COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a Directive of the European Parliament and of the Council amending Directive 2009/38/EC as regards the establishment and functioning of European Works Councils and the effective enforcement of transnational information and consultation rights
Date: 2024-01-24
Institutions: Directorate-General for Employment, Social Affairs and Inclusion, European Commission
Subjects: European Works Council, group of companies, labour law, multinational enterprise, social dialogue (EU), worker consultation, worker information

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 24.1.2024  SWD(2024) 9 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a Directive of the European Parliament and of the Council amending Directive 2009/38/EC as regards the establishment and functioning of European Works Councils and the effective enforcement of transnational information and consultation rights {COM(2024) 14 final} - {SEC(2024) 35 final} - {SWD(2024) 10 final} - {SWD(2024) 11 final}  
 
 
Subsidiarity Grid 

1.  Can the Union act? What is the legal basis and competence of the Unions’ intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

Article 153(1)(e) in conjunction with Article 153(2)(b) TFEU. Article 153(1)(e) TFEU provides the legal 
basis for the Union to support and complement the activities of the Member States to improve the 
information and consultation of workers. 

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

In  this  field,  the  Union’s  competence  is  to  support  and  complement  the  activities  of  the  Member 
States.  Article  153(2)(b)  TFEU  empowers  the  European  Parliament  and  the  Council  to  adopt  –  in 
accordance with the ordinary legislative procedure – directives setting minimum requirements for 
gradual implementation, having regard to the conditions and technical rules obtaining in each of the 
Member  States.  Possible  adjustments  to the  existing  EU  rules  must  hence  be  without  prejudice  to 
Member  States’  responsibility  and  discretion  to  integrate  those  requirements  into  their  respective 
legal and industrial relations systems, particularly with regard to the arrangements for designating or 
electing  employees’  representatives,  their  protection  and  the  appropriate  sanctions.  The  initiative 
will  also  preserve  the  nature  and  basic  purpose  of  European  Works  Councils  (EWCs)  as  an 
information and consultation instrument. 

Subsidiarity does not apply for policy areas where the Union has exclusive competence as defined in 
Article 3 TFEU1. It is the specific legal basis which determines whether the proposal falls under the 
subsidiarity control mechanism. Article 4 TFEU2 sets out the areas where competence is shared 
between the Union and the Member States. Article 6 TFEU3 sets out the areas for which the Unions 
has competence only to support the actions of the Member States. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 24: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

Various  consultation  activities  were  carried  out  to  collect  factual  evidence  and  views  concerning 
possible  problems  and  necessary  measures  to  improve  the  EU  framework  for  information  and 
consultation  on  transnational  matters.    In  particular,  the  consultation  aimed  to:  (1)  gather  the 
stakeholders’ views on the initiative; (2) collect their opinions and existing evidence on the problem 
and various solutions (policy options) to address it; and (3) create a robust evidence-based analysis.  
A wide range  of stakeholders  operating at international, EU and national levels were consulted:  (i) 
those having an interest in the matter (e.g. workers’ organisations, employers’ organisations at EU 
and  national  level,  national  authorities):  (ii)  potential  beneficiaries  (e.g.  EWC  representatives, 
management and employee representatives of companies); and (iii) experts (e.g. legal and academic 
experts). 

1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E003&from=EN  
2 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E004&from=EN  
3 https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E006:EN:HTML  
4 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  

