition of the new rules correct at the national level? What are 
the main issues which have emerged or remained as problematic / 
contentious?)  

According  to  the  analysis  in  the  evaluation  (which  does  not  represent  the  official 
position of the European Commission), most Member States have correctly transposed 
the rules of the Directive. Furthermore, 15 Member States have introduced provisions 
which  are  more  favourable  than  those  foreseen  in  the  Directive.  These  relate  to 
enhanced  rights  and  means  to  perform  the  EWC  representative  duties  and  more 
extensive definitions of information, consultation and transnational matters.  

Stakeholder views (including the 27 independent labour law experts, 52 national and 
14  European  social  partners,  25  Member  State  representatives)  confirm  the  positive 
assessment of legal transposition. 

However,  in  12  EEA  countries  provisions  were  assessed  as  not  meeting  the 
requirements  of  the  Directive  (either  because  of  an  absence  of  transposition  or 
national  legislation  differing  from  the  requirements  of  the  Recast  or  lacking 
specificity). Only in 4 Member States at least one of the key substantive provisions of 
the Directive147 was not transposed correctly. In  9 Member States, a relatively minor 
non-substantive provision (or part of such provision) was not transposed. Among such 
shortcomings in  transposition  were  the  failure  to  provide  the  right  to  training for  the 
EWC representatives without loss of wages, the requirement to inform European social 
partners about the start of negotiations and provisions on the composition of the EWC.   

Recommendation 1 

There is  scope for  the European  Commission  to initiate  dialogue  with  the  responsible 
national authorities in relation to instances where, on the basis of available legal texts, 
the transposition of the Directive appears to be insufficient on key substantive aspects 
of  the  Directive.  The  assessments  made  in  this  evaluation  about  shortcomings  in 
transposition  should  be  clarified  in  dialogue  with  the  national  authorities  and 
appropriate action taken.  

Overall, the Directive has increased legal certainty in relation to the core activities of 
EWCs, such as the definition of effective information, consultation, the clarification of 
the definition of ‘transnational matters’ and the articulation between the  national and 
European  information  and  consultation  procedures.  Some  uncertainties  remain  with 
regard to implementation on the ground which could to a certain extent be linked to a 
remaining need for further legal clarification (see also section 10.1.3).  

The new rules of the Directive had an impact on the enforcement of rights in national 
courts. The evaluation identified 10 court cases linked to the provisions of the Recast 
Directive. These national court proceedings related to disputes over the establishment 
of  an  EWC,  links  between  the  national  and  European  level  information  and 
consultation  structures  and  in  particular  the  timing  of  information  and  consultation, 
the  definition  of  transnational  matters  and  potential  subjects  for  information  and 
consultation,  communication  between  the  EWC  and  national  level  employees  and 
enforcement rights. 

147 Key substantive provisions were considered to relate to the opening and conducting negotiations, role of 
social partners and experts, contents of the subsidiary requirements, general principles and concepts of 
information and consultation and transnational matters, links between the levels of information and 
consultation of employees, role and capacity of employees' representatives and the adaptation clause.  

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Recommendation 2  

There  is  scope  to  consider  improvements  to  the  legal  concepts  through  further 
clarifications and sharing of practical examples and best practices. 

In  principle,  the  Directive  remains  silent  on  which  law  shall  be  chosen  to  govern  the 
negotiations  or  the  national  jurisdiction  governing  the  EWC  agreement  (its  existing 
rules  only  help  to  determine  the  relevant  partner  for  workers  representatives  and 
define  central  management).  This  is  left  to  the  discretion  of  both  sides  and  more 
prescriptive  action  could  be  taken  to  prevent  possible  misuses.  This  could  include 
further  specification  in  the  legislation  on  this  issue  (e.g.  stipulating  that  the  national 
law  of  the  company’s  European  HQ  should  govern  the  EWC  agreement;  this  could 
include  guidance  on  how  the  location  of  the  company’s  European  HQ  is  to  be 
determined,  such  as  in  relation  to  management  structures  or  share  of  employees  in 
the EU, etc.148).  

