COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT REPORT 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) 10 final  COMMISSION STAFF WORKING DOCUMENT  IMPACT ASSESSMENT REPORT  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) 9 final} - {SWD(2024) 11 final}  
 
 
Table of contents 

1. 

2. 

INTRODUCTION: POLITICAL AND LEGAL CONTEXT ............................................................... 1 

PROBLEM DEFINITION .................................................................................................................... 2 

2.1.  Content and objective of the Directive .............................................................. 2 
2.2.  Evaluation of the Directive ................................................................................ 4 
2.3.  What is the problem? ......................................................................................... 4 
2.4.  What are the problem drivers? ........................................................................ 10 
2.5.  How likely is the problem to persist? .............................................................. 19 

3.  WHY SHOULD THE EU ACT? ........................................................................................................ 19 

3.1.  Legal basis ....................................................................................................... 19 
3.2.  Subsidiarity: Necessity of EU action ............................................................... 20 
3.3.  Subsidiarity: Added value of EU action .......................................................... 20 

4.  OBJECTIVES: WHAT IS TO BE ACHIEVED? ............................................................................... 21 

4.1.  General objective ............................................................................................. 21 
4.2.  Specific objectives ........................................................................................... 21 

5.  WHAT ARE THE AVAILABLE POLICY OPTIONS? .................................................................... 22 

5.1.  What is the baseline from which options are assessed? .................................. 22 
5.2.  Description of the policy options .................................................................... 23 
5.3.  Options discarded at an early stage ................................................................. 32 

6.  WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? ........................................................... 32 

6.1. 
6.2. 
6.3. 
6.4. 

Impacts of policy options under Policy Area 1 ............................................... 33 
Impacts of policy options under Policy Area 2 ............................................... 35 
Impacts of policy options under Policy Area 3 ............................................... 37 
Impacts of policy options under Policy Area 4 ............................................... 41 

7.  HOW DO THE OPTIONS COMPARE? ............................................................................................ 43 

7.1.  Effectiveness .................................................................................................... 43 
7.2.  Efficiency ........................................................................................................ 45 
7.3.  Coherence ........................................................................................................ 47 
7.4.  Proportionality ................................................................................................. 49 
7.5.  Comparative scoring of the options – multi-criteria analysis .......................... 50 

8. 

PREFERRED OPTION ...................................................................................................................... 50 

8.1.  Selection of the preferred policy option and analysis of combined impacts ... 50 
8.2.  REFIT (simplification and improved efficiency) ............................................ 52 
8.3.  Application of the ‘one in, one out’ approach ................................................. 52 

9.  HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? .................................. 53 

ANNEX 1: PROCEDURAL INFORMATION ............................................................................................ 54 

ANNEX 2: STAKEHOLDER CONSULTATION (SYNOPSIS REPORT) ................................................ 59 

i 

 
 
 
ANNEX 3: WHO IS AFFECTED AND HOW? .......................................................................................... 80 

ANNEX 4: ANALYTICAL METHODS ..................................................................................................... 93 

ANNEX 5: COMPETITIVENESS CHECK .............................................................................................. 130 

ANNEX 6: DEVELOPMENT AND CONTENT OF THE RECAST DIRECTIVE .................................. 133 

ANNEX  7:  COHERENCE  OF  THE  RECAST  DIRECTIVE  WITH  OTHER  UNION  LEGISLATION  AND 

POLICIES ......................................................................................................................................... 137 

ANNEX 8: OVERVIEW OF MEMBER STATES’ TRANSPOSITIONS OF THE RECAST DIRECTIVE IN 

RELATION TO RELEVANT POLICY AREAS ............................................................................. 139 

ANNEX 9: EXAMPLES OF NATIONAL CASE-LAW IN RELATION TO THE PROBLEM DRIVERS147 

ANNEX 10: EXTERNAL PROBLEM DRIVERS .................................................................................... 152 

ANNEX  11:  REASONS  FOR  DISCARDING  CERTAIN  POLICY  MEASURES  WITHOUT  DETAILED 

ASSESSMENT OF IMPACTS ......................................................................................................... 155 

ANNEX 12: IMPACTS OF THE POLICY OPTIONS .............................................................................. 162 

ANNEX 13: MONITORING AND EVALUATION ................................................................................. 217 

ii 

 
 
 
 
Glossary 

Term or acronym 

Meaning or definition 

Adaptation procedure 

Article 14 agreement 

Central management 

A procedure for adapting the existing  EWC agreement, where the 
structure  of 
the  group  of 
the  Union-scale  undertaking  or 
undertaking  changes  significantly.  Employees  or  the  management 
can  launch  this  procedure,  unless  the  agreement  already  contains 
provisions to that effect (Article 13 of the Directive). 

EWC agreements concluded or revised during the transition period 
of  the  Directive  (June  2009  -  June  2011).  The  Directive  exempts 
from  its  scope  Union-scale  undertakings  with  these  agreements. 
The  national  law  applicable  when  the  agreement  was  signed  or 
revised  continues  to  apply  to  them  (Article  14(1)(b)  of  the 
Directive). 

Central management of the Union-scale undertaking or, in the case 
of  a  Union-scale  group  of  undertakings,  of  the  controlling 
undertaking (Article 2(1)(e) of the Directive). 

CFR 

Charter of Fundamental Rights of the European Union 

Consultation 

Directive 

is  defined  by 

Consultation  of  EWCs 
the  Directive  as 
“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” (Article 2(1)(g)). 

The  consultation  should  not  slow  down  the  decision-making 
process  in  undertakings  (recital  22),  it  should  be  useful  in  the 
decision-making process (recital 23) and the EWC opinions should 
be without prejudice to the competence of the central management 
to  carry  out  the  necessary  consultations  in  accordance  with  the 
schedules  provided  for  in  national  legislation  and  practice  (recital 
37).  

European  Works  Councils  Directive  2009/38/EC  (‘the  Directive’) 
lays  down  rules  on  establishment  and  functioning  of  European 
Works  Councils  (EWCs)  and  of  information  and  consultation 
procedures  (ICPs).  It  is  a  recast  of  Council  Directive  94/45/EC 
(‘the 1994 Directive’). 

iii 

 
 
 
Employees representatives 

Employees’  representatives  provided  for  by  national  law  and/or 
practice (Article 2(1)(d) of the Directive). 

Enforcement provisions 

European  Works 
(‘EWC’) 

Council 

European  Works 
Council 
agreement (‘EWC agreement’) 

Exempted undertakings 

Information 

Information  and  consultation 
procedure (ICP) 

Administrative  or  judicial  procedures  defined  in  national  laws  for 
enforcing  right  s  and  obligations  under  the  Directive.  Member 
States  must  provide  for  ‘appropriate  measures  in  the  event  of 
failure to comply with this Directive’ and to ensure that ‘adequate 
administrative  or  judicial  procedures  are  available  to  enable  the 
obligations  deriving  from  this  Directive  to  be  enforced’  (Article 
11(2)).  Recital  36  clarifies  that  ‘[i]n  accordance  with  the  general 
principles  of  Community 
judicial 
procedures,  as  well  as  sanctions  that  are  effective,  dissuasive  and 
proportionate  in  relation  to  the  seriousness  of  the  offence,  should 
be  applicable  in  cases  of  infringement  of  the  obligations  arising 
from this Directive.’ 

law,  administrative  or 

Bodies  of  EU-based  employee  representatives  established  in  a 
Union-scale  undertaking  or  groups  of  undertakings,  with  the 
purpose  of  being  informed  and  consulted  by  the  management  on 
transnational matters.  

An agreement concluded between the central management and the 
special  negotiating  body  in  accordance  with  Article  6(2)  of  the 
Directive.  The  agreement  determines  detailed  arrangements  for 
information  and  consultation  of  employees  on  transnational 
matters.    

The Directive exempts from its scope Union-scale undertakings or 
Union-scale  groups  of  undertakings  with  ‘voluntary  agreements’ 
(Art.  14  (1)  (a))  or  with  ‘Article  14  agreements’  (Art.14  (1)(b)). 
(see 
‘voluntary 
agreement’) 

‘Article  14  agreement’, 

this  Glossary 

in 

Information  of EWCs is defined in  the Directive as  “transmission 
of data by the employer to the employees’ representatives in order 
to enable them to acquaint themselves with the subject matter and 
to  examine  it;  information  shall  be  given  at  such  time,  in  such 
fashion  and  with  such  content  as  are  appropriate  to  enable 
employees’ representatives to undertake an in-depth assessment of 
for 
the  possible 
consultations  with  the  competent  organ  of  the  Community-scale 
undertaking  or  Community-scale  group  of  undertakings”  (Article 
2(1)(f)). 

impact  and,  where  appropriate,  prepare 

A procedure established in writing by the central management and 
the  special  negotiating  body  in  accordance  with  Article  1(2)  and 
Article  6(3)  of  the  Directive.  It  must  stipulate  the  method  of 
consultation.  Information  should  relate  to  transnational  matters 
which significantly affect workers’ interests. 

Pillar 

European Pillar of Social Rights 

iv 

 
Special  Negotiating  Body 
(‘SNB’) 

Subsidiary requirements 

Transnational matters 

Union-scale undertaking 

Union-scale 
undertakings 

group 

of 

Voluntary agreement  

Body  composed  of  employees  representatives  of  the  Union-scale 
undertaking, established to negotiate with the central management 
the setting-up of a European Works Council (EWC) or a procedure 
for  informing  and  consulting  (ICP)  employees  on  transnational 
matters (Article 5(2) of the Directive). 

Subsidiary  requirements  are  procedural  rules  for  consultation, 
composition,  operation  and  resources  of  EWCs,  where  the 
management  has  refused  to  commence  negotiations  within  six 
months  of  the  request,  or  where  the  SNB  and  the  central 
management  so  decide  or  were  unable  to  conclude  an  EWC 
agreement or an ICP. (Article 7(1), in conjunction with Annex I). 

Matters are to be considered transnational where they concern the 
Union-scale undertaking as a whole, or at least two undertakings or 
establishments  of  the  company  situated  in  two  different  Member 
States (Article 1(4) of the Directive). Corresponding recitals 15 and 
16 clarify, in particular, that the competence and scope of action of 
a EWC must be distinct from that of national representative bodies 
and  that  the  transnational  matter  should  be  determined  by  taking 
into  account  the  scope  of  the  potential  effects  and  the  level  of 
management and representation involved.1  

Any undertaking with at least 1 000 employees within the Member 
States and at least 150 employees in each of at least two Member 
States (Article 2(1)(a) of the Directive).  

A group of undertakings with the following characteristics: 
— at least 1 000 employees within the Member States, 
— at least two group undertakings in different Member States, 
and 
—  at  least  one  group  undertaking  with  at  least  150  employees  in 
one Member State and at least one other group undertaking with at 
least  150  employees  in  another  Member  State.  (Article  2(1)(c)  of 
the Directive) 

Also called ‘pre-Directive agreement’, a voluntary agreement is an 
agreement  covering  the  entire  workforce  of  the  Union-scale 
undertaking or Union-scale group of undertakings, which provides 
for  the  transnational  information  and  consultation  of  employees, 
and  which  was  concluded  for  the  first  time  before  the  Directive 
1994  entered  into  application.  The  Directive  excludes  from  its 
scope  Union-scale  undertakings  with  such  agreements  (Article 
14(1)(a)). 

1 Recital 16 further clarifies that “'…For this purpose, matters that concern the entire undertaking or group or at least 
two  Member  States  are  considered  to  be  transnational.  These  include  matters  which,  regardless  of  the  number  of 
Member States involved, are of importance for the European workforce in terms of the scope of their potential effects 
or which involve transfers of activities between Member States”. 

v 

 
 
 
 
1.  INTRODUCTION: POLITICAL AND LEGAL CONTEXT 

Workers’  right  to  information  and  consultation  within  the  undertaking  is  laid  down  in  the  EU 
Charter of Fundamental Rights (Article 27). The Treaty on the Functioning of the European 
Union  (TFEU)  promotes  social  dialogue  between  management  and  labour  (Article  151)  and 
recognises the role of social partners (Article 152).  

In  the  ongoing  transformation  of  the  world  of  work  driven  by  environmental,  economic  and 
social sustainability, a meaningful involvement of workers at all levels and their representatives 
as  regards  the  anticipation  and  management  of  change  can  help  diminish  job  losses,  maintain 
employability,  improve  working  conditions,  enhance  competitiveness  and  ease  effects  on  social 
welfare  systems  and  related  adjustment  costs.2  Empirical  research  in  the  fields  of  industrial 
relations  and  of  applied  psychology  has  shown  that  the  involvement  of  workers  through 
information  and  consultation  at  company  level  can  have  positive  impacts  not  only  on  workers’ 
well-being, but also on labour productivity as well as on firms’ profitability.3    

In  accordance  with  Article  153  TFEU,  the  EU  shall  support  and  complement  the  activities  of 
Member States in the field of information and consultation of workers. A comprehensive set of 
directives  on  the  information  and  consultation  of  workers  establishes  rules  to  protect  their  rights 
notably in restructuring processes. EWCs are an important piece of that policy framework. They are 
employee representation bodies for information and consultation with management of multinational 
undertakings  on  transnational  matters,  established  on  a  voluntary  basis  in  accordance  with  the 
European  Works  Councils  Directive  (“Directive”).  Through  them,  the  employees  of  undertakings 
or  groups  of  undertakings  operating  in  two  or  more  Member  States  are  to  be  informed  and 
consulted  on  transnational  matters  affecting  them.  (For  a  brief  description  of  the  functioning  of 
EWCs see the next section. For an overview of the development and of the content of the Directive 
see Annex 6.) 

EWCs and transnational information and consultation procedures complement the information and 
consultation  of  employees  at  national  level  pursuant,  in  particular,  to  Directive  2002/14/EC 
establishing  a  general  framework  for  informing  and  consulting  employees  in  the  European 
Community,  Directive  2001/23/EC  on  transfers  of  undertakings,  and  Directive  98/59/EC  on 
collective  redundancies  (see  Annex  7).  National  legislation  on  information  and  consultation  of 
employees derives from these EU Directives. This initiative does not affect them. 
This  initiative  concerns  Union-scale  undertakings4  and  their  employees  in  the  Member  States. 
Principle 8 of the European Pillar of Social Rights states that "workers or their representatives have 
the  right  to  be  informed  and  consulted  in  good  time  on  matters  relevant  to  them".  The  2021 
Commission  European  Pillar  of  Social  Rights  Action  Plan  underlines,  amongst  others,  that 
information,  consultation  and participation of workers and their representatives at  different  levels 

2  Benefits  of  well-developed  industrial  relations  and  workers’  involvement  during  early  stages  of  restructuring  were 
observed in several Eurofound studies (see Welz C. et al. (Eurofound) (2014) Impact of the crisis on industrial relations 
and  working  conditions  in  Europe;  Demetriades,  S.  et  al.  (Eurofound)  (2016)  Win-win  arrangements:  innovative 
measures  through  social  dialogue  at  company  level)  and  in  the  context  of  the  Covid-19  pandemic  (see  European 
Parliament (2021) European Works Councils. Briefing – European Added Value Assessment, p. 9.). 
3 See, for example, Hübler O. (2015). Do works councils raise or lower firm productivity? IZA World of Labor; Grund 
C.  &  Schmitt  A.  (2011).  Works  Councils,  Wages,  and  Job  Satisfaction.  Applied  Economics,  45;  Mueller  S.,  & 
Neuschaeffer G. (2021). Worker Participation in Decision-making, Worker Sorting, and Firm Performance. Industrial 
Relations: A Journal of Economy and Society, 60(4), 436–478. 
4 Any undertaking with at least 1000 employees within the Member States and at least 150 employees in each of at least 
two Member States (Article 2(1)(a) of the Directive). 

1 

 
 
play  an  important  role  in  shaping  economic  transitions  and  fostering  workplace  innovation,  in 
particular with a view to the ongoing twin transitions and the changes in the world of work.5  

As  a  part  of  a  broader  campaign  for  democracy  in  work  places,  the  Parliament  has  in  its  2021 
resolution on ‘democracy at work: European framework for employees’ participation rights and the 
revision of the European Works Council Directive’ and, in particular, in its 2023 resolution ‘with 
recommendations  to  the  Commission  on  revision  of  the  European  Works  Councils  Directive’, 
called  to  strengthen  the  role  and  capacity  of  EWCs  as  information  and  bodies  in  Union-scale 
undertakings.  European  worker  organisations6  and  the  European  Economic  and  Social 
Committee7 have made similar calls over the past years.  

In  the  State  of  the  Union  2023  Letter  of  Intent  President  von  der  Leyen  announced  that  the 
initiative on rules on EWCs is one of the key priorities of the Commission for 2024, also in the 
view of the recommendations of the Parliament, and of the political commitment expressed in the 
President's Political Guidelines to respond to the resolutions based on Article 225 TFEU with a 
legislative  proposal,  in  full  respect  of  proportionality,  subsidiarity  and  better  law-making 
principles.  
Based  on  Article  153  TFEU,  the  legislative  initiative  on  revision  of  the  Directive  is  subject  to 
consultation  of  European  social  partners.  The  two-stage  consultation  took  place  between  11 
April  to  25  May  2023  (first  stage)  and  between  26  July  and  4  October  (second  stage).  For  a 
synopsis of social partners’ responses in the two-stage consultation, see Annex 2.  

This impact assessment considers results of dedicated evidence gathering,8 the 2018 evaluation9 as 
well as other expert analysis and studies described in Annex 1.  

The initiative is relevant with regard to Sustainable Development Goal (‘SDG’) 8, as transnational 
information  and  consultation  of  employees  can  contribute  to  decent  work.  It  can  also  promote 
SDG 5 by contributing to a balanced gender representation on EWCs. 

2.  PROBLEM DEFINITION 

2.1.Content and objective of the Directive  

The Directive  aims  to  ensure adequate conditions  for employees’ information and consultation  to 
enable  structured  dialogue  between  the  central  management  and  employees  on  transnational 
matters.  It  is  procedural  in  nature.  Its  history  and  content  are  set  out  in  Annex  6.  The  legal 
framework encourages tailor-made solutions and arrangements, defined in agreements between 
the  central  management  and 
the  employee  representatives  as  a  result  of  negotiations. 
Implementation  of  these  arrangements  should  ensure  that  employees  can  exercise  their  right  to 

5 Principle 8 of the  European Pillar of Social Rights states  that "workers or their representatives have  the right to be 
informed and consulted in good time on matters relevant to them". 
6 ETUC Position paper (2017), For a modern EWC Directive in the Digital Era. 
7 Opinion on the package on European company law (2018); Exploratory opinion ‘Industrial transition towards a green 
and  digital  European  economy:  regulatory  requirements  and  the  role  of  social  partners  and  civil  society’  (2020); 
Opinion ‘No Green Deal without a Social Deal’ (2021); Exploratory opinion on Democracy at Work (2022). 
8 ICF(2023) Study exploring issues and possible solutions in relation to the Recast Directive 2009/38/EC on European 
Works Council. Available .online HYPERLINK "https://op.europa.eu/en/web/general-publications/publications"  
9 COM(2018) 292 final (Available online) and SWD(2018) 187 final (Available online). 

2 

 
 
 
 
information  and  consultation  properly  while  also  enabling  the  undertakings  to  take  decisions 
effectively.10   

What are EWCs and how do they function? 

EWCs are established in Union-scale undertakings11 upon a request of at least 100 employees or 
their  representatives  in  at  least  two  undertakings  or  establishments  in  at  least  two  different 
Member States (e.g., Sweden and Denmark), or when initiated by the central management. They 
can  be  set  up  in  accordance  with  the  Directive  in  Union-scale  undertakings  or  groups  for 
undertaking,  regardless  of  whether  their  headquarters  are  in  a  Member  State  or  a  third  country 
(see  Annex  4  for  distribution  of  EWCs  per  country  of  headquarters).  If  headquarters  of  the 
company are located in a third country (e.g., the US), a deemed central management or a central 
management  representative  that  is  located  in  a  Member  State  (e.g.,  Germany)  takes  on  the 
responsibility of the central management for the purpose of the Directive.  

The  Directive  sets  out  a  compulsory  negotiation  procedure  for  establishing  an  EWC.  This 
procedure  entails  the  setting-up  of  a  special  negotiating  body12,  composed  of  employees 
representatives,  which  negotiates  with  the  central  management  an  agreement  on  the  detailed 
arrangements  for  composition  and  operation  of  an  EWC  or  of  an  information  consultation 
procedure (ICP). The Directive sets minimum requirements of the content of EWC agreements or 
ICPs, but  the specific modalities of their  functioning  are  to  be defined by  the special negotiating 
body  and  the  central  management  in  the  agreement.  Where  parties  are  not  able  to  reach  an 
agreement within a time limit specified in the Directive, subsidiary requirements set out in Annex I 
to the Directive apply and created an EWC based on these provisions.13 A vast majority of EWCs 
are  governed  by  an  agreement  signed  between  the  parties.14  The  Directive  defines  minimum 
standards with regard to confidentiality (Article 8), operation (Article 9) and role and protection of 
employees’ representatives (Article 10), that apply in relation to all EWCs and ICPs, regardless of 
whether they are specified in an agreement. Article 10 specifies that the members of an EWC must 
have the means required to apply the rights arising from the Directive to represent collectively the 
interests of the employees.  

EWCs  represent  the  employees  of  the  Union-scale  undertaking  at  EU  level.  The  scope  of 
information  and  consultation  of  EWCs  and  ICPs  within  the  scope  of  the  Directive  is  limited  to 
transnational issues.15 The competence and scope of action of EWCs is thus distinct from that of 
national  representatives  bodies.  Unlike  national  representative  bodies,  EWCs  are  transnational 
employee  representation  bodies,  composed  of  members  representing  the  undertakings  and 
establishments situated in the different Member States. Information and consultation of EWCs is 
obligatory  and  must  be conducted  by  the  central  management  or  any  more  appropriate  level  of 

10 Article 1.  
11 Any undertaking with at least 1000 employees within the Member States and at least 150 employees in each of at 
least two Member States (Article 2(1)(a) of the Directive). 
12 Special negotiating body is a temporary body of employees’ representatives established in accordance with Article 
5(2) of the Directive. In accordance with the principle of subsidiarity, Member States are free to determine the method 
to be used for the election or appointment of the members of the employees’ representatives. 
13  Article  7.  Annex  I  to  the  Directive  lays  down  the  rules  applicable  in  the  absence  of  agreement  between  the 
management and employees representatives concerning an EWC’s establishment, composition and competences. 
14 Only around 20 EWCs are governed by subsidiary requirements at present. See Section 3.1 of Annex 4.  
15 Article 1(3) and 1(4), in conjunction with recitals 15 and 16. 

3 

 
 
the  management  of  the  Union-scale  undertaking  without  prejudice  to  information  and 
consultation procedures at national level in accordance with national law16 and/or practice. 

EWC members communicate with local-level employee representatives and inform them about the 
content and outcome of the consultation. Information provided to the EWC relates to transnational 
issues.  

The requirements of the Directive start applying to the undertakings as a result of a request by  at 
least 100 employees or where the management has initiated such process voluntarily.  There is no 
general  obligation  for  all  Union-scale  undertakings  to  set-up  an  EWC.  This  approach  is  an 
expression of the principle of social partner autonomy, which is a basic tenet of the Directive seen 
by stakeholders as a key feature of effective social dialogue at company level. This initiative does 
not  seek  to  amend  the  voluntary  principle  but  focuses  on  making  transnational  information  and 
consultation more effective in companies where employees have exercised their right to request the 
establishment  of  an  EWC.  This  approach  is  also  consistent  with  the  complementary  nature  of 
EWCs  to  the  obligatory  information  and  consultation  at  national/local  level,  which  remains  the 
primary  form  of  the  involvement  of  employees  affected  by  the  implementation  of  management 
decisions and of information and consultation at company level (irrespective of this initiative).  

2.2.Evaluation of the Directive 

The  2018  evaluation  of  the  Directive  confirmed  its  EU  added  value  and  the  improvements  it 
had  brought  to  the  quality  and  scope  of  information  to  employees.  The  Directive  was 
considered relevant by all stakeholders, and the need for transnational dialogue was acknowledged 
by  social  partners.  The  evaluation  concluded  that  the  Directive  does  not  impose  administrative, 
financial and legal obligations which would constitute an unreasonable burden for companies.  

Nevertheless,  the  evaluation  identified  several  challenges:  the  creation  rate  of  new  EWCs  is 
low17; the consultation of EWCs is sometimes ineffective; EWCs face obstacles in access to courts 
in some Member States; there is a lack of effective remedies and effective and dissuasive sanctions 
in some Member States.18 

In response, as concluded in its evaluation, the Commission acted through non-legislative actions: 
the  continued  financial  support  to  social  partners’  projects,  proposing  a  handbook  for  EWC 
practitioners,19 and engaging in a structured dialogue with Member States on enforcement.20 These 
actions did not resolve the above-mentioned challenges. 

2.3.What is the problem? 

Despite  the  above-described  actions,  shortcomings  continue  to  exist  and  the  information  and 
consultation  of  employees  at  transnational  level  is  not  always  effective  under  the  existing 
EWC framework.  

16 In particular, national laws transposing Directive 2002/14/EC, Directive 98/59/EC and Directive 2001/23/EC. 
17 SWD(2018)187, p. 21-22. 
18 SWD(2018)187, p. 15. 
19  The  work  on  the  handbook  was  put  on  hold  in  April  2019,  following  a  refusal  of  the  EU  level  trade  union 
organisations to participate in a group of experts, which would contribute to it. 
20 The Commission services held a meeting with Member States’ experts with a focus on enforcement and sanctions in 
2019, while an infringement procedure concerning the Irish enforcement system was launched in 2022. 

4 

 
 
 
NB.  In  the  context  of  the  Directive,  ‘effectiveness’  refers  to  the  establishment  of  a  well-
functioning, clear and coherent regulatory framework for the setting up and operation of EWCs 
at transnational level, and to the adequate enforcement of rights to information and consultation 
on transnational matters. Accordingly, effectiveness must be determined in respect of the conditions 
enabling such dialogue between employee representatives and management rather than the degree 
to which companies’ decisions on transnational matters align with EWCs’ opinions. 

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. EWCs remain complementary to the national employee representative 
bodies  (e.g.  trade  union  or  works  councils),  which  may  be  closer  to  the  decision-making  in  the 
company.   

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 (see Annex 2).  

EWCs  are  considered  overall  useful  by  both  employee  representatives  and  managers,  albeit  to  a 
different  degree.  A  majority  of  the  employee  representatives  consider  their  EWC  very  useful  (56 
%) or useful (14 %) for involvement in decision-making, whereas managers consider EWCs mostly 
useful  (36  %)  or  somewhat  useful  (32  %).21  With  regard  to  the  EWCs’  usefulness  in  reducing 
industrial  relations  conflicts  in  the  company,  a  majority  of  employee  representatives  consider 
EWCs very useful (57 %) or useful (13 %). Most managers considered that EWCs are useful (38 
%) or somewhat useful (34 %). 10 % of managers considered them very useful. 

Available  literature  and  studies22  on  the  effects  of  employee  involvement  –  albeit  not  referring 
specifically to EWCs for the most part – corroborate the conclusion that (well-functioning) EWCs 
can deliver tangible added-value in terms of the quality and acceptance of companies’ decisions on 
transnational matters.  

The available evidence nevertheless points to shortcomings regarding the effectiveness  of the 
existing  EWC  framework.  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 
answered  by  management.23  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 some 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. Specifically, as regards: 

21  ICF(2023),  Section  5.1.2.2.  14  %  of  employee  representatives  and  30  %  of  managers  consider  that  EWCs’ 
involvement in decision-making is not useful. 
22 See, e.g., Eurofound (2016), Win–win arrangements: Innovative measures through social dialogue at company level, 
Publications  Office  of  the  European  Union,  Luxembourg;  Pulignano/Turk,  European  Works  Councils  on  the  move: 
management perspectives on the development of a transnational institution for social dialogue, KU Leuven & CESO 
2016.; European Parliament Research Service (2021), European Added Value Assessment on EWCs. 
23 ICF(2023), Section 4.2.1.3.  

5 

 
 
• 

• 

timing  of  the  consultation:  the  Directive  does  not  unambiguously  require  that  EWCs  are 
involved prior to the adoption of management’s decision on transnational matters, which is 
an obvious condition for their effective consultation (see Section 2.4.3); 

lack  of  a  genuine  and  meaningful  dialogue:  the  Directive  does  not  explicitly  require 
management to respond to EWCs’ opinions. Without such a response, consultation remains 
a ‘one-way-street’ rather than a dialogue (see Section 2.4.3); 

•  uncertainty  regarding  the  concept  of  ‘transnational  matters’:  the  current  definition  in  the 
Directive  leaves  scope  for  divergent  interpretations  and  hence  for  disputes  about  the 
applicability  of  the  obligation  to  inform  and  consult  EWCs  on  given  issues  (see  Section 
2.4.3); 

• 

resources:  the  Directive  does  not  require  that  the  coverage  of  certain  key  expenses  be 
specified in EWC agreements; if agreements are mute on such expenses, disputes ensue and 
employees’ representatives can be left  without the necessary means to  fulfil their function 
(see Section 2.4.3); 

•  access  to  justice  and  sanctions:  effective  implementation  of  minimum  requirements  on 
transnational information and consultation depends on the prospect of enforcement if these 
requirements  are  not  respected  (see  Section  2.4.4).  Currently,  as  the  Commission’s  2018 
evaluation  found,  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.  In  response  to  the  findings  of  the  evaluation,  the  Commission  launched  a 
dialogue  with  Member  States  on  their  national  enforcement  procedures24  and  launched 
infringement  proceedings  against  Ireland.25  Neither  of  these  non-legislative  actions  has 
resulted in changes to national rules so far. 

The evidence is based on results of 2018 evaluation, available studies and surveys (see individual 
references),  review  of  national  laws  transposing  the  Directive  and  of  national  case-law,  and 
evidence-gathering activities for this initiative26, including a survey of EWCs and management and 
interviews with various stakeholders.  

Evidence and data limitations 

It needs to be acknowledged upfront that certain key evidence sources are affected by selection-bias 
and  the  risk  of  inaccurate  self-reporting  by  stakeholders.  Throughout  the  various  evidence 
gathering  activities,  this  was  addressed  by  seeking  the  views  of  a  broad  range  of  relevant 
stakeholders  in  addition  to  management  and  EWC  representatives,  such  as  legal  experts, 
representatives of relevant national authorities, European and national social partners. Moreover, 
when  presenting  the  results  of  the  evidence  gathering,  the  sources  of  the  reported  views  are 
systematically stated. Results are not aggregated across different stakeholder groups, in view of the 
polarisation described above.  

Due to the structure of the stakeholder population and the polarisation of their policy views, there 
is a risk of bias also in the literature and other evidence sources on transnational information and 
consultation.  To mitigate the risk of  a skewed evidence base, information from potentially biased 

24 A meeting was held with Member States representatives in autumn 2019. 
25 See a press release. 
26 ICF(2023) Study exploring issues and possible solutions in relation to the Recast Directive 2009/38/EC on European 
Works Council. 

6 

 
 
sources  has  been  cross-checked  with  evidence  from  other  sources  to  ensure  robustness.  The 
respective  data  sources  are  specified  transparently  to  acknowledge  possible  biases.  In  the 
framework  of  the  supporting  study27,  a  set  of  quality  criteria  was  applied  for  the  purposes  of 
identifying and reviewing the key sources of literature. 

See further Section 2 of Annex 4. 

The  problem  concerns  primarily  Union-scale  undertakings  and  their  employees,  including 
employee representatives, although it is not possible to specify the share of undertakings affected 
by the lack of effectiveness of the transnational information and consultation framework. In 2021, 
3676 multinational companies in the EEA came within the scope of the Directive, employing close 
to 30 million employees in the EEA.28 Taking into account the annual growth rate, the estimate for 
2023 is 3,970 eligible companies with a total of 31.7 million employees.29 

31

Of those, EWCs or agreements on transnational information and consultation have been established 
in  around  1000  companies30.  The  estimated  average  number  of  EU  employees  per  undertaking 
with  an  EWC  or  a  voluntary  information  and  consultation  body  is  16.600  (total  population 
estimated  at  16.6  million)  (see  Annex  4).  The  take  up  of  EWCs  has  not  been  identified  as  a 
shortcoming in effectiveness of the legal framework. The evaluation of the Directive
 showed that 
the reasons for the low-take up mainly relate to external factors, such as the fact that some Union-
scale  undertakings  are  headquartered  in  countries  with  a  less  developed  tradition  of  employee 
information  and  consultation  or  a  lack  of  awareness  about  the  instrument,
  changing  company 
structures, existence of  other social dialogue mechanisms deemed to  be  sufficient or the fact  that 
the larger multinational undertakings with most to gain from establishing an EWC had already done 
so.  EWCs  are  more  likely  to  be  established  in  bigger  companies.
  It  is  estimated  that  while  less 
than  30  %  of  eligible  Union-scale  undertakings  have  established  an  EWC,  more  than  50  %  of 
EU/EEA employees of Union-scale undertakings are covered by an EWC. The voluntary nature 
of EWCs will be maintained under this initiative, as well as flexibility allowing social partners 
to  establish  other  procedures  for  informing  and  consulting  workers  than  EWCs.34  To  the 
extent that factors contributing to a low take-up rate are linked to the effectiveness of the Directive, 
such as the possibility for delaying or blocking launch of negotiations of EWC agreement, they are 
addressed by this initiative.  

32

33

27 Ibid. 
28 Eurostat, ad-hoc extraction from the EuroGroups Register.   
29Based  on  data  extractions  by  Eurostat,  annual  growth  rate  of  Union-scale  undertakings  (3.92  %)  and  of  their 
employees (3.42 %). See Annex 4. 
30Source: EWC Database (ETUI, 2023).  
31 See SWD(2018) 187 final, p. 21 et seq. 
32 The Commission is funding, on annual basis, projects raising awareness of transnational information and consultation 
and  promoting  best  practices.  For  2023,  a  budget  of  EUR  2.5  million  was  available  for  this  purpose,  with  the  main 
priority  to  “promote  actions  aimed  at  developing  employees’  involvement  in  undertakings  in  particular  by  raising 
awareness  and  contributing  to  the  application  of  European  Union  law  and  policies  in  this  area  and  the  take-up  and 
development  of  European  Works  Councils”.  The  conception  and  development  of  training  materials  and  courses  for 
EWC members, as well as measures to strengthen the cooperation between employees’ representatives at national and 
transnational level are eligible for funding. 
33 In a sample of eligible companies analysed by Eurofound 2015 study, companies with more than 10,000 employees 
in  the  EU  were  twice  as  likely  to  have  established  an  EWC  than  companies  with  fewer  than  5,000  employees.  (see 
Annex 4 Section 3.1). 
34 Even after introducing a request for an EWCs, employees’ representatives may decide not to seek the setting-up of an 
EWC or the parties may decide on other procedures for the transnational information and consultation of employees (cf.  
Article 5(1) and (5), Article 6(3), recital 31 of the Directive). 

7 

 
 
The  available  evidence  does  not  support  the  conclusion  that  EWCs  are  generally  more  beneficial 
for  undertakings  than  other  types  of  transnational  information  and  consultation  procedures. 
Accordingly,  the  existence  of  such  alternative  procedures  or  arrangements  is  not  identified  as  a 
problem per se. It is however considered to be a problem that by exempting undertakings with pre-
existing agreements from the scope of the Directive, employees in such undertakings are denied the 
right  to  request  the  establishment  of  an  EWC,  unlike  the  employees  of  all  other  Union-scale 
undertakings (see Section 2.4.1).   

This  initiative  focuses  on  improving  the  effectiveness  of  a  specific  aspect  of  the  existing  legal 
framework:  the  EU  level  minimum  procedural  requirements  on  transnational  information  and 
consultation of employees. The defined problem concerns shortcoming in the effectiveness of the 
existing  EWC  framework,  leading  to  unused  potential  of  EWCs  having  the  following 
consequences. 

For  affected  employees,  the  problem  reduces  the  level  of  their  involvement  and  limits  the 
social  dialogue  in  their  company,  for  instance  with  respect  to  the  anticipation  of  company 
developments.  This  might  reduce  their  acceptance  of  change,  and  is  not  conducive  to  shared 
understanding and smooth implementation. Ineffective or lacking dialogue reduces the employees’ 
possibility  to  provide  appropriate  input,  e.g.  on  corporate  restructuring,  and  can  reduce  trust 
between  a  company’s  management  and  its  workforce.  Ultimately,  the  lack  of  genuine  social 
dialogue  can  lead  to  lower  employment  levels  in  the  companies  operating  in  the  EU  (e.g. 
relocation of production outside the EU leading to unemployment), less motivated workforce and 
suboptimal  working  conditions.  When  properly  involved,  EWCs  can  help  achieve  certain 
minimum standards on working conditions when it comes to downsizing and restructuring, such as 
on  site  closures.  As  transnational  bodies,  EWCs  can  provide  views  on  where  production  can  be 
moved  to  mitigate  employee  reductions.  For  example,  an  EWC  provided  decisive  impetus  in 
preventing redundancies when a multinational company's manufacturing plant was shut down in a 
Member State due to low-capacity utilisation as a result of the economic crisis in southern Europe. 
Approximately 50 employees then moved to various other plants in the headquarter country of the 
multinational company via a restructuring plan.35 

For  affected  companies,  the  unused  potential  of  EWCs  may  lead  to  higher  indirect  costs  of 
implementing  measures  in  case  of  corporate  restructuring  (due  to  lack  of  common  understanding 
and lack of compromise solutions); loss of business due to a risk of delays on decision-making and 
decision-implementation  (including  due  to  unclear  obligations  and  disputes);  fines  for  non-
compliance with information and consultation requirements, as well as reputational risk as a result 
of  a  dispute.  Companies  report  that,  when  properly  consulted,  EWCs  are  useful  in  business 
internationalisation and in giving company an understanding of national social dialogue culture in 
the context of newly acquired businesses. Some concrete examples were provided in the evidence 
gathering:  an  EWC  contributed  to  a  stronger  corporate  identity  during  a  merger;  an  EWC  made 
helpful contributions in getting in touch with acquired company representatives and integrating the 
acquired  business  into  the  new  corporate  culture;  an  EWC  helped  local  representatives  to 
understand the situation in the other EU countries.36 

Benefits  of transnational  information  and consultation tend to  be long-term  and indirect  in  nature 
and depend on a number of factors, which are external to the scope of this initiative (i.e. national 

35 ICF(2023), Section 5.1.2.2. 
36 Ibid. 

8 

 
 
 
 
internationalisation  of  corporate  activities, 

industrial  relations  systems,  ownership  structure  and  evolution  of  workforce  and  work  practices, 
the  employee 
external  shocks, 
representatives and the management). These external factors are described in Annex 10. Moreover, 
the Directive sets a procedural framework on transnational information and consultation that leaves 
broad freedom to parties to EWC agreements to tailor the information and consultation process as 
well as accompanying provisions on resources,  training, etc. to  their specific situation and needs. 
These factors make it fundamentally  challenging to quantify/monetise the consequences of the 
problem. 

trust  between 

Geographically,  the  consequences  affect  employees  and  companies  not  only  in  Member  States37 
where the affected EWCs are based (see Annex 4)38, but also in Member States where undertakings 
belonging  to  the  same  group  operate.  While  some  of  the  challenges  are  more  relevant  in  certain 
national legal systems than in others39, 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. 

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  sudden  or  unannounced.  Such  effects  are 
however  difficult  to  estimate,  considering  that  the  EWCs  remain  consultation  bodies  without 
having a prerogative on the management’s decision.  

The below ‘problem tree’ illustrates how the drivers analysed in the following section relate to the 
problem this initiative aims at tackling, and the consequences for different stakeholders.  

37 The Directive applies to EU Member States, and to EEA states via the EEA Agreement. 
38 Most EWCs were established under the legislation of DE, FR, BE, IE, SE, NL, IT. While reliable post-Brexit data are 
not yet available, available information shows that about half of the EWCs (70) formerly based in the UK have moved 
to IE.  
39 About half of Member States have a low number or no EWCs established under their jurisdiction – see Annex 4. 

9 

 
 
 
2.4.What are the problem drivers? 

The four groups of drivers (see problem tree) will be presented below.  

2.4.1  Workers of certain Union-scale undertakings do not have the same minimum rights 
regarding establishment and operation of EWCs 

The  Directive  excludes  from  its  scope  undertakings  with  voluntary  agreements  (323)  or 
Article  14  EWC  agreements  (28),  which  were  concluded  or  revised  during  the  transposition 
period  of  the  Directive.40  These  represents  a  significant  share  of  the  overall  1001  agreements  on 
transnational information and consultation in Union-scale undertakings (see Annex 4). 

Voluntary  agreements,  since  not  concluded  under  Union  law,  do  not  have  to  provide  for  the 
elements  and  rights  as  agreements  concluded  under  the  Directive.  In  contrast,  undertakings  with 
Article 14 EWC agreements are exempt only from the changes brought about by that Directive but 
remain subject to the national provisions implementing the original 1994 Directive. The application 
of the different legal regimes depending on when the agreement was signed  for the first time has 
created  a  complex  and  fragmented  framework  for  the  undertakings  and  different  levels  of 
minimum rights and protection for employees in Union-scale undertakings.41  

Though  the  voluntary  agreements  were  considered  by  most  interviewed  stakeholders  as  equally 
effective  as  those  concluded  under  the  Directive,  trade  unions  have  reported  that  in  some  cases 
these  agreements  no  longer  fit  the  situation  of  the  undertaking,  but  employees  are  not  entitled  to 
make a request for an EWC. Legal experts assisting EWCs state that voluntary agreements, though 
generally effective, are more difficult to enforce in some Member States.42 The different minimum 
standards remain under the same legal instrument,  resulting in unequal treatment between Union-
scale  undertakings  and  their  employees,  more  than  30  years  after  its  initial  adoption.  As  the 
Directive  respects  the  autonomy  of  the  parties  and  provides  enough  scope  to  find  company-level 
solutions, it does not seem justified to shield undertakings with voluntary agreements from requests 
for establishing an EWC in line with the requirements of the Directive.  

Stakeholders’  views:  Trade  unions  consider  that  the  existing  exemptions  do  not  in  some  cases 
ensure  a  level  playing  field  and  legal  clarity,  whereas  employer  organisations  argue  that 
longstanding  information  and  consultation  bodies  in  the  undertakings  covered  by  the  exemptions 
are often particularly effective and characterised by a deep level of trust and cooperation between 
workers’ representatives and central management. In workshops, among EWC representatives, a 
variety  of  experiences  were  reported  with  regard  to  the  voluntary  agreements,  depending  on 
corporate  culture,  on  the  sector  of  activity  and  on  the  governing  legislation  (cf.  Section  3.2  of 
Annex 2). 

40 Data source: ETUI, unpublished analysis, 2023. 
41 The  legislator made a deliberate  choice  in the 1994 and 2009 Directives to exempt undertakings with pre-existing 
agreements from new obligations, in order to stimulate take up of EWCs before these EU rules would enter into force. 
Consequently,  a  possibility  to  request  renegotiation  of  pre-existing  agreements  has  been  limited  to  situations  of 
significant  changes  in  make-up  and  structure  of  the  undertaking  (such  as  mergers,  take-overs  or  acquisitions)  (cf. 
Impact assessment SEC(2008)2166, p. 20 and 50-51). 
42 ICF(2023), Section 5.2.2.3. 

10 

 
 
2.4.2. 

 Not sufficiently efficient & effective setting-up of EWCs and gender imbalance 

The  existing  rules  do  not  adequately  cover  situations  where  the  management  fails  to  take 
action following a request to set up an EWC (see point (i)) and to provide the necessary means 
for the establishment of an EWC (see point (ii)). Also, the gender representation of employees 
in EWCs is overall unbalanced (see point (iii)).   

i) Delays in setting up of Special Negotiating Bodies (SNBs): The Directive contains deadlines for 
the  process  of  the  setting  up  of  an  EWC.  Where  the  central  management  refuses  to  commence 
negotiations  within  six  months  of  the  request  to  establish  an  EWC,  an  ad-hoc  EWC  based  on 
subsidiary requirements shall be created.43 The provision can create legal uncertainty where the 
management  did  not  explicitly  refuse,  but  at  the  same  time  did  not  enter  into  negotiations. 
Such situations have to be resolved through national proceedings44, which can be lengthy or even 
not  accessible  in  some  Member  States  (see  Section  2.4.4.),  or  for  which  workers  may  lack 
resources.  In  the  evidence  gathering,  the  majority  of  EWC  representatives  and  managers  (64  % 
overall) did not know or preferred not to answer a question about the length of setting up of their 
SNB. Those who provided information about the interval between the initial request and the set up 
of an SNB indicated that it exceeded six months in more than half of the cases.45   

ii) Lack of sufficient resources: The Directive provides that expenses related to the setting up of the 
EWC shall be borne by the central management, without limiting this obligation to certain types of 
cost.46 SNBs shall have in particular access to expertise47 and necessary training without a loss of 
wages.48 There is a consensus that costs, including the cost of training, are not to be borne by the 
employee  representatives  themselves.49 Uncertainties  however  exist  over  the  coverage  of  costs 
related to potential legal disputes. Solely in the NL legislation is coverage of such costs explicitly 
mentioned in the national transposing provisions. In other Member States, this aspect is not defined 
and this can lead to disputes or refusal to provide resources to the SNB.50  

In the evidence gathering,51 56 % of employee representatives stated to have experienced problems 
in  setting  up  of  an  EWC  (compared  to  4  %  of  management).  Of  those,  42  %  cited  a  lack  of 
expertise.  

iii)  Gender  imbalance  in  the  composition  of  EWCs:  The  Directive  provides  that  gender  balance 
shall be reflected in the composition of EWCs.52 Available evidence suggests that the Directive’s 
requirement  to  negotiate,  where  possible,  a  balanced  composition  of  EWCs  with  regard  to 
their gender is not effective in achieving an equal representation of men and women as the gender 

43 Article 7(1). Currently, ca 2% (=20) of EWCs are established under subsidiary requirements. 
44 For example a German ruling of 15.07.2016, Groupon, Arbeitsgericht Berlin – 26 BV 4223/16 (First instance). See 
further Annex 9.  
45 ICF(2023), Section 4.2.1.2. This reflects answers from the EWC representatives and the management.  
46 Article 5(6).  
47  Representatives  of  recognised  trade  union  organisations  may  act  as  experts  and  advise  workers’  representatives 
during  the  process.  Member  States  may  lay  down  budgetary  rules  regarding  the  operation  of  the  SNB  and  may  in 
particular limit the funding to cover one expert only. 
48 Article 10(4). 
49 Report of the Group of Experts (Commission)(2010). Implementation of Recast Directive 2009/38/EC on European 
Works Councils – Report of the Group of Experts, p. 44.  
50  In  2019,  the  UK  Central  Arbitration  Committee  (CAC)  considered  that  the  employer  should  pay  the  legal  fees 
incurred in relation to the proceedings (see further Annex 9). 
51 ICF(2023), Section 4.2.1.2. 
52 Article 6(2)(b). 

11 

 
 
composition  of  the  EWCs  is  strongly  skewed  in  favour  of  men.  Insufficient  representation  of 
women  in  bodies  such  as  EWCs  might  contribute  to  gender-specific  issues  or  consequences  not 
being  adequately  considered  in  the  corporate  decision-making  process  or  that,  conversely, 
information  relevant  to  women employees might  not  be disseminated effectively  among  them.  In 
the 2023 ICF survey, 62 % of respondents indicated that men account for more than 60 % of their 
EWC  members.  A  mere  2  %  reported  the  same  for  women.  24  %  of  respondents  said  that  each 
gender was equally represented in their EWC.53 Female EWC members are less likely to be found 
in more senior functions.54  

Stakeholders’ views: Trade unions submit that it is not uncommon for the central management to 
delay  the  establishment  of  the  SNB  and  underline  the  importance  of  guaranteeing  support  by 
recognised  trade  union  organisations’  experts  to  SNBs  and  EWCs  and  their  select  committees. 
Employer  organisations,  on  the  other  hand,  consider  that  the  provisions  on  the  setting-up  of 
EWCs  work  satisfactorily.  In  the  evidence  gathering,  stakeholders  generally  acknowledged  the 
issue of imbalanced gender composition of EWCs, in particular in male-dominated industries like 
manufacturing and construction where EWCs have been set up most frequently. 

2.4.3.  Obstacles to the effective operation of EWCs 

Depending  on  the  level  of  detail  of  agreements,  there  can  be  unclarity  what  constitutes  a 
transnational  matter  on  which  the  EWC  should  be  consulted  on  (see  point  (i))  and  at  which 
moment in relation to which decision of management. The EWC opinion can also remain without 
a  follow-up  (see  point  (ii)).  EWCs’  capacity  to  deliver  an  opinion  is  sometimes  limited  due  to  a 
lack  of resources or expertise  (see point  (iii))  or  due to an excessive  use of confidentiality or 
non-disclosure clauses by the management (see point (iv)). 

(i) Legal uncertainty regarding the concept of transnational matters: EWC competence is limited to 
transnational matters. This distinguishes them from national bodies under other directives.55  

The  2018  evaluation  concluded  that  the  concept  under  Article  1(4)  has  been  implemented  in  all 
Member  States  (see  Annex  8)  and  though  it  is  better  defined  in  the  Directive,  it  often  remains 
difficult for EWC practitioners to interpret in concrete cases.  The feedback from European social 
partners during the evaluation revealed: difficulties in some cases over how to interpret the notion 
of  transnationality;  and  some  confusion  over  the  notion  of  transnationality  due  to  the  strategic 
nature of certain decisions, stock exchange rules and the difficulty of determining if certain matters 
qualify as transnational.  

During  the  evidence  gathering,  both  employee  representatives  and  managers  identified 
disagreement  over  the  concept  of  transnational  matters  as  one  of  the  main  sources  of 
problems  in  the  information  and  consultation  process.56  A  too  narrow  interpretation  of 
‘transnationality’ limits the effectiveness of the EWC. On the other hand, a too broad interpretation 

53 ICF(2023), Section 5.1.2.1. 
54 ETUI survey of EWC and SEWC representatives (2018). Overview published online.   
55 In particular: Directive 2002/14/EC, Directive 98/59/EC, Directive 2001/23/EC. 
56 ICF(2023), Section 4.2.1.3.  

12 

 
 
can  lead  to  interference  with  the  competences  of  the  national  workers’  representatives  or  to  an 
unjustified additional material and financial burden on the employer.57 

Despite  some  existing  good  practices,  such  as  the  inclusion  of  a  transnationality  clause  with 
detailed  criteria  in  the  agreement,  around  36%  of  EWC  representatives  reported  frequent 
discussions  with  management  on  whether  or  not  an  issue  is  transnational.58  In  the  evidence 
gathering, 43% of employee representatives and 28% of management representatives said that they 
had experienced problems related to the definition of transnational issues. Some managers consider 
it challenging to keep EWCs as a transnational forum, as employees’ representatives tend to bring 
up local  issues at  the EWC meetings.59 Case-studies60 indicate  that a shared understanding  of the 
issues within the scope of EWC has developed over time in some cases, but there are still instances 
where  EWC  representatives  perceive  management's  interpretation  of  transnationality  to  be  too 
narrow. 

Examples  of  different  interpretations  and  disputes  around  the  concept  of  transnational  matters  is 
reflected also in national case law (see Annex 9). 

(ii) Genuine exchange of views does not take place in all cases: Two key weaknesses in relation 
to  the  exchange  of  views  between  the  central  management  and  the  EWC  have  been  highlighted 
during  the  evidence  gathering:  the  timing  of  the  consultation  and  the  follow  up  to  the  EWC 
opinion.  

The  2018  evaluation  reported  a  vast  majority  of  EWC  agreements  reflected  the  Directive’s 
definition  of  consultation.  Some  contain  additional  provisions  such  as  a  list  of  information  to  be 
provided  or  an  extensive  list  of  subjects  for  consultation.  In  the  evaluation,  most  social  partners 
considered  that  the  Directive  improved  the  legal  framework  for  the  information  and  consultation 
process.61 However, the evaluation recognised that in some cases the consultation remains only a 
formal step rather than an opportunity to seek and consider a substantive opinion from the EWC.62  

The timing of the consultation of the EWC depends on the specific agreement. Based on the 
evidence  gathering,  it  is  estimated  that  approximately  42%  of  EWC  agreements  contain  at  least 
some  rules  on  the  timing  of  consultation.  Late  consultation  has  nevertheless  been  reported  as  the 
most  frequent  problem  experienced  by  EWCs  in  relation  to  the  consultation  procedure.63  Only  a 
small proportion (ca 20 %) of consultations takes places before the decision on the relevant issue is 
finalised,  whereas  in  most  cases  the  consultations  are  carried  out  before  or  close  to  the 
implementation  of  the  management’s  decision  (44%  before  and  19%  during  the  implementation 
process).  Close  to  10%  of  EWC  representatives  report  that  they  were  informed  and/or  consulted 
only after the implementation of the relevant decision.64 The later the consultation of the EWC 

57 The Impact assessment for the recast Directive stressed that “the potential risk of bringing up local issues at European 
level  (with  a  subsequent  increase  in  the  number  of  meetings  and  the  associated  costs)  where  decision-making  is 
centralised would nevertheless need to be avoided” (SEC(2008)2166, p. 54). 
58 ETUI survey of EWC and SEWC representatives (2018). Overview published online.   
59  ICF(2016)  Evaluation  study  on  the  implementation  of  Directive  2009/38/EC  on  the  establishment  of  a  European 
Works Council, p. 96. Available online. 
60  Turlan,  F.,  Teissier,  C.,  Weber,  T.,  Kerckhofs,  P.,  &  Rodriguez  Contreras,  R.  (Eurofound)  (2022)  Challenges  and 
solutions: Case studies on European Works Councils. Available online. 
61 SWD(2018) 187 final, p. 26. 
62 SWD(2018) 187 final, p. 27-28. 
63 ICF(2023), Section 5.1.2.3. 115 (91 %) out of 126 employee representatives who had experienced problems with the 
consultation procedure raised the issue of the timing of the consultation (“too late, after the decision has been taken”). 
64 ETUI survey of EWC and SEWC representatives (2018), op.cit.  

13 

 
 
takes  place  in  relation  to  the  management’s  decision,  the  less  effective  the  consultation  is 
considered to be by the respondents.  

For  employers,  the  timing  of  information  and  consultation  is  closely  linked  to  the  issue  of 
confidentiality  (see  point  (iv)  below).  Managers  have  reported  that  the  modes  and  timing  of  the 
information  provided to  employee  representatives can vary, depending  on the  company’s need to 
fulfil  stock  market  requirements.  In  most  cases,  information  is  provided  when  it  is  official  and 
certain. The need to be certain is used to justify the timing of the release of information, which, in 
most  cases,  is  ‘just  a  little  before’  or  ‘at  the  same  moment’  as  the  formal  announcement  of 
restructuring, and it is always in accordance with confidentiality rules.65 

The  Directive  leaves  discretion  to  the  parties  to  the  agreement  to  decide  on  how  the  EWC 
opinion  is  to  be  followed  up.  Where  no  EWC  agreement  has  been  concluded,  subsidiary 
requirements  (set  out  in  Annex  I  of  the  Directive)  oblige  the  management  to  provide  a  reasoned 
response  to  any  opinion  that  the  EWC  might  express.  This  requirement  is  not  obligatory  in  the 
EWC  agreements  concluded  under  Article  6,  so  it  exists  only  in  some  of  them.  In  the  evidence 
gathering,  46  %  respondents  to  the  survey  said  that  their  agreement  contained  an  obligation  on 
management  to  give  a  reasoned  response  and  33%  said  that  it  contained  an  obligation  on 
management to take account of the EWC's opinion.66  

(iii)  Insufficient  resources  and  subsidiary  requirements  for  EWCs:  The  Directive  provides  that 
EWC agreements must include information on the financial and material resources allocated to the 
EWC.67 A vast majority of agreements, including the voluntary (pre-Directive) agreements indeed 
include clauses on coverage of expenses.68 Most agreements contain provisions on the EWC’s right 
to solicit expert advice69 and right to training.70  

Nevertheless, during the 2018 evaluation, employee representatives reported a lack of resources and 
expertise as one of the shortcomings of the information and consultation procedure. In the evidence 
gathering,  access  to  external  expertise  and  coverage  of  legal  costs  were  mentioned  by 
stakeholders  as  aspects  that  would  benefit  from  more  legal  certainty.  Employee  representatives 
confirmed that the involvement of external experts is essential, especially during restructuring, and 
that  budget  constraints  hinder  their  ability  to  operate  effectively  on  all  levels.  Management 
representatives, on the other hand, expressed concern about incurring unnecessary costs.71 Based on 

65 Pulignano V. et al. (2016) op.cit., p. 40-41. 
66  ICF(2023),  Sections  4.2.1.3.  and  5.1.2.3.  These  responses  include  responses  both  from  the  management  and  the 
employee representatives regardless of the type of agreement (including pre-Directive agreements). 
67 Article 6(2). 
68 According to the 2016 KU Leuven study, 95 % of EWC agreements  provide that the company will cover the basic 
expenses  of  EWC  activity,  such  as  travel  and  accommodation  costs,  administrative  assistance  and  communication 
facilities linked to the operation of the EWC (Pulignano V. et al. (2016) op.cit., p. 53). Similarly, a 2015 ETUI study 
revealed that 74% agreements provide a general statement of cost coverage – complemented by some specific mentions 
of  various  costs  covered  –  while  the  remaining  26%  have  a  limited  list  of  expenses  covered  (De  Spiegelaere  S., 
Jagodzinski R. (2015), op. cit., p. 40.). Provisions guaranteeing independent financial resources have been introduced in 
some EWC agreements, but this seems to be very rare. 
69 Based on the ETUI EWC database, almost 70% of EWC agreements contain provisions on the EWC’s right to solicit 
expert advice, with over 80% of these agreements providing for the  choice of an independent external expert, around 
18%  referring  to  an  in-company  and/or  independent  expert,  and  less  than  2%  allowing  only  for  support  by  an  in-
company expert. 
70 De Spiegelaere S. (2016) op.cit., p. 54. In 2016, the right to training was included in 58 % of the agreements signed. 
In the same year, two thirds of employee representatives reported having attended training in the past three years. 
71 ICF(2023), Section 4.2.1.3. 

14 

 
 
available data, among EWCs with access to  external support on a continuous basis 68% of EWC 
agreements provide access to one expert, 27% to two, and 5% to three or more.72   

Regarding  the  coverage  of  legal  costs  (court  fees  or  costs  of  a  legal  representation  in  case  of  a 
dispute), no Member State lays down an explicit requirement for a dedicated budget or coverage of 
such  costs,  although  these  costs  are  in  principle  part  of  the  operating  expenses  of  EWCs.73  This 
creates  legal  uncertainty  and  can  give  rise  to  disputes  on  access  to  resources.  Such  disputes  are 
difficult to quantify, as they are not generally reflected in court cases.74 Some indications about the 
lack of resources stem from a previous survey,75 in which ca. 17 % of those EWC representatives 
who  had  experienced  a  dispute  stated  that  the  lack  of  resources  was  a  reason  for  not  bringing  a 
dispute before a court. Nevertheless, mostly other reasons were given for not initiating a legal case 
(see Section 2.4.4.).  

For  EWCs  operating  without  an  agreement  the  subsidiary  requirements  provide  that  operating 
expenses shall be borne by the central management in order to enable EWCs to perform their duties 
in  an  appropriate  manner  (e.g.  cost  of  meeting  organisation,  of  interpretation,  of  accommodation 
and  travelling).  While  the  number  of  EWC  operating  on  subsidiary  requirements  is  low76, 
subsidiary requirements serve as benchmark in negotiations of EWC agreements and their impact 
goes  beyond  EWCs  based  on  subsidiary  requirements.  The  Parliament  and  trade  unions  have 
criticised  that  certain  rights  under  subsidiary  requirements  are  insufficient,  namely,  a  lack  of 
clarification of the coverage of legal costs in case of disputes77 and a requirement for one plenary 
meeting per year. Survey data shows that EWCs with multiple plenary meetings per year are more 
likely to consider those meetings effective as a means of consultation.78  

Regardless of whether an EWC operates on basis of an agreement or subsidiary requirements, the 
Directive provides that EWC members shall have access to training without loss of wages. There 
is  a  consensus  among  stakeholders  that  under  the  existing  rules  costs  are  not  to  be  borne  by  the 
employee  representatives  themselves.79 Nevertheless,  the  2018  evaluation  reported  that  among 
those who requested training, some 20 % reported obstacles created by management, while a large 
majority of EWC members noted that there had been no particular challenges in securing it.  

(iv)  Confidentiality  imposed  disproportionately  can  create  obstacles  to  effective  information  and 
consultation:  In  the  2018  evaluation,  workers’  representatives  cited  extensive  use  of 
confidentiality  clauses  as  one  of  the  shortcomings  in  implementation  of  information  and 
consultation processes in practice.80 The scale  of or reasons  for the issue were not  identified in 

72 Source: ETUI EWC Database (data available as of June 2023). 
73 SWD(2018) 187 final, p. 34. Some Member States have introduced statutory release from court fees for EWCs (AT, 
LT, ES, BG, FR, DE, RO, SE, NL) and others have introduced a general regulation concerning the operating costs of 
EWCs. The latter is the case in the vast majority of the Member States. See Annex 8. 
74 Overall, only a low number of cases concerning EWCs have been brought before the national courts. See Annex 9. 
75 ETUI survey of EWC and SEWC representatives (2018), op.cit. 
76 As of the 1st quarter of 2023, ETUI database records 20 EWCs based on subsidiary requirements. See Annex 4. 
77 For EWCs operating under subsidiary requirements, HU and NL specify that funding of EWCs extends to assistance 
from legal experts and covers legal costs (see Annex 8). 
78  Data  extracts  from  ETUI  survey  of  EWC  and  SEWC  representatives  (2018),  op.cit.  Specifically,  there  is  a  clear 
correlation  between  having  more  than  2  plenary  meetings  per  year  and  a  better  perceived  effectiveness  of  such 
meetings. This data includes all types of EWCs, including those operating on basis of agreements. Approximately half 
of EWCs have one plenary meeting per year, 38 % have two plenary meetings and 10 % have three or more plenary 
meetings per year.  
79 Group of Experts (Commission)(2010) op.cit., p. 44.   
80 SWD(2018) 187 final, p. 27-28. 

15 

 
 
the  evaluation,  but  available  research  indicates  that  when  confidentiality  issues  do  arise,  they  are 
more  likely  to  occur  in  larger  companies  and  in  companies  based  in  liberal  market  economies, 
where social dialogue at company level is more prominent.81 

Member States determine rules for the protection of confidential information within the limits set 
by  the  Directive.82  About  half  of  Member  States  apply  stricter  conditions  for  application  of 
confidentiality clause than those in the Directive and limit the possibility of applying confidentiality 
to business and trade secrets, or require that confidentiality is justified by a legitimate interest of the 
undertaking  (see  Annex  8).83  In  the  remaining  Member  States,  undertakings  are  provided  with  a 
wide discretion, in  accordance with  the existing  rules, to  impose  confidentiality  to protect  further 
circulation of information disclosed to EWCs.  

Around 87% of EWC agreements  contain provisions on confidentiality.84 In spite of the  fact  that 
overall few legal cases concerning alleged abuse of confidentiality clauses have been reported,85 in 
the 2018 ETUI survey over 39% of responding EWC representatives replied that management often 
refuses  to  give  information  due  to  confidentiality,  compared  to  around  34%  who  disagreed  or 
‘absolutely disagreed’ with that statement.86 

In the evidence gathering,87 49% of employee representatives (and 4% of managers) said that the 
use of confidentiality effectively limits or prevents meaningful consultation, and 15% of managers 
(and  3%  of  employee  representatives)  believe  that  consultation  involves  the  risk  of  disclosure  of 
confidential company information. In the evidence gathering workshops, both EWC members and 
managers  highlighted  the  importance  of  striking  a  balance  and  keeping  an  open  and  transparent 
discussion. 

On  management’s  side,  confidentiality  is  an  ongoing  concern  for  companies  listed  on  the  stock 
exchange,  principally  because  a  trade-off  exists  between  confidentiality  and  the  timing  of 
information and consultation.88 

Stakeholders’ views: Trade unions consider that the Directive does not ensure enough legal clarity 
on essential consultation requirements, such as the need to have sufficient time to carry out an in-
depth assessment and prepare an opinion or ensuring a proper follow-up to the EWC opinion. They 
state  that  the  confidentiality  clause  is  often  misused  by  the  management.  They  also  submit  that 
EWCs  are  not  assured  sufficient  resources  (covering  e.g.  expert  advice,  training  or  legal  costs), 
which hinders their ability to engage effectively in information and consultation processes, and that 
there  are  often  disagreements  with  central  management  about  the  scope  of  transnational  matters. 
Employer  organisations  consider  that  the  current  concept  of  transnational  matters  is  fit  for 

81 ICF(2023), Section 4.2.1.3., and sources quoted therein. 
82 Article 8 of the Directive. See Annex 6. 
83  Analysis  by  European  Centre  of  Expertise  in  the  field  of  labour  law,  employment  and  labour  market  policies 
(ECE)(2023), unpublished.  
84 ETUI EWC database. 
85 For example: Central Arbitration Committee (UK), Verizon, decision of 9 October 2019, No EWC/22/2019. Central 
Arbitration Committee (UK), Oracle, No EWC/17/2017, para 87 (see Annex 9). 
86 Data extracts from ETUI survey of EWC and SEWC representatives (2018), op.cit. 
87  ICF(2023),  Section  4.2.1.3.  Responses  to  this  question  were  received  from  90  employee  representatives  and  13 
managers. 
88 Pulignano V. et al. (2016) op.cit., p. 28-31. In the context of that study, only few interviewed managers reported that 
no  solution  had  been  found  to  the  question  of  confidentiality  that  was  acceptable  to  management  and  EWC 
representatives.  The lack of solution occurred in companies where adversarial relations existed between management 
and EWC representatives and/or there was a marked heterogeneity in expectations among the EWC representatives. 

16 

 
 
purpose and does not cause any disputes in practice beyond what can reasonably be expected in any 
corporate  setting.  They  state  that  many  EWC  agreements  either  already  provide  for  specific 
timeframes for information and consultation procedures and a formal response by management to 
EWC  opinions.  Employers  consider  that  the  existing  obligations  to  reimburse  the  trips, 
accommodation,  paid  leave  for  employee  representatives,  and  translation/interpretation  costs 
already puts a heavy financial burden on them.  

2.4.4. Shortcomings in enforcing the Directive 

The Directive contains provisions on enforcement in accordance with general principles of Union 
law, respecting the procedural autonomy of the Member States. Insufficient access to justice and 
lack of remedies (point (i)), as well as ineffective penalties and sanctions for non-compliance in 
some Member States (point (ii)) prevent effective enforcement of workers’ rights and contribute to 
the problem of ineffective information and consultation of EWCs.  

(i)  Insufficient  access  to  justice  and  lack  of  effective  remedies  in  some  Member  States: 
Weaknesses have been identified in some Member States as regards the capacity of employees 
and  their  representatives  to  launch  legal  proceedings,  either  due  to  the  lack  of  resources  or 
because  the  national  legal  regimes  do  not  provide  a  capacity  of  EWCs  or  SNBs  to  bring  a  legal 
action  before  a  court.  Some  legal  regimes  also  limit  the  types  of  disputes  or  infringements  of 
rights that can brought to court. 

The  2018  evaluation  revealed  a  variety  of  situations  in  Member  States  regarding  the  capacity  of 
EWCs to access the courts and noted overall weaknesses in the means in place allowing EWCs to 
enforce  their  rights.89  The  evaluation  reported  that  there  is  no  consistent  practice  across  Member 
States as to whether EWCs have the legal status to bring an action before the national courts and the 
capacity  of  EWCs  to  seek  legal  redress  varies  across  Europe  and  often  depends  on  trade  unions’ 
capacity to act.90  

There is evidence that access to justice is more difficult in some countries than others (see Annex 
8). The Commission received complaints describing a lack of access to justice in IE, against which 
the Commission launched infringement proceedings in May 202291, and FI. It should be noted that 
around half of Member States (those with few or no EWCs established under their jurisdiction; as 
described in Annex 4) generally lack experience in enforcement of the Directive under their laws.92  

In  the  evidence  gathering93,  13.7  %  respondents  said  there  was  no  access  to  a  court  to  enforce 
EWC-related rights in their respective Member State. Other reasons regularly mentioned by EWC 
representatives  for  not  taking  a  matter  to  court  were  risk  of  damage  of  mutual  trust  with 
management (28.1%), uncertain outcomes (25%), lengthy judicial proceedings (20.3%), no clarity 

89 COM(2018) 292 final, p. 6-7. 
90 SWD (2018) 187 final, p. 34-36. 
91 Section 10 of the press notice. 
92 160 national court cases have been identified since 1995 until the first quarter of 2023. Source: ETUI database. Per 
Member State, EWC-related cases were decided by the courts in FR (50), DE (32), UK (29), ES (14), BE (10), NL (7), 
AT (4), CZ, RO and IT (3), SE (2), SK, LU, NO (1). Source: ETUI database. 
93 ICF(2023), Section 4.2.1.4.   

17 

 
 
 
 
on how to take a matter to court (18.8 %), lack of effective remedies (15.6%), not enough financial 
resources (14.1%), not clear choice of competent court (10.9%).94 

(ii)  Ineffective  pecuniary  sanctions  /  sanctions  for  non-compliance  in  some  Member  States: 
Furthermore,  in  a  number  of  Member  States,  there  are  no  effective  financial  penalties  and 
sanctions for non-compliance with national rules transposing the Directive. 

The  2018  evaluation  highlighted  significant  differences  in  the  type  and  level  of  sanctions 
available in Member States.95 Employee representatives stressed that differences in the level and 
scope  of  sanctions  set  at  national  level  are  an  obstacle  to  effective  redress  and  an  insufficient 
incentive for the respect of EWC rights.96 The evaluation concluded that, in many cases, the nature 
and  level  of  sanctions  are  not  effective,  dissuasive  and  proportionate.  As  mentioned  under  the 
previous point, lack of effective remedies and sanctions discourage  the employees representatives 
from bringing serious disputes to a court in around 15 % of cases. 

In most Member States, sanctions usually consist of a pecuniary sanction imposed on the employer. 
A  comparison  between  the  concrete  upper  thresholds  in  national  systems  shows  a  significant 
difference in levels of penalties, also reflecting the diversity of the legal procedures and practice in 
the  Member  States  more  broadly.97  Only  few  Member  States  do  not  rely  solely  on  penalties  to 
provide for an effective remedy. For example, the French courts have granted in some cases cease 
and desist orders and obliged companies to comply with the information and consultation rules.98 
(See further Annexes 8 and 9.) 

Stakeholders’ views: Trade unions highlight insufficient access to justice and ETUC attributes the 
low litigation level to the obstacles of EWCs to access the courts. They consider that the remedies 
and  sanctions  guaranteed  by  the  Directive  are  not  sufficiently  effective.  In  contrast,  employer 
organisations do not attribute the shortcomings regarding access to justice, sanctions or remedies 
to the Directive, but to the incorrect transposition of the EU law by certain Member States. They 
submit  that  the  existing  sanctions  are  sufficient  and  effective.  BusinessEurope  argues  that  the 
limited number of court cases is not because EWCs lack the means to go to court but because most 
of them work satisfactorily.   

94 Similar results were recorded in the 2018 ETUI survey of EWC and SEWC representatives,  op.cit. In that survey, 
15.7%  of  EWC  members  said  to  have  had  a  serious  conflict  with  management  over  the  functioning  of  the  EWC 
between 2015–2018. Court action was taken in 16% of these cases. Reasons for not going to court included:  the low 
importance of the issue itself (ca. 36 %), afraid of consequences (ca. 26 %), trade union advised not to go to court (ca. 
20 %), no sufficient resources (ca. 17 %), unclarity how to proceed (ca. 13 %), sanctions deemed to small (ca. 11 %), 
no consensus within the EWC (ca. 7 %), other reasons (17 %). 
95 SWD(2018)187 final, p. 33-36, 57-63. 
96 Ibid. 
97 Generally, sanctions for administrative infractions apply to EWC-related breaches. In most cases, sanctions provided 
under national laws remain low, the average range being around 5.000-10.000 EUR. Upper limits to sanctions are quite 
common  (the  maximum  scale  ranging  from  a  few  hundred  EUR  to  187.500  EUR  (ES).  In  DE,  the  maximum 
administrative fine is 15.000 EUR, although more severe criminal sanctions (pecuniary or custodial) are theoretically 
also available. Elsewhere, stricter sanctions (e.g. up to 800.000 in BE) or prison sentences may theoretically be imposed 
in criminal law proceedings. Such sanctions have not in practice been applied to EWC-related offences.   
98 In a  judgment of 19 November 2020 (case no 20/06549), the  French  Cour de Cassation upheld the suspension of 
operations of undertakings on the grounds of a violation of EWCs’ information and consultation rights.  