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The  stakeholder  consultation  included:  (a)  a  two-stage  Treaty  based  consultation  of  the  European 
Social Partners under Article 154 TFEU. The first stage consultation sought their views on the need 
for and possible direction of EU action to address the challenges related to the operation of EWCs,  
and the second stage consulted them on the possible content of the EU action.  (b) semi-structured 
interviews  (57)  (c)  targeted  online  survey  of  companies  with  EWCs  –  management  and  employee 
representatives (233 replies) and (d) evidence gathering workshops with management and employee 
representatives.  Annex  2  of  the  impact  assessment  provides  the  outcomes  of  the  stakeholder 
consultation (Synopsis report). 
The majority of the consultation activities were organised by an external contractor in the context of 
a  study  supporting  the  preparation  of  the  impact  assessment.  The  Commission  led  the  two-stage 
consultation of the European Social Partners.  
The  European  Parliament  called  for  improvements  to  the  recast  Directive  in  two  resolutions.  The 
2021  resolution  on  Democracy  at  Work  covers  areas  of  worker  information,  consultation  and 
participation  as  well  as  some  aspects  of  company  law  and  corporate  governance  and  calls  for  a 
revision of the recast Directive. The 2023  resolution with recommendations to the Commission on 
the revision of the European Works Councils Directive called for a strengthened role and capacity of 
EWCs  as  information  and  bodies  in  Union-scale  undertakings.  It  contains  an  annex  setting  out 
proposals for legislative amendments to the recast Directive. 
The European Economic and Social Committee (EESC) has issued a  number of opinions, in which it 
stresses the need for an enhanced role of European Works Councils in the event of large company 
transformations  and  in  transnational  restructuring  processes  in  the  context  of  the  twin  transitions 
(eg. Opinion of 17 October 2018 on the package on European company law,  Opinion of 2 December 
2020  ‘Industrial  transition  towards  a  green  and  digital  European  economy:  regulatory  requirements 
and  the  role  of  social  partners  and  civil  society’,  Opinion  of  9  June  2021  ‘No  Green  Deal  without  a 
Social Deal’).  In April 2023, the EESC adopted an exploratory opinion on Democracy at Work, which 
points to the need to substantially improve effectiveness and resources of EWCs.  
The  explanatory  memorandum  and  the  impact  assessment  report  (Section  3)  contain  an  adequate 
justification of why the proposal is in conformity with the principle of subsidiarity. More information 
is available in question 2.2. below. 

2.2 Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the conformity with the 
principle of subsidiarity? 

Only  an  EU  instrument  can  set  common  rules  on  information  and  consultation  of  workers  at 
transnational level within the EU. The challenges which reduce the effectiveness of workers’ right to 
transnational  information  and  consultation  are  closely  linked  to  the  coverage  and  content  of  the 
obligations  under  the  Directive,  and  create  effects on  companies  and  their  workers  across  the  EU. 
Given the cross-border nature of the undertakings and groups within the scope of the Directive and 
the  transnational  nature  of  the  matters  subject  to  transnational  information  and  consultation 
requirements, individual Member States cannot address the shortcomings of the current framework 
in a coherent and effective manner. The identified challenges must therefore be tackled at EU level. 

2.3 Based on the answers to the questions below, can the objectives of the proposed action be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

The objectives of the proposed initiative cannot be sufficiently achieved by the Member States acting 
alone.  Given  the  cross-border  nature  of  the  undertakings/groups within  the  scope  of  the Directive 
and the transnational nature of the matters subject to the information and consultation, individual 
Member States cannot enact the basic regulatory requirements to define a coherent framework for 
such information and consultation. All EWCs operate at transnational level. Their composition must 
be  representative of  –  and ensure the dissemination of information to  –  employees in all Member 

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States  in  which  the  respective  multinational  undertaking  or  group  is  active.  They  are  consulted on 
topics having potential effects on employees in several Member States. There is therefore a need for 
the EU initiative to clarify and further develop the minimum standards that apply to all multinational 
undertakings of a certain size operating in the EU. Actions of individual Member States could address 
the  identified  issues  only  to  a  limited  extent  (eg.  by  revising  their  laws  on  enforcement  and 
sanctions).   

(a)  Are there significant/appreciable transnational/cross-border aspects to the problems being 

tackled? Have these been quantified? 

The initiative is transnational by nature (see above), as it concerns information and consultation on 
transnational matters  of  employees  in  Union-scale  undertakings  operating  in  at  least  two  Member 
States.   
The evidence-gathering has confirmed that certain key shortcomings of the minimum requirements 
in Directive 2009/38/EC reduce the effectiveness of transnational information and consultation.  
Among  the  main  issues  encountered  by  EWCs  is  the  timing  of  the  consultation  and  the  lack  of  a 
genuine  and  meaningful  dialogue  on  transnational  matters.  EWCs  that  experienced  such  problems 
report for instance that their questions or opinions are not properly responded to by management. 
Conflicts  also  exist  between  EWCs  and  the  central  management  on  whether  a  matter  is 
transnational, i.e., whether the EWC is to be informed and consulted. Moreover, there is evidence of 
uncertainty  regarding  the  process  for  setting  up  EWCs,  the  coverage  of  their  expenses,  access  to 
justice and effective remedies when rights under the Directive are infringed. 
The  scale  of  the  problem  cannot  be  easily  ascertained  in  objective  terms,  as  the  functioning  of 
transnational  information  and  consultation  depends  on  uncertain  –  often  behavioural  –  variables 
specific to each undertaking. As a general trend, the views of key stakeholders on the problem are 
polarised.  Trade  unions  and  employees’  representatives  underline  perceived  obstacles,  while 
employer organisations do not acknowledge that adaptations to the existing framework are needed. 
The  current  framework  does  not  guarantee  that  EWCs  are  involved  prior  to  the  adoption  of 
management’s  decision  on  transnational  matters,  which  is  an  obvious  condition  for  their  effective 
consultation; it also does not explicitly require management to respond to EWCs’ opinions, nor does 
it require that the coverage of certain key expenses be specified in EWC agreements.  
With regard to enforcement, the Commission’s 2018 evaluation found that sanctions set by Member 
States for non-compliance are often not dissuasive, and EWCs do not have access to justice in some 
Member  States  for  some  of  their  rights  under  the  Directive.  In  response  to  the  findings  of  the 
evaluation, the Commission launched non-legislative actions, which have not resulted in changes. 