Recommendation 3  

The  general  Directive  on  information  and  consultation  of  workers  (Directive 
2002/14/EC)  goes  further  than  the  Recast  EWC  Directive  as  regards  to  defining 
‘consultation’. First, it provides for consultation ‘with a view to reaching an agreement’ 
while  the  recast  EWC  Directive  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  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’.  Second,  the  general 
directive  on  I&C  requires  employers  to  provide  a  response  and  its  reasons  to  an 
opinion.  Those  two  elements  could  also  be  incorporated  into  the  Recast  Directive  in 
order to strengthen its impact.   

Furthermore,  a  number  of  stakeholders  on  the  employee  side  remarked  that  more 
precise  guidance  could  be  given  on  the  timing  for  information  provision  and  the 
separation  of  information  and  consultation  processes.  This  is  due  to  the  fact  the 
Directive  only  stipulates  that  consultation  should  take  place  ‘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’, which many on the employee side argue may be insufficient to 
ensure  effective  consultation.  The  rationale  on  the  employers  is  often  that  information 
needs  to  remain  confidential  specifically  for  companies  listed  on  the  stock  market.  The 
latter should, in principle, already be addressed by requiring EWC members to respect such 
confidentiality.  

Further  guidance  could  be  given  on  the  basis  of  the  experience  of  EWCs  which  have 
established  internal  rules  on  the  precise  processes  of  information  and  consultation 
(steps  and  timing  involved).  This  could  be  enhanced  with  testimony  from  relevant 
EWC members on the beneficial impact of implementing such clear processes.    

148 Some jurisprudence from national case law is available on this issue (see section 4.6.1 – Manpower 
case). 

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Recommendation 4 

The  issues  of  enforcement,  sanctions  and  penalties  are  left  to  the  national  level 
implementation measures. As a consequence, provisions vary significantly and lead to 
arguments that in some cases sanctions are not sufficiently dissuasive. Further action 
could  be  taken  to  ensure  that  sanctions  and  enforcement  procedures  are  sufficiently 
dissuasive  (such  as  sharing  of  information  on  different  national  practices  and  their 
impact).  

9.1.2  Impact on the creation of new EWCs (Against the baseline 2009 

situation, what is the impact on the creation of new EWCs? To what 
extent the new rules reduced the number of exceptions and 
derogations from the Directive?)  

Trends in the number of newly created EWC per year suggest that both the 94/45/EC 
and  2009/38/EC  Directives  brought  about  an  impetus  to  complete  EWC  agreements 
before the transposition deadlines of the original and recast Directives. However, after 
an  initial  peak  in  1996,  the  number  of  newly  created  bodies  declined  to  an  annual 
average  of  around  50  until  2009,  and  to  around  20+  in  the  post-2009  period.  There 
are  around  1,000  multinationals  with  active  EWCs,  however,  there  are  currently 
around 2,400 companies eligible to create an EWC. 

58  EWCs  have  been  newly  established  in  line  with  the  rules  of  the  Recast  Directive 
since  June  2009.  France  (19%),  followed  by  Sweden  (12%)  and  the  US  (9%)  hosts 
the  largest  number  and  share  of  Recast  EWCs.  Comparing  to  other  information  and 
consultation  bodies,  since  June  2009  more  EWCs  have  been  created  in  ‘building  & 
woodwork’, ‘transport’, and different service sectors.  

The key factors supporting the creation of a new EWC were the need to comply with 
the  legal  requirements  of  the  Recast  Directive,  the  presence  of  company  culture 
supporting worker information and consultation and the supporting national culture of 
worker information and consultation. The key factors preventing the creation of a new 
EWC  were  the  lack  of  awareness  of  the  legal  requirements,  management  resistance, 
the lack  of  national  culture  of  worker information  and  consultation  (in  the  country  of 
headquarters),  practical  barriers  to  communication  between  worker  representatives 
(e.g. language difficulties) and the complexity of company structures which can make 
it  difficult  for  employee  representatives  to  determine  whether  an  undertaking  meets 
the requirements of the Directive.  

Against  the  baseline  situation  (2009),  on  average,  the  companies  with  Recast  EWCs 
are smaller in terms of number of employees and the average turnover than the EWCs 
established  under  the  Article  13  and  Article  6  rules.  This  affects  the  number  of  the 
EWC  employee  representatives  which  is  smaller  in  the  Recast  EWC  (16  delegates) 
than in the EWC operating under Article 13 and Article 6 (23 delegates). Recast EWCs 
operate  a  slightly  more  frequent  programme  of  plenary  EWC  meetings  than  other 
types of EWCs.  