18 

 
 
2.5.How likely is the problem to persist? 

It  cannot  be  excluded  that  future  clarifications  by  the  Court  of  Justice  of  the  European  Union 
(CJEU) could help mitigate certain of the issues described above, for instance by interpreting the 
notion of consultation as including a requirement for a written response from management; but  it 
seems unlikely that the CJEU will in the baseline scenario play a significant role in clarifying the 
issues outlined above considering that, due to the low level of litigation at national level, no cases at 
all have been yet referred to the CJEU for a preliminary ruling in relation to the 2009 Directive. 

In  absence  of  future  clarifications  by  the  CJEU  or  in  the  absence  of  EU  action,  the  above 
described drivers are likely to persist, although the driver related to the scope and coverage of the 
Directive (see Section 2.4.1.) could gradually become less relevant, through a gradual dissolution of 
pre-Directive agreements (e.g. due to restructuring) and through setting up of new ones under the 
current  rules.  This  process  would  however  be  slow  and  unsystematic,  since  the  pre-Directive 
agreements  can  provide  for  clauses  allowing  them  to  stay  in  force  even  when  the  undertaking 
changes significantly its structure. The risk is then that the agreement no longer corresponds to the 
needs of the restructured undertaking.  

For the remaining drivers, there are no indications or trends which would lead to the conclusion that 
the existing problems may resolve. 

It  is  not  expected  that  the  drivers  would  be  addressed  by  the  individual  Member  States. 
Considering its transnational and procedural nature, very few Member States have adopted national 
legislation  going  beyond  the  prescriptive  norms  of  the  Directive.  Where  the  Directive  leaves 
autonomy to the Member States to define their rules or procedures (such as enforcement procedures 
and  sanctions),  Member  States’  laws  differ  according  to  their  industrial  relations  regimes  and 
existing administrative and judicial structures (see Section 2.4.4.).  

The  increasing  transnational  character  of  economic  activities,  companies  and  restructuring 
processes  are intensifying the need for proper information  and consultation at  transnational  level. 
Certain problem issues could be partly mitigated through digitalisation. For instance, the use 
of digital working methods can allow for efficient solutions in EWCs’ access to training and ad hoc 
meetings, as evidenced during the Covid 19 pandemic.  

Despite these trends, given the context of increased internationalisation and challenges demanding 
quick management decisions (e.g. due to pandemic, energy crisis), there is a risk of an increasing 
gap  between  employees’  needs  and  expectations  regarding  transnational  information  and 
consultation, and the actual operation of EWCs.  

3.  WHY SHOULD THE EU ACT? 

3.1.Legal basis 

The Directive was adopted under Article 137 of the Treaty establishing the European Community. 
In the current Treaty framework, the appropriate legal basis for a revision of the Directive is 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.  In  this  field,  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’ 

19 

 
 
 
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.99 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 another guiding principle for this initiative. 

3.2.Subsidiarity: Necessity of EU action 

Only  an  EU  initiative  can  set  common  rules  on  information  and  consultation  of  workers  at 
transnational level within the EU. The identified problem drivers (see Section 2) are closely linked 
to the coverage and content of the obligations under the Directive and create effects in companies 
and their workers across the EU.  

Common minimum requirements at EU level remain necessary to improve workers’ right to 
information and consultation at transnational level across all Member States.100 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.  Challenges  which  reduce  the  effectiveness  of  workers’  right  to  transnational 
information and consultation must be addressed at EU level, in particular where they relate to the 
scope and substance of information and consultation requirements under EU law.  

Given  the  transnational  nature  of  EWCs,  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). 
As described in Section 2.3., in geographic terms, the effects of the problem materialise not only in 
the Member State where the EWC is based, but also in all those were undertakings belonging to the 
same  group  operate.  No  Member  State  can  thus  be  excluded  from  the  outset.  Consequently,  EU 
action  is  needed  to  clarify  and  further  develop  the  minimum  standards  that  apply  to  all 
multinational undertakings of a certain size operating in the EU.  

3.3.Subsidiarity: Added value of EU action 

The  specific  EU  added  value  lies  in  the  establishment  of  minimum  standards,  below  which 
Member States cannot compete on the single market. These contribute to upwards convergence in 
employment  and  social  outcomes  between  Member  States,  whose  economies  and  labour  markets 
are increasingly interlinked.  

By  reinforcing  the  effectiveness  of  the  existing  minimum  requirements  for  EWCs,  the  initiative 
aims to create  a simplified and more  consistent legal  framework regarding the minimum  level  of 
protection of workers. EWCs’ potential should be fully exploited in the current context of the twin 
digital and green transitions  and profound industrial  transformations,  bearing in  mind the need to 
avoid  unnecessary  burdens,  preserve  competitiveness  and  the  ability  of  undertakings  to  react  to 
rapidly changing market circumstances, and the need to ensure adequate working conditions. 

99 The legal basis for an EU instrument on co-determination is Article 153(1)(f). This legal basis requires adoption by a 
special legislative procedure (Article 153(2)).  
100 Recital 45 of the recast Directive. 

20 

 
 
 
 
 
 
 
These considerations are consistent with the 2021 European Added Value Assessment prepared by 
the Parliament in support of its legislative own-initiative resolution on a revision of the Directive. 
That  assessment  concluded  that  in  the  future,  more  systematic  information  and  consultation  of 
workers  at  transnational  level  could  lead  to  even  greater  economic  benefits  –  by  fostering  job 
quality,  reducing  the  rate  at  which  people  leave  their  jobs  (’quit  rate’),  reducing  the  number  of 
redundancies,  limiting  the  costs  of  structural  adjustment,  helping  to  eliminate  distortions  of 
competition  within  the  single  market  and  inequalities  in  treatment  of  workers,  and/or  easing  the 
burden on social welfare systems. 

4.  OBJECTIVES: WHAT IS TO BE ACHIEVED? 

The  initiative  is  intended  to  address  challenges,  through  EU-level  action,  related  to  several 
principles set out in the European Pillar of Social Rights (‘Pillar’), most importantly principle 8 on 
Social dialogue and involvement of workers, principle 2 on Gender Equality and Principle 5 on 
Secure and adaptable employment.  

4.1.General objective 

The general objective of this initiative is to improve the effectiveness of the framework for the 
information  and  consultation  of  employees  at  transnational  level.  This  objective  is  consistent 
with  the  existing  aims  and  principles  set  out  in  the  current  Directive:  to  improve  the  right  to 
information  and  to  consultation  of  employees  in  Union-scale  undertakings  and  groups  (Article 
1(1)),  and  to  define  and  implement  the  arrangements  for  informing  and  consulting  employees  in 
such a way as to ensure their effectiveness and to enable the undertaking or group of undertakings 
to take decisions effectively (Article 1(2)). For the purposes of this general objective, effectiveness 
is  to  be  understood  as  described  in  the  context  of  the  general  problem  (Section  2.3.).  The  basic 
nature  of  the  Directive  as  an  information  and  consultation  instrument  will  not  be  changed  in  the 
context of this initiative, given the choice of the legal basis, which allows for the establishment of 
minimum requirements as to the procedural framework but not for guaranteeing that management 
decisions are aligned in substance with the opinions of EWCs101 (see Section 3.1.). This approach 
and perspective are reflected in the specific policy objectives. 

4.2.Specific objectives 

The specific objectives through which the general objective will be addressed are to: 

(1) Avoid  unjustified differences in workers’  minimum  information  and  consultation  rights  at 
transnational level. 
(2) Ensure an efficient and effective setting-up of EWCs by preventing delays in the setting up 
of EWCs, ensuring appropriate resourcing of special negotiating bodies and improving gender-
balance on EWCs and special negotiating bodies).  
(3)  To  ensure  appropriate  resourcing  of  EWCs  and  an  effective  process  for  their  information 
and  consultation  by  improving  legal  certainty  of  key  concepts  and  strenghtening  genuine 
exchange  of  views  between  EWCs  and  central  management  on  transnational  matters  (see 
Section 2.3.).  
(4) Promote a more effective enforcement of the Directive, including through access to justice 
for  employee  representatives,  SNBs  and  EWCs  and  effective,  dissuasive  and  proportionate 
sanctions. 

101 The latter provisions would fall under the legal basis in Article 153(1)(f) TFEU . 

21 

 
 
The  specific  objective  are  further  clarified  by  the  indicators  used  to  assess  the  degree  to  which 
different policy options would achieve those objectives (“effectiveness”), see Section 7.1. 

5.  WHAT ARE THE AVAILABLE POLICY OPTIONS? 

5.1.What is the baseline from which options are assessed? 

The  policy  options  include  a  no-policy-change  scenario,  which  serves  as  a  baseline  for  assessing 
and  comparing  the  policy  options  described  under  Section  5.2.102  As  the  policy  options  include 
amendments to the Directive, a timeframe of 10 years is assumed for the baseline.103  

All relevant EU-level policies and measures described in Annex 7 are assumed to remain applicable 
under  the  baseline  scenario.  The  national  legislation  implementing  the  existing  EU  level 
requirements  would  also  continue  to  apply  during  the  baseline  scenario.  The  fact  that  no  major 
changes  to  the  national  provisions  in  the  field  of  the  Directive  have  been  notified  following  the 
transposition  of  that  Directive  indicates  that  the  national  legislation  is  stable  and  unlikely  to 
change.104  

The  proposed  Directive  on  Corporate  Sustainable  Due  Diligence  (CSDDD)105  is  likely  to  be 
adopted during the baseline period. It would set out obligations for large companies regarding the 
information and consultation of employees in relation to adverse environmental and human rights 
impacts  in  their global  value chains.  The CSDDD has  the potential to achieve synergies  with  the 
Directive,  as  EWCs’  opinions  can  contribute  to  the  development  and  dissemination  of  the  due 
diligence policy of multinational corporations. However, that Directive would not affect the  legal 
framework for the operation of EWCs. 

Considering  the  evolution  of  EWCs  over  the  last  years,  the  number  of  EWCs  is  expected  to 
increase at a low linear rate of 9 per year, and the number of Union-scale undertakings at a rate of 
3,9%, similarly to the number of employees of those undertakings (see Annex 4). 

Under  the  baseline  scenario,  the  Commission  would  continue  its  longstanding  and  substantial 
support of projects raising awareness of transnational information and consultation and promoting 
best practices.106 Such projects can help alleviate some of the identified problem drivers under the 
baseline scenario, such  as legal  uncertainty regarding  certain concepts  laid down in  the Directive 
and  EWC  members’  perceived  lack  of  expert  advice.  The  Commission  would  also  continue  to 

102 Better Regulation Tool #60.  
103 This timeframe corresponds to the period required for amendments to produce their full impacts, taking into account 
the likely duration of the legislative procedure at Union level, the transposition period, a possible additional period of 
deferred application or transitional measures allowing for the adaptation of pre-existing EWC agreements to the new 
legislative requirements, and a period of practical application by social partners in Community-scale undertakings. 
104 The same is true of possible policy developments at international level. Likewise, it is unlikely that the CJEU would 
be  given  the  opportunity  to  address  uncertainty  regarding  the  interpretation  of  the  recast  Directive,  given  that  no 
questions on that Directive have thus far been referred by national courts for a preliminary ruling.  
105 COM(2022)71 final. 
106  For  2023,  a  budget  of  EUR  2,5  million  is  available  for  this  purpose,  with  the  main  priority  to  “promote  actions 
aimed at developing employees’ involvement in undertakings in particular by raising awareness and contributing to the 
application  of  European  Union  law  and  policies  in  this  area  and  the  take-up  and  development  of  European  Works 
Councils”. 

22 

 
 
monitor  the  correct  transposition  of  the  Directive  through  a  structured  dialogue  with  Member 
States, and if necessary, infringement procedures.107 

Despite  the  actions  outlined  above,  it  is  unlikely  that  the  identified  problem  and  its  drivers  will 
become  significantly  less  relevant  in  the  absence  of  additional  policy  measures  on  EWCs,  as 
evidenced by the fact that the issues identified in the 2018 evaluation  since remained unresolved. 
As  the  Directive  sets  minimum  requirements  and  thus  a  benchmark  for  individual  agreements 
between central management and employees’ representatives, the effectiveness of information and 
consultation activities on transnational matters is likely to remain suboptimal if the relevant drivers 
are not tackled through EU action. 

Undertakings  with  a  well-functioning  EWC  could  continue  to  reap  the  benefits  of  constructive 
dialogue  at  transnational  level.  In  contrast,  undertakings  experiencing  disputes  and  uncertainty 
regarding  information  and  consultation  requirements  would  continue  to  be  ill-equipped  to 
implement the radical changes required in the context of climate change and increased automation 
and  digitalisation.  Without  EU  action  addressing  the  problem  drivers,  it  is  unlikely  that  this 
potential can be harnessed on a larger scale, to benefit the competitiveness of the EU economy as a 
whole and improve working conditions. 

As stated above under Section 2.5., it is unlikely that the CJEU will play a significant role in the 
baseline scenario. Although the Commission may be able to take up certain grievances by means of 
infringement  procedures,  for  example,  for  a  lack  of  conformity  with  the  requirement  to  provide 
effective  enforcement  mechanisms,  Member  States  are  much  less  likely  to  address  that  deficit 
systematically if they are not required to do so by a new EU initiative. 

See Annex 12 for detailed explanations of impacts of no EU policy action over the baseline period, 
by problem area, including quantification where possible. There is no indication of any significant 
variance in the real costs identified in relation to the problem drivers over the baseline period. 

5.2.Description of the policy options 

5.2.1. Structure and logic of the policy options 

The  structure  of  the  policy  options  mirrors  that  of  the  drivers  in  four  distinct  problem  areas. 
Therefore,  it  is  appropriate  to  aggregate  the  policy  measures  at  the  level  of  problem  areas,  in 
accordance with the specific policy objective they aim to achieve. The policy options thus consist 
of  alternative  packages  of  measures  addressing  a  specific  problem  driver.108  To  ensure  a 
proportionate and targeted impact assessment, the analysis focuses on substantive policy measures 
likely to have a significant impact on stakeholders. Accompanying measures are identified as such 
and are not assessed individually. Some measures were discarded for reasons of legality or a clear 
lack of coherence or proportionality (see Annex 11). The effectiveness, efficiency, coherence and 
proportionality of the policy options linked to the same policy objective are compared, considering 
their impacts, to identify the preferred option taking into account the necessary trade-offs between 

107 Infringement proceedings on the Irish system of remedies and access to justice for the enforcement for EWCs’ rights 
were launched in 2022. The dialogue with the Irish authorities on the relevant grievances is ongoing.  
108 As regards the first specific policy objective, the Commission has identified, on the basis of available evidence and 
its own legal analysis, one appropriate approach to  remove the exemptions from the scope of the recast Directive. By 
way of exception, there is hence only a single policy option, as an alternative to the no-policy change option (baseline), 
in this case. See Section 5.2.2. 

23 

 
 
different  approaches  (see  Section  7).109  In  combination,  the  preferred  policy  options  form  the 
overall preferred policy option for which joint impacts are analysed in Section 8. 

Except  for  problem  driver  1,  which  is  linked  to  the  exemptions  laid  down  in  Article  14  of  the 
Directive  and  can  therefore  not  be  addressed  by  a  non-regulatory  measure,  each  group  of  policy 
options  contains  a  non-regulatory  alternative  as  well  as  different  combinations  of  legislative 
amendments.  For  each  specific  policy  objective,  the  policy  options  are  organised  in  the  order  of 
escalating  intensity  of  the  envisaged  policy  interventions.  Furthermore,  a  distinction  is  made 
between  policy  measures  that  entail  substantive  changes  and  therefore  require  an  assessment  of 
their  significant  impacts,  and  policy  measures  which  are  of  an  accompanying  and/or  clarifying 
nature. As the latter merely reinforce the effects of the initiative and address drafting issues in the 
legal  text  without  changing  the  existing  provisions  in  substance,  they  do  not  warrant  a  detailed 
assessment of impacts, in line with the proportionality principle applicable to the better regulation 
process. 

In designing the policy measures and packaging them to form policy options, the Commission was 
guided by the following key considerations: 

(i) the need to give 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; 

(ii)  full  respect  of  the  autonomy  of  social  partners  in  giving  practical  effect  to  the  minimum 
requirements,  which  is  generally  accepted  as  a  key  factor  for  effective  information  and 
consultation;  the  principle  of  social  partner  autonomy  also  entails  preserving  the  possibility  for 
social partners to choose other forms of company-level social dialogue on transnational matters, 
or to agree to limit themselves to employee involvement at national or local level; 

(iii)  the  fact  that  business  stakeholders  generally  favour  non-binding  measures  over  legislative 
amendments whereas trade union organisations and employee representatives  generally consider 
non-binding  measures  ineffective  and  hence  support  legislative  amendments.  Therefore,  while 
various  possible  combinations  between  legislative  and  non-legislative  measures  could  be 
imagined in theory, stakeholder feedback did not indicate any particular such combination;  

(iv)  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.  Indeed,  the  clarifications  and  specifications  to  the  Directive  envisaged  in  the  policy 
options  will  enable  more  effective  monitoring  measures  by  the  Commission,  as  the  vague  and 
general nature of some key requirements – for instance regarding sanctions and access to justice – 
has thus far hampered a more frequent pursuit of infringement cases. 

For  information  on  the  need  for  adapting  the  existing  national  implementing  rules  in  light  of 
specific options, see Annex 8.  

109 This approach follows the better regulation guidelines on building policy options, specifically the alternative shown 
in Figure 1b on p. 119 of the guidelines. 

24 

 
 
The following section describes considered policy options for each of the four main problem areas. 
The  intervention  logic  below  provides  an  overview  of  the  policy  options  and  their  links  with  the 
problem drivers and policy objectives.  

5.2.2.  Policy  options  aimed  at  avoiding  unjustified  differences  in  workers’  minimum 
information and consultation rights at transnational level (Policy Area 1) 

Policy  option  1a  would  bring  currently  exempted  undertakings  in  the  scope  of  the  Directive. 
This concerns undertakings with ‘voluntary agreements’, which were concluded before Union law 
was  established  in  this  field,  and  ‘Article  14  agreements’,  concluded  or  revised  during  the 
transposition  period  of  the  recast  Directive  (see  Section  2.4.1).  This  option  ensures  a  consistent, 
clear, and comprehensive framework for information and consultation at transnational level for all 
Union-scale  undertakings.  It  aims  to  guarantee  equal  access  of  employees  to  the  rights  under  the 
Directive  and  make  all  Union-scale  undertakings  subject  to  the  same  obligations  to  negotiate  an 
EWC agreement on receipt of a valid request. Only one option has been identified, since there is no 
plausible  alternative  that  could  avoid  unjustified  differences  in  workers’  information  and 
consultation rights.  

With  respect  to  undertakings  with  Article  14  agreements,  this  option  would  provide  for  the 
application of the revised requirements of the Directive, in the same way as those requirements will 
apply to agreements that are currently already subject to the Directive. The application of revised 
minimum requirements is likely to entail the need to adapt at least some of the pre-existing EWC 
agreements.  This  would  be  consistent  with  the  approach  followed  by  the  2009  Directive.  The 
transitional  period  for  the  adaptation  of  Article  14  agreements  would  be  two  years,  just  as  for 
undertakings  with  pre-existing  EWC  agreements  that  are  not  currently  exempted  from  the 
Directive. 

With respect to ‘voluntary agreements’, since they were concluded outside the scope of EU law 
and  since,  in  the  absence  of  a  request  by  the  requisite  number  of  employees  or  employees’ 

25 

 
 
representatives,  establishment  of  EWCs  is  not  obligatory  in  Union-scale  undertakings,  removing 
the exemption of undertakings with such agreements cannot trigger the automatic application of the 
Directive’s  requirements  to  these  agreements.  Following  the  removal  of  the  exemption,  the 
employees and management of these undertakings can maintain their existing arrangements and 
agreements  for  information  and  consultation  on  transnational  measures,  without  an 
obligation  to  renegotiate  them  in  accordance  with  the  revised  Directive.  Employees  or 
management  will, however,  have  the possibility to  request  and initiate  negotiations of  an EWC 
agreement  in  accordance  with  the  Directive’s  procedures.110  As  a  result,  unless  the  management 
and  employees  agree  otherwise,  a  newly  established  EWC  under  the  Directive  would  replace  the 
transnational information and consultation body based on the previous voluntary agreement.  

Stakeholders  views:  The  European  Parliament  called  for  an  end  to  the  exemption  from  the 
Directive  with  the  view  to  creating  a  regulatory  level-playing  field.  Trade  unions  and  EWC 
representatives mostly support such a measure, but some express reservations regarding the need 
for  renegotiation  of  existing  agreements  it  may  entail.111  Employer  organisations  prefer  to 
maintain  the  exemptions,  stressing  the  autonomy  of  the  parties  and  the  need  to  preserve  well-
functioning information and consultation mechanisms.112 In the targeted survey for the supporting 
study113,  EWC  representatives  were  overwhelmingly  in  favour  (81.7%)  of  removing  the  existing 
exemptions, compared to only 13.2% of respondents on behalf of management. 43.4% of managers 
did  not  express  any  views  about  this  issue.  Respondents  (combining  both  employees  and 
management) linked to information and consultation bodies created before the first EWC Directive 
were less in favour of removing the exemptions (53.7 %) than those with EWCs created under EU 
rules (69.2%). (See Annex 2) 

5.2.3. Policy options aimed at ensuring an efficient and effective setting-up of EWCs (Policy 
Area 2) 

Policy  options  under  Problem  Area  2  to  would  provide  more  legal  certainty  in  relation  to  the 
timeframe for the initiation of negotiations as well as the resources available to SNBs. 

Option 2a involves the issuing of non-binding interpretative guidance by the Commission on the 
rules  governing  the  setting  up  of  EWCs,  based  on  established  best  practice  and  with  due 
consideration to the views of European social partners. Such guidance could for instance clarify the 
timeframe  for  setting  up  of  the  SNB  and  initiating  negotiations,  the  coverage  of  SNBs’  costs, 
including legal costs, and how to achieve a balanced gender composition of EWCs.  

Option  2b  would  cover  some  of  the  same  issues  as  Option  2a  but  translate  the  envisaged 
clarifications into binding legislative amendments to the Directive. 

Substantive  changes  under  option  2b  would  include  a  clarification  in  the  Directive  that  the 
central management’s obligation to bear SNBs’ expenses includes also the coverage of reasonable 
costs of legal advice, representation and proceedings. The limitation to “reasonable” legal costs is 
designed  to  prevent  cost  coverage  for  frivolous  legal  actions.  The  approach  of  using  an  abstract 
legal term is consistent, e.g. with Union rules on legal aid which use the concept of “appropriate” 

110 Article 5(1). 
111 See Annex 2 and ICF(2023), Sections 5.2.2.1., 5.2.2.2. and 5.2.2.3. 
112 Ibid. 
113 ICF(2023), Section 5.1.2.8. 

26 

 
 
legal  aid.114  It  is  not  possible  to  pre-determine  more  concretely  in  the  legislation  whether  legal 
action is warranted in an individual case. 

Accompanying measures under option 2b include:  
(i) the provision of the Directive prescribing the application of subsidiary requirements “where the 
management refuses to commence negotiations” would be reformulated to clarify that management 
is  to  convene  the  first  SNB  meeting  within  six  months  of  the  request.  The  deadline  remains 
unchanged under this option, which merely aims to address the ambiguity of the existing wording.  
(ii) The existing  right of SNBs  to  training “without  loss of wages” would be  clarified to  address 
any  doubts  as  to  whether  undertakings  must  cover  the  costs  of  necessary  training  and  related 
expenses.  

Option 2c would introduce, in addition to option 2b, a new substantive requirement for the SNB 
and  central  management  to  include  an  objective  of  gender-balanced  representation  when 
negotiating  new  or  re-negotiating  existing  EWC  agreements.  More  specifically,  that  objective 
would  be  for  the  underrepresented  sex  to  account  for  at  least  40%  of  EWC  members,  and  where 
applicable  select  committee115  members.  In  line  with  the  approach  of  the  Directive  on  gender 
balance  on  company  boards116,  the  gender  composition  of  EWCs  would  not  necessarily  be 
representative  of  the  overall  workforce  in  order  to  meet  that  objective.  Indeed,  it  would  not  be 
conducive  to  achieving  the  policy  objective  if  EWCs  were  to  mirror  a  possible  general  lack  of 
gender balance in the undertaking. In order not to compromise the functioning of EWCs, the option 
would however not take the form of a fixed binding quota but allow for a certain flexibility. Parties 
could  tailor  the  arrangements  they  agree  concerning  the  gender-balance  objective  to  take  full 
account  of  the  case  law  of  the  CJEU  on  positive  action117,  practical  constraints  linked  to  the 
possible  lack  of  suitable  candidates  of  the  underrepresented  sex  in  some  cases,  and  the  national 
rules  and  practices  on  the  election  of  employees’  representatives.  The  measure  would  aim  to 
achieve changes in the composition of the vast majority of existing EWCs during the renegotiations 
(see  Section  2.4.2).  The  same  accompanying  measures  as  under  option  2b  would  be  taken  also 
under 2c. 

Stakeholders’ views: The European Parliament recommended the accompanying measures under 
options  2b  and  2c  and  the  gender  balance  objectives  as  per  option  3c.  Further  it  recommended 
shortening the existing negotiating deadline from three years to 18 months and requiring SNBs in 
need  of  support  by  experts  to  consult  trade  union  representatives  by  priority  and  only  if  needed, 
further  experts  of  their  choice.  The  latter  two  measures  were  discarded  for  the  reasons  set  out  in 
Annex 11. 

Trade  unions  considered  that  there  is  a  need  for  certain  improvements  and  clarifications  of  the 
procedure  for  setting  up  EWCs,  welcoming  for  instance  the  clarification  described  in  the  first 
accompanying measure under options 2b and 2c.118 Employer organisations oppose adapting the 
framework  for  setting  up  EWCs  and  stress  the  importance  of  reducing  financial  strain  on 

114 Directive 2003/8/EC (Article 3). 
115 The select committee is a coordinating body comprising at most five members elected from among EWC members. 
Where  a  select  committee  exists,  it  typically  has  a  special  role  in  the  ad-hoc  information  and  consultation  on 
extraordinary  circumstances  or  decisions.  Such  a  body  is  optional  for  EWCs  subject  to  negotiated  agreements,  but 
mandatory for EWCs subject to subsidiary requirements, cf. point 1(d) of the Annex to the recast Directive. 
116 Directive (EU) 2022/2381. 
117 Cf. Judgment of the Court of Justice of 28 March 2000, Badeck and Others, C-158/97, ECLI:EU:C:2000:163. 
118 ICF(2023), Sections 4.2.1.2. and 5.1.2.4. 

27 

 
 
companies.  During  the  evidence  gathering  for  the  supporting  study,  both  employer  and  trade 
union organisations, while generally supporting the objective of gender balance,  questioned the 
feasibility  of  binding  gender  quotas,  having  regard  to  challenges  in  some  sectors  and  diverse 
nominations  or  selection  systems  of  employee  representatives  in  Member  States.  Sector  and 
country-specific considerations in this regard would be necessary.119 

5.2.4. Policy options aimed at ensuring the appropriate resourcing of EWCs and an effective 
process for their information and consultation (Policy Area 3) 

Policy  options  under  Policy  Area  3  pertain  to  various  contributing  factors:  the  issue  of  legal 
certainty regarding the concept of ‘transnational matters’, requirements for consultation, including 
as regards the timing of the follow-up to EWCs’ opinions, appropriate resourcing of EWCs to carry 
out  their  role  effectively,  and  the  matter  of  confidentiality  or  non-disclosure  of  sensitive 
information.  

Option 3a involves the issuing of non-binding interpretative guidance clarifying the concept of 
transnational matters, the need for management to provide a reasoned response to EWCs’ opinions, 
the timing of information and consultation, the coverage of training expenses and the conditions for 
restricting  information  based  on  confidentiality  grounds  resp.  withholding  sensitive  information 
from EWCs. 

Option  3b  would  introduce  substantive  amendments  (see  below)  in  the  Directive.  Except  for  the 
measures concerning the subsidiary requirements set out in the Annex to the Directive, all Union-
scale undertakings and their EWCs are potentially directly concerned by the amendments described 
below. Member States would need to implement the amendments into national law and enforce the 
amended requirements. 

Substantive changes under option 3b: 
(i) The concept of transnational matters would be clarified without significantly broadening it. 
For  this  purpose,  certain  elements  of  recital  16,  such  as  the  scope  of  the  potential  effects  of  a 
matter, would be incorporated into the enacting terms.  

(ii)  As  regards  the  procedural  requirements  for  consultation,  an  obligation  on  management  to 
provide  a  reasoned  response  to  EWCs’  opinions  prior  to  the  adoption  of  a  decision  on 
transnational  matters  would  be  laid  down  in  the  Directive.  It  implicitly  requires  management  to 
take  EWCs’  opinions  into  account,  because  a  reasoned  response  cannot  be  provided  without 
having first considered those opinions on their merits.120  

(iii) The types of financial and material resources that must be determined in an EWC agreement 
would be specified, in particular the access to and costs of support by experts, and the costs of legal 
advice,  representation  and  proceedings.  In  accordance  with  the  principle  of  party  autonomy,  no 
fixed  requirements  would  be  imposed.121  The  option  would  instead  require  the  SNB  and  central 
management  to  negotiate  and  determine  the  coverage  of  those  costs  in  their  EWC  agreement,  in 
accordance with applicable national law. 

119 See Annex 2 and ICF(2023), Sections 5.2.2.1. and 5.2.2.2. 
120 This policy measure thus encompasses in substance the European Parliament’s suggestion to state that management 
“shall” – instead of “may” – take EWCs’ opinion into account. 
121  This  is  consistent  with  the  expert  group  report  of  2010  on  the  implementation  of  the  recast  Directive,  which 
concluded that flexibility is needed to determine who is to bear the costs related to legal actions,  taking into account 
national practice or the relevant EWC agreement (Group of Experts (Commission)(2010), p. 39). 

28 

 
 
(iv) In order to ensure that effective information and consultation  is not undermined by excessive 
recourse  to  non-disclosure  and  confidentiality  restrictions,  it  would  be  clarified  that  central 
management  may  declare  information  confidential  only  in  the  legitimate  interest  of  the 
undertaking.  To  increase  transparency  and  enable  employees’  representatives  to  challenge 
confidentiality  restrictions  or  non-disclosure,  management  would  be  required  to  inform  them, 
upon request, of the grounds justifying the confidentiality/non-disclosure. 

(v) Finally,  the subsidiary requirements would be amended to  require at  least  two annual  plenary 
meetings of central management with the EWCs that function on the basis of those requirements. 

Accompanying  clarifications  under  option  3b:  To  address  uncertainty  regarding 
the 
interpretation of the requirement to provide EWC members with necessary training “without loss of 
wages”,  it  would  be  clarified  that  undertakings  have  to  cover  the  costs  of  such  training  and 
related  expenses.  Such  clarification  would  be  in  line  with  the  existing  interpretation  of  the 
provision by stakeholders (see Section 2.4.3). It would also be clarified that the parties should agree 
on the format for EWC meetings, which may make use of virtual as well as physical formats, which 
is not explicit in the current wording.  

Option  3c  would  involve  a  more  far-reaching  policy  intervention,  by  introducing  the  following 
substantive amendments, in addition to the targeted measures under option 3b: 

(i)  The  concept  of  transnational  matters  would  be  substantially  expanded  to  include  notably 
matters with potential effects indirectly concerning employees in two different Member States, as 
well as any matters decided in a Member State other than the one in which they produce their 
effects,  even  if  those  effects  are  confined  to  a  single  Member  State.  Such  amendments  would 
substantially  broaden  the  competence  and  scope  of  action  of  EWCs  to  matters  for  which  the 
national or local level of employee representation was thus far considered appropriate. Moreover, in 
the case of a dispute between the central management and the EWC as to whether an information 
and consultation is to be carried out, the central management would be required to justify the 
absence of transnational issues in writing. (ii) In terms of resources, a general right of EWCs 
to be supported by experts of their choice at the expense of the Union-scale undertakings would 
be introduced, instead of leaving it to the parties to the EWC agreement to negotiate the conditions 
for involving experts. (iii) The sharing of information with employees’ representatives at national 
or local level would be exempt from confidentiality restrictions, provided that those employees’ 
representatives are subject  to  equivalent  restrictions. In addition,  the dispensation of management 
from  its  obligation  to  provide  information  to  EWCs  if  that  disclosure  could  seriously  harm  the 
undertaking  would  be  made  subject  to  a  general  condition  of  prior  administrative  or  judicial 
authorisation.  

Stakeholders  views:  The  European  Parliament  recommended  to  broaden  the  definition  of 
transnational  matters,  require  central  management  to  provide  a  reasoned  response  to  EWCs’ 
opinion prior to the adoption of the decision, allow for the imposition of confidentiality only in the 
legitimate  interest  of  the  undertaking,  require  management  to  provide  EWCs  with  the  objective 
criteria  justifying  confidentiality,  make  non-disclosure  of  information  on  transnational  matters 
subject to a mandatory prior authorisation, entitle EWCs to request assistance from experts of their 
choice,  require  management  to  bear  EWCs’  judicial  costs  and  costs  of  legal  representation,  and 

29 

 
 
increase  the  number  of  annual  plenary  EWC  meetings  from  one  to  two  in  the  subsidiary 
requirements.122 

transnational  matters,  strengthening  EWCs’  entitlement 

Trade  unions  and  EWC  representatives  support  a  clarification  of  the  concept  of  transnational 
matters, requirements for a reasoned response by management, ensuring that the latter takes EWCs’ 
opinions into account, and clear provisions on the grounds justifying the withholding of information 
on 
trade  union 
representatives,  and  increasing  the  number  of  annual  plenary  meetings  under  subsidiary 
requirements. In contrast, employer organisations and management representatives are sceptical 
vis-à-vis  such  measures,  stressing  notably  the  need  to  preserve  companies’  capacity  for  fast  and 
efficient  decision-making  and  the  importance  of  protecting  sensitive  information  such  as  trade 
secrets  and  complying  with  the  stock-exchange  rules,  and  cautioning  against  a  giving  co-
determination  powers  to  EWCs.  Employer  organisations  called  instead  to  alleviate  administrative 
and financial burdens by promoting online EWC meetings .123 

to  support  by 

5.2.5. Policy options aimed at promoting a more effective enforcement of the Directive (Policy 
Area 4) 

The effective enforcement of the rights guaranteed by the Directive depends on several factors: (i) 
compliance monitoring by the European Commission (and if necessary, infringement proceedings), 
(ii)  appropriate  sanctioning  by  national  competent  authorities,  and  (iii)  effective  judicial  and/or 
administrative  remedies  available  to  the  rightsholders  (primarily  employee  representatives  and 
members of the special negotiating bodies and the EWCs). For the purposes of the first component, 
Member States  would  be required to  provide the Commission  with  (and update as  necessary) the 
information  on  how  access  to  justice  is  provided  for  each  right.  Regarding  the  other  two 
components,  the  requirements  regarding  access  to  justice  and  penalties  could  be  clarified  or 
strengthened. The policy options in Problem Area 4 could be combined with either non-binding 
or legislative measures relating to the coverage of reasonable legal costs (see options 2a, 2b, 2c, 3a 
and 3b above). 

Option  4a  consists  of  specific  Commission  recommendations  addressed  to  Member  States, 
clarifying how the latter can comply with their obligation, in accordance with the general principles 
of Union law, to apply administrative or judicial procedures, as well as sanctions that are effective, 
dissuasive and proportionate in cases of infringement of the obligations arising from the Directive.  

Option 4b would include the following substantive changes: 

(i) To enable the Commission to effectively monitor and ensure the requirement of effective access 
to  justice,  Member  States  would  have  to  notify  the  means  by  which  EWCs,  SNBs  and 
employees’ representatives can bring judicial proceedings in respect of all their rights under 
the Directive.124 This one-off information requirement could be discharged in the framework of the 

122 The  European Parliament recommended certain additional measures in resolution, which were however discarded 
without detailed assessment of their impacts, for the reasons explained in Annex 11. 
123 See Annex 2 and ICF(2023), Section 5.2.2.2.  
124  While  it  is  legally  conceivable  to  combine  such  a  notification  obligation  on  Member  States  with  Commission 
recommendations  on  the  enforcement  of  transnational  information  and  consultation  requirements  (option  4a),  it  was 
considered more relevant and consistent to package that obligation (only) with binding amendments strengthening and 
specifying the enforcement provisions in the Directive, for the following reasons: 

- 

information on the implementation of the existing enforcement rules in the Directive was already gathered in 
the  context  of  the  evaluation,  and  updated  for  the  purposes  of  this  impact  assessment.  Shortcomings  were 

30 

 
 
 
notification  by  Member  States’  of  the  measures  transposing  the  revision  of  the  Directive.  As  the 
relevant information concerns the rules on judicial remedies under national law, it is fully available 
to  the  national  authorities.  Consequently,  this  option  would  not  impose  any  reporting  or 
administrative obligations on businesses. 

(ii)  The  level  of  pecuniary  sanctions  should  take  account  of  the  annual  turnover  of  the 
sanctioned undertaking or group of undertakings, as well as of any relevant aggravating and 
mitigating  factors  related  to  the  gravity,  scope,  impacts  and  duration  of  the  offence.  Sanctions 
have  to  be  determined  in  accordance  with  principles  of  effectiveness,  dissuasiveness  and 
proportionality (see accompanying clarification below). The rationale of  explicitly prescribing the 
turnover criterion is that the existing fixed lump sums as pecuniary sanctions in the Member States 
are in practice disproportionately small for undertakings with a large turnover, and thus devoid of 
any  dissuasive  effect,  see  Section  2.4.4.(ii).125  The  payable  amount  needs  to  be  related  to  the 
financial  capacity  of  sanctioned  Union-scale  undertaking  or  group126,  in  order  to  ensure  the 
dissuasiveness  and  effectiveness  of  this  type  of  sanctions.  At  the  same  time,  the  option  requires 
Member  States  to  ensure  the  proportionality  of  any  sanctions.  The  fact  that  the  impacts  of  non-
compliance  with  the  Directive  might  be  limited,  including  in  terms  of  their  geographical  scope, 
must  therefore  be  taken  into  account  by  national  courts  and  administrative  authorities  when 
determining  the  percentage  of  turnover  to  be  levied  as  a  sanction.  This  option  does  not  specify 
percentages by way of thresholds  or limits for the imposition of fines and  leaves it for Member 
States to define how individual sanctions are to be determined, having regard to the sanctioned 
undertaking’s turnover. Member States must in any case avoid potentially excessive penalties. 

Accompanying clarification under option 4b: The existing requirements under general principles 
of  Union  law  for  access  to  judicial  remedies  and  effective,  dissuasive  and  proportionate 
sanctions  would  be  incorporated  into  the  enacting  terms  of  the  Directive.  This  would  clarify 
that  these  requirements  apply  whenever  rights  under  the  Directive  are  infringed,  e.g.,  where 
undertakings restrict the dissemination of information on transnational matters or refuse to disclose 
such information to EWCs on confidentiality grounds, without sufficient justification. 

Option 4c would go further by introducing, in addition to the measures under policy option 4c, the 
following further substantive changes: 
(i) Determining specific maximum shares of undertakings’ net turnover that could be imposed 
by  way  of  pecuniary  sanctions:  up  to  4%  where  a  violation  of  rights  and  obligations  under  the 

identified for some Member States regarding access to justice, as explained in the problem definition. There 
are  no  indications  that  a  reporting  exercise  on  the  same  issues  would  yield  substantively  different  findings 
following the adoption of a non-binding Commission recommendation, not least because of the likely limited 
take-up of such recommendations in the legal systems where the issue was identified as most pronounced. In 
contrast,  following  legislative  amendments  enhancing  the  enforcement  provisions  in  the  Directive,  Member 
States  would  be  legally  required  to  address  shortcoming  regarding  access  to  justice.  In  such  a  context,  the 
reporting obligation is linked to transposition and would have a clear added value in enabling the Commission 
to monitor compliance; 

-  when  combined  with  binding  legislative  amendments,  the  reporting  obligation  can  be  discharged  in  the 
framework of the standard procedure for the notification of transposition measures, using the IT tools available 
for  that  purpose.  The  process  would  also  be  accompanied  by  an  expert  group  set  up  to  support  the 
transposition. If a mandatory reporting requirement were to be combined with a non-binding initiative, it is not 
clear how a similarly efficient process could be ensured. 

125  This  rationale  is  consistent  with  the  approach  followed  in  the  proposed  corporate  sustainability  due  diligence 
directive, COM(2022)71 final, Article 20(3). 
126  Limiting  the  calculation  base  to  turnover  in  the  Union  would  entail  less  favourable  treatment  of  European 
undertakings compared to international groups and place them in a competitive disadvantage. 

31 

 
 
Directive is found to be intentional, or else up to 2% of global annual net turnover. (ii) Introducing 
a  right  to  injunctive  relief  allowing  EWCs  to  request  the  suspension  of  management  decisions 
taken in violation of the information and consultation requirements under the Directive.  

Stakeholders’  views:  The  European  Parliament  called  for  facilitated  administrative  and  legal 
proceedings for an effective access  to  justice for EWCs and special negotiation bodies, including 
the  possibility  to  request  a  preliminary  injunction  for  the  temporary  suspension  of  management 
decisions and timely decisions on judicial appeals against the imposition of confidentiality, as well 
as pecuniary sanctions of up to 4 % of the undertaking’s global annual turnover.127  

Trade  unions  supported  the  Parliament’s  recommendations128,  whereas  employer  organisations 
and management representatives considered them disproportionate, cautioning against the risk of 
delays in companies’ decision-making and undermining trust between social partners. 

5.3. Options discarded at an early stage 

A number of policy measures that have either been considered at the early preparatory stages of this 
initiative  or  were  put  forward  by  social  partners  during  the  consultation  process  have  been 
discarded  without  a  detailed  assessment  of  their  impacts,  either  because  it  was  not  possible  to 
establish sufficient evidence to confirm the issue that those measures would have aimed to address, 
or because the measures were unsuitable to achieve the policy objectives, clearly disproportionate, 
or incoherent  with  the existing  legal  framework. Annex 11 contains  a description of those policy 
measures and the reasons for discarding them. 

6.  WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? 

This  section  presents  key  findings  with  details  in  Annex  12.  However,  certain  points  warrant 
general  clarification,  by  way  of  introduction.  First,  the  analysis  focuses  on  the  impacts  of 
implementing the policy options in the EU Member States, in line with the geographic scope of a 
possible amending Directive or non-binding Commission instrument. As the Directive applies also 
to  other  EEA  countries129,  it  is  reasonable  to  assume  that  clarifications  or  amendments  to  that 
Directive would eventually also be adopted EEA-wide. EEA countries have therefore been included 
in  the  assessment  of  impacts.130  There  are  no  indications  that  the  impacts  in  the  EEA  would 
substantially  diverge  from  those  in  EU  Member  States.  Second,  as  undertakings  with  EWCs  are 
primarily  concentrated  in  the  metal,  services,  chemicals,  building,  food,  agriculture  and  tourism 
sectors,  the  identified  social  and  economic  impacts  across  all  policy  areas  will  materialise  also 
primarily in those sectors.131 Third, due primarily to the geographic distribution of undertakings’ 

127 Insofar as the Parliament also called on Member States to grant legal personality to EWCs and SNBs and to include 
in  the  possible  sanctions  the  exclusion  from  public  benefits,  aids,  subsidies  or  public  contracts,  it  is  explained  in 
Annex 11 why such measures were not included in the policy options. 
128  ETUC  went  further  by  requesting  administrative  or  judicial  systems  allowing  extremely  fast  decisions  on  the 
suspension or nullification of management decisions taken in violation of information and consultation obligations vis-
à-vis EWCs. See Annex 11 for explanations why such measure has been discarded. 
129  The  recast  Directive  was  inserted  in  Annex  XVIII  to  the  EEA  agreement  by  decision  No  54/2010  (OJ  L  181, 
15.7.2010, p. 22) and EEA Supplement No 37, 15.7.2010, p. 29. 
130 The analysis of whether and how national laws might need to be adapted to implement the  policy options did not 
cover non-EU countries, because the scope of application of the considered amendments would be limited to the EU 
(with  the  possibility  to  subsequently  expand  the  amendments  to  the  whole  EEA  by  including  them  in  the  EEA 
agreement). 
131 See Annex 4, figure 5. 

32 

 
 
headquarters, most EWCs are  located in  seven  Member States, namely  DE, FR, BE, SE, NL, IE, 
IT.132  Nevertheless,  the  impacts  policy  options  would  affect  employees  across  Member  States 
where  the  undertaking  operates,  primarily  in  the  abovementioned  sectors,  because  they  are 
represented  by  the  EWCs.133  Fourth,  most  EWCs  are  subject  to  the  national  law  of  the  seven 
Member  States,  whereas  around  10  Member  States  have  either  no  or  only  one  EWC  body 
established  under  their  law.  The  impacts  of  certain  policy  measures  can  vary  depending  on 
which national law is applicable to an EWC. Some national laws may already contain rights and 
obligations  in  line  with  certain  policy  measures,  which  would  therefore  not  require  any 
amendments  to  the  relevant  national  law.  The  respective  measure  would  thus  not  change  the 
situation  of  undertakings  and  EWCs  subject  to  those  laws.  Such  cases  are  pointed  out  in  the 
presentation of impacts below. Fifth, for the reasons presented in more detail in Annex 12 (Section 
1), the initiative will not have any relevant or foreseeable impacts on consumers, SMEs134, or the 
environment. These types of impact are therefore not discussed separately under each policy area. 
Sixth, possible impacts on employment are discussed only where relevant in this section, in relation 
to policy options 2c and 4c, whereas Annex 12 (Sections 2-5) contain further explanations about the 
reasons why no effects on employment can be anticipated for the rest. Seventh, the accompanying 
measures  described  above  in  Section  5  do  not  involve  substantive  changes  to  the  existing 
provisions  but  mere  technical  drafting  clarifications.  These  measures  are  generally  assumed  to 
reinforce the effects of the options without producing significant self-standing impacts. Therefore, 
they  do  not  warrant  a  detailed  analysis  of  impacts.  Eigth,  available  cost  estimates  are  presented 
below in terms of average unit costs per option, in relation to the average turnover of the Union-
scale undertakings.135 However, for the following reasons, the scope for meaningful quantification 
of  impacts  is  limited:  (i)  the  specific  characteristics  of  the  transnational  information  and 
consultation  framework  make  it  fundamentally  challenging  to  establish  a  causal  link  between  the 
policy  options  seeking  to  develop  or  clarify  that  framework,  and  specific  economic  or  social 
outcomes. This challenge pertains for instance to the autonomy of social partners in designing and 
handling the information and consultation process in their respective undertaking, the fact that the 
establishment of EWCs is only mandatory when employees representatives request it, and external 
–  often  behavioural  –  factors  such  as  the  established  culture  of  employee  involvement  in  the 
respective undertaking. (ii) Costs and benefits of transnational information and consultation tend to 
be  long-term  and  indirect  in  nature.  (iii)  Due  to  often  polarised  stakeholder  views,  key  evidence 
sources are affected by selection-bias and the risk of inaccurate self-reporting by stakeholders.  

6.1.Impacts of policy options under Policy Area 1 

6.1.1. Economic impacts 

Costs for Union-scale undertakings: By removing the exemptions from the scope of the Directive, 
option 1a would expand the right to request the establishment of an EWC to employees of the 323 
undertakings  with  voluntary  agreements.  Where  such  requests  are  made,  the  latter  undertakings 
may  hence  face  the  one-off  adjustment  costs  and  possible  marginal  opportunity  costs  of 

132 See Annex 4, figure 3. 
133  Union-scale  undertakings’  activities  extend  by  definition  to  more  than  one  Member  State.  EWCs  represent 
employees  from  the  different  Member  States  in  which  the  undertaking  operates  vis-à-vis  central  management:  the 
recast Directive requires that one seat on the EWC be allocated per portion of employees employed in a Member State 
amounting for 10 %, or a fraction thereof, of the employees employed in all the Member States taken together. 
134  Given  the  thresholds  set  out  in  the  definition  of  ‘Community-scale  undertakings’  in  the  recast  Directive,  the 
requirements  under  the  Directive  do not  apply  to  SMEs.  For  explanations  why  there  are  also  no foreseeable  indirect 
impacts on SMEs see Annex 12 Section 1. 
135 For the preferred option, estimates of total costs are developed in Annexes 3 and 4. 

33 

 
 
negotiating  new  EWC  agreements  in  accordance  with  the  Directive.  There  is  no  way  reliably  to 
estimate  the  likely  incidence  of  such  requests,  as  it  depends  on  internal  dynamics  within  each 
individual  undertaking  and  EWCs  remain  voluntary  instrument  (i.e.  a  request  is  needed  either  by 
workers or initiated by the management). The average overall costs per negotiation were estimated 
at ca. EUR 148 000.136 They may be considered negligible as they correspond to only 0.0006% of 
the average global turnover of Union-scale undertakings with an EWC or voluntary agreement.137 
These one-off adjustment costs could be offset to some extent where, due to the negotiations of the 
new  agreement,  undertakings  do  not  incur  baseline  costs  of  renegotiating  existing  voluntary 
agreements.138  For  undertakings  with  voluntary  agreements,  the  upper  number  of  potentially 
affected companies is 323, whereas there are 28 companies with Article 14 agreements (see Section 
2.4.1.). The latter would become subject to the Directive following the removal of the exemptions 
and  hence  may  have  to  be  re-negotiated  to  comply  with  the  revised  requirements  unless  they 
already  cover  all  requirements.  The  available  evidence  suggests  that  most  Article  14  agreements 
(ca. 16 out of 28) are already aligned with the current Directive, but a revision of that Directive is 
likely to require a renegotiation for adapting the agreement to the new EU requirements. Evidence 
suggests that re-negotiations on average take less time than the process for setting up a new EWC, 
but  may  require  multiple  meetings  in  complex  cases.  Based  on  the  available  evidence,  it  was 
possible  to  monetise  certain  costs  linked  to  meetings  (ca.  EUR  18  400  per  meeting139)  between 
management  and  EWC  representatives  for  the  renegotiation  of  existing  agreements.  This  partial 
monetisation  can  provide  an  indication  of  the  order  of  magnitude  of  the  overall  costs  related  to 
renegotiations,  bearing  in  mind  that  it  should  not  be  taken  as  an  approximation  of  those  overall 
costs. In any case, the costs of renegotiation even if several meetings are needed should not have 
any  significant  economic  consequences  for  businesses.  Furthermore,  the  data  gathered  indicates 
that agreements are regularly re-negotiated (on average every 5 years). Therefore, the re-negotiation 
linked to option 1a could take place within the framework of this regular negotiation, entailing no 
or limited costs compared to the baseline scenario. There are no indications that option 1a would 
result  in  higher  running  costs  of  EWCs  and  therefore  no  recurrent  adjustment  costs  have  been 
identified in relation to this option (cf. Annex 12 Section 2). 

Benefits for undertakings: Option 1a would ensure the equal application of rights and obligations 
under the Directive to all Union scale undertakings and thus establish a simpler and more coherent 
legal framework. 

Impacts on competitiveness: No such impacts have been identified in relation to option 1a. There is 
no evidence that the setting-up or operation of an EWC under the Directive would  have negative 
impacts on the competitiveness of companies which are currently exempted. The costs for setting 
up and operating EWCs are negligible in relation to the turnover of companies with EWCs or with 
voluntary  agreement  (see  above  ‘Costs  for  Union-scale  undertakings’  and  Annex  12).  Likewise, 
while  studies  have  shown  that  the  involvement  of  employees  is  linked  to  better  performance  of 
undertakings140, potential positive impacts of policy option 1a on the competitiveness of companies 
cannot be estimated with any degree of certainty.  

136 ICF(2016), estimates adjusted to today’s prices. See Annex 4 ‘Analytical methods’ (Section 4.3.).  
137 The estimated annual global turnover for undertakings with EWCs or voluntary agreement is € 24 billion (average). 
ICF(2023), Section 5.1.2.1. 
138 See Section 6.3.1. below and Annexes 4 and 12 for explanations and quantification of renegotiation costs. 
139 See Annex 4 ‘Analytical methods’ (Section 4.4.).  
140 Eurofound (2019) European Company Survey 2019, Workplace practices unlocking employee potential. 

34 

 
  
 
Impacts on internal market: Although the deletion of the exemptions under option 1a would lead to 
a less fragmented legal framework at EU level, the associated economic benefits in terms of market 
efficiency are likely negligible. First, the establishment of an EWC remains a discretionary choice 
of the social partners in Union-scale undertakings and the take up of EWCs under the revised rules 
cannot be reliably estimated. Second, the available evidence does not suggest important differences 
in overall functioning and operational costs of the voluntary agreements and EWCs agreements.  

6.1.2. Social impacts 

Benefits  for  employees:  While  there  is  no  conclusive  evidence  that  the  operation  of  voluntary 
agreements is less effective than of EWC agreements, option 1a would ensure the equal application 
of  minimum  rights  and  obligations  to  all  Union  scale  undertakings  and  to  their  EU  employees. 
Replacing voluntary agreements, where so requested by employees or initiated by the management, 
with EWC agreements can also facilitate redress because the rights of EWCs are enforceable under 
EU law, in line with the fundamental right to an effective remedy (Article 47 CFR). Potentially ca. 
5.4  million  employees  could  benefit  from  this  alignment  of  the  minimum  rights  if  all  323 
undertakings  with  voluntary  agreements  would  instead  establish  EWCs  operating  under  the 
Directive. It is however also possible that the parties will opt to preserve well-functioning voluntary 
agreements. 

6.2. Impacts of policy options under Policy Area 2 

6.2.1.  Economic impacts 

Costs  for  undertakings:  All  policy  options  –  with  regard  to  the  clarification  of  coverage  of 
reasonable  legal  costs  -  could  entail  some  adjustment  costs  when  setting  up  an  EWC  (one-off 
costs)  or  renegotiating  an  EWC  agreement  with  an  SNB  (recurrent  costs,  renegotiations  are 
estimated to occur on average every five years,141 but do not necessarily involve an SNB). A small 
increase  in  costs  linked  to  the  coverage  SNBs’  expenses  for  legal  advice  can  be  expected  due  to 
more requests for legal advice from employees’ representatives. This is more likely for options 2b 
and 2c owing to their binding character. The data does not allow for a precise estimation of these 
incremental costs. They would represent only a negligible share of the one-off cost of setting up an 
EWC  (estimated  at  EUR  148  000  per  negotiation  procedure,  representing  ca.  0.0006  %  of  the 
average global annual turnover of Union-scale undertakings), or cost of renegotiation of an existing 
EWC agreement.142 No additional costs are expected from actions to ensure gender-balance (option 
2c)  as  this  objective  would  need  to  be  taken  into  account  when  renegotiating  an  existing  EWC 
agreement or creating a new EWC. Thus, no additional/ad-hoc renegotiation is needed. See Section 
3 of Annex 12 for details.  

Benefits  for  undertakings:  The  policy  options  could  lead  to  certain  benefits  for  undertakings 
setting up an EWC. The interpretative guidance (option 2a) could speed up the negotiation process 
only to some extent and thereby slightly reduce costs of negotiations, as the number of meetings or 
disputes  could  be  marginally  reduced.  The  positive  impacts  are  likely  to  be  limited  as  it  would 
depend on the extent to which the guidance would be taken into account by the stakeholders. The 

141 See Section 4.5 of Annex 4. 
142 In the context of renegotiations, the obligation to cover SNBs’ reasonable legal costs would be relevant if an SNB is 
involved in the renegotiation. The described impacts are not expected to apply to undertakings and SNBs applying the 
NL legislation, which already contains a requirement for the undertaking to cover reasonable legal costs of employees’ 
representatives (see Annex 8).  

35 

 
 
 
improved legal  clarity  (options  2b and 2c) would improve  accessing  the required legal  expertise 
and  avoiding  discussions  about  the  scope  of  the  SNB’s  costs  that  are  to  be  covered  by  the 
management,  leading  to  a  more  efficient  process.  Cost  savings  linked  to  a  reduction  of  the 
frequency  of  issues  associated  with  unclear  resourcing  of  SNBs  (for  example,  reduced  risk  of 
disputes,  and  hence  reduced  opportunity  costs  for  companies),  would  compensate  some  of  the 
above-mentioned  additional  costs.  Given  the  negligible  share  of  overall  negotiation/renegotiation 
costs  in  comparison  to  turnover,  the  potential  direct  benefits  are  however  negligible.  In  light  of 
research showing the beneficial effects of gender balance143, option 2c could have a positive effect 
on  the  quality  of  EWCs’  non-binding  opinions,  and  thus  indirectly  on  management  decisions  on 
transnational matters.  

Impacts  on  competitiveness:  No  negative  impacts  on  competitiveness  have  been  identified  in 
relation to any of the options in Policy Area 2. The costs for setting up EWCs are overall negligible 
in relation to the turnover of companies with EWCs and the clarification of the obligation to cover 
reasonable legal costs in the process of negotiation or renegotiation would contribute to improved 
legal clarity regarding the setting up procedure (see above ‘Costs for Union-scale undertakings’ and 
Annex  12).  Given  the  evidence  from  studies  showing  a  positive  relationship  between  female 
representation and business performance144, and the potential contribution of more gender-balanced 
EWCs  to  the  quality  of  management  decisions,  it  is  plausible  that  option  2c  might  contribute  to 
some extent to fostering companies’ competitiveness. 

Impacts  on  internal  market:  There  is  no  firm  evidence  of  significant  direct  impacts  of  the  policy 
options in area 2. Nevertheless, as regards the objective of gender-balanced composition of EWCs 
under  option  2c,  it  can  be  expected,  considering  the  abovementioned  research  demonstrating 
economic benefits of gender balance in relation to various aspects of the economy145, that increased 
gender  balance  on  EWCs  will  contribute,  in  conjunction  with  the  general  benefits  of  a  more 
effective  information  and  consultation  process  described  above,  to  delivering  benefits  such  as  a 
higher level of employment and productivity. These benefits however cannot be quantified. 

6.2.2.  Social impacts 

Benefits  for employees  and undertakings  (quality  of social dialogue): The interpretative guidance 
(option 2a) is likely to entail only limited positive impacts on the process of setting up EWCs and 
renegotiations involving the establishment of an SNB. Through guidance on access to legal advice, 
this option could indirectly improve the quality of future or renegotiated EWC agreements. It could 
also contribute to a better gender balance within these EWCs by clarifying how the parties may take 
this  need  into  account.  A  better  informed,  smoother  negotiating  process  could  also  benefit 
management and the undertaking, e.g., by decreasing legal uncertainty and facilitating clearer and 
more targeted EWC agreements. However, these positive effects are likely to be limited due to the 
non-binding nature of the measure and would depend on the extent to which the guidance would be 
followed  by  the  stakeholders.  By  providing  important  binding  clarifications  of  employees’  rights 
during the (re)negotiation process, options 2b and 2c entail stronger social benefits. It is however 
not possible to quantify them. In addition, option 2c would also ensure, through specific objectives, 
a better gender balance in current and future EWCs. Around 60 % of existing EWCs could benefit 
from this measure. This could improve the quality of social dialogue, with possible indirect positive 

143 See e.g. the findings of the European Institute for Gender Equality (EIGE) in a large scale 2017 study on ‘Economic 
Benefits of Gender Equality in the European Union’. 
144 Ibid. 
145 Ibid. 

36 

 
 
impacts on working conditions and employment. Therefore, option 2c is likely to entail significant 
positive impacts for employees.  

Impacts  on  fundamental  rights:  Policy  options  under  Policy  Area  2  would  improve  employees’ 
rights  to  information  and  consultation  within  the  undertaking  (Article  27  CFR)  and  would  also 
indirectly bring benefits regarding the right to an effective remedy (Article 47 CFR) and equality 
between women and men (Article 23 CFR). While benefits under option 2a would be limited due 
to  its  non-binding  nature,  option  2b,  by  ensuring  that  reasonable  legal  costs  are  covered  by  the 
management,  would  contribute  positively  to  the  quality  of  the  dialogue  between  employees  and 
management  and  of  the  resulting  agreements,  as  well  as  to  the  capacity  of  employees  and  their 
representatives to access legal advice and justice. Option 2c, would in addition to the coverage of 
reasonable  legal  costs  also  entail  positive  impacts  in  achieving  a  more  equitable  environment  in 
EWCs  by  setting  specific  objective  for  gender  balance  in  EWCs  and  thus  contribute  to  better 
equality between men and women. 

6.3. Impacts of policy options under Policy Area 3 

6.3.1. Economic impacts 

Costs for undertakings: Option 3a could create some one-off adjustment costs where parties choose 
to renegotiate their EWC agreement specifically to align it with the non-binding guidance, which is 
however  not  expected  to  occur  often.  Partial  monetisation  of  the  renegotiation  costs  (see  Section 
6.1.1.  above)  suggest  the  costs  of  renegotiation,  even  if  several  meetings  are  needed  in  most 
complex  cases,  should  not  have  any  significant  economic  consequences  for  businesses. 
Furthermore,  the  data  gathered  indicates  that  agreements  are  regularly  re-negotiated  (on  average 
every  5  years).  Where  such  renegotiations  lead  to  expanding  EWCs’  right  to  the  coverage  of 
expenses,  such  as  legal  costs  and  expert  fees,  they  could  entail  an  incremental  increase  in 
undertakings’ costs of running an EWC. However, given that the average overall costs linked to the 
operation  of  an  EWC  are  estimated  at  ca. EUR 300  000146  (representing  ca.  0.0012  %  of  the 
average global annual turnover of Union-scale undertakings) such incremental recurrent adjustment 
costs would likewise account only for a negligible share of undertakings’ turnover. The requirement 
under  option  3b  to  address  the  questions  of  access  to  expertise,  coverage  of  training  costs 
(including  expenses)  and  legal  costs  in  EWC  agreements  would  require  renegotiation  of  EWC 
agreements that do not yet cover those issues. While it is not possible, for lack of comprehensive 
information  about  the  content  of  all  EWC  agreements,  to  estimate  the  incidence  of  such 
renegotiations  with  certainty,  most  agreements  include  at  least  some  clauses  on  coverage  of 
expenses  (e.g.,  coverage  of  expertise,  training)  (see  Section  2.4.3.).147  In  any  case,  one-off 
renegotiation costs would account only for a negligible share of undertakings’ turnover. Moreover, 
in a substantial number of cases, the necessary adaptations of EWC agreements could be agreed as 
part  of  regular  renegotiations,  entailing  no  or  only  very  limited  additional  costs  compared  to  the 
baseline.148  Option  3b  could  entail  also  limited  recurrent  adjustment  costs  for  undertakings. 
Specifically,  for  each  of  the  undertakings  with  EWCs  based  on  subsidiary  requirements  (20),  the 
increase in the number of annual plenary meetings is expected to lead to an additional cost of ca. 

146 ICF(2016), estimates adjusted to today’s prices. See Annex 4 ‘Analytical methods’ (Section 4.4.). 
147  ICF(2023),  Section  5.1.2.6.  In  the  targeted  survey,  ca.  35%  of  respondents  among  employee  representatives  and 
managers  (81  out  of  233)  stated  that  their  EWC  agreement  did  not  contain  any  provisions  on  financial  and  human 
resources.  
148 As mentioned above, EWC agreements are revised on average every 5 years.  

37 

 
 
EUR 42 000 per year.149 Moreover, the requirement to address the issues of access to experts, legal 
costs  and  costs  of  training  (including  related  expenses)  in  EWC  agreements  could  lead  to 
adjustment  costs  for  undertakings  in  respect  of  those  EWCs  where  these  aspects  were  not  yet 
clearly regulated. However, the scale depends on the results of autonomous negotiations between 
parties so cannot be estimated. All of the possible costs described above could at least partially be 
offset by the benefits for undertakings described further below. 

According  to  management  representatives,  the  requirement  of  a  reasoned  response  to  EWCs’ 
opinions prior to the adoption of a decision on transnational matters (options 3b and 3c) could also 
lead to indirect recurrent costs due to delayed decision-making.150 However, these concerns are not 
expected to materialise on a significant scale in practice, as EWCs would remain information  and 
consultation  bodies without substantive powers over management decisions, and  no such impacts 
have been substantiated with respect to other types of worker representation bodies that are already 
entitled  to  a  reasoned  response.151  Furthermore,  during  the  two-stage  consultation,  employer 
organisations  responded  that  an  obligation  to  provide  a  reasoned  response  to  an  EWC  opinion 
already exists in many agreements (see Section 2.4.3.). 

The amendments under option 3c regarding the concept of transnational matters, access to external 
experts  and  confidentiality  restrictions  could  incrementally  increase  one-off  renegotiation  costs 
compared to the baseline, as the parties to the agreement may need more time to agree on how to 
implement these requirements in practice. Moreover, several measures under option 3c are expected 
to  entail  recurrent  adjustment  costs:  a  broader  concept  of  transnational  matters,  combined  with 
management’s obligation to justify why a matter is not transnational in order to be discharged of the 
obligation to inform  and consult  the EWC,  is likely  to  lead to  more information  and consultation 
procedures and require increased capacity and resources allocated to EWCs; increased recourse by 
EWCs  to  external  expertise  and  related  fees;  costs  linked  to  the  requirement  to  obtain  a  prior 
authorisation  in  order  to  withhold  information  the  disclosure  of  which  would  seriously  harm  the 
undertaking.  In  proportion  to  the  global  turnover  of  the  undertakings  concerned,  these  costs  are 
nevertheless expected to be moderate as they would only incrementally increase the current costs of 
operating an EWC, described above. However, the indirect costs linked to a substantially broadened 
concept  of  transnational  matters  are  likely  to  be  more  significant,  due  to  frictions,  overlaps  and 
unclear  delineation  between  information  and  consultation  procedures  at  different  levels.152 
Likewise,  requiring  a  mandatory  prior  judicial  authorisation  in  order  to  avoid  the  disclosure  of 
potentially  harmful  information  could  lead  to  delays  in  decision-making  and  economic  harm, 
depending on the length of the relevant authorisation procedures. 

Benefits for undertakings: Option 3a would promote legal clarity regarding the relevant issues to a 
limited extent and thus potentially deliver small cost savings due to a marginally smaller number of 
disputes.  The  general  benefits  for  undertakings  linked  to  having  an  EWC153  would  likewise  be 
increased  due  to  option  3a,  by  means  of  smoother  information  and  consultation  procedures,  but 

149 See Annex 4 ‘Analytical methods’ (Section 4.4.). This policy option may affect also EWCs based on agreements, for 
which  the  subsidiary  requirements  can  serve  as  a  benchmark  during  the  negotiations.  Currently,  ca.  50%  of  EWC 
agreements provide for one annual plenary meeting. However, such an effect would be a free choice of the parties. 
150 ICF(2023), Section 5.1.2.3.  
151  The  requirement  of  reasoned  response  by  the  central  management  already  exists  for  EWCs  operating  based  on 
subsidiary requirements (Annex I point 1(a) of the Directive) and bodies of employee representatives at national level. 
152 ICF(2023), Section 5.1.2.3. 
153  For  example,  reinforcement  of  mutual  trust  on  both  sides  of  the  industrial  relationship,  better  informed  strategic 
decision-making, and better targeted measures accompanying structural change. Cf. Pulignano V. et al. (2016) op.cit., 
p. 56-57. 

38 

 
 
only to a negligible extent. As Option 3b would clarify the binding legal requirements with respect 
to several potentially contentious issues regarding those procedures, it is expected to increase legal 
certainty significantly and ensure more efficient information and consultation, delivering time and 
potential cost savings for undertakings. Particularly the requirement of a reasoned response prior to 
the adoption of a decision on transnational matters is expected to promote the trustful relationship 
between  the  parties,  and  thus  enable  them  to  exploit  better  the  potential  of  EWCs  to  facilitate 
smooth structural changes in the context of the challenges linked to the digital and green transition. 
As regards the common elements under options 3b and 3c the described benefits would also apply 
under option 3c, but due to the risk of frictions and overlaps between information and consultation 
requirements at different levels of representation (due to broadening of the concept of transnational 
matters), as well as the potential delays and indirect costs described above (e.g. prior authorisation 
requirement), option 3c is not expected to overall increase the benefits of EWCs for undertakings 
compared  to  the  baseline,  and  potentially  to  create  negative  consequence  compared  with 
undertakings without EWCs. 

Impacts  on  competitiveness:  Considering  that  the  costs  for  the  renegotiation  and  operation  of 
EWCs are negligible in relation to the turnover of undertakings with EWCs it is not expected that 
the options in this policy area would substantially affect undertakings’ competitiveness (see above 
‘Costs for Union-scale undertakings’ and Annex 12). In particular, option 3b does not contain far-
reaching enforcement measures of the kind that were mainly opposed by business organisations and 
management in the social partner consultation and other evidence-gathering activities. Conversely, 
while  option  3b  is  expected  to  have  significant  positive  impacts  on  social  dialogue,  potential 
positive  effects  on  the  competitiveness  of  companies  cannot  be  estimated  with  any  degree  of 
certainty. As the ability to take decisions  quickly and flexibly are key competitiveness factors for 
companies, the identified indirect costs under option 3c could have a moderate negative impact in 
this regard, due to possible inefficiencies and delays in the decision-making process (linked to the 
requirement of a mandatory prior authorisation when withholding potentially harmful information) 
as  well  as  frictions  with  information  and  consultation  procedures  at  national  level  (due  to  the 
broadened  concept  of  transnational  matters).  Moreover,  exempting  information-sharing  between 
EWCs  and  employee  representatives  at  national  or  local  level  from  confidentiality  restrictions 
would lower the protection of undertakings.   

Costs  for  Member  States:  Under  option  3c,  Member  States  would  be  required  to  ensure  the 
availability  of  procedures  for  the  prior  authorisation  of  the  non-disclosure  of  transnational 
information  that could  harm the respective undertaking. Although  Member States are expected to 
recoup  procedural  costs  from  undertakings  through  fees,  they  are  likely  to  incur  some  additional 
adjudication  costs  due  to  the  urgent  and  novel  nature  of  such  procedures,  which  none  of  the 
Member States has thus far established in national law. 

6.3.2. Social impacts 

Benefits for employees and companies (quality of social dialogue): Option 3a is expected to bring 
limited  positive  impacts.  While  it  would  contribute  to  better  application  of  information  and 
consultation rights of EWCs, the non-binding status of this option would make its effects uneven. 
Option 3b would create significant positive impacts on the information and consultation process of 
EWCs. By introducing binding clarifications regarding the concept of transnational matters in the 
enacting terms of the Directive, it would clarify the scope of EWCs’ information and consultation 
rights,  potentially  reducing  disputes.  Since  about  40%  of  stakeholders  (43,3  %  of  employees  and 
28,3 % of managers) report problems interpreting this concept, this would have a positive impact 
for  a  high  number  of  employees  and  their  representatives.  Under  option  3b,  the  requirement  for 
management to provide a reasoned response to EWC opinions prior to the adoption of a decision on 

39 

 
transnational matters, and the limitation of confidentiality to justified cases154, would also positively 
impact the quality of the dialogue at company level. It would namely allow for a timely information 
exercise  and  a  possibility  for  the  employee  representatives  on  EWCs  to  share  their  views  and 
contribute to the decisions of management. For undertakings with EWCs operating on the basis of 
subsidiary requirements (20), the requirement of at least two plenary meetings per year would lead 
to  a  more  regular  information  and  consultation  on  transnational  matters,  which  would  positively 
impact the quality of the social dialogue. There would also be an unquantifiable spill-over effect on 
undertakings with EWCs operating on the basis of agreements (of which ca. 50 % currently require 
only  one  annual  plenary  meeting).  The  requirement  under  option  3b  for  the  parties  to  agree  on 
appropriate resourcing, including on coverage of legal costs, of the EWCs could also lead to higher 
quality information and consultation processes and decision-making, with potential benefits leading 
to  a  more  involved  workforce,  improved  working  conditions  across  the  Union-scale  undertaking 
and alternative solutions or mitigating measures to prevent job losses and promote better adaption 
to  change.  Option  3c  would  bring  moderate  benefits.  Some  measures  under  this  policy  option 
would  clearly  be  beneficial  for  employees.  For  example,  broadening  the  scope  of  transnational 
matters would allow for a higher number of issues to be discussed as part of the information and 
consultation at EU level. However, as the elements of transnationality considered under this option 
are defined in very broad terms, they could also lead to additional legal uncertainty compared to the 
baseline155. Although these impacts cannot be quantified, it  can be assumed that this extension of 
the definition of transnational matters would be overall negative, leading to conflict with national 
and  local  levels  of  information  and  consultation.  The  obligation  for  management  to  justify  that  a 
matter  is  not  transnational  could  lead  to  EWCs’  members  receiving  more  information.  However, 
this  is  rather  an  indirect  impact.  On  balance,  the  social  impact  of  broadening  the  concept  of 
transnational  matters  under  option  3c  is  likely  to  be  limited.  A  general  right  to  assistance  from 
experts under option 3c  could  optimise the  information and  consultation  process,  with  efficiency 
gains. This is corroborated by the 2018 ETUI survey, which indicates that, in case of restructuring, 
the support of a trade union coordinator or expert contributed to better decision making. In relation 
to  information  and  consultation  process,  option  3c  would  exempt  from  the  confidentiality 
obligation EWC members when sharing information protected by confidentiality  with  national  or 
local representatives. This  could facilitate the coordination between employees’ representatives at 
different levels with potential benefits for the effective presentation of employees’ interests in the 
consultation  procedure.  However,  the  facilitation  of  cross-border  exchange  of  confidential 
information  could  also  lead  to  difficulties  in  practice  (including  legal  risks  for  the  employee 
representatives)  due  to  the  differences  of  national  legal  regimes  on  protection  of  confidential 
information. 