(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty5 or significantly damage the interests of other Member States? 

While the absence of EU level action might not significantly damage the interests of other Member 
States, national action will not be sufficient to ensure the effectiveness of transnational information 
and  consultation  nor  to  address  the  transnational  dimension  of  the  Treaty  objective  to  promote 
dialogue between management and labour (Article 151, first paragraph, TFEU). 

(c)  To what extent do Member States have the ability or possibility to enact appropriate 

measures? 

In  accordance  with  the  Treaty  legal  base  of  this  initiative, Member  States  have  broad  discretion  in 
implementing  transnational  information  and  consultation  requirements  into  their  respective  rules 

5 https://europa.eu/european-union/about-eu/eu-in-brief_en  

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and  industrial  relations  systems  and  traditions,  and  where  appropriate  to  complement  them. 
However, given the inherently transnational nature of the subject-matter (see above), coherent and 
effective minimum requirements at EU level are needed to ensure the effectiveness of transnational 
information and consultation. The necessary changes to the existing EU level minimum requirements 
cannot be made by Member States. 

(d)  How does the problem and its causes (e.g. negative externalities, spill-over effects) vary 

across the national, regional and local levels of the EU? 

About  half  of  Member  States  have  a  low  number  or  no  EWCs  established  under  their  jurisdiction. 
While some of the challenges are more relevant in certain national legal systems than in others, their 
effects  nevertheless  propagate across  borders due  to the inherently transnational nature  of EWCs. 
Transnational  restructuring  and  accompanying  measures  can  have  high  local  impacts  regardless  of 
the  location  of  company’s  headquarters,  especially  where  the  territory  specialises  in  a  particular 
sector, is facing high unemployment or where the undertaking is locally a major employer. 

(e)  Is the problem widespread across the EU or limited to a few Member States? 

All Member States can be affected by the problem, because its consequences materialise not only in 
the Member State where an EWC is based, but also in those where establishments belonging to the 
same group are based. Most EWCs were established under the legislation of DE, FR, BE, IE, SE, NL, IT, 
but  –  as  transnational  information  and  consultation  bodies  –  they  represent  employees  of  the 
undertakings concerned in all Member States. Indirectly, the consequences of the problem could also 
affect companies linked to Union-scale undertakings in the value chain (located in the EU or outside), 
as  well  as  the  regional  economic  systems  depending  on  those  undertakings  more  broadly. 
Subcontractors and networks of businesses, with which the directly affected companies coexist and 
which they support, can be affected along with their workers, for instance through loss of business 
due  to  major  restructuring  of  the  multinational  undertaking,  especially  where  this  is  sudden  or 
unannounced.  Such  effects  are  however  difficult  to  estimate,  considering  that  the  EWCs  remain 
consultation bodies without having a co-determination role in management decisions. 