In  quantitative  terms,  the  Recast  Directive  has  provided  some  impetus  for  the 
renegotiation  of  existing  EWC  agreements.  117  Article  13  and  Article  6  EWCs 
agreements  have  been  renegotiated  since  June  2009.  However,  an  increase  was 
observed  in  the  proportion  of  EWCs  operating  under  subsidiary  rules  (i.e.  minimum 
conditions  for  the  EWCs)  since  the  introduction  of  the  Recast  directive  (but  data 
recording issues might affect the reliability of this finding). It is interesting to note that 
there  were  proportionally  fewer  EWCs  negotiated  in  the  transposition  period  of  the 
Recast  Directive  compared  to  the  number  of  EWCs  negotiated  in  the  transposition 
period  of  the  original  Directive  (e.g.  Article  13  agreements).  This  indicates  less 
inclination on the part of companies to make use of the arguably less specific rules of 
the  previous  Directive.  This  could  be  explained  by  the  fact  that  Article  13  provided 
greater flexibility in the absence of previous EU legislation in this specific field. 

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Recommendation 5 

There  is  scope  to  further  support  the  creation  of  additional  EWCs  (as  not  all  eligible 
companies have established EWCs) through the following actions. 

More  work  to  publicise  the  legal  entitlements  and  the  potential  benefits  of  EWCs  to 
company  and  employee  representatives  (for  instance  supported  by  European  and 
national social partner organisations). To undertake such outreach and publicity work, 
the eligible companies without the EWCs would need to be reached. Currently, there is 
insufficient knowledge about such companies, although some initiatives to map these 
exist (e.g. ETUI database) and some European social partners (both cross-sectoral and 
sectoral) have knowledge of such companies. To address this knowledge gap, further 
action  could  be  taken,  such  as  updating  existing  databases  of  eligible  companies 
without EWCs, involving the ETUI and/or European social partners. The figure of 2,400 
potentially eligible companies has been estimated some time ago, but this is a ‘moving 
target’ because of significant restructuring processes.  

It could also take the form of the establishment and maintenance of a European level 
contact  point for  companies/employees  which  would like  to  establish EWC  and  would 
like  assistance,  further  guidance  and  signposting  to  existing  legislation  and  EWC 
practice. Such contact points could be made public also by the national authorities in 
each  of  the  Member  States.  The  contact  point  at  the  European  level  could  provide 
continuous  support  and  assistance  in  the  process  of  the  creation  of  the  EWCs  (such 
service  could  be  contracted  out  to  external  providers  or  agencies  such  as  Eurofound 
entrusted  with  such  task).  Such  assistance  is  currently  often  provided  by  European 
social  partner  organisations,  but  in  some  cases  they  also  lack  knowledge  of  all 
potentially  eligible  companies  and/or  the  capacity  to  assist  in  each  case.  As  an 
alternative to a contact point, a webpage signposting relevant European sectoral social 
partner  organisations  (or  relevant  national  bodies)  could  also  be  envisaged,  but  this 
have  to  be  linked  to  a  resource  for  the  signposted  organisations  to  deal  with  any 
queries. 

Exchange  of  practice  (including  at  HR  conferences)  between  the  management  of 
potential  and  existing EWCs  about  the work  and  benefits  of  existing  EWCs  should  be 
reinforced.  

More  examples  of  EWC  operating  in  small  companies  should  be  provided  and  peer 
learning between them encouraged by the European Commission through organisation 
of peer learning events and seminars.  

DG  EMPL  budget  lines  are  available  to  support  projects  which  could  lead  to  the 
establishment of EWCs in the set up phase. 

9.1.3  Impact on bringing a new impetus to information and consultation 

processes (see also section 9.1.1 and Recommendation 2) 

The majority of Recast EWC agreements reviewed (73% out of 37) contain definitions 
of information and consultation in line with the Recast Directive. But five of 37 Recast 
EWC agreements do not contain any definitions of information and consultation at all. 
Eight of 37 Recast EWC agreements included specific timing and items for information 
and  consultation  on  transnational  matters  in  the  EWCs,  thus  going  above  the 
definitions contained in the Recast Directive. 