Impacts  on  fundamental  rights:  Policy  options  under  Area  3  would  promote  employees’  right  to 
information and consultation within the undertaking (Article 27 CFR) and indirectly also the right 
to an effective remedy (Article 47 CFR). While benefits under option 3a would be limited due to 
its non-binding nature, option 3b, by significantly improving conditions for a genuine dialogue on 

154 This measure would entail changes to the legal situation for EWCs and management subject to the national laws of 
Member  States  which  have  taken  over  the  wording  of  Article  8  of  the  Directive  into  their  national  laws  without 
requiring further justification of the imposition of confidentiality (CY, ES, IE, LU, LV, MT, NL, PL, RO, SI, SK). (See 
Annex 8). 
155  The  evidence  gathering  by  ICF(2023),  Section  5.1.2.3.,  shows  that  while  a  great  majority  of  employees’ 
representatives  are  in  favour  of  including  such  elements  as  “matters  that  affect  directly  or  indirectly  more  than  one 
Member State”, “decisions taken by the headquarters affecting employees in another Member State than the one where 
the headquarters is located”, employers’ views have mostly neutral to negative views on the first and mostly negative 
on the latter. 

40 

 
 
transnational matters, as described in detail in the section on ‘social impacts’ above, is expected to 
have a significant positive impact on the effectiveness of the fundamental right set out in Article 27 
CFR.  The requirement under that option  for the  parties  to  agree how to  cover EWCs’ legal  costs 
(and  in  the  case  of  EWCs  operating  on  the  basis  of  subsidiary  requirements  for  management  to 
cover such expenses as far as they are reasonable) would also positively contribute to the capacity 
of  employee  representatives  to  access  legal  advice  and  justice.  Such  benefits  would  be  moderate 
under option 3c. While that option would significantly strengthen EWCs’ right to involve external 
experts (including legal experts) and improve EWCs’ access to relevant information by limiting the 
possibility of management to impose confidentiality or withhold information, the broader concept 
of  transnational  matters  risks  creating  new  issues  of  delineation  between  information  and 
consultation  requirements  at  different  levels  of  representation,  possibly  legal  uncertainty  and 
disputes, and frictions with procedures at national/local level.  

6.4. Impacts of policy options under Policy Area 4 

6.4.1. Economic impacts 

Costs for undertakings:  Option 4a is  expected to entail  only  very limited additional enforcement 
costs for undertakings. While no certain assumptions can be made about the implementation rate, 
there  is  a  plausible  risk  that  those  Member  States  which  have  thus  far  not  ensured  effective 
sanctions and remedies will be least inclined to follow the Commission recommendations. In such a 
case, there would be limited impact on undertakings’ enforcement costs compared to the baseline. 
Option  4b  could  create  significant  enforcement  costs  for  sanctioned  undertakings,  as  the 
requirement to ensure dissuasive and effective sanctions, and in particular to take into account their 
annual turnover when determining pecuniary sanctions , could lead to a substantial increase in the 
amounts of fines imposed in all Member States, considering that penalties are generally negligible 
under  the  baseline  scenario.156  However,  it  is  important  to  note  that  the  national  authorities  and 
courts  must,  when  determining  the  level  of  sanction,  observe  the  principle  of  proportionality  in 
relation  to  the  gravity,  scope,  impacts,  duration  and  other  relevant  factors  characterising  the 
offence. Moreover, these costs would materialise only in a small number of cases: although some 
policy measures such as the clarified coverage of legal costs (options 2b and 3b) and the improved 
access to justice under option 4b might facilitate legal actions, the incidence of legal disputes and 
sanctions in this policy area is expected to remain low, as the prospect of the possible imposition of 
dissuasive  and  effective  sanctions  by  Member  States’  authorities  is  expected  to  have  rather  a 
deterrent effect which could reduce the number of offences giving rise to legal actions. Moreover, 
while  option  4b  cannot  entirely  overcome  the  existing  fragmentation  of  national  provisions  on 
sanctions, given that the relevant Treaty legal basis only allows for the establishment of minimum 
requirements, it is expected to decrease fragmentation and improve legal certainty compared to the 
baseline scenario, as Member States would be provided with significantly more specific guardrails 
than  under  the  current  Directive.  Under  option  4c,  sanctioned  undertakings  would  face  very 
significant  costs  in  the  form  of  pecuniary  sanctions,  which  based  on  average  turnover  of 
undertakings  with  an  EWC,  could  be  up  to  4000  times  higher  than  the  highest  administrative 
sanctions  currently  available  in  any  Member  State.157  Moreover,  the  possibility  of  suspending 
management  decisions  in  the  case  of  a  claimed  violation  of  information  and  consultation 

156  Current  administrative  sanctions,  although  varying  greatly  between  Member  States,  would  not  exceed  €  190.000, 
representing  0.0008%  of  the  average  undertaking  with  an  EWC’s  worldwide  average  turnover.  Most  Member  States 
have however much lower caps on administrative penalties, e.g., € 15.000 in Germany. See Annex 8. 
157 In Spain, an upper limit of € 187.500 applies. 

41 

 
 
requirements  could  lead  to  substantial  economic  losses  in  the  form  of  foregone  business 
opportunities.  

Impacts on competitiveness: Option 4a is unlikely to lead to significant changes in Member States’ 
enforcement  practice,  and  any  possible  impacts  on  undertakings’  competitiveness  (cost  and  price 
competitiveness or undertakings’ capacity to innovate) would therefore be null or negligible. Such 
impacts, if any, are also expected to be negligible or very limited under option 4b, considering the 
low incidence of legal action in this policy area and the principle of proportionality that has to be 
observed  when  determining  the  level  of  sanctions.  For  sanctioned  undertakings,  the  drastic 
sanctions  and  remedies  envisaged  under  option  4c  are  likely  to  have  a  moderate  to  significant 
impact  on  competitiveness.  While  the  fines  approaching  the  ceiling  of  4%  of  global  turnover  are 
unlikely  to  be  imposed  in  any  but  in  the  most  extreme  cases,  the  suspension  of  management 
decisions could affect undertakings’ ability to seize business opportunities quickly. In the targeted 
survey158, a strong majority of management representatives considered that the sanctions envisaged 
under option 4c would have a negative or very negative impact on the international competitiveness 
of  EU-based  companies.  Considering  that  effective  and  agile  decision-making  is  a  key  factor  for 
undertakings’ competitiveness, it is expected that option 4c would have tangible negative effects on 
competitiveness. 

Impacts  on  consumer  prices:  Despite  the  described  implications  of  option  4c  for  the 
competitiveness  of  sanctioned  undertakings,  noticeable  consumer  price  effects  are  considered 
unlikely even under this most far-reaching option. Firstly, sanctions and remedies will apply only in 
a small number of individual cases and are thus unlikely to feed into the pricing considerations of 
Union-scale  undertakings.  Secondly,  it  is  expected  that  competitive  pressures  on  sanctioned 
undertakings will disincentivise them from passing enforcement costs on to consumers. 

Costs  for  Member  States:  The  one-time  notification  obligation  under  options  4b  and  4c  would 
entail  limited  administrative costs for Member States which would need to  collect  and send 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  could  be 
discharged as a part of the standard process of notifying transposition measures via the available IT 
systems, thus creating only negligible added costs.  

By promoting a more effective access to courts, the recommendations under option 4a could entail 
limited  adjudication  costs  for  Member  States  choosing  to  facilitate  actions,  considering  in 
particular  that  EWCs  are  exempted  from  court  fees  in  eight  Member  States.159  The  evidence 
remains  inconclusive  to  what  extent  option  3b  would  lead  to  an  increase  in  the  number  of  legal 
actions brought by rightsholders under the Directive, and thus adjudication costs. Social partners in 
undertakings  usually  consider  such  actions  as  a  last  resort  and  the  risk  of  higher  sanctions  could 
also  contribute  to  a  better  compliance  rate.  Moreover,  the  expected  higher  pecuniary  sanctions 
imposed under this option could offset additional adjudication costs, as such penalties are assumed 
to  accrue  to  Member  States’  budgets.  This  effect  would  be  more  pronounced  under  option  4c, 
which  involves  the  imposition  of  very  significant  fines.  The  drastic  sanctions  under  this  option, 
including  also  the  suspension  of  management  decisions,  are  also  expected  to  have  a  strong 
dissuasive  effect  and  therefore  to  lead  to  an  overall  decrease  of  infringements,  and  consequently, 
legal actions. 

158 ICF(2023), Section 5.1.2.7. 
159  AT,  LT,  ES,  BG,  FR,  DE,  RO,  SE,  NL.  Cf.  ETUC  report  by  Jagodziński  /  Stoop  (2023)  Access  to  Justice  for 
European Works Councils, p. 31. 

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6.4.2. Social impacts 

Benefits  for  employees  and  undertakings:  As  a  general  rule,  strengthened  enforcement  promotes 
compliance  with  information  and  consultation  requirements  and  thus  has  a  positive  impact  on 
application of employees’ rights and social dialogue on transnational matters. Under option 4a, this 
benefit is expected to materialise to a limited extent, owing to the non-binding nature and possibly 
limited  take-up  of  the  Commission  recommendations.  Option  4b  is  expected  to  significantly 
improve the implementation of the Directive, and thus social dialogue on transnational matters, as it 
would  ensure  improved  access  to  justice  for  an  estimated  4.3  million  employees160  and  facilitate 
compliance oversight by the Commission. The requirement to determine pecuniary sanctions taking 
account  of  undertakings’  annual  turnover  is  also  expected  to  provide  an  effective  incentive  to 
respect  employees’  information  and  consultation  rights.  While  option  4b  does  not  lead  to  a  full 
harmonisation  of  national  enforcement  provisions  as  it  leaves  autonomy  to  Member  States  to 
determine  the  types  of  sanctions  for  specific  infringements  and  the  methodology  for  determining 
their level, the explicit requirement that account must be also taken of the sanctioned undertakings’ 
turnover, in addition to other aggravating or mitigating factors (eg. duration, seriousness, impacts of 
offence),  would  significantly  improve  the  implementation  compared  to  the  baseline.  Option  4c 
would  create  very  far-reaching  sanctions  and  remedies,  thus  ensuring  strong  deterrence  of 
violations of rights under the Directive. On the other hand, although they remain highly uncertain, 
potential  negative  impacts  on  employment  under  option  4c,  which  could  significantly  affect  the 
financial  situation  of  the  sanctioned  undertakings,  cannot  be  ruled  out  given  the  competitiveness 
implications described above.  

Impacts on fundamental rights: For the reasons set out under ‘social impacts’, option 4a is expected 
to promote the fundamental rights to an effective remedy and to information and consultation to a 
limited extent. As mentioned, option 4b would deliver better access to justice for a large number of 
employees and further the quality of social dialogue by ensuring more dissuasive penalties. These 
effects  could  amount  to  moderate  to  significant  benefits  in  terms  of  upholding  said  fundamental 
rights. The same is true for option 4c.  

7.  HOW DO THE OPTIONS COMPARE? 

Having regard to the assessment of impacts of the policy options described in Section 6 and Annex 
12,  the  options  are  compared  per  Policy  Area  based  on  the  criteria  of  effectiveness,  efficiency, 
coherence  and  proportionality.  A  table  at  the  end  of  this  section  provides  an  overview  of  the 
comparative  scoring  of  the  options  against  the  baseline,  in  accordance  with  the  considerations  in 
Sections 7.1. to 7.4.  

7.1.Effectiveness  

Indicators of effectiveness for comparing options under Policy Areas 1, 2, 3 and 4 

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increased number of employees in Union-scale undertakings who can rely on information and consultation 
rights under Directive 2009/38; 
improved clarity and simplicity of the legal framework; 
a more consistent and simplified legal framework for Union-scale undertakings 

160  Evidence  gathering  suggest  that  between  13-14  %  of  employees  and  their  representatives  do  not  have  access  to 
enforce their rights under the EWC Directive in the Member States (see Annex 12 Section 5). 

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4

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legal clarity and certainty of the process for setting up EWCs; 
reduce delays and eliminate obstacles in the setting-up of EWCs; 
ensure that special negotiating bodies have necessary means and resources; 
a gender-balanced composition of EWCs and select committees 

improved timeliness and quality of information and consultation on transnational matters; 
consistency with management’s ability to take decisions effectively 
reduce disputes (e.g. concerning transnationality, confidentiality, timing and nature of consultation); 
ensure EWCs have necessary means and resources; 

access of rightsholders to adequate redress and removal of procedural obstacles to legal action; 
sufficient deterrence of breaches of the rights under the Directive in all Member States; 
consistency with management’s ability to take decisions effectively. 

Policy  area  1:  Option  1a  can  effectively  expand  minimum  transnational  information  and 
consultation rights to employees of all Union-scale undertakings, overcome the complexity created 
by  the  co-existence  of  multiple  legal  regimes  and  achieve  a  simplified  and  more  coherent  legal 
framework  for  those  undertakings.  Option  1a  could  further  improve  the  quality  of  transnational 
social  dialogue  as  it  would  provide  social  partners  in  currently  exempted  undertakings  with  an 
opportunity to establish an EWC, subject to the complete set of rights of the Directive. 

Policy  area  2:  While  interpretative  guidance  (option  2a)  is  expected  to  facilitate  the  process  of 
setting  up  EWCs,  its  take  up  is  likely  to  be  uneven  so  it  is  unlikely  to  deliver  legal  clarity  and 
certainty to a large extent. The clarifications of the binding requirements under options 2b and 2c, 
in conjunction with the accompanying measures, significantly reduce the risk of disputes and delays 
following a request  to  set  up an  EWC and ensure that SNBs  have  the  means to  secure  necessary 
legal  support  during  the  negotiations.  Option  2c  scores  highest  because  it  also  contributes  to 
achieving a gender-balanced composition of EWCs. 

Policy  area  3:  All  options  would  contribute  to  increasing  legal  clarity  regarding  the  operation  of 
EWCs and to promoting a genuine exchange of views. Options 3b and 3c are likely to be effective 
in  this  regard,  while  the  take-up  rate  of  non-binding  interpretative  guidance  (option  3a)  is 
uncertain.  Specifically,  the  requirement  for  a  reasoned  response  to  EWCs’  opinion  prior  to  the 
adoption of a decision on transnational matters, common to options 3b and 3c, is an effective tool 
to improve the timeliness and quality of social dialogue on transnational matters. Option 3b is also 
expected  to  pre-empt  disputes  and  divergent  interpretations  by  clarifying  the  concept  of 
transnational  matters  and  management’s  right  to  impose  confidentiality  or  withhold  information. 
Option  3c  would  be  moderately  effective  in  that  regard,  as  it  would  increase  overlaps  between 
transnational  matters  and  matters  reserved  to  information  and  consultation  at  national/local  level 
and create  frictions and  disputes.  The  far-reaching measures  concerning confidentiality  envisaged 
by option 3c could unbalance the relationship between management and EWCs.  

As regards the coverage of EWCs’ expenses, all options could contribute to increased clarity, but 
only options 3b and 3c, including their accompanying measures, would ensure enforceable rights. 
However, insofar as option 3c confers a broad right on EWCs to involve any experts at the cost of 
undertakings,  it  overshoots  what  is  appropriate  in  the  context  of  this  instrument,  under  which 
modalities  of  EWCs’  operation,  including  resources,  are  to  be  determined  by  the  parties  in  their 
agreement. In this respect, option 3c is therefore less targeted and effective. 

Policy  area  4:  Option  4a  scores  lowest  in  terms  of  effectiveness,  primarily  because  the  Member 
States  which  have  thus  far  not  ensured  sufficient  enforcement  of  transnational  information  and 
consultation rights are least likely to implement non-binding recommendations in this area. Option 
4b  would  incrementally  strengthen  existing  general  rights  to  adequate  redress,  increase  the 
deterrent  effect  of  pecuniary  sanctions  and  facilitate  monitoring  by  the  Commission.  Its 
effectiveness would be reinforced also by the accompanying measure. Option 4c would introduce 

44 

 
 
 
 
 
 
 
 
 
 
 
the  most  powerful  sanctions  and  remedies,  including  the  possibility  to  suspend  the  effect  of 
management  decisions.  On  the  other  hand,  option  4c  might  impinge  on  undertakings’  decision-
making prerogative, safeguarded under the Directive. This raises doubts as to its effectiveness.  

7.2.Efficiency  

Indicators of efficiency for comparing options under Policy Areas 1, 2, 3 and 4 

  -  Compliance costs for undertakings (incl. renegotiation costs, possible opportunity costs, expertise costs) 

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Social costs: effects on quality of social dialogue  
-  Compliance and enforcement costs to the public sector  

  -  Compliance costs for undertakings  

2

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-  Legal costs of disputes between SNB / employees’ representatives and management 
- 

Enforcement costs to the public sector (of judicial or other dispute resolution proceedings) 

-  Cost of renegotiating EWC agreements with new requirements 
-  Cost of provision by management of expertise and resources for EWCs 
-  Other compliance costs for undertakings (e.g. costs of providing a written response to EWC opinion, 
justification of absence of transnational issues, criteria for imposition of confidentiality restrictions) 

-  Legal costs of disputes between EWC and management 
-  Opportunity costs / foregone revenue linked to impediments to decision-making of companies (e.g., due to 

delays caused by I+C procedure) 

-  Overlaps with information and consultation at national level 
- 

Enforcement costs to the public sector (of judicial or other dispute resolution proceedings, prior authorisation 
of non-disclosure of information) 

-  Compliance, administrative and enforcement costs to the public sector (of judicial or other dispute resolution 

proceedings, notification of how to access redress) 

-  Enforcement costs linked to pecuniary sanctions for undertakings 
-  Revenue to public sector (fines) 
- 
-  Opportunity costs (lost revenue) 

Potential to halt or delay decision-making of undertakings  

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Policy Area 1: The deletion of the exemptions under option 1a is an efficient way to achieve the 
social benefits linked to the application of the Directive to all Union-scale undertakings and to their 
EU  employees.  The  possible  one-off  adjustment  costs  and  marginal  opportunity  costs  due  to  the 
establishment of new EWCs in some of the 323 undertakings with voluntary agreements161 and the 
renegotiation of some of the 28 Article 14 agreements represent a negligible share of undertakings’ 
turnover.162  While  the  economic  and  internal  market  benefits  of  creating  a  simplified  and  more 
coherent legal framework are expected to be negligible, the identified negligible economic costs are 
expected to be outweighed by the social benefits of giving all employees the same right to request 
the establishment of an EWC. The efficiency of option 1a is amplified, for instance, by the fact that 
the inclusion of currently exempted undertakings in the scope of the Directive ensures justiciability 
under EU law, in line with the fundamental right to an effective remedy.  

Policy Area 2: Option 2a is moderately more efficient compared to the baseline, as it is expected to 
deliver  limited  positive  impacts  on  the  functioning  of  SNBs  while  creating  only  negligible 
compliance costs for undertakings. Although under option 2b undertakings are more likely to incur 
limited  adjustment  costs  due  to  SNBs’  possibly  more  frequent  recourse  to  legal  advice  and 
remedies,  this  option  performs  well  against  the  criterion  of  efficiency  because  it  promotes  a 
smoother process of negotiating and renegotiating EWC agreements as well as the quality of those 

161 As mentioned in Section 6.1., it is not possible to estimate the incidence of requests to establish an EWC in currently 
exempted undertakings with voluntary agreements. 
162 See Section 6.1.1. for the estimated average costs of negotiating new EWC agreements and estimated average costs 
of renegotiation. 

45 

 
 
 
 
 
 
 
 
 
 
 
 
agreements.  The  costs  are  expected  to  be  negligible  considering  the  turnover  of  the  relevant 
undertakings.  Option  2c  is  highly  efficient  as  it,  in  addition,  promotes  a  more  gender-balanced 
composition  of  EWCs  without  imposing  additional  costs  on  undertakings.  Costs  linked  to  legal 
uncertainty  or  procedural  frictions  are  minimised  by  the  envisaged  flexible  approach,  which 
consists  in  allowing  parties  to  agree  on  arrangements  towards  achieving  the  gender  balance 
objective without imposing a hard quota. The risk of tensions with the CJEU case law on positive 
action  or  the  various  national  rules  and  practices  governing  the  selection  of  employees’ 
representatives  is  thus  avoided.  Improved  gender  balance  is  expected  to  be  conducive  to  a  better 
quality  of  EWCs’  opinions,  which  can  in  turn  positively  impact  management  decisions  on 
transnational matters and thus contribute indirectly to improved working conditions. 

Policy  Area  3:  As  option  3a  could  deliver  limited  social  benefits,  in  terms  of  a  smoother 
information  and  consultation  process  and  prevention  of  disputes  due  to  improved  legal  clarity, 
while  creating  only  negligible  adjustment  costs  for  undertakings,  it  is  considered  moderately 
efficient.  Although  option  3b  would  entail  certain  one-off  and  recurrent  adjustment  costs  for 
undertakings  with  an  EWC,  those  costs  should  be  outweighed  notably  by  the  expected  social 
benefits. For instance, option 3b is expected to significantly improve  legal clarity and the smooth 
functioning of the transnational information and consultation process. Consequently, undertakings 
stand  to  benefit  from  the  opportunity  to  better  exploit  EWCs’  potential  to  facilitate  sustainable 
management  choices.  Employees,  on  the  other  hand,  could  benefit  from  a  more  effective 
representation  of  their  interests,  potentially  resulting  in  better  working  conditions.  In  contrast, 
option  3c,  while  likely  to  achieve  certain  social  benefits  by  strengthening  the  resourcing  and 
information  of  EWCs,  performs  worse  than  the  baseline  in  terms  of  efficiency  as  undertakings 
could  incur  significant  indirect  costs  linked  to  slower  decision-making  if  a  broadened  concept  of 
transnational  matters  entails  frictions,  overlaps  and  unclear  delineation  between  information  and 
consultation  procedures  at  different  levels  of  representation,  as  well  as  potentially  higher  direct 
costs for companied due to  an increased need for capacity and resources of EWCs. Similarly, the 
need  for  management  to  obtain  a  prior  authorisation  to  withhold  potentially  harmful  information 
could  entail  delays  in  decision-making  and  hamper  the  efficiency  of  the  information  and 
consultation process overall.  

Policy  Area  4:  Although  option  4a  would  entail  only  very  limited  enforcement  costs  for 
undertakings and adjudication costs for Member States, it is expected to strengthen the enforcement 
of rights  under the  Directive only  to  a limited extent.  In  contrast,  option  4b is  considered highly 
efficient, as it is expected to  improve compliance with information and consultation requirements 
significantly, by facilitating monitoring by the Commission, requiring pecuniary sanctions to be set 
at a meaningful level, and promoting access to justice for an estimated 4.3 million employees at an 
overall moderate cost. Considering the associated social benefit of an improved social dialogue on 
transnational  matters,  the  fact  that  option  4b  could  entail  significant  enforcement  costs  for 
sanctioned undertakings does not negate its efficiency, because this measure is mainly expected to 
have  a  deterrent  effect,  and  the  incidence  of  legal  actions  and  pecuniary  sanctions  is  likely  to 
remain  low.  The  requirement  to  consider  turnover  when  determining  pecuniary  sanctions  is  not 
expected  to  create  disproportionate  costs  even  for  non-compliant  undertakings,  because  Member 
States  would  be  legally  required  to  levy  sanctions  in  proportion  to  the  gravity,  scope,  impacts, 
duration and other relevant factors characterising the respective offence. Consequently, option 4b is 
expected to affect competitiveness only to a negligible extent, if at all. In contrast, under option 4c, 
sanctioned undertakings would face the risk of – possibly costly – delays in decision-making and 
pecuniary sanctions representing a significant share of their global turnover, since the upper limit of 
2% or 4% risks acting as an indicator of the very substantial level of pecuniary sanction expected. 
Although such drastic sanctions are likely to be rare in practice and to nevertheless deliver a strong 
dissuasive  effect  and  associated  social  benefits  in  terms  of  compliance  with  information  and 

46 

 
consultation  requirements,  their  ability  to  affect  the  international  competitiveness  of  sanctioned 
undertakings prevents a positive efficiency score compared to the baseline.  

7.3.Coherence  

Indicators of coherence for comparison of options under Policy Areas 1, 2, 3 and 4 

-  EWC Directive objective and principles163 
-  Art 27 CFR (workers’ right to information and consultation within the undertaking) 
- 

Principles of the European Pillar of Social Rights (Principle 8 - protection of social dialogue, recognition of 
social partners) 

Principles of the European Pillar of Social Rights, Principle 8  

-  EWC Directive objective and principles  
- 
Principle of effectiveness of EU law  
-  Articles 23 (equality between women and men) and 27 CFR 
- 
-  EU Gender Equality Strategy 
-  EWC Directive objective and principles, including the legal basis  
-  Objectives & principle of effectiveness of EU law  
-  Articles 16 (freedom to conduct a business) and 27 CFR 
-  European Pillar of Social Rights, Principle 8  
-  EU acquis on informing and consulting workers at national / local level164  
-  Enforcement costs to the public sector  
-  National rules on confidentiality 
-  EWC Directive objective and principles 
- 
-  Articles 27 and 47 (right to an effective remedy and to a fair trial) CFR 
-  European Pillar of Social Rights, principle 8  
-  EU acquis on information and consultation workers at national / local level  
-  National enforcement systems 

Principle of effectiveness of EU law and effective sanctions and remedies 

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Policy  Area  1:  Option  1a  is  coherent  with  the  general  principles  of  legal  clarity  and  equal 
treatment,  and  employees’  right  to  information  and  consultation  expressed  in  Article 27 CFR  and 
Principle 8 of the Pillar. By removing the exemptions from the scope, employees of all Union-scale 
undertakings  would  be  entitled  to  request  the  establishment  of  an  EWC,  in  line  with  the  revised 
Directive,  while  having  the  choice  to  continue  with  the  voluntary  agreement.  This  approach  is 
consistent  with  the  legislator’s  choice  not  to  make  EWCs  mandatory  in  all  Union-scale 
undertakings.  

Policy Area 2: All options in this policy area are coherent with Article 27 CFR and Principle 8 of 
the Pillar. Option 2c is most conducive to increasing balanced representation of men and women in 
the EWC context, and thus most coherent with Article 23 CFR, Article 6(2)(b) of the Directive and 
the Commission’s  Gender Equality  Strategy165, which aims to  mainstream  the gender perspective 
into different policy areas. Therefore, option 2c is most coherent overall. 

Policy Area 3: All options in this policy area are coherent with Article 27 CFR and Principle 8 of 
the Pillar. They aim to address the lack of clarity of the concept of transnational matters and limit 
the scope for dispute. Both options 3b and 3c require a reasoned response by management to the 
EWC’s  opinion,  reinforcing  an  effective  dialogue,  so  giving  expression  to  Article  27  CFR  and 

163 The internal coherence with the objectives and basic principles of the Directive is assessed, because in line with the 
generally positive evaluation of the Directive in 2018, the initiative is intended to address specific shortcomings of the 
existing framework in a targeted manner, without changing its fundamental nature. 
164 Directives 98/59/EC, 2001/23/EC and 2002/14/EC. 
165 COM(2020) 152 final. 

47 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Principle 8 of the Pillar. On the other hand, option 3c, which substantially expands this concept, is 
less coherent with the relevant EU acquis, which requires that employees and their representatives 
be guaranteed information and consultation at the relevant level of management and representation, 
according to the subject under discussion. To achieve this, the competence and  scope of action of 
EWCs must be distinct  from that of national  representative bodies  – contrary to  them, EWCs are 
not bodies for negotiating with the management166 – and must be limited to transnational matters.167 

Concerning resources, option 3b is coherent with the principle of party autonomy enshrined in the 
Directive,  by  leaving  the  necessary  flexibility  to  design  solutions  corresponding  to  the  specific 
needs and situation of each EWC and Union-scale undertaking. In contrast, option 3c sets binding 
requirements regarding EWCs’ resources and thus is not coherent with this principle. 

The  existing  provisions  of  the  Directive  on  confidentiality  are  generally  consistent  with  the 
corresponding  provisions  in  other  relevant  EU  Directives168.  By  limiting  management’s  right  to 
require  confidentiality  to  cases  of  legitimate  interest,  options  3b  and  3c  would  further  align  the 
Directive with the wording of Directive 2002/14/EC. Unlike the other options. option 3c imposes a 
new  mandatory  requirement  of  prior  authorisation  where  management  withholds  potentially 
harmful  information.  This  requirement  could  lead  to  significant  delays  in  companies’  decision 
making, which would also not be coherent with Article 1(2) of the Directive and may interfere with 
the  freedom  to  conduct  a  business  enshrined  in  Article  16  CFR.  It  is  also  not  coherent  with  the 
existing national laws on the matter, as none of the Member States has thus far used the option to 
impose  such  a  requirement.  Likewise,  under  option  3c,  exempting  information-sharing  between 
EWCs  and  national  or  local  employee  representatives  from  confidentiality  restrictions  creates 
issues of coherence as it falls within the competence of each Member State to determine the criteria 
and  conditions  for  imposing  confidentiality.  National  laws  could  be  breached  if  EWCs  were 
authorised to share information with employee representatives in another Member State where the 
same information is not subject to an equivalent obligation of confidentiality. 

Policy area 4: Options 4a and 4b would be coherent with the existing provisions of the Directive 
and relevant general EU law principles concerning sanctions, remedies and access to justice. They 
are  also  aligned  with  the  principle  of  effective  company  decision-making  (Article  1(2)  of  the 
Directive)  and  the  freedom  to  conduct  a  business  (Article  16  CFR),  as  they  do  not  introduce 
specific  binding  enforcement  measures  that  could  interfere  with  companies’  ability  to  implement 
the  necessary  management  decisions  quickly.  However,  insofar  as  a  recommendation  on 
enforcement matters in the field of information and consultation (option 4a) and the determination 
of  pecuniary  sanctions  in  proportion  to  company  turnover  (option  4b)  would  represent  novel 
approaches  in  the  EU’s  legislative  framework  on  information  and  consultation,  these  options  are 
not  entirely  aligned  with  other  legislation  in  this  field.  The  high  maximum  levels  of  pecuniary 
sanctions and the possibility to suspend management decisions under option 4c are less coherent 
with  those  principles  and  with  other  EU  labour  law  directives,  none  of  which  provides  for  a 
concrete set of sanctions, leaving their determination to Member States’ procedural autonomy. This 
autonomy  is  subject  to  the  general  requirement  for  penalties  to  be  ‘effective,  dissuasive  and 
proportionate’. 

166  The  information  and  consultation  procedures  established  in  Directives  98/59/EC,  2001/23/EC  and  2002/14/EC 
oblige management to inform and consult the national workers’ representatives on the topics specified in the directives 
‘with a view to reaching agreement’, whereas such requirement is not included in the recast Directive.  
167 Article 1(3) in connection with recital 15 of the recast Directive. 
168 Directive 2002/14/EC (Article 6), Directive 2001/86/EC (Article 8), Directive 2003/72/EC (Article 10). 

48 

 
 
7.4. Proportionality169 

Policy  Area  1:  Option  1a  promotes  the  objective  without  going  beyond  what  is  necessary  to 
achieve  it,  while  allowing  for  the  possibility  to  continue  transnational  social  dialogue  based  on 
voluntary agreements if neither employees nor management choose to initiate the establishment of 
an EWC. This option would preserve the principle of social partner autonomy regarding the choice 
between setting up an EWC or following a different approach with regard to employee involvement 
on transnational matters. This approach is expected to lead to an expansion of the application of the 
Directive  only  to  those  previously  exempted  undertakings  in  which,  in  the  eyes  of  employees 
representatives or management, a  pre-existing  ‘voluntary’ agreement did  not  ensure a sufficiently 
effective framework, compared to the Directive, for transnational information and consultation. 

Policy  Area  2:  Option  2a,  being  the  least  intrusive,  appears  rather  weak  in  relation  to  the 
challenges  in  the  set-up  phase,  and  thus  scores  low  on  proportionality.  Option  2b  is  suitable  to 
increase  legal  clarity  regarding  the  setting-up  of  SNBs  and  their  resources  but  does  not  address 
gender-balance.  Option  2c  would  also  improve  gender  balance,  without  going  beyond  what  is 
necessary  or  imposing  an  excessive  burden  on  undertakings  or  employees’  representatives. 
Accordingly, Option 2c performs best in terms of proportionality. In particular, it would allow for 
sufficient  flexibility  to  implement  the  envisaged  gender-balance  objective  without  compromising 
the functioning of EWCs, and to take full account of the case-law of the CJEU on positive action as 
well  as  the  established  national  rules  and  practices  for  the  nomination  of  employees’ 
representatives. 

Policy Area 3: While option 3a entails the least costs and no binding new requirements, it is also 
less likely to ensure the appropriate resourcing of all EWCs and a more effective information and 
consultation  process.  Option  3b  strikes  the  most  proportionate  balance  between  promoting  that 
policy  objective  and  avoiding  excessive  burden  or  restrictions  on  undertakings,  whereas  several 
elements  of  option  3c  go  beyond  what  is  necessary  and  appropriate.  Specifically,  option  3b 
clarifies  the  concept  of  ‘transnational  matters’  without  encroaching  on  subject-matters  of  purely 
national relevance for which EWCs are not the appropriate level of employee involvement. Option 
3b also does not curtail the autonomy of the parties to the EWC agreement to negotiate tailor-made 
solutions  (e.g.  regarding  access  to  experts  and  training,  and  coverage  of  costs).  It  leaves  broad 
discretion to Member States in implementing the revised minimum requirements, allowing them to 
integrate  those  requirements  into  their  respective  rules  and  traditions  on  the  involvement  of 
employees,  which  vary  widely,  and  where  appropriate  to  complement  them.  Regarding 
confidentiality, the compatibility of option 3c with the proportionality principle is doubtful insofar 
as  it  would  require  management  to  seek  prior  judicial  or  administrative  authorisation  to  withhold 
information  from  an  EWC  to  prevent  serious  harm  to  the  undertaking.  Such  a  burdensome 
requirement was thus far not considered appropriate by any Member State. 

In light of these considerations, option 3b is assessed most positively in terms of proportionality, 
followed by option 3a. 

Policy area 4: Option 4b would set out Member States’ general obligation to ensure an adequate 
enforcement of the Directive in a binding manner and facilitate a more effective supervision by the 
Commission  of  the  relevant  implementing  provisions.  Due  to  their  more  targeted  and  effective 
nature, these measures are more proportionate than the non-binding recommendations under option 
4a.  Specifically,  the  requirement  to  take  into  account  turnover  when  determining  pecuniary 

169 Assessed in accordance with Better Regulation Tool #5. 

49 

 
 
sanctions  ensures  that  sanctions  are  proportionate  to  the  financial  capacity  of  non-compliant 
undertakings,  and  thus  dissuasive  and  effective,  while  national  authorities  and  courts  must  at  the 
same  time  ensure  that  the  percentage  of  turnover  levied  as  a  sanction  is  fully  proportionate  in 
relation  to  the  gravity,  scope,  impacts,  duration  and  other  relevant  factors  characterising  the 
offence.  In  contrast,  Option  4c  clearly  does  not  pass  the  proportionality  test.  Potentially  vast 
pecuniary sanctions and the possibility to suspend the effects of undertakings’ decisions represent 
excessive  burdens,  given  the  limited  purview  of  the  Directive  to  lay  down  minimum  information 
and consultation requirements leading to non-binding opinions without prejudice to undertakings’ 
decision-making ability.        

7.5. Comparative scoring of the options – multi-criteria analysis 

Based on the above considerations, policy options are scored from “0” to “+++” (“---”) depending 
on  the  direction  of  the  impact.  “+”  (“-“)  represents  a  very  small  positive  (negative)  effect  and 
“+++”  (“---")  a  very  large  positive  (negative)  effect  compared  to  the  baseline.  0  means  that  the 
option would not constitute a significant deviation from the baseline scenario. The baseline scenario 
is  rated 0. Based on this assessment, a preferred  option is  identified for  all policy areas and then 
described in Section 8. As regards the criteria of coherence and proportionality,  the highest score 
was not awarded to any policy options including those assessed most positively because, firstly, the 
Commission’s 2018  evaluation  established that  the  Directive is  to  a large extent already coherent 
and proportionate as it stands, so there is no scope for drastic improvements against these criteria. 
Secondly, certain caveats were identified as regards the proportionality and coherence even of the 
preferred policy options.  

Multi-criteria analysis – Overview table 

Policy area 

Policy option 

1 

2 

3 

4 

1a 
Preferred option for area 1 

2a 
2b 
2c 
Preferred option for area 2 

3a 
3b 
3c 
Preferred option for area 3 

4a 
4b 
4c 
Preferred option for area 4 

Combined preferred option 

8.  PREFERRED OPTION 

Scoring of policy options against the baseline (scale: --- to +++); 
baseline = 0 

Effectiveness 

++ 

Efficiency 
++ 

Coherence 

++ 

Proportionality 
+ 

+ 
++ 
+++ 

+ 
+++ 
++ 

+ 
++ 
++ 

1a 

2c 

3b 

+ 
++ 
+++ 

+ 
++ 
- 

+ 
++ 
0 

++ 
++ 
+++ 

++ 
++ 
- 

++ 
++ 
- 

4b 
1a + 2c + 3b + 4b 

+ 
++ 
+++ 

+ 
++ 
- 

+ 
++ 
-- 

8.1. Selection of the preferred policy option and analysis of combined impacts 

Policy 
area 
1 
2 

Preferred policy option 

Accompanying measures 

1a: End exemptions after a transitional period (1a) 
2c:  Clarify resourcing  of  SNBs  (specifically  for  legal  costs);  lay  down  gender 
balance objectives to be reflected in EWC agreements 

n/a 
Clarify obligation to set up an 
SNB;  clarify  coverage  of 
training costs 

50 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
3 

4 

3b:  Clarify  concept  of  transnational  matters,  EWC  resourcing  (legal  costs, 
experts) and conditions for imposing confidentiality / withholding information; 
require  response  to  EWC  opinions  prior  to  the  adoption  of  a  decision  on 
transnational  matters;  require  at  least  2  annual  plenary  meetings  under 
subsidiary requirements 
4b:  require  Member  States  to  provide  information  on  access  to  justice  / 
effective remedies regarding all rights under the Directive;  penalties (including 
pecuniary  sanctions)  to  be  effective,  dissuasive  and  proportionate;  pecuniary 
sanctions to take account of company’s turnover to have a dissuasive effect, as 
well as of other relevant aggravating or mitigating factors 

Clarify  coverage  of  training 
incl. 
costs, 
necessary 
format  of  EWC 
expenses, 
meetings 

Clarify  obligation  to  ensure 
access to justice and sanctions 

In  light  of  the  comparison  in  Section  7,  options  1a,  2c,  3b  and  4b,  including  their  respective 
accompanying measures, present the most appropriate approach to  address the problem drivers in 
light  of  the  initiative’s  objective.  In  their  combination,  they  therefore  form  the  preferred  overall 
policy option for this initiative.  

The preferred option will in principle lead to a cumulation of the impacts of options 1a, 2c, 3b and 
4b, as presented in Section 6 for each area and in more detail in Annex 12. The potential cumulative 
costs would thus account only for a very small part of the turnover of the affected undertakings and 
are  not  –  unlike  some  of  the  non-preferred  options  -  expected  to  affect  market  efficiency  or 
undertakings’  competitiveness.  Moreover,  these  costs  may  be  offset  by  efficiencies  generated 
through  increased  legal  clarity  and  certainty,  although  this  effect  cannot  be  quantified.  The 
preferred option is in strict compliance with the proportionality principle and ensures the continued 
internal  and external  coherence of the Directive,  while delivering a  simplified and more coherent 
legal framework for Union-scale undertakings and necessary improvements to the process for the 
creation, information, and consultation of EWCs as well as the enforcement of the rights under the 
Directive. 

The options forming the preferred overall policy option follow a consistent logic across all policy 
areas,  as  they  are  all  designed  to  improve  the  effectiveness  of  the  framework  for  transnational 
information  and  consultation  while  preserving  undertakings’  ability  to  take  decisions  effectively. 
Therefore, when combined, the options are expected to mutually reinforce one another and achieve 
synergies,  so  the  overall  preferred  option  surpasses  the  sum  of  its  parts.  These  effects  are 
subsequently summarised in qualitative terms: 

(i) By  creating legal  certainty about  the  coverage of legal costs, options 2c and 3b  facilitate the 
exercise of the right to access to justice (option 4b). These options are thus synergetic.  

(ii) Conversely, by strengthening access to justice and the enforceability of EWCs’ rights, option 
4b  bolsters  the  social  benefits  under  options  1a,  2c  and  3b.  The  case  for  making  minimum 
transnational  information  and  consultation  rights  available  to  employees  of  all  Union-scale 
undertakings  (options  1a)  is  stronger  if  those  rights  can  be  enforced  effectively.  Likewise, 
improving  the  processes  for  setting-up  and  operating  EWCs  (options  2c  and  3b)  depends  on 
effective  enforcement.  At  the  same  time,  option  4b  respects  the  subsidiarity  principle  by  not 
intruding  on  Member  States’  procedural  autonomy  and  the  proportionality  principle  by  avoiding 
imposing  disruptive  remedies  or  sanctions  liable  to  unbalance  the  relations  of  the  parties,  which 
could significantly increase costs for undertakings and threaten the constructive dialogue necessary 
to put options 1a, 2c and 3b into practice. 

(iii)  In  the  same  vein,  the  clarifications  to  the  legal  framework  under  options  2c  and  3b  (e.g., 
regarding the concept of transnational matters, conditions for imposing confidentiality, coverage of 
legal and training costs, access to experts, format of meetings) are expected to reduce the risk of 
disputes and thus limit the potential enforcement costs under option 4b. 

51 

 
 
(iv)  As  option  3b,  in  particular  the  new  requirement  for  a  reasoned  response  to  EWCs’  opinions 
prior  to  the  adoption  of  a  decision  on  transnational  matters,  may  give  rise  to  a  renegotiation  of 
existing agreements, it could speed up the implementation of gender objectives (option 2c) to some 
extent,  although  this  effect  is  likely  to  be  limited  as  EWC  agreements  are  in  any  case  subject  to 
regular renegotiations. 

(v) Where several policy options require adaptations to existing EWC agreements,  the parties can 
address them in a single round of renegotiations, so possible additional renegotiation costs would 
accrue only once for the overall preferred policy option. 

vi)  Given  that  the  preferred  package  is  expected  to  increase  the  effectiveness  of  the  Directive, 
notably by improving the process  for setting-up  and operating EWCs  (options 2 and 3), allowing 
the  employees  in  the  exempted  undertaking  to  request  an  EWC  (option  1),  and  improving  the 
enforcement  of  the  rights  under  the  Directive  (option  4),  it  is  plausible  that  the  take-up  rate  of 
EWCs could increase as a result of this initiative. However, there is insufficient evidence to support 
or estimate this assumption.  

As regards the choice of policy instrument, due to the need to amend the Directive, the preferred 
option can only be implemented by means of a Directive under the same legal basis.170  

8.2.REFIT (simplification and improved efficiency) 

The  2018  evaluation  confirmed  that  the  minimum  requirements  set  out  in  the  Directive  do  not 
impose any obligations that would constitute an unreasonable burden for companies. By setting a 
procedural  framework  for  transnational  information  and  consultation,  the  Directive  allows  social 
partners  the  autonomy  to  agree  on  appropriate  solutions  in  light  of  their  specific  needs  and 
circumstances.  For  example,  the  Directive  does  not  restrict  the  use  of  ICT  technologies  for 
information and consultation purposes. Parties may thus choose, for instance, to use online meeting 
software or automatic translation tools to save costs and achieve efficiencies. They are also free to 
agree  on  simplified  language  regimes  for  EWC  meetings  to  lower  the  costs  of  simultaneous 
interpretation. Indeed, the Directive does not impose any specific budget to cover EWCs’ expenses, 
including for expert advice or training. Against this baseline, the scope for burden reduction by this 
initiative  is  limited.  Nevertheless,  the  need  to  keep  costs  for  undertakings  to  the  necessary 
minimum  and  avoid  administrative  burdens  is  taken  into  account,  in  accordance  with  concerns 
raised  by  business  organisations  in  the  consultation  of  social  partners,  throughout  the  design  and 
assessment of the proposed measures.    

8.3.Application of the ‘one in, one out’ approach  

The initiative does not impose any administrative burden171 on businesses or citizens and therefore 
does  not  require  offsetting.  The  adjustment  costs  created  by  the  preferred  option  are  limited  to 
possible incremental 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 by 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  strict 

170 Article 153(1)(e) and Article 153(2)(b) TFEU. 
171 As defined in Better Regulation Tool # 58. EU Standard Cost Model. 

52 

 
 
compliance  with  the  proportionality  principle  and  priorities  stressed  by  business  organisations 
during the consultation of social partners. 

9.  HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? 

Progress  towards  achieving  the  objectives  of  the  initiative  will  be  monitored  by  a  series  of  core 
indicators  related  to  the  policy  objectives.  These  and  the  related  data  sources  are  summarised  in 
Annex 13. The monitoring framework will be subject to further adjustment according to the final 
legal and implementation requirements and timeline. Taking into account a two-year transposition 
period and another transitional regime for the adaptation of existing agreements by the parties, the 
initiative could be evaluated 7 years after it enters into force. This would allow sufficient time for 
the effects on the setting up and operation of EWCs to materialise and for the evaluation of those 
effects, with a particular focus on previously exempted undertakings.  

53 

 
 
ANNEX 1: PROCEDURAL INFORMATION 

1.  LEAD DG, DECIDE PLANNING/CWP REFERENCES 

The lead DG is DG EMPL, DG Employment, Social Affairs and Inclusion. 

Agenda planning: PLAN/2023/664  

Work Programme reference: Commission work programme 2024 (Annex 1, initiative no. 9) 

The  initiative  is  prepared  by  the  Commission  in  response  to  the  European  Parliament’s  2023 
resolution under Article 225 of the Treaty on the Functioning of the European Union. 

2.  ORGANISATION AND TIMING 

An  Interservice  Steering  Group  (ISSG)  was  established  to  accompany  the  work  on  the  initiative. 
The  following  DGs  participated  in  the  ISSG:  SG,  SJ,  EMPL,  BUDG,  COMP,  EAC,  ECFIN, 
ESTAT, GROW, JRC, JUST, REGIO, TRADE.  

The Impact Assessment was discussed in the ISSG on 11 October 2023 (present DGs: SG, EMPL, 
ECFIN, JUST, ESTAT, SJ, BUDG, COMP).  

The Analytical Document accompanying the second phase consultation of social partners on which 
the  Impact  Assessment  is  based,  together  with  the  second  stage  consultation  document,  was 
assessed by the ISSG on 14 June 2023 (present DGs: SG, EMPL, BUDG, ECFIN, ENV, ESTAT, 
JRC,  JUST,  LS)  and  adopted  following  ISC  (DGs  consulted:  SG,  SJ,  ECFIN,  JUST,  BUDG, 
CLIMA, CNECT, COMM, COMP; ENV, ESTAT, FISMA, GROW, JRC, REGIO, TRADE). 

The first  stage consultation  document was assessed by the  ISSG on 6 March  2023 (present  DGs: 
SG,  EMPL,  COMM,  ECFIN,  ENV,  ESTAT,  GROW,  JUST)  and  adopted  following  ISC  (DGs 
consulted:  SG,  SJ,  ECFIN,  JUST,  DGT,  FISMA,  TRADE,  COMM,  GROW,  REGIO,  ENV, 
COMP, CNECT, CLIMA, ESTAT, BUDG, JRC). 

3.  CONSULTATION OF THE RSB 

The  draft  Impact  Assessment  was  assessed  by  the  Regulatory  Scrutiny  Board  (RSB).  The  RSB 
meeting was held on 29 November 2023 and the RSB delivered a positive opinion with reservations 
on 30 November 2023. The revisions made to address the RSB opinion are summarised in the table 
below. 

54 

 
RSB requests for improvements 

Changes made in the IA 

(1) The report should assess the effectiveness of the 
voluntary measures in force and clearly identify the 
remaining  problems  that  this  initiative  seeks  to 
address. It should explain the role, prerogatives, and 
interplay  between  national  laws,  national  workers’ 
representative  bodies  and  the  EWCs  in  the  social 
dialogue and consultation on transnational matters. 

(2)  The  report  should  be  clear,  upfront,  on  the 
nature and limited scope of the proposed measures. 
It should set out clearly, with examples, the existing 
process  for  the  creation  of  EWCs,  the  relationship 
with  voluntary  agreements  and  exactly  what  will 
change under the initiative. The problem definition 
should be underpinned with solid evidence on what 
has  worked/ 
far.  The 
not  worked 
acknowledgement of a lack of evidence should not 
be  presented  as  proof  of  the  existence  of  such 
the 
evidence.  The  report  should  clarify  why 
Commission  has  not  made  use  more  frequently  of 
infringement procedures. 

so 

(3)  The  aims  of  the  initiative  should  be  presented 
much more clearly upfront. The report should make 
clear from the outset that level playing field issues, 
an  increase  in  the  uptake  of  EWCs  or  a  change  of 
the  procedural  character  of  the  Directive  do  not 
motivate  the  initiative.  The  lack  of  a  level  playing 
field  should  not  be  used  as  a  justification  in  the 
selection  of  the  preferred  option,  given  that  it  is 
neither  identified  as  a  problem  nor  defined  as  a 
specific  objective.  The  report  should  ensure  full 
coherence and consistency on this point. 

(4)  Given  the  identified  problem  of  enforcement, 
the  report  should  explore  all  relevant  options  to 
address  it  beside  the  choice  of  the  global  turnover 
as a basis for imposing penalties. It  should explain 
how option 4c (maximum intervention) is plausible 
and  realistic  and  how  fines  levied  on  a  percentage 
of global turnover as part of the preferred option are 
justified.  It  should  explain  the  risk  of  uncertainty 
and  fragmentation  given  that  the  determination  of 
the  level  of  such  fines  would  be  left  to  individual 
Member States. It should explain to what extent the 
increased  administrative  burden  and 
risk  of 
penalties  levied  as  a  proportion  of  global  turnover 

Additional information was provided on the overall 
information  and  consultation 
the 
interplay  between  different  levels  of  employee 
involvement  and  the  specific  nature  and  principles 
of the Directive (Sections 1 and 2 of the report). 

framework, 

Additional explanations and examples were inserted 
regarding  the  practical  operation  of  the  provisions 
of  the  Directive  (Section  2.1.  of  the  report).  The 
findings  in  the  evaluation  of  the  Directive  and  the 
measures  taken  to  address  the  issues  identified  in 
that  evaluation  have  been  set  out  in  more  detail 
(Section 2.2. of the report). The  available evidence 
the  problem  definition  has  been 
underpinning 
limitations  clearly 
further  described,  and  data 
acknowledged 
reasons 
preventing  a  more  frequent  use  of  infringement 
procedures have been mentioned (Section 5.2.1.). 

2.3.).  The 

(Section 

These  points  have  been  clarified  throughout  the 
report.  Specifically,  references  to  a  “level  playing 
field” have been adapted to account for the fact that 
the  Directive  does  not  impose  the  creation  of  an 
EWC  unless  employees’  representatives  make  a 
request  to that effect  based on their right under the 
Directive.  It  has  also  been  explicitly  clarified  that 
the  policy  objectives  do  not  include  an  increased 
rate of creation of EWCs, although a more effective 
transnational  information  framework  could  provide 
representatives  with  an  additional 
employees’ 
incentive to request the establishment of an EWC. 

The description of the policy options  in area 4 was 
further developed to clarify the rationale supporting 
the  design  of  measures  and  the  packaging  into 
options. 

were 

provided 

As regards options 4b and 4c specifically, additional 
explanations 
regarding 
proportionality.  In  particular,  it  has  been  explicitly 
clarified  that  option  4b,  providing  that  Member 
States  must  ensure  that  account  is  taken  of  the 
undertakings’  turnover  when  determining  the  level 
of  pecuniary  sanctions,  at  the  same  time  requires 
that  the  sanctions  remain  fully  proportionate  in 
relation to the gravity, scope, impacts, duration and 

55 

 
will affect the take-up of EWCs. 

other relevant factors characterising the offence. On 
the other hand, by setting a maximum limit at 2% or 
4% of undertakings’ global annual  turnover,  policy 
option 4c creates a risk that sanctions for breaching 
rights under the Directive would be set by Member 
States  at  disproportionately  high  level.  (Sections  5, 
6 and 7).  

(5)  The  report  should  better  substantiate 
the 
proportionality  of  the  proposed  measure  to  end 
exemptions  of  voluntary  agreements,  given  that 
they are considered by the management and EWCs 
representatives  as  overall  effective.  It  should 
explore  whether  soft  law  measures  such  as  a 
Recommendation  on  penalties  might  prove  more 
effective  than  a  binding  but  unquantified  reference 
to a percentage of global turnover.  

The  rationale  of  policy  option  1a  has  been  better 
explained,  clarifying  that  it  does  not  create  an 
obligation 
'voluntary 
agreements’ and allows for the continuation of their 
agreements  if  social  partners  in  the  respective 
undertakings agree (Section 5.2.1.).  

renegotiate 

existing 

to 

Regarding  enforcement  (policy  area  4),  it  has  been 
clarified  that  in  addition  to  turnover,  any  other 
relevant aggravating and mitigating factors are to be 
taken  into  account  to  ensure  the  proportionality, 
effectiveness  and  dissuasiveness  of  penalties 
(Section  5.2.4.).  As  the  Commission’s  efforts  to 
address the lack of dissuasive sanctions – identified 
as  a  key  issue  in  the  evaluation  –  through  non-
binding measures have proved insufficient, it is not 
expected that the combination of a recommendation 
on enforcement and an obligation on Member States 
to  inform  the  Commission  how  they  ensure  access 
than 
to 
strengthened  binding  requirements  in  this  policy 
area. 

justice  would  yield  better 

results 

(6)  The  report  should  clarify  whether  it  had 
considered  alternative  packages  of  measures, 
including  different  combinations  of  legislative  and 
non-legislative  measures.  If  not,  the  report  should 
justify  why  such  alternative  packages  were 
considered  as  not  relevant  for  decision  taking.  The 
report  should  explain  to  what  extent  the  preferred 
option package is 3 overall proportionate given the 
uncertainty  on  the  magnitude  of  the  problems  and 
the ambition of some of the measures. 

Explanations  have  been  inserted  in  Section  5.2., 
why it was considered more relevant and consistent 
to  package  targeted  legislative  amendments  to 
improve  effectiveness  of  the  Directive  and  to 
strengthen  its  enforcement.  It  was  also  considered 
that  key  non-legislative  measures  form  part  of  the 
baseline  scenario  (in  particular  continuation  of 
activities already undertaken by the Commission to 
foster transnational information and consultation  of 
employees)  and  that  a  legislative  initiative  would 
provide  significantly  more  added-value,  compared 
to the baseline, than further non-binding measures. 

(7) The report should more thoroughly assess costs 
and  benefits,  including  recurrent  costs  of  EWCs 
functioning.  The  analysis  should  take  into  account 
the  voluntary  character  of  EWCs  when  assessing 
the estimated changes in the take up rate of EWCs 
through  a 
and  account  for  any  uncertainties 
sensitivity analysis. On that basis, it should provide 

The  assessment  of  costs  and  benefit  was 
strengthened  in  Section  6  and  Annexes  3  and  4  of 
the impact assessment.  

Regarding  the  ‘voluntary  nature’  of  EWCs,  it  was 
clearly  explained  that  the  launch  of  negotiations 
towards  establishment  of  an  EWC  in  accordance 

56 

 
the range of total cost estimates (including in Annex 
3  and  when  discussing  administrative  and 
adjustment costs under the OI:OO approach). 

(8)  The  report  should  better  substantiate  the  claim 
of  a  zero  impact  on  competitiveness.  It  should 
revisit  the  argument  of  a  negligible  impact  on 
international  competitiveness,  given 
that  most 
employer  organisations  consistently  expressed 
negative views on the impacts of option packages 3 
and  4  on  companies’  competitiveness  and  the 
uncertainty  of  future  litigation  (incidence  of  legal 
actions and pecuniary sanctions). 

with  the  minimum  requirements  of  the  Directive 
becomes  a  legal  obligation  if  the  requisite  number 
of employees makes a request to that effect, and that 
any outcome not involving setting up an EWC must 
be  agreed  by  both  parties.  While  the  principle  of 
social partner autonomy remains a core tenet of the 
Directive, there is no opt-out from that obligation if 
employees wish to set up an EWC (Section 2.1.). 

Concerning  cost  quantification,  estimates  of 
aggregated  costs  of  the  preferred  option  over  the 
baseline  period  have  been  elaborated  in  Annex  4 
and integrated in Annex 3. 

The discussion of competitiveness impacts has been 
developed in Annexes 5 and 12 to account in a more 
consistent  manner  for  possible  positive  impacts  of 
effective transnational information and consultation 
on companies’ competitiveness. 

(9)  The  report  should  acknowledge  upfront  the 
considerable  data  limitations  and  uncertainties  and 
explain,  in  the  main  text,  their  impact  on  the 
robustness of the analysis. 

Data 
limitations  and  uncertainties  have  been 
acknowledged in the problem definition (Section 2) 
and  assessment  of  the  impacts  (Section  6),  in 
addition to the Section 2 of Annex 4. 

4.  EVIDENCE, SOURCES AND QUALITY 

The following Commission reports have fed into the Impact Assessment: 

•  Report  on  the  implementation  by  Member  States  of  Directive  2009/38/EC  on  the 
establishment  of  a  European  Works  Council  or  a  procedure  in  Community-scale 
undertakings  and  Community-scale  groups  of  undertakings  for  the  purposes  of  informing 
and consulting employees (Recast) COM(2018) 292 final and accompanying Staff Working 
Document SWD(2018) 187 final. 

The following expert advice has fed into the Impact Assessment: 

1)  External studies commissioned from external experts: 

• 

• 

ICF(2023) Study exploring issues and possible solutions in relation to the Recast Directive 
2009/38/EC  on  European  Works  Council.  Available 
.  online  HYPERLINK 
"https://op.europa.eu/en/web/general-publications/publications"  

ICF(2016)  Evaluation  study  on  the  implementation  of  Directive  2009/38/EC  on  the 
establishment of a European Works Council, p. 96. Available online. 

•  Reviews by the European Centre of Expertise in the field  of labour law, employment and 

labour market policies (ECE):  

57 

 
  
 
Review of national provisions transposing Directive 2009/38 on European Works Councils 
on  confidentiality,  non-disclosure  of  information  and  gender  balance  (2023,  unpublished 
analysis) 

Review  of  national  rules  on  enforcement  of  rights  and  obligations  arising  from  Directive 
2009/38/EC on European Works Councils (2019, unpublished analysis) 

2)  The European Parliament reports:  

•  2021 resolution on Democracy at Work.  

•  2023 resolution on revision of European Works Councils Directive 

3)  Ad-hoc data collections: 

•  Eurostat, ad-hoc extraction from the EuroGroups Register (2023) 

•  Data  extractions  from  ETUI  EWC  Database  and  ETUI  survey  of  EWC  and  SEWC 

representatives (2018) (Overview published online) 

4)  Eurofound research: 

Turlan,  F.,  Teissier,  C.,  Weber,  T.,  Kerckhofs,  P.,  &  Rodriguez  Contreras,  R.  (Eurofound) 
(2022) Challenges and solutions: Case studies on European Works Councils. Available online. 

Relevant academic literature, as referred to in footnotes. 

58 

 
 
ANNEX 2: STAKEHOLDER CONSULTATION (SYNOPSIS REPORT) 

1.  RESULTS OF THE FIRST PHASE SOCIAL PARTNERS’ CONSULTATION 

In  line  with  Article  154  of  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU),  the 
Commission carried out the first phase consultation of European social partners to seek their 
views on the need for, and possible direction of, EU action to address the challenges related to the 
operation of EWCs. This first phase consultation was launched on 11 April and ended on 25 May 
2023. 

1.1   Overview of responses 

Twelve recognised social partners sent replies during the first-phase consultation. 

trade  union  organisations  contributed 

Four 
the  consultation:  European  Trade  Union 
to 
Confederation  (ETUC),  European  Confederation  of  Independent  Trade  Unions  (CESI),  European 
Managers (CEC), Eurocadres. 

Eight  employer  organisations  sent  replies:  Business  Europe,  SGI  Europe,  SMEunited,  European 
Chemical  Employers  Group  (ECEG),  Council  of  European  Employers  of  the  Metal,  Engineering 
and  Technology-Based  Industries  (CEEMET),  European  Cleaning  and  Facility  Services  Industry 
(EFCI),  Hotels,  Restaurants  and  Cafés  in  Europe  (HOTREC),  European  Confederation  of 
Woodworking Industries (CEI–Bois) 

1.2 

Social  partners’  views  on  the  completeness  of  the  issues  identified  and  the  general 
need for a revision of Directive 2009/38/EC  

Trade  unions  see  a  need  for  a  legally  binding  revision  of  the  recast  Directive.  ETUC  and 
Eurocadres  expressly  endorse  the  Parliament’s  recommendations  for  such  a  revision  and  stresses 
that the information and consultation process at transnational level can be regulated only by an EU 
legal act guaranteeing a level playing field by means of minimum requirements. ETUC submits that 
a right for trade union experts to participate in all SNB, EWC and select committee meetings and to 
have access to all sites is a necessary condition for supporting and coordinating EWCs’ work more 
effectively.  It  therefore  calls  to  lay  down  such  rights  in  the  Directive.  ETUC  queries  that  the 
Commission’s  consultation  paper  does  not  address  the  issue  of  concretising  the  definition  of 
‘controlling  undertaking’  to  clarify  the  inclusion  in  the  scope  of  the  directive  of  companies 
operating  through  management,  franchise  systems  and  50:50  joint  ventures.  In  addition,  ETUC 
states that the consultation paper is missing an opportunity to draw links between due diligence and 
EWCs. According to ETUC, EWCs must be fully involved in all steps of companies’ due diligence 
plans and policies, including the mapping of potential risks on human rights and the environment 
across the company operations as well as its supply and subcontracting chains. 

The  large  majority  of  employer  organisations  argue  against  a  revision  of  the  Directive, 
considering  it  fit  for  purpose.  Business  Europe  stresses  the  need  to  give  the  social  partners  at 
enterprise  level  the  space  to  negotiate  agreements  that  suit  their  circumstances.  According  to 
ECEG, the heterogeneous landscape of EWCs is an accurate reflection of the original intention of 
the European co-legislators and should be preserved as  a key  element  of the European system  of 
information  and  consultation  of  workers  in  multinational  companies.  CEI-Bois  considers  that 
EWCs’  practices  need  to  remain  flexible  to  be  applied  effectively  to  different  sectors  and 
companies  across  the  Member  States  and  that  the  Commission  should  refrain  from  adding 
additional  regulatory  burden  on  companies  that  have  already  opted  for  the  creation  of  EWCs. 

59 

 
CEEMET  cautions  that  a  revision  of  the  EWC  Directive  would  be  another  setback  in  the 
competitiveness of European businesses. If the Directive was nevertheless to be revised, CEEMET 
urges to propose specific measures alleviating companies from administrative and financial burden 
and  adapting  to  the  new  reality  of  online  meetings.  EFCI  thinks  that  a  legislative  intervention 
increasing  companies’  responsibilities  would  weaken  EWC’s  prospects  to  serve  as  a  shared  and 
constructive  solution  for  all  parties  involved.  HOTREC  and  CEI-Bois  call  on  the  Commission to 
present a Commission Recommendation and a code of practice / handbook on the matter instead of 
revising the Directive. CEI-Bois argues that the Commission should refrain from adding additional 
regulatory burden on those companies who have already opted for the creation of an EWC. Rather, 
it  should  aim  at  simplifying  the  implementation  of  the  existing  rules.  BusinessEurope  also 
maintains that a code of practice could be a good basis to help social partners at company level to 
identify ways of improving their own practice.  

Among  employer  organisations,  SGI’s  members  recognise  that  it  may  be  justified  to  revise  the 
Directive  in  order  to  provide  greater  clarity  of  the  rules  and  to  organise  regular  genuine  ex  ante 
consultations of workers representatives in EWCs on transnational matters. SMEunited recognises 
the existence of a certain justification to amend the directive without ignoring the current general 
good functioning of it. 

1.3  Willigness to enter into negotiations 

The  vast  majority  of  responding  social  partners  replied  that  they  were  open  to  negotiations  in 
accordance with Article 154(4) TFEU in principle. ETUC reaffirmed its full commitment to social 
dialogue  and  Article  155  TFEU  and  all  responding  trade  union  organisations  were  open  to 
negotiations. Nevertheless, Eurocadres believed that in the case of EWCs strong legislation is the 
only  way  to  improve  the  Directive.  Business  Europe  confirmed  that  it  would  look  constructively 
into  the  possibility  of  offering  negotiations  to  ETUC  with  a  view  to  revising  the  EWCs  recast 
directive  under  the  procedure  set  out  in  Article  155  TFEU,  if  the  Commission’s  second  stage 
consultation  of  social  partners  provides  a  balanced  basis  for  social  partners  to  negotiate.  This 
position was seconded by ECEG, SMEunited, CEI-Bois, HOTREC, and EFCI.  

 1.4 

Social partners’ views regarding specific issues and policy options 

Regarding  the  scope  of  the  recast  Directive,  trade  unions  support  ending  the  exemption  of 
undertakings  with  pre-existing  information  and  consultation  agreements  at  transnational  level. 
ETUC argues that the provisions of the Directive must apply to all undertakings to ensure a level 
playing  field  and  stresses  the  need  for  a  comprehensive  definition  of  the  concept  of  ‘controlling 
undertaking’  to  clarify  the  inclusion  in  the  scope  of  companies  operating  through  contract 
management,  franchise  systems  and  50:50  joint  ventures.  While  CESI  does  not  refer  to  specific 
policy option, it submits in general terms that the scope could be widened to cover more workers. 

Among  responding  employer  organisations  5  out  of  8  argue  in  favour  of  keeping  the  existing 
exemptions. EFCI stresses that the grandfathering rules have proven themselves in practice, as the 
longstanding information  and consultation  bodies in  exempted undertakings are often particularly 
effective  and  characterised  by  a  deep  level  of  trust  and  cooperation  between  workers’ 
representatives 
automatic 
transformation/adaptation  of  the  different  types  of  EWCs  into  one  single  model.  Instead,  ECEG 
would favour a reflection on how Article 13 of the recast Directive could serve to modernise those 
agreements.  CEI-Bois  states  that  no  additional  regulatory  burden  should  be  added  on  companies 
who already have opted for the creation of an EWC.  

central  management.  ECEG  does  not 

support 

and 

an 

60 

 
None  of  the  responding  employer  organisations  elaborated  specifically  on  the  idea  of  including 
undertakings linked through contractual arrangements into the concept of controlling and controlled 
undertakings, and thus into the scope of the recast Directive, but SMEunited underlines generally 
that a possible initiative should not expand the scope of the Directive. 

Regarding the procedure on the setting up of EWCs, among trade unions, ETUC states that it 
is  not  uncommon  for  central  management  to  delay  the  establishment  of  the  SNB,  and  calls  for  a 
requirement to constitute and organise a first meeting of the SNB meeting within 6 months of the 
request, or the subsidiary requirements would automatically apply. While CESI and CEC support 
the  Parliament’s  recommendation  to  shorten  the  three-year  deadline  for  negotiations,  ETUC 
disagrees because that proper coordination, training and agreement on common demands take time. 
In  contrast,  according  to  CESI,  practical  experience  appears  to  suggest  that  negotiations  can  be 
concluded  in  a  shorter  timeframe  if  both  sides  are  willing  and  engage  constructively.  ETUC  also 
calls  for  objective  criteria  to  determine  the  location  of  the  “representative  agent”  and  “central 
management” to avoid regime shopping and use of letterbox companies." 

None  of  the  responding  employer  organisations  argue  in  favour  of  adapting  the  framework  for 
setting  up  EWCs.  Business  Europe  takes  the  view  that  the  challenges  identified  in  the  setting  up 
and functioning of EWCs are practical rather than legal and would not be tackled by a revision of 
the directive. ECEG explains that in the European chemical  industry, the establishment of EWCs 
can  easily  be  arranged  in  most  cases,  and  that  the  existing  rules  are  sufficient  to  fulfil  the 
objectives. CEEMET argues that it is best not to rush the negotiations by reducing the timeframe. 
HOTREC  states  that  a  shorter  negotiation  deadline  could  be  considered,  as  long  as  proportionate 
and relevant. HOTREC also cautions that some topics require long discussions and that subsidiary 
requirements should apply only when strictly necessary. 

On the concept of transnational matters, all responding trade union organisations agree that the 
concept  should  be  clarified  and/or  broadened,  as  recommended  by  the  European  Parliament. 
According  to  ETUC,  the  relevant  recitals  of  the  recast  Directive  are  not  sufficiently  taken  into 
account in practice for the determination of the transnational nature of a matter under national law.  

The responding employer organisations are, for the most part, opposed to a revision of the concept 
of transnational matters.  SGI’s members express great concern  over the possibility of including in 
this  concept  potential  effects  indirectly  concerning  employees  in  more  than  one  country,  as  this 
could  lead  to  almost  every  decision  or  choice  of  the  enterprise  to  end  up  on  the  table  of  EWCs. 
CEEMET echos  these concerns,  fearing that the broad definition recommended by the Parliament 
could  distort  the  division  of  competences  between  national  works  councils  and  their  European 
counterparts. HOTREC recalls that transnational issues should not include decision-making bodies 
in a single state. ECEG considers that the existing concept of transnational matters has proven itself 
in  practice  and  does  not  cause  any  disputes  beyond  what  can  reasonably  be  expected  in  any 
corporate  setting.  In  a  similar  vein,  Business  Europe  refers  to  a  2016  study  of  the  University  of 
Leuven172,  which  underlined  that  managers  and  their  employees  found  ways  to  overcome 
operational difficulties related, amongst others, to the definition of a transnational scope. EFCI and 
SMEunited declare openness to a clearer definition of the transnational nature of issues. 

With regard to the consultation procedure, among trade unions, CESI considers that it should 
be specified that consultations must necessarily be taken into account by management, and this in a 

172 Pulignano V., Turk J. (KU Leuven)(2016) European Works Councils on the move: management perspectives on the 
development of a transnational institution for social dialogue. 

61 

 
 
meaningful way. CESI argues that, in the longer-term, ways could be envisaged to turn EWCs more 
into negotiating bodies, where their opinions could have even more weight and are not only ‘taken 
into  consideration’.  ETUC  generally  supports  recommendations  of  the  Parliament,  stressing  that 
transnational  information  and  consultation  process  must  be  properly  conducted  and  completed 
before management takes a final decision. According to ETUC, in order for the consultation to be 
meaningful, EWCs must have sufficient time to carry out an in-depth assessment of the information 
provided,  included  when  needed  with  the  support  of  experts,  as  well  as  to  consult  national  and 
regional workers’ representatives. 

In  contrast,  among  employer  organisations,  Business  Europe  argues  against  a  ‘one-size-fits-all' 
approach to consultation, suggesting that many EWC agreements either already provide for specific 
timeframes for information and consultation procedures and a formal response by management to 
EWC opinions, or the parties to agreements tend to work out the timeframes according to the issue 
which is being addressed. This view is seconded by ECEG, which advises that neither the existing 
legal  concept  of  consultation  nor  its  implementation  are  liable  to  create  any  hindrance  for  the 
proper functioning of the EWC Directive, workers’ representatives usually having sufficient time to 
review  the  facts  and  produce  a  written  opinion.  According  to  CEEMET,  the  Parliament’s 
recommendations would put employees’ representatives in a position to delay important decisions 
by  central  management  indefinitely,  which  would  reduce  management’s  agility  needed  in  a  fast-
changing  economic  world.  EFCI  recognises  that  a  discussion  could  take  place  on  the  issue  of 
timing,  but  cautions  that  the  role  and  function  of  EWCs  should  not  evolve  in  the  direction  of  de 
facto parallel collective bargaining or co-determination powers.   