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

The proposed measures are proportionate, as they impose limited obligations on the Member States.  
All  Member  States  would  have  to  amend  their  legislation  implementing  the  Directive.  They  would 
need as part of their transposition obligation to notify to the Commission information on how EWCs, 
SNBs  and  employees’  representatives  can  bring  judicial  proceedings  in  respect  of  all  their  rights 
under  the  Directive.  This  obligation  would  entail  negligible  administrative  costs  since  it  could  be 
discharged as a part of the standard process of notifying transposition measures via the available IT 
systems.  While evidence remains inconclusive as to whether the preferred option would lead to a 
higher  incidence  of  legal  procedures,  and  thereby  possible  higher  adjudication  costs  for  Member 
States, costs are expected to be negligible even if a small increase should materialise, given the very 
low baseline. 
In  assessing  the  policy  options,  due  consideration  was  given  to  the  need  to  afford  sufficient 
discretion to Member  States  in implementing any revised minimum requirements  on transnational 
information and consultation, allowing them to complement those requirements as appropriate and 
to  integrate  them  into  their  respective  rules,  industrial  relations  traditions  and  practices,  in 
accordance with the principle of subsidiarity and the Treaty legal base for social policy measures. 

(g)  How do the views/preferred courses of action of national, regional and local authorities 

differ across the EU? 

In  preparation  of  this  initiative,  national  authorities  of  10  Member  States  were  interviewed, 

4 

 
 
representing  different  geographical  regions  and  legal  systems.  The  results  suggest  that  Member 
States  tend  to  agree  on  the  problem  and  its  drivers  and  the  need  to  tackle  it.  The  national 
administrations  interviewed  tend  to  support  the  removal  of  the  exemptions  from  the  scope  of 
Directive 2009/38/EC. They also generally agree on a clearer timeframe for the establishment of the 
EWCs, as well as on the importance of access to resources, training and legal support in the process 
of establishment  and functioning of EWCs.  For the most  part, they also support the  clarification of 
the notion ‘transnational matters’.  
There  was  only  limited  support  among  the  national  authorities  interviewed  for  amending  the 
provisions on confidentiality and non-disclosure of information, as they consider the existing national 
rules  to  be  sufficient.  Some  interviewed  members  of  Member  State  administrations  opposed  the 
introduction  of  preliminary 
injunctions  or  (disproportionate)  financial  sanctions  for  specific 
infringements. 

2.4 Based on the answer to the questions below, can the objectives of the proposed action be 

better achieved at Union level by reason of scale or effects of that action (EU added value)? 

The objectives of the proposed action can be better achieved at the EU level because the initiative 
has  a  clear  cross-border  dimension.  The  specific  EU  added  value  of  the  initiative  lies  in  the 
development  of  these  minimum  standards,  below  which  Member  States  cannot  compete  on  the 
single  market.  These  standards  foster  upwards  convergence  in  employment  and  social  outcomes 
between Member States. The initiative will further increase the added value also for companies, by 
creating a clearer and more coherent legal framework across the entire EU.  

(a)  Are there clear benefits from EU level action?  

EU  level  action  can  enhance  the  effectiveness  of  information  and  consultation  of  employees  at 
transnational level which is expected to bring clear benefits from improved social dialogue in Union-
scale undertakings. 

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 

benefits per unit cost)? Will the functioning of the internal market be improved? 

The objectives can be met more efficiently at EU level because the initiative has clear cross-border 
dimension  and  concerns  multinational  undertakings  active  in  more  than  on  Member  State.  The 
specific EU added value of the initiative lies in the development of these minimum standards, below 
which  Member  States  cannot  compete  on  the  single  market.  These  standards  foster  upwards 
convergence in employment and social outcomes between Member States. The initiative will further 
increase  the  added  value  also  for  companies,  by  creating  a  clearer  and  more  coherent  legal 
framework across the entire EU.  

(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

In  accordance  with  the  relevant  Treaty  legal  base,  only  minimum  requirements  for  gradual 
implementation are laid down at EU level.  National rules  and practices  are  hence  not replaced but 
required  to  converge  only  as  regards  the  results  to  be  achieved  by  those  minimum  requirements. 
Member  States  can  choose  the  way  in which  those requirements  are  implemented  into  their  legal 
systems.  The  initiative  does  not  affect  the  national  industrial  relations  systems  or  rules  on  the 
involvement of employees at national or local level. Those rules are complemented by this initiative 
at EU level addressing social dialogue on transnational matters in Union-scale undertakings operating 
in at least two Member States.  

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States 

5 

 
 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)? 

This  initiative  will  not  lead  to  loss  of  competence  of  the  Member  States,  as  the  EU  had  already 
previously  exercised  its  shared  competence  to  lay  down  minimum  requirements  on  transnational 
information and consultation of employees. The initiative merely amends the existing EU level rules 
without broadening their scope. 