The  study  findings  indicate  that  the  impact  of  the  Recast  on  improving  information 
flow in EWCs has been greater than its impact on improving consultation. Information 
is  considered  to  be  delivered  in  a  timely  fashion  (e.g.  in  advance  of  a  decision)  in 
practice  in  the  majority  (70%)  of  cases.  Most  companies  operating  under  the  new 
rules  have  not  experienced  any  technical  difficulties  in  providing  information  to  the 
EWC members. 

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There  appears  thus  to  be  a  good  understanding  among  employers  that  EWCs  should 
receive  information  on  transnational  matters  first,  but  it  does  not  necessarily  mean 
that  this  always  happens  in  practice.  This  is  reflected  in  the  answers  given  by  the 
employee representatives interviewed, which show that around a quarter of EWCs are 
not informed (and consulted) first in restructuring situations.  

The  experiences  of  Recast  EWCs  in  restructuring  situations  are  diverse.  They  reveal 
that  there  are  considerable  differences  among  the  companies  examined  in  their 
practices and procedures for informing and consulting EWC members on restructuring 
plans  or  decisions.  In  some  cases,  EWCs  have  been  able  to  wield  some  influence  on 
the  implementation  of  processes  of  restructuring  (rather  than  actually  changing 
restructuring  decisions).  This  includes  being  able  to  delay  lay-off  or  secure  better 
packages  for  employees  affected.  Employee  representatives  continue  to  perceive  in 
majority of cases that consultation only takes place once decisions have already been 
taken.  The  effectiveness  of  consultation  processes  depends  on  factors  such  as  the 
clear differentiation between the information and consultation phases, the articulation 
of  national  and  transnational  information  and  consultation  processes,  the  explicit 
possibility  to  organise  extraordinary  EWC  meetings,  the  intensity  of  supportive 
relationships  between  management  and  staff  in  the  EWC,  and  to  a  lesser  extent,  on 
the  national  legislation  under  which  the  agreement  is  enforced.  In  addition,  the 
existence  of  strong local /  national  structures  of  worker  information  and  consultation 
can  help  to  ensure  the  involvement  of  EWCs  in  the  transnational  restructuring 
situations.  

According  to  most  employer  and  employee  representatives,  the  consultation  of  EWC 
members  has  not  led  to  any  changes  in  the  corporate  decision-making  on 
transnational matters (nor would it be desired by most national trade unions that the 
negotiation process is entirely transferred to the EWC level). The consultation of EWC 
members is however seen as positive by stakeholders to develop a common corporate 
vision. A number of practical achievements of the EWCs can also be identified, mostly 
relating  to  the  soft  values  of  better  intercompany  relations,  better  information  flows 
and  understanding,  but  also  concrete  initiatives  of  Recast  EWCs  (training  to  EWC 
members,  framework  agreements  on  specific  issues,  interventions  in  restructuring 
situations).  

Recommendation 6 

There  is  scope  to  consider  how  to  further  improve  information  and  consultation 
processes in EWC. 

Sharing  best  practices  and  real  life  examples  from  existing  EWCs  on  how  EWC 
involvement  in  the  corporate  decisions  made  a  positive  contribution  to  the  company 
operation  and  culture  across  the  EU  (this  evaluation  already  identified  a  number  of 
such  examples).  This  could  include  information  on  how  to  organise  and  optimally 
implement information and consultation in specific restructuring situations (e.g. should 
whole EWC or enhanced steering group  – involving affected countries  – be involved). 
Some  EWCs  have  drawn  up  process  plans  setting  out  distinct  information  and 
to  other  EWCs  (see  also 
consultation  steps  which  might  be  of 
Recommendation  2).  To  achieve  this,  a  series  of  seminars  and  peer  learning  events 
could  be  organised  in  order  to  share  the  EWC  practices.  In  such  events,  the  EWC 
representatives  could  be  invited  to  share  and  discuss  the  examples  of  their  work  in 
improving the EWC information and consultation processes.  

interest 

A clearer distinction between the information and consultation phases can help EWCs 
in  influencing  the  decision  making,  as  well  as  employer  willingness  to  share  relevant 
information.  More  precise  guidance  (in  the  form  of  very  practice-oriented  ‘how  to’ 
guide)  on  the  timing  for  information  provision  and  the  separation  of  information  and 
consultation processes, based on the legal interpretations of the Recast Directive, the 
identified court cases and practices of the existing EWCs could be discussed via those 

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events/documentations.  