All the responding trade unions submit that EWCs are not assured necessary resources (covering 
e.g.  expert  advice,  training  or  legal  costs).  ETUC  stresses  in  particular  the  importance  of 
guaranteeing access to recognised trade union organisation expertise and suggests that trade union 
experts should have a right to participate in all SNB, EWC and select committee meetings and have 
access  to  all  sites.  CEC  refers  to  the  need  to  fund  training  of  EWC  members  as  well  as  EWCs 
administrative and logistical costs. 

These views are not shared by the responding employer organisations, who stress the importance 
of reducing the financial strain on companies rather than increasing EWCs’ entitlements. CEEMET 
considers  that  the  existing  obligations  to  reimburse  the  trips,  accommodation,  paid  leave  for 
employee representatives, and translation/interpretation costs already puts a heavy financial burden 
on companies.  

The  trade  unions  see  a  need  to  set  out  specific  criteria  circumscribing  the  possibility  for 
management  to  impose  the  confidentiality  of  information  or  to  withhold  certain  information 
from EWCs. ETUC calls for clear provisions on criteria for withholding of information, and on the 
grounds based on which EWC members’ right to share information with relevant stakeholders (in 
particular  workers’  representatives)  can  be  restricted.  CESI  refers  to  the  risk  of  companies  using 
‘confidentiality restrictions’ in an abusive way.  

In contrast, the responding employer organisations reject potential amendments to the Directive’s 
provisions  on  confidentiality  and  non-disclosure  of  information.  ECEG  stresses  that  the  effective 
protection of confidential information given to EWC members is a basic prerequisite for successful 
cooperation  between  management  and  workers  representatives.  CEEMET  explains  that  listed 
companies have to comply with strict rules on when and to whom price sensitive information can 
be  given  before  public  disclosure.  CEEMET  states  that  limiting  the  scope  of  confidentiality 
provisions endangers the competitiveness of companies with the consequence of weakening Europe 
as an innovative and forward-looking industrial and business location. EFCI would also not support 

62 

 
a revision of the text that would limit the autonomy of the management  when deciding about the 
confidential  nature of the issue being  discussed. While SMEunited recognises that some work on 
confidentiality  might  be  necessary,  it  also  emphasises  that  trade  secrets  must  be  protected  and 
adding  red  tape  must  be  avoided.  HOTREC  argues  against  reducing  the  scope  of  the  existing 
confidentiality provisions, pointing out that consultations take place on sensitive decisions such as 
mergers or acquisitions. 

Concerning enforcement, all responding trade unions consider that the remedies and sanctions for 
the enforcement of the rights guaranteed by the Directive are not sufficiently effective. ETUC and 
CEC  specifically  endorse  introducing  provisions  on  pecuniary  sanctions,  as  recommended  by  the 
European  Parliament.  ETUC  supports  introducing  a  right  to  injunctive  relief,  enabling  EWCs  to 
request  the  suspension  of  management  decisions  taken  in  violation  of  their  information  and 
consultation rights. In this respect, ETUC requests that administrative or judicial systems are put in 
place  to  allow  for  swift  decisions  on  EWCs’  requests  for  the  suspension  or  nullification  of 
management  decisions  ‘24/7  in  a  few  hours’.  ETUC  further  calls  for  recognising  the  legal 
personality of EWCs and requiring central management to provide the necessary financial support 
for legal proceedings. CESI suggests that the Commission should first further assess why Member 
States have not been ensuring provision of effective sanctions. 

Among employer organisations, Business Europe points out  that there have been only  a limited 
number of court cases and argues that this is not because EWCs lack the means to go to court but 
because  most  EWCs  work  satisfactorily.  Whilst  ECEG  recognises  difficulties  in  the  effective 
enforcement  of  EWC  rights  in  some  jurisdictions,  it  does  not  see  them  as  an  expression  of  a 
weakness  of  the  Directive  but  of  its  flawed  transposition  at  the  national  level.  SGI,  CEEMET, 
HOTREC  and  EFCI  consider  the  recommendation  of  the  European  Parliament  for  increased 
pecuniary sanctions disproportionate and unrealistic, arguing that the determination of the level of 
penalties  is  a  prerogative  of  the  Member  States.  Regarding  the  idea  of  introducing  a  right  to 
injunctive relief into the Directive, Business Europe submits that this would create significant risks 
of imposing on companies to freeze or delay decision making, leading to disproportionate penalties, 
an  undermining  of  the  trust  and  confidence  of  companies  in  EWCs  and  undermining  the  role  of 
social  partners  at  company  level.  CEEMET  argues  that  a  temporary  suspension  of  the 
implementation of management decisions would hamper the decision-making process in companies 
and be a serious intrusion in the corporate governance. CEEMET stresses that the legal framework 
must  not  hinder  appropriately  flexible  and  responsible  entrepreneurial  action  and  must  avoid 
creating  a  hostile  culture  where  employee  representatives  may  use  the  tool  of  preliminary 
injunction as a threat in the consultations forcing the company to undesired decisions. 

In  the  first  stage  consultation,  on  the  issue  of  gender  representation  on  EWCs  and  special 
committees, CEC and ECEG supported the objective of achieving a gender-balanced composition 
of those bodies.  

2.  RESULTS OF THE SECOND PHASE SOCIAL PARTNERS’ CONSULTATION 

The second stage social partners’ consultation was open from 26 July to 4 October 2023. In total, 
12  replies  from  recognised  social  partners  were  received.  4  trade  union  organisations  and  8 
employers’ organisations sent their replies.  

2.1 

Overview of responses 

4 trade union organisations contributed to the consultation: European Trade Union Confederation 
(ETUC),  European  Confederation  of  Independent  Trade  Unions  (CESI),  European  Managers 
(CEC), Eurocadres 

63 

 
8  employers’  organisations  sent  replies:  Business  Europe,  SGI  Europe,  SMEunited,  European 
Chemical  Employers  Group  (ECEG),  Council  of  European  Employers  of  the  Metal,  Engineering 
and  Technology-Based  Industries  (CEEMET),  EuroCommerce,  Hotels,  Restaurants  and  Cafés  in 
Europe (HOTREC), European Confederation of Woodworking Industries (CEI–Bois).  

Business Europe, Hotrec, Ceemet, ECEG and SGI Europe do not provide responses to the questions 
in the consultation document but state their willingness to enter into negotiations with ETUC with a 
view to concluding an agreement under Article 155 TFEU to improve Directive 2009/38/EC.    

2.2 

Objectives of a possible EU action 

Trade unions and ETUC in particular, support the overall objective to improve the effectiveness of 
information and consultation of workers at transnational level, as well as the specific objectives of 
the initiative. ETUC believes that the first specific objective should be ‘to ensure that every worker 
in  the  EU  enjoys  the  same  effective  minimum  transnational  information  and  consultation  rights 
defined at a high uniform level’.  

Employers’ organisations believe that an EU initiative should not overly regulate details such as 
the number of meetings, the manner in which meetings should be conducted, or requirements for a 
specific type of experts at the European level. EuroCommerce would prefer making use of digital 
communications.  SMEunited  considers  that  the  objective  to  avoid  unjustified  differences  in 
workers’ information and consultation rights at transnational level is too far-reaching. Setting one-
fits-all solutions to all companies could be counterproductive for companies. 

Trade  unions  see  a  need  to  ensure  more  effective  enforcement  and  access  to  justice,  fully 
supporting the measures proposed by the European Parliament to strengthen sanctions. This view is 
not shared by employers’ organisations.  

2.3 

Possible avenues for EU action 

Regarding the scope and coverage of the rules, ETUC argues that legal uncertainty and regulatory 
complexity  should  be  reduced  by  ending  exemptions  from  the  scope  of  the  Directive  of 
undertakings  with  pre-existing  agreements.  ETUC  also  demands  that  franchising  and  contract 
management  arrangements  be  brought  within  the  calculation  thresholds  of  community-scale 
undertakings  and  within  the  definition  of  controlling  undertaking.  CEC  proposes  extending  the 
scope of eligible companies to joint ventures.  

Among employers, SMEunited, EuroCommerce and CEI-Bois argue for keeping exemptions from 
the scope of undertakings with pre-existing agreements. EuroCommerce and SMEunited argue that 
the  definition  of  a  controlling  undertaking  and  its  application  to  structurally  independent 
undertakings can be ambiguous and complex. Expanding the scope of the Directive to include such 
entities  requires  a  clear  and  evidence-based  definition  to  avoid  unnecessary  compliance  burdens 
and further complexities. SMEunited states that imposing a ‘one-size fits all’ uniform information 
and  consultation  right  disregards  the  diverse  nature  of  businesses  and  the  variations  in  their 
employees’ structures  

With regard to the process of setting-up of EWCs, CESI and CEC agree with the proposal to set a 
maximum  period  of  18  months  instead  of  three  years  for  concluding  an  agreement.  In  contrast, 
employer organisations EuroCommerce, SMEUnited, CEI Bois but also, from among trade unions, 
ETUC,  affirm  that  reducing  the  negotiation  period  to  less  than  three  years  may  impose  undue 
pressure on the parties. ETUC also states that clarifications are needed to ensure that the resources 
to  which  the  SNB  is  entitled  must  also  clearly  include  the  costs  of  legal  assistance  and  legal 

64 

 
representation  as  well  as  assistance  by  experts  and  training.  ETUC  points  to  the  existing  legal 
uncertainty  in  the  directive  regarding  the  management’s  obligation  to  convene  the  first  SNB 
meeting  and  to  carry  out  negotiations  in  regular  intervals.  Further,  ETUC  reiterates  its  call  to 
strengthen the position of the trade union representative as a permanent expert assisting the work of 
the  SNB  and  EWC.  CEC  and  ETUC  support  achieving  a  gender-balanced  composition  of  EWCs 
and  their  select  committees.  Among  employers,  EuroCommerce  and  SMEunited  believe  that 
imposing  a  gender  quota  could  pose  practical  challenges  given  that  employees  should  be  free  to 
nominate their representatives.  

Regarding the consultation framework, trade unions reiterate their call made during the first stage 
consultation to clarify key notions of transnational matters, confidentiality and the information and 
consultation  procedure.  ETUC  reiterates  that  the  end  of  the  information  and  consultation  process 
must  precede  the  date  on  which  the  management  takes  the  final  decision.  ETUC  and  Eurocadres 
support  the  sharing  of  information  between  the  EWC  representatives  and  national  or  local  trade 
union  representatives.  Among  employers,  SMEunited  considers  that  a  clearer  definition  of 
transnational matters would be desirable. They consider the current definition very broad, lacking 
specific thresholds of employees affected by the matter. CEI Bois and SMEunited believe that the 
regulation  concerning  confidentiality  is  a  matter  of  national  concern,  and  that  the  consultation 
process  does  not  require  any  further  definition  at  EU  level.  SGI  Europe  opposes  widening  the 
concept of transnational issues. 

ETUC asks the Commission to develop the minimum list of issues on which EWCs operating based 
on subsidiary requirements are to be informed and consulted.173 Trade unions support at least two 
plenary  meetings  per  year  under  subsidiary  requirements.  ETUC  stresses  that  plenary  meetings 
should not be held online. 

ETUC,  CEC  and  Eurocadres  agree  that  companies  should  provide  for  appropriate  resourcing  of 
EWCs.  All  responding  trade  unions  endorse  strengthening  the  position  of  the  trade  union 
representatives in EWCs. Among employers, EuroCommerce states that the allocation of resources 
for  EWCs  should  be  left  to  the  discretion  of  employee  representatives  and  central  management. 
SMEunited states that no additional costs should be imposed on companies. 

With  regard  to  enforcement,  ETUC  proposes  to  establish  a  permanent  Monitoring  Committee 
(consisting  of  Member  States’  representatives,  EU-level  social  partners  and  the  Commission)  to 
ensure  the  correct  application  of  the  Directive  through  regular  exchanges  and,  in  particular,  to 
address  and  resolve  practical  problems  arising  from  its  implementation.  Trade  unions  generally 
reiterate their support for the European Parliament’s recommendation for pecuniary sanctions at the 
GDPR level, considering them dissuasive, and for guaranteed access to injunctive relief. They state 
that all EWCs should have a status ensuring that they have access to judicial remedies. Employers’ 
organisations consider that sanctions involving injunctive relief whereby a company’s decision may 
be suspended if information and consultation requirements were alleged to have been infringed or 
pecuniary sanctions up to EUR 20 million or 4% of annual turnover for breaches of EWC rights, 
are neither proportionate nor necessary. 

173 Such as: the decarbonisation strategy of the company; the introduction of artificial intelligence at the workplace and 
in  work  processes,  the  respect  of  human  rights  and  environmental  standards  in  the  supply  chain  (Due  Diligence 
strategies). 

65 

 
 
2.4 

Views on the possible legal instruments 

Trade  unions  share  the  Commission's  view  that  the  issues  and  deficits  identified  can  only  be 
addressed  with  a  legally  binding  instrument  and  urge  the  Commission  to  present  a  legislative 
proposal.  Those  employers’  organisations  which  did  not  limit  their  response  to  offering 
negotiations with ETUC disagree and express preference for a non-binding instrument, such as non-
binding  guidelines  or  a  Code  of  Practice  drafted  with  the  active  participation  of  EU-level  social 
partners, or a Commission recommendation. 

2.5  Willingness to enter into negotiations 

Employers’ organisations express their willingness to enter into negotiations, believing that only a 
social  partner  negotiation  could  reach  optimal  results  when  it  comes  to  the  revision  of  the  recast 
Directive. Trade unions, while reaffirming their full commitment to social dialogue, do not intend 
to  negotiate  with  employer  organisations,  apart  from  CEC  which  favours  negotiations.  ETUC, 
CESI and Eurocadres consider that it is urgent to act through a legally binding instrument and that a 
legislative  initiative  of  the  Commission  is  the  most  suitable  for  substantial  improvements  of  the 
rights of EWCs in this legislature period. 

3.  OTHER CONSULTATIONS OF STAKEHOLDERS 

3.1 

Views of EU institutions  

The European Parliament adopted, in 2021 and 2023, two resolutions on workers’ involvement at 
company level as a way to support democracy at work, and particularly to reinforce the operation 
of  EWCs.  The  2021  resolution  on  Democracy  at  Work  covers  areas  of  worker  information, 
consultation  and  participation,  trade  unions,  works  councils  as  well  as  some  aspects  of  company 
law and corporate governance. It calls for a revision of the recast Directive.  

The 2023 resolution on revision of European Works Councils Directive aims at ‘strengthening 
EWCs and their ability to exercise their information and consultation rights, as well as to increase 
the  number  of  EWCs,  while  taking  into  account  the  different  industrial  relations  systems  in  the 
Member States’. It contains an annex setting out proposals for legislative amendments to the recast 
Directive, including: 

- 

- 

- 

- 

- 
- 

a  wider  concept  of  ‘transnational  matters’  on  which  information  and  consultation  of  the 
EWC should take place; 
an  amended  definition  of  ‘consultation’,  i.e.  requiring  that  EWCs  receive  a  reasoned 
response to their opinion prior to management adopting the decision, and providing that that 
opinion must be taken into account by management; 
an  obligation  on  Member  States  to  provide  for  injunctive  relief  whereby  a  company’s 
decision  may  be  suspended  if  information  and  consultation  requirements  were  infringed, 
and  for  pecuniary  sanctions  of  up  to  EUR  20  million  or  4%  of  annual  turnover,  and 
exclusion from public procurement and subsidies; 
an  obligation  on  companies  to  provide  EWCs  with  objective  criteria  for  determining  if  a 
matter  is  confidential  and  for  which  duration,  and  requiring  companies  to  secure  prior 
judicial  authorisation  before  restricting  access  to  information  which  they  consider  could 
seriously hamper the company’s activities; 
stricter deadlines for setting up an EWC; 
an end to  the exemption  of undertakings with  pre-Directive agreements  from the scope of 
the  Directive  and  subjecting  undertakings  with  all  types  of  existing  information  and 
consultation agreements to the revised rules. 

66 

 
 
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  transformationsand  in  transnational  restructuring  processes  in  the  context  of  the  twin 
transitions.174  In  April  2023,  the  EESC  has  adopted  an  exploratory  opinion  on  Democracy  at 
Work,  which  points  to  the  need  to  substantially  improve  effectiveness  and  resources  of  EWCs: 
“e.g.  any  circumvention  or  infringement  of  EWC  participation  rights  should  be  sanctioned 
effectively  and  access  to  justice  should  be  facilitated.  In  this  context,  the  EESC  welcomes  the 
European  Parliament's  recent  resolution  on  the  revision  of  the  EWC  Directive  and  calls  on  the 
Commission to take legal measures in a timely manner.” 

3.2 

Stakeholders’ consultation activities  

In parallel with the Treaty-based formal consultation of the social partners described in Sections 1 
and  2  of  this  annex,  extensive  consultation  activities  were  conducted  in  the  context  of  the 
supporting  study175,  gathering  insights  from  a  diverse  pool  of  stakeholders  including  workers’ 
organisations, employers’ organisations, policy makers, EWC representatives, management of the 
Union-scale undertakings, legal and academic experts.  

These activities consisted of:  

•  Semi-structured stakeholder interviews  
•  Online survey of companies with EWCs176’ – management and employee representatives  
•  Evidence gathering workshops with management and employee representatives 

A public consultation on this initiative was not conducted. 

Semi-structured  interviews  were  conducted  from  mid-April  to  August  2023  with  the  following 
stakeholders: 

Figure 1: Overview of targeted interviews of stakeholders  

Stakeholder category 

Type  and  number  of  stakeholders 
targeted 

Sampling / selection method 

Number 
interviews 

of 

with 

Multinational  companies 
(MNCs) 
an 
established  EWC/  pre-
information 
Directive 
and consultation body  

management board representatives 

EWC employee representatives 

Random selection of MNCs with an EWC 
from ETUI EWC database 

EU  and  national  social 
partners 

European  Trade  Union  Federations 
(ETUFs) 

Self-selection  –  identification  of  relevant 
contacts  

national  social  partners  –  employer 
organisations and trade unions 

Experts 

legal experts  or professionals  in  advisory  Contacts from previous research 

12 

12 

7 

10 

16 

174  Opinion  of  the  European  Economic  and  Social  Committee  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’. 
175 ICF(2023), see summary of results in Section 5.1 of the study. 
176  Unless  indicated  otherwise,  for  the  purpose  of  this  summary  of  results  of  the  stakeholders’  consultation,  EWCs 
include different types of EWCs and information and consultation bodies, including pre-Directive bodies.  

67 

 
 
 
 
 
Stakeholder category 

Type  and  number  of  stakeholders 
targeted 

Sampling / selection method 

Number 
interviews 

of 

services 

National  authorities  (i.e., 
ministries  or  ministerial 
agencies) 

Representatives  of  national  authorities  in 
the  following  Member  States  (i.e.,  BE, 
CZ, DE, ES, FI, FR, IE, IT, PL, SE)  

Source: ICF(2023), Section 5.2.1.  

Member States selected based on:  

10 

• 

• 

high number of EWCs 
headquartered in them 

geographical balance 

The  on-line  survey  was  launched  on  18  April  and  closed  on  26  May.  It  targeted  management 
representatives and employee representatives in identified multinational companies with an EWC. 
With  the  aim  for  answers  to  be  representative  of  EWCs  /  companies  rather  than  of  individual 
employee or employer representatives, where there was more than one respondent per company on 
the  management  or  the  employee/EWC  side,  only  the  response  from  the  most  highly  placed 
representative (e.g., EWC Chair over EWC member) was kept in the sample of responses. 

A total of 233 responses were included in the final sample: 180 responses from employee/EWC 
representatives (77% of responses)  and  53 responses from management representatives (23% 
of responses).  

The table below provides a breakdown of the sample of responses by EWC type. 

Figure 2: Overview of survey respondents by EWC type 

Type  of  EWC  /  information  and 
consultation body  

Total no. of 
responses 

% 

Employee/ EWC 
responses  

% 

Management 
responses 

% 

Information 
consultation 
and 
bodies  created  before  the  first 
EWC  Directive  came  into  effect 
(before 22 September 1996) 

EWC  created  under  the  1994  or 
2009  EWC  Directives  (after  22 
September 1996) 

41 

18% 

27 

15% 

14 

27% 

160 

69% 

126 

70% 

34 

65% 

Unsure  

32 

13% 

27 

15% 

5 

8% 

Source: ICF(2023), Section 5.1. 

The  sample  also  reflected  the  landscape  of  existing  EWCs  in  terms  of  the  national  legislation 
governing them, with 42% of respondents indicating that the governing legislation of their EWC is 
either  German  (26%)  or  French  (16%).  Additionally,  a  sizeable  share  of  respondents  (14%) 
indicated that their EWC is governed under Irish legislation. The chart below provides an overview 
of the EWCs represented in the sample according to the national legislation governing them. 

Figure 3: Overview of survey respondents by the legislation applicable 

68 

 
 
Source: ICF(2023), Section 5.1.2.1. 

Two  evidence  gathering  workshops  held  on  22  June  2023  complemented  the  information 
generated from the online survey by gathering further (qualitative) evidence.  

The workshops gathered representatives from the management and employee representatives across 
different multinational companies with an EWC. First workshop gathered EWC representatives of 
different  multinational  companies  (21  participants),  second  workshop  gathered  management 
representatives  of  different  multinational  companies  (27  participants).  Both  workshops  had  a 
common agenda, structure and duration (2.5 hours online meeting).  

 The selection of participants aimed to: 

• 

• 
• 

achieve a balanced representation of different types of EWC / information and consultation 
body 
achieve geographical balance 
strike a balance between EWCs which have recently experienced problems (e.g., legal 
disputes with the management) and EWCs that have been well-functioning. 

Main findings from these three consultation activities are summarised below: 

1. Policy area 1  

Targeted interviews 

EWCs support removal of existing exemptions from the scope of the recast Directive. However, if 
management show reluctance to negotiate, concerns arise about a potential gap in the existence of 
an EWC (e.g. voluntary agreement not replaced with an EWC).  

Management of Union-scale undertakings believe ending of exemptions is unnecessary, as flexible 
renegotiation occurs naturally. Rigid procedures are unhelpful. 

69 

 
 
EU and national employers’ associations express general opposition to the abolition of exemptions. 
Existing tailored agreements are deemed effective, and a one-size-fits-all approach is unsuitable. 

EU and national trade unions generally support removing of exemptions and renegotiating existing 
agreements  to  harmonise  EWCs  functioning.  In  addition,  such  renegotiations  would  facilitate  the 
integration  of  structural  changes  or  updates  in  the  workplace  that  impact  on  working  conditions, 
especially addressing those that are key concerns for trade unions such as digitalisation.  

Legal experts are overall in favour of removing of exemptions as this would guarantee equal access 
to justice across all EWCs, regardless of the company or the signature date of the agreement.  

National  authorities  generally  support  removing  of  exemptions.  This  is  clear  in  the  FR  position, 
which  highlights  the  inconsistencies  in  the  agreements  in  force  and  proposes  allowing  sufficient 
time for multinational companies to revise their existing EWC agreements. The other countries (ES, 
NL, PL) report a small number of pre-Directive EWC agreements and as such do not see the ending 
of exemptions as having significant impacts.  

In  the  online  survey,  on  the  possibility  of  removing  of  exemptions  employee/EWC 
representatives were overwhelmingly in favour (81.7%; 147 out of 180 respondents) compared to 
only  13.2%  of  respondents  on  behalf  of  management  (7  out  of  53  respondents).  Respondents 
(combining  both  employees  and  management)  of  information  and  consultation  bodies  created 
before the first EWC Directive were less in favour of removing the exemptions (53.7 %) than those 
with EWCs created under EU rules (69.2%). 

Figure 4: Replies to the survey question “Are you in favour of ending exemptions of companies 
into  application?” 
with  agreements 

first  Directive 

signed  before 

entered 

the 

Source: ICF(2023), Section 5.1.2.8. N=233 

In  the  workshops  with  EWC  and  management  representatives,  management  representatives 
agreed  that  voluntary  agreements  tend  to  be  effective  and  cost-efficient,  as  long  as  both  parties 
acted  in  good  faith.  Participants  expressed  concern  about  imposing  more  rules  and  structures 
especially where there is already a well-established social dialogue. 

Among  employee  representatives,  a  variety  of  experiences  were  reported  depending  on  corporate 
culture,  on  the  sector  of  activity  and  on  the  governing  legislation.  There  was  the  perception  that 
voluntary  agreements  offer  flexibility  for  addressing  transnational  issues.  Participants  agreed  that 
while  renegotiations  of  EWC  agreements  can  improve  functionality,  success  in  the  renegotiation 

70 

 
 
 
 
process varies. No comments were expressed on the possibility of ending exemptions under Article 
14. 

2.  Policy area 2 

Targeted interviews 

EWCs  emphasise  access  to  training,  expert  support,  and  trade  union  assistance  for  better 
negotiation  outcomes.  While  gender  balance  is  endorsed  in  theory,  issues  are  raised  about  the 
practicality  of imposing gender quotas that may also  be detrimental  to  the nomination  of suitable 
representatives based on experience and competence.  

Management of Union-scale undertakings on the whole support gender balance as a principle but 
consider that gender quotas would be too difficult to enforce legally.  

EU and national employers’ associations raise concerns with regard to the coverage and definition 
of  "reasonable"  legal  costs.  There  is  opposition  to  resorting  to  legal  action  in  EWC  negotiations. 
The complexity in establishing SNBs and the unnecessary involvement of outside experts are also 
highlighted. They consider the issue of gender balance as issue for employee representatives to deal 
with, but caution that that gender quotas would be difficult to implement.  

EU  and  national  trade  unions  are  in  favour  of  the  inclusion  of  provisions  guaranteeing  expert 
support,  in  particular  trade  union  involvement,  fair  election  processes  and  adequate  resources  to 
ensure  effective  SNB  establishment.  Implementing  quotas  for  gender  balance  would  be  complex 
due to variations in workforce composition across sectors. Rather, achieving gender balance could 
feature as an intention in EWC agreements – a trend that is currently being observed. 

Legal  experts  overall  agree  on  clearer  timeframe  for  the  establishment  of  the  SNB.  While  legal 
experts  representing  employees  emphasise  the  importance  of  SNB's  access  to  resources,  training 
and  legal  support  and  recognise  the  role  of  trade  unions  in  facilitating  effective  social  dialogue, 
legal experts representing employers highlight the need for clear guidelines on legal costs to ensure 
that these do not become disproportionate. Overall, experts are sceptical about introducing gender 
balance quotas in the EWC Directive. 

National  authorities  overall  support  clearer  timeframes  for  the  setting  up  of  SNBs.  As  regards 
resources,  FR  proposes  evaluating  "reasonable  costs"  based  on  expertise  relevance,  number  of 
requests, and quality, cautioning against rigid themes and advocating EWC choice of experts with 
cost considerations. ES questions the need for SNBs to cover legal costs, as ES law already covers 
these expenses. BE considers the provision on access to expertise unnecessary due to their existing 
tradition  of  union  experts  and  trade  union  support  in  BE.  National  authorities  are  cautious  of 
introducing  an  obligation  for  gender  quotas  in  the  composition  of  EWCs  as  they  may  not  be 
reflective  of  the  gender  composition  in  the  workforce  of  multinational  companies.  While  gender 
balance in representation is welcome in principle, it may not be practical to implement. 

In  the  online  survey,  55.6%  of  responding  employee/EWC  representatives  (100  out  of  180 
respondents)  indicated  having  experienced  problems  in  the  process  of  setting  up  of  an  EWC 
compared to 3.8 % of respondents among managers (2 out of 53 respondents). The only problem 
mentioned by the managers related to the length of the negotiations. By comparison, around three 
quarters  of  employee/EWC  representatives  who  have  experience  problems  reported:  no  effective 

71 

 
access to justice or remedies in the case of breaches of obligations by the company (79%); lack of 
expertise for setting up the EWC (76%); delays in setting up of the SNB (74%).177 

Figure 5: Replies to the survey question: “Have you experienced any problems/issues related 

to the procedure for setting up your EWC?”  

ICF(2023), Section 5.1.2.4. N=233 

On  the  possibility  of  including  a  provision  to  ensure  gender  balance  in  the  composition  of  the 
EWC, both stakeholder groups had similar views. 36.1 % of respondents on behalf of management 
and 35.8 % on behalf of employee/EWC representatives were in favour (84 out of 233 respondents 
in  total).  Conversely,  47%  of  respondents  on  behalf  of  management  (25  out  of  53)  and  38%  of 
responding employee/EWC representatives (65 out of 180) were not in favour of such measure.178 

In  the  workshops  with  EWC  and  management  representatives,  management  representatives 
overall  favoured  flexible  timeframes  and  encouraging  gender  balance,  but  without  enforcing 
quotas. Challenges were discussed regarding gender representation, particularly in male-dominated 
industries like manufacturing. The EWC representatives emphasised the importance of ensuring a 
smooth set-up procedure, usually requiring appropriate trade union support and training. Balanced 
gender representation is a positive goal but faces challenges in sectors with low female workforce 
percentages and diverse nominations or selection systems of employee representatives in Member 
States. Sector and country-specific considerations in this regard would be necessary. 

3.  Policy area 3  

Targeted interviews 

EWCs  generally  support  revising  the  definition  of  transnationality  but  differ  on  specifics.  Some 
want  to  insert  examples,  while  others  fear  that  examples  would  narrow  the  scope.  EWCs  overall 
favour a need for management to justify when a matter is not transnational. Training for EWCs on 
transnationality is recommended to ensure effective advocacy of workers' interests. EWCs report on 
ineffectiveness  of  the  consultation  procedure  and  support  provisions  ensuring  employee 
consultation  and  reasoned  responses  from  management  before  the  management  decision  is  taken. 

177 Respondents (consisting of both employees and management) for EWCs created under the 1994 or 2009 Directive 
indicated  having  experienced  problems  in  setting  up  their  EWC  more  frequently  compared  to  respondents  for 
information  and  consultation  bodies  created  before  the  first  Directive  came  into  effect  (43.4%  vs.  36.6%;  69 
respondents out of 160 vs.15 respondents out of 41).   
178 Remaining respondents preferred not to answer.  

72 

 
 
 
Some  EWCs  mentioned  shortcomings  in  accessing  free  training  and  external  expertise.  EWCs 
overall favour the options proposed to revise rules around confidentiality and non-disclosure for the 
sake of improving transparency. They however  acknowledge the  challenges of defining objective 
criteria  and  varying  national  laws  regarding  confidentiality.  Awareness-raising  and  training  are 
suggested for handling confidentiality matters between EWC members and local committees. 

Management of Union-scale undertakings oppose broadening the transnationality definition, citing 
concerns  of  increased  EWC  interference,  and  believe  that  further  specifying  the  definition  would 
have  to  contend  with  different  perspectives  on  what  constitutes  transnational  matters.  Regarding 
procedures and resources, management representatives find current procedures  for consultation of 
EWCs  effective.  Many  highlight  that  consultations  with  the  EWC  already  takes  place  before 
decisions are made. Some management representatives support the obligation to provide reasoned 
responses  to  EWCs'  opinions.  Overall,  management  representatives  show  goodwill  in  providing 
free  training  to  EWCs  to  perform  their  duties  even  if  the  costs  borne  by  employers  can  be  high. 
Management  representatives  oppose  revising  confidentiality  arrangements  due  to  concerns  over 
information  leaks  and  control.  They all find that  making the non-disclosure of information to  the 
EWC subject to prior or judicial authorisation is unnecessary. 

EU  and  national  employers’  associations  express  concerns  over  the  lack  of  clarity  in  defining 
transnational  matters,  highlighting  potential  excessive  consultations  and  delays  in  time-sensitive 
projects. They criticise proposed changes as vague and urge a practical approach, emphasising the 
need for clear boundaries, legal certainty, and differentiation between local and transnational issues. 
They  oppose  any  measures  which  would  potentially  transform  the  EWC  into  a  decision-making 
body  and  shift  focus  away  from  consultation  and  information.  They  support  practical  rules  for 
making  consultation  more  efficient  while  preserving  trust  and  flexibility.  They  consider  that  a 
requirement  to  provide  a  written  response  would  delay  the  decision-making  process  and  not 
necessarily mean better outcomes from the EWC's perspective. Employers’ associations highlight a 
need  for  confidentiality  provisions  that  strike  a  balance  between  protecting  sensitive  information 
and facilitating effective information and consultation processes.  

EU and national trade unions are in favour of a broader definition of transnational matters to ensure 
a thorough examination of company proposals and recognise supply chain interconnections. They 
stress  the  need  for  clarity,  inclusion  of  relevant  elements,  and  updated  frameworks  to  address 
challenges  such  as  proving  transnational  impact  and  handling  restructuring  plans.  Transnational 
issues encompass not only job losses but also changes in working methods and job quality. Trade 
unions  support  changes  that  improve  transparency  and  effective  communication,  that  guarantee 
appropriate  resourcing  for  training  and  expertise.  The  consider  that  all  recommendation  of  the 
European Parliament would improve inclusion of workers' perspectives in the consultation process 
to ensure meaningful engagement and decision-making. They argue for stricter rules for applying 
confidentiality  provisions  and  emphasise  the  importance  of  striking  a  balance  between 
confidentiality  and  transparency  to  ensure  effective  consultation  and  representation  of  workers' 
interests. 

Legal  experts  overall  highlight  the  challenges  in  defining  transnational  matters  and  call  for  some 
clarity  to  avoid  disputes.  Experts  who  work  with  EWC  employee  representatives  argue  that  the 
definition should be broadened to any phenomenon that has effects on working conditions within a 
company  as  a  whole  rather  than  being  limited  to  developments  affecting  a  given  number  of 
countries.  With  regard  to  the  information  and  consultation  procedure,  legal  experts  highlight  the 
importance of clear guidelines, especially on timeliness. For legal experts representing employees, 
adequate  resourcing,  and  free  training  for  EWCs  would  improve  their  effectiveness  in  the 
consultation  process.  The  also  stress  the  need  for  clear  and  objective  criteria  for  applying 

73 

 
confidentiality,  the  importance  of  transparency  in  explaining  the  reasons  and  duration  of 
confidentiality, and the necessity of facilitating coordination and exchange between different levels 
of employee representation while ensuring adequate safeguards for sensitive information. 

National authorities have diverse views on the concept of transnational matters. BE and SE support 
clarification  of  the  term  to  address  differing  interpretations  of  transnationality.  However,  SE  has 
reservations about widening the scope of the definition. PL welcomes proposals that provide more 
specific information on transnational matters, despite potential consultation procedure prolongation. 
NL believes the current definition is sufficient. FR proposes integrating environmental issues into 
the  definition  but  opposes  obligation  on  management  to  justify  non-transnational  matters.  DE 
supports  incorporating  Recital  16  into  the  legal  provision  and  introducing  a  provision  for 
management  to  justify  non-transnational  matters.  ES  supports  clarifying  the  concept  of 
transnational matters and favours a provision that requires written justifications from management. 
CZ maintains a neutral stance and prefers non-binding guidance to enhance the current directive.  

Addressing the issue of timeliness and obliging a reasoned response from management to the EWC 
opinion was overall supported by the national authorities. ES would be in favour of a requirement 
on the management to provide a reasoned response to the EWC opinion prior to the decision being 
implemented  or  adopted.  NL  states  that  such  a  requirement  would  be  aligned  with  Dutch  Works 
Council practices. SE emphasises the importance of respecting national labour laws while allowing 
reasonable timeframes for consultation. 

National  authorities’  support  for  amending  provisions  on  confidentiality  and  non-disclosure  of 
information is overall limited. SE emphasises the need for balance and practicality in implementing 
confidentiality  rules.  BE  sees  no  need  for  involving  the  court  in  determining  confidentiality.  PL 
finds its  transposition of confidentiality  rules  satisfactory and views the proposed amendments  as 
unnecessary.  NL  has  well-established  rules  on  confidentiality  and  does  not  support  exempting 
EWC  members  from  confidentiality  obligations  when  sharing  information  with  national  or  local 
works councils. ES suggests striking a balance between transparency and confidentiality, defining 
objective criteria, and avoiding administrative or judicial authorisation requirements. 

In  the  online  survey,  as  regard  the  concept  transnational  matters,  43.3%  of  responding 
employee/EWC  representatives  (78  out  of  180)  indicated  having  experienced  problems  in  their 
EWC compared to 28.3% of respondents among managers (15 out of 53 respondents).  

Figure 6: Replies to the survey question: “Have you experienced any problems/issues relating 

to the definition of the concept of 'transnational matters' in your EWC?” 

ICF survey(2023), Section 5.1.2.3 -. N=233 

74 

 
 
The  results  show  disparity  of  views  between  management  representatives  and  employee/EWC 
representatives  relating  to  the  possibility  of  broadening  the  definition  of  transnational  matters.  A 
majority of respondents on behalf of management  consistently  expressed  mostly  negative or very 
negative  views  on  impacts  of  policy  option  3  on  effectiveness  of  the  EWC,  efficiency  of  the 
functioning  of  the  EWC,  on  legal  certainty  and  clarity,  as  well  as  mostly  negative  views  on  the 
impact  of  a  broadened  definition  on  companies’  competitiveness.  Conversely,  a  majority  of 
employee/EWC representatives viewed this policy option positively or very positively with regard 
to the same types of impacts. 

The  below  figure  provides  illustrates  views  of  both  stakeholder  groups  on  option  3c’s  impact  on 
legal certainty and clarity: 

Figure 7: Replies to the survey question: “What would be the impact on legal certainty and 
clarity if the definition of transnational matters included also the following elements” 

Matters directly or indirectly affecting more than one Member State 

Decision taken by the headquarters affecting employees in another Member State than the one where the headquarters is located 

Decision affecting only one Member State but with potential impact on the whole group or in (an)other Member State(s) 

ICF(2023), Section 5.1.2.3. N=233 

Regarding consultation procedures, 70% of responding employee/EWC representatives  (126 out 
of  180  respondents)  indicated  having  experienced  problems  in  their  EWC  while  73.6%  of 
respondents  on  behalf  of  management  (39  out  of  53  respondents)  indicated  having  never 
experienced any problems in that respect.179  

179 A greater share of respondents for  EWCs created under the 1994 or 2009 Directive  indicated having experienced 
problems in relation to the consultation procedure than respondents for  bodies created before the first Directive came 
into effect (61% vs. 51.3%; 98 respondents out of 160 vs. 21 respondents out of 41). 

75 

 
 
 
 
 
 
Figure 8: Replies to the survey question: “Have you experienced any problems/issues related 

to the consultation procedure in your EWC?” 

ICF(2023), Section 5.1.2.3. N=233 

Timeliness  of  the  consultation  procedure  was  the  most  frequent  problem  identified  among  the 
responding  employee/EWC  representatives  who  have  experienced  problems  (91%).  For 
management  representatives,  the  most  frequent  problem  identified  related  to  the  risk  that 
confidential  company  information  would  be  disclosed  in  the  consultation  procedure  (62%  of 
respondents). 

On the policy option (3b and 3c) to provide a reasoned response on the EWC’s opinion, a majority 
respondents  among  management  have  a  neutral  or  negatives  views  on  the  impact  of  such  a 
requirement on effectiveness, efficiency of the EWC and legal certainty. 43.3 % consider that such 
option  would  have  a  negative  impact  on  competitiveness  of  EU  companies.  Conversely,  a  vast 
majority  of  employee/EWC  representatives  believe  that  these  would  generate  positive  or  very 
positive  impacts  on  legal  certainty  and  clarity  (88.4  %),  efficiency  of  the  EWC  (81.2  %)  and 
effectiveness  of  the  EWC  (85,5  %),  as  well  as  that  the  measure  would  have  positive  impacts  on 
companies’ competitiveness (75.5 %). 

the  difference  of  views  of  management  and  EWC/employee 
The  figure  below  shows 
representatives  on  the  perceived  impacts  on  legal  certainty  and  clarity  of  the  policy  measure 
requiring a reasoned response to the EWC opinion.  

Figure 9: Replies to the survey question: “What would be the impact on legal certainty and 

clarity of laying down an obligation on management to provide a reasoned response on the 
EWC’s opinion?” 

ICF(2023), Section 5.1.2.3. N=233 

In  the  workshops  with  EWC  and  management  representatives,  management  representatives 
raised  potential  conflicts  between  EWCs  and  local  legislation,  with  worries  that  broadening  the 
concept  of  transnational  matters  covered  by  EWCs  could  disrupt  their  own  functioning. 

76 

 
 
 
 
 
Multinational  companies  emphasised  stressed  the  importance  of  fast  decision-making  at  the  local 
level.  Some  companies  took  a  broader  interpretation  of  transnationality  in  their  agreements, 
emphasizing  the  importance  of  sharing  information  and  maintaining  transparency.  EWC 
representatives  identified  challenges  related  to  confidentiality,  the  definition  of  transnational 
matters, and access to external expertise and resources. The participants agreed that clear guidelines 
for  defining  transnational  matters  are  needed,  taking  into  account  their  impact  on  European 
employees and their potential magnitude. Different experiences were reported regarding the use of 
confidentiality  clauses:  some  participants  find  them  unnecessary  and  advocate  for  transparency, 
while  others  acknowledge  the  importance  of  confidentiality  but  want  to  strike  a  balance  with  the 
need for information sharing and consultation. There was agreement overall that decision-making 
processes  should  allow  sufficient  time  for  EWCs  to  provide  input  and  opinions  before  final 
decisions are made. Participants also agreed that access to external experts is important, and EWC 
agreements  should  specify  such  rights.  The  participants  overall  expressed  the  view  that  limited 
resources and budget constraints hinder the ability of EWC to engage effectively in information and 
consultation processes. 

4.  Policy area 4 

Targeted interviews 

EWCs unanimously support a requirement on Member States' to grant EWCs and SNBs access to 
courts.  Pecuniary  sanctions  linked  to  company  turnover  and  introducing  a  right  to  an  injunction 
allowing  temporary  suspension  of  management  decision  are  seen  as  useful  in  incentivising 
compliance  by  management,  but  some  EWC  representatives  point  out  that  such  sanctions  would 
potentially harm companies and result in detrimental repercussions for employees. 

Management  of  Union-scale  undertakings  consider  that  guaranteeing  EWC  and  SNB  access  to 
justice  and  introducing  the  right  of  injunction  for  EWCs  to  suspend  the  implementation  of 
management  decisions  until  the  information  and  consultation  procedure  has  been  duly  conducted 
will encourage more court cases and goes against the importance of promoting cooperation between 
the  company  and  the  EWC.  Management  representatives  unanimously  reject  very  high  pecuniary 
sanctions  recommended  by  the  Parliament  as  this  would  create  competitive  disadvantages  for 
companies and be counterproductive for employees too. 

EU and national employers’ associations express concerns about the considered options for revising 
the  enforcement  provisions  of  the  EWC  Directive,  highlighting  potential  negative  impacts  on 
decision-making,  corporate  governance,  and  employer-employee  relationships.  They  call  for  a 
balanced  and  pragmatic  approach  that  takes  into  account  the  specific  needs  of  companies  and 
Member States. 

EU  and  national  trade  unions  state  that  there  is  a  necessity  to  harmonise  the  national  legal 
frameworks on access to justice for achieving a level playing field for EWCs, and to strengthen the 
dissuasive nature of sanctions to enhance the effectiveness of EWCs. 

Legal experts underline the need for standardised processes for EWCs to access justice, and for the 
inclusion of dissuasive sanctions. Experts working with management representatives however view 
fines for non-compliant companies as counterproductive when tied to annual turnover percentages. 

Among  national  authorities,  DE  and  SE  express  concerns  about  conflicts  over  official 
representation, asking for further clarity. BE has well-established courts for employment conditions 
and  finds  the  existing  system  effective,  with  high  potential  sanctions  acting  as  a  deterrent  and 
incentivising the formation of EWCs. PL supports possible amendments relating to EWC resources 

77 

 
and  legal  capacity  but  cautions  against  complex  administrative  and  judicial  procedures  and 
disproportionate  fines.  FR  suggests  specifying  resources  allocated  to  EWCs  but  does  not  support 
the right to seek a preliminary injunction. Introducing pecuniary sanctions in the directive would be 
problematic  and  not  aligned  with  NL  law  on  local  works  councils.  FI  sees  challenges  with 
preliminary injunctions and considers pecuniary sanctions counterproductive. 

In  the  online  survey,  majority  of  respondents  among  employee/EWC  representatives  (65.6  %) 
stated  to  have  experienced  problems  related  to  enforcement  of  their  EWC  rights  and  obligations, 
compared to 1.9% of management representatives.  

Figure 10: Replies to the survey question: “Have you experienced problems/issues related 
to enforcement of your EWC rights and obligations provided by the existing rules?” 

ICF(2023), Section 5.1.2.7. N=233 

The  policy  option  involving  far-reaching  sanctions  (option  4c)  could,  according  to  management 
representatives,  have  unintended  consequences.  Increased  penalties  may  harm  competitiveness, 
result in job cuts, and deter investment. Stricter legal processes would undermine trust and hamper 
constructive  social  dialogue,  while  injunctions  could  disrupt  business  decisions  and  upset  the 
balance of power between EWC and management. On the other hand, a majority of employee/EWC 
representatives  saw  the  same  option  having  the  potential  to  generate  positive  impacts  on 
compliance with rights and obligations under the Directive (85%; 153 out of 180 respondents) and 
on  effectiveness  and  efficiency  of  the  EWC  (87.2%;  157  respondents).  They  were  however  less 
likely  to  find  the  impact  of  these  sanctions  as  positive  from  the  perspective  of  the  company's 
competitiveness (69.4%; 152 respondents). 

Employee/EWC  representatives  consider  that  sterner  sanctions  would  encourage  effective 
communication  between  workers  and  management,  providing  the  EWC  with  greater  leverage. 
However,  according  to  them,  sanctioning  methods  that  lead  to  job  losses  would  defeat  their 
purpose.  

In  the  workshops  with  EWC  and  management  representatives,  management  representatives 
raised  concerns  about  the  potential  competitive  disadvantage  European  companies  could  face  if 
heavily  sanctioned  obligations  regarding  consultation  were  imposed.  This  could  also  negatively 
impact  cooperation  between  management  and  employees.  The  effectiveness  of  the  current 
framework was highlighted, with minimal disputes over the past 25 years. Concerns were expressed 
about enforcement rules disrupting the EU market. The potential impact of GDPR-sized fines was 
discussed, which could lead to reduced interactions with the EWC due to increased legal risk. The 

78 

 
 
 
 
EWC representatives highlighted the importance of access to justice for EWCs. Timely access and 
coverage of legal costs, along with stricter sanctions, were identified as crucial. Stricter sanctions 
with real impact, including alternative solutions like delayed implementation of decision or loss of 
operating rights, were proposed. Publicity and transparency could also address non-compliance, but 
potential negative effects on employees were recognised. 

79 

 
 
 
 
ANNEX 3: WHO IS AFFECTED AND HOW? 

1.  PRACTICAL IMPLICATIONS OF THE INITIATIVE 

For  employees  of  Union-scale  undertakings  and  their  representatives,  the  initiative  mainly 
introduces  rights,  improves  their  entitlements  in  relation  to  transnational  information  and 
consultation,  increases  legal  certainty,  and  gives  better  access  to  justice.  The  ca.  5.4  million 
EU/EEA  employees  (and  their  representatives)  of  the  currently  exempted  undertakings  with 
‘voluntary agreements’ (323) would gain the right to request the establishment of an EWC in order 
to benefit from an equal application of minimum rights and obligations enforceable under EU law. 
Together with  management, they can also opt  to  preserve well-functioning  voluntary agreements. 
EWCs  in  undertakings  with  ‘Article  14  agreements’,  which  remained  subject  to  the  legislation 
transposing  the  1994  EWC  Directive,  will  be  able  to  rely  on  the  revised  requirements  of  the 
Directive,  as  all  other  EWCs.  In  the  context  of  requests  to  establish  a  new  EWC,  employee 
representatives  in  the  large  majority  of  Member  States  would  gain  a  clear  entitlement  to  the 
coverage  of  their  reasonable  legal  costs  and  more  legal  certainty  regarding  management’s 
obligation  to  initiate  negotiations  within  six  months.  The  workforce  of  Union-scale  undertakings 
would also benefit from the objective to ensure a balanced gender composition of EWCs, which is 
to be reflected in newly concluded or renegotiated  EWC agreements. During the information and 
consultation process, EWCs which are not yet entitled to a reasoned response from management to 
their opinion, prior to the adoption of a decision on transnational matters, would gain such a right. 
This  will  help  them  to  engage  in  a  genuine  dialogue  with  central  management  on  transnational 
matters. This  dialogue is  also  facilitated by clarifications of the  essential concept  of transnational 
matters,  defining  the  scope  of  the  information  and  consultation  activities  of  EWCs,  and  by  the 
limitation  of  confidentiality  obligation  to  justified  cases.  For  EWCs  operating  on  the  basis  of 
subsidiary requirements (20), the requirement of at least two plenary meetings per year would lead 
to  a  more  regular  information  and  consultation  on  transnational  matters.  For  EWCs,  SNBs  and 
employees’ representatives who currently do not have effective remedies to enforce all their rights 
under the Directive, the initiative would improve access to justice. 

For union-scale undertakings and their central management, the initiative imposes certain new 
obligations and costs, while also delivering benefits relating to a simplified and more coherent legal 
framework  and  better  employee  involvement  on  transnational  matters.  In  the  currently  exempted 
undertakings  with  ‘voluntary  agreements’  (323),  central  management  would  have  to  initiate 
negotiations of a new EWC, if requested by employees (or their representatives) in accordance with 
the  Directive.  This  will  entail  costs  for  those  undertakings  estimated  at  ca.  EUR 148 000  per 
negotiation. Generally, during negotiations or renegotiations involving an SNB, undertakings will 
be legally required to cover - in addition to other costs incurred in the setting-up phase - also the 
SNB’s  reasonable  legal  costs,  which  is  currently  not  explicitly  required  in  the  large  majority  of 
Member States. Where necessary to align existing EWC 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 with EWCs or SNBs, including in the 28 undertakings 
with ‘Article 14 agreements’ which are currently exempted from the application of the Directive. 
Evidence  suggests  that  a  re-negotiation  process  is  shorter  than  the  process  for  setting  up  a  new 
EWC but may require multiple meetings in complex cases. Based on the available evidence, it was 
possible  to  monetise  certain  costs  linked  to  meetings  (ca.  EUR  18  400  per  meeting180)  between 

180 See Annex 4 ‘Analytical methods’ (Section 4.4).  

80 

 
 
 
management  and  EWC  representatives  for  the  renegotiation  of  existing  agreements.  This  partial 
monetisation  can  provide  an  indication  of  the  order  of  magnitude  of  the  overall  costs  related  to 
renegotiations, bearing in mind that it should, however, not be taken as an approximation of those 
overall costs. In any case, the costs of renegotiation even if several meetings are needed should not 
have any significant  economic impact.  Moreover, in  a substantial  number of cases, the necessary 
adaptations of EWC agreements could be agreed as part of regular renegotiations, entailing no or 
only  very  limited  additional  costs  compared  to  the  baseline.181  Undertakings  could  also  face  an 
incremental  increase in  the  costs of running an EWC, for instance in  relation to  the obligation to 
provide  a  reasoned  response  to  the  EWC.  Undertakings  with  EWCs  based  on  subsidiary 
requirements  (20)  would  bear  additional  cost  of  ca.  EUR 42 000  for  the  required  second  plenary 
meeting per year.182 Finally, in cases of breaches of obligations, the undertakings would face a risk 
of  higher  pecuniary  sanctions.  The  occurrence  of  legal  disputes  and  application  of  penalties  is 
however expected to remain low.  
The  initiative  does  not  include  any  reporting  requirements  falling  under  the  One-In:One-Out 
approach. Specifically, as the Directive does not require but merely allows undertakings to restrict 
the dissemination of confidential information or to withhold certain information, the requirement to 
inform  employees’  representatives,  upon  request,  of  the  grounds  justifying  such  restrictions  does 
not amount to a reporting requirement. Moreover, the requirement to provide a reasoned response 
to  EWC  opinions  is  a  core  information  and  consultation  activity  rather  than  reporting.183  Related 
costs are therefore considered as adjustment costs.  

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 it could be further minimised as a part 
of  the  standard  process  of  notifying  transposition  measures  via  the  available  IT  systems.  By 
promoting a more effective access to courts, the preferred option could potentially entail additional 
limited  adjudication  costs  for  Member  States,  considering  in  particular  that  EWCs  are  exempted 
from  court  fees  in  eight  Member  States.184  This  will  affect  primarily  Member  States  which  have 
thus  far  not  guaranteed  effective  remedies  for  rightsholders  under  the  Directive.  The  expected 
higher pecuniary sanctions are assumed to accrue to Member States’ budgets. 

181 EWC agreements are revised on average every 5 years.  
182 This may affect also EWCs based on agreements, for which the subsidiary requirements can serve as a benchmark 
during negotiations. Currently, ca. 50% of EWC agreements provide for only one annual plenary meeting. However, 
such an effect would be a free choice of the parties. 
183 Already in the baseline scenario, the existing text of Directive 2009/38/EC requires that a ‘dialogue’ and ‘exchange 
of  views’  be  established  between  management  and  employees’  representatives  on  transnational  matters  (this  is  more 
clearly reflected in point 1(a) of Annex I of the Directive for EWCs which  do not operate on the basis of agreements). 
This  existing  requirement  implies  that  EWCs’  opinions  cannot  remain  a  ‘one-way-street’  but  management  must 
respond to them to ensure a genuine dialogue. The envisaged  explicit requirement of a reasoned response will clarify 
this core feature of the consultation obligation. It implicitly requires management to take EWCs’ opinions into account, 
because a reasoned response cannot be provided without having first considered those opinions on their merits. It will 
clarify an implicit obligation in the information and consultation process.  
159  AT,  LT,  ES,  BG,  FR,  DE,  RO,  SE,  NL.  Cf.  ETUC  report  by  Jagodziński  /  Stoop  (2023)  Access  to  Justice  for 
European Works Councils, p. 31. 

81 

 
 
 
 
2.  SUMMARY OF COSTS AND BENEFITS 

The tables below provide an overview of the benefits and the costs of the preferred policy option. 
As benefits are not quantifiable, a qualitative justification and an explanation is provided. Costs are 
quantified whenever possible, and when this is not possible, a qualitative justification and an 
explanation is provided.  

I. Overview of Benefits (total for all provisions) – Preferred Option 

Description 

Amount 

Comments 

Direct benefits 

Not  quantifiable,  expected  to 
be negligible. 

This  benefit  is  relevant  for  the  currently  3970  Union-scale 
undertakings185.  By  removing  the  exemptions  from  the  scope 
of  the  Directive,  undertakings  would  have  a  less  fragmented, 
simpler legislative framework.  

Market efficiency from a 
simplified and more 
coherent legal framework 
regarding transnational 
information and 
consultation rights 

More (cost-)efficient and 
expedient process for 
negotiating and 
renegotiating EWC 
agreements 

quantifiable 
savings 

and 
Not 
marginal 
on 
undertakings’  cost  of  setting 
up a new EWC agreement or 
renegotiating  existing  EWC 
agreements. 

On the employees’ side, it would primarily be relevant for: 

- 

- 

the  ca.  5.4  million  EU/EEA  employees  of  the  323 
currently  exempted  undertakings  with  ‘voluntary 
agreements’;186 
the ca. 465.000 employees of undertakings with EWC 
agreements  that  currently  remain  subject  to  the  1994 
EWC Directive (28).187 

By specifying the issues to be agreed by parties with respect to 
EWCs’  resources,  and  by  requiring  coverage  of  special 
negotiating  bodies’  reasonable  legal  costs,  some  disputes  and 
legal  actions  would  be  pre-empted.  As  an 
potential 
accompanying measure, the preferred option would clarify the 
wording of the deadline for initiating negotiations, to improve 
legal certainty and prevent delays in the setting-up process. In 
their  combination  these  measures  could  generate  some  cost 
savings for undertakings. 

Cost  savings regarding the setting up a  new  EWC benefit  the 
ca.  20  undertakings  establishing  a  new  EWC  per  year.  The 
average overall costs of setting up one new EWC are estimated 
at  ca.  EUR 148 000,  whereas  the  potential  savings  on  these 
costs due to the preferred policy option cannot be quantified. 

Cost  saving  regarding  the  renegotiation  of  existing  EWC 
agreements benefit the unknown share of the 678 undertakings 
with  an  EWC188  which  may  face  renegotiations  involving  an 
SNB.  Potential  savings  on  these  costs  due  to  the  preferred 
policy  option  cannot  be  quantified.  Nor  could  be  reliably 
quantified  existing  average  costs  of  renegotiations.  Evidence 
suggests  that  a  re-negotiation  process  is  shorter  than  the 
process  for  setting  up  a  new  EWC  but  may  require  multiple 

185 Based on past trends, the number of Union-scale undertakings is expected to increase at a rate of close to 4% per 
year over the baseline period, and the number of their employees at a rate of ca. 3,4%, cf. ICF(2023), Section 3.2.1. 
186 Estimated average number of EU employees per undertakings with an EWC is 16.600. Cf. Annex 4. 
187 See footnote 164 above. 
188 EWCs or transnational information and consultation bodies exist in 1.001 undertakings. Of those, 323 are ‘voluntary 
agreements’ concluded before the first EWC Directive entered into application. The number of EWCs is expected to 
increase at a rate of 9/year, taking into account the conclusion of an estimated 20 new EWC agreements per year and 
the termination of 11 such agreements. 

82 

 
 
 
 
 
Clearer and more 
comprehensive EWC 
agreements 

Not quantifiable.  

Improved gender balance on 
EWCs 

Not quantifiable.   

Improved social  dialogue  in 
Union-scale undertakings 

Not quantifiable.  

meetings in complex cases. Based on the available evidence, it 
was possible to monetise certain costs linked to meetings (ca. 
EUR  18  400  per  meeting189)  between  management  and  EWC 
representatives  for  the  renegotiation  of  existing  agreements. 
This partial monetisation can provide an indication of the order 
of  magnitude  of  the  overall  costs  related  to  renegotiations, 
bearing in mind that it should not be taken as an approximation 
of those overall costs.  

This benefit is relevant for the currently 678 undertakings with 
an  EWC  and  their  ca.  11.3  million  employees190,  as  well  as 
parties  to  future  EWC  agreements,  including  potentially  the 
parties to the currently 323 ‘voluntary agreements’. 

By specifying the issues to be agreed by parties with respect to 
EWCs’  resources,  and  by  requiring  coverage  of  special 
negotiating bodies’ reasonable legal costs, the risk of gaps and 
legal uncertainty would be reduced. 

Given  that  in  ca.  60%  of  existing  EWCs  women  are 
underrepresented,  the  more  balanced  gender  representation  of 
interests  would  contribute  to  more  equitable  management 
decisions and improved employment conditions. 

This  benefit  is  potentially  relevant  for  the  3970  Union-scale 
undertakings  and  their  ca.  31.7 million  EU/EEA  employees 
and  directly  relevant  for  those  that  have  set  up  an  EWC  (678 
undertakings and their ca. 11.3 million employees). 

Employees  of  all  Union-scale  undertakings  without  an  EWC 
(including those with ‘voluntary agreements’) would be given 
the  equal  right  to  request  the establishment  of  an  EWC,  or  to 
rely  on  the  minimum  requirements  of  the  revised  Directive 
where an EWC already exists.  

For  Union-scale  undertakings  with  an  EWC,  the  requirement 
for  a  reasoned  response  to  EWCs’  opinions  prior  to  the 
adoption  of  a  decision on  transnational  matters  is  expected  to 
to  ensuring  a  genuine  dialogue 
contribute  significantly 
between  management  and  EWCs  where  the  respective  EWC 
agreement  does  not  yet  contain  such  a  requirement.  The 
preferred  option  is  likely  to  have  a  positive  effect  on  the 
quality of transnational social dialogue also by increasing legal 
clarity  and  access  to  resources  and  ensuring  a  more  effective 
deterrence of non-compliance (see subsequent rows). 

For  undertakings  with  EWCs  operating  on  the  basis  of 
subsidiary  requirements  (20),  the  requirement  of  at  least  2 
plenary  meetings  per  year  would  lead  to  a  more  regular 
information  and  consultation  on  transnational  matters,  which 
would  positively  impact  the  quality  of  the  social  dialogue. 
There  would  also  be  an  unquantifiable  spill-over  effect  on 
undertakings with EWCs operating on the basis of agreements 
(of which ca. 50 % currently require  only one annual plenary 
meeting). 

189 See Annex 4 ‘Analytical methods’ (Section 4.4).  
190 Estimated average number of EU employees per undertakings with an EWC is 16.600. Cf. Annex 4. 

83 

 
 
 
 
 
 
Improved legal certainty 

Not quantifiable 

This  benefit  is  potentially  relevant  for  the  3970  Union-scale 
undertakings  and  their  ca.  31.7 million  EU/EEA  employees 
and  directly  relevant  for  those  that  have  set  up  an  EWC  (678 
undertakings and their 11.3 million employees)  

By  clarifying  the  concept  of  ‘transnational  matters’,  the 
requirement to initiate negotiations within 6 months following 
a request to establish a new EWC, the issues to be addressed in 
EWC  agreements,  and 
imposing 
confidentiality  or  withholding  information  from  EWCs,  the 
preferred  option  is  expected  to  increase  legal  certainty 
significantly.  Consequently,  the  risk  of  disputes,  delays  and 
costs is likely to decrease.  

the  conditions 

for 

More  effective  enforcement 
and 
through 
remedies (access to justice) 

sanctions 

Not quantifiable.  

the  Commission, 

Generally,  the  preferred  option  would  promote  effective 
require 
compliance  monitoring  by 
proportionate  and  dissuasive  sanctions 
the  case  of 
infringements  of  rights  under  the  Directive  (including  by 
means of pecuniary sanctions based on undertakings’ turnover, 
where  applicable),  and  access  to  justice  with  respect  to  all  of 
those rights, in accordance with Article 47 CFR. 

in 

This benefit is relevant for the estimated 4.3 million EU/EEA 
employees  who  currently  do  not  have  an  effective  remedy  in 
the  case  of  non-compliance  with  their  rights  under  the 
Directive.  

The 5.4 million employees of currently exempted undertakings 
with  ‘voluntary  agreements’  (323)  would  benefit  from 
justiciability  of  minimum  information  and  consultation  rights 
under  EU  law,  where  such  agreements  are  replaced  by  EWC 
agreements. 

The  requirement  to  consider  undertakings’  turnover  when 
determining  pecuniary  sanctions  is  likely  to  lead  to  higher 
penalties. While pecuniary sanctions are assumed to accrue to 
Member States’ budget, the increase in revenue is expected to 
be negligible due to the low incidence of such penalties. 

Marginally 
revenue for Member States 

increased 

Not 
negligible. 

quantifiable 

and 

Indirect  economic  benefits 
of 
transnational 
improved 
social dialogue   

Not quantifiable 

Indirect benefits 

Improved  transnational  social  dialogue  can  deliver  indirect 
benefits for undertakings with an EWC: 

- 

- 

better informed strategic decision-making and better-
targeted measures accompanying structural change; 
reinforced mutual trust between management and the 
workforce. 

Broader  economic  benefits 
of  increased  gender  balance 
on EWCs 

Not quantifiable 

By promoting gender balance in EWCs, the preferred option is 
expected to contribute to delivering broader economic benefits 
such as a higher level of employment and productivity. 

(1) Estimates are gross values relative to the baseline for the preferred option as a whole (i.e. the impact of individual 
actions/obligations of the preferred option are aggregated together); (2) Please indicate in the comments column which 
stakeholder  group  is  the  main  recipient  of  the  benefit;(3)  For  reductions  in  regulatory  costs,  please  describe  in  the 
comments  column  the  details  as  to  how  the  saving  arises  (e.g.  reductions  in  adjustment  costs,  administrative  costs, 
regulatory charges, enforcement costs, etc.;);.  

II. Overview of costs – Preferred option 

Citizens/Consumers 

Businesses 

Administrations 

84 

 
 
 
 
 
 
One-off 

Recurrent 

One-off 

Recurrent 

One-off 

Recurrent 

Negotiatio
n  of  new 
EWC 
agreement
s 

Direct adjustment 
costs 

N/A 

N/A. 

Ca. € 148 000 
(=0.0006% of 
average global 
turnover) per 
negotiation of a 
new EWC 
agreement 
(costs incurred 
by an uncertain 
share of the 
currently 323 
exempted 
undertakings 
with ‘voluntary 
agreements’) 

on 

for  all 

Based 
hypothetical 
assumptions 
regarding 
the 
rate  of  creation 
of  new  EWCs 
previously 
in 
exempted 
undertakings, 
aggregated 
costs 
such 
undertakings 
range  from  ca 
€ 12m 
to  ca. 
€ 36m:  
- ca € 12m if an 
EWC  would  be 
requested 
in 
25%  of  those 
undertakings; 
ca.  € 24m 
- 
assuming 
a 
creation  rate  of 
50%; 
- 
ca.  € 36m 
assuming 75%. 

Incremental 
increase  in  the 
of 
costs 
operating 
an 
EWC 
on 
(currently 
average 
ca. 
€ 300 000  per 
to 
year)  due 
better  coverage 
training 
of 
legal 
costs, 
and 
costs 
experts’ fees. 

N/A 

N/A 

Renegotia
ting  EWC 
agreement
s 

Direct adjustment 
costs 

N/A 

N/A 

Average costs 
of renegotiation 
could not be 
reliably 
quantified.191  
Evidence 
suggests that a 
re-negotiation 

N/A 

N/A 

N/A 

191 Based on the available evidence, it was possible to monetise certain costs linked to meetings (ca. EUR 18 400 per 
meeting)  between  management  and  EWC  representatives  for  the  renegotiation  of  existing  agreements.  This  partial 
monetisation can provide an indication of the order of magnitude of the overall costs related to renegotiations, bearing 
in mind that it should not be taken as an approximation of those overall costs (see Annex 4 Section 4.4.). 

85 

 
 
 
 
process is 
overall shorter 
than the 
process for 
setting up a 
new EWC but 
may entail 
several 
meetings in 
more complex 
cases. 
The 
renegotiation 
costs would be 
incurred by an 
– uncertain – 
share of the 
currently 678 
undertakings 
with an EWC 
to adapt to the 
revised 
requirements of 
the Directive. 

Based on 
hypothetical 
assumptions 
regarding the 
share of EWC 
agreements that 
will need to be 
renegotiated 
and the number 
of meetings 
required for 
that purpose, 
these one-off 
costs could fall 
in the 
following 
ranges: 
- if 25% of 
existing EWC 
agreements 
were 
renegotiated, 
aggregated 
costs would 
range between 
ca. € 3,1m (if 
one meeting 
would be 
required per 
renegotiation) 
to ca. € 12,5m 
(if four 
meetings would 
be needed) 
- if 50% of 

86 

 
 
existing EWC 
agreements 
would be 
renegotiated, 
aggregated 
costs would 
range between 
ca. € 6,2m (if 
one meeting 
would be 
required per 
renegotiation) 
to ca. € 25m (if 
four meetings 
would be 
needed); 
- if 75% of 
existing EWC 
agreements 
would be 
renegotiated, 
aggregated 
costs would 
range between 
ca. € 9,4m (if 
only one 
meeting would 
be required per 
renegotiation) 
to € 37,5m (if 
four meetings 
would be 
needed) 

Possible 
marginal 
increase  in  the 
costs 
of 
negotiating  or 
renegotiating 
EWC 
agreements 
with  an  SNB, 
see  above  for 
estimates of the 
respective 
estimates 
of 
average  overall 
costs. 
EWC 
agreements  are 
renegotiated  on 
average every 5 
years,  but  not 
all 
renegotiations 
involve 
SNB. 

an 

Possible 
incremental 

N/A 

N/A 

N/A 

N/A 

Covering 
reasonable 
legal costs 
of  special 
negotiatin
g bodies 

Direct adjustment 
costs 

N/A 

N/A 

N/A 

Potentiall
y  more 

Direct adjustment 
costs 

N/A 

N/A 

N/A 

87 

 
 
extensive 
coverage 
of  EWCs’ 
expenses 
for 
legal 
and expert 
advice 
and 
training; 
reasoned 
response 
to  EWC 
opinions 

increase  in  the 
of 
costs 
an 
running 
EWC 
for 
certain 
undertakings, 
depending  on 
the  negotiated 
content  of  the 
relevant  EWC 
agreements. 
The 
average 
overall  costs  of 
an 
running 
EWC 
are 
estimated at ca. 
EUR 300 000  / 
year.  

on 

the 

Based 
hypothetical 
assumptions 
regarding 
possible 
marginal 
increase 
in 
these  costs,  the 
combined 
effect  of  all 
measures  under 
preferred 
the 
option 
could 
entail 
aggregated 
for  all 
costs 
EWCs 
(678 
existing  and  90 
created  in  the 
baseline 
period)      over 
the 
baseline 
period,  in  the 
following 
range: 
-  ca.  € 55,1m 
assuming  a  5% 
increase 
in 
operating costs; 
-  ca.  € 110,2m 
a 
assuming 
increase 
10% 
in 
operating 
costs; 
-  ca.  € 165,3m 
a 
assuming 
increase 
15% 
in 
operating 
costs. 

One 
additional 

Direct adjustment 
costs 

N/A 

N/A 

N/A 

Ca.  €  42  000 
an 
for 

N/A 

N/A 

88 

 
 
plenary 
meeting 
per year 

Notificati
on 
of 
informatio
n 
on 
judicial 
proceedin
gs 
available 
to  enforce 
min. 
rights  of 
the 
Directive 

additional 
annual  plenary 
meeting 
(applies  for  20 
undertakings 
with  an  EWC 
on 
based 
subsidiary 
requirements) 

for 

On  this  basis, 
aggregated 
costs 
undertakings 
concerned  (20) 
the 
over 
baseline  period 
would  amount 
to ca. € 4,2m 

Direct 
administrative 
costs 

N/A 

N/A 

N/A 

N/A 

be 

Negligible, 
because  the 
notification 
obligation 
could 
discharged 
as  a  part  of 
the  standard 
process  of 
notifying 
transpositio
n  measures 
the 
via 
available  IT 
systems  

Direct regulatory 
fees and charges 

N/A 

N/A 

N/A 

N/A 

N/A 

for 

costs 
apply 
to 

Higher 
pecuniary 
sanctions 
infringements, 
but  no  specific 
thresholds 
set 
at EU level. 
Such 
would 
only 
sanctioned 
undertakings. 
Their 
overall 
scale  would  be 
negligible, 
given  the  low 
incidence 
of 
pecuniary 
sanctions 
legal actions. 

and 

N/A 

Payment 
of  higher 
pecuniary 
sanctions 

Direct 
enforcement costs 

N/A 

N/A 

N/A 

89 

N/A 

N/A 

N/A  

to 

(Evidence 
remains 
inconclusive 
as  to  whether 
the  preferred 
option  would 
lead 
a 
higher 
incidence  of 
legal 
procedures, 
and 
possible 
higher 
adjudication 
costs 
Member 
States.  Even 
small 
if 

thereby 

for 

a 

 
 
 
 
 
increase 
should 
materialise, 
are 
costs 
expected 
to 
be  negligible 
the 
given 
very 
low 
baseline.) 

Indirect costs 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

(1)  Estimates  (gross  values)  to  be  provided  with  respect  to  the  baseline;  (2)  costs  are  provided  for  each 
identifiable  action/obligation  of  the  preferred  option  otherwise  for  all  retained  options  when  no  preferred 
option  is  specified;  (3)  If  relevant  and  available,  please  present  information  on  costs  according  to  the 
standard  typology  of  costs  (adjustment  costs,  administrative  costs,  regulatory  charges,  enforcement  costs, 
indirect costs;).  

III. Application of the ‘one in, one out’ approach – Preferred option(s) 

One-off 

Recurrent 

Total 

[M€] 

(annualised total net present 
value over the relevant period) 

(nominal values per year) 

Businesses 

New administrative 
burdens (INs) 

Removed administrative 
burdens (OUTs) 

Net administrative 
burdens* 

N/A 

N/A 

N/A  

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

Adjustment costs** 

Ca.  €  148 000  (=0.0006%  of 
average  global  turnover)  per 
negotiation  of  a  new  EWC 
agreement  (costs  incurred  by 
the 
an  uncertain  share  of 
currently 
exempted 
323 
undertakings  with  ‘voluntary 
agreements’) 

Incremental  increase  in  the  costs  of 
operating  an  EWC  (currently  on 
average  ca. € 300 000 per year) due 
to  better  coverage  of  training  costs, 
legal  costs  and  experts’  fees.  The 
scale  depends  on  the  results  of 
autonomous  negotiations  between 
parties. 

on 

Based 
hypothetical 
assumptions regarding the rate 
of  creation  of  new  EWCs  in 
previously 
exempted 
undertakings, aggregated costs 
for all such undertakings range 
from ca € 12m to ca. € 36m:  
-  ca  € 12m  if  an  EWC  were 
requested  in  25%  of  those 
undertakings; 
-  ca.  € 24m  assuming  a 
creation rate of 50%; 
- ca. € 36m assuming 75%. 