(e)  Will there be improved legal clarity for those having to implement the legislation? 

Yes.  The  clarifications  to  the  legal  framework  regarding  the  concept  of  transnational  matters, 
conditions for imposing confidentiality, coverage of legal and training costs, access to experts, format 
of meetings will improve the legal clarity, facilitate implementation and reduce the risk of disputes.  

3.  Proportionality: How the EU should act 

3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal and a statement allowing appraisal of the compliance of the proposal with the 
principle of proportionality? 

The  impact  assessment  accompanying  this  initiative  compared  the  policy  options  as  to  their 
proportionality relative to the baseline.  The preferred option strikes the best balance between the 
need  to  take  sufficiently  robust  measures  to  achieve  the  policy  objectives  and  reinforce  the 
framework  for  social  dialogue  in  companies,  and  the  need  to  minimise  burden  and  costs  for 
undertakings and avoid negative impacts on competitiveness. 

3.2 Based on the answers to the questions below and information available from any impact 
assessment, the explanatory memorandum or other sources, is the proposed action an 
appropriate way to achieve the intended objectives? 

The  proposed  action  is  appropriate  to  achieve  the  objective  of  improving  the  effectiveness  of  the 
framework for the information and consultation of employees at transnational level, considering that 
it  is  limited  to  aspects  that  Member  States  cannot  address  satisfactorily  on  their  own  and  that  it 
creates only negligible adjustment costs for companies and negligible enforcement costs for Member 
States. Furthermore, a targeted revision of the existing Directive is considered the most effective and 
efficient form of EU action within the limits of the applicable legal basis, leaving space for Member 
States to integrate the requirements into their respective legal and industrial relations systems, and 
preserving the autonomy of social partners. 

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 

their own, and where the Union can do better? 

Yes, the initiative is limited to the aspects that Member States cannot achieve satisfactorily one their 
own and where the Union can do better. Given the cross-border nature of the undertakings/groups 
within  the  scope  of  the  Directive  and  the  transnational  nature  of  the  matters  subject  to  the 
information  and  consultation, 
individual  Member  States  cannot  enact  the  basic  regulatory 
requirements to define  a coherent framework for such  transnational  information and consultation. 
There is therefore a need for the EU initiative to clarify and further develop the minimum standards 
that apply to all multinational undertakings of a certain size operating in the EU. Actions of individual 
Member States could address the identified issues only to a limited extent (e.g. by revising their laws 
on  enforcement  and  sanctions),  but  no  such  actions  have  been  taken  by  any  Member  State  in 
response  to  the  findings  of  the  2018  evaluation  and  subsequent  non-legislative  actions  by  the 

6 

 
 
Commission. 

(b)  Is the form of Union action (choice of instrument) justified, as simple as possible, and 

coherent with the satisfactory achievement of, and ensuring compliance with the objectives 
pursued (e.g. choice between regulation, (framework) directive, recommendation, or 
alternative regulatory methods such as co-legislation, etc.)? 

The relevant legal basis allows for the adoption of binding (minimum) requirements only in the form 
of Directives. Non-binding instruments were also considered, such as a Commission communication 
providing  interpretative  guidance  or  Commission  recommendations  on  enforcement  by  Member 
States.  However,  such  alternatives  were  assessed  to be  less  effective  and efficient  than  a targeted 
revision of the Directive.  
Furthermore, non-legislative measures, such as the funding of projects to promote the awareness of 
the transnational information and consultation framework, and the Commission’s monitoring of the 
implementation  of  the  Directive  by  the  Member  States  form  part  of  the  baseline  scenario.  A 
legislative  initiative  would  therefore  automatically  be  combined  with  such  continuing  non-binding 
measures.  

(c)  Does the Union action leave as much scope for national decision as possible while achieving 
satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument or approach?) 

The Union action leaves as much scope for national decision as well as to decisions of social partners.  
Possible adjustments to the existing EU rules are without prejudice to Member States’ responsibility 
and  discretion  to  integrate  those  requirements  into  their  respective  legal  and  industrial  relations 
systems,  particularly  with  regard  to  the  arrangements  for  designating  or  electing  employees’ 
representatives, their protection and the appropriate sanctions. The initiative will also preserve the 
nature and basic purpose of EWCs as an information and consultation – rather than co-determination 
–  instrument.    Moreover,  the  social  partners  in  Union-scale  undertakings  play  a  key  role  in 
implementing  the  legislation  via  the  negotiation  of  EWC  agreements.  Their  autonomy,  enshrined 
specifically in the Directive, is maintained.   