A  majority  of  Recast  EWCs  focus  ‘almost  exclusively’  on  transnational  matters. 
However,  there  are  difficulties  in  some  cases  in  relation  to  the  interpretation  of  the 
notion  of  transnationality.  As  indicated  above,  experiences  show  that  the  extent  to 
which  EWCs  can  focus  on  transnational  matters  depends  on  the  soundness  of  the 
interpretation  of  the  concept  and  the  determination  of  EWC  leadership  to  keep  the 
discussions to transnational issues. Issues appear to remain in relation to the precise 
definition of the concept of transnational matters. 

Recommendation 7 

Despite  the  further  clarification  provided  on  the  concept  of  transnational  matters  by 
the  Recast  Directive,  in  practice  significant  uncertainties  and  tensions  remain 
regarding  how  this  should  be  interpreted  and  whether  sufficient  information  is 
available  to  employees  to  query  claims  by  management  that  certain  matters  are  not 
transnational. An exchange of practices and guidance on the results of relevant  Court 
cases may be of value in this area. There is thus scope for the European Commission 
to  provide 
interpretation  of  the  concept  of 
transnationality  based  on  existing  jurisprudence  and  examples  from  existing  EWCs. 
The  guidance  could  include  a  non-binding  compendium  of  examples  of  the  national 
court  decisions  with  respect  to  the  interpretation  of  the  transnational  matters, 
examples of existing EWC interpretations of transnational matters (drawn for example 
from  EWC  agreements  and  assessments  of  the implications  of  such  examples for  the 
work of EWCs.  

further  guidance  on  practical 

There  has  been  a  limited  impact  of  the  EWCs  on  the  conclusion  and  quality  of  the 
transnational  company  agreements.  Only  a  minority  of  EWCs  have  concluded  such 
agreements.  Also  the  European  social  partners  interviewed  rated  the  EWC  impact  in 
this area as insignificant. Only the national social partners had a slightly more positive 
view in this respect.  

Recommendation 8 

Some  EWCs  play  a  role  in  relation  to  concluding  transnational  company  agreements 
(although  the  EWCs  do  not  have  such  explicit  negotiations  powers).  This  EWC  role 
could  be  further  clarified  through  an  explicit  reference  to  such  a  role  in  the  EWC 
related legislation to provide legal clarity and certainty on this question.  

There  has  been  a  significant  improvement  in  ensuring  the  ‘right’  to  training  for  the 
EWC representatives without a loss of salary. The occurrence of this ‘right’ in the EWC 
agreements  has  increased  to  93%  (from  less  than  a  third  of  the  original  Article  13 
agreements having  such  a  clause).  Two-thirds  of interviewed  Recast EWCs  employee 
representatives  confirmed  that  employees  had  made  use  of  their  right  to  training 
without  loss  of  wages.  Among  those  who  had  requested  training,  the  vast  majority 
(80%)  of  EWC  members  noted  that  there  had  been  no  particular  challenges  in 
securing  the  training.  However,  it  is  interesting  to  note  that  the  amount  spent  on 
training appears to have declined. 

Recommendation 9 

The  right  to  training  without  a  loss  of  wages  has  been  a  success  of  the  Recast 
Directive.  As many Recast EWCs are in the early stages of the implementation of their 
operations,  a  further  review  in  a  few  years  by  the  European  Commission  may  be 
required  to  assess  the  implementation  of  this  right  in  more  detail  to  determine  how 
much and what kind of training has been funded. 

European  Commission  could  continue  to  finance  projects  with  joint  training  for  EWC 
members, especially coming from smaller (in terms of turnover) companies (see also 

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Recommendation 2).  