Costs 

incurred 

during 

costs, 

Based  on  hypothetical  assumptions 
the  possible  marginal 
regarding 
increase 
the 
these 
in 
combined  effect  of  all  measures 
under  the  preferred  option  could 
entail aggregated costs for all EWCs 
(678  existing  and  90  created  in  the 
baseline  period)      over  the  baseline 
period, in the following range: 
-  ca.  € 55,1m  assuming  a  5% 
increase in operating costs; 
-  ca.  € 110,2m  assuming  a  10% 
increase in operating costs; 
-  ca.  € 165,3m  assuming  a  15% 
increase in operating costs. 

90 

 
 
 
 
 
 
 
 
€ 42 000  for  an  additional  annual 
plenary  meeting  (costs  incurred  by 
the  20  undertakings  with  an  EWC 
based on subsidiary requirements). 
On  this  basis,  aggregated  costs  for 
undertakings  concerned  (20)  over 
the baseline period would amount to 
ca. € 4,2m. 

renegotiation  of  an  EWC 
agreement.  Average  costs  of 
renegotiation  could  not  be 
quantified.192 
reliably 
Evidence  suggests  that  a  re-
negotiation  process  is  overall 
shorter  than  the  process  for 
setting  up  a  new  EWC  but 
may entail several meetings in 
more  complex  cases.  The 
renegotiation  costs  would  be 
incurred  by  an  –  uncertain  – 
share  of  the  currently  678 
undertakings  with  an  EWC  to 
adapt 
revised 
requirements of the Directive. 

the 

to 

Based on hypothetical 
assumptions regarding the 
share of EWC agreements that 
will need to be renegotiated 
and the number of meetings 
required for that purpose, 
these one-off costs could fall 
in the following ranges: 
- if 25% of existing EWC 
agreements were renegotiated, 
aggregated costs would range 
between ca. € 3,1m (if one 
meeting would be required per 
renegotiation) to ca. € 12,5m 
(if four meetings would be 
needed) 
- if 50% of existing EWC 
agreements were renegotiated, 
aggregated costs would range 
between ca. € 6,2m (if one 
meeting would be required per 
renegotiation) to ca. € 25m (if 
four meetings would be 
needed); 
- if 75% of existing EWC 
agreements were renegotiated, 
aggregated costs would range 
between ca. € 9,4m (if only 
one meeting would be required 
per renegotiation) to € 37,5m 
(if four meetings would be 
needed) 

Citizens 

New administrative 
burdens (INs) 

Removed administrative 
burdens (OUTs) 

N/A 

N/A 

192 See footnote above. 

N/A 

N/A 

91 

N/A 

N/A 

 
 
 
 
 
 
Net administrative 
burdens* 

N/A 

Adjustment costs** 

N/A 

Total administrative 
burdens*** 

N/A 

 N/A 

N/A 

N/A 

N/A 

N/A 

(*) Net administrative burdens = INs – OUTs;  
(**)  Adjustment  costs  falling  under  the  scope  of  the  OIOO  approach  are  the  same  as  reported  in  Table  2  above.  Non-
annualised values;  
(***) Total administrative burdens = Net administrative burdens for businesses + net administrative burdens for citizens 

3.  RELEVANT SUSTAINABLE DEVELOPMENT GOALS 

IV. Overview of relevant Sustainable Development Goals – Preferred Option(s) 
Relevant SDG 

Expected progress towards the Goal 

Comments 

The  progress  towards  SDG  no.  8  is  not 
quantifiable. 

A  more  balanced  gender-composition  of 
EWCs  is  likely  to  contribute  to  broader 
indirect  economic  and  social  benefits,  as 
well  as  more  equitable  working  conditions, 
by enabling better strategic decision-making 
and more representative EWC opinions. 

SDG  no.  8  –  decent  work 
and economic growth 

SDG no. 5 – achieve gender 
equality  and  empower  all 
women and girls 

improving 

the  quality  of 

By 
transnational 
information  and  consultation  and  reinforcing 
access to justice for employee representatives, the 
preferred  option  will  foster  the  social  dimension 
of the green and digital transitions. It is likely to 
contribute 
strategic 
trust  between 
decision-making  and  mutual 
management  and  the  workforce  in  Union-scale 
undertakings,  and  thereby  to  more  sustainable 
and equitable working conditions. 

sustainable 

socially 

to 

By requiring parties to EWC agreements to agree 
on  the  objective  of  achieving  a  gender-balanced 
composition  of  EWCs 
(=  underrepresented 
gender  to  hold  at  least  40%  of  the  seats),  the 
preferred  option  will  contribute  effectively  to 
SDG 
are 
underrepresented on ca. 60% of EWCs. 

5.  Currently,  women 

no. 

92 

 
 
 
 
ANNEX 4: ANALYTICAL METHODS 

This annex describes the analytical methods used for the purposes of this impact assessment. After 
providing  an  overview  of  the  analytical  methods  used  (Section  1),  general  explanations  are 
provided regarding evidence / data limitations as well as remedial measures taken to address those 
limitations (Section 2). Subsequently, detailed information is provided on the methodology for the 
analysis of the baseline (Section 3) and impacts of policy options (Section 4). 

1.  Overview of analytical methods used 

The following methods were used to develop this impact assessment: 

-  Economic  analysis:  To  the  extent  possible  given  the  available  data,  the  consequences  of 
taking no EU-action (baseline) and the impacts of the policy options were monetised based 
on  quantified  cost-analysis,  as  described  in  detail  in  Sections  3  and  4  below.  Benefits  are 
analysed largely in qualitative terms, for the reasons explained in Section 2 below. 

-  Legal  comparative  analysis  and  case-law  analysis:  In  order  to  complement  the 
information  on  Member  States’  legislation  on  transnational  information  and  consultation 
gathered by the Commission when monitoring the transposition of the Directive and for the 
2018  evaluation  of  that  directive,  legal  comparative  analyses  were  carried  out  by  the 
European  Centre  of  Expertise  in  the  field  of  labour  law,  employment  and  labour  market 
policies (ECE) on: 

o  national  provisions transposing Directive 2009/38 on European Works Councils  as 

regards confidentiality, non-disclosure of information and gender balance; 

o  national  provisions  concerning  the  enforcement  of  rights  and  obligations  arising 

from Directive 2009/38/EC on European Works Councils. 

See Annex 8 for an overview of the findings of these analyses. 
In  addition,  case  law  of  Member  States’  courts  was  analysed  to  inform  the  problem 
definition, see Annex 9 for the findings. 

-  Survey  and  interview  methodology:  In  the  context  of  the  supporting  study  (ICF  2023), 
evidence  from  key  stakeholders  (management  and  employees’  representatives 
in 
undertakings  with  an  existing  EWC  or  transnational  information  and  consultation  body, 
national  social  partners,  Member  State  authorities)  was  collected  by  means  of  an  online-
survey,  workshops,  and  targeted  interviews.  The  population,  methodology  and  results  of 
these data-gathering approaches are described in Annex 2. 

-  Statistical  analysis:  ETUI’s  EWC  database  and  the  large-scale  survey  of  EWC 
representatives  done  by  ETUI  in  2018  are  key  evidence  sources.  Experts  from  ETUI 
provided  the  Commission  services  with  new  additional  ad  hoc  data  extractions  to  support 
this  impact  assessment.  Using  data  analysis  software,  views  of  EWC  representatives  on 
different  issues  were  cross-tabulated  to  complement  primary  survey  data  regarding  the 
setting-up  of  EWCs  and  functioning  of  transnational  information  and  consultation. 
Moreover,  Eurostat  provided  an  ad-hoc  data  extraction  from  the  EuroGroups  Register,  to 
determine  the  number  of  undertakings  falling  under  the  definition  of  ‘Community-scale 
undertaking’ laid down in Directive 2009/38. 

-  Literature review: The supporting study (ICF 2023) and the Commission services carried 
out a comprehensive desk research and analysis of literature on the issues of relevance for 

93 

 
 
 
 
 
this  impact  assessment. See  ICF(2023), Annex – Section 1, for a list  of  relevant literature 
and Annex 1 of this impact assessment for an overview of the key sources. 

2.  General remarks regarding data / evidence limitations and remedial measures 

Certain  challenges  relate  to  the  characteristics  of  the  policy  field  of  the  initiative,  and  of  the 
stakeholders. The topic of transnational social dialogue within undertakings is the subject of often 
polarised  stakeholder  views.  For  instance,  as  mentioned  above,  the  large-scale  survey  of  EWC 
representatives  done  by  ETUI  in  2018  and  ETUI’s  EWC  database  are  key  evidence  sources,  but 
clearly  affected  by  selection-bias  and  the  risk  of  inaccurate  self-reporting  by  stakeholders. 
Throughout the various evidence gathering activities, this was addressed by seeking the views of a 
broad range of relevant stakeholders in addition to management and EWC representatives, such as 
legal experts, representatives of relevant national authorities, European and national social partners. 
Moreover, when presenting the results of the evidence gathering, the sources of the reported views 
are systematically stated. Results are not aggregated across different stakeholder groups, in view of 
the polarisation described above.  

Furthermore,  while  it  is  expected  that  a  better  functioning  social  dialogue  in  Union-scale 
undertakings will deliver both social and economic benefits – e.g., in the form of a more involved 
workforce,  better  quality  jobs,  improved  openness  and  adaption  to  change  –  the  analysis  of  such 
impacts  is  necessarily  qualitative  in  nature  (see  Annex  12  for  detailed  explanations  on  those 
benefits). Benefits of transnational information and consultation tend to be long-term and indirect in 
nature and depend on intangible factors such as the engrained culture of employee involvement in 
the  respective  undertaking.  Moreover,  the  recast  Directive  sets  a  procedural  framework  on 
transnational information and consultation that leaves broad freedom to parties to EWC agreements 
to tailor the information and consultation process as well as accompanying provisions on resources, 
training, etc. to their specific situation and needs. These factors make it fundamentally challenging 
to establish a causal link between the regulatory framework defining the baseline, as well as policy 
options  seeking  to  develop  or  clarify  that  framework,  and  specific  economic  or  social  outcomes. 
Nevertheless, efforts were made to quantify/monetise both the consequences of the problem under 
the baseline scenario and the impacts of policy options to the extent possible, as described in detail 
in Sections 3 and 4 below. 

Due to the structure of the stakeholder population and the polarisation of their policy views, there is 
a  risk  of  bias  also  in  the  literature  and  other  evidence  sources  on  transnational  information  and 
consultation. To mitigate the risk of a skewed evidence base, information from potentially biased 
sources has been cross-checked with evidence from other sources to ensure robustness. Moreover, 
the  respective  data  sources  are  specified  transparently  to  acknowledge  possible  biases.  In  the 
framework  of  the  supporting  study,  a  set  of  quality  criteria  was  applied  for  the  purposes  of 
identifying and reviewing the key sources of literature. 

Certain  data  derive  from  small  samples  or  stem  from  the  analyses  carried  out  in  2016  for  the 
purposes of the evaluation of the Directive. While various avenues were explored in the framework 
of the supporting study to provide more up-to-date quantified estimates of relevant costs (such as 
negotiation  costs  and  operating  costs  of  EWCs),  only  partial  estimates  of  certain  cost  elements 
proved feasible, due to a lack sufficient information on all relevant cost factors. Nevertheless, the 
new partial cost estimates usefully complement older overall estimates, as they allow to confirm the 
latter's  continued relevance through partial triangulation.  Specific limitations regarding individual 
data points are explained in Sections 3 and 4 below. 

3.  Methodology for the assessment of the baseline  

94 

 
The assessment of the baseline is carried out over a 10-year period. For this purpose, the following 
trends were considered:   

•  Stationarity:  based  on  the  information  gathered  from  consultation  and  other  evidence 
compiled, it was assumed that the extent and frequency of problems concerning the setting-
up  and  operation  of  EWCs  will  remain  relatively  stable  over  time.  Therefore,  the 
stationarity of these values is assumed. 

•  Linear growth: building on the knowledge gathered through desk research and stakeholder 
consultation, it emerged that the number of active EWCs per year, net of terminated/inactive 
EWCs, is continuously growing at a roughly constant rate. To account for such growth over 
time,  for  the  variables  considered  dynamic,  a  hypothesis  of  linearity  is  assumed.  External 
factors are also considered where relevant. 

3.1. Population affected   

Number of eligible companies  

According  to  the  Eurostat  data,  in  2021,  3676  multinational  companies  operational  in  the  EEA 
constituted an undertaking or group of undertakings within the scope of the Directive, employing 
close  to  30  million  workers  in  the  EEA.193  Taking  into  account  the  annual  growth  rate194,  the 
estimate for 2023 is 3,970 eligible companies with a total of 31.7 million employees.  

For  a  multinational  to  be  covered  by  the  EWC  Directive,  it  needs  to  employ  over  a  thousand 
employees in total and at least 150 in two EU Member States. Most EWCs are established in multi-
national companies (‘MNCs’) with more than 5,000 employees. In a sample of eligible companies 
analysed by Eurofound195, companies with  more than 10,000 employees in  the EU were twice  as 
likely to have established an EWC than companies with fewer than 5,000 employees. 

Number and demographics of EWCs  

Based  on  the  ETUI  database196,  EWCs  or  agreements  on  transnational  information  and 
consultation197 are operating in around 1000 companies. Figure 1 provides an overview per type 
of EWC or information and consultation agreement.  

193 Source: Eurostat, ad-hoc extraction from the EuroGroups Register. For further information, please see: Employment 
in large-scale multinational enterprise groups - Statistics Explained (europa.eu) 
194  In  the  years  for  which  this  indicator  was  measured  (i.e.,  2019-2021),  the  number  of  eligible  companies  grew  by 
3.92% on a yearly basis. 
195  Kerckhofs  P.  (Eurofound)(2015).  European  Works  Council  developments  before,  during  and  after  the  crisis. 
Available online. 
196 ETUI EWC database, 2023. Accessible at: https://www.ewcdb.eu 
197  In  the  following  section,  where  not  specified,  references  to  “EWCs”  include  pre-directive  agreements  on 
transnational information and consultation (“voluntary agreements”).  

95 

 
 
 
Figure 1: EWC bodies by type of agreement 

EWC agreements in force
(1001 overall)
20=2

% 9= 
1%

323 = 32%

616 = 62%

28 = 3%

Pre-Directive I&C agreements (Art. 14(1)(a))

EWCs under 1994 Directive (Art. 14(1)(b)

EWCs under recast Directive

EWCs under subsidiary requirements (Annex I)

information and consultation agreements negotiated under the Directive but not
formally EWCs (Art. 6(3))
Unspecified

Source: ETUI (2023) 

The number of EWCs has  been relatively stable  in  the last decades, around 20 new EWCs  being 
created each year. The take up rate and the overall number has not changed significantly since the 
adoption of the Directive, newly established EWCs taking the place of those dissolved, mainly due 
to restructuring (mergers), the net annual growth rate is estimated at 9 additional EWCs. 

The number of active EWCs is the net difference between:  

• 

the annual growth rate of EWCs (based on the 2017-2022 average growth, excluding 
2020198 as an outlier due to Covid-19 pandemic, as described above)199; and  

198 Due to the exceptional economic situation linked to the Covid-19 pandemic in 2020, the growth rate during that year 
is  a  non-representative  outlier.  To  ensure  the  relevance  of  growth  estimates,  that  year  is  therefore  discarded  for  the 
purposes of calculating the average. 
199 Limitation: external factors, such as the effects of the Russian War on Ukraine and other geopolitical turmoil may 
influence the growth in the number of EWCs and potential EWCs. Yet, a robust trend was impossible to define, due to 
diverging data and lack of conclusive studies. Hence, the growth of EWCs and their potential number is assumed to be 
linear. 

96 

 
 
 
 
• 

the annual rate of EWCs becoming inactive (based on the 2017-2022 average growth, 
excluding 2020 as an outlier due to Covid-19 pandemic).  

Figure 2 shows the total number of EWCs established each year from 1985 to 2022. The portion in 
green indicates the EWCs that are still in activity as of 2023, while the portion in red shows those 
that are known to be inactive. 

Figure 2: Trend in the establishment of EWCs 

Source: EWC Database (ETUI, 2023) 

EWCs  represent  the  European  employees  of  a  multinational  company,  whether  it  is 
headquartered within or outside the EU. If the companies’ headquarters are situated outside the 
EU, the EWCs must be established under a jurisdiction of an EU/EEA Member State. The largest 
number  of  EWCs  are  located  in  multinational  companies  headquartered200  in  the  US  (170),  DE 
(124), FR (102), UK (92), SE (69), NL (58), CH (48), IT (38), FI (37), BE (36), JP (31). (Figure 3)  

200 Headquarters are determined by the seat of the central management of the multinational company indicated in the 
EWC agreement or, if not stated explicitly, the global ultimate owner (GUO) and the  respective country of the central 
administration/registered seat of the company are determined. (source: ETUI) 

97 

 
 
 
Figure 3: EWC bodies currently active, by country of headquarters 

Source: EWC database (ETUI, 2023) 

As stated above, EWCs must be established under the legislation of a Member State. The large 
majority of EWCs have been established under legislations of DE, UK201, FR, BE, SE, NL, IE, IT. 
At the same time, around 10 EU Member States have either no or only one EWC body established 
under their rules.202 

While reliable post-Brexit data are not available, the replies to the survey conducted by ICF in 
the  supporting  study  gives  indications  that  the  most  frequent  location  of  EWCs  legislation 
applicable  after  the  Brexit  are  DE,  FR,  and  IE.  The  sample  of  respondents  to  the  survey  was 
however not representative.  

Figure 4: Governing legislation of the EWCs (pre-Brexit) 

201 The UK’s withdrawal from the EU had the consequence that the EWCs based in the UK had to be established in 
another EU Member State. Based on available information, about half of the EWCs (70) formerly based in the UK have 
moved to IE.  
202 Source: ETUI database.  

98 

 
 
 
 
 
 
Source: EWC database (ETUI, 2023, data does not take into account the post-Brexit situation) 

By sector of activity, the majority of EWCs are concentrated in large metal, services or chemical 
multinational companies.  

Figure 5: EWC bodies per sector of activity (ETUI, 2021) 

Source: EWC database (ETUI, 2023) 

99 

 
 
 
Overall,  EWCs  are  not  equally  spread  across  all  sectors.  According  to  ETUI  (2015),203  the  main 
reason for the variation in the number of EWCs between sectors lies in the differing characteristics 
of companies according to sector, namely as regards:  

•  company size; 
•  companies  that  operate  on  sites  with  a  high  concentration  of  employees  (factories  or 

production facilities) facilitate worker organisation; 

•  companies in sectors where the workforce is spread across different States (e.g. building or 

transport industries) tend to establish EWCs 

Number of employees  

Two main relevant populations of employees are considered as part of this impact assessment: 

(a)  EU employees working in companies that currently have an EWC or information and 

consultation agreement on transnational matters: population of employees = 1001 * 
average number of employees per undertakings with an EWC, with the assumption that 
there is one EWC per company.  

(b)  EU employees that would potentially fall under the scope of the Directive, as they work 

for eligible undertakings (i.e., irrespective of whether these undertakings have an EWC at 
present). 

Figure 6. Employees with an EWC or under the scope of the Directive, EU/EEA, 2023, 
estimates 

Employees in undertakings 
that currently have an EWC 
(2023) 

Employees potentially under 
the scope of the Directive / in 
eligible undertakings (2023) 

Average 
number of 
EU/EEA 
employees 
per 
undertaking 
that currently 
has an EWC 

n/a* 

n/a* 

31.7 Mn 

16,612 

16.6 Mn 

34,321** 

34.4 Mn** 

n/a* 

n/a* 

Source 

Eurostat, 
EuroGroups 
Register, 
2023 

ICF study, 
2016 

ICF 2023, 
(targeted 
survey) 

203 De Spiegelaere S.; Jadodzinski R. (ETUI) (2015) European Works Councils and SE Works Councils in 2015. Facts 
& Figures.  

100 

 
 
 
*  A  reliable  estimate  cannot  be  provided  based  on  this  data  source.  Mostly  large  or  very  large  multinational 
undertakings  have  established  an  EWC,  whereas  the  Directive  applies  to  multinational  undertakings  with  at  least  
1.000 EU employees and more. As the survey responses to the surveys referred to undertakings with an established 
EWC,  they  cannot,  therefore,  be  assumed  to  be  representative  of  the  overall  population  of  eligible  companies. 
Conversely,  the  average  number  of  employees  across  all  eligible  undertakings,  calculated  based  on  the  available 
Eurostat  data,  would  not  be  relevant  for  undertakings  with  an  EWC  as  the  latter  are  significantly  larger  than  the 
average.  

** The 2023 ICF survey led to higher estimates of EU employees per company with an EWC (34.321) based on 31 
responses (not representative and not consistent with other data sources). This number is likely to be over-estimated.  

Figure  6  summarises  the  available  estimates  for  these  two  populations,  based  on  the  most  recent 
sources available:   

•  ICF  2016  study204  reported  an  estimate  of  average  of  16,612  (EU/EEA)  employees  per 
company with an EWC. The study also noted that the declining trend (down from estimated 
29,000  EU  employees  per  company  with  an  EWC  in  an  impact  assessment  before  the 
Recast205) was due to smaller companies setting up EWCs after the Recast.  

•  ICF 2023 targeted survey206 of companies with EWCs, carried out to support this impact 
assessment,  reports  an  average  of  34,321  (EU)  employees  per  company  (based  on  31 
responses). The targeted survey also delivers a median value of 13,000 EU employees per 
company  with  an  EWC,  which  is  more  in  line  with  results  from  other  sources.  The 
excessively  high  mean  value  is  likely  to  be  due  to  a  number  of  factors,  including  self-
selection  of  respondents,  small  sample  size,  self-report  bias,  and  outliers  skewing  the 
average.  

•  Eurostat data207 indicates that 29.6 million EU employees are eligible to be covered by an 
EWC as of 2021, which would correspond to 31.7 million EU employees in 2023 assuming 
a constant growth of 3.42%, based on the growth rate in the years for which this indicator 
was measured (i.e., 2019-2021). No Eurostat data is available on the distribution of EWCs 
by  company  size.  The  2021  Eurostat  estimate  of  the  overall  population  of  EU  employees 
within the scope of the Directive cannot deliver a reliable estimate of the average number of 
EU  employees  per  undertaking  that  currently  has  an  EWC.  As  mostly  large  or  very  large 
multinational  undertakings  have  established  an  EWC,  applying  the  average  number  of 
employees  across  all  eligible  undertakings  to  those  with  an  EWC  would  likely  lead  to  a 
significant underestimation for the latter. Indeed, the Eurostat estimate of the population of 
EU employees within the scope of the Directive also includes Union-scale undertakings that 
do not currently have an EWC, which are likely to be smaller than those that already have 
one, given the trend observed in the ICF 2016 study and the Commission 2018 evaluation. 
For  the  same  reasons,  the  inverse  process  (i.e.,  using  the  number  of  EU  employees  in 
companies  that  currently  have  an  EWC,  based  on  the  available  sources,  to  calculate  the 
average number of EU employees per eligible company) would lead to an overestimation of 
the 'eligible' workforce. 

From the three data sources, two estimates that appear to be consistent are the Eurostat figures for 
employees covered by the Directive and the ICF 2016 study estimate for employees in companies 

204 ICF(2016), p. 61. 
205 COM(2008) 419 final. SEC(2008) 2167. 
206 ICF(2023), Section 5.1.2.1. 
207 Eurostat, ad-hoc extraction from the EuroGroups Register.  

101 

 
 
 
that  currently  have  an  EWC.  These  two  are  therefore  the  preferred  estimates  for  the  respective 
population of EU employees concerned, while the data from the 2023 ICF targeted survey are not 
considered for the reasons explained above. Due to the overall stable number of EWCs over the last 
decade, the 2016 estimate of the number of EU employees in companies with EWCs remains valid.  

For estimating impacts, the following numbers of employees affected have therefore been relied on: 

(a)  EU employees working in companies that currently have an EWC or an information 
and consultation agreement on transnational matters: 16.6 million EU employees (ICF, 
2016). 

(b)  EU employees that would potentially fall under the scope of the Directive: 31.7 million 

EU employees (Eurostat, 2023). 

Temporal scope  

Following  common  practice  in  impact  assessments,  the  costs  and  benefits  are  assessed  over  a 
period  of  10  years  (2023-2033).  Therefore,  the  development  of  the  baseline  starts  from  the  year 
2023 (year 0 of the exercise). There is no indication of substantial variance in the real costs over the 
baseline  period.  In  any  case,  given  that  costs  related  to  the  setting-up  and  operation  of  EWC 
account for only a negligible share of the average turnover of the relevant undertakings, significant 
monetary  costs  can  be  ruled  out  with  certainty  for  all  of  the  policy  measures  forming  part  of  the 
preferred  option.  With  a  view  to  focusing  the  analysis  on  the  elements  that  are  relevant  for  the 
necessary  policy  choices,  in  accordance  with  the  principle  of  proportionality,  it  is  appropriate  to 
assume that the real costs will remain stable over the baseline period, without the need to develop 
separate estimations beyond the status quo.  

For the purposes of the assessment, it is considered that the revised Directive will enter into force in 
year  2,  and  that  Member  States  will  have  two  years  for  transposition  (year  4),  while  the 
transposition measures will enter into effect as of year 6.   

Inflation 

In consideration of the presence of some comparatively old sources (from 2016 and 2018), it was 
considered important to include in the analysis also the trends on the inflation rates within the EU.  

The inflation rate is applied to ‘old’ data to conform them to 2022 prices based on the IMF’s World 
Economic Outlook (WEO) database208.  

The approach is applied to the staff costs for businesses and to other monetary amounts.  

208 IMF WEO database, op.cit. 

102 

 
  
 
3.2. Overview of data indicators  

Figure 7 provides an overview of available main data indicators defining the baseline in 2023.  

Figure 7. Overview of data indicators  

Data information 

Methodological approach 

Indicator 

Value(s) 

Sample size 

Data limitations 

Source(s) 

Key assumptions 

Rationale 

Comments 

N. of EWCs 
(total) 

1001209 

All EWCs 

Non-exhaustive 
database (dependent 
on information 
received from 
stakeholders) 

ETUI EWC 
Database (2023 
extraction) 

+19.9 

Average 
creations of 
EWC EWCs per 
year 

Average 
dissolutions of 
EWCs per year 

-10.9 

All EWCs (2009-
2022) 

All EWCs (2009-
2022) 

Non-exhaustive 
database (dependent 
on information 
received from 
stakeholders) 

Non-exhaustive 
database (dependent 
on information 
received from 
stakeholders) 

ETUI EWC 
Database (2023 
extraction) 

ETUI EWC 
Database (2023 
extraction) 

Fixed annual net growth in 
absolute terms: +9. 

The number of EWCs could 
grow with more companies 
relocating to Europe, yet a 
trend cannot be established 
with the current data. 

Net annual growth 
(absolute terms) = total 
new annual EWCs – 
annual inactive EWCs. 

The figure is based on the 
2009-2022 average. 

Fixed annual number of new 
active EWCs 

The figure is based on the 
2009-2022 average.  

Fixed annual number of new 
inactive EWCs 

The figure is based on the 
2009-2022 average.  

N. of art. 6 
EWCs (recast 

616 (62 %) 

All EWCs 

Non-exhaustive 
database (dependent 

ETUI EWC 
Database (2023 

Fixed annual net (linear) 
growth: +8.72 (96.9% of new 

New EWCs to be Article 6 
EWCs, progressively 

Incorporating decimal 
values in the 

209 The ETUI Database also includes five “body type to be specified”, and nine “information and consultation procedure”, in addition to the EWCs of a specified type listed in this table. 

103 

 
 
 
 
 
Directive EWCs) 

on information 
received from 
stakeholders) 

extraction) 

EWCs)  

N. voluntary 
agreements (pre-
directive)210 

323 (32 %) 

All EWCs 

Non-exhaustive 
database (dependent 
on information 
received from 
stakeholders) 

ETUI EWC 
Database (2023 
extraction) 

N. of art. 14 
EWCs 

28 (2.8%) 

All EWCs 

N. of EWCs with 
subsidiary 
requirements 

20 (2.0%) 

All EWCs 

Non-exhaustive 
database (dependent 
on information 
received from 
stakeholders) 

Non-exhaustive 
database (dependent 
on information 
received from 
stakeholders) 

ETUI EWC 
Database (2023 
extraction) 

ETUI EWC 
Database (2023 
extraction) 

Fixed annual net (linear) 
growth: +0.28 (3.1% of new 
EWCs) 

210 This includes 41 UK pre-directive agreements recorded in the ETUI EWC database. 

104 

increase as a share of the 
total and replace pre-
directive agreements. 

Assumed fixed ratio 
between new art. 6 EWCs 
and new EWCs under 
subsidiary requirements.  

calculation of annual 
net creation of EWCs, 
(e.g., 8.72 yearly net 
increase in art. 6 
EWCs) facilitates the 
incorporation of the 
small share of EWCs 
with subsidiary 
requirements in the 
analysis, with resulting 
figures rounded for 
optimal presentation. 

No new pre-directive 
agreements. Projected 
decrease as a share of the 
total and possibly in 
absolute terms. 
Replacement by Art. 6 
EWCs (cf. above). 

No new art. 14 EWCs. 
Projected decrease as a 
share of the total and 
possibly in absolute terms. 
Replacement by Art. 6 
EWCs 

New EWCs with 
subsidiary requirements 
are possible, but their 
overall limited share to the 
total is likely to remain 
stable. 

Assumed fixed ratio 
between new art. 6 EWCs 

16 of these bodies 
report already applying   
requirements of the 
Directive. 

See comment on 
rounding under "N. of 
art. 6 EWCs" 

 
 
 
 
 
N. of eligible 
companies 

3,676 potentially eligible 
companies (2021) 

N/A 

Eurostat 
EuroGroups 
Register (2023 
extraction) 

To grow linearly at 3.9% 
annually 

→ 3,970 eligible companies 
(2023)  

29,649,200 (2021) 

N/A 

N. of EU 
employees within 
the scope of the 
Directive 

Eurostat 
EuroGroups 
Register (2023 
extraction) 

To grow linearly at 3.4% 
annually 

→ 31.7 million EU 
employees (2023) 

N. of EWCs by 
country of HQ 

See Figure 3 of this annex 

All EWCs 

N. of EWCs by 
EU applicable 
law 

See Figure 4 of this annex 

All EWCs 

ETUI EWC 
Database (2023 
extraction) 

Linear growth in absolute 
terms. 

Fixed proportions. 

ETUI EWC 
Database (2023 
extraction) 

Linear growth in absolute 
terms. 

Fixed proportions. 

Non-exhaustive 
database (dependent 
on information 
received from 
stakeholders) 

Non-exhaustive 
database (dependent 
on information 
received from 
stakeholders) 

Reliable post-Brexit 
data are not 
available 

105 

No other reliable data 
or estimate is 
available.  

No other reliable data 
or estimate is 
available. 

and new EWCs under sub. 
req. 

Baseline value is the 2021 
one. The growth rate is 
based on the average 
annual growth rate 
between 2019 and 2021). 
The number of eligible 
companies could be 
growing with more 
companies relocating to 
Europe. 

Starting value is the 2021 
one. The growth rate is 
based on the average 
annual growth rate 
between 2019 and 2021). 
The number of employees 
within the scope of the 
Directive would grow 
roughly in line with the 
growth in eligible 
companies. 

No evidence suggesting 
the distribution across 
countries will change over 
time in the baseline. 

Except for the impact of 
the UK’s withdrawal from 
the EU, there is no 
evidence of substantial 
changes to distribution 
across applicable laws in 
the baseline. EWCs 
previously based in the 
UK (135 as per the latest 
count) have relocated to 

The replies to the ICF 
2023 targeted survey  
indicate that the most 
frequent location of 
EWCs legislation 
applicable after the 
Brexit (DE, FR, IE). The 
sample of respondents to 
the survey was however 
not representative. 

 
 
 
 
 
N. of EWCs by 
sector of activity 

See Figure 5 of this annex 

All EWCs 

Data not up-to-date, 
does not follow 
NACE rev 2 

ETUI EWC 
Database (latest 
published data) 

Linear growth in absolute 
terms. 

Fixed proportions. 

Non-exhaustive 
database (dependent 
on information 
received from 
stakeholders) 

Gender 
composition in 
the EWC 

24% of respondents reports 
equally represented, 2% >60% 
women, 62% >60% men. 

233 respondents 
(180 employees, 
53 management) 

Not representative 
sample 

ICF Targeted 
survey (2023) 

Fixed proportions over time. 

another EU Member State 
(often to IE), but reliable 
statistics on their 
relocation per country is 
not yet available as of 
date. 

No evidence suggesting 
the distribution across 
sectors will change over 
time in the baseline. 

The respondents to the 
ICF 2023 targeted 
survey correspond the 
proportion of 
distribution of EWCs 
across sectors as 
recorded by ETUI  
across sectors. The 
sample of respondents 
to the survey was 
however not 
representative. 

Evidence is not 
conclusive as to 
whether the overall 
gender composition of 
industries/ 
companies/EWCs 
might change 
significantly in a 10-
year span. 

Number of 
representatives 
per EWC 

Average: 27 

All EWCs 

Non-exhaustive 
database (dependent 
on information 
received from 
stakeholders) 

ETUI EWC 
Database (2023 
extraction) 

To remain unchanged on 
average. 

No evidence suggesting 
this indicator will change 
over time in the baseline. 

106 

 
 
 
 
Average n. of EU 
employees of 
companies with 
EWCs  

16,612 per company with an 
EWC 

See Figure 6 of this annex 

37 employer and 
employee 
representatives 

Small sample size 

ICF 2016 
evaluation study 

To remain unchanged on 
average. 

No evidence suggesting 
this indicator will change 
over time in the baseline. 

The 2023 ICF survey led 
to higher estimates of 
EU employees per 
company with an EWC 
(34.321) based on 31 
responses (not 
representative and not 
consistent with other 
data sources). 

The ICF 2016 study 
provides lower average 
figures for number. 
Since there is no 
evidence of an upward 
trend and since the 2016 
ICF estimate 
corresponds more 
closely with the overall 
population estimate by 
Eurostat , this data 
indicator is used.   

Turnover (EU) 
of companies 
with EWCs (€ 
bn) 

Turnover 
(global) of 
companies with 
EWCs (€ bn) 

EUR ca. 14 bn  

11 respondents 

Not representative, 
small sample 

ICF Targeted 
survey (2023) 

To remain unchanged on 
average. Projected figures 
adjusted for inflation.  

No evidence suggesting 
this indicator will change 
over time in the baseline. 

EUR ca. 24 bn 

33 overall 
respondents 

Not representative, 
limited sample 

ICF Targeted 
survey (2023) 

To remain unchanged on 
average. Projected figures 
adjusted for inflation.  

No evidence suggesting 
this indicator will change 
over time in the baseline. 

See sensitivity analysis in 
section 6 of this annex. 

Average costs for 
setting-up of an 

€119,207 for Recast EWCs 

37 employer and 
employee 

Small sample size, 
potential bias 

ICF 2016 
evaluation 

Point estimate based on 2014 
prices, adjusted for inflation. 

The estimate does not 
include potential costs 

107 

 
 
 
 
 
 
 
EWC 

representatives 

Average annual 
cost of running 
EWC) 

Average fixed costs: €165,00 
Min: €45,000 
Max: €500,000 

20 

Estimated overall annual costs 
(including employees time): € 
240.000  

Potential bias,small 
sample size 

ICF 2016 
evaluation 

Overall costs based on 2014 
prices adjusted for inflation 

→  € 148.000  

→ € 298.000 

  Average annual costs: €288.000 

Min: € 50.000 
Max: € 900.000 

12 interviews (6 
provided 
information on 
overall costs) 

Potential bias, small 
sample size 

Number of 
plenary meetings 
per year 

79.36% (646) have one, 26.29% 
(214) have two, the rest (29) 
have three to six 

889 

0.87% say <1 meeting per year; 
ca. 50% say one; 38% say two; 
ca. 10% say 3 or more 

1496 EWC 
representatives 

Non-exhaustive 
database (dependent 
on information 
received from 
stakeholders) 

Potential Bias 

Interviews with 
management of 
Union-scale 
undertakings 
with EWCs in 
the context of 
ICF 2023 study 

ETUI EWC 
Database (2023 
extraction) 

ETUI 2018 
survey of EWC 
and SEWC 
representatives 

108 

Given the flexibility 
provided by the directive 
and the differences 
between the size and 
operation of multinational 
undertakings, the large 
difference between the 
individual values 
corresponds to the trend 
observed during the 
Commission 2008 impact 
assessment 
(SEC(2008)2166) and 
previous studies (e.g. 
Pulignano V., Turk J. (KU 
Leuven) (2016)). 

of fees/expenses for 
experts’ services. 

The estimate of 
average overall costs 
of operation of EWCs 
of 240.000 € (taking 
into account not only 
fixed costs but also 
expenditure related to 
the time spent by 
employees on EWC-
related activities) was 
recognised in the 2018 
Commission 
evaluation 
(SWD(2018) 187 final, 
p. 37) 

The average value is 
close to the 2016 
estimate adjusted for 
inflation (cf. above). 

Stability of real costs in 
relation to the overall average 
turnover. 

Fixed shares over time. 

No evidence suggesting 
this indicator will change 
over time in the baseline. 

 
 
 
 
 
 
 
 
 
 
Unitary cost of 
plenary meetings 

35% <25k, 15% 25-50k, 30% 
50-70k, 10% 75-100k, 10% 100-
200k, 0% >200k 

20 employer 
representatives 

Small sample size, 
potential bias 

ICF 2016 
evaluation 

No evidence suggesting 
this indicator will change 
over time in the baseline. 

Number of court 
cases in Member 
States 

160 court cases recorded since 
1997 and until the beginning of 
2023 

All MS 

ETUI collection 
of case-law 

Court cases are 
concentrated in 
jurisdictions with 
higher numbers of 
multinationals with 
EWCs. 

No cases have been 
brought before the 
Court of Justice on the 
recast Directive so far.   

109 

 
 
 
 
 
 
 
 
 
 
 
4.  Methodology for the monetisation of costs 

4.1. Introductory remarks regarding types of impacts and affected stakeholders  

This  section  outlines  the  methodology  used  to  monetise  costs  for  the  purposes  of  the 
baseline scenario and the assessment of certain impacts, in particular economic impacts 
and  impact  on  competitiveness.  The  methodology  is  in  line  with  the  relevant  Better 
Regulation Tools211.  

Impacts have been assessed in relation to the stakeholder groups affected:  

•  Union-scale undertakings or groups of undertakings and their central management 

(‘undertakings’); 

•  employees  of  Union-scale  undertakings  or  group  of  undertakings  and  their 

representatives (‘employees’);  

•  Member  States  (National  authorities),  i.e.,  public  administrations  in  charge  of 
implementing  and  monitoring  the  application  of  EWCs  requirements  (‘national 
authorities’). 

In line with Better Regulation rules, the possibility of impacts on SMEs, consumers, the 
broader  economy,  and  the  environment  have  also  been  considered.  However,  for  the 
reasons explained in Annex 12 Section 1, any relevant foreseeable effects of the initiative 
can be ruled out in those respects. These types of impact are therefore not discussed in 
detail  for  each  policy  option,  in  accordance  with  the  principle  of  proportionality  of 
impact assessments.  

The  following  section  describes  the  methodological  approach  with  regard  to  the 
monetisable  impacts.  Non-monetisable  impacts,  in  particular  social  costs  and  benefits 
and broader economic impacts, have been assessed qualitatively in terms of trends, using 
the methodological approaches outlined in Section 1 of this Annex. For an overview of 
all identified impacts per policy area and per stakeholder group see Annex 12.  

4.2. Categorisation of monetisable economic costs 

Given  the  limited  available  evidence  and  the  nature  of  social  impacts  related  to 
transnational  information  and  consultation,  as  outlined  in  Section  2  of  this  Annex, 
monetisation was possible for certain economic impacts only. The monetization exercise 
mostly  focuses  on  the  estimation  and  quantification  of  direct  costs  associated  with 
existing and potential new requirements regarding EWCs. These costs were assumed to 
comprise both: 

•  one-off costs, i.e., costs that arise only once; and, 
•  recurring  costs,  i.e.,  costs  that  are  incurred  by  the  affected  parties  on  a 

continuous basis. 

As far as possible, monetisable costs and benefits were estimated for undertakings and 
national  authorities,  whereas  no  monetisable  costs  and  benefits  have  been  identified 
under the policy areas in relation to employees.  

211 Better Regulation Tools #56, #57, #59. 

110 

 
 
 
Certain  costs  have  not  been  quantified  where  it  is  not  possible  to  do  so  meaningfully, 
such  as  the  costs  resulting  from  clarification  in  Article  6  that  the  element  of  the  EWC 
agreement  on  resourcing  should include legal  and training costs  (policy options 3b and 
3c). Given that such aspects would be negotiated between the parties to the agreement, 
and  indeed  may  already  be  covered  in  the  existing  EWC  agreement,  and  the  costs  that 
could be incurred in the case of legal action or in respect of training cannot be predicted, 
we  conclude  that  it  is  not  possible  to  arrive  at  a  meaningful  quantification.  Such 
considerations also apply to enforcement costs (policy options 4b and 4c), as it cannot be 
predicted whether an undertaking would be sanctioned in the future for non-compliance 
with the obligations under the Directive and, if so, what the level of the sanction would 
be applied in a concrete situation. In this respect, indications can be given only in relation 
to  the  theoretically  possible  maximum  level  of  sanctions  under  policy  area  4c  (see 
Section 4.1.2 below).  

4.3. One-off costs for undertakings – unit costs 

In  this  section,  available  quantification  regarding  one-off  costs  are  presented  per 
undertaking potentially affected. Estimates of aggregated total one-off costs are presented 
under the subsequent heading 4.4. 

Setting up of an EWC (‘Negotiation costs’)  

Negotiation  costs  for  setting  up  an  EWC  are  considered  one-off  adjustment  costs  for 
undertakings. The average overall costs per newly established EWC were estimated at ca. 
EUR 148.000.  This  estimate  is  based  on  the  evidence  gathered  for  the  2016  study 
supporting  the  evaluation  of  the  Directive,  adjusted  for  inflation.212  It  does  not  include 
the  fees  of  experts  consulted  by  either  negotiating  party,  which  depend  on  too  many 
unknown  –  in  particular  behavioural  –  variables  to  be  monetised.  It  nevertheless 
represents the most comprehensive available approximation of overall costs linked to the 
setting-up of new EWCs. 

In  order  to  verify  the  continued  relevance  of  this  estimate  and  the  robustness  of 
monetisation for this impact assessment, cost components linked to the setting-up of new 
EWCs were disaggregated, and to the extent possible, newly monetised based on a partly 
different methodology, described below. The results of the two separate sets of estimates 
are  consistent,  as  the  elements  for  which  no  new  calculation  was  possible  (e.g., 
employees’  time  dedicated  to  the  preparation  of  meetings,  training  fees  and  expenses, 
legal costs) plausibly account for the difference.  

It  is  important  to  stress  that  none  of  the  policy  options  would  oblige  undertakings  to 
establish an EWC in the absence of a request to that effect by employees (or employees’ 
representatives), as specified in the Directive. Therefore, the costs of setting up an EWC 
can  be  linked  only  to  policy  option  1a  as  regards  the  323  previously  exempted 
undertakings  with  ‘voluntary  agreements’,  which  could  face  requests  for 
the 
establishment of an EWC when the exemptions of those undertakings are removed. The 
available evidence does not allow reliably to estimate in how many cases such requests 
might be made, as this depends on unknown behavioural and situational factors specific 
to the existing social dialogue processes in each undertaking. The estimates of total costs 

212 See ICF(2016), Section 7.1.1., for details. 

111 

 
 
related to the establishment of EWCs in previously exempted undertakings (see  Section 
4.4. below) are based on very broad hypothetical ranges to account for that uncertainty.  

(a) Assumptions for the monetisation of certain cost factors linked to the setting-

up of new EWCs, developed for this impact assessment 

The  following  assumptions  were  made  for  the  calculation  of  certain  cost  components 
linked to the setting-up of new EWCs:  

•  Time cost: labour cost has been chosen as a suitable metric to estimate the costs 
of  negotiation  meetings,  as  it  is  supported  by  a  robust  methodology,  and  it  is 
easily  comparable  across  different  items.  The  labour  costs  for  employees  are 
based on 2022 Eurostat figures for industry, construction and services213 and on 
2018  Eurostat  figures  (adjusted  with  the  EU  labour  cost  index  growth)  for 
managers  in  companies  of  250  or  more  employees214.  The  below  table 
summarises these EU average hourly labour costs.   

Figure 8. Hourly wages for employees and managers, 2022 prices 

operating 

Employees 
construction and services  
Management  

in 

industry, 

€30.5 

€34.9 

EU-27 average hourly wages 

Based on the evidence gathered  for the study supporting  the 2018 evaluation of 
the Directive, it was assumed that approximately 9 employee representatives and 
3  management  representatives  take  part  in  the  negotiation  process.215  The 
assumption  about  time  costs  concerns  only  the  time  spent  in  meetings  between 
management  and  the  SNB  to  negotiate  the  EWC  agreement  (for  lack  of 
sufficiently robust evidence, it does not account for the set-up time of the SNB, 
training  time  or  time  that  is  required  to  meet  other  SNB  members  from  other 
countries,  pre-meeting  prep  time  and  debriefing,  administration  etc.).  The  2016 
ICF study assumed, based on stakeholder feedback, that a negotiation requires 3 
full days on average, which remains valid for this analysis in the absence of any 
contradicting  evidence.  The  below  table  therefore  includes  estimates  for  three 
one-day meetings of 8 hours.  

•  Other  costs:  Travel  costs  (based  on  Eurostat  Tourism  statistics)  and 
interpretation  costs  (i.e.,  labour  costs  of  three  interpreters  per  day216)  have  been 
added to  the time costs identified. Mirroring the  assumptions  already  applied in 
the ICF 2016 study and previous IA study (2008), it is assumed that  negotiation 
meetings last one day (thus the translation costs have been calculated for one day 

213 Eurostat figures for industry, construction and services, available at: Statistics | Eurostat (europa.eu)  
214  2018  Eurostat  figures  (weighted  average  by  size  of  company),  available  at:  Statistics  |  Eurostat 
(europa.eu).  These  figures  were  adjusted  for  the  labour  cost  index,  available  at:  Statistics  |  Eurostat 
(europa.eu). 
215 Cf. ICF (2016), p.107. 
216  Eurostat  figures  for  professional,  scientific  and  technical  activities,  available  at:  Statistics  |  Eurostat 
(europa.eu) 

112 

 
 
 
 
only). It is further assumed that all the employee and management representatives 
involved in the negotiations require travel and three nights of accommodation, all 
the meetings are provided with simultaneous translation, and the interpreters also 
require travel and one night accommodation.  

Finally, it is assumed that the below costs will follow the inflation rate and remain stable 
in real terms over time. Despite the current situation characterised by high inflation, the 
latter is expected to continue to decline and converge with the ECB target rate over the 
baseline period217. 

(b) Calculations 

Figure 9. Average costs for three SNB meetings of 1 day each, 2022 prices 

Types of costs 

Costs, in € 

Time costs 
Employees (#9) 
Management (#3) 
Other costs  
Travel and accommodation costs (#15) 
Interpretation costs (#3) 
Total costs per EWC for three meetings 
of negotiation  

(c)  Limitations 

€6 588 
€2 514 

€43 155 
€ 2 994 
€55 251 

The cost factors monetised based on the described methodology do not represent the total 
costs of setting up an EWC. For instance, SNBs have the right to training without loss of 
wages and to be assisted by an expert of their choice. However, a general paucity of data 
on  these  costs  and  their  frequency  prevents  a  sufficiently  robust  monetisation,  because 
these  items  depend  on  various  uncertain  –  in  particular  behavioural  and  situational  – 
variables. The partial monetisation of costs linked to SNB meetings is therefore used to 
confirm  the  continued  validity  of  the  more  complete  estimate  of  setting-up  costs 
developed for the purposes of the 2018 evaluation, rather than as an approximation of the 
overall costs.     

Sanctions  

(a) Preliminary clarifications 

As stated above, enforcement costs for undertakings resulting from sanctions cannot be 
estimated,  since  it  cannot  be  predicted  whether  an  undertaking  would  be  sanctioned  in 
the  future  for  non-compliance  with  the  obligations  under  the  Directive  and,  if  so,  what 
would be the level of the sanction in a concrete case. Indeed, the evidence gathering218 
did  not  yield  comprehensive  information  about  the  frequency  and  amount  of  sanctions 
applied  by  national  authorities  in  proceedings  on  EWC-related  matters.  The  procedural 

217 European Commission, European Economic Forecast – Summer 2023.  
218 ICF(2023), Sections 4.2.1.4. and 5.2.2.4. 

113 

 
 
 
and  judicial  landscape  concerning  the  enforcement  of  EWCs  rules  is  extremely 
heterogeneous  and  court  cases  are  not  frequent  (see  Annexes  8  and  9).  Generally, 
pecuniary sanctions for administrative infractions are applied to EWC-related breaches. 
In most cases, the sanctions under the national laws remain low, the average range being 
around  €  5.000-10.000  or  even  lower  in  some  countries.  Upper  limits  to  sanctions  are 
quite common, the maximum scale ranging from a few hundred EUR to € 187.500 (ES) 
for  very  serious  offences.  In  DE,  the  country  with  highest  number  of  EWCs,  the 
maximum  possible  administrative  fine  for  EWC-related  breaches  is  €  15.000,  although 
more severe criminal  sanctions (pecuniary or custodial) are theoretically also  available. 
Likewise, in some other countries, more severe sanctions (e.g. up to € 800.000 in BE) or 
prison sentences may theoretically be imposed in criminal law proceedings. Application 
of such sanctions to EWC-related offences has not occurred in practice.  

The  information  and  data  analysed  suggests  that  undertakings  are  seldom  fined  for 
violating  the  rules  relating  to  EWCs,  and  even  less  frequently  do  they  receive  the 
maximum sanction available in the national law. There is no evidence that the incidence 
of  legal  disputes  and  sanctions  in  this  policy  area  would  increase  if  the  policy  options 
lead to an increase in the level of sanctions. On the contrary, more dissuasive pecuniary 
sanctions  could  also  indirectly  lead  to  a  better  rate  of  compliance  with  the  obligations 
laid down in the Directive. Hence, this item has been calculated as a one-off cost. 

(b) Calculation 

Monetised  indications  can  be  given  only  in  relation  to  the  theoretically  possible 
maximum level of sanction under policy option 4c. For that purpose, the 4% of average 
global  turnover  of  undertakings  with  EWCs  (€24  bn219)  was  estimated  on  the  basis  of 
information provided by the respondents to the targeted survey done for the supporting 
study.  To  this,  we  compared  the  maximum  potential  administrative  sanction  currently 
available in a Member State (€ 187.500 (ES)) identified above. The turnover is assumed 
to  follow  the  inflation  over  time  and  should  therefore  remain  stable  in  real  terms.  A 
sensitivity analysis is provided at the end of this annex to consider different scenarios for 
the evolution of companies’ average global turnover. 

In contrast, it is not possible to quantify the impact of  requiring Member States to take 
into consideration the turnover of Union-scale undertakings when determining pecuniary 
sanctions (policy option 4b). While it is plausible to assume that the level of sanctions 
should increase under that option compared to the often disproportionately low baseline, 
the  determination  of  sanctions  would  remain  a  matter  for  national  administrative  and 
judicial  authorities.  These  authorities  can  take  into  account  various  other  case-specific 
factors,  such  as  the  gravity,  duration  and  consequences  of  the  relevant  infringement, 
aside from undertakings’ turnover. Therefore, it is not possible to make any sufficiently 
robust  assumptions  about  the  scale  of  the  expected  increase  in  the  level  of  pecuniary 
sanctions. 

(c)  Limitations 

Because  of  the  paucity  of  cases  available,  the  low  likelihood  of  receiving  a  maximum 
fine and the vast heterogeneity of national frameworks, the calculations provided above 

219 ICF(2023), Section 5.1.2.1 and Section 3 of Annex  (Data mapping). 

114 

 
 
should only be intended as an indication of the theoretical upper ceiling of costs linked to 
pecuniary  sanctions  under  the  most  far-reaching  policy  measure  under  consideration 
(policy option 4c), as more accurate and precise estimates cannot be derived. While it is 
theoretically possible that  the same undertaking  could  be sanctioned several  times over 
the baseline period, the monetisation of pecuniary sanctions is discussed in terms of one-
off costs, given the very low incidence of such sanctions in the past. This low incidence 
is not expected to increase substantially as a result of this initiative. 

4.4. One-off costs for undertakings – estimates of total costs 

In  light  of  comments  of  the  Regulatory  Scrutiny  Board,  the  available  quantified  cost 
estimates  were  used  as  a  basis  to  estimate  total  aggregated  costs  for  the  affected 
population of undertakings. 

Costs  related  to  the  establishment  of  new  EWCs  in  currently  exempted  undertakings 
with ‘voluntary’ agreements on transnational information and consultation 

(a) Assumptions 

As explained above, the envisaged amendments would not make the establishment of an 
EWC automatic for currently exempted undertakings in which ‘voluntary’ agreements on 
transnational  information  and  consultation  were  concluded  before  the  first  EWC 
Directive was transposed in 1996. The  estimated average  costs of ca. EUR 148.000 for 
the negotiation of a new EWC agreement would arise only where the requisite number of 
employees or employees’ representatives makes a request to that effect, or management 
initiates such negotiations on its own initiative. Given the available evidence, no reliable 
assumptions  can  be  made  of  how  many  of  the  concerned  undertakings  would  be 
requested to establish an EWC. In order to nevertheless give an indication of the possible 
total one-off costs linked the negotiation of new EWC agreements in those undertakings, 
broad  hypothetical  ranges  are  provided  assuming  that  requests  to  that  effect  would  be 
made in 25%, 50% or 75% of those undertakings. In theory, the lower bound could even 
by 0%, if no valid request to launch negotiations towards an EWC is made in any of the 
undertakings currently with voluntary agreements.  

(b) Calculations 

The  number  of  currently  exempted  undertakings  with  ‘voluntary’  agreements  (323)  is 
multiplied by  the unit costs linked to  the negotiation of  new EWC agreements  of EUR 
148.000 and the assumed proportion of cases in which employees or their representatives 
would request such negotiations, ranging between 25% and 75%. The theoretical cost if 
the  establishment  of  a  new  EWC  were  requested  in  all  of  those  undertakings  is  also 
provided for information, although it does not represent a realistic scenario. 

Population: voluntary agreements (323) 
Rate of creation of EWCs in previously 
exempted undertakings 
Total costs of setting up new EWCs as a 
result of removing the exemptions of pre-
1996 voluntary agreements (one-off) 

(c)  Limitations 

Scenario 1  
25% 

Scenario 2 
50% 

Scenario 3 
75% 

Scenario 4 
100% 

11.951.000 
€ 

23.902.000 
€ 

35.853.000 
€ 

47.804.000 

115 

 
 
Due  to  the  lack  of  robust  evidence,  only  a  very  broad  range  of  possible  one-off  costs 
linked to the negotiation of new EWC agreements in previously exempted undertakings 
can  be  provided.  These  estimates  can  provide  a  rough  approximation  and  order  of 
magnitude,  depending  on  the  hypothesis  in  how  many  of  the  previously  exempted 
undertakings  negotiations  for  an  EWCs  would  be  launched.  The  real  costs  depend  on 
various  unknown  –  often  behavioural  –  factors,  such  as  the  perceived  well-functioning 
and  culture  of  social  dialogue  between  employees’  representatives  and  management  in 
the respective undertaking. 

Costs related to the renegotiation of existing EWC agreements 

(a) Assumptions 

The  amendments  envisaged  under  the  preferred  policy  option  will  apply  also  to  pre-
existing  EWCs.  It  is  therefore assumed that  certain  revisions  will be necessary to  align 
those agreements with the revised minimum requirements. The impacts depend crucially 
on the arrangements agreed between the social partners and the content of their existing 
agreements,  which will determine for instance whether a renegotiation is  needed and if 
so, to what extent. However, no database of the detailed content of existing agreements 
exists.  In  the  absence  of  comprehensive  or  systematic  information  about  the  content  of 
existing  EWC agreements,  different  scenarios  are  assumed to  obtain ranges  of possible 
costs linked to the renegotiation of those agreements. For the purposes of this calculation, 
a hypothetical range is established assuming that 25%, 50%, or 75% of EWC agreements 
need to be adapted. The lower bound of this range accounts also for the fact that EWC 
agreements  are  renegotiated on average  every five years under the baseline scenario,220 
and many of the changes needed to align with the revised minimum requirements could 
in  practice  likely  be  made  in  the  framework  of  such  regular  renegotiations,  without 
additional meetings. 

As explained  above, no  comprehensive quantified data on the costs  of  renegotiating an 
EWC  agreement  is  available.  Monetised  estimates  have  however  been  developed  of 
certain cost factors linked to meetings held for the purposes of such renegotiation. These 
estimates  are  presented  under  Section  4.5  below  as  recurrent  costs  for  the  baseline 
scenario,  because  EWC  agreements  are  renegotiated  on  average  every  five  years.  In 
terms  of  impacts  of  the  policy  options,  renegotiation  costs  are  one-off  costs  as  they 
pertain  only  to  the  possible  initial  need  to  align  existing  agreements  to  the  revised 
minimum requirements once those requirements have been transposed. 

Based on the available evidence, renegotiations may require only a single such meeting, 
buy may also require two, and in complex cases even four meetings. Therefore, the total 
costs  are  estimated  as  hypothetical  ranges  corresponding  to  the  varying  number  of 
renegotiation meetings.  

(b) Calculations 

220 According to the ETUI data, 91% of the companies in their sample underwent a restructuring process 
over the past three years. Hence, accounting for delays in starting the renegotiation process, it  is assumed 
that on average, a renegotiation happens every 5 years. 

116 

 
 
In  order  to  provide  an  approximate  range  of  the  possible  total  costs  linked  to  the 
renegotiation of existing EWC agreements, the different shares of undertakings with such 
agreements  (25%,  50%,  75%  of  a  total  of  678)  were  multiplied  by  the  available 
quantified cost  elements  linked to  renegotiation meetings (€18 417), assuming, in three 
hypothetical  scenarios,  that  either  one,  two  or  four  such  meetings  would  be  required, 
depending on the scope of necessary adaptations and the complexity of the negotiations.  

Population: proportion of existing EWC 
agreements (in total 678) requiring 
renegotiation as a result of the initiative 
Total costs of renegotiation (one-off) 
assuming that 25% of EWC agreements are 
renegotiated 
Total costs of renegotiation (one-off) 
assuming that 50% of EWC agreements are 
renegotiated 
Total costs of renegotiation (one-off) 
assuming that 75% of EWC agreements are 
renegotiated 

(c)  Limitations 

Scenario 1: one 
meeting 

Scenario 2: two 
meetings 

Scenario 3: 4 
meetings 

3.121.681 € 

6.243.363 € 

12.486.726 € 

6.243.363 € 

12.486.726 € 

24.973.452 € 

9.365.044 € 

18.730.089 € 

37.460.178 € 

The ranges of total costs are hypothetical, as no reliable indicator is available allowing to 
estimate  an  average  number  of  meetings  per  renegotiation,  or  the  proportion  of  EWC 
agreements  that  will  require  renegotiations.  For  limitations  regarding  the  estimation  of 
costs of renegotiation meetings see next Section 4.5. 

4.5. Recurrent costs for undertakings – Unit costs 

Costs related to the operation of EWCs (annual average costs per undertaking with an 
EWC) 

As  EWCs  do  not  have  own  revenue  sources,  they  depend  on  resources  provided  by 
undertakings. The latter are therefore assumed to cover all relevant cost items  linked to 
the running of EWCs (e.g., meeting costs, travel costs, training fees and expenses, costs 
of external expertise, employees’ time dedicated to EWC-related tasks, etc.). Only some 
of  these  items  could  be  estimated  individually  in  monetised  terms,  as  explained  in  the 
subsequent headings of this section.  

The  available  evidence  nevertheless  allows  for  an  approximate  quantification  of 
undertakings’ average overall costs linked to the operation of an EWC. These overall unit 
costs are estimated at EUR 297.500 per year. The starting point for this estimation is the 
monetisation  developed  in  the  2016  study  supporting  the  evaluation  of  the  Directive, 
which  was  recognised  by  the  Commission  in  that  evaluation.221  That  estimate  of 
EUR 240.000  was  adjusted  for  inflation  for  the  purposes  of  this  impact  assessment.  It 
notably  took  into  account  not  only  fixed  costs  but  also  expenditure  related  to  the  time 
spent by employees on EWC-related activities. 

221 Cf. SWD(2018) 187 final, p. 37. 

117 

 
 
 
 
 
 
As  the  abovementioned  estimate  was  based  on  stakeholder  feedback  regarding  a 
relatively  small  sample  of  20  undertakings,  further  evidence  on  the  operating  costs  for 
EWCs  was  collected  during  the  interviews  with  management  for  the  2023  supporting 
study222 to  verify the continued relevance  of that estimate  and ensure the  robustness of 
the cost monetisation. The collected feedback validated the assumption that undertakings 
in principle bear all costs linked to the operation of EWCs in practice.  

The 2023 estimates result in a very similar average of close to EUR 300.000, confirming 
that the previous monetisation represents a realistic estimate.  

In  both  evidence  gathering  exercises,  individual  stakeholder  estimates  of  undertakings’ 
annual  costs  linked  to  the  operation  of  EWCs  varied  widely,  ranging  from  around 
EUR 50.000  to  ca.  EUR  900.000.  This  broad  range  is  linked  to  the  high  degree  of 
flexibility afforded by the directive and the differences between the size and operation of 
multinational undertakings. It corresponds to a trend observed already in the Commission 
2008 impact assessment223 and previous studies224. 

As undertakings  would bear EWCs’ operating costs  also  in the baseline scenario, these 
costs are not  as such impacts  of this initiative. Certain  policy measures  may lead to  an 
incremental  cost  increase,  e.g.,  in  relation  to  legal  costs  or  the  time  required  by 
management  for  preparing  a  reasoned  response  to  EWC  opinions.  Under  Section  4.6 
below,  an  approximation  of  the  total  costs  linked  to  increased  operational  costs  is 
provided  in  terms  of  a  range  to  account  for  uncertainty,  as  they  depend  on  various 
uncertain – often behavioural – factors. Given that EWCs’ overall operating costs under 
the  baseline  represent  only  a  very  small  share  of  the  average  turnover  of  Union-scale 
undertakings (cf. the overview tables at the end of this annex), it can be assumed with a 
high  degree  of  certainty  that  the  possible  increases  due  to  the  policy  options  would 
likewise remain at a negligible level regarding this cost factor.    

Costs of plenary meetings of EWCs based on subsidiary requirements (average cost for 
one plenary meeting) 

(a) Assumptions 

Those EWCs operating under subsidiary requirements (20) have one plenary meeting per 
year.225  For  EWCs  operating  on  the  basis  of  agreements,  the  frequency  of  plenary 
meetings is determined in the agreement concluded with the SNB.226 The organisation of 
one additional plenary meeting as provided under policy options 3b and 3c would entail 
the  following  additional  costs  for  undertakings  with  EWCs  operating  under  subsidiary 
requirements:  

222 ICF(2023), Section 5.2.2.1. 
223 SEC(2008)2166. 
224 e.g. Pulignano V., Turk J. (KU Leuven) (2016), op.cit. 
225  In  addition  to  the  annual  plenary  meetings  of  EWCs  based  on  subsidiary  requirements,  the  select 
committee of such EWCs may have several extraordinary meetings with central management. However, as 
none  of  the  problem  drivers  or  policy  options  pertains  to  such  extraordinary  meetings,  no  separate  cost 
monetisation was undertaken in that respect. 
226 Cf. Figure 7 above for estimates of frequency of these meetings in the existing agreements. 

118 

 
 
•  Time  costs:  It  is  assumed  that  an  EWC  is  composed  on  average  of  27 
members227,  and  in  addition  to  the  EWC  members  3  managers  or  their  experts 
representing  the  central  management  participate  in  the  plenary  meeting.  Hence 
the labour costs were calculated for 27 EWCs members and 3 managers, for a full 
day. The data on labour costs for employees and managers are identical to those 
explained above in relation to the negotiation costs.     

•  Travel and accommodation costs: based on the evidence gathered, the average 
travel  and  accommodation  costs  are  calculated 
for  all  27  employee 
representatives,  3  management  representatives  and  3  interpreters,  as  it  emerged 
that  EWCs’  plenary  meetings  are  often  held  in  different  venues.  According  to 
Eurostat data (Expenditure by duration, purpose, main destination of the trip and 
expenditure  category),  the  average  EU  cost  of  a  business  trip,  including 
transportation and accommodation, was €876 (accommodation for one night and 
the return flight) in 2022.228 This cost is expressed in real terms and  assumed to 
follow the inflation over time. 

•  Interpretation  costs:  The  labour  costs  for  interpreters  are  expressed  in  real 
terms229,  based  on  2022  figures  from  Eurostat  for  professional,  scientific  and 
technical activities.230 In the absence of evidence to the contrary, it was assumed 
that 3 interpreters on average would participate in the EWC meetings. 

•  Expert  costs:  68%  of  respondents  to  the  2018  ETUI  survey  reported  having 
involved  1  expert  for  the  preparation  of  and  support  during  plenary  meetings, 
while  27%  of  the  respondents  indicated  having  the  support  of  2  experts.  In  the 
absence  of  robust  evidence  and  given  the  high  heterogeneity  characterising  the 
use of experts, it was assumed that each expert would work 5 full days (8 working 
hours/day)  for  the  preparation  of  and  support  during  one  plenary  meeting.  This 
assumption  is  supported  by  the  information  gathered  from  the  ETUI  data 
extraction231  and  survey232,  which  suggest  that  the  experts,  when  involved,  also 
help  the  members  to  prepare  for  the  discussions  in  the  meeting  agendas.  The 
below estimates for the expert costs are based on the EU average labour cost level 
for  people  working  in  professional,  scientific  and  technical  activities.233  This 
covers  activities  requiring  a  high  degree  of  training  and  making  specialised 
knowledge and skills  available to  users.234 The real labour costs are  assumed to 
remain stable over time.  

•  Hence  the  overall  labour  cost  has  been  calculated  for  a  plenary  meeting  of  an  
EWC operating under subsidiary requirements, involving 27 EWC members (i.e., 

227 ETUI EWC database (2023 extraction). 
228 2021 Eurostat figures, adjusted for inflation. 
229 Adjusted for inflation. 
230  Eurostat  figures  for  professional,  scientific  and  technical  activities,  available  at:  Statistics  |  Eurostat 
(europa.eu) 
231 ETUI EWC database (2023 extraction) 
232 Eurostat figures for industry, construction and services, available at: Statistics | Eurostat (europa.eu)  
233Eurostat  figures  for  professional,  scientific  and  technical  activities,  available  at:  Statistics  |  Eurostat 
(europa.eu) 
234  Eurostat  (2008),  NACE  Rev.  2  –  Statistical  classification  of  economic  activities  in  the  European 
Community. 

119 

 
 
average  number  of  members),  3  management  representatives  and  3  interpreters, 
for  a  full  day.  In  addition,  costs  of  experts  taking  part  in  plenary  meetings  and 
supporting their preparation have been calculated. It is assumed that the costs set 
out below will follow the inflation and remain stable in real terms over time. 

(b) Calculations 

Figure 10. Costs for access to experts per plenary, 2022 prices 

Costs of experts / plenary 
meeting 

0 expert (5% of EWCs) 
1 expert (68% of EWCs) 
2 experts (27% of EWCs) 
Weighted average expert costs 
Each expert is assumed to work 5 full days for the preparation and support 
during one plenary meeting 

€0 
€1 664 
€3 328 
€ 2 030 

Figure 11. Costs for one additional EWC plenary meeting per year, 2022 prices 

Types of costs 

Time costs 
Employees (#27) 
Management (#3) 
Other costs  
Travel and accommodation costs (#33) 
Experts (cf. figure 10 above) 
Interpretation costs (#3) 
Total costs per one plenary meeting  

(c)  Limitations 

Costs, in € 

€6 588 
€838 

€31 647 
€2 030 
€998 
€42 101 

In  the  absence  of  sufficient  evidence,  the  above  estimates  do  not  include  certain  costs, 
such  as  the  time  invested  by  EWC  members  or  management  for  the  preparation  of  the 
plenary  meetings,  the  preparatory  meetings  prior  to  the  plenary,  and  some  possible 
overhead  costs.  Therefore,  it  is  likely  that  the  overall  costs  of  plenary  meetings  are 
underestimated. 

It must be recognised that the costs for one plenary meeting can vary greatly between the 
undertakings, similarly to the operating costs, depending on the size of the company, the 
number  Member  States  involved  and  the  language  regime  of  the  meetings.  As  an 
illustration  of  the  divergent  costs,  in  the  2016  ICF  study235  the  following  approximate 
costs of one plenary meeting were reported by a sample 20 respondents (2014 prices not 
adjusted for inflation): 

•  Less than €25 000 by 35 %  
•  €25 000 - € 50 000 by 15 % 

235 ICF(2016), p. 126. 

120 

 
 
 
 
 
•  € 50 000 - € 70 000 by 30 % 
•  € 75 000 - € 100 000 by 10 %  
•  € 100 000 - € 150 000 by 5 % 
•  € 150 000 - € 200 000 by 5 % 

Costs for access to training 

(a) Assumptions 

62%  of  the  respondents  to  the  2018  ETUI  survey  indicated  that  they  participated  in 
training on average once every three years, for a mean duration of 2.2 days. This result 
was used to calculate the labour costs236 of participation in training.  

In addition to the labour costs, an average fixed cost of €12,000, based on the 2016 ICF 
study and adjusted for inflation237, was assumed to cover the annual training needs of one 
EWC (trainers and possible venues).    

The  below  costs  are  assumed  to  track  inflation  and  therefore  to  remain  stable  in  real 
terms over the baseline period.  

(b) Calculations 

Figure 12. Annual costs for access to training per EWC, 2022 prices 

Type of costs 
Time costs 
Fixed costs 
Total costs  

(c)  Limitations  

Costs, 2022 prices  
€2 995 
€14 875 
€17 870 

The  fixed  cost  estimates  rely  on  a  very  limited  sample  of  respondents  to  the  2016  ICF 
study. Therefore, they should be treated with caution.  

Re-negotiation costs 

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. This partial monetisation can provide an indication of the order of magnitude 
of the overall costs related to renegotiations, bearing in mind the caveats set out below, 
but should not be taken as an approximation of those overall costs. 

As  mentioned  above,  it  emerged  from  the  stakeholders’  consultations,  especially  the 
interviews  and  the  data-gathering  workshops,  that  EWC  agreements  are  renegotiated  at 

236  The  labour  costs  for  employees  are  based  on  2022  Eurostat  figures  for  industry,  construction  and 
services, see the above explanations on these costs, in the section concerning the setting-up of new EWCs. 
237 International Monetary Fund, World Economic Outlook Database, April 2023 (Inflation, end of period 
consumer prices). 

121 

 
 
 
 
different  times  during  their  life  cycle,  especially  in  cases  of  restructuring  and  mergers. 
According  to  data  from  the  2018  ETUI  survey,  91%  of  the  companies  in  their  sample 
underwent a restructuring process over the previous three years. On this basis, accounting 
for  delays  in  starting  the  renegotiation  process,  it  is  assumed  that  on  average,  a 
renegotiation happens every five years. Therefore, the costs described below are expected 
to apply at that rate under the baseline scenario. 

It  is  likely  that  the  initiative  will  entail  additional  or  anticipated  renegotiations.  As 
explained  under  Section  5.4  above,  the  share  of  agreements  for  which  this  will  be  the 
case  cannot  be  quantified  reliably,  as  it  depends  on  uncertain  variables  –  such  as  the 
content  of  the  agreement  and  the  respective  frequency  of  renegotiations  under  the 
baseline – characterising each case.  

(a) Assumptions 

The  following  assumptions  were  made  to  estimate  certain  costs  linked  to  renegotiation 
meetings:  

•  Frequency:  renegotiation  costs  have  been  categorised  as  recurrent  adjustment 

costs for management.  

•  Time costs: according to available information, the renegotiation process takes in 
most cases less time than the setting-up of an EWC (sometimes only one meeting 
is  required  for  renegotiations,  but  in  complex  cases  this  process  can  become 
lengthier  and  involve  multiple  meetings).  However,  data  on  the  duration  of  the 
process  are  fragmented  and  considered  unreliable.  Therefore,  it  was  decided  to 
calculate the time cost per meeting only. In the absence of clear evidence on the 
number of representatives participating in a renegotiation,  it was assumed that a 
third  of  the  average  number  of  EWC  members  (9)  and  3  management 
representatives  would  take  part.  The  hourly  labour  costs  for  employees  and 
management are those used to calculate the negotiations costs, see above.  