(d)  Does the initiative create financial or administrative cost for the Union, national 

governments, regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved? 

The initiative creates negligible costs for the companies when comparing the quantifiable unit costs 
to  the  turnover  of  relevant  undertakings.  The  adjustment  costs  are  limited  to  possible  marginal 
increases of the baseline costs of running EWCs (costs of meetings, training, expertise, legal advice), 
as  well  as  in  certain  cases  the  costs  of  negotiating  new  EWC  agreements.  No  reporting  or  other 
administrative  requirements  are  imposed  on  undertakings,  and  the  Directive’s  flexible  approach  is 
maintained in the preferred option, which focuses on ensuring legal certainty and effectiveness and 
minimising  the  risk  of  disputes  or  delays.  Policy  options  that  might  have  negatively  affected 
undertakings’  ability  to  take  decisions  effectively  were  not  retained,  in  compliance  with  the 
proportionality principle and concerns stressed by business organisations during the consultation of 
social partners. 
 In  the  currently  exempted  undertakings  with  ‘voluntary  agreements’,  negotiations  of  new  EWC 
agreements could be initiated by either management or employees. This entails estimated average 
costs  of  ca. EUR 148 000 per  negotiation  for  those  undertakings.  Generally,  during  negotiations or 
renegotiations involving a special negotiating body, undertakings will be legally required to cover – in 
addition to other costs incurred in the setting-up phase – also reasonable legal costs, currently not 
explicitly  required  in  the  large  majority  of  Member  States.  Where  necessary  to  align  existing  EWC 

7 

 
 
agreements  with  the  revised  requirements  –  e.g.,  to  address  the  coverage  of  EWCs’  expenses  for 
legal  or  expert  advice  and  training  –  central  management  must  engage  in  renegotiations.  Average 
costs  of  renegotiations  could  not  be  reliably  quantified.  Evidence  suggests  that  a  renegotiation 
process  is  shorter  than  the  process  for  setting  up  a  new  EWC,  although  it  may  require  multiple 
meetings in complex cases. Based on the available evidence, it was possible to monetise certain costs 
linked to meetings between management and EWC representatives for the renegotiation of existing 
agreements  (ca.  EUR  18  400  per  meeting).  In  a  substantial  number  of  cases,  the  necessary 
adaptations  of  EWC  agreements  could  be  made  as  part  of  regular  renegotiations,  which  occur  on 
average every five years, entailing no or only very limited additional costs compared to the baseline. 
Undertakings could also face  an incremental increase  in the costs of running an EWC  (ca. EUR 300 
000 on average  per  year  per  EWC  under  the  baseline),  for  instance  in  relation  to the  obligation to 
provide a reasoned response to the EWC. Finally, in cases of breaches of their obligations under the 
Directive,  the  undertakings  would  face  a  risk  of  higher  financial  penalties.  The  occurrence  of  legal 
disputes and application of penalties is however expected to remain low.  All Member States would 
have to amend their legislation implementing the Directive. They would need to collect and notify to 
the Commission information on how EWCs, SNBs and employees’ representatives can bring judicial 
proceedings  in  respect  of  all  their  rights  under  the  Directive.  This  obligation  would  entail  limited 
administrative costs although these could be minimised as a part of the standard process of notifying 
transposition  measures  via  the  available  IT  systems.  The  initiative  is  unlikely  to  entail  increased 
enforcement/adjudication costs for national authorities. 

(e)  While respecting the Union law, have special circumstances applying in individual Member 

States been taken into account? 

The  initiative  respects  national  competencies  and  has  the  flexibility  to  cater  for  possible  special 
circumstances  in  individual  Member  States.  The  preferred  option  limits  the  application  of  the 
confidentiality obligation to cases where this is in the legitimate interest of the undertaking and it is 
for Member States to define the criteria for applying the confidentiality obligation in their national 
legislation.  In  ensuring  effective  sanctions  and  access  to  justice,  Member  States  shall  take  into 
account undertakings’ annual turnover when determining the level of pecuniary sanctions, to ensure 
their  proportionality,  effectiveness  and  dissuasiveness,  but  retain  their  procedural  autonomy  for 
determining their enforcement procedures and remedies and sanctions for specific infringements.  

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