The majority of respondents stated that the financial crisis had not really affected the 
Recast  EWCs.  In  those  cases  where  the  economic  context  affected  the  work  of  the 
EWC,  the  management  openly  discussed  the  financial  concerns  of  the  company  and 
asked  the  EWC  members  to  respect  some  cost-cutting  measures  during  the  difficult 
times.  

9.2  Conclusions on the efficiency of the Directive (How did the new 

rules affect the costs and benefits for workers and for 
companies? Have the new rules simplified the administrative 
burden? If yes, how and why?)  

The  quantifiable  costs  of  the  set-up  of  EWCs  have  declined  when  compared  to  the 
experience  of  Article  6  agreements  under  Directive  94/45/EC  (from  EUR  143,537  to 
EUR  119,207).  These  lower  costs  primarily  result  from  the  fact  that  fewer  meetings 
were held with fewer representatives (and therefore associated meeting costs) – albeit 
over  a  longer  period  of  time  –  in  regard  to  EWCs  established  under  the  Recast 
Directive.  This  is  linked  to  the  size  of  companies  negotiating  new  agreements  rather 
than the new provisions of the Recast Directive. 

Costs  in  the  operation  of  Recast  EWCs  are  similar  to  the  EWCs  established  under 
Directive  94/45/EC  and  the  main  problems  of  the  effective  implementation  of 
consultation in particular remain. Not much has changed in terms of EWCs influencing 
the  company  decisions  on  transnational  matters,  despite  a  greater  legal  clarity  on 
these concepts. The total cost of a Recast EWC per year is EUR 240,000 (fixed costs + 
employee time) or 0.009% of the company turnover. This cost needs to be considered 
against  the  continuing  challenges  of  most  Recast EWCs  to  have  a  tangible impact  on 
company decisions in relation to transnational matters.  

Two  thirds  of  employee  side  representatives  in  Recast  EWC  have  accessed  training. 
The  right  established  by  the  Recast  is  considered  to  be  beneficial  but  its  impact  on 
actual training received is difficult to assess as many EWCs are early in their period of 
establishment.  Interestingly,  the  training  costs  reported  by  Recast  EWCs  are 
significantly lower than those measured among EWCs established under Article 6. This 
could partly be due to the fact that 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. 

Employee  and  employer  representatives  (employee  representatives  to  a  greater 
extent)  are  positive  about  the  benefits  of  their  EWC.  However,  it  is  notable  that  the 
perceived  benefits  of  having  an  EWC  decreased  among  companies  with  the  Recast 
EWC  compared  to  EWCs  established  under  Directive  94/45/EC.  The  highest  decrease 
in  perceived  value  of  EWCs  is  in  relation  to  their  ability  to  affect  the  impact  of 
restructuring  situations  on  employees  and  their  effectiveness  in  the  exchange  of 
information.  

At the same time, the perception of costs also seems to have decreased, especially in 
the  eyes  of  employers.  Notable  was  a reduction in  the  employers’  perceptions  of  the 
EWCs  raising  employee  expectations  in  an  unrealistic  manner.  Employers  also 
considered  EWCs  less  costly  in  terms  of  the  EWCs  leading  to  calls  for  transnational 
collective  bargaining,  and  introducing  unnecessary  rigidities  into  employee  and 
management relations.  

Recommendation 10 

Identified  practices  on  how  to  maximise  benefits  and  minimise  costs  should  be  more 
widely shared between the EWCs. These include: 

  Exchange of good practice on the role, rights and duties of the EWC members 

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as  suggested  in  previous  recommendations  to  maximise  the  potential  value  of 
EWCs. 

  The  existing  EWCs  exploring  effective  ways  in  reducing  meeting  costs  without 
undermining  the  benefits  of  face  to  face  meetings  and  the  ability  to 
communicate with representatives from all different countries by learning from 
the  experience  of  existing  EWCs  (e.g.  on  cost  of  different venues,  potential  to 
use  telephone  or  videoconferences  for certain  types  of  meetings  such  as more 
regular  steering  groups;  cost  of 
training  versus  cost  of 
interpretation/translation etc.) 

language 

March 2016 

158 

 
 
 
 
  
 
 
Evaluation study on the implementation of Directive 2009/38/EC on the establishment 
of a European Works Council 

March 2016 

159 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
HOW TO OBTAIN EU PUBLICATIONS 

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