•  Other  costs:  travel  costs  and  interpretation  costs  have  been  added  to  the  time 
costs identified. Mirroring the assumptions already applied in the ICF 2016 study 
and  previous  IA  study  (2008),  it  is  assumed  that  all  the  meetings  last  one  day 
(thus  the  translation  costs  have  been  calculated  for  three  days),  that  all  the 
employee  representatives  require  travel  and  accommodation,  and  that  all  the 
meetings are provided with translation. In the absence of evidence to the contrary, 
it was assumed that 2 interpreters would participate in the renegotiation meetings. 
They would also require travel and three nights of accommodation.  

The  below  costs  are  assumed  to  track  inflation  and  therefore  to  remain  stable  in  real 
terms over the baseline period.  

(b) Calculations 

Figure 13. Re-negotiations costs per meeting (2022 prices) 

Types of costs 

Time costs 
Employees (#9) 
Management (#3) 
Other costs  
Travel and accommodation costs (#15) 

Costs, in € 

€2 196 
€838 

€14 385 

122 

 
Interpretation costs (#3) 
Total costs per EWC for one meeting of 
renegotiation  

(c) Limitations 

€998 
€18 417 

The above calculations are for one meeting only. Although evidence suggests that a re-
negotiation  process  lasts  less  long  than  the  process  for  setting  up  a  new  EWC,  re-
negotiations might require multiple meetings in complex cases.  

Furthermore,  the  evidence  gathered  does  not  allow  to  determine  with  a  high  degree  of 
certainty the average number of participants (employee representatives, management and 
interpreters)  that  would  be  involved  in  a  re-negotiation.  The  assumption  that  re-
negotiations involve on average the same number of people as the negotiations for setting 
up a new EWC (9 employee representatives, 3 managers and 3 interpreters) could lead to 
an under- or over-estimation of the renegotiation costs.  

Finally,  and  in  the  absence  of  sufficient  evidence,  the  above  estimates  do  not  include 
certain  cost  factors,  such  as  the  time  invested  for  the  preparation  of  the  renegotiation 
meetings,  the  costs  of  possible  preparatory  meetings  prior  to  the  renegotiation,  some 
possible  overhead  costs,  and  the  use  of  expertise  by  the  EWC  and/or  the  management. 
Therefore, the partial estimate of meeting costs is not an approximation of the overall re-
negotiation costs.  

4.6. Recurrent costs for undertakings – estimates of total costs 

Marginal increases in the costs of operating an EWCs resulting from amendments to 
the Directive 

(a) Assumptions 

As mentioned above, it is assumed that the operation of an EWC costs undertakings EUR 
€  297.500  on  average  per  year.  Possible  cost  increases  due  to  the  amendments  to  the 
Directive are uncertain but are expected to remain very limited as the changes are limited 
to specific items, representing a fraction of overall costs.  

In order to nevertheless provide a range of quantified estimates, it is assumed that such 
increases might amount to 5%, 10% or 15% of average annual costs of operation of an 
EWC. The expectation that any cost increases, compared to the baseline, will be marginal 
is based on the following considerations: 

-  As  regards  the  planned  clarifications  of  the  resourcing  of  EWCs,  it  needs  to  be 
considered  that  many  EWC  agreements  already  contain  provisions  on  the 
coverage of costs linked to training and involvement of experts and that the recast 
Directive  already  gives  EWC  members  the  right  to  training  “without  loss  of 
wages”.  Moreover,  the  costs  associated  with  training  are,  as  a  general  rule, 
already covered by undertakings.  

-  Likewise,  while  more  explicit  provisions  on  coverage  of  legal  costs  could 
facilitate  the  launch  of  legal  action  in  some  cases,  clearer  provisions  on  the 
EWCs’ entitlement to the coverage of resources is likely to reduce the incidence 
of disputes related to EWC funding. 

123 

 
-  There  is  no  evidence  suggesting  that  the  requirements  to  provide  a  reasoned 
response  to  EWC  opinions  prior  to  the  adoption  of  a  decision  on  transnational 
matters or to specify, upon request, the grounds for declaring certain information 
confidential or withholding it would entail significant recurrent adjustment costs 
for  undertakings.  The  former  requirement  already  exists  in  relation  to  EWCs 
operating  on  the  basis  of  subsidiary  requirements  and  management  needs  to 
already  fulfil  a  similar  obligation  during  the  consultation  procedure  of  national 
employee representatives, and no particular cost issues have become apparent in 
those  contexts.  Moreover,  during 
two-stage  consultation,  employer 
the 
organisations  responded  that  an  obligation  to  provide  a  reasoned  response  to  an 
EWC opinion already exists in many agreements. 

It  is  furthermore  assumed  that  the  amendments  to  the  Directive  would  produce  their 
effects  during  the  last  five  years  of  the  baseline  period,  taking  into  account  the  likely 
duration of the legislative procedure, the transposition period, and the envisaged two-year 
period  of  deferred  application  to  allow  stakeholders  to  prepare  for  and  adapt  to  the 
revised requirements. 

A net creation rate of 9 additional EWCs per year is assumed, as explained above for the 
baseline  scenario.  There  is  insufficient  evidence  for  making  any  assumptions  about  the 
impact of the initiative on the take-up of EWCs.  

(b) Calculations 

In  order  to  provide  an  estimated  range  of  increases  in  the  operational  costs  due  to  the 
initiative, a 5%, 10% or 15%  hypothetical  increase is  calculated, in  a first  step, for the 
currently existing population of EWCs (678) over the relevant part of the baseline period, 
i.e. over five years. 

Scenario 1 

Range of possible increases in costs for operating the currently existing EWCs, due to the initiative 
Population: existing EWCs (678) 
% of additional costs compared to average 
EWCs operating costs  
Annual costs of operation of EWCs resulting 
from amendments to the Directive (recurrent) 
Total costs of operation of EWCs resulting 
from amendments to the Directive for 
those existing in the year 2023 (recurrent) 

100.852.500 € 

20.170.500 € 

10.085.250 € 

50.426.250 € 

Scenario 2 

Scenario 3 

151.278.750 € 

30.255.750 € 

10% 

15% 

5% 

In  a  second  step,  the  cost  increases,  compared  to  the  baseline,  are  calculated  for  the 
overall  90  additional  EWCs  assumed  to  be  created  over  the  baseline  period.  For  the 
purposes  of  calculating  the  total  costs  over  the  relevant  remaining  part  of  the  baseline 
period,  the  newly  created  EWCs  are  grouped  together  by  year  of  establishment.  The 
annual  cost  increase  is  then  multiplied  by  the  number  of  years  during  which  the  costs 
would accrue for each of those groups. 

Range of possible increases in costs for operating future EWCs to be created over the baseline period 
Population: new EWCs (9/year) 
% of additional costs compared to average EWCs 
operating costs  

Scenario 1 
5% 

Scenario 2 

Scenario 3 

10% 

15% 

124 

 
Total costs of operation of EWCs resulting from 
amendments to the Directive for those created 
within 2023 and 2027 (=45) under the baseline 
(recurrent) (= annual operating cost increase for 5 
EWCs, multiplied by 5 years) 
Total costs of operation of EWCs resulting from 
amendments to the Directive for those created in 
2028 (= 9) under the baseline (recurrent) (= annual 
operating cost increase for 9 EWCs, multiplied by 4 
years) 
Total costs of operation of EWCs resulting from 
amendments to the Directive for those created in 
2029 (=9) under the baseline (recurrent) (= annual 
operating cost increase for 9 EWCs, multiplied by 3 
years) 
Total costs of operation of EWCs resulting from 
amendments to the Directive for those created in 
2030 (9) under the baseline (recurrent) (= annual 
operating cost increase for 9 EWCs, multiplied by 2 
years) 
Total costs of operation of EWCs resulting from 
amendments to the Directive for those created in 
2031 (=9) under the baseline (recurrent) (= annual 
operating cost increase for 9 EWCs 
Total costs of operation of EWCs resulting from 
amendments to the Directive for those created in 
2032 under the baseline (recurrent) 
Total costs of operation of EWCs resulting from 
amendments to the Directive for those created 
within the baseline (recurrent) 

3.346.875 € 

6.693.750 € 

10.040.625 € 

535.500 € 

1.071.000 € 

1.606.500 € 

401.625 € 

803.250 € 

1.204.875 € 

267.750 € 

535.500 € 

803.250 € 

133.875 € 

267.750 € 

401.625 € 

0 € 

0 € 

0 € 

4.685.625 € 

9.371.250 € 

14.056.875 € 

On  the  basis  of  these  hypothetical  assumptions,  the  overall  aggregated  increases  in 
operating  costs  due  to  the  initiative,  over  the  baseline  period,  for  all  EWCs  (existing 
EWCs  (678)  and  EWCs  created  under  the  baseline  (90))  would  hence  fall  within  the 
following range: 

-  55.111.875 €, assuming a 5% increase in operating costs; 
-  110.223.750 €, assuming a 10% increase in operating costs; 
-  165.335.625 €, assuming a 15% increase in operation. 

(c)  Limitations 

The  impact  of  the  initiative  on  the  recurrent  costs  of  operating  an  EWC  are  highly 
uncertain,  as  it  would  be  up  to  the  management  and  employees’  representatives  to 
negotiate and agree on the detailed arrangements for the coverage  of costs (legal  costs, 
training costs, costs of expertise, etc.). The comparison to baseline costs is complicated 
by the fact that there is no comprehensive or systematic data on the content of all EWC 
agreements. 

Moreover, it cannot be ruled out that the initiative might have an impact on the take-up of 
EWCs. A more effective functioning and enforceability of transnational information and 

125 

 
consultation  requirements  could  provide  additional  incentives  for  the  creation  of  new 
EWCs. If such a scenario materialises, the undertakings concerned would bear the costs 
of  operating  EWCs  under  the  revised  minimum  requirements  However,  as  mentioned 
above, there is insufficient evidence for making any assumptions about the impact of the 
initiative on the take-up of EWCs. 

Total  costs  linked  to  the  requirement  of  one  additional  annual  plenary  meeting  for 
EWCs based on subsidiary requirements 

(a) Assumptions 

As  explained  above,  it  is  assumed  that  undertakings  with  EWCs  based  on  subsidiary 
requirements  bear  a  cost  of  EUR  42.101  for  one  plenary  meeting.  There  are  20  such 
EWCs,  for  which  an  additional  annual  plenary  meeting  will  be  required  under  the 
preferred option. The costs linked to that requirement are assumed to materialise over the 
last five years of the baseline period, as for the other recurrent costs. 

(b) Calculations 

In order to calculate the total aggregated costs linked to the requirement of one additional 
annual  plenary  meeting  with  EWCs  based  on  subsidiary  requirements,  the  cost  of  one 
such meeting is multiplied by the number of such EWCs (20) and by the number of years 
during which those costs would accrue (five): 

Population: EWCs operating on the basis of 
subsidiary requirements (20) 
Annual costs for one additional meeting/year 
Total costs for one additional meeting/year 

842.020 € 
4.210.100 € 

(c) Limitations 

As explained above, the estimated costs per plenary meeting do not necessarily capture 
all costs linked directly or indirectly to such meetings.  

Moreover,  the  planned  amendment  of  the  subsidiary  requirements  in  the  Annex  to  the 
Directive  might  prompt  social  partners  in  other  undertakings  to  align  their  EWC 
agreements.  This  benchmark effect  of the subsidiary requirement  is  not reflected in  the 
cost estimates, because firstly, it is entirely dependent on social partners’ agreements and 
hence  difficult  to  quantify.  Secondly,  with  respect  to  EWCs  based  on  agreement,  the 
possible additional cost of holding two annual plenary meetings instead of one is not an 
impact of a binding requirement but results from a voluntary choice of social partners. 

5.  Overview  of  monetised  cost  estimates  in  the  study  supporting  the  2018 

evaluation and costs monetised for this impact assessment   

While  the  study  supporting  the  2018  evaluation  of  the  Directive  (ICF,  2016)  sought  to 
provide estimates of overall costs pertaining to the setting-up and operation of EWCs, the 
evidence gathered for this impact assessment allowed only for a partial monetisation of 
certain  disaggregated  cost  factors.  This  explains  the  large  differences  between  certain 
cost  estimates.  Such  differences  are  therefore  not  evidence  of  inconsistency  or 

126 

 
  
 
divergences,  but  to  the  contrary,  the  partial  monetisation  for  this  impact  assessment  is 
considered  consistent  with  the  previous  overall  estimates,  given  that  the  cost  factors 
which could not be newly monetised plausibly account for the differences. The respective 
monetisation exercises are thus complementary and considered to confirm the continued 
relevance of the 2016 estimates, adjusted for inflation.    

Figure 14. Overview of ICF 2016 cost estimates and 2023 cost estimates 

Setting-up 

Annual 
costs 
for 
running an 
EWC 

Re-
negotiation 
costs 
Legal 
advice  
Training  

Costs for recast EWC 

ICF 2016 (2014 
prices) 
€119 208 
 (estimate of overall 
average costs, without 
training of SNB members) 

ICF 2016 (2022 prices1) 

€147 750€  

€240 000 
(estimate of overall average 
annual costs) 

€297 500 

No data 

- 

2023 estimates238 (2022 
prices) 
€55 251  
(estimate for three SNB 
meetings without costs of 
training, expertise, preparatory 
time and meetings, costs of pre-
SNB phase) 
€ 18 417/ meeting 
€42 101/plenary meeting 

€288.000 / average annual 
costs (estimate based on a 
small number of interviews) 
€18 417/meeting 

€15 000/legal issue 

€18 600/legal issue 

No calculation 

€12 9002  
(estimate of annual budget 
per EWC) 

€15 500 

€17 870 

12014 estimates, adjusted for inflation (based on IMF inflation rates, end of period consumer prices)  

6.  Sensitivity analysis 

The  average  global  turnover  of  undertakings  with  an  existing  EWC  is  estimated  to  be 
around €24 billion. This average global turnover estimate stems from 33 answers to the 
2023  ICF  targeted  survey,  which  represents  about  3%  of  the  total  number  of  existing 
EWCs. Furthermore, this impact assessment assumes a stable average global turnover in 
real terms, which should track the inflation rates in the countries where the undertakings 
are established.  

The low level of responses to the targeted survey and the assumption that the evolution of 
average  global  turnover  will  track  inflation  creates  uncertainty  regarding  this  estimate 
and  its  evolution  in  the  future.  For  that  reason,  a  sensitivity  analysis  is  performed  to 
assess the costs/average global turnover ratio in case of lower estimates for turnover. The 
following two scenarios were considered: an average global turnover lower by 25% and 
50%  compared  to  the  retained  estimate.  This  sensitivity  analysis  does  not  include 

238  The  calculations  were  made  by  the  Commission  services  on  basis  of  elements  provided  by  the 
supporting studies (ICF(2016) and ICF(2023)) and Eurostat data. 

127 

 
 
 
 
 
scenarios  with  higher  estimates  for  turnover  given  the  already  very  low  ratios  of  cost 
items to turnover.  

Figure 15. Sensitivity analysis for the average global turnover of undertakings with 
an existing EWC 

Type  of  costs 
per 
undertaking 

Costs, 
2022 
prices 

Setting-up 

Annual 
costs 
for  running  an 
EWC 

€147 
750€ 
€297 
500 

1: 

Scenario 
costs/average 
global  turnover  of 
€24 bn 
0.00061% 

2: 

Scenario 
costs/average 
global  turnover  of 
€18 bn 
0.00082% 

3: 

Scenario 
costs/average 
global  turnover  of 
€12 bn 
0.00123% 

0.00124% 

0.00165% 

0.00248% 

The table above shows that even in a conservative scenario where the present or future 
average global turnover  for undertakings with  an EWC would be two times lower than 
the estimate retained in this report, the monetised cost still represents a very small share 
of the turnover. Moreover, it is worth reiterating that the costs related to the running of 
EWCs,  including  the  costs  of  training,  renegotiations  (about  every  five  years),  experts’ 
fees,  annual  and  extraordinary  meetings,  employees’  time  spent  on  EWC-related 
activities, etc., apply under the baseline scenario. While some of the policy options may 
lead to a certain increase in some of those costs factors, such possible increases cannot be 
quantified  as  they  depend  on  too  many  uncertain  –  often  behavioural  –  variables. 
Nevertheless,  the  fact  that  even  the  overall  baseline  costs  of  running  an  EWC  account 
only  for  a  very  small  part  of  undertakings’  turnover,  as  confirmed  by  the  sensitivity 
analysis, allows the certain conclusion that any realistic cumulative increases due to the 
policy options  will also  be insignificant  for undertakings.  Moreover,  as  regards one-off 
costs, the costs of setting-up a new EWC can be attributed to this initiative only in cases 
where currently exempted undertakings with ‘voluntary agreements’ (323) are requested 
by their employees to establish an EWC, following the removal of their exemption from 
the scope of the directive (policy option 1a). It is not possible to estimate in how many 
cases such requests will be made in practice, as this depends on the specific situation and 
choices  made  in  each  of  those  undertakings.  As  explained,  should  management  and 
employees agree to continue to operate based on a well-functioning voluntary agreement, 
they could do so simply by not triggering the Directive’s procedures for the negotiation 
of an EWC agreement. In any case, as confirmed by the sensitivity analysis, the costs of 
setting up an EWC would be negligible in proportion to undertakings’ turnover. 

128 

 
ANNEX 5: COMPETITIVENESS CHECK 

1.  OVERVIEW OF IMPACTS ON COMPETITIVENESS  

Dimensions of 
Competitiveness 

Impact of the initiative 
(++ / + / 0 / - / -- / n.a.) 

References to sub-sections of the 
main report or annexes 

Cost and price competitiveness  0 

International competitiveness  

0 

Capacity to innovate 

SME competitiveness 

0 

n.a 

2.  SYNTHETIC ASSESSMENT  

Section  6  of  the  main  report  and 
Annex 12 

Section  6  of  the  main  report  and 
Annex 12 

Section  6  of  the  main  report  and 
Annex 12 

Section  6  of  the  main  report  and 
Annex 12 

The costs of the preferred option are expected to be negligible for undertakings, as they 
account for less than 0.001% of their average global annual turnover. Specifically: 

-  Some  of  the  323  currently  exempted  Union-scale  undertakings  with  ‘voluntary 
agreements’  would  incur  one-off  adjustment  costs  estimated  at  ca.  €  148  000 
linked  to  the  setting-up  of  a  new  EWC,  if  requested  by  their  employees.  This 
corresponds  to  approximately  0.0006%  of  the  average  global  turnover  of  such 
undertakings.    

-  Some  of  the  currently  678  Union-scale  undertakings  with  an  EWC  would  incur 
one-off adjustment costs linked to the renegotiation of their agreements. While it 
is  not  possible  to  provide  a  reliable  estimate  of  average  overall  costs  of 
renegotiation,  evidence suggests that a re-negotiation process  is  shorter than the 
process  for  setting  up  a  new  EWC.  Based  on  the  available  evidence,  it  was 
possible  to  monetise  certain  costs  linked  to  meetings  (ca.  EUR  18  400  per 
meeting239) between management and EWC representatives for the renegotiation 
of existing agreements. This partial monetisation can provide an indication of the 
order of magnitude of the overall costs related to renegotiations, bearing in mind, 
however, that it should not be taken as an approximation of those overall costs. In 
complex  cases,  several  renegotiation  meetings  can  be  needed.  But  even  in  that 
scenario, these costs should not have any significant economic impact on Union-
scale companies.  

-  There  could  be  an  incremental  increase  in  undertakings’  costs  of  operating  an 
EWC (currently on  average ca. €  300 000 per year) due to  a better coverage of 
training  costs,  legal  costs  and  experts’  fees.  For  instance,  it  cannot  be  excluded 
that the incidence of legal actions might marginally increase due to the measures 
relating  to  legal  costs  and  improved  access  to  justice.  However,  there  is 

239 See Annex 4 ‘Analytical methods’ (Section 4.4).  

129 

 
 
 
insufficient evidence for estimating the scope of such an increase but it is certain 
to  represent  a  negligible  share  of  undertakings’  global  annual  turnover.  In 
particular, the fact that non-compliant undertakings’ turnover is to be taken into 
account  to  determine  sanctions  is  not  expected  to  entail  a  substantial  burden, 
because  any  sanctions  are  required  to  be  proportionate  in  relation  to  gravity, 
impacts, scope, duration and other relevant criteria characterising the offence. 
-  Each  of  the  20  undertakings  with  an  EWC  based  on  subsidiary  requirements  is 

expected to bear costs of € 42 000 for an additional annual plenary meeting. 

The  preferred  option  is  not  expected  to  negatively  impact  or  delay  decision-making  of 
companies. While the management representatives have considered that the requirement 
of  a  reasoned  response  to  EWCs’  opinions  prior  to  the  adoption  of  a  decision  on 
transnational  matters  could  lead  to  indirect  recurrent  costs  due  to  delayed  decision-
making,240 these concerns are not expected to materialise in practice. Under the preferred 
option,  EWCs  would  remain  information  and  consultation  bodies  without  substantive 
powers  over  management  decisions,  and  no  such  impacts  have  been  substantiated  with 
respect  to  other  types  of  worker  representation  bodies  that  are  already  entitled  to  a 
reasoned response.241 The legal text would specifically allow for urgency to be taken into 
account, and management would be free to expedite the reasoned response as necessary. 
Furthermore,  during  the  two-stage  consultation,  employer  organisations  responded  that 
an obligation to provide a reasoned response to an EWC opinion already exists in many 
agreements (see Section 2.4.3. of the Impact Assessment). 

Any  negative  effects  on  undertakings’  cost  and  price  competitiveness,  international 
competitiveness and capacity to innovate can therefore be ruled out. 

As  the  envisaged  policy  measures  would  not  apply  to  SMEs  and  no  indirect  effects  on 
SMEs are foreseeable, the initiative is not relevant for SME competitiveness. 

The  initiative  is  expected  to  create  certain  economic  benefits  for  undertakings.  For 
instance, more effective information and consultation on transnational matters is likely to 
enable  better  strategic  decision-making,  promote  a  more  trustful  relationship  between 
management  and  the  workforce,  and  bolster  undertakings’  ability  to  manage  necessary 
structural  changes  in  the  context  of  the  digital  and  green  transition  in  a  sustainable 
manner.  Moreover,  a  more  balanced  gender-composition  of  EWCs  is  expected  to 
contribute to a more equitable representation of employees’ interests, which can provide 
a better basis for companies’ decisions. However, such an effect cannot be attributed to 
the  initiative  with  any  degree  of  certainty,  given  the  interplay  between  employee 
involvement  at  national  and  transnational  level  and  the  non-binding  nature  of  EWCs’ 
opinions.  Therefore,  while  limited  benefits  can  be  assumed  in  terms  of  cost/price 
competitiveness,  international  competitiveness  and  capacity  to  innovate,  it  should 
however be stressed that the assumption of a causal link between the initiative and those 
benefits  is  characterised  by  a  high  degree  of  uncertainty,  because  the  outcomes  of 
transnational  information  and  consultation  depend  to  a  large  extent  on  external 

240 ICF(2023), Section 5.1.2.3.  
241 The requirement of a reasoned response by the central management already exists for EWCs operating 
based on subsidiary requirements (Annex I point 1(a) of the Directive) and employee representation bodies 
at national level. 

130 

 
 
behavioural factors, in line with the principle of social partner autonomy rather than the 
procedural changes considered under this proposal. 

Having regard to the above, the expected impacts of the initiative on competitiveness are 
estimated to be null to positive. No negative impacts on competitiveness of the preferred 
policy package have been identified. Potential positive impacts on competitiveness of the 
preferred  policy  package  may  be  achieved  through  improved  effectiveness  of  the 
information and consultation processes in the undertakings, as described above, but such 
benefits cannot be reliably estimated or substantiated by a robust evidence.  

131 

 
 
 
ANNEX 6: DEVELOPMENT AND CONTENT OF THE RECAST 
DIRECTIVE  

The  origins  of  today’s  legislation  on  European  Works  Councils  date  back  to  the  1980s 
with the very first proposal known as the ‘Vredeling directive’. While this proposal was 
ultimately  not  adopted  due  to  a  lack  of  agreement  between  European  social  partners, 
several  multinational  companies  voluntarily  started  creating  transnational  bodies  to 
facilitate exchanges between management and worker representatives. Such experiences 
were  subsequently  taken  into  consideration  by  the  Commission  when  preparing  the 
proposal for the first Directive on European Works Councils, put forward following the 
lack of agreement between social partners in  this area. The  first  EWC Directive242 was 
finally adopted in 1994 as a Council directive under the Agreement on social policy243.  

Several  shortcomings  became  evident following  the entry into effect of the 1994 EWC 
Directive,  such  as  the  low  number  of  new  EWCs  created244  and  legal  uncertainty 
hampering the proper implementation of some provisions. Following the consultation of 
social  partners,  the  Commission  adopted  a  legislative  proposal  for  a  recast  of  the  1994 
Directive  in  July  2008.245  The  European  Parliament  and  the  Council  adopted  Directive 
2009/38/EC (‘recast Directive’) on 6 May 2009. Some amendments introduced by the co-
legislators reflected a joint position of the social partners put forward during the adoption 
process in a joint letter to the Council Presidency in August 2008.246  

The recast Directive aimed at addressing the implementation shortcomings of the original 
instrument:  

-  ensuring 

the  effectiveness  of  employees’ 

transnational 

information  and 

- 

- 

consultation rights, 
increasing  the  number  of  EWCs  established  while  enabling  the  continuous 
functioning of existing agreements,  
resolving  the  problems  encountered  in  the  practical  application  of  Directive 
94/45/EC and remedying the lack of legal certainty resulting from the formulation 
of some of its provisions or the absence of certain provisions,  

-  and  ensuring  that  Union  legislative  instruments  on  information  and  consultation 

of employees are better linked.  

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

243  Agreement on social policy annexed to Protocol 14 on social policy annexed to the Treaty establishing 

the European Community. 
244  SWD (2018) 187, p. 21-22 
245 Commission proposal COM(2008) 419 final and Impact Assessment SEC(2008) 2166. 
246 ETUC and BusinessEurope (2008), Joint advice by the social partners on the European Work Council 
(http://www.worker-participation.eu/European-Works-
‘recast’  Directive. 
Councils/Recast-Directive/Chronology-of-the-EWC-Recast-review-Key-docs ), 29 August 2008. 

documents 

key 

See 

132 

 
 
In October 2015, the recast Directive was amended247 to include seafarers in its scope of 
application. 

The Directive includes the following main substantive provisions: 

•  General  principles  and  concepts  of  information  and  consultation:  Article 1 
stipulates  that  its  aim  is to  improve  the  right  to  information  and  consultation  of 
employees  in  multinational  companies  of  certain  size  and  that  the  arrangements 
for  informing  and  consulting  employees  must  follow  the  general  principle  of 
effectiveness while enabling the undertaking to take decisions effectively and that 
the scope of the information and consultation under the Directive is to be limited 
to  transnational  issues  (the  Directive  contains  criteria  to  determine  the 
transnational  nature).  Article 2  of  the  Directive  adds  definitions  of  information 
and consultation, including the concepts of timing and content appropriate to the 
information and consultation. 

•  Opening  and  process  of  negotiations:  Article  1  stipulates  that  an  EWC  or  a 
procedure for informing and consulting employees is to be established where so 
requested  by  the  employees  or  when  initiated  by  the  central  management.248 
Article  5  sets  out  negotiation  procedure  for  establishing  an  EWC;  it  also 
introduces  the  obligation  to  inform  the  competent  workers’  and  employers’ 
organisations of the start of negotiations. 

•  Procedure to set up an EWC: Article 6 sets minimum requirements of the content 
of  EWC  agreements  (Article  6(2))  or  information  and  consultation  agreements 
(Article 6(3)). However, specific modalities of functioning of each EWC is to be 
defined by the parties to the agreement, i.e. ‘special negotiating body’249 and the 
central management. The Directive does not prescribe what should be the content 
of  the  agreement,  but  rather  lists  topics  on  which  the  SNB  and  the  central 
management  should  agree.250  Where  parties  are  not  able  to  reach  such  an 
agreement within a time limit specified in the Directive, subsidiary requirements 
set  out  in  Annex  I  to  the  Directive  apply.251  A  vast  majority  of  EWCs  are 
governed by an agreement signed between the parties.252  

•  Minimum rights and obligations: Articles 8 (Confidentiality), 9 (Operation of the 
European  Works  Council  and  the  information  and  consultation  procedure  for 
workers)  and  10  (Role  and  protection  of  employees’  representatives)  include 
rights and obligations that apply in relation to the EWCs based on agreements or 
subsidiary  requirements,  regardless  of  whether  they  are  specified  in  the  EWC 
agreement.  Article 10  specifies  that  the  members  of  an  EWC  must  have  the 

247 Directive (EU) 2015/1794 of the European Parliament and of the Council of 6 October 2015 amending 
Directives 2008/94/EC, 2009/38/EC and 2002/14/EC of the European Parliament and of the Council, and 
Council Directives 98/59/EC and 2001/23/EC, as regards seafarers. 
248 See further Article 5(1).  
249  Special  negotiating  body  is a  temporary body  of  employees  representatives  established  in  accordance 
with Article 5(2) of the Directive. In accordance with the principle of subsidiarity, Member States are free 
to  determine  the  method  to  be  used  for  the  election  or  appointment  of  the  members  of  the  employees’ 
representatives. 
250 Article 6(2). 
251 Article 7. 
252 Only around 20 EWCs are governed by subsidiary requirements at present. Data source: ETUI (April 
2023). 

133 

 
 
means  required  to  apply  the  rights  arising  from  the  Directive  to  represent 
collectively  the  interests  of  the  employees.  It  also  places  an  obligation  on  the 
employees’  representatives  to  report  to  the  employees  they  represent  and  gives 
employees’ representatives the right to be provided with training without loss of 
salary. 

Article 8 sets the following rules on confidentiality and right to refuse disclosing 
certain information:  
“Member  States  shall  provide  that  members  of  special  negotiating  bodies  or  of 
EWCs  and  any  experts  who  assist  them  are  not  authorised  to  reveal  any 
information which has expressly been provided to them in confidence. The same 
shall apply to employees’ representatives in the framework of an information and 
consultation  procedure.  That  obligation  shall  continue  to  apply,  wherever  the 
persons referred to in the first and second subparagraphs are, even after the expiry 
of their terms of office.” (Article 8(1)). 
“Member  States  shall  provide,  in  specific  cases  and  under  the  conditions  and 
limits laid down by national  legislation, that the central  management situated in 
its  territory  is  not  obliged  to  transmit  information  when  its  nature  is  such  that, 
according  to  objective  criteria,  it  would  seriously  harm  the  functioning  of  the 
undertakings  concerned  or  would  be  prejudicial  to  them.  Member  States  may 
make such dispensation subject to prior administrative or judicial authorisation.” 
(Article 8(2)). 

•  Links between the levels of information and consultation of employees: Article 12 
of  the  Directive  establishes  the  principle  of  a  link  between  the  national  and 
transnational  levels  of  information  and  consultation  of  employees,  with  due 
regard  for  the  representative  bodies’  competences  and  areas  of  action.  This  link 
may  be  specified  in  EWC  agreements  themselves,  with  due  respect  of  the 
provisions  of  national  law  and/or  practice  on  information  and  consultation  of 
workers.  If  the  agreement  does  not  cover  this  interaction,  the  information  and 
consultation must be conducted both at national and European level in such a way 
that it respects the competences and area of action of the employee representation 
bodies.253  In  any  case,  the  information  and  consultation  of  an  EWC  shall  be 
without  prejudice  to  rights  and  obligations  under  other  EU  information  and 
consultation instruments.254 

•  Adaptation clause: Article 13 provides a procedure for adaptation of agreements 
in  force  to,  where  the  structure  of  the  undertaking  or  group  of  undertakings 
changes significantly. The procedure can be initiated by the central management 
or at least 100 of employees.  

•  Continuity: Under Article 14 undertakings with agreements concluded before the 
1994 Directive entered into application are not subject to the obligations arising 
from  the  Directive.  Neither  its  predecessor  nor  Directive  required  systematic 
renegotiations of already existing information and consultation agreements in the 
eligible companies. The Directive also exempts from its scope undertakings with 

253 Recital 37 indicates that the information and consultation of an EWC should take place either before or 
at the same time as the national information and consultation process.  
254 Directive 2002/14/EC, Directive 98/59/EC and Directive 2001/23/EC. 

134 

 
 
agreements negotiated or revised during the transition period between June 2009 
and June 2011.255  

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

•  Enforcement  provisions:  In  addition  to  the  general  requirements  of  the  1994 
Directive for the Member States to provide for ‘appropriate measures in the event 
of  failure  to  comply  with  this  Directive’,  and  more  specifically,  to  ensure  that 
‘adequate  administrative  or  judicial  procedures  are  available  to  enable  the 
obligations deriving from this Directive to be enforced’, the Directive added two 
elements on enforcement and sanctions: 

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

Secondly, two new recitals: ‘The Member States must take appropriate measures 
in the event of failure to comply with the obligations laid down in this Directive.’ 
(recital  35)  ‘In  accordance  with  the  general  principles  of  Community  law, 
administrative  or  judicial  procedures,  as  well  as  sanctions  that  are  effective, 
dissuasive and proportionate in relation to the seriousness of the offence, should 
be  applicable  in  cases  of  infringement  of  the  obligations  arising  from  this 
Directive.’ (recital 36) 

Recital 36 mirrors the general principle of effective remedy, enshrined in the first 
paragraph of  Article 47  of the Charter of  Fundamental  Rights, as interpreted  by 
the  Court  of  Justice  of  the  European  Union.256  Under  this  principle,  Member 
States  have  the  obligation  to  provide  for  effective  remedies  whenever  rights 
guaranteed  under  Union  law  are  not  respected,  having  regard  to  the  procedural 
autonomy of Member States, the principles of proportionality and subsidiarity and 
EU  competence  under  Article  153  TFEU  (i.e.  EU  competence  for  'minimum 
requirements for gradual implementation’). 

255 Consequently, the obligations arising from the recast Directive do not apply to undertakings with such 
agreements. Indeed, the objective of the Directive was to increase the number of EWCs while ‘enabling the 
continuity of existing agreements’ (Recital 7). 
256  In  the  Impact  Assessment  for  the  recast  Directive,  the  Commission  considered  that  “a  further 
reinforcement or more detailed prescription of sanctions would not be in conformity with the subsidiarity 
principle, as the responsibility for establishing appropriate, dissuasive and proportionate sanctions lies, as a 
general principle, with the Member States” (Impact assessment SEC(2008)2166, p. 46). 

135 

 
 
 
ANNEX 7: COHERENCE OF THE RECAST DIRECTIVE WITH OTHER 
UNION LEGISLATION AND POLICIES 

The EU’s legal framework governing information and consultation at national level has 
developed  over  several  decades.  Several  directives  set  our  rules  on  information  and 
consultation of workers’ representatives. Directive 98/59/EC257 does so in the context of 
collective  redundancies,  Directive  2001/23/EC258  sets  out  rules  on  information  and 
consultation of workers’ representatives, or in their absence of workers themselves, in the 
event of a transfer of an undertaking, while Directive 2002/14/EC259 establishes a general 
framework  for  information  and  consultation  of  workers  at  national  level.  Article  12  of 
the  Directive  provides  that  information  and  consultation  of  an  EWC  should  be 
linked  to  that  of  national  employee  representation  bodies,  with  regard  to  the 
competences of each.  

With  regard  to  the  type  companies,  Directives  2001/86/EC  and  2003/72/EC260  provide 
for  the  establishment  of  representative  bodies  for  information  and  consultation  on 
transnational  issues  in  European  companies  (‘SE’)  and  European  Cooperative  Societies 
(‘SCE’).  The  Directive  does  not  apply  to  these  companies  that  are,  at  the  same  time, 
Union-scale undertakings or groups of undertakings, unless the negotiations on workers’ 
involvement  in  the  SE  or  SCE  have  not  been  opened  or  have  been  terminated  by  the 
special negotiation body.261 

Other  EU  instruments  relevant  in  case  of  restructuring  require  also  information  and 
consultation  of  worker  representatives  at  the  national  level  which  complements  the 
information at the transnational level, including Directive 2004/25/EC262, Directive (EU) 
2017/1132263  (as  amended  by  Directive  (EU)  2019/2121264)  and  Directive  (EU) 
2019/1023265.   

257  Council  Directive  98/59/EC  of  20  July  1998  on  the  approximation  of  the  laws  of  the  Member  States 
relating to collective redundancies, OJ L 225, 12.8.1998, p. 16–21. 
258  Council  Directive  2001/23/EC  of  12 March  2001  on  the  approximation  of  the  laws  of  the  Member 
States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses 
or parts of undertakings or businesses, OJ L 82, 22.3.2001, p. 16–20.  
259 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a 
general  framework  for  informing  and  consulting  employees  in  the  European  Community,  OJ  L  80, 
23.3.2002, p. 29–34. 
260 Council Directive 2001/86/EC of 8 October 2001 supplementing the  Statute for a European company 
with regard to the involvement of employees, OJ L 294, 10.11.2001, p. 22–32. 
Council  Directive  2003/72/EC  of  22  July  2003  supplementing  the  Statute  for  a  European  Cooperative 
Society with regard to the involvement of employees, OJ L 207, 18.8.2003, p. 25–36 
261 Article 13(1) of Directive 2001/86/EC and Article 15(1) of Directive 2003/72/EC. 
262 Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, 
OJ L 142, 30.4.2004, p. 12–23. 
263 Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to 
certain aspects of company law (codification), OJ L 169, 30.6.2017, p. 46–127. 
264  Directive  (EU)  2019/2121  of  the  European  Parliament  and  of  the  Council  of  27  November  2019 
amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions, OJ L 321, 
12.12.2019, p. 1–44. 
265  Directive  (EU)  2019/1023  of  the  European  Parliament  and  of  the  Council  of  20  June  2019  on 
preventive  restructuring  frameworks,  on  discharge  of  debt  and  disqualifications,  and  on  measures  to 

136 

 
 
 
For reasons of effectiveness, consistency and legal certainty, the EU acquis collectively 
requires  that  workers  and  their  representatives  must  be  guaranteed  information  and 
consultation  at  the  relevant  level  of  management  and  representation,  according  to  the 
subject  under  discussion.  To  achieve  this,  the  competence  and  scope  of  action  of 
EWCs  must  be  distinct  from  that  of  national  representative  bodies  –  contrary  to 
them, EWCs are not bodies for negotiating with the management266 - and must be 
limited to transnational matters.267  

A  2015  Eurofound  study268  has  identified  a  variety  of  situations  in  the  Member  States 
how  the  process  of  information  and  consultation  of  the  EWC  is  linked  to  local-level 
information  and  consultation.  This  can  also  be  influenced  by  the  set  up  in  national 
industrial  relations  mechanisms.  For  example,  the  existence  of  co-determination  rights, 
the possibility to apply for injunctions or sanctions to enforce local-level information and 
consultation  rights  may  influence  the  way  Member  States  and  social  partners  at  each 
level perceive the issue of linking.269  

Overall, the Directive is considered to be generally highly consistent with other EU 
legislation  addressing  workers  information  and  consultation  rights.270  While  the 
obligation of information and consultation under the Directive is limited to transnational 
matters,  the  content  of  such  matters  is  not  prescribed.  Therefore,  synergies  can  occur 
between  the  Directive  and  any  EU  policy  field  that  stands  to  benefit  from  the 
involvement of EWCs, in particular in the context of the twin transitions. 

increase  the  efficiency  of  procedures  concerning  restructuring,  insolvency  and  discharge  of  debt,  and 
amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency), OJ L 172, 26.6.2019, p. 
18–55. 
266  The  information  and  consultation  procedures  established  in  Directives  98/59/EC,  2001/23/EC  and 
2002/14/EC oblige management to inform and consult the national workers’ representatives on the topics 
specified in the directives ‘with a view to reaching agreement’, whereas such requirement is not included 
in the recast Directive.  
267 Article 1(3) in connection with recital 15.  
268  Dorssemont  F.,  Kerckhofs  P.  (2015)  Linking  information  and  consultation  procedures  at  local  and 
European, page 1. 
269 SWD(2018)187, p. 29. 
270 SWD(2018)187, p. 43. 

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ANNEX 8: OVERVIEW OF MEMBER STATES’ TRANSPOSITIONS 
OF THE RECAST DIRECTIVE IN RELATION TO RELEVANT POLICY 
AREAS 

This  Annex  presents  an  overview  of  the  national  regulatory  frameworks  on  the  policy 
areas described in problem definition (Section 2.4. of the main report).  

1.  POLICY AREA 1 

Exemption from the scope of the Directive: 

All Member States have transposed Article 14 of the Directive and therefore provide for 
exemptions from the scope of the EWC laws of undertakings with voluntary agreements 
or with Article 14 agreements.  

All  Member  States  would  have  to  amend  existing  legislations  if  exemptions  were 
removed in line with policy option 1a. 

2.  POLICY AREA 2 

Deadline for commencing negotiations following a request: 

National laws transposed deadlines under Article 7(1) of the Directive. In five Member 
States (AT, HR, DK, LT, SK)  the national provision can be interpreted in a way that a 
meeting  should  have  been  held  within  the  6  months.  In  all  other  Member  States,  the 
transposing  provisions  take  over  Article  7(1)  in  similar  terms  or  verbatim.  In  NL,  the 
application of the deadline of 6 months is clearly limited to situations where management 
has given evidence that it will not commence negotiations with the SNB.  

22  Member  States’  laws  would  need  to  be  amended  to  implement  the  clarification  of 
Article 7(1), envisaged as an accompanying measure under policy options 2b and 2c. 

Coverage of SNBs’ necessary resources: 

Legal costs and legal representation costs: Only in NL are costs of legal costs or legal 
representation costs (that qualify as ‘reasonably necessary costs’) explicitly mentioned in 
the transposing provisions. In ten Member States (AT, BG, CY, HR, DK, EL, HU, LT, 
LU, PT), the national provisions are formulated in a manner that makes coverage of legal 
costs unlikely. In these cases, national provisions point to ‘establishment and operational’ 
costs,  specifying  examples.  In  all  others,  the  national  implementation  measures  do  not 
explicitly  specify that legal  costs would be covered and are formulated similarly to  the 
wording of Article 5(6) of the Directive (‘so as to enable the special negotiating body to 
carry out its tasks in an appropriate manner’) which may be interpreted as including costs 
linked to legal disputes. No relevant case law on this question has been identified in the 
Member States. 

All  Member  States,  except  for  NL,  would  need  to  amend  their  laws  to  specify  that 
reasonable legal costs and costs of legal representations of SNBs are to be covered by the 
management (policy options 2b and 2c). 

138 

 
 
Coverage of training expenses: As the same provision on the right to training applies to 
SNB and EWC members, see below Section 3 of this annex. 

Gender-balanced composition of EWCs and their select committees 

Most  Member  States  have  transposed  the  Directive’s  provision  on  the  composition  of 
EWCs, including the criterion of gender, almost verbatim (AT, BE, CZ, DK, EE, EL, FR, 
HR, IT, LT, LU, LV, MT, PT, RO, SE, SI), while eight (CY, DE, ES, FI,  IE, NL, PL, 
SK)  have  not  included  a  reference  to  gender  balanced  representation  in  the  EWCs  into 
their laws. Such measures are also not typically included in Member States laws271 on the 
nomination of national employee representatives in most Member States.272  

All Member States would have to amend their laws to lay down a quantitative objective 
for a balanced gender representation in EWCs and select committees (policy option 2c). 

3.  POLICY AREA 3 

Concept of ‘transnational matters’ 

Definitions  of  ‘transnational  matters’  provided  in  laws  of  19  Member  States  (BG,  CY, 
HR, EE, DE, FR, EL, IE, IT, LV, LT, LU, MT, NL, PL, PT, SK, SI, SE) fully correspond 
to Article 1(4) of the Directive, without addition from recital 16. In AT, the transposition 
considers Article 1(4) and recital 16 together. In BE and ES, recital 16 is reflected in the 
non-binding legislative comments of each implementing measure. In five Member States 
(CZ,  DK,  FI,  HU,  RO),  the  legislative  text  integrates  elements  of  recital  16  in  the 
definition of ‘transnational matters’ such as 'scope of its potential effects' (e.g. CZ, DK). 
In FI, the definition includes elements of recital  16: 'transnational issues are also issues 
which, regardless of the number of Member States concerned, are of major consequence 
for  the  situation  of  employees  or  involve  transfers  of  activities  between  Member 
States.'273 

Clarification of the concept of transnational matters would entail the need for legislative 
amendments at least 21 Member States that transposed the provision without integrating 
additional criteria from recital 16 in the legal requirements (policy option 3b).  

Broadening  the  concept  of  transnational  matters  and  requiring  central  management  to 
justify  in  writing  the  absence  of  transnational  issues  would  entail  amendments  to  all 
Member States’ transposing laws (policy option 3c).   

Consultation procedure 

Timing of the consultation: Member States transposed the definition of ‘consultation’ in 
the Directive verbatim274 (EL, IE, IT, MT, RO, SI, SE), or refer to  a “reasonable time” 
(PT),  “appropriate  time”  (HU),  a  “time  when  this  information  and  consultation  is  still 

271  Provisions  on  gender  balanced  composition  of  national  employee  representatives  have  been  found  in 
national laws of AT, DE, FR, HR, PT. 
272  Mapping  of  Member  States’  laws  done  by  European  Centre  of  Expertise  in  the  field  of  labour  law, 
employment and labour market policies (ECE)(2023), unpublished.  
273 ICF(2023), Section 4.2.1.3. 
274  Article  2(1)(g).  (“at  such  time  …  as  enables  employees’  representatives  to  express  an  opinion  on  the 
basis of the information provide about the proposed measures”) 

139 

 
 
 
meaningful”  (BE),  “timely  manner”  or  “in  time”  (BG,  CY,  DE,  HR),  “as  soon  as 
possible” (AT). DK and NL refer to  consultation on ‘planned measures’ and ‘proposed 
decision’ respectively. 

CZ  law  stipulates  that  “the  employer  shall  ensure  that  the  consultation  takes  place 
sufficiently in advance and in an appropriate manner so that the employees can express 
their opinions on the basis of the data supplied to them and the employer can take these 
opinions into account before a certain measure is implemented”. PL legislation specifies 
that the EWC has a deadline of 14 days to deliver an opinion on the report submitted by 
the  central  management,  and  that  the  management  must  examine  the  opinion  prior  to 
taking  any  decision  on  the  matter.  In  ES,  the  consultation  of  EWCs  must  be  held  in 
sufficient time to enable the EWCs’ opinion to be taken into account in the adoption or 
implementation of decisions. 

Response  to  EWC  opinions:  Two  Member  States  (HU,  LU)  require  that  management 
provide a response to an EWC opinion as a part of the general definition of consultation 
that applies to EWCs functioning on basis of agreements, and specifically in exceptional 
circumstances.  

A requirement to provide a reasoned response to EWC opinions prior to the adoption of a 
decision  on  transnational  matters  would  entail  legislative  amendments  in  at  least  25 
Member States (policy option 3b and 3c).   

EWC resources 

Coverage of legal costs and costs of expertise: The national rules on financial means and 
the legal  costs of proceedings are generally limited to  the general  provisions of Article 
10(1)  of  the  Directive.  The  right  of  all  EWCs  to  receive  assistance  from  an  expert  is 
expressly provided for in three Member States (AT, CZ, DE). A general right of EWCs 
to be supported by experts of their choice (policy option 3c), would entail amendments to 
the national laws of at least 24 Member States. 

No legislation lays down a dedicated budget for court fees in cases of potential litigation 
between the EWCs and the businesses, although these costs could generally be part of the 
operating expenses of EWCs.275 Some Member States have introduced statutory release 
from  court fees for  EWCs  (AT, LT, ES, BG, FR, DE, RO, SE, NL)276  and others have 
introduced a general regulation concerning the operating costs of EWCs. The latter is the 
case in most of the Member States.  

For  EWCs  operating  under  subsidiary  requirements,  in  EE,  NL,  EL  the  costs  of  the 
operation of the EWC covered should be ‘reasonable’ or considered ‘necessary’. HU and 
NL  implementing  laws  specify  that  funding  of  EWCs  extends  to  assistance  from  legal 
experts  and  covers  legal  costs.  Based  on  analysis  of  national  transposing  provisions  of 
the  subsidiary  requirements,  there  is  indication  that  currently  legal  costs  would  not  be 
covered in at least four Member States (AT, IT, LU, SI).277   

275 SWD(2018) 187 final, p. 34.   
276 Jagodziński R., Stoop S. (ETUC)(2022) Access to justice for European Works Councils, p. 31. 
277 ICF(2023), Section 4.2.1.3. 

140 

 
 
Access  to  training  and coverage of  costs of  training:  In the majority of  Member States 
the  right  to  training  under  Article  10(14)  has  been  transposed  verbatim.  Four  Member 
States (DE, FR, IE, PL) refer in general to ‘costs’ to be covered in addition to salary. HU 
law provides for information about the types of training that can be taken and that once a 
request  is  being  made  by  EWC  members  explaining  the  reasons  for  the  training, 
management cannot refuse this request. In  IT, the provisions specify that the content of 
training is ‘jointly agreed’ with management. 

Clarification that the existing right of SNB and EWC members to training requires that 
management  must  cover  the  costs  of  necessary  training  and  related  expenses,  would 
require an adaptation of implementing legislation in the large majority of Member States.  

Confidentiality and non-disclosure of information:  

Obligation of confidentiality: The Directive leaves it to Member States to set conditions 
for the application of the confidentiality obligation (Article 8(1)). Some Member States 
limit  the  possibility  of  the  confidentiality  obligation  to  business  and  trade  secrets  (AT, 
DE,  FI,  HR,  HU,  LT),  to  information  on  the  financial  position  of  the  group  or  the 
undertaking, which is publicly available (FI), information relating to the security and the 
corresponding security system (FI).278 

In  PT,  management  can  only  classify  information  as  confidential  or  refuse  to  provide 
information  under  the  terms  of  the  agreement,  or,  in  the  absence  of  such  terms,  of  the 
law. The classification of information as confidential, the non-provision of information or 
the  failure  to  carry  out  a  consultation  shall  be  justified  in  writing,  based  on  objective 
criteria.  In  EE,  central  management  is  obliged  to  justify  the  confidentiality  of  the 
information at the request of the employees’ representatives. 

Some  Member  States  apply  the  criterion  of  protecting  the  legitimate  interest  of  the 
undertaking for applying the confidentiality clause (BG, CZ, SE) or when the “interests 
of the company so demand” (DK). 

Certain Member States have transposed Article 8(1) without setting additional conditions 
for a confidentiality obligation (CY, ES, IE, LU, LV, MT, NL, PL, RO, SI, SK).279 

Introducing  a  condition  that  central  management  may  declare  information  confidential 
only in the legitimate interest of the undertaking (policy option 3b and 3c) would require 
legislative  amendments  in  about  half  of  the  Member  States.  Requirement  the 
management  to  inform,  upon  request,  of  the  grounds  justifying  confidentiality  would 
need to be reflected in all national laws except in EE and PT (policy option 3b and 3c). 

Non-disclosure  of  information:  With  regard  to  management’s  capacity  not  to  disclose 
certain information when its nature is such that, according to objective criteria, it would 
seriously harm the functioning of the undertakings concerned or would be prejudicial to 
them  (Article  8(2)),  this  provision  was  not  transposed  by  AT,  FR,  HR,  SE,  SI.  Indeed, 

278  Mapping  of  Member  States’  laws  done  by  European  Centre  of  Expertise  in  the  field  of  labour  law, 
employment and labour market policies (ECE)(2023), unpublished. 
279 Ibid.  

141 

 
 
 
 
Member States may choose not to apply this provision280 and, instead to apply the duty of 
confidentiality  to  protect  information,  disclosure  of  which  would  seriously  harm  the 
undertaking. The lack of an exemption from the obligation to disclose information is to 
be considered as a more favourable regulation. 

Around  half  of  the  Member  States  have  transposed  Article  8(2)  referring  to  the 
conditions as set in the Directive (“information when its nature is such that, according to 
objective criteria, it would seriously harm the functioning of the undertakings concerned 
or would be prejudicial to them”) (BG, CY, FI, HU, IE, LT, LU, LV, MT, NL, PL, RO, 
SK). 

In  EE  and  PT,  central  management  is  required  to  give,  based  on  objective  criteria,  a 
justification as to why disclosure of the information would or may significantly harm the 
undertaking.  Similarly,  in  RO,  central  management  must  provide  written  reasons  for 
refusing to disclose information.  

In six  Member States, the employer is  not  obliged to  disclose information classified as 
confidential or protected under the statutory provisions (BE, CY, CZ, EL, DE, ES)281. 

No  Member  State  requires  that  central  management  obtains  prior  authorisation  from  a 
court  or  an  administrative  body  before  it  withholds  information  under  Article  8(2).  A 
dispute resolution mechanism through courts or arbitration is provided by national laws 
on the basis of Article 11(3).282  

A  requirement  on  management  to  inform,  upon  request,  of  the  grounds  justifying  non-
disclosure  would  need  to  be  reflected  in  the  19  Member  States  which  have  transposed 
Article 8(2) and do not yet provide for a similar obligation (policy option 3b and 3c). A 
requirement  of  prior  administrative  or  judicial  authorisation  if  central  management 
refuses  to  disclose  information  which  could  seriously  harm  the  undertaking  would 
require  amendments  to  national  laws  of  the  22  Member  States  which  have  transposed 
Article 8(2). 

4.  POLICY AREA 4 

Access to justice 

In four Member States (AT, FR, RO, SE) EWCs have legal personality to initiate judicial 
proceedings and to represent the EWC in relations with third parties within the limits of 
their responsibilities. In CZ, FI, DE, LT, LV, NL, PL, SK, ES, HU, EWCs can be a party 

280 See in this respect Article 11(3): “Where Member States apply Article 8, they shall make provision for 
administrative  or  judicial  appeal  procedures  which  the  employees’  representatives  may  initiate  when  the 
central management requires confidentiality or does not give information in accordance with that Article.” 
[emphasis added] 
281  The  Spanish  legislation  specifies  that  the  non-disclosure  clause  can  apply  to  industrial,  financial  and 
commercial secrets. It cannot apply to information relating to the level of employment in the undertaking. 
Similarly, the German legislation specifies that the duty of central management to inform exists insofar as 
trade or business secrets of the enterprise or group of enterprises are not jeopardised thereby. 
282  Mapping  of  Member  States’  laws  done  by  European  Centre  of  Expertise  in  the  field  of  labour  law, 
employment and labour market policies (ECE)(2023), unpublished. 

142 

 
 
in  legal  proceedings.  In  BE,  IT,  EE,  LU,  SI,  SK,  individual  EWC  members  or  trade 
unions have the capacity to bring legal actions on EWC matters. 283 

In  several  Member  States,  disputes  for  which  judicial  proceedings  are  available  are 
limited only to certain EWC-related matters. In HR judicial proceedings cover only cases 
of  employees’  discrimination,  whereas  in  MT,  LT,  PL  only  disputes  regarding  the 
confidentiality or disclosure of information. In PL, criminal proceedings may be initiated 
by  the  Labour  Inspectorate  (acting  in  a  capacity  of  a  public  prosecutor)  if  central 
management makes it impossible to create or impedes  the actions of an SNB, EWC, or 
employee  representative  as  provided  by  the  agreement;  or  discriminates  against  a 
member of an SNB, EWC, or an employee representative representing employees under 
the agreement, in connection to a function performed by such a person. 

Problems  of  access  to  justice  are  known  to  arise  in  two  Member  States,  namely  IE, 
against which the Commission launched infringement proceedings in May 2022284, and 
FI.  In  Ireland,  certain  EWCs  based  on  agreements  can  enforce  some  of  their  rights 
through a private arbitration procedure, for which they bear their own costs. A potential 
remedy would depend on the outcome of that arbitration. The arbitrator's determination is 
binding  on  the  parties.285  Certain  breaches  of  the  EWC  legislation  could  lead  to  a 
criminal  prosecution.  Courts  however  cannot  be  directly  accessed  by  EWCs  or  SNBs 
(nor by trade unions on their behalf) in IE. 

In FI an EWC related dispute cannot be brought by a party to the dispute before a court. 
The  FI  law  designates  a  Cooperation  Ombudsman286  and  criminal  courts  for  ensuring 
compliance with the rights under national law transposing the EWC Directive. Access to 
a criminal court is dependent on whether the prosecutor institutes the legal proceedings, 
based on the violation of rights in question.287  

Disputes  over  the  establishment  or  functioning  of  EWCs  can  also  be  resolved  in  15 
Member  States  via  alternative  dispute  mechanisms  such  as  conciliation,  mediation  or 
arbitration. Those alternative mechanisms are not specially designed for EWCs (they are 
available  for  any  private  dispute),  except  in  the  case  of  IT,  where  a  dedicated 
Conciliation  Committee  was  established  to  provide  proposals  to  solve  EWC-related 
disputes within 20 days. 

No  Member  State  provides  a  comprehensive  overview  of  the  rules  and  procedures 
available  to  enforce  rights  under  the  Directive.288  Under  policy  options  4b  and  4c, 

283 SWD (2018) 187 final, p. 34-36. See Annex 5 of the Staff Working document, providing overview of 
the EWCs’ capacity to bring actions before the courts in the Member States. 
284 Section 10 of the press notice: https://ec.europa.eu/commission/presscorner/detail/en/inf_22_2548. 
285  An  appeal  could  be  made  against  an  arbitrator’s  decision  on  a  point  of  law.  The  court's  role  in  such 
appeal  is  limited  to  considering  whether  the  arbiter  has  reached  a  lawful  decision,  not  to  make  its  own 
finding of facts. 
286 The Cooperation Ombudsman has a right to carry out inspections, issue an improvement notice, take a 
matter  to  a  criminal  court  on  suspicion  that  an  act  specified  as  punishable  under  the  Finnish  Act  has 
occurred, and to require that the court obliges the employer or enterprise to meet their obligations within a 
time limit and that it imposes a conditional fine in order to encourage compliance. 
287 A complaint against Finland on this matter was submitted to the Commission in November 2022. 
288  Mapping  of  Member  States’  laws  done  by  European  Centre  of  Expertise  in  the  field  of  labour  law, 
employment and labour market policies (ECE)(2019), unpublished. 

143 

 
 
 
 
 
 
 
Member  States  would  have  to  review  the  procedures  in  place  for  employee 
representatives,  SNB  and  EWC  members  to  bring  a  legal  action  to  enforce  all  rights 
accorded to them under the Directive, including in the pre-SNB or SNB phases before the 
EWC has been created.  Member States would need to  review their national  procedures 
and ensure that out of court dispute resolution mechanisms cannot block access to courts.  

Sanctions and penalties 

In most Member States, sanctions consist of fines imposed on the employer, the amount 
of which is predetermined by law (e.g. 15.000 EUR for administrative sanctions in DE) 
except in case of DK where courts are given full discretion.  

Most national laws define penalties for most or all of the central EWC-related obligations 
of the Union-scale undertaking in relation to its EWC. In NL and RO, judicial penalties 
or obligations may not be applied for actions other than the disclosure of information. In 
HU, the existing legislation implies that courts can only declare a breach of EWC-related 
obligations,  with  no  possibility  to  impose  a  sanction,  nor  to  oblige  the  undertaking  in 
question to  comply. In SE, HU and NL  (apart from  the above-mentioned situation), no 
administrative or criminal law penalties are provided for, but rather exclusively civil law 
sanctions in case of breach of related obligations. 

Depending  on  the  type  of  breach,  a  comparison  between  the  upper  thresholds  for 
pecuniary sanctions shows that these range from EUR 290 in MT or EUR 850 in RO to 
EUR 190.000 in ES. In case of repeated violation, higher sanctions (usually up to twice 
the  basic  threshold)  are  envisaged  in  AT,  BG,  LT  and  LU.  Stricter  sanctions  may  be 
imposed in case of criminal rather than administrative proceedings (BE, DE, ES) or by 
the (tripartite) Labour Dispute Commission in LT. In this case, sanctions may be as high 
as  EUR  800.000  (BE).  The  sanctions  also  vary  according  to  the  type  and  degree  of 
violation of the law. Only BE calculates the level of administrative and criminal fines per 
number  of  employees  concerned,  the  remaining  countries’  sanctions  constitute  of  lump 
sums (per breach). 

With  regard  to  a  right  to  injunctive  relief  allowing  EWCs  to  request  the  suspension  of 
management  decisions  taken  in  alleged  violation  of  the  information  and  consultation 
requirements  under  the  Directive  (policy  option  4c),  from  information  gathered  by 
experts in 2019, it appears that at least in seven Member States (AT, DE, HR, FR, NL, 
ES, IE) it could be theoretically possible for a court to suspend a management decision 
taken  in  violation  of  the  information  and  consultation  obligation.289  However,  there  is 
uncertainty  as  to  whether  it  would  be  possible  to  actually  apply  it  to  the  situation  of 
EWCs  in  these  Member  States.  In  FR  such  a  solution  was  applied  in  a  case  where  a 
national  works  council  and  EWCs  applied  jointly  in  court290.  In  DE,  the  courts  have 
recognised  an  Unterlassungsanspruch  (claim  to  injunctive  relief)  for  national  works 
councils for severe cases of non-respect of codetermination rights. The injunctive relief 
has  not  been  granted  to  national  works  councils  in  cases  of  non-respect  of  information 

Also in Jagodziński R., Stoop S. (ETUC)(2022) Access to justice for European Works Councils. 
289 For Ireland and Spain – see country fiches of the ETUC (2022) Report on access to justice for European 
Works  Council,  op.cit.:  EWC  Litigation  Country  fiches  Ireland  |  ETUC  (Ireland)  and  EWC  Litigation 
Country fiches Spain | ETUC (Spain). 
290  Veolia-Engie  v.  SUEZ  information  and  consultation  bodies;  RG  n°  20/06549;  11/19/20;  Court  of 
Appeal Paris. 

144 

 
 
and  consultation  rights.  The  DE  law  provides  for  a  fine  in  such  cases  (Section  121 
BetrVG).  There  is  no  generally  recognised  Unterlassungsanspruch  for  information  and 
consultation  rights  (this  issue  has  been  under  legal  debate  since  the  1990s291).  So  far, 
EWCs  have  not  been  granted  injunctive  relief  by  the  DE  courts  (see  Annex  9).292  The 
possibility  of interim  measures  and  injunctions  to  enforce  EWCs'  rights  is  discussed  in 
the AT legal commentary293 in the context of planned restructurings, based on the general 
rules on enforcement of rights (§ 381 Exekutionsordnung in conjunction with §§ 108 and 
109  Arbeitsverfassungsgesetz).  To  date,  there  is  no  record  of  a  court  ordering  such 
measures in AT. 

No  Member  State  determines  fines  for  EWC-related  breaches  in  relation  to  the 
company’s  turnover.  All  national  laws  implementing  the  Directive  would  need  to  be 
amended to align with the requirement under policy option 4b.   

Regarding  policy  option  4c,  which  determines  maximum  shares  of  undertakings’  net 
annual turnover that could be imposed by way of pecuniary sanctions (up to 4% where a 
violation of rights and obligations under the Directive is found to be intentional, or else 
up  to  2%  of  annual  net  turnover),  pecuniary  sanctions  of  such  proportions  are 
unprecedented  in  the  field  of  information  and  consultation  of  employees,  including  at 
national  level.  All  Member  States  would  therefore  have  to  amend  their  legislation  to 
introduce such fines. 

While  injunctive  relief  for  suspending  the  management  decision  may  theoretically  be 
available to EWCs in some Member States through the practice of national courts, it is 
likely  that  all  national  laws  would  have  to  be  amended  to  implement  a  clear  right  of 
EWCs to injunctive relief as referred to under policy option 4c. 

291 Based on information collected Beck Community and DGB commentary, Blanke/Hayen/Kunz/Carlson, 
Europäische Betriebsräte-Gesetz 3. Auflage 2019; See also ICF(2023), Section 5.2.1..  
292  For  example,  decisions  of  first  and  second  instance  labour  courts  in  Germany:  Landesarbeitsgericht 
Köln of 1 August 2018, case no 6 TaBVGa 3/18; 12.10.2015, Landesarbeitsgericht Baden-Wuerttemberg 
of 12 October 2015, case no 9 TaBV 2/15; Arbeitsgericht Wiesbaden of 13 June 2018, case  no 1 BVGa 
5/18). 
293 Kodek, ‘Einstweilige Verfügungen zur Sicherung des Informationsanspruchs nach §§ 108, 109 ArbVG 
bei beabsichtigten Betriebsänderungen', DRdA 6/2011, p. 517-526. 

145 

 
 
 
 
 
 
ANNEX 9: EXAMPLES OF NATIONAL CASE-LAW IN RELATION TO 
THE PROBLEM DRIVERS 

No  cases  have  been  brought  before  the  Court  of  Justice  on  the  Directive  so  far.  At 
national  level,  court  cases  concerning  EWC  are  not  frequent  and  are  concentrated  to 
jurisdictions  with  higher  number  of  multinationals  with  EWCs.  ETUI  identified 
altogether  160  EWC-related  national  court  cases  since  1997  and  until  the  beginning  of 
2023. Some of these national cases point to existence of legal uncertainties, which may 
compromise the correct implementation of the Directive. 

1.  PROBLEM  DRIVER:  ‘NOT  SUFFICIENTLY  EFFICIENT  &  EFFECTIVE  SETTING-UP 

OF EWCS AND GENDER IMBALANCE’ (SEE SECTION 2.4.2.) 

- 

In  2016,  the  Arbeitsgericht  Berlin  (First  instance)  ruled  that  an  EWC  was 
established  after  the  management  has  not  convened  a  constituent  meeting 
within 6 months of the request. According to the national court: “[a] refusal can 
also exist if, due to delays on the part of the central management, the constituent 
meeting of the special negotiating body has not taken place within six months of 
the application being  made or if the information  required for the formation of a 
special negotiating body is persistently refused in accordance with § 5 EBRG.”294 

2.  PROBLEM DRIVER ‘OBSTACLES TO THE EFFECTIVE OPERATION OF EWCS’ (SEE 

SECTION 2.4.3.)  

Legal uncertainty regarding the concept of transnational matters  

- 

In a decision of 27 November 2018 in interim proceedings295, the District Court 
of  Rotterdam  (‘Rechtbank  Rotterdam’)  considered  whether  an  EWC  established 
in  the  Netherlands  had  to  be  informed  and  consulted  on  the  possible  closure  of 
two  establishments  in  Spain.  Based  on  an  interpretation  of  the  concept  of 
transnational  matters  in  conformity  with  Directive  2009/38/EC,  the  Dutch  court 
found  that  it  was  sufficiently  plausible,  for  the  purposes  of  the  decision  in  the 
interim proceedings, that the issue was to be considered transnational. The Court 
took  into  account  that  the  closures  would  make  around  20%  of  the  relevant 
undertaking’s  European  workforce  redundant,  and  might  have  knock-on  effects 
on the activities of its establishments in other Member States.  

- 

In  a  French  case296,  an  EWC  established  in  France  queried  the  central 
management’s failure to inform and consult on its decision to claim repayment of 
a  loan  that  had  been  granted  to  keep  a  loss-making  French  subsidiary  afloat. 
Although  the  EWC  argued  that  the  decision  had  to  be  considered  in  the  wider 

294 Germany, 15.07.2016, Groupon, Arbeitsgericht Berlin – 26 BV 4223/16 (First instance). 
295  Netherlands,  Rechtbank  Rotterdam,  judgment  in  interim  proceedings  of  27  November  2018,  Case  no 
C/10/561635/KG ZA 18-1170. 
296  France,  Tribunal  de  Grande  Instance  de  Nanterre,  judgment  of  26  November  2014,  N°  14/02861; 
confirmed on appeal by Cour d'appel de Versailles, judgment of 21 May 2015, N° 14/08628. 

146 

 
 
 
 
context of the undertaking's strategy involving the closure of various subsidiaries, 
the national court held that all the facts of the matter were confined to the French 
territory  and  thus  did  not  trigger  information  and  consultation  requirements  at 
transnational level. 

-  The definition of ‘transnational matters’ in Article 1(4) of the Directive was also 
interpreted,  in  light  of  recitals  15  and  16,  in  a  recent  judgment  of  the  Court  of 
Appeal of England and Wales297. The court was faced with the question whether 
redundancies  proposed in two separate Member  States could  be considered as a 
transnational  matter despite the fact  that they had been separately  formulated in 
light of unrelated national circumstances. It held that in order for a matter to be 
considered transnational, it was not  sufficient  that two  matters  /  decisions  occur 
within  the  company  in  two  countries  at  about  the  same  time,  but  there  must  be 
some  objective  factual  nexus  between  them.  Requiring  an  (extraordinary)  EWC 
meeting  absent  such  a  nexus  would  render  meaningless  the  requirement  for  a 
matter  to  be  transnational,  because  no  (potential)  effects  of  any  one  matter  on 
undertakings  in  each  of  two  different  countries  would  be  required.  The  Appeal 
Court  recalled  the  limitation  of  the  the  scope  of  the  procedures  guaranteeing 
information and consultation with EWCs, in accordance with Article 1(3) and (4) 
and  recitals  15  and  16  of  the  Directive,  which  together  ensure  that  information 
and  consultation  occur  at  the  correct  level  of  management  and  representation, 
according to the subject under discussion. To achieve this necessary demarcation, 
the competence and scope of action of an EWC is different and distinct from 
that of national representative bodies.  

Insufficient resources of EWCs 

- 

- 

In  a  judgment  concerning  an  EWC  operating  under  subsidiary  requirements  in 
Austria,  the  Oberlandesgericht  Wien  (Higher  Regional  Court)  confirmed  that 
such  an  EWC  can  choose  an  independent  expert  of  its  choice  and  it  is  not 
obliged to minimise the costs to be borne by central management by having 
recourse as a priority to experts provided by trade unions or by a statutory 
representative body, as long  as the expert’s services and costs are legitimately 
linked  to  the  functions  of  the  EWC.298  Moreover,  the  Higher  Regional  Court 
found that fees for expert legal advice to be covered by central management are 
not limited to the statutory scales of legal fees. 

In  2019,  the  UK  Central  Arbitration  Committee  (CAC)  considered  that  the 
employer should pay the legal fees incurred in relation to the proceedings.299  
The decision was upheld by the Employment Appeals Tribunal, which stated that 
the central management’s approach “inevitably had the effect of leaving either the 
individual members of the EWC who were taking the reasonable step of bringing 
CAC proceedings or their chosen experts at an unfair financial risk: that was not a 
reasonable  approach,  particularly  coming  from  a  very  substantial  organisation 

297 UK, Court of Appeal (civil division), judgment of 26 July 2023, Adecco, [2023] EWCA Civ 883. 
298  Austria,  Higher  Regional  Court  (Oberlandesgericht)  Wien,  judgment  of  23  February  2022,  No.  8  Ra 
49/22t, subject to appeal. 
299  United  Kingdom, 9  October 2019,  Verizon,  Central  Arbitration  Committee,  EWC/22/2019.  The  CAC 
has also considered the question of payment of legal representation in cases EWC/21/2019, EWC/13/2015. 

147 

 
 
 
which  no  doubt  had  access  to  and  would  itself  make  use  of  legal  assistance  in 
connection with the CAC proceedings.”300 

Confidentiality imposed disproportionately may create obstacles to effective information 
and consultation 

- 

In  a  decision  of  12  February  2018301,  the  UK’s  Central  Arbitration  Committee 
found that ”the default position of the employer was (a) not to disclose and (b) to 
classify as confidential anything it feels it has to disclose in order to comply with 
the minimum legal obligations. This stands in contrast to the thrust and intent of 
the  Directive  and  the  (UK  Transnational  Information  and  Consultation  of 
Employees  Regulations  1999)  which  is  that  relevant  information  should  be 
given  to  EWC,  with  protections  available  where  it  is  objectively  reasonable 
for management to argue that it its disclosure would prejudice or seriously 
harm the undertaking.”  

3.  PROBLEM  DRIVER  ‘SHORTCOMINGS  IN  ENFORCING  OF  THE  DIRECTIVE’  (SEE 

SECTION 2.4.4.) 

Ineffective penalties / sanctions for non-compliance in some Member State 

- 

- 

In a 2020 judgment302, the French Cour de Cassation upheld the suspension of 
operations  of  undertakings  on  the  grounds  of  a  violation  of  EWCs’ 
information  and  consultation  rights.  Véolia  Environnement  and  SA  Engie 
motioned for the Court of Appeal of Paris to squash interim measures in the form 
of suspension of operations that had been imposed in previous proceedings until 
the  comité  social  et  économique  of  multiple  SUEZ  establishments  had  been 
informed  and  consulted  about  the  acquisition  of SUEZ  company  shares  held  by 
Engie.  The  EWC  of  a  SUEZ  establishment  intervened  voluntarily.  The  court 
rejected  the  appeal  and  declared  the  EWC’s  voluntary  intervention  to  be 
admissible in order to establish the existence of a manifestly unlawful disturbance 
and to prevent imminent damage.  

In  the  first  and  second  instance  2018  legal  proceedings303,  the  German  labour 
courts rejected an EWCs’ request for injunction on grounds of a failure of the 
management  to  comply  with  the  consultation  obligations.  The  courts  reasoned 
that  neither  the  national  law  nor  the  Directive  provides  for  an  injunction.  [...] 
According to the predominant interpretation of the law, the rights of the European 
Works  Council  are  instead  guaranteed  by  the  provisions  on  administrative 
sanctions of Paragraph 45 of the EBRG [...] and the possibility of enforcing the 
rights  to  information  and  consultation  by  means  of  judicial  remedies  before  the 
Labour Court, including by way of an interim order. [...]. Moreover, according to 
the court the legislative history of the EBRG militates against the granting of an 
injunction,  since  a  corresponding  application  for  a  prohibitory  injunction  was 
expressly  rejected  in  the  legislative  procedure  in  the  case  of  non-participatory 

300 Employment Appeals Tribunal, judgement of 1 October 2020, Appeal No. UKEAT/0053/20/DA. 
301 United Kingdom, Central Arbitration Committee (UK), Oracle, No EWC/17/2017, para 87. 
302 France, 19.11.2020, Veolia-Engie v. Suez, Cour de Cassation Paris, 20/06549 (Appeal) 
303  Germany,  01.08.2018,  DT  Group,  Arbeitsgericht  Köln  -  1BVGa  7/18  (first  instance).  Germany, 
13.12.2018, DT Group, Landesarbeitsgericht Köln - 6 TaBVGa 3/18 (Appeal). 

148 

 
 
[i.e.,  non-codetermination]  measures.  There  is  therefore  no  legal  loophole, 
according to the court, which also noted that the parties to the proceedings have 
also  refrained  from  agreeing  such an injunction, having been  aware of the legal 
situation  at  issue  in  national  law  and  despite  apparently  several  revisions  of  the 
EWC agreement. That possibility would have been readily available. “The court 
shares the prevailing view in rejecting a claim for an injunction in the event of a 
breach  by  the  undertaking  concerned  of  the  rights  of  the  European  Works 
Council. Recognition  of such a right would have the effect  of conferring  on the 
EWC,  in  the  absence  of  any  express  provision,  a  right  which  would  be  much 
stronger than the rights expressly regulated. Moreover, he would be recognised as 
having  a  right  whose  existence  is  contested  even  with  regard  to  the  [national] 
works council under the BetrVG, which, by virtue of its participation rights, has a 
significantly stronger legal position than the European Works Council.” 

- 

In 2015 legal proceedings in Germany304, a EWC asked for an injunctive relief to 
prevent  redundancies  until  the  EWC  had  been  properly  informed.  The  court  of 
first instance dismissed the motion noting that such a right does not result from an 
interpretation  of  §  30  EBRG.  Since  the  Directive  does  not  provide  for  any 
specific  sanctions  in  the  event  of  a  breach  of  the  duty  to  inform,  it  is  not 
objectionable that the national legislature decided to introduce an administrative 
offence subject to a fine as a sanction. The Court does not consider the European 
Works Council and the national Works Councils to be comparable as the rights of 
the former are weaker than the rights of the latter. The national Works Councils 
“can enforce its right to information and consultation in a formalised conciliation 
procedure and appeal to the conciliation board. In contrast, Directive 2009/38/EC, 
through  the  right  to  information  and  consultation,  only  pursues  the  exchange  of 
views and the  establishment of a dialogue between the  central  management and 
the European Works Council.” 
The  right  to  instruction  can  be  enforced  by  way  of  interim  legal  protection,  a 
violation  can  be  punished  with  a  fine.  The  small  amount  of  the  fine  is 
acknowledged  by  the  court  but  is  not  considered  relevant  for  the  assumption  of 
injunctive  relief.  If  the  fine  were  to  be  regarded  as  inadequate  and  was  not 
meeting  the  requirement  of  the  Directive,  the  will  of  the  legislature  could 
nevertheless  not  be  circumvented.  The  court  substantiates  the  intention  of  the 
legislator with several legislative documents. 

In  a 2011 case305, the German court  confirmed that  interim  judicial proceedings 
before the labour courts are available to EWCs. However, this does not mean that 
EWCs  have  a  substantive  right  to  injunctive  relief.  The  court  considered  that 
violation of EWC’s rights to information and consultation does not justify a claim 
for  injunctive  relief  with  regard  to  the  implementation  of  the  intended  plant 
closure. The court makes it clear that even if the case law on injunctive relief for 
national  works  councils  could  in  principle  be  applied  to  the  European  Works 
Council,  the  latter  would  not  be  entitled  to  any  such  relief  in  respect  of  its 
obligations to give notice and information and consultation rights, because also in 

304 Germany, 12.10.2015, Landesarbeitsgericht Baden-Wuerttemberg of 12 October 2015. 
305 Germany, 08.09.2011, Visteon, Landesarbeitsgericht Köln - 13 Ta 267/11 (Appeal). 

149 

 
 
 
 
respect  of  national  works  councils,  the  right  to  injunctive  relief  relates  only  to 
participation (=co-determination) rights. 

150 

 
ANNEX 10: EXTERNAL PROBLEM DRIVERS 

Partially,  the  effectiveness  of  information  and  consultation  of  EWCs  is  influenced  by 
drivers which, while having an impact on the problem the EU initiative aims at tackling, 
are ‘external’ to its scope and reach. The following external drivers to the problem have 
been identified. 

1.  DIVERSITY OF INDUSTRIAL RELATIONS SYSTEMS IN THE MEMBER STATES 

In  the  Social  Policy  field,  the  Union  may  adopt  minimum  requirements  for  gradual 
implementation,  having  regard  to  the  conditions  and  technical  rules  in  each  Member 
States.306 The Union recognises the diversity of national industrial systems and practices, 
which  may  be  based  on  trade  unions  or  works  councils  (or  employees’  bodies),  or 
combining  both.  While  Union  law  provides  for  minimum  rights  to  information  and 
consultation  of  workers,  the  Member  States  determine  the  practical  arrangements  for 
exercising this right at the appropriate level. Depending on national laws, the employee 
representatives’ competences may go beyond consultation and may include a right to co-
determination. The available research has shown that in countries where there is a strong 
tradition of social dialogue and corporate culture, EWCs function more effectively than 
those  in  countries  with  a  weak  industrial  relations  culture.307  A  study  points  out  that 
involvement  in  restructuring  processes  is  in  particular  related  to  the  quality  of  social 
dialogue308. 

2.  ECONOMIC AND CORPORATE DEVELOPMENTS AND SOCIETAL CHANGES 

The frequency of transnational restructuring events and the importance of these impacts 
on  the  work  of  EWCs.  The  world  of  work  has  been  undergoing  continuous  changes 
driven  by  broader  economic  developments  (recessions,  inflation,  internationalisation  of 
companies), societal  changes (demographic change, social inequalities),  climate change 
(resources, modes of production, health crisis) as well as geo-political developments (war 
against terrorism, Syrian war, migrant flows, lately the Ukraine war and the UK exit from 
the  EU)  and  the  digitalisation  of  activities  and  interactions.  These  external  factors  and 
shocks may require quick reactions from companies, which may in turn affect the quality 
of processes of information and consultation of employee representatives at the various 
levels.  

Consequences  of  certain  events  (e.g.,  the  COVID-related  restrictions  in  manufacturing 
countries like China and the sanctions imposed on Russia) may lead to partial relocation 

306  Article  153(1)  provides  the  legal  basis  for  the  EU  “to  support  and  complement  the  activities  of  the 
Member  States”  in  a  number  of  fields  for  people  both  inside  and  outside  the  labour  market:  workers, 
jobseekers  and  unemployed.  The  directives  based  on  Article  153  can  'set  minimum  requirements  for 
gradual  implementation,  having  regard  to  the  conditions  and  technical  rules  obtaining  in  each  of  the 
Member States'. Such directives 'shall avoid imposing administrative, financial and legal constraints in a 
way which would hold back the creation and development of small and medium-sized undertakings'. The 
provisions  adopted  'shall  not  prevent  any  Member  State  from  maintaining  or  introducing  more  stringent 
protective measures'. 
307 Eurofound (2022) op.cit.  
308  Voss.E,  Warneck  F.,  Schulze  Marmeling,  S.  (2022)  Coordination  and  interaction  in  European  works 
councils, a report for the ETUC, p. 26. Available online.  

151 

 
 
of supply chains, likely generating shifts within the EU industrial sector.309 In addition, 
high  inflation  reduces  employees'  purchasing  power,  hence  increasing  the  tensions 
between companies facing increasing costs and a workforce demanding pay raises. Both 
dynamics  could  generate  issues  and  disputes  with  a  'transnational'  scope,  hence 
increasing the need of the involvement of EWCs on financial and restructuring matters.  

However,  there  is  no  systematic  empirical  evidence  of  the  extent  to  which  broader 
economic  and  social  changes  have  impacted  the  EWCs’  involvement  in  restructuring 
decisions.  A 2015 Eurofound study concluded that  restructuring cases during the Great 
Recession were challenging for EWCs, but they also presented an opportunity to change 
and clarify information and consultation procedures.310  

A  2020  Eurofound  report  found  that  “transnational  restructurings  account  for  a  small 
share of overall large-scale restructurings (around 6% of cases involving job loss) but by 
virtue of their much larger size involve a much more significant share of associated job 
loss. They also take longer to enact.” The report concludes that transnational restructuring 
incidence is particularly cyclically sensitive. It is also generally a deliberate and planned 
process of internal restructuring.311   

Evidence on the effects of digitalisation on the functioning of EWCs is not conclusive. 
The  limited  literature  on  this  topic  indicates  that  online  meetings  had  become  more 
frequent post-pandemic. Employee organisations recognise the positive aspects of online 
meetings and trainings and their increased quality312, but maintain the importance face-
to-face meetings.  Digitalisation of companies and industries is also increasingly a topic 
tackled by EWCs.313  

Demographic changes may also shift the priorities addressed by EWCs.314 For example, 
the  increasing  participation  of  women  in  some  industries  where  the  majority  of 
workforce has traditionally been male (e.g., construction) would increase the incentives 
to adopt company-wide policies on gender equality. 

c.  Company  structure  and  relationship  between  the  employee  representatives  and  the 
management 

A 2016 KU Leuven study found that there is a wide range of managerial policy towards 
EWCs  that  is  influenced,  inter  alia,  by  the  country  of  origin  of  the  company,  the 
manager,  the  sector  of  operation,  and  the  company  size.315  For  instance,  as  regards  the 
country  of  origin,  the  study  concluded,  based  on  interviews  with  managers  responsible 
those  from  “coordinated  market 
for  EWCs 

in  multinational  companies, 

that 

309 Korn, T., & Stemmler, H. (2022). Russia’s war against Ukraine might persistently shift global supply 
chains. VoxEU. org, 31. Available online.  
310  Kerckhofs  P.  (Eurofound)(2015)  European  Works  Council  developments  before,  during  and  after  the 
crisis. Available online.  
311 Eurofound (2020). ERM report 2020: Restructuring across borders, p. 26. Available online.   
312 Eurofound (2022) op.cit.  
313 The European Economic and Social Committee (2020). Study ‘An EU legal framework on safeguarding 
and strengthening workers’ information, consultation and participation’. Available online. 
314 EFBWW (2021). EWC guide on demographic change. Available online.  
315  Pulignano  V.  et  al.  (KU  Leuven)  (2016)  European  Works  Councils  on  the  Move:  Management 
perspectives on the development of a transnational institution for social dialogue, p. 11. Available online. 

152 

 
 
 
economies”316  are  much  less  likely  to  report  a  problem-free  good  quality  debate  with 
their  respective  EWC  than  those  from  “liberal  market  economies”317  (15%  v.  33%).318 
Good  managerial  leadership  was  regarded  by  interviewees  as  enhancing  the  quality  of 
dialogue  within  transnational  companies.319  Concerning  the  correlations  between 
company size and operational patterns of EWCs, the study found that smaller companies 
have  better  employee  engagement  in  the  EWC.320  These  findings  suggest  that  such 
factors have a relevant impact on the effectiveness of EWCs. However, as they cannot be 
directly  influenced  by  possible  EU  policy  measures  on  EWCs,  they  are  considered 
external drivers for the purposes of this impact assessment.   

316 For the purposes of the study: Austria, Belgium, Denmark, Finland, Germany, Japan, Luxembourg, the 
Netherlands, Slovenia and Sweden. 
317 For the purposes of the KU Leuven Study: Australia, Bulgaria, Croatia, China, Cyprus, Czech Republic, 
Estonia,  Hungary,  Ireland,  Latvia,  Lithuania,  Malta,  Poland,  Romania,  Slovakia,  South  Africa,  United 
Kingdom and the United States. 
318 Pulignano V. et al. (2016), op.cit., p. 23. 
319 Ibid., p. 27. 
320 Ibid., p. 25. 

153 

 
 
ANNEX 11: REASONS FOR DISCARDING CERTAIN POLICY 
MEASURES WITHOUT DETAILED ASSESSMENT OF IMPACTS 

A  number  of  policy  measures  that  have  either  been  considered  at  the  early  preparatory 
stages  of  this  initiative  or  were  put  forward  by  social  partners  during  the  consultation 
process have been discarded without a detailed assessment of their impacts. This Annex 
explains the reasons for discarding those measures, distinguishing between: 

-  measures  designed  to  address  a  problem  driver  of  which  insufficient  evidence 

could be established by the Commission services; 

-  measures  discarded  because  they  were  either  unsuitable  to  achieve  the  policy 
objectives,  or  clearly  disproportionate  or  incoherent  with  the  existing  legal 
framework. 

1.  MEASURES  DISCARDED  FOR  LACK  OF  SUFFICIENT  EVIDENCE  OF  A  RELEVANT 

PROBLEM DRIVER 

1.1. 

Require transnational  information and consultation for  structurally independent 
undertakings linked by contract 

In  resolution  2019/2183(INL),  the  European  Parliament  called  on  the  Commission  to 
“explore  the  merits  of  including  contracts  which  enable  structurally  independent 
undertakings  to  influence  one  another's  operation  and  business  decisions  (such  as 
franchising or management contracts) within the scope of Directive 2009/38/EC in order 
to prevent possible gaps”. According to the Commission services’ assessment, this issue 
is linked to the question whether an undertaking is considered to control another, so that 
they  form  a  group  for  the  purposes  of  the  Directive  and  hence  fall  within  its  scope 
(provided  they  meet  together  the  criteria  for  ‘Union-scale’).  The  determination  of 
whether  an  undertaking  is  a  controlling  undertaking  is  to  be  made  on  the  basis  of  the 
applicable  national  law,  that  is  to  say  the  law  of  the  Member  State  governing  the 
(potentially) controlling undertaking.  

The Directive currently neither requires nor excludes that influence exercised by means 
of  contracts  such  as  those  mentioned  by  the  Parliament  be  considered  “dominant 
influence”,  and  hence  control.  It  merely  lists  the  –  non-exhaustive  –  examples  of 
dominant  influence  exercised  by  virtue  of  “ownership,  financial  participation  or  the 
governing  rules”,  and  lays  down  a  presumption  of  dominant  influence  in  certain  cases. 
Nevertheless,  none  of  the  Member  States  has  thus  far  considered  it  necessary  or 
appropriate to expressly consider structurally independent undertakings to form part of a 
group  of  Union-scale  undertakings,  for  the  purposes  of  applying  the  information  and 
consultation requirements pursuant to Directive 2009/38. This choice of Member States 
in  implementing  Article 3  of  Directive  2009/38  is  consistent  with  the  context  in  which 
Directive 2009/38 was adopted, namely the setting up of works councils in Union-scale 
undertakings  and  Union-scale  groups  of  undertakings,  to  be  informed  and  consulted  in 
respect  of  a  wide  range  of  matters  affecting  the  workforce  generally.321  It  is  also  an 
expression of the fact that control, by means of contractual arrangements, over separate 

321 Cf. the final opinion of Advocate General Sharpston in C-61/17, Bichat, ECLI:EU:C:2018:482, par. 46. 

154 

 
 
companies  is  difficult  to  ascertain.  While  the  European  Parliament  has  described  the 
concept of ‘management contract’ and referred also to ‘franchising contracts’, there are 
no clear criteria or categories of contracts giving rise to a degree of control that warrants 
the  application  of 
information  and  consultation  processes  vis-à-vis  structurally 
independent undertakings.  

The  Commission’s  various  evidence  gathering  activities  remained  inconclusive  as 
regards  the  existence  of  “gaps”  in  the  scope  of  Directive  2009/38,  as  asserted  by  the 
European  Parliament.  Trade  unions  and  other  employees’  representatives  tend  to  stress 
the need for a broad definition of “control”, including  influence exercised by means of 
contract  management  and  franchise  systems322.  Trade  unions  consider  that  the  use  of 
such contracts deprives many employees of the right to information and consultation on 
transnational  matters,  referring  in  particular  to  the  hospitality  sector,  e.g.  the  fast  food 
industries.323  In  contrast,  employer  representatives  question  whether 
and  hotel 
management  can  appropriately  be  required  to  consult  representatives  of  employees  of 
structurally  independent  companies324  and  point  out  that  in  certain  sectors,  such  as  the 
chemical industry, such contracts are not used at all.325  

In the light of the evidence gathering, the Commission is not aware of cases where the 
Directive’s  definition  of  control  has  led  to  a  lack  of  information  and  consultation  of 
employees  on  transnational  matters.  Furthermore,  the  lack  of  any  specific  established 
regulatory  concepts  for  determining  types  of  contracts  that  may  give  rise  to  dominant 
influence between structurally independent companies makes it difficult to ascertain the 
relevance of the alleged issue and identify the stakeholders affected by it.326  

Moreover,  the  fact  that  the  Directive  does  not  force  Member  States  to  qualify  mere 
contractual links between undertakings as “control” or “dominant influence” could only 
be  considered  a  “gap”  if  the  Directive’s  procedural  framework  for  the  information  and 
consultation  of  employees  would  in  principle  be  suitable  to  structurally  independent 
undertakings  and  could  effectively  and  consistently  apply  where  influence  is  exercised 
only by means of contractual arrangements. However, the practical feasibility of applying 
transnational  information  and  consultation  requirements  in  such  a  context  is  highly 
doubtful.  Where  contractually  linked  companies  are  not  integrated  into  the  corporate 
governance  structure  of  a  dominant  undertaking,  it  is  not  clear  how  the  latter  could 
ensure  a  balanced  representation  of  the  employees  in  its  EWC  or  the  adherence  of  its 
various  contractual  partners  with  the  internal  procedural  provisions  for  the  information 
and  consultation  of  employees  on  transnational  matters.327  For  instance,  it  would  be 
difficult  to  establish  a  framework  for  EWC  members  to  disseminate  information  on 
transnational  matters  to  employee  representatives  or  the  workforce  in  structurally 
independent  undertakings,  as  no  internal  channels  exist  in  that  relationship.  National 
authorities and legal experts have pointed out that applying the Directive’s requirements 

322 See e.g. ETUC reply to the first phase of the Social Partner Consultation on a possible revision of the 
European  Works  Council  Directive  (2009/38/EC),  22  May  2023,  p.  5;  results  of  the  evidence  gathering 
workshops  held  with  employees’  representatives  for  the  study  supporting  this  impact  assessment  in 
ICF(2023), Section 5.3.2.1. 
323 ICF(2023), Section 5.2.2.2. 
324 Ibid. 
325 Ibid. 
326 Ibid 
327 Ibid, Section 5.2.2.3.  

155 

 
 
to  undertakings  linked  only  by  contract  –  rather  than  ownership  of  statutory  control  – 
would not be coherent with the company law-based approach established e.g. in the BE, 
DE,  ES,  FR,  IE,  PL,  NL  and  SE  laws,  which  do  not  provide  for  worker  involvement 
mechanisms  between  structurally  independent  companies.328  In  addition,  it  stands  to 
reason that requiring  information  and consultation  of employee representatives external 
to  the  corporate  structure  of  Union-scale  undertakings  would  exacerbate  management’s 
confidentiality  concerns  and  might  prompt  a  more  restrictive  approach  to  informing 
EWCs. 

Accordingly,  in  the  targeted  interviews  carried  out  for  the  supporting  study,  EU  and 
national  employers’  organisations  considered  it  impractical  to  extend  EWC  rules  to 
contractually  linked  businesses,  such  as  franchises,  as  corporate  structures  vary 
considerably according to each company and sector. Legal experts concurred that such an 
extension of the scope would be very complex to legislate as it would need to take into 
account the complexity of different corporate structures. National authorities interviewed 
confirmed  that  this  measure  could  cause  legal  problems,  highlighting  for  instance  the 
separation  of  franchisers  and  franchisees  in  staff  management.  Likewise,  in  the 
workshops  held  for  the  same  study  with  EWC  and  management  representatives,  the 
participants  in  both  stakeholder  groups  indicated  that  extending  the  scope  of  the  EWC 
Directive  to  undertakings  linked  by  contractual  arrangements  and  franchising  poses 
practical challenges. 

In light of these considerations, the fact that the Directive’s definition of control does not 
refer  specifically  to  influence  exercised  by  means  of  contracts  between  structurally 
independent  companies,  rather  than  being  a  “gap”,  is  consistent  with  the  rules  and 
requirements laid down in that Directive. 

1.2. 

Reduce the negotiation deadline 

The recast Directive provides that where the central management and the SNB are unable 
to  conclude  a  European  Works  Council  agreement  within  3  years  of  the request,  an  ad 
hoc European Works Council based on subsidiary requirements is created.329 According 
to available data, there are currently 20 active EWCs based on subsidiary requirements, 
representing 2% of the overall population of EWCs.330 

The  European  Parliament  proposed  to  shorten  the  time  limit  for  negotiating  EWC 
agreements from three years to 18 months. However, stakeholder feedback gathered by 
the Commission has not borne out the underlying assumption that “the three-year delay 
following a request before the subsidiary requirements apply, in the event of a failure to 
conclude  an  agreement,  is  excessive,  is  often  not  used  effectively  and  is  to  the 
disadvantage  of  workers”.  On  the  contrary,  in  reply  to  the  first  stage  consultation  of 
social  partners,  ETUC  takes  the  view  that  the  existing  3-year  negotiation  period  is 
appropriate,  arguing  that  proper  coordination,  training  and  agreement  on  common 
demands take time. CESI  submitted a more nuanced view,  suggesting that negotiations 
can  be  concluded  in  a  shorter  timeframe  “if  both  sides  are  willing  and  engage 
constructively”. The latter condition implies that the 3-year period may indeed be needed 

328 ICF(2023), Sections 5.2.2.3. and 5.2.2.4. 
329 Article 7(1).  
330 ETUI database, 2023. 

156 

 
 
if controversies arise during the negotiations. The employer organisations responding to 
the  first  stage  consultation  also  consider  that  negotiations  of  an  EWC  agreement  can 
legitimately take up the timespan available in accordance with the existing provisions of 
Directive  2009/38/EC.  For 
the 
Commission’s implementation report of 2018, it takes on average 2 to 3 years from the 
establishment  of  the  special  negotiating  body  to  conclusion  of  the  EWC  agreement. 
HOTREC cautions that some topics require long discussions and subsidiary requirements 
should apply only when strictly necessary. 

instance,  CEEMET  recalls 

that  according 

to 

In the targeted interviews carried out for the supporting study, stakeholders ranging from 
employee representatives to employer organisations and national authorities stressed the 
importance of allowing sufficient time and flexibility for parties to negotiate agreements, 
although in a workshop with EWC representatives, participants stated that it is unlikely 
that a better agreement will be achieved after three years if the negotiations do not make 
progress within a timeframe of 18 months. 

Given  that  the  Directive  sets  out  minimum  requirements  and  creates  no  obstacle  to 
negotiations  concluding  earlier  than  3  years,  and  in  view  of  the  fact  that  negotiations 
have  legitimately  taken  3  years  in  the  past,  it  is  not  in  the  view  of  the  Commission 
services appropriate to reduce this timeframe.  

1.3.  Giving  assistance  of  SNBs  by  trade  union  experts  priority  over  other  experts  of 

choice 

Pursuant to the third subparagraph, 1st sentence, of Article 5(4) of Directive 2009/38/EC, 
the SNB may request, for the purposes of the negotiations, assistance from experts of its 
choice  which  can  include  representatives  of  competent  recognised  Union-level  trade 
union organisations. The European Parliament recommended to amend that provision to 
entitle the SNB to “assistance from representatives of competent recognised Union-level 
trade  union  organisations  and,  if  needed,  further  experts  of  its  choice”.  Such  an 
amendment would effectively limit  the SNB’s choice of experts that it can consult in a 
first  step.  The  current  wording  of  the  Directive  does  in  no  way  prevent  SNBs  from 
involving  trade  union  experts,  but  it  does  not  require  them  to  prioritise  trade  union 
representatives. The Commission’s evidence gathering activities have not yielded strong 
indications  that  this  existing  solution  leads  to  issues  in  practice.  Indeed,  the  2018 
Commission  evaluation  reported  that  the  use  of  experts  in  negotiations  increased  (to 
nearly 70 %) under the recast rules and was considered helpful in providing advice on the 
legislation  also  in  sharing  expertise  encountered  by  other  existing  EWCs.331  The  study 
supporting  this  impact  assessment  reported  evidence  suggesting  that  at  least  in  certain 
cases,  employee  representatives  prefer  to  consult  independent  experts  instead  of  trade 
union representatives for the purposes of negotiating EWC agreements.332 

2.  MEASURES DISCARDED FOR OTHER REASONS 

2.1. 

Automatically treating Union-scale undertakings with ‘voluntary agreements’ as 
undertakings with an EWC 

331 SWD(2018) 187 final, p. 38. 
332 ICF(2023), Section 5.2.2.3. 

157 

 
 
Pursuant  to  Article  14(1)(a)  of  Directive  2009/38/EC,  the  obligations  arising  from  the 
Directive  currently  do  not  apply  to  Union-scale  undertakings  or  groups  in  which  an 
agreement covering the entire workforce and providing for the transnational information 
and  consultation  of  employees  has  been  concluded,  on  a  voluntary  basis,  “pursuant  to 
Article 13(1)  of Directive 94/45/EC”, that is  to say  before the implementation  deadline 
for that latter Directive (22 September 1996). The Commission proposes to remove this 
exemption of undertakings with ‘voluntary agreements’ (policy option 1a). 

The European Parliament recommended that, following the removal of the exemption, all 
such voluntary agreements “shall fall within the scope of [Directive 2009/38/EC] without 
any obligation to renegotiate”. However, this solution is not legally feasible. Information 
and consultation bodies based on voluntary agreements do not fall under the definition of 
‘European  Works  Council’  in  Article  2(1)(h)  of  the  Directive,  as  they  were  not 
established  in  accordance  with  Article 1(2)  or  requested  in  the  manner  laid  down  in 
Article  5(1).  The  setting  up  of  EWCs  is  not  obligatory  in  Union-scale  undertakings.  If 
there  is  no  request  to  that  effect  by  the  required  number  of  employees  or  employee 
representatives, no negotiations take place. The Directive explicitly leaves the choice to 
initiate  negotiations  for  the  establishment  of  an  EWC  to  employees  (or  their 
representatives)  and central  management.  An  automatic application of the requirements 
of the Directive with respect to voluntary agreements, which were concluded outside the 
scope  of  EU  law,  cannot  be  reconciled  with  the  Directive’s  definition  of  ‘European 
Works Council’ and the parties’ autonomy to decide on the establishment of an EWC or 
some other form of information and consultation procedure.  

Following  the  removal  of  the  exemption,  the  employees  and  management  of 
undertakings previously exempted by virtue of Article 14(1)(a) can, however, request and 
initiate negotiations of an EWC agreement in accordance with Article 5(1), which would 
replace  the  transnational  information  and  consultation  body  based  on  the  previous 
voluntary agreement. 

2.2. 

Requirement to consult EWCs before the end of the information and consultation 
procedure at national or local level 

Pursuant to Directive 2009/38/EC, information and consultation of EWCs is to be linked 
to those of the national employee representation bodies, but not affect the responsibilities 
of  national  employee  representatives  and  the  information  and  consultation  procedures 
applying to them.333 Arrangements to that effect are to be defined by agreement, in such a 
way that they respect the competences and areas of action of the employee representation 
bodies,  in  particular  with  regard  to  anticipating  and  managing  change.  Failing  that, 
consultations  at  both  European  and  national  levels  have  to  be  ensured  in  case  of 
restructuring.334 

The  European  Parliament  recommended  to  amend  the  Directive  to  introduce  a 
requirement  for  EWCs  to  be  consulted  before  the  end  of  the  consultation  procedure  at 
national/local level with respect to national matters forming part of a transnational issue, 
“with the aim of delivering an opinion before the end of the consultation procedure at the 
relevant level”. As confirmed by case law in the UK, the Directive is currently silent on 

333 Article 12(4).  
334 Articles 12 and 6(2)(c), recitals 29, 37-38. 

158 

 
 
the  sequencing  of  information  and  consultation  at  different  levels.335  This  is  consistent 
with the recital 37 of Directive 2009/38/EC, which states that opinions expressed by the 
EWC should be without prejudice to the competence of central management to carry out 
the  necessary  consultations  in  accordance  with  the  schedules  provided  for  in  national 
legislation  and/or  practice.  Recital  38  stresses  that  Directive  2009/38/EC  should  be 
without prejudice to the information and consultation procedures referred to in Directives 
2002/14/EC, 98/59/EC and 2001/23/EC. These recitals reflect the need for flexibility in 
the Directive, to avoid incompatibilities with information and consultation requirements 
at  national/local  level,  which  may  arise  by  virtue  of  those  directives.  Indeed,  a  2015 
Eurofound study336 has identified a variety of situations in the Member States as to how 
the  process  of  information  and  consultation  of  the  EWC  is  linked  to  local-level 
information and consultation. For example, the existence of co-determination rights, the 
possibility  to  apply  for  injunctions  or  sanctions  to  enforce  local-level  information  and 
consultation  rights  may  influence  the  way  Member  States  and  social  partners  at  each 
level perceive the issue.337  

Imposing  a  fixed  sequencing  of  information  and  consultation  at  national  and 
transnational  level  could  lead  to  incoherences  and  frictions  between  the  respective 
procedures. Where the consultation concerns an urgent matter, requiring that the EWC be 
consulted before the end of the  consultation  at  national/local  level  could  lead to  delays 
and hamper the decision-making process.338 Indeed, in the targeted interviews carried out 
for  the  supporting  study339,  EU  and  national  employers’  associations  considered  that 
EWC consultations taking place simultaneously  with national consultations could make 
the whole procedure lengthier and more complex and even pose legal risks.  

2.3. 

Penalise  non-compliance  with  the  Directive  by  exclusion  from  public  contracts 
and subsidies 

Where  an  undertaking  infringes  Directive  2009/38/EC,  the  European  Parliament 
recommends  providing  for  the  exclusion  of  undertakings  from  public  benefits,  aid  or 
subsidies,  including  EU  funds,  and  from  participating  in  a  public  contract.  While  the 
Commission has considered and assessed a number of other policy measures with a view 
to  strengthening  the  enforcement  of  the  Directive,  these  specific  penalties  proposed  by 
the  European  Parliament  were  discarded  as  disproportionate  and 
intruding 
inappropriately  on  other  fields  of  Union  policy.  Co-opting  state  aid  and  public 
procurement law as an enforcement tool for unrelated policy requirements raises serious 
issues of coherence. Conditionality requirements are always related to the purpose of the 
instrument to which they give access.  

2.4.  Decision-making bodies capable of delivering decision 24/7 

In reply to the social partner consultation, the ETUC called for a right to a nullification of 
company decisions  in  the event  of recurrent  breaches  of EWC rights. According to  the 

335 Central Arbitration Committee (UK), Oracle, No EWC/17/2017, para. 89 et seq. 
336  Dorssemont  F.,  Kerckhofs  P.  (2015)  Linking  information  and  consultation  procedures  at  local  and 
European, p. 1. 
337 SWD(2018)187, p. 29. 
338 ICF(2023), Section 5.2.2.2. 
339 Ibid 

159 

 
 
ETUC, such a system requires that an administrative or judicial system is in place that is 
accessible 24/7 and allows for decisions on the matter within 48 hours. Accordingly, the 
ETUC called on the Commission to integrate such a system in its proposal. 

Although the initiative pursues the objective of improving the enforcement of Directive 
2009/38/EC  through  effective  remedies  and  penalties,  these  proposed  procedural 
requirements  have  been  discarded  without  detailed  assessment,  because  they  involve  a 
level  of  detail  and  prescriptiveness  that  would  be  hard  to  reconcile  with  the  Union’s 
mandate  under  Article  153(2)(b)  TFEU  to  adopt  “minimum  requirements  for  gradual 
implementation”. Moreover, imposing an emergency adjudication system  especially  for 
the nullification of company decisions taken in violation of Directive 2009/38/EC would 
be  disproportionate  as  it  clearly  goes  beyond  what  is  required  to  ensure  an  effective 
enforcement  of  the  Directive.  Other,  less  intrusive,  means  of  penalising  infringements 
can be sufficient. 

2.5. 

Specify  in  Directive  2009/38/EC  that  one  or  two  working  languages  can  be 
defined to reduce costs of translation and simultaneous interpretation) 

In response to the social partner consultation, Ceemet urged the Commission to propose a 
reduction  of  administrative  burden  on  companies.  For  example,  by  avoiding  that  the 
employer  is  responsible  for  arranging  the  interpretation  facilities.  Ceemet  suggested  to 
provide for the possibility to hold EWC meetings in a group’s “official language”.  

The  Commission  aims  minimise  costs  and  burdens  for  companies  and  to  strike  an 
appropriate  balance  between  their  interests  and  those  of  employees’  representations. 
Nevertheless,  in  accordance  with  the  Directive’s  objective  to  ensure  an  effective 
information and consultation procedure, it is appropriate that the practical arrangements 
for  the  information  and  consultation  of  employees  be  determined  by  the  parties  to  the 
EWC  agreement  in  line  with  the  specific  needs  and  circumstances  in  each  Union-scale 
undertaking or group. In some cases, using a single language in EWC meetings may be 
efficient  and  appropriate,  while  in  others,  it  may  make  information  and  consultation 
inaccessible and ineffective for parts of the employee representatives and the workforce. 
Laying  down  a  one-size-fits-all  approach  regarding  language  regimes  would  therefore 
not be coherent with the purpose of the Directive. 

2.6. 

Recognising the legal personality of EWCs 

The  European  Parliament  called  on  Member  States  to  grant  legal  personality  to  EWCs 
and SNBs and include such a measure in the Commission’s impact assessment. This call 
was supported by the ETUC in response to the social partner consultation. 

The Commission endorses the objective to ensure that rightsholders under the Directive 
have effective access to justice and remedies. However, to achieve that objective, it is not 
necessary  to  seek  to  amend  Member  States’  basic  provisions  on  legal  personality.  It  is 
sufficient  for  employees’  representatives,  EWCs  and  SNBs,  or  their  members  on  their 
behalf,  to  have  the  capacity  to  bring  legal  actions  invoking  the  rights  laid  down  in  the 
Directive. Granting them full legal  personality  would go far beyond providing for such 
capacity, involving the ability to act in law in the same ways as natural persons, such as 
holding ownership, entering into various kinds of contracts, etc. Such a measure would 
therefore  exceed  the  Union’s  mandate  to  adopt  “minimum  requirements  for  gradual 
implementation”, under Article 153(2)(b) TFEU. 

160 

 
ANNEX 12: IMPACTS OF THE POLICY OPTIONS 

1.  HORIZONTAL CLARIFICATIONS – FOR ALL POLICY AREAS – REGARDING CERTAIN IMPACT CATEGORIES 

The  following  types  of  impacts  are  not  discussed  in  the  subsequent  detailed  overviews  of  impacts  for  each  policy  area  (see  Sections  2-5  of  this 
Annex), either because the initiative would not have any relevant or foreseeable effects regarding the respective type of impact, or because the same 
considerations apply across all policy areas. 

Type of impact and 
relevant 
stakeholder group 
Impacts on 
consumers, in 
particular price 
effects  

Baseline 

Horizontal considerations for all policy areas 

The  cost  of  setting  up  and  running  EWCs  represents  a  very 
small share of multinational companies’ turnover.  
The  average  overall  costs  per  negotiation  were  estimated  at 
ca.  EUR 148.000.340The  estimated  set-up  costs  represent 
approximately  0.0006  %  of  the  average  global  turnover  of 
Union-scale undertakings with an EWC.341 
The average overall costs linked to the operation of an EWC 
are estimated at EUR 300.000,342 representing approximately 
0.0012  %  of  the  average  global  turnover  of  Union-scale 
undertakings with an EWC. Of these average costs, costs of 
one  plenary  meeting  and  an  average  annual  training  costs 

No expected impacts. None of the potential policy measures considered by 
the study is expected to generate a large increase in the costs of setting up or 
running  EWCs.  Likewise,  possible  increases  in  efficiency  and/or  cost 
savings would account only for small percentages of EWC-related costs in 
the  baseline.  Given  that  these  baseline  costs  represent  themselves  only  a 
very small share of turnover, and do not affect companies’ competitiveness, 
it  is  highly  unlikely  that  such  costs  would  be  passed  on  to  consumers. 
Moreover, even if 100% would be passed on through consumer prices, quod 
non,  changes  in  EWC-related  costs  would  be  too  small  to  affect  the 
financial  balance  of  multinational  companies,  and  to  be  reflected  in  a 
change of prices.  

340 ICF, 2016, estimates adjusted to today’s prices. See Annex 4 ‘Analytical methods’ (Section 4.3.).   
341 The estimated annual global turnover for undertakings with EWCs or voluntary agreement is € 24 billion (average) (ICF, 2023).  
342 ICF, 2016, estimate adjusted to today’s prices. See Annex 4 ‘Analytical methods’ (Section 4.4.).   

161 

 
 
 
Type of impact and 
relevant 
stakeholder group 

Baseline 

Horizontal considerations for all policy areas 

(per company with an EWC) are estimated to account for ca. 
EUR 60 000.343  
Therefore,  it  can  be  ruled  out  with  a  sufficient  degree  of 
certainty that these costs have noticeable effects on consumer 
prices. 

Environmental 
impacts 

Evidence  shows  that  EWCs  do  not  have  any  noticeable 
environmental impacts.  

EWC meetings usually require representatives from different 
Member  States  to  gather  in  a  central  location,  which  can 
involve air travel or long-distance commuting. This results in 
greenhouse  gas  emissions  contributes  to  climate  change. 
Nevertheless,  given  the  limited  number  of  EWC  plenary 
meetings  per  year,  and  the  increased  use  of  digital  channels 
for some meetings (e.g. Select Committees meetings, ad hoc 
meetings),  carbon  emissions  related  to  the  operation  of 
EWCs  relevant  to  carbon  emissions  are  negligible:  the 
estimated  average  number  of  cross-border  air  passengers 

NB. In the case of policy option 4c, which involves pecuniary sanctions up 
to  4%  of  global  annual  turnover  and  the  possibility  to  suspend  company 
decisions,  plausible  impacts  on  undertakings’  competitiveness  must  be 
considered  (see  under  heading  5  below).  The  theoretical  possibility  that 
such impacts entail also noticeable effects on consumer prices can therefore 
not  be  ruled  out  categorically  for  that  policy  option.  However,  such  price 
effects  appear  unlikely  even  in  the  case  of  option  4c,  because  it  is 
reasonable  to  assume  that  fines  would  in  practice  remain  far  below  the 
maximum  thresholds  in  most  cases,  and  competitive  pressures  on 
sanctioned  undertakings  would  disincentivise 
from  passing 
enforcement costs on to consumers. 
No  expected  impacts.  Out  of  the  policy  measures  considered  for  this 
initiative,  only  one  implies  theoretical  environmental  effects  compared  to 
the baseline: requiring 2 instead of 1 mandatory annual plenary meeting of 
EWCs  operating  under  subsidiary  requirements.  This  measure  could 
potentially  entail  increased  carbon  emissions  by  EWC  members  and 
management  traveling  to  in-person  meetings.  However,  the  additional 
business-related travel that this measure would generate is very low,  given 
the  small  number  of  EWCs  subject  to  subsidiary  requirements  and  the 
possibility  to  hold  such  meetings  remotely  if  parties  agree  to  do  so. 
Therefore,  it  is  unlikely  that  this  policy  measure  would  influence  in  any 
noticeable way the number of plane rides within the EU, and thus have any 
relevant  environmental  effect  on  carbon  emissions.  The  other  policy 
measures considered clearly have no foreseeable effect on the environment. 

them 

343 See Annex 4 ‘Analytical methods’ for detailed explanations regarding these estimates. As the estimates of overall costs were based on a rather small sample, certain cost components 
were  calculated  based  on  a  different  methodology  for  this  impact  assessment,  to  ensure  that  the  conclusions  drawn  are  sufficiently  robust.  The  results  of  the  two  separate  sets  of 
estimates are consistent, as the elements for which no new calculation was made (in particular, employees’ time dedicated to EWC work) plausibly account for the difference. 

162 

 
 
 
Type of impact and 
relevant 
stakeholder group 

Baseline 

Horizontal considerations for all policy areas 

related  to  EWC  plenary  meetings  is  about  40 500,  which 
corresponds approximately to 0.007% of the over 615 million 
air passengers carried at EU level in the first nine months of 
2023. 
Moreover, as information and consultation bodies, EWCs do 
not  have  co-determination  powers  allowing 
to 
decisively  influence  undertakings’  environmental  policy, 
there  is  no  certain  basis  for  assuming  a  causal  link  between 
their opinions and the content of company decisions. While it 
is  plausible  that  EWCs’  opinions  may  in  certain  cases 
reinforce  or  expedite  measures  to  reduce  undertakings’ 
carbon  footprint,  it  is  not  possible  to  make  any  specific 
assumptions about such effects. 
Given the thresholds set out in the definition of ‘Community-
scale  undertakings’  in  the  recast  Directive,  the  requirements 
under the Directive do not apply to SMEs.  

them 

The  theoretical  possibility  cannot  be  ruled  out  that  the 
consultation  of  EWCs  may  in  some  cases  alter  the  outcome 
of company decisions on transnational matters, with  indirect 
implications  for  SMEs  in  the  supply  chain.  However,  given 
that  EWCs  do  not  have  co-determination  powers  and  the 
specifically  preserves’  management’s 
recast  Directive 
autonomous  decision-making  prerogative, 
is  no 
sufficient  basis  for  making  specific  or  general  assumptions 
about their impacts on SMEs. 
n/a 

there 

163 

Impacts on SMEs 
(indirect economic 
impacts) 

Transposition costs 

No  expected  impacts.  For  similar  reasons  as  set  out  in  the  baseline,  the 
policy options have no foreseeable impacts on SMEs. 

Certain  measures  under  consideration,  such  as  the  requirement  for  a 
reasoned  response  by  management  prior  to  the  adoption  of  a  decision  on 
transnational matters, would improve the conditions for a genuine dialogue 
with  EWCs  on  transnational  matters  and  may  thereby  increase  the 
likelihood  that  EWCs’  opinions  have  an  influence  on  the  content  of 
management  decisions.  However,  there  is  no sufficient  basis  for  assessing 
this hypothetical possibility in terms of  specific indirect economic impacts 
of the policy options. 

While  the  non-legislative  policy  options  2a,  3a,  4a  would  not  require 

 
 
 
Type of impact and 
relevant 
stakeholder group 
for Member States 

Baseline 

Horizontal considerations for all policy areas 

mandatory  transposition  measures,  some  Member  States  may  choose  to 
clarify their national legislation in light of the Commission’s interpretative 
guidance  or  recommendations.344  This  would  entail  the  usual  costs  of  the 
respective  national  legislative  procedure;  there  is  no  indication  that  the 
rules  would  pose  particular 
envisaged  clarifications  of  existing 
implementation challenges. However, there is no sufficient basis for making 
assumptions about the take-up rate of the non-legislative options. 

The  other,  legislative  policy  options  all  involve  measures  –  considering 
also the relevant accompanying measures  – that would require adaptations 
to the national legislation in all or most Member States. In the case of some 
individual  policy  measures,  certain  Member  States  have  already  enacted 
compliant  provisions345  and  would  thus  not  have  to  adopt  additional 
provisions  to  implement  those  particular  measures.346  However,  despite 
such  differences regarding  the  need  for legislative  amendments  in  relation 
to  certain  measures,  there  are  no  grounds  for  assuming  that  transposition 

344 For example, interpretative guidance regarding Art. 7(1), second indent, of the recast Directive under option 2a (to the effect that management’s failure to commence negotiations 
within six months is sufficient to trigger the application of the subsidiary requirements, even if there is no express refusal) might prompt at least some of the 22 Member States that 
transposed the ambiguous wording of the Directive verbatim into their national laws to amend their legislation. 
345 For example, certain Member States already limit the possibility of imposing confidentiality on EWCs to business and trade secrets (AT, DE, FI, HR, HU, LT), to information on the 
financial position of the group or the undertaking, which is not publicly available (FI), information relating to the security and the corresponding security system (FI) and some Member 
States already apply the criterion of a protecting the legitimate interest of the undertaking for applying the confidentiality clause (BG, CZ, SE) or when the “interests of the company so 
demand” (DK). For these Member States, introducing the requirement of confidentiality being required to safeguard the undertaking’s legitimate interest (options 3b and 3c) would not 
entail the need to amend the national law. In contrast, other Member States have transposed Article 8(1) without setting additional conditions for a confidentiality obligation (CY, ES, 
IE, LU, LV, MT, NL, PL, RO, SI, SK). Accordingly, these Member States would have to amend their legislation to implement this element of options 3b and 3c. 
346 For example, under NL law, SNBs are already entitled to the coverage of reasonable legal costs, so the clarification of the recast Directive in this respect (options 2b and 2c) would 
likely  not  require  an  amendment  of  that  national  law.  Such  differences  between  national  EWC  legislations  are  linked  to  the  fact  that  the  recast  Directive  –  in  accordance  with  the 
relevant legal basis – only sets minimum requirements for gradual implementation. 

164 

 
 
 
Type of impact and 
relevant 
stakeholder group 

Baseline 

Horizontal considerations for all policy areas 

costs would vary significantly between Member States for reasons linked to 
the substantive content of the policy options. 

To  the  extent  that,  in  accordance  with  the  relevant  national  law, 
implementing measures in the social policy field require the consultation or 
even agreement of social partners at national level (and taking into account 
the opposing interests and views of social partners in this policy area), the 
most  far-reaching  policy  options  could  entail  greater 
transposition 
challenges.  This would for  example be the case  for option 4c, introducing 
high  maximum  pecuniary  sanctions  and  potentially  disruptive  remedies 
(injunctions against the implementation of management’s decisions).  

The  evidence  gathering  on  transposition  costs  informing  this  impact 
assessment involved interviews with national authorities and experts as well 
as legal analyses of all national frameworks.  It concluded that considering 
the  complexity  of  discussions,  the  large  number  of  stakeholders  involved, 
and the need for consultations with social partners, the transposition could 
be  protracted.  Nevertheless,  given  the  difficulty  to  quantify  the  time  costs 
and 
legal  frameworks,  a  sufficiently  robust 
monetisation of transposition costs proved impossible. 

the  heterogeneity  of 

As the identified challenges are not extraordinary for  legislative initiatives 
in  the  social  policy  field,  it  appears  reasonable  to  assume  that  the 
transposition  costs  would  consist  in  the  usual  costs  of  national  legislative 
procedures in this field. 

165 

 
 
 
 
 
2.  IMPACTS OF POLICY OPTIONS IN POLICY AREA 1 

Type of impact and 
relevant stakeholder 
group 

Economic impacts  

Compliance costs (one-off 
and recurrent) for 
undertakings with 
voluntary agreements  

Baseline 

Policy option 1a 
(removal of exemptions) 

323 undertakings are concerned.  

Average annual costs (recurrent) for running an 
EWC  have  been  estimated  at  ca.  300  000 
EUR,347 representing approximately 0.0012 % of 
the  average  global  turnover  of  Union-scale 
undertakings  with  an  EWC.348  Of  these  costs, 
the  costs  of  one  plenary  meeting,  and  annual 
costs  training  (per  company  with  an  EWC)  are 
estimated 
for  EUR 60.000  on 
average. 

to  account 

(recurrent)  of 
The  average  annual  costs 
operation EWCs or bodies established before the 
recast were estimated in 2008 at €272.000 EUR 
(including  management  and  employee  time).349 
In  today’s  prices,  this  amount  would  be  € 

Negligible. While the option does not require obligatory renegotiation of voluntary 
agreements, the removal of the exemptions can trigger requests for negotiations for 
an  EWC  under  the  Directive.  Per  undertaking  (323  undertakings  are  concerned), 
potential  incremental  costs  of  new  negotiation  represent  a  negligible  share  of  the 
average global turnover for undertakings with an EWC: ca. EUR 148 000 (=0.0006 
%  of  turnover).350  Furthermore,  the  re-negotiations  could  take  place  within  the 
framework of the regular re-negotiation, entailing no or limited costs compared to 
the  baseline.  It  is  not  possible  to  establish  a  reliable  estimation  of  the  number  of 
requests  for  an  EWC,  as  a  result  of  removing  the  exemptions.  Given  the  overall 
positive  view  of  stakeholders  on  the  functioning  of  voluntary  agreements,  new 
negotiations are not expected in all cases. It is also not expected that average costs 
of EWC’s operation under the recast would amount to higher or substantially higher 
costs than those for voluntary agreements.  

347 ICF(2016) estimate adjusted to today’s prices. See Annex 4 ‘Analytical methods’ (Section 4.3).   
348 The estimated annual global turnover for undertakings with EWCs or voluntary agreement is € 24 billion (average) (ICF, 2023). 
349 Impact Assessment 2008 (SEC(2008)2166). The estimate was based on a small number of interviews. No distinction was made between the voluntary (pre-Directive) information 
and consultation bodies and EWCs based on the 1994 Directive. Given the considerable flexibility provided by the Directive, very large range of annual costs was reported by EWCs – 
from as little as €7 500 to €2.3 million/year. 
350 See above table 1. ‘Horizontal clarifications – for all policy areas – regarding certain impact categories’.  

166 

 
 
 
 
 
 
 
 
 
Baseline 

Policy option 1a 
(removal of exemptions) 

Type of impact and 
relevant stakeholder 
group 

Compliance costs (one-off 
and recurrent) for 
undertakings with Article 
14 agreements  

362.070. 
28 undertakings are concerned.  
Average annual costs (recurrent) for EWCs and 
information  and  consultation  bodies  established 
before  the  recast  Directive  were  estimated  in 
2008 €272.000 EUR including management and 
employee  time.  In  today’s  prices,  this  amount 
would be € 362.070.  

Negligible.  Renegotiations  would  be  required  of  undertakings  with  Article  14 
agreements (28) if they do not already comply with the new requirements. Average 
costs  of  renegotiations  as  a  result  of  policy  option  1a  could  not  be  reliably 
estimated.  First,  renegotiation  costs  would  depend  on  length  and  number  of 
meetings  needed.  These  incremental  one-off  costs  are  estimated  to  represent  a 
negligible  share  of  the  average  global  turnover  for  undertakings  with  an  EWC. 
Evidence  suggests  that  a  re-negotiation  process  is  shorter  than  the  process  for 
setting up a new EWC but may require multiple meetings in complex cases. Based 
on  the  available  evidence,  it  was  possible  to  monetise  certain  costs  linked  to 
meetings  (ca.  EUR  18  400  per  meeting351)  between  management  and  EWC 
representatives  for 
the  renegotiation  of  existing  agreements.  This  partial 
monetisation  can  provide  an  indication  of  the  order  of  magnitude  of  the  overall 
costs  related  to  renegotiations,  bearing  in  mind  that  it  should  not  be  taken  as  an 
approximation  of  those  overall  costs.  Second,  the  re-negotiation  could  take  place 
within the framework of the regular re-negotiation taking place on average every 5 
years, entailing no or limited costs compared to the baseline.  
Of the total of 28 undertakings with 14 Agreements, evidence suggests that most of 
them (16 out of 28) are already aligned with the requirements of the recast under the 
baseline scenario.  
Negligible. Ending the exemptions would lead to a simplified and less fragmented 
legal framework at EU level. However, policy option 1a does not alter the voluntary 
nature  of  EWCs.  Therefore,  take  up  of  EWCs  under  the  revised  rules  cannot  be 
reliably  estimated.  It  is  not  expected  that  parties  to  all  323  undertakings  with 

Impacts  on  the  functioning 
of the internal market  

No clear obstacles to the effective functioning of 
the  internal  market  have  been  identified  under 
the baseline. However, the exemptions of certain 
Union-scale  undertakings  from  the  common 

351 See Annex 4 ‘Analytical methods’ (Section 4.3.). The calculation of estimate includes time costs of management and employees, travel and accommodation costs and interpretation 
costs. It does not include do not include certain cost factors, such as the time invested for the preparation of the renegotiation meetings, the costs of possible preparatory meetings prior 
to the renegotiation, some possible overhead costs, and the use of expertise by the EWC and/or the management.   

167 

 
 
Type of impact and 
relevant stakeholder 
group 

Baseline 

Policy option 1a 
(removal of exemptions) 

on 

requirements 

minimum 
transnational 
information  and  consultation  have  created  a 
complex  and  not  entirely  consistent 
legal 
framework 
this  area,  which  would  be 
perpetuated in the baseline scenario. 

in 

Social impacts 
Impacts on social dialogue 
(affecting employees of 
exempted undertakings)   

Impacts on employment 

There 
is  no  conclusive  evidence 
operation of voluntary agreement is ineffective. 

that 

the 

The voluntary agreements are considered by the 
management and EWC representatives as overall 
effective, as long as efforts are made to build a 
the 
good  working 
parties.352 
are 
nevertheless  less  likely  to  define  key  terms  for 
transnational information and consultation, such 
as transnational matters.353  

relationship  between 

agreements 

Voluntary 

is  no  evidence 

There 
the  existing 
exemptions  have  either  positive  or  negative 
effects on the levels of employment. 

that 

voluntary agreements will opt for a new EWC. In any case, the available evidence 
does not suggest large differences in overall functioning and operational costs of the 
voluntary agreements and EWCs agreements.   

Positive.  While  there  is  no  conclusive  evidence  that  the  operation  of  voluntary 
agreements  is less  effective  than of  agreements  under  the recast  Directive,  ending 
the  exemptions  would  ensure  the  equal  application  of  minimum  rights  and 
obligations  to  Union  scale  undertakings  and  their  EU  employees.  Contrary  to 
voluntary  agreements,  rights  of  EWCs  subject  to  the  Directive  are  enforceable 
under EU law. Ca. 5.4 million employees354 could benefit from this alignment of the 
minimum  rights  in  case  all  undertakings  with  voluntary  agreements  (323)  would 
instead establish EWCs operating under the recast Directive. In the  online survey, 
employee/EWC  representatives  were  overwhelmingly  in  favour  of  removing  the 
exemptions  (81.7%)  compared  to  only  13.2%  of  respondents  on  behalf  of 
management (see Annex 2). 

Inconclusive. Despite the general evidence that well-functioning EWCs can deliver 
tangible  economic  benefits  to  undertakings,  there  is  no  sufficient  basis  for 
concluding that the removal of the exemptions will affect employment. Such effects 
depend on various uncertain factors external to this initiative, such as the dynamics 
and  functioning  of  social  dialogue  in  the  respective  undertaking,  and  whether 
parties choose to set up an EWC instead of a ‘voluntary agreement’ on transnational 

352 ICF(2023), Section 4.2.1.1. 
353 De Spiegelaere S. (ETUI) (2016) ‘Too little, too late? Evaluating the European Works Councils Recast Directive’, p. 58 and 64. Available online.  
354 Estimated average number of EU employees per undertakings with an EWC is 16.600. Cf. Annex 4. 

168 

 
 
 
Type of impact and 
relevant stakeholder 
group 

Impacts on competitiveness 
Impacts  on  cost  and  price 
competitiveness  (exempted 
undertakings) 

Impacts  on 
international 
competitiveness  (exempted 
undertakings) 

Impacts  on  the  capacity  to 
innovate 
(exempted undertakings) 

Baseline 

Policy option 1a 
(removal of exemptions) 

information and consultation. 

No such impacts identified under the baseline  
The  ratio  between  the  average  annual  turnover 
information  and 
of  companies  with  an 
consultation 
voluntary 
agreement)  and  the  costs  of  setting  up  and 
information  and 
the  EWCs  or 
running 
consultation body is extremely low.  

(EWC 

body 

or 

Negligible. The possible compliance costs for businesses represent a small share of 
the average turnover. The estimated average costs of setting up an EWC (one-off) 
accounts  for  ca.  0.0006%  of  the  average  global  turnover  of  undertakings  with  an 
EWC, and the estimated average costs of operating an EWC (recurrent) account for 
ca.  0.0012%  of  that  turnover.  There  is  no  indication  that  replacing  voluntary 
agreements  with  EWC  agreements  would  lead  to  substantial  increases  in  the 
operating costs. The time spent in the re-negotiations should also be limited.  

There is no evidence that the procedure of establishment or an operation of an EWC 
under the recast Directive would negatively impact competitiveness of companies. 
On  the  other  hand,  studies  have  shown that  a  structured  employee involvement  is 
linked  to  better  establishment  performance.355  Nevertheless,  potential  positive 
impacts  of  the  policy  option  1a  on  competitiveness  of  companies  cannot  be 
estimated with any degree of certainty.   

 Potential better enforceability if agreements are renegotiated under Union rules.  

the  right 

Impacts on fundamental rights  
Impact  on 
to 
information 
and 
to 
consultation 
access  to  justice  and  an 
remedy 
effective 
(employees 
in  exempted 
undertakings) 

right 

/ 

See description of baseline social impacts.  

Potential  challenges  regarding  access  to  justice 
and  effective  remedies,  due  to  a  lack  of  a 
binding minimum requirements 

355 Eurofound (2019) European Company Survey 2019, Workplace practices unlocking employee potential. 

169 

 
 
 
 
 
 
 
 
 
3.  IMPACTS OF POLICY OPTIONS IN POLICY AREA 2 

Type of impact and 
relevant stakeholder 
group 

Economic impacts  

Compliance  costs  for 
undertakings 
setting 
up an EWC (one-off) 

Baseline 

Policy option 2a  

Policy option 2b 

Policy option 2c 

(Interpretative guidance, voluntary) 

(resourcing of SNBs, legal costs) 

(option 2b + objective of gender 
balance) 

the 
The  undertaking  bears 
costs  of  setting-up  of 
the 
EWCs (setting up SNB, cost of 
training 
meetings,  expertise, 
for  employee  representatives, 
and  any  other  necessary  costs 
related  to  the  negotiations  of 
the EWC agreement.)  

or 

EWCs 
transnational 
information  and  consultation 
bodies  have  been  established 
in 
Union-scale 
undertakings (of those 644 are 
EWCs  under  the  recast  or 
previous 1994 Directive). It is 

1001 

Possible  negligible  costs.  Recourse 
to  an  interpretative  guidance  could 
lead to negligible additional costs, in 
particular  legal  costs,  compared  to 
the  baseline.  The  option  could at the 
same 
to  reduction  of 
disputes.  The  lack  of  data  does  not 
allow for precise estimations.  

time 

lead 

certain 
by 

Possible  negligible  costs.  Policy 
option  2b  could  lead  to  higher 
negotiation  costs  for  the  setting-up 
of  future  EWCs  compared  to  the 
baseline, as well as possible partial 
costs 
redistribution  of 
previously 
other 
borne 
stakeholders  –  in  particular  trade 
unions  –  to  undertakings.  Indeed, 
the  legal  clarification  that  central 
management 
bear 
have 
reasonable  costs  of  legal  advice 
only exists in NL and it is therefore 
possible  that  such  clarification  at 
EU-level  would  lead  to  additional 

to 

to 

Possible  negligible  costs.  For 
access 
the 
impact is the same as under option 
2b. 

legal  expertise, 

In  addition  under  this  option, 
improving  the  gender  equality  in 
the  composition  of  the  EWCs  is 
not  expected 
to  generate  any 
additional  compliance  costs.  The 
option  avoids  creating  a  binding 
quota,  as  the  latter  could  lead  to 
implementation challenges.360  

360  A  majority  of  EWC  representatives  and  of  management representatives  is  against  setting binding  gender  quotas  in  the  EU  legal  framework,  as  this  could  create  implementation 
challenges in certain sectors. Even in companies where the share of the workforce is more balanced, there might not be enough employees of the underrepresented gender interested in 
being an EWC member. The composition of the EWC depends on the different systems for selecting EWC representatives at the national level. 

170 

 
 
 
 
Type of impact and 
relevant stakeholder 
group 

Baseline 

Policy option 2a  

Policy option 2b 

Policy option 2c 

(Interpretative guidance, voluntary) 

(resourcing of SNBs, legal costs) 

(option 2b + objective of gender 
balance) 

estimated  that,  in  2023,  3.970 
eligible companies with a total 
of  31.7  million  employees 
operated in the EU/EEA.  

It is estimated that new EWCs 
will be created at a rate of ca. 
20  per  year  over  the  baseline 
period.356 Taking into account 
dissolution  of  EWCs,  mainly 
due to restructuring (mergers), 
is 
net  annual  growth  rate 
estimated 9 EWCs. 

The  average  overall  costs  per 
negotiation  were  estimated  at 
EUR 148.000357 
ca. 
representing 
approximately 
0.0006 % of the average global 
turnover 
Union-scale 
of 
undertakings with an EWC358. 

requests  for 
legal  advice  from 
employees’  representatives  in  the 
future.  The  evidence  suggests  that 
policy  option  2b  would  ensure 
some  reduction  of  frequency  of 
issues  associated  with  unclear 
resourcing  of  SNBs 
to  cover 
reasonable  legal  costs359.  Although 
the lack of data does not allow for a 
precise  estimation  of  these  costs, 
they  should  be  limited  given  the 
the 
small 
negotiation  costs  compared  to  the 
global annual turnover. The costs of 
setting up as a share of the average 
global  turnover  are  estimated  at 
0.0006 % (one-off). 

average 

share 

of 

356 ICF(2023), Annex – Section 3 (Data mapping). 
357ICF, 2016, estimates adjusted to today’s prices. See Annex 4 (Section 4.3.).    
358 The estimated annual global turnover for undertakings with EWCs or voluntary agreement is € 24 billion (average) (ICF, 2023).  
359 ICF(2023), Section 4.2.1.2. 

171 

 
 
 
 
 
 
Type of impact and 
relevant stakeholder 
group 

Baseline 

Policy option 2a  

Policy option 2b 

Policy option 2c 

(Interpretative guidance, voluntary) 

(resourcing of SNBs, legal costs) 

(option 2b + objective of gender 
balance) 

43.8%  (102  out  of  233)  of 
survey 
have 
respondents 
reported  issues  during  the  set-
up  phase  (majority  of  those 
employee 
were 
only 
representatives; 
2 
managers).  Of 
employee 
representatives  who  reported 
issues,  76  %  raised  issue  of 
lack  of  expertise.  No  data  is 
available  on  coverage  of  legal 
costs specifically. 
678 
been 
established under the Directive 
(including  the  recast  Directive 
and 1994 Directive). 

EWCs 

have 

They  are 
renegotiated  on 
average  every  5  years.361 
Average costs of renegotiation 
reliably 
could 
not 
quantified.362 
Evidence 

be 

Compliance 
cost 
(adjustment  costs)  for 
undertakings  with  an 
EWC 
existing 
(recurrent) 

Negligible  costs.  Although  policy 
option  2a  aims  to  apply  to  future 
procedures for setting up of an EWC, 
the  guidance  could  potentially  also 
bring  benefits  for  EWCs  (613)364 
renegotiating  their  agreements  with 
an  SNB. 
the 
According 
evidence 
gathered365, the EWC agreements are 

involvement  of 
the 
to 

Negligible  costs.  Although  policy 
option  2b  would  only  apply  to 
future  procedures  for  setting  up  of 
an  EWC,  it  will  also  apply  to  the 
renegotiations  of  EWC  agreements 
(613),  where  such  renegotiations 
involve  a  setting  up  of  an  SNB.  In 
the  absence  of  any  data  about  the 
having 
number 

SNBs 

of 

Negligible costs. Although policy 
option  2c  would  mainly  apply  to 
future procedures for setting up of 
an  EWC,  it  will also  apply  to  the 
renegotiations involving a SNB.  

For  access  to  legal  expertise,  the 
impact  is  the  same  under  option 
2b. 

361 ICF(2023), Annex I – Section 3 (Data mapping). 
362 Based on the available evidence, it was possible to monetise certain costs linked to meetings (ca. EUR 18 400 per meeting) between management and EWC representatives for the 
renegotiation of existing agreements. This partial monetisation can provide an indication of the order of magnitude of the overall costs related to renegotiations, bearing in mind that it 
should not be taken as an approximation of those overall costs (see Annex 4 Section 4.3.). 

172 

 
 
Type of impact and 
relevant stakeholder 
group 

Baseline 

Policy option 2a  

Policy option 2b 

Policy option 2c 

(option 2b + objective of gender 
balance) 

with 

In  addition,  under  this  option, 
compliance 
new 
requirements  for  gender  balance 
will  be  part  of  the  regular  re-
negotiation of agreements (i.e. no 
specific  renegotiation  would  be 
required),  implying  no  additional 
costs against the baseline.  

(Interpretative guidance, voluntary) 

(resourcing of SNBs, legal costs) 

experienced issues due to a lack of 
access  to  legal  expertise,  it  is  not 
possible to monetise this impact. 

that 

those 

 However,  it  can  be  reasonably 
assumed 
incremental 
costs would only represent a limited 
share  of  the  current  re-negotiation 
costs, which are assumed to be very 
limited  compared  to  the  average 
global annual turnover.  

suggests  that  a  re-negotiation 
process  is  overall  shorter  than 
the  process  for  setting  up  a 
new  EWC  but  may  entail 
several  meetings 
in  more 
complex cases.  

Undertakings  bear  operating 
expenses  of  EWCs.  The  EWC 
the 
determine 
agreements 
financial 
material 
and 
resources to be allocated to the 
EWC.  (In  absence  of  EWC 
subsidiary 
agreement, 
requirements 
provide 
minimum  requirements  with 
regard to coverage of costs by 
the  management).  There  is  no 
available evidence on potential 
lack  of  resources  of  employee 
representatives 
during 
renegotiations. 

limit 

small 

share  of 

and 
it 

this  guidance  could 

required 
is  not  possible 

renegotiated  every  five  years  on 
average.  However,  it  is  likely  that 
only 
these 
a 
involves  an  SNB. 
renegotiations 
Furthermore,  the  non-binding  status 
of 
its 
effects.  In  the  absence  of  relevant 
legal  costs,  share  of 
data  (e.g. 
renegotiations  not  provided  with  the 
legal 
necessary 
expertise), 
to 
monetise the impact. However, it can 
be  reasonably  assumed  that  those 
costs  would 
incremental 
only 
represent  a 
limited  share  of  the 
current  re-negotiation  costs,  which 
to  be  very 
are  assumed 
limited 
compared 
the  average  global 
to 
turnover  of  Union-scale 
annual 
undertakings  and  would  concern  a 
very  limited  number  of  undertakings 
due  to  the  non-binding  status  of  the 

364 While the total number of EWCs based on agreements is estimated at ca. 678, the legal requirement on central management to bear reasonable costs of legal advice exists in NL and 
it is therefore expected that impacts would not occur in relation to undertakings with EWCs (ca. 65) established under the NL legislation. 
365 ICF(2023), Annex – Section 3 (Data mapping). 

173 

 
 
 
Type of impact and 
relevant stakeholder 
group 

Baseline 

Policy option 2a  

Policy option 2b 

Policy option 2c 

(Interpretative guidance, voluntary) 

(resourcing of SNBs, legal costs) 

(option 2b + objective of gender 
balance) 

Composition  of  EWCs  is  not 
gender-balanced 
in  most 
EWCs.  In  the  ICF  survey,363 
62 % of respondents indicated 
that  men  account  for  more 
than  60  %  of  their  EWC 
members.  A  mere  2  % 
reported the same for women. 
The  costs  of  setting  up  EWCs 
are negligible in relation to the 
turnover of the companies.  

Improved 
efficiency 
benefit) 
undertakings 
up an EWC 

market 
(direct 
for 
setting 

guidance.  

Negligible  benefits.  During 
the 
setting  up  of  a  new  EWC  (20 
undertakings/year)  or  renegotiations 
of  existing  EWCs  agreements,  the 
interpretative  guidance  could  speed 
up  the  negotiation  process  to  some 
extent  and 
thereby  reduce  costs 
slightly,  as  the  number  of  meetings 
or  disputes  could  be  marginally 
reduced.  However,  the  non-binding 
nature  of  the  guidance  limits  its 
potential  effects.  Given  the  overall 
negligible  costs  in  comparison  to 
turnover,  the  potential  benefits  are 
negligible.   

from 

Negligible  benefits.  During 
the 
setting  up  of  a  new  EWC  (20 
undertakings/year) 
or 
renegotiations  of  existing  EWCs 
agreements, the undertakings would 
benefit 
legal  clarify 
the 
provided  by  policy  option  2a 
regarding  the  coverage  of  SNB’s 
legal 
SNBs 
costs.  Where 
experience legal problem during the 
negotiation, this legal clarity would 
allow  for  ensuring  the  required 
legal 
avoiding 
discussions  about  the  scope  of  the 
that  are  covered, 
SNB’s  costs 
efficient 
a  more 
leading 

expertise 

and 

to 

Negligible 
impacts as under option 2b. 

benefits. 

Same 

No  significant  direct  impacts  on 
market  efficiency  are  expected  as 
a result of an objective of gender-
balanced  composition  of  EWCs. 
Overall,  studies  have  found  a 
between 
relationship 
positive 
female 
and 
representation 
business  performance.366  There 
can  be  a  potential  indirect  link 
between  a  more  gender-balanced 
composition  of  information  and 
the 
consultation  bodies 

and 

363 ICF(2023), section 5.1.2.1. 
366 European Parliament (2021). 'Women on Boards Policies in Member States and the Effects on Corporate Governance'.  

174 

 
 
Type of impact and 
relevant stakeholder 
group 

Social impacts 

Establishment of social 
dialogue  (impacts  on 
workers 
and 
undertakings)  

Baseline 

Policy option 2a  

Policy option 2b 

Policy option 2c 

(Interpretative guidance, voluntary) 

(resourcing of SNBs, legal costs) 

its 

negotiation. 
nature 
By 
(uncertainty  about  need  for  legal 
assistance),  the  magnitude  of  this 
be 
cannot 
impact 
positive 
quantified.  Given 
the  overall 
negligible  costs  in  comparison  to 
turnover,  the  potential  benefits  are 
expected to be also negligible. 

(option 2b + objective of gender 
balance) 

performance of companies. 

or 

1001 

transnational 
EWCs 
information  and  consultation 
bodies  have  been  established 
in 
Union-scale 
undertakings (of those 644 are 
EWCs  under 
the  recast  or 
previous  1994  Directive).  It  is 
estimated  that,  in  2023,  3.970 
eligible companies with a total 
of  31.7  million  employees 
operate in the EU/EEA.  

It is estimated that new EWCs 
will be created at a rate of ca. 

Limited  benefits.  The  interpretative 
guidance  under  policy  option  2a  is 
likely  to  reduce the  time  needed  and 
contribute  to  a  smoother  process  of 
setting  up  of  EWCs,  or  of 
renegotiating  existing  agreements.  A 
better 
smoother 
negotiating process could also benefit 
companies  /  management.  However, 
the  positive 
could  be 
hampered  by  the  non-binding  status 
of  policy  option  2a.  In  addition, 
given the overall low number of legal 
disputes  in  this  policy  area,  the 

informed, 

effects 

Moderate  benefits.  Policy  option 
2b  would  allow  a  better  access  for 
workers’  representatives  to  legal 
advice  and  expertise  during  the 
negotiation  or  renegotiation  phase. 
Despite  the  binding  nature  of  the 
measure, 
the  overall  expected 
impact  is  moderate  (the  scale  of 
issues  with  regard  to  coverage  of 
legal costs for SNBs is not known, 
but legal disputes  across the policy 
area  are  not  frequent368).  A  better 
smoother  negotiating 
informed, 
benefit 
could 
process 

also 

Moderate benefits. Same impacts 
as  under  option  2b  as  regards 
access to legal expertise.  

of 

No  substantial  impacts  on  the 
establishment  of  EWCs 
are 
result  of  an 
expected  as  a 
objective 
gender-balanced 
composition of EWCs. Where not 
possible  to  reach  the  objective  of 
40  % 
for  under-represented 
gender  (for  example,  due  to  the 
lack  of  candidates  for  an  EWC 
function), the establishment of the 

175 

 
 
Type of impact and 
relevant stakeholder 
group 

Baseline 

Policy option 2a  

Policy option 2b 

Policy option 2c 

20  per  year  over  the  baseline 
period.367  Taking  into  account 
dissolution  of  EWCs,  mainly 
due to restructuring (mergers), 
net  annual  growth  rate 
is 
estimated 9 EWCs. 

43.8%  (102  out  of  233)  of 
survey 
have 
respondents 
reported issues during the set-
up  phase  (majority  of  those 
employee 
were 
only 
representatives; 
2 
managers).  Of 
employee 
representatives  who  reported 
issues,  76  %  raised  issue  of 
lack  of  expertise.  No  data  is 
available on coverage of legal 
costs specifically.  
43.8%  (102  out  of  233)  of 
survey 
have 
respondents 
reported  issues  during  the  set-

Quality 
social 
of 
dialogue  (impacts  on 
and 
workers 

(Interpretative guidance, voluntary) 

(resourcing of SNBs, legal costs) 

impacts  under 
expected to be limited.   

this  option  are 

companies  /  management  (reduced 
risk 
reduced 
disputes, 
of 
opportunity costs). 

(option 2b + objective of gender 
balance) 

EWC would not be prevented. 

In  light  of  research  showing  the 
effects  of  gender 
beneficial 
balance369, option 2c could have a 
positive  effect  on  the  quality  of 
EWCs’ non-binding opinions, and 
thus  indirectly  on  management 
decisions on transnational matters, 
potentially 
fostering  working 
conditions in some cases.  

Moderate  benefits.  By  its  positive 
impact  on 
the  negotiation  or 
renegotiation  process,  policy  option 

Moderate  benefits.  The  better 
access  to  legal  expertise  should 
positively impact the quality of the 

Significant 
Same 
impacts  as  under  option  2b  as 

benefits. 

368 National jurisprudence on EWC-related matters is limited (160 national cases since 1996) and fragmented per type of issue (some cases concern functioning of the agreement, some 
the set-up phase, some concern individual rights of employee representatives or trade union rights). 
367 ICF(2023), Annex I – Section 3 (Data mapping). 
369 See e.g. the findings of the European Institute for Gender Equality (EIGE) in a large scale 2017 study on ‘Economic Benefits of Gender Equality in the European Union’. 

176 

 
 
 
Type of impact and 
relevant stakeholder 
group 

undertakings)  

Baseline 

Policy option 2a  

Policy option 2b 

Policy option 2c 

(Interpretative guidance, voluntary) 

(resourcing of SNBs, legal costs) 

future  EWC  agreements.  Such 
impacts cannot be quantified due to 
the  lack  of  data  on  coverage  of 
legal  costs  of  SNBs,  but  are 
expected  to  be  moderate,  as  the 
policy  measure  would  increase  the 
balance 
the 
(re)negotiation. 

powers 

of 

in 

improve 

indirectly 

2a  could 
the 
quality  of  the  future  or  renegotiated 
EWC agreements. It could also lead a 
better  gender-equality  within  these 
EWCs.  However,  the  magnitude  of 
these  effects  would  depend  on  to 
what  extend  this  guidance  will  be 
the 
into 
taken 
stakeholders.  

account 

by 

up  phase  (majority  of  those 
employee 
were 
representatives; 
2 
only 
employee 
managers).  Of 
representatives  who  reported 
issues,  76  %  raised  issue  of 
lack  of  expertise.  No  data  is 
available  on  coverage  of  legal 
costs specifically. 

Most  negotiations  result 
in 
EWC  agreements  (only  20 
EWCs  operate  on  the  basis  of 
subsidiary requirements). 

of 

the  existing 
a 

rules 
Despite 
balanced 
requiring 
EWCs, 
representation 
to 
including  with 
gender, 
gender 
the 
composition  of  the  EWCs  is 
strongly  skewed  in  favour  of 
men.370 

regard 

(option 2b + objective of gender 
balance) 

regards access to legal expertise.  

Policy  option  2c  would  also  lead 
to  a  better  gender  balance  in 
current371  and  future  EWCs  and 
their  select  committees,  leading 
also  to  a  better  representation  of 
workforce in terms of professions 
represented in EWCs (women and 
represent 
men  may 
typically 
different  professions 
in  some 
sectors). Around 60 % of existing 
EWCs  could  benefit  from  this 
measure.  Overall,  it  is  estimated 
that 
balanced 
more 
representation of EWCs would be 
beneficial for the workforce of the 
company  as  a  whole  and  would 
indirect  wider  social 
lead 
benefits.     

to 

a 

370 In the 2023 ICF survey, 62 % of respondents indicated that men account for than 60 % of their EWC members. A mere 2 % reported the same for women. 24 % of respondents said 
that each gender was equally represented in their EWC. 

177 

 
 
 
 
 
Type of impact and 
relevant stakeholder 
group 

Impacts 
employment 

on 

Baseline 

Policy option 2a  

Policy option 2b 

Policy option 2c 

(Interpretative guidance, voluntary) 

(resourcing of SNBs, legal costs) 

(option 2b + objective of gender 
balance) 

Well-functioning  EWCs  can 
have positive impacts not only 
on  workers’  well-being,  but 
also  on  labour  productivity  as 
well  as  on  firms’  profitability. 
It 
to 
is  however  difficult 
attribute  specific  outcomes  in 
terms  of  employment  to  the 
rules  governing  the  setting-up 
of EWCs. 

Inconclusive.  There  is  insufficient 
evidence  to  support  any  predictions 
regarding  impacts  of  option  2a  on 
employment.  

regarding 

increased 
Inconclusive.  While 
legal 
the 
certainty 
process  for  setting  up  EWCs  could 
deliver certain cost savings, there is 
no  indication  that  such  economic 
benefits  would  be  sufficient 
to 
translate into increased employment 
levels. 

Impacts on competitiveness 

Impact  on  cost  and 
price competitiveness / 
on 
international 
competitiveness  /  on 
to 
capacity 
the 

identified 

No  such 
impacts 
under the baseline. 
The  ratio  between  the  average 
annual  turnover  of  companies 
and 
with 

information 

an 

Null.  Policy  option  2a  could  entail 
only negligible costs for undertakings 
when setting up an EWC. 

possibly 

Null.  Although  policy  option  2b 
limited 
could 
additional  negotiation  costs  in  the 
future, the expected impact remains 
negligible  in  comparison  to  the 

entail 

371 The evidence gathered indicates that EWC agreements are renegotiated every 5 years. Based on this, each EWC agreements will comply with the gender balance requirements within 
the reference period of 10 years.   
372 See e.g. the findings of the European Institute for Gender Equality (EIGE) in a large scale 2017 study on ‘Economic Benefits of Gender Equality in the European Union’. 

178 

Limited.  It  can  be  expected, 
considering 
research 
demonstrating  economic  benefits 
of  gender  balance  in  relation  to 
various aspects of the economy372, 
that  increased  gender  balance  on 
EWCs  will 
in 
the  general 
conjunction  with 
benefits  of  a  more  effective 
consultation 
information 
and 
process  described 
to 
above, 
delivering  benefits  such  as  a 
higher  level  of  employment  and 
productivity. 
benefits 
however cannot be quantified. 

contribute, 

These 

showing 

Limited. Given the evidence from 
positive 
studies 
female 
relationship 
representation 
business 
performance,  and  the  potential 

a 
between 
and 

 
 
Baseline 

Policy option 2a  

Policy option 2b 

Policy option 2c 

(Interpretative guidance, voluntary) 

(resourcing of SNBs, legal costs) 

worldwide  or  EU  turnover.  These 
limited  additional  costs  would  not 
have any impacts on costs and price 
competitiveness.  

(option 2b + objective of gender 
balance) 

contribution  of  more  gender-
balanced  EWCs  to  the  quality  of 
management  decisions, 
is 
plausible  that  option  2c  might 
somewhat  contribute  to  fostering 
companies’ competitiveness.  

it 

Null.  Policy  option  2a  could  entail 
only negligible costs for undertakings 
with  an  existing  EWC  during 
renegotiation. 

Null. Policy option 2b would entail 
only 
for 
undertakings with an existing EWC 
during renegotiations. 

negligible 

costs 

Type of impact and 
relevant stakeholder 
group 

innovate 
undertakings 
up an EWC 

for 
setting 

Impact  on  cost  and 
price competitiveness / 
on 
international 
competitiveness  /  on 
to 
the 
capacity 
innovate 
for 
undertakings  with  an 
existing EWC 

turnover 

identified 

consultation  body  (EWC  or 
voluntary  agreement)  and  the 
costs of setting up of EWCs is 
extremely  low.  The  costs  of 
setting  up  as  a  share  of  the 
average  global 
is 
estimated  at  0.0006  %  (one-
off).  
No  such 
impacts 
under the baseline. 
The  ratio  between  the  average 
annual  turnover  of  companies 
with 
and 
consultation  body  (EWC  or 
voluntary  agreement)  and  the 
renegotiation  of 
costs  of 
EWCs  is  extremely  low  (cf. 
cost 
‘Compliance 
above 
for 
costs) 
(adjustment 
undertakings  with  an  existing 
EWC (recurrent)’). 

information 

an 

showing 

a 
between 
and 

Limited. Given the evidence from 
positive 
studies 
relationship 
female 
business 
representation 
performance,  and  the  potential 
contribution  of  more  gender-
balanced  EWCs  to  the  quality  of 
is 
management  decisions, 
plausible  that  option  2c  might 
somewhat  contribute  to  fostering 
companies’ competitiveness.  

it 

Significant 
impacts as under option 2b.  

benefits. 

Same 

Impacts on fundamental rights  

Impact on the principle 
of  workers’  right  to 
information 
and 
consultation within the 
undertaking  /  right  to 

See  description  of  baseline 
social impacts. 
Potential  challenges  regarding 
access  to  justice  and  effective 
remedies  during  the  set  up  or 

Limited  benefits.  Policy  option  2a 
would further improve the quality of 
the  future  setting-up  of  EWC  and 
their  resulting  agreements  (including 
by 
during 

renegotiations), 

the 

179 

Significant  benefits.  Policy  option 
2b  would  further 
the 
quality  of  the  future  setting-up  of 
resulting 
EWC 
agreements  (including  when  they 

improve 

their 

and 

 
 
Type of impact and 
relevant stakeholder 
group 

access to justice and an 
remedy
effective 

Baseline 

Policy option 2a  

Policy option 2b 

Policy option 2c 

(Interpretative guidance, voluntary) 

(resourcing of SNBs, legal costs) 

(option 2b + objective of gender 
balance) 

renegotiation  phase  can  also 
relate to a lack of resources to 
cover  legal  costs  of  employee 
representatives or SNBs.  

facilitating  SNBs’  or  employees 
representatives’ 
legal 
advice. Given the non-binding nature 
of  the  measure,  the  positive  impact 
on these is likely to be limited.   

access 

to 

by 

costs 

renegotiated) 

incurred  by 

are 
legally 
ensuring the coverage of reasonable 
legal 
the 
employee  representatives  in  the  set 
up  or  the  renegotiation  phases. 
Such  measure  would  positively 
contribute  to  the  quality  of  the 
resulting 
dialogue  and  of 
agreements, and also to the capacity 
of  employee 
to 
representatives 
access legal advice and justice.   

the 

Null.  Policy  option  2b  does  not 
provide  for  any  measure  related  to 
achieving 
gender 
composition of EWCs.  

balanced 

a 

on 
of 

the 
Impact 
principles 
non-
discrimination  and  of 
equality  between  men 
and women 

See  description  of  baseline 
social  impacts.  The  existing 
lack 
gender-balanced 
composition  of  most  EWCs 
would persist.  

of 

Although 

Negligible. 
the 
interpretative  guidance  provides  for 
clarifications about how to achieve a 
balanced  gender  composition  of 
EWCs,  it  will  not  be  binding  and 
does not set a concrete objective.  

180 

there 

Moderate.  While 
is  no 
evidence  of  discrimination  on 
grounds  of  sex  as such  in EWCs, 
the  measure  would  recognise  that 
women  may  not  be  in  the  same 
“starting 
as  men, 
position” 
especially in certain sectors where 
operate 
mostly 
EWCs 
chemical, 
(manufacturing, 
construction). 
gender 
balance  objectives  would  entail 
positive  impacts  in  favour  of  a 
more  equitable  environment  in 
EWCs  and  contribute  to  better 
and 
equality 
women. 

between  men 

Setting 

 
 
  
 
 
 
4.  IMPACTS OF POLICY OPTIONS IN POLICY AREA 3 

Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

Economic impacts  

Adjustment  costs 
(one-off) 
for 
undertakings with 
EWC: 
renegotiation 
costs 

the  baseline  scenario, 
Under 
EWC  agreements  are  estimated 
to  be  renegotiated  on  average 
ca. every five years373.  

be 

not 

Average  costs  of  renegotiation 
could 
reliably 
quantified.374  Evidence  suggests 
that  a  re-negotiation  process  is 
overall  shorter  than  the  process 
for  setting  up  a  new  EWC  but 
may  entail  several  meetings  in 
more complex cases.  

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

the 

Negligible.  It  is  unlikely 
non-binding 
that 
interpretative 
guidance 
would  prompt  additional 
rounds  of  renegotiation  in 
a  significant  number  of 
in 
undertakings.  Even 
cases 
such 
where 
renegotiations  would  take 
place,  they  would account 
only for a negligible share 
of  undertakings’  global 
turnover. 

instance, 

Negligible.  Some  of  the  measures 
under  policy  option  3b  would  require 
an  adaptation  of  existing  EWC 
agreements  in  order  align  them  with 
the new requirements under the revised 
recast  Directive.  For 
the 
requirement  for  these  agreements  to 
address  the  question  of  access 
to 
expertise,  coverage  of  training  costs 
(including  expenses)  and  legal  costs 
would necessitate renegotiations where 
those issues are not already covered. In 
the  absence  of  detailed  information 
about  the  content  of  all  existing  EWC 
agreements,  it  is  however  not  possible 

Negligible  to  moderate.  Policy  option 
3c  covers  the  same  measures  as  policy 
option 3b, except for:  
-  the  concept  of  transnational  matters 
where  policy  option  3c  provides  for  an 
extension  of 
the  concept  and  a 
requirement  for  management  to  justify 
that  a  matter  is  not  transnational  if  it 
disputes  the  need  to  inform  and  consult 
the EWC on that ground; 
-  a  more  far-reaching  right  of  EWCs  to 
involve  experts  of  their  choice  at  the 
cost of the undertakings; 
-  stricter  limitations  of  undertakings’ 
impose  confidentiality  of 
right 

to 

373 See Section 4.5. of Annex 4.  
374 Based on the available evidence, it was possible to monetise certain costs linked to meetings (ca. EUR 18 400 per meeting) between management and EWC representatives for the 
renegotiation of existing agreements. This partial monetisation can provide an indication of the order of magnitude of the overall costs related to renegotiations, bearing in mind that it 
should not be taken as an approximation of those overall costs (see Annex 4 Section 4.3.). 

181 

 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

to  estimate  with  certainty  the  number 
of undertakings that would have to set 
up renegotiations.375  

information  or  withhold 
from EWCs. 

information 

that  EWC  agreements  are 
Given 
revised on average every five years and 
that 
there  would  be  a  period  of 
deferred  application  of  the  revised 
the 
is 
requirements, 
necessary 
of  EWC 
adaptations 
agreements  to  align  with  the  changes 
envisaged under policy option 3b could 
in some cases be agreed as part of the 
regular renegotiation process, entailing 

likely 

that 

it 

make 

According to the evidence gathered, it is 
possible  that  these  additional  measures 
would 
renegotiations 
incrementally  more  expensive  as  social 
partners  who  seek 
their 
revised 
with 
agreements 
requirements  may  require  more  time  to 
agree  on  how  to  reflect  them  in  their 
agreement.  

to  align 

the 

On  the  other  hand,  and  as  for  policy 

375 Previous studies and available evidence provide some indications that a vast majority of agreements, including the voluntary (pre-Directive) agreements do include clauses on the 
coverage of at least some types of expenses. For instance, according to the 2016 KU Leuven study, 95 % of EWC agreements provide that the company will cover the basic expenses of 
EWC  activity,  such  as  travel and  accommodation  costs,  administrative  assistance  and  communication  facilities  linked  to  the  operation of  the  EWC  (see  Pulignano  V.,  Turk  J. (KU 
Leuven) (2016), op. cit., p. 53). Similarly, a 2015 ETUI study revealed that 74% agreements provide a general statement of cost coverage – complemented by some specific mentions of 
various costs covered – while the remaining 26% have a limited list of expenses covered (see De Spiegelaere S., Jagodzinski R. (ETUI) (2015), op. cit., p. 40.). Provisions guaranteeing 
independent financial resources have been introduced in some EWC agreements, but this seems to be very rare. In contrast, the EWC database of ETUI shows that most agreements 
contain provisions on the EWC’s right to solicit expert advice (almost 70% of EWC agreements, with over 80% of these agreements providing for the choice of an independent external 
expert, around 18% referring to an in-company and/or independent expert, and less than 2% allowing only for support by an in-company expert) and right to training (according to De 
Spiegelaere S. (ETUI)(2016) op.cit., p. 54, the right to training was included in 58 % of the agreements signed.). 

182 

 
 
 
 
 
 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

option  3b,  even  with  a  high  number  of 
meetings,  the  renegotiation  costs  would 
represent  a  small  share  of  the  turnover 
for companies. Furthermore, it cannot be 
excluded  that  the  renegotiation  due  to 
policy  option  3c  would  take  place  as 
part of the regular renegotiation process, 
entailing no or more limited costs. 

no  or  only  very  limited  additional 
renegotiation  costs  compared  to  the 
baseline.  

rounds 

additional 

In  any  case,  despite  the  fact  that 
renegotiations  could  be  complex  on 
certain  issues  such  as  the  coverage  of 
costs  of  expertise,  the  costs  linked  to 
of 
possible 
renegotiations  would  in  represent  only 
a  negligible  share  of  undertakings’ 
turnover,  even  if  they  should  involve 
in  cases 
several  meetings:  even 
involving 
meetings 
several 
(monetisation of certain costs linked to 
meetings  resulted  at  ca.  EUR  18  400 
per  meeting376), 
of 
renegotiation  costs  are  expected  to  be 
very  limited  in  comparison  to  the 
global annual turnover.   

costs 

the 

376 See Annex 4 (Section 4.4.) 

183 

 
 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

Adjustment  costs 
(recurrent) 
for 
undertakings with 
EWC:  costs  of 
operating EWCs 

to 

indicated 

the  evidence 
According 
gathered377,  43%  of  employees’ 
representatives 
they 
have  already  had  problems 
related  to  the  definition  of  the 
concept of transnational matters. 
According 
the  2016  ICF 
study,  9  out  of  22  consulted 
companies  sought  legal  advice 
on  the  concept  of  transnational 
matters,  for  average  costs  of 
€15,000. 

to 

Similar  issues  and  costs  are 
expected  to  continue  to  arise 
over the baseline period.  

The average overall costs linked 
to the operation of an EWC are 
estimated at ca EUR 300.000,378 
approximately 
representing 

risks 

Negligible.  Policy  option 
3a  would  improve  clarity 
around 
the  concept  of 
transnational  matters  and 
ensure  a  better  common 
between 
understanding 
management 
and 
employees’ 
a 
representatives.  As 
result, 
for 
the 
disputes  and  the  need  to 
involve 
experts 
legal 
should  decrease,  although 
it 
to 
is  not  possible 
monetise  or  quantify  this 
the 
impact.  Given 
overall 
costs 
baseline 
linked to legal uncertainty 
regarding  the  concept  of 
transnational  matters  are 
to 
negligible  compared 

that 

Negligible to limited. Policy option 3b 
would  bring  more  clarity  about  the 
concept  of  transnational  matters  by 
amending  the  corresponding  article  in 
recast 
the  operative  part  of 
Directive.  As  a  result,  the  risks  for 
disputes  and  the  need  to  involve  legal 
experts  should  decrease,  although  it  is 
not  possible  to  monetise  or  quantify 
this impact. 

the 

in 

Providing  for 
two  annual  plenary 
the 
instead  of  one 
meetings 
subsidiary requirements is estimated to 
entail  additional  costs  for  companies 
with  an  EWC  operating  on  basis  of 
the 
subsidiary 
requirements 
additional  plenary  meeting 
implies 
costs  of  €  42.000  per  year  per 
undertaking  (i.e.  €420.000  over  the 
reference  period  of  10  years  per 

(20): 

Limited  to  moderate.  By  substantially 
broadening  the  concept  of  transnational 
matters,  policy  option  3c  could  lead  to 
more 
information  and  consultations 
longer  or 
procedures.  As  a  result, 
additional  meetings  could  be  required, 
which  would  entail  additional  costs  for 
operation  of  EWCs.  In  the  supporting 
study,  EU  and  national  employers’ 
associations  have  expressed  concerns 
over the lack of clarity of this option in 
matters, 
transnational 
defining 
excessive 
potential 
highlighting 
consultations  and  delays 
time-
in 
sensitive projects. 

the 

obligation 

for 
Furthermore, 
management  to  justify  that  a  matter  is 
not 
entail 
adjustment  costs  for  undertakings  with 

transnational 

would 

377 ICF(2023), Section 4.2.1.3. 
378 Estimate in ICF(2016), in today’s prices. See Annex 4 (Section 4.4.). 

184 

 
 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

of 

0.0012  %  of  the  average  global 
turnover 
Union-scale 
undertakings  with  an  EWC.379 
Of  these average  costs,  costs of 
and 
plenary  meeting 
one 
estimated  annual  average  costs 
training  per  EWC  are 
of 
estimated 
for 
to 
EUR 60 000 on average.380  

account 

of 

For  EWCs  operating  on  the 
basis 
subsidiary 
the 
central 
requirements 
management is required to  hold 
one  annual  plenary  meeting. 
The  estimated  average  costs  of 

(20), 

is 

undertakings  turnover,  the 
the 
same 
true 
possible  marginal 
cost 
savings under option 3a. 

for 

Furthermore, 
policy 
option  3a  would  also 
clarify 
recast 
the 
requirements 
Directive’s 
regarding  the  resourcing 
of EWCs. This could lead 
to 
resources 
dedicated  to  employees’ 
representatives, 
in 
particular  in  those  EWCs 
current 
the 
where 

more 

undertaking,  without  inflation).  These 
costs  are  negligible  in  relation  to  the 
turnover  of  Union-scale 
average 
undertakings.  Furthermore,  as 
the 
sometimes 
requirements 
subsidiary 
serve  as  a  benchmark  for  negotiated 
EWC  agreements  in  practice,  social 
partners  in  some  undertakings  may 
choose  to  add  the  requirement  for  a 
second  plenary  meeting  in  existing 
agreements  that  currently  provide  for 
only  one  plenary  meeting  (ca.  50% 
based  on  agreements384)  during  future 
renegotiations. The policy option itself 
however  does  not  create  such  an 
obligation.     

an EWC.  

While  a  general  right  of  EWCs  to 
involve  experts  of 
their  choice  at 
undertakings’ cost could prompt a more 
frequent  and  generalised  recourse  to 
external  experts,  driving  costs,  these 
costs  are  not  expected  to  amount  to  a 
share  of  undertakings’ 
significant 
turnover.  These  costs  might  moreover 
vary  significantly  depending  on  the 
nature  of  assistance  provided.  The 
evidence  gathered  suggests  that  EWCs 
are  progressively  recurring  to  more  and 
more  expertise  even  under  the  baseline 
scenario.388 

379 The estimated annual global turnover for undertakings with EWCs or voluntary agreement is € 24 billion (average) (ICF, 2023, Section 5.1.2.1 and Section 3 of Annex).  
380 See Annex 4 (Section 4.4.). As the 2016 estimates were based on a rather small sample, certain cost components were calculated based on a different methodology for this impact 
assessment, to ensure that the conclusions drawn are sufficiently robust. The results of the two separate sets of estimates are consistent, as the elements for which no new calculation 
was made (in particular, employees’ time dedicated to EWC work) plausibly account for the difference. 

185 

 
 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

one  plenary  meeting  are  ca.  € 
42.000.381  

resources are limited. 

The use of experts in support of 
EWCs  work  is  heterogenous 
and  therefore  does  not  allow  to 
establish reliable estimates. 

information 
to 
According 
recorded  in  the  ETUI’s  EWC 
database,  almost  70%  of  EWC 
agreements  contain  provisions 
on  the  EWC’s  right  to  solicit 
expert advice, with over 80% of 
these  agreements  providing  for 
the  choice  of  an  independent 

However,  the  magnitude 
of  the  impact  is  expected 
to be negligible due to the 
non-binding  status  of  this 
interpretative 
guidance 
and the small share that it 
would represent compared 
to undertakings’ turnover.    

Similar 
considerations 
apply with respect to other 
clarifications that could be 
provided 
the 
guidance 
interpretative 

by 

to 

exact 

The 
clarifying 
impact  of 
resourcing  of  EWC  as  regards  legal 
costs  and  costs  of  and  access  to 
expertise  is  not  certain  since  it  would 
be  up 
the  management  and 
employees’ representatives to negotiate 
and  agree  on 
the 
coverage for such costs. In this respect, 
it also needs to be considered that large 
shares  of  EWC  agreements  already 
contain  provisions  on  the  coverage  of 
and 
to 
costs 
involvement  of  experts,  limiting  the 
prospect  that  option  3b  could  lead  to 

the  details  of 

training 

linked 

384 ETUI 2018 survey, op.cit. 
388 According to 2022 Eurofound case-studies, three out of eleven case study companies (27.3%)  provided the EWC an autonomous budget to cover EWC expenses, with reported 
amount  ranging  from  €3,000 to  €6,000  per  year.  Turlan,  F.,  Teissier,  C.,  Weber,  T.,  Kerckhofs,  P.,  &  Rodriguez  Contreras,  R.  (Eurofound)  (2022)  Challenges  and  solutions:  Case 
studies on European Works Councils, op.cit. 
381 Ibid. 

186 

 
 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

to  an 

external  expert,  around  18% 
referring 
in-company 
and/or  independent  expert,  and 
less  than  2%  allowing  only  for 
in-company 
support  by  an 
expert. 

in 

EWCs  may  have  recourse  to 
experts  on  various 
several 
occasions,  depending  on 
the 
provisions  of  their  respective 
agreement.  Evidence  indicates 
of 
that 
negotiations, 
require 
expert assistance at a costs of € 
20  000  to  €  25  000,  which 
of 
provides 
experts’ fees incurred by EWCs 
as well. 

indication 

context 

SNBs 

the 

an 

lead 

legal 

issue 

under  option  3b,  such  as 
on 
of 
the 
while 
confidentiality: 
clarity 
increased 
to  a  more 
could 
efficient 
of 
EWCs and fewer disputes, 
possible 
cost-
savings are expected to be 
negligible. 

operation 

related 

undertakings 

far-reaching  entitlements  of 
more 
EWCs.385  Moreover,  as 
the  recast 
Directive already gives EWC members 
the  right  to  training  “without  loss  of 
wages”,  costs  associated  to  training 
are,  as  a  general  rule,  already  covered 
by 
baseline). 
Likewise,  while  a  better  coverage  of 
legal costs could facilitate legal actions 
in  some  cases386,  clear  agreements 
regarding the EWCs’ entitlement to the 
coverage  of  resources  is  likely  to 
reduce  the  incidence  of  legal  disputes 
related to EWC funding. 

(cf. 

There  is  no  evidence  suggesting  that 
the requirements to provide a reasoned 
response to EWC opinions prior to the 
adoption of a decision on transnational 
matters  and  to  specify,  upon  request, 

385  In  the  targeted  survey  for  ICF(2023),  Section  5.1.2.4.,  amongst  respondents  whose  agreements  contained  provisions  on  financial  and  human  resources,  77.1%  said  that  the 
agreements had provisions on trainings; 70.6% mentioned provisions on financial resources and budget and almost 60% of respondents referred to provisions on access to expertise.  
386 ICF(2023), Section 5.1.2.5. Financial constraints and limited resources were mentioned by 14% of the ICF targeted survey respondents as reasons for not undertaking legal action.  

187 

 
 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

It is estimated that around 25 % 
of  EWCs  rely  on  support  of 
external  experts,  while  other 
EWCs  may  cooperate  with  in-
house  (company),  national  or 
European  -level  trade  unions 
experts, 
only 
expenses need to be reimbursed.  
share  of  EWCs  not 
The 
requiring  costs 
for  external 
experts is uncertain382.  

for  which 

As  regards  annual  costs  of 
training,  they  are  estimated  on 
average  €17  870  per  EWC  (see 
section  4.5  of  Annex  4).  The 
evidence available suggests that 
in  almost  all  the  cases,  these 
costs 
by 
not 
employees,  as  companies  cover 
travel,  accommodation  and  cost 

borne 

are 

costs 

adjustment 

confidential 

for  declaring  certain 
the  grounds 
information 
or 
withholding  it  would  entail  significant 
recurrent 
for 
undertakings.  The  former  requirement 
already  exists  in  relation  to  EWCs 
operating  on  basis  of 
subsidiary 
requirements and management needs to 
already  fulfil  a  similar  obligation 
during  the  consultation  procedure  of 
national employee representatives, and 
no  particular  cost  issues  have  become 
contexts.387 
apparent 
Moreover, 
two-stage 
consultation,  employer  organisations 
responded that an obligation to provide 
to  an  EWC 
a  reasoned  response 
opinion 
in  many 
agreements.  

in 
during 

already 

exists 

those 

the 

188 

 
 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

training.  This 

of 
supported  by 
gathered 
study.383 

for 

also 
is 
the  evidence 
ICF 

the  2016 

costs 
Indirect 
(recurrent) 
for 
undertakings with 
EWC 

is  no  evidence 

that 
There 
transnational 
information  and 
consultation  requirements  entail 
any significant indirect costs for 
undertakings,  such  as  delays  in 
decision-making. 

Insofar 

as 
Null. 
undertakings 
would 
expect  that  by  following 
non-binding 
the 
interpretative 
guidance 
they  would  incur  indirect 
costs, 
they  are  highly 
agree 
unlikely 
adaptations to the relevant 
EWC agreements. 

to 

increase 

length  of 

Limited  to  moderate.  The  obligation 
of providing a reasoned response prior 
to  the  adoption  of  a  decision  on 
transnational  matters  may  in  certain 
cases 
the 
the 
consultation  process,  hence  risking 
delaying  strategic  company  decisions. 
As  part  of  the  external  survey,  about 
35%  of  management’s  representatives 
expressed  various  concerns  about 
expanding  the  scope  of  information 
and  consultation  procedures  to  require 

Moderate  to  significant.  Policy  option 
3c  provides  for  expanding  substantially 
the scope of the concept of transnational 
matters. While a majority of employees’ 
representatives  expressed  its  support  to 
this 
management’s 
representatives  caution  that  broadening 
the  existing  definition  would  lead  to 
higher 
the  decision-
making  process  of  the  company,  with 
the  risk  to  generate  economic  losses393. 
Such costs could for instance occur due 

measure392, 

inefficiency 

in 

387 Directive 2002/14/EC, Article 4(4). 
383 Cf. p. 85 of the  2016 ICF study: “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.”  
392 ICF(2023), Section 5.1.2.3., Targeted survey. 
393 ICF(2023), Sections 5.1.2.3., Targeted survey, and 5.3.3.3., evidence-gathering workshop with the management’s representatives.  

189 

 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

management’s reasoned response prior 
to decisions as this could lead potential 
operational slowdowns.  

However,  given  that  EWCs  would 
remain  information  and  consultation 
bodies without substantive powers over 
management decisions, the risk of such 
indirect costs seems rather limited.  

as 

stated 

above, 

Moreover, 
a 
requirement on management to provide 
a  reasoned  response  already  exists  in 
relation to EWCs operating on basis of 
subsidiary  requirements389  and  there  is 
no strong evidence of problems of this 
requirement  on  decision-
existing 
making  of  companies.390  Indeed,  the 
management  needs  to  already  fulfil  a 
the 
similar 

obligation 

during 

to  overlaps,  uncertainty  and  frictions 
between  information  and  consultation 
processes  at  national  and  transnational 
level.  Furthermore,  the  extension  of  the 
definition of transnational matters could 
increase  the  unclarity  of  the  concept, 
which  might 
increasing 
lead 
number of disputes.  

to  an 

The  requirement  of  a  mandatory  prior 
judicial  authorisation 
if  management 
wants  to  withhold  information  which 
could  cause  a  serious  harm  to  the 
undertaking is likely to lead to delays in 
decision-making 
cases, 
in 
depending  on  the  length  of  the  relevant 
authorisation procedures. 

some 

389 Annex I of the recast Directive, point 1(a).  
390 In the Targeted survey (ICF(2023), Section 5.1.2.3), the 3% employee representatives (4 out of 126) and 38 % of managers (5 out of 13) indicated the consultation requirements 
could slow down management decisions and/or hamper management’s ability to take decisions effectively. 

190 

 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

the 

consultation  procedure  of  national 
representatives.391 
employee 
Furthermore,  during 
two-stage 
consultation,  employer  organisations 
responded that an obligation to provide 
to  an  EWC 
a  reasoned  response 
opinion 
in  many 
agreements. 

already 

exists 

Direct 
benefits 
for  undertakings 
with  an  existing 
EWC  

Benefits  from  EWCs  operating 
under  the  recast  Directive  are 
essentially 
non-quantifiable. 
They relate to topics such as the 
reinforcement of mutual trust on 
industrial 
both  sides  of 
the 
relationship,  better 
informed 
strategic  decision-making,  and 
better 
measures 
accompanying 
structural 
changes.394  It  is  expected  that 

targeted 

Negligible.  Clarifications 
provided  in  the  guidance 
could  save  time  and  costs 
(required  expertise,  legal 
disputes, 
opportunity 
costs) 
for  undertakings 
which  have  experienced 
the 
problems 
application  of  the  concept 
of 
transnational  matters 
under  the  Directive  (see 

with 

regarding 

legal  clarity 

Limited.  Option  3b  would  provide 
more 
the 
concept  of  transnational  matters,  the 
consultation  procedure,  obligations  of 
the  management  and  the  content  of 
EWC  agreements.  This  could  result  in 
a  reduction  of  disputes  and  time  and 
cost  savings  and  thus  compensate  for 
costs  –  at  least  partially  –  for  the 
recurrent  adjustment  costs  (see  above) 
created  under  this  policy  option.  In 

and 

below) 

impacts 

Null.  The  measures  common  to  options 
3b  and  3c  are  expected  to  contribute  to 
the  quality  of  social  dialogue  (see  also 
thus 
social 
contribute  to  the  benefits  of  EWCs  for 
under 
undertakings 
the 
described 
baseline.  However, 
these  potential 
benefits  are  likely  to  be  negated  by 
negative  impacts  on  undertakings:  the 
broad definition of transnational matters 
under  option  3c  is  not  expected  to 

391 Directive 2002/14/EC, Article 4(4). 
394 Pulignano V., Turk J. (KU Leuven) (2016). European Works Councils on the move: management perspectives on the development of a transnational institution for social dialogue, 
page 56-57.  

191 

 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

factors  will  become 
these 
increasingly  important  over  the 
baseline period, as undertakings 
face  competitive  pressure 
to 
automation 
new 
adopt 
technologies395 

However,  due  to  the  problem 
drivers  identified  in  area  3,  the 
potential  of  EWCs  to  generate 
these  benefits 
fully 
realised in the baseline scenario. 

is  not 

For 
instance,  about  40%  of 
respondents  to  the  ICF  2023 
report 
to  have  experienced 
the 
related 
problems 
definition  of  the  concept  of 
transnational  matters396  (43,3  % 

to 

baseline). 

However, and as indicated 
above, 
the  non-binding 
status  of  an  interpretative 
guidance could undermine 
its expected results.   

the 

requirement  of  a 
particular, 
reasoned response prior to the adoption 
of  a  decision  on  transnational  matters 
is  expected  to  promote  the  trustful 
relationship  between  social  partners 
within  undertakings,  as  it  ensures  a 
meaningful  and  genuine  dialogue  on 
transnational matters. 

quality 

The  requirement  for  the  parties  to 
agree  on  the  appropriate  resourcing  of 
the  EWCs  could  also  contribute  to 
and 
higher 
consultation  processes  and  decision-
making  with  potential  benefits  for 
central  management  (more  involved 
jobs, 
workforce, 
improving  openness  and  adaption  to 

creating  quality 

information 

to 

representation.  Also, 

the 
generate  cost  savings  but, 
contrary,  could  lead  to  disputes  due  to 
frictions  and  overlaps  with  information 
and  consultation  procedures  at  different 
the 
levels  of 
requirement  of  a  mandatory  prior 
judicial  authorisation 
if  management 
wants  to  withhold  information  could 
cause serious harm to the undertaking in 
the  form  of  indirect  costs  (delays,  lost 
profit / investment opportunities).  

395 See, e.g., European Parliament (2021) Report on democracy at work: a European framework for employees' participation rights and the revision of the European Works Council 
Directive. (2021/2005(INI)). According to a report by the European Economic and Social Committee of 2020 (‘An EU legal framework on safeguarding and strengthening workers’ 
information, consultation and participation’), digitalisation is already a topic increasingly tackled by EWCs. 
396 ICF(2023), Section 4.2.1.3. 

192 

 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

of  employees  and  28,3  %  of 
managers).    

the  description  of 

See 
the 
(Section 
problem  definition 
2.4.3. of the impact assessment) 
with detailed information on the 
problem  drivers 
further 
analysis. 

for 

Indeed, 

highlighted 

change).397 
employees’ 
representatives 
that 
research  shows  that  an  investment  in 
employees’ participation leads to better 
decisions and employee’s engagement, 
with 
on 
businesses  profitability.  Such  cost 
benefits  are  however  not  possible  to 
estimate as EWCs may be consulted on 
any type of transnational matter. 

consequences 

positive 

Social impacts 

Impacts  on 
the 
quality  of  social 
dialogue  between 
and 
employees 
at 
undertakings 

About  40%  of  respondents  to 
the  ICF  2023  report  to  have 
experienced problems related to 
the  definition  of  the  concept  of 
transnational  matters398  (43,3  % 

Limited  positive.  The 
guidance 
interpretative 
could 
a 
for 
allow 
reduction of the frequency 
of  problems  associated 

introduce 

Significant  positive.  Policy  option  3b 
would 
clarifications 
regarding  the  concept  of  transnational 
matters  in  the  enacting  terms  of  the 
recast  Directive.  Such  clarification 

Moderate  positive.  Policy  option  3c 
would  allow  for  a  higher  number  of 
issues  to  be  discussed  as  part  of  the 
information  and  consultation  at  EU 
level.  This  should  therefore  have  a 

397  Cf.  the  European  Added  Value  Assessment  (EAVA)  prepared  by  the  European  Parliament’s  Research  Service  in  2021,  which  concluded  that  more  systematic  information  and 
consultation of workers at transnational level could lead to even greater economic benefits  – by fostering job quality, reducing the rate at which people leave their jobs (’quit rate’), 
reducing the number of redundancies, limiting the costs of structural adjustment, helping to eliminate distortions of competition within the single market and inequalities in treatment of 
workers, and/or easing the burden on social welfare systems. 
398 ICF(2023), Section 4.2.1.3. 

193 

 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

EU level 

of  employees  and  28,3  %  of 
managers).    

in 

The majority of the respondents 
(59.7%  -  139  out  of  233)  also 
experienced  problems  with  the 
consultation  procedure,  against 
37.3%  (87  out  of  233)  who 
replied  that  they  did  not  have 
issues 
regard.  Per 
this 
stakeholder  category,  whereas 
70% 
employee 
representatives (126 out of 180) 
said  that  there  were  problems 
consultation 
regarding 
procedure, 
of 
management representatives (39 
the 
out  of  53) 

answered 

73.6% 

the 

of 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

with  an  unclear  definition 
of  transnational  matters. 
Such  clarification  would 
contribute 
better 
application  of  information 
and  consultation  rights  of 
EWCs.  

to 

with 

EWCs’  members  which 
have  already  experienced 
problems 
this 
concept 
(see  baseline) 
have 
therefore 
would 
more  time  to  dedicate  to 
information 
and 
consultation 
instead  of 
trying  to  settle  disputes. 
However, and as indicated 

would  contribute  to  better  application 
of  information  and  consultation  rights 
of  EWCs.  This  would  also  allow 
EWCs  members  to  avoid  disputes  on 
this concept in the future and focus on 
information  and  consultation.  Since 
are 
about  40%  of 
stakeholders 
experiencing  problems  with 
this 
concept,  this  would  have  a  positive 
impact for a high number of employees 
and their representatives.    

The  measures  under this  policy  option 
required  from  management  to  provide 
a  reasoned  response  to  EWC  opinions 
prior to the adoption of a decision and 
a  requirement  to  apply  confidentiality 
justified404  would  also 
only  when 

these 

positive impact on social dialogue at this 
level.  However,  this  could  also  lead  to 
additional legal uncertainty compared to 
the  baseline,  depending  on  the  new 
elements  included  in  the  concept405. 
Although 
impacts  cannot  be 
quantified, it cannot be excluded that the 
overall  impact  of  this  extension  of  the 
definition of transnational matters would 
be  overall  negative.  The  obligation  for 
management  to  justify  that  a  matter  is 
not  transnational  could  improve  the 
social  dialogue  with  EWCs’  members 
benefiting 
information. 
from  more 
However, it is rather an indirect impact, 
and its magnitude is therefore lower than 
the  measure  related  to  the  concept  as 

404 This measure would entail changes to the legal situation for EWCs and management subject to the national laws of Member States, which have taken over the wording of Article 8 
of the Directive into their national laws without requiring further justification of the imposition of confidentiality (CY, ES, IE, LU, LV, MT, NL, PL, RO, SI, SK). In the other Member 
States, the possibility of imposing confidentiality is already limited to cases where a legitimate justification exists, so a requirement to that effect would likely not change  the situation 
of undertakings and EWCs to which the respective national laws apply. Specifically, some Member States allow the imposition of confidentiality only with respect to business and trade 
secrets (AT, DE, FI, HR, HU, LT), to information on the financial position of the group or the undertaking, which is not publicly available (FI), to information relating to the security 

194 

 
 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

opposite. 

of 

the 

the 

problems 
Per 
type 
most 
experienced, 
the 
frequently  mentioned  by 
employees  was 
lack  of 
timeliness  of  the  consultation, 
the 
information 
that 
provided  by  management  does 
not  enable  the  EWC  to  provide 
an informed opinion and the fact 
that  no 
is 
established.399 

real  dialogue 

fact 

Regarding  the  timing  of  the 
consultation, 
the 
of 
representatives 
employees’ 

44% 

the  non-binding 
above, 
status  of  an  interpretative 
guidance could undermine 
its expected results.   

positively  impact  the  quality  of  the 
dialogue at EU level. It would namely 
allow for a timely information exercise 
and  a  possibility  for  the  employees  to 
share their views and contribute to the 
decisions of management, which is not 
always 
the  baseline 
the  case 
scenario, as explained there. 

in 

in 

introduction 

The 
the  subsidiary 
requirements  of  at  least  2  plenary 
meetings per year would also allow the 
employees from those 20 undertakings 
with  a  EWC  based  on  subsidiary 
requirements  to  have  more  regular 
information  and  consultation,  which 
would  positively  impact  the  quality  of 

of 
such.  Overall, 
transnational  matter-related  measures 
can be seen as very limited.    

impact 

the 

The  broad  right  to  assistance  from  an 
expert can optimise the information and 
consultation  process,  with  efficiency 
gains.  This  is  corroborated  by  the  2018 
ETUI  survey,  which  indicates  that,  in 
case  of  restructuring,  the  support  of 
trade  union  coordinator  or  expert 
contributed to better decision making.  

exempt 

3c  would 

Option 
confidentiality 
members  when  sharing 
by 
protected 

from 
EWC 
information 
confidentiality  with 

obligation 

and the corresponding security system (FI), based on terms and conditions specified in the agreement or legislation (PT), or in cases in which confidentiality is necessary to safeguard 
the legitimate interest of the undertaking (BG, CZ, SE, DK). 
405 ICF(2023), Section 5.1.2.3.. While a great majority of employees’ representatives are in favour of including such elements as “matters that affect directly or indirectly more than one 
Member State”, “decisions taken by the headquarters affecting employees in another Member State than the one where the headquarters is located”, employers’ views have mostly 
neutral to negative views on the first and mostly negative on the latter. 
399 ICF(2023), Section 5.1.2.3. 

195 

 
 
 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

to 

the 

contribute 

national  or  local  representatives.  This 
would 
coordination 
between  employees  representatives  at 
different  levels  with  potential  benefits 
effective  presentation  of 
for 
employees’  interests  in  the  consultation 
procedure.  However,  the  facilitation  of 
cross-border  exchange  of  confidential 
information  could  lead  to  difficulties  in 
practice  (including  legal  risks  for  the 
employee  representatives)  due  to  the 
differences  of  national  legal  regimes  on 
protection of confidential information.  

that 

before 

information 
the 
indicate 
happens  one  the  decision  is 
its 
finalised, 
but 
implementation; 
during 
implementation.  Close  to  10% 
of  EWC  representatives  report 
that  they  were  informed  and/or 
consulted 
the 
only 
implementation  of  the  relevant 
decision.400   

after 

of 

use 

employee 

the  use  of 

Regarding 
the 
confidentiality  obligation,  49% 
of 
representatives 
(and  4%  of  managers)  said  that 
the 
confidentiality 
effectively  limits  or  prevents 
meaningful  consultation,  and 
15%  of  managers  (and  3%  of 
employee 
representatives) 
consultation 
believe 
involves the risk of disclosure of 

that 

lead 

the  social  dialogue.  Furthermore,  it 
cannot  be  excluded  that  this  measure 
would  also 
to  more  regular 
meetings  of  EWCs  based  on  an 
agreement,  which  may  refer  to  the 
subsidiary 
a 
benchmark.  

requirements 

as 

The  requirement  for  the  parties  to 
agree  on 
resourcing, 
appropriate 
including on coverage of legal costs, of 
the  EWCs  could  also  lead  to  higher 
quality  information  and  consultation 
processes  and  decision-making,  with 
potential 
central 
management  (see  above)  as  well  in 
terms  of  a  more  involved  workforce, 
leading  to  better  working  conditions 
across the Union-scale undertaking and 
solutions  or 
proposing  alternative 
job 
mitigating  measure 

to  prevent 

benefits 

for 

400 ETUI survey of EWC and SEWC representatives (2018). Overview published online. 

196 

 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

losses). 

confidential 
information. 401 

company 

basis.402 

The large majority of EWCs has 
access  to  external  support  on  a 
continuous 
Legal 
uncertainty  nevertheless  exists 
regarding  the  coverage  of  legal 
costs  (court  fees  or  costs  of  a 
legal representation in case of a 
dispute),  no  national  legislation 
lays  down  a  dedicated  budget 
for  such  costs,  although  these 
costs are in principle part of the 
operating expenses of EWCs.403 

In the 2018 ETUI survey, out of 

401 ICF(2023), Section 4.2.1.3. 
402 According to information recorded in the ETUI’s EWC database, almost 70% of EWC agreements contain provisions on the EWC’s right to solicit expert advice, with over 80% of 
these agreements providing for the choice of an independent external expert, around 18% referring to an in-company and/or independent expert, and less than 2% allowing only for 
support by an in-company expert. 
403  SWD(2018)  187  final,  p.  34.  Some  Member  States  have  introduced  statutory  release  from  court  fees  for  EWCs  and  others  have  introduced  a  general  regulation  concerning  the 
operating costs of EWCs. The latter is the case in the vast majority of the Member States. 

197 

 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

Impacts 
employment 

on 

the  EWC  representatives  who 
said  that  they  had  not  started 
legal proceedings despite having 
experienced  a  serious  dispute, 
around  17%  said  that  this  was 
due  to  a  lack  of  resources  (e.g. 
finance, expertise).   
Well-functioning  EWCs  can 
have  positive  impacts  not  only 
on workers’ well-being, but also 
on labour productivity as well as 
is 
on  firms’  profitability.  It 
that 
therefore  plausible 
the 
identified 
shortcomings 
regarding  the  effectiveness  of 
transnational 
the 
information  and  consultation 
represent  untapped  potential  in 
terms  of  potential  benefits  also 
employment. 
of 
terms 
in 
that  EWCs 
However,  given 
mandatory 
complement 
employee 
at 
national  or  local  level,  it  is 
such 
difficult 

involvement 

attribute 

existing 

to 

Inconclusive.  Given  the 
limited  economic  benefits 
described  above,  there  is 
no  sufficient  basis 
for 
drawing  any  conclusions 
regarding 
of 
option  3a  on  the  level  of 
employment. 

impacts 

of 

information 

Inconclusive. It is not excluded that an 
the 
improved 
functioning 
transnational 
and 
consultation  process  could  contribute 
to  benefits  in  terms  of  employment. 
However,  such  an  effect  cannot  be 
attributed to policy option 3b with any 
degree of certainty, given the interplay 
involvement  at 
between  employee 
national and transnational level and the 
non-binding 
EWCs’ 
nature 
opinions. 

of 

in 

seem 

terms 

levels 

benefits 

Inconclusive. With respect to option 3c, 
of 
possible 
employment 
highly 
unlikely,  due  to  the  possible  frictions 
with employee involvement at national / 
local 
in 
decision-making.  There  is  no  indication 
that option 3c might contribute to lower 
levels  of  employment  either,  as  the 
possible  negative  economic  impacts  of 
this option are very limited in scope.  

level  and  possible  delays 

198 

 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

possible  effects  specifically  to 
the 
information 
and consultation framework. 

transnational 

Environmental impacts 

Null.  See  Section  1  of  this  Annex  for  general  clarifications,  in  particular  regarding  the  requirement  of  an  additional  annual  plenary  meeting  in  the  subsidiary 
requirements, envisaged under options 3b and 3c. 

Impacts on competitiveness 

199 

 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

Impacts  on  cost 
and 
price 
competitiveness, 
international 
competitiveness 
to 
and  capacity 
innovate 
of 
undertakings with 
an EWC 

identified 

impacts 
No  such 
under the baseline.  
The costs of operating an EWC 
are  very  low  compared  to  the 
average  annual  turnover  of  the 
relevant  undertakings,  see  the 
baseline 
recurrent  costs 
above. 

for 

entail 

Null.  Option  3a  would  at 
most 
negligible 
costs for undertakings and 
is  therefore  not  expected 
their 
to 
competitiveness. 

affect 

to 

costs 

linked 

Null. Although policy option 3b could 
possibly  entail  limited  to  moderate 
adjustment 
the 
renegotiation  of  EWC  agreements  and 
the  resourcing  of  EWCs,  the  scope  of 
these  impacts  remains  very  small  in 
comparison  to  undertakings  turnover 
(see  analysis  of  economic  impacts 
above).  These  limited  additional  costs 
would  not  have  any  impacts  on  costs 
and  price  competitiveness,  or 
the 
capacity to innovate. 

200 

on 

effects 

Negligible to moderate. While the one-
off  and  recurrent  adjustment  costs  are 
likely  to  remain  moderate  under  option 
3c (despite EWCs’ broad right to consult 
some 
external  experts  of  choice), 
negative 
undertakings’ 
competitiveness  cannot  be  ruled  out, 
because  of  the  indirect  costs  linked  to 
possible delays in decision-making (due 
to the requirement of a mandatory prior 
withholding 
when 
authorisation 
potentially 
information), 
harmful 
and 
frictions 
consultation procedures at national level 
(due 
the  broadened  concept  of 
transnational  matters).  Moreover, 
exempting  information-sharing  between 
EWCs  and  employee  representatives  at 
national 
from 
local 
confidentiality  restrictions  would  lower 
the protection of undertakings subject to 
national 
laws  which  ensure  broad 
protection under the baseline scenario.  

information 

level 

with 

or 

to 

 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

Impacts on fundamental rights  

the 
Impact  on 
principle 
of 
workers’  right  to 
information  and 
consultation 
within 
the 
/ 
undertaking 
right  to  access  to 
justice 
an 
effective remedy 

and 

See  description  of  baseline 
social impacts. 

The  problem  drivers  identified 
in area 3 hamper EWCs’ ability 
to  avail  themselves  effectively 
of  the  right  to  information  and 
consultation  on 
transnational 
matters. 

some 

potential 
cases, 
In 
challenges  regarding  access  of 
EWCs  to  justice  and  effective 
remedies  can  also  relate  to  a 
lack  of  resources  to  cover  legal 
costs 
employee 
representatives  or  EWCs  (in 
case of EWC agreements, due to 
the lack of provisions agreed to 
cover such expenses). 

of 

thus 

Limited  benefits.  Option 
3a  would  promote 
the 
quality  of  social  dialogue 
the  practical 
and 
the 
implementation  of 
to 
fundamental 
right 
and 
information 
consultation 
within 
undertakings  (Article  27 
CFR)  and  the  right  to  an 
effective  remedy  (Article 
47  CFR) 
limited 
extent,  see  explanations 
under 
impacts 
social 
above. 

to  a 

Significant  benefits.  Option  3a  would 
improve  the  conditions  for  a  genuine 
transnational  matters 
dialogue  on 
significantly,  as  described  in  detail  in 
the  section  on  ‘social  impacts’  above. 
Overall,  EWCs’  entitlement 
to  a 
reasoned  response  from  management, 
the increased legal clarity regarding the 
transnational  matters, 
concept  of 
resourcing 
confidentiality 
and 
strengthened 
restrictions,  and 
requirement  for  two  annual  meetings 
under  the  subsidiary  requirements  are 
expected to  have  a  significant  positive 
impact  on  the  effectiveness  of  the 
fundamental right set out in Article 27 
CFR.  

the 

The legal requirement for the parties to 
define  modalities  for  covering  EWCs’ 
legal  costs  (and  in  case  of  EWCs 
operating  on  the  basis  of  subsidiary 
requirements to cover such expenses as 
far  as  they  are  reasonable)  would 

Moderate  benefits.  Option  3c  would 
significantly  strengthen  EWCs’  right  to 
involve external experts (including legal 
experts)  and  improve  EWCs’  access  to 
relevant  information  by  limiting  the 
possibility  of  management  to  impose 
confidentiality  or  withhold  information. 
These  measures  are  expected  to  put 
EWCs  in  a  significantly  better  position 
to  avail  themselves  effectively  of  their 
recast  Directive, 
the 
rights  under 
including as regards access to justice.  

and 

delineation 

On the other hand, a broader concept of 
transnational  matters  risks  creating  new 
issues 
between 
of 
consultation 
information 
requirements  at  different 
levels  of 
legal 
representation, 
uncertainty  and  disputes,  and  frictions 
with  procedures  at  national/local  level. 
Due  to  these  caveats,  it  is  likely  that 
option  3c  would  overall  have  only  a 
moderate positive effect on the effective 

possibly 

201 

 
 
 
 
Impact 

Baseline 

Policy option 3a 

Policy option 3b 

Policy option 3c 

(Interpretative guidance, 
voluntary) 

(binding clarifications regarding 
transnationality, consultation process, 
resourcing of EWCs, confidentiality 
restrictions, subsidiary requirements) 

(broad concept of transnationality, 
reduced possibility to impose 
confidentiality / withhold information, 
broad right to consult experts at 
undertakings’ cost) 

positively  contribute  to  the  quality  of 
the dialogue and also to the capacity of 
employee  representatives 
to  access 
legal advice and justice.   

application  of  the  fundamental  right  to 
information  and  consultation  within 
undertakings. 

202 

 
  
 
5.  IMPACTS OF POLICY OPTIONS IN POLICY AREA 4 

Impact / 
affected 
stakeholders 

Economic impacts  

Baseline 

Policy option 4a 

Policy option 4b 

Policy option 4c 

(Commission 
recommendation) 

(Facilitating supervision by COM, 
clarifying MSs’ obligation to ensure 
effective sanctions & remedies) 

(Suspension of management decisions; 
pecuniary sanctions up to 2% resp. 4% 
of undertakings global turnover) 

for 

Enforcement 
costs 
sanctioned 
undertakings 
with an EWC 

States 
Overall, 

The  current  sanctions  regimes 
in  Member 
are 
diverse.406 
the 
maximum  levels  of  pecuniary 
sanctions  are  considered  low 
and 
in 
comparison  to  the  turnover  of 
the Union-scale undertakings.  

dissuasive 

not 

evidence 

gathered407 
The 
indicates that current sanctions, 
although 
greatly 
varying 
between Member States, would 
not  exceed  190.000  EUR, 
representing  0.0008%  of  the 

by 

Negligible.  The  effects  of 
policy  option  4a  on 
the 
to  be 
enforcement  costs 
borne 
sanctioned 
undertakings are unclear. The 
evidence  gathered  does  not 
allow  for robust  assumptions 
about  the  take-up  rate  of 
Commission 
recommendations 
regarding 
the  enforcement  of  rights 
under  the  recast  Directive. 
However, there is a plausible 
risk that those Member States 
thus  far  not 
which  have 

Significant. 
notification 
The 
obligation  for  Member  States  is  not 
for 
to 
expected 
undertakings. 

entail 

costs 

for 

pecuniary 

The requirement for Member States to 
sanctions 
provide 
determined in proportion to the annual 
turnover of the sanctioned undertaking 
could  lead  to  a  substantial  increase  in 
the  level  of  pecuniary  sanctions,  in 
particular  in  Member  States  which  do 
and 
not 
the 
proportionate 

dissuasive 
sanctions  under 

ensure 

Very  significant.  As  under  option  4b, 
the 
notification  obligation  for  Member  States  is  not 
expected to entail costs for undertakings. 

Policy  option 4c  provides for  pecuniary 
sanctions up to 4% of the global annual 
turnover where a violation of rights and 
obligations  is  intentional,  or  else  up  to 
2%.  Although 
percentages 
represent  the  upper  limit  of  sanctions, 
the maximum limit under this option is, 
based 
of 
average 
undertakings  with  an  EWC,  be  about 
4000  times  higher  than  the  current 
maximum administrative sanction in the 

turnover 

those 

on 

406 Generally, sanctions for administrative infractions are being applied to the EWC-related breaches. In most cases, the sanctions under the national laws remain low, the average range 
being around € 5.000-10.000 or even lower in some countries. Upper limits to sanctions are quite common (the maximum scale ranging from a couple hundred EUR to € 187.500 (ES) 
for very  serious  offences.  In DE,  the  country  with highest  number of EWCs,  a  maximum  possible  administrative  fine  for  EWC-related  breaches  is  €  15.000,  although  more  severe 
criminal sanctions (pecuniary or custodial) are theoretically also available. Likewise, in some other countries, stricter sanctions (e.g. up to € 800.000 in BE) or prison sentences may 
theoretically be imposed in criminal law proceedings. Application of such sanctions to EWC-related offences has not occurred in practice.   
407 ICF(2023), Sections 4.2.1.4. and 5.2.2.4. 

203 

 
 
Impact / 
affected 
stakeholders 

Baseline 

Policy option 4a 

Policy option 4b 

Policy option 4c 

(Commission 
recommendation) 

(Facilitating supervision by COM, 
clarifying MSs’ obligation to ensure 
effective sanctions & remedies) 

(Suspension of management decisions; 
pecuniary sanctions up to 2% resp. 4% 
of undertakings global turnover) 

to 

follow 

ensured  effective  sanctions 
and  remedies  will  be  least 
such 
inclined 
recommendations.  If  such  a 
the 
pattern  materialises, 
changes 
at 
introduced 
national  level  to  implement 
option 4a would remain very 
so  would 
limited, 
sanctioned 
undertakings’ 
enforcement  costs  compared 
to the baseline.    

and 

average  undertaking  with  an 
EWC’s 
global 
average 
turnover.408  Taking  as  example 
the  maximum  administrative 
fine 
in  Germany 
(15.000  EUR),  the  ratio  to  the 
is 
global  average 
0.00006 %.   

turnover 

applied 

Sanctions are seldom applied in 
practice  (also  due  to  a  low 
occurrence  of  legal  disputes). 
Where applied, they create only 
negligible  costs  for  companies. 
More  significant  costs  can  be 
court’s 
created  where 
precludes 
decision 
implementation 
the 
of 
management’s  decision  until 
the 
and 
information 
consultation  obligations  have 
been fulfilled. 

a 

Most conflicts within European 

baseline.   

to 

in  proportion 

Although  policy  option  4b  does  not 
provide  for  a  specific  percentage  that 
could  serve  as  a  benchmark, 
it 
specifies  that  the  sanctions  should  be 
the 
determined 
worldwide  turnover  of  the  sanctioned 
undertaking  or  group  of  undertakings. 
In  a  concrete  situation,  this  would 
require  that  not  only  the  turnover  of 
the  undertaking 
is 
considered,  but  also  the  principles  of 
effectiveness, 
and 
example 
proportionality, 
considering factors such as the gravity, 
duration  and  impacts  of  the  relevant 
the 
infringement. 
sanctioned 
expected 
undertakings is significant.  

Accordingly, 
on 

dissuasiveness 

in  question 

impact 

for 

EU (ES) and around 50.000 times higher 
than  maximum  fine  available  in  DE  (a 
Member  States  with  highest  number  of 
EWCs).  The  upper  limits  would  define 
the 
spectrum  on  which  national 
administrative  and  judicial  authorities 
would  determine  the  level  of  penalties. 
Even if these authorities would consider 
the upper echelons of this spectrum only 
for  the  most  extreme  infringements, 
option  4c  thus  sets  a  high  benchmark 
also for less severe cases. Therefore, the 
impact  on  the  enforcement  costs  for 
sanctioned  undertakings  with  an  EWC 
would be very significant.  

Finally,  policy  option  4c  also  provides 
for  a 
suspension  of  management 
decisions  in  case  of  a  violation  of  the 
information and consultation obligation. 
Depending on the length of the relevant 
proceedings, 
could 
significantly  reduce  the  efficiency  and 
effectiveness  of  the  decision-making  in 

this  measure 

408 Average worldwide turnover of undertakings with EWCs has been estimated at 24 billion (ICF(2023), Annex  – Section 3 (Data mapping).  

204 

 
  
 
Impact / 
affected 
stakeholders 

Baseline 

Policy option 4a 

Policy option 4b 

Policy option 4c 

(Commission 
recommendation) 

(Facilitating supervision by COM, 
clarifying MSs’ obligation to ensure 
effective sanctions & remedies) 

(Suspension of management decisions; 
pecuniary sanctions up to 2% resp. 4% 
of undertakings global turnover) 

Works  Councils  (EWCs)  are 
typically 
resolved  without 
resorting  to  legal  action.  Legal 
action  was  taken  in  16%  of 
these serious conflict cases.409 

jurisprudence 
matters 

on 
National 
EWC-related 
is 
limited410  and  does  not  allow 
for  a  proper  monetisation  of 
sanctions  and  their  frequencies 
but 
an 
anecdotical view.  

provides 

rather 

Compliance 
(administrative) 
costs 
for 
Member States 

The  recast  Directive  does  not 
entail  any  administrative  costs 
for Member States.  

Null.  Policy  option  4a  does 
not include any measures that 
would  entail  administrative 
costs for Member States  

Negligible.  The notification obligation 
provided  in  policy  option  4b  would 
entail  limited  administrative  costs  for 
Member  States  which  would  need  to 
collect  and  send  to  the  Commission 
information  on  the  means  by  which 
employees’ 
EWCs, 
SNBs 
judicial 
representatives  can  bring 

and 

companies, 
substantial economic losses.  

possibly 

leading 

to 

In  combination,  the  sanctions  under 
option  4c  are  likely  to  lead  to  very 
significant  impacts  on  the  enforcement 
costs  for  sanctioned  companies,  with 
possible  indirect  consequences  for  their 
competitiveness 
business 
operations.  

and 

4b 

See 

option 

for 
Negligible. 
explanations  regarding  the  notification 
obligation.  The  other  measures  under 
this  option  do  not  entail  administrative 
costs for Member States. 

409 In a ETUI 2018 survey of EWC representatives, only 15.7% reported experiencing serious conflicts with management between 2015 and 2018. 
410 160 national cases have been identified since 1996 on EWC-related matter. The subject of cases is diverse (concerning functioning of the agreement, the set-up phase, individual 
rights of employee representatives or trade union rights, consultation procedure). 

205 

 
 
Impact / 
affected 
stakeholders 

Baseline 

Policy option 4a 

Policy option 4b 

Policy option 4c 

(Commission 
recommendation) 

(Facilitating supervision by COM, 
clarifying MSs’ obligation to ensure 
effective sanctions & remedies) 

(Suspension of management decisions; 
pecuniary sanctions up to 2% resp. 4% 
of undertakings global turnover) 

proceedings  in  respect  of  all  their 
rights  under 
the  recast  Directive. 
Although  the  evidence  gathered  does 
not  allow  for  a  monetisation  of  this 
incremental  cost  per  Member  States, 
this task – which would form a part of 
the  standard  process  of  notifying 
transposition  measures 
the 
available  IT  systems  –  should  not 
require  an  additional  high  number  of 
working days and the impact should be 
negligible.  

via 

Limited.  By  supporting  a 
to 
more  effective  access 
courts,  policy  option  4a 
could  entail  additional  costs 
for  Member  States  linked  to 
increasing  number  of 
an 
administrative  or 
judicial 
procedures.  

In  contrast,  policy  option  4a 

Inconclusive.  Policy  option  4b  would 
allow  the  Commission  to  effectively 
monitor and ensure the requirement of 
effective  access  to  justice.  Depending 
on the outcome of this monitoring and 
the  follow  up  actions,  the  access  to 
justice  could  be  further  improved  in 
some  Member  States  (around  13,7  % 
of  stakeholders  reported  a  lack  of 
to  courts  for  EWC-related 
access 

Adjudication 
litigation 
and 
costs 
for 
Member States 

of 

16% 

Around 
EWCs 
experienced a serious dispute in 
a  timeframe  of  three  years411 
and  less  than  20  %  of  these 
disputes  have  been  taken  to 
court.  Court  cases  identified  in 
all  Member  States 
together 
were  less  than  6  per  year  on 
average  (in  all  EU).412  It  is 
assumed  that  this  would  not 

411 Between 2015 – 2018 (cf. ETUI 2018 survey of EWC representatives). 
412 160 national cases have been identified since 1996 on EWC-related matter. 

206 

Neutral  to  significantly  lower.  Policy 
option  4c  provides for a  broad range of 
sanctions which could lead to significant 
or even very significant economic losses 
for  those  sanctioned  undertakings.  On 
the  one  hand,  these  new  measures  are 
to  have  a  strong 
therefore 
improve 
deterrent  effect  and 
and 
compliance  with 
obligations  laid  down  in  the  Directive, 

likely 

rights 

thus 

the 

 
 
Impact / 
affected 
stakeholders 

Baseline 

Policy option 4a 

Policy option 4b 

Policy option 4c 

(Commission 
recommendation) 

(Facilitating supervision by COM, 
clarifying MSs’ obligation to ensure 
effective sanctions & remedies) 

(Suspension of management decisions; 
pecuniary sanctions up to 2% resp. 4% 
of undertakings global turnover) 

identified 
to  courts 

change  under  the  baseline  due 
issues  of 
to 
the 
some 
in 
access 
Member  States,  coverage  of 
legal  costs  and  other  dispute-
resolution.  

It  should  also  be  noted  that 
court  proceedings  are  by  most 
employee 
representatives 
viewed  as  the  last  resort  for 
resolution  of  a  conflict  with 
their  management  and  only  a 
small  fraction  of  conflicts  is 
taken to a court due to a lack of 
access  or  resources  (ca  17  %) 
or  due  to  low  sanctions  (ca  11 
%).413 

The  national  authorities  may 
obtain  an  economic  benefit 
from  the  sanctions  collected, 
assuming  that  they  accrue  to 

at 

aims 

also 
ensuring 
sanctions  that  are  effective, 
dissuasive  and  proportionate, 
which  could lead to  a  higher 
compliance 
a 
decrease  of  the  number  of 
judicial 
administrative  or 
procedures in the future.     

level 

and 

twofold 

The 
objective 
pursued  by  policy  option  4a 
makes it difficult to assess its 
on 
overall 
the 
effect 
adjudication  and 
litigation 
for  Member  States 
costs 
compared 
the  baseline. 
Furthermore, the non-binding 
status  of  a  Commission 
recommendation  does  not 
allow  for  a  clear  assessment 
of its expected effects, which 
likely 
would  nevertheless 
As 
limited. 
remain 

to 

lead 

matters),  which  could 
to  an 
increasing number of administrative or 
judicial procedures. However, it is not 
possible  to  estimate  these  incremental 
costs.  It  should  also  be  recalled,  as 
mentioned  under  the  baseline,  that 
are  by  most 
court  proceedings 
employee  representatives  viewed  as 
the  last  resort  for  resolution  of  a 
conflict  with  their  management  and 
only  a  small  fraction  of  conflicts  is 
taken to a court.414 

Policy  option  4b  also  requires  that 
pecuniary  sanctions  be  determined  in 
proportion  to  the  annual  turnover  of 
the 
sanctioned  undertaking.  The 
evidence  gathered  does  not  allow  for 
estimating  the  level  of  sanctions  that 
would be applied under this option, but 
it can be assumed that a requirement to 
take 
the  company’s 
turnover  when  deciding  the  level  of 

into  account 

413 ETUI 2018 survey data.  
414 ETUI 2018 survey data.  

207 

It 

lead 

which could in turn lead to a decreasing 
number  of 
legal  and  administrative 
procedures.  On  the  other  hand,  policy 
option  4c  could  also  improve  access  to 
justice,  which  could 
to  an 
increasing  number  of  administrative  or 
therefore 
judicial  procedures. 
difficult  to  estimate  if  overall,  policy 
option  4c  would  have  an  influence  on 
the number of administrative or judicial 
procedures. As for option 4b, also here it 
should  be  noted 
that  court 
proceedings  are  by  most  employee 
representatives  viewed as  the  last  resort 
their 
resolve 
to 
management. 

conflict  with 

that 

is 

for 

pecuniary 

Policy  option  4c  provides  for  high 
sanctions. 
ceilings 
Although  the  effective  fines  applied  in 
concrete  cases  would  likely  be  lower, 
the  maximum  percentage  laid  down  in 
policy  option  4c  would  lead  to  very 

 
 
Impact / 
affected 
stakeholders 

Baseline 

Policy option 4a 

Policy option 4b 

Policy option 4c 

(Commission 
recommendation) 

(Facilitating supervision by COM, 
clarifying MSs’ obligation to ensure 
effective sanctions & remedies) 

(Suspension of management decisions; 
pecuniary sanctions up to 2% resp. 4% 
of undertakings global turnover) 

even 

tribunal  cases 
and 

the  state  budget.  However, 
considering  the  low  likelihood 
involving 
of 
EWCs, 
lower 
likelihood  of  sanctions  (which 
remain  overall  very  low  –  see 
economic 
under 
baseline 
impacts  above)  –  the  expected 
benefits  for  Member  States  are 
low.  

risk 

that 

highlighted  above,  there  is  a 
plausible 
those 
Member  States  which  have 
thus far not ensured effective 
sanctions  and  remedies  will 
be  least  inclined  to  follow 
such  recommendations.  The 
changes 
at 
national  level  to  implement 
option  4a  would  therefore 
likely remain very limited. 

introduced 

sanction would, together with the need 
to  apply  principles  of  effectiveness, 
proportionality  and  dissuasiveness, 
lead  to  significantly  higher  sanctions 
than under  the  baseline.  In  addition to 
the  turnover  of  the  company,  Member 
States  or  national  courts  could  apply 
discretion to determine the appropriate 
percentage  on  the  basis  of  certain 
criteria  (such  as  the  gravity,  duration 
respective 
and 
infringement  or  a  possible  record  of 
prior  non-compliances  of  the  relevant 
undertaking). 

impact 

the 

of 

Social impacts 

Improved 
social dialogue 

access 

National 
laws  do  not  fully 
of 
guarantee 
rightsholders  to  justice.  In  the 
evidence  gathering,  13,7  %  of 
stakeholders  have  reported  not 
to  have  access  to  court  in their 

justice 

Limited.  Policy  option  4a 
aims to ensure a better access 
for  employees, 
to 
which 
currently 
is 
insufficient in  some Member 
States  as  described  in  detail 

Significant.  With  policy  option  4b, 
Member  States  will  have  to  notify  to 
the  Commission  how  access  to  justice 
and  effective  remedies  are  ensured. 
This  will  help  the  Commission  to 
effectively  monitor  and  ensure  the 

208 

It 

is  assumed 

significantly  higher  fines  compared  to 
the  baseline. 
that 
pecuniary  sanctions  would  accrue  to 
Member  States’  budgets.  Therefore, 
depending  on  the  amount  applied  in 
concrete cases these fines could cover or 
incremental 
the 
even 
adjudication  and 
litigation  costs  of 
Member States.  

exceed 

to 

very 

Significant 
significant. 
Regarding the notification obligation on 
Member  States,  see  explanations  under 
option 4b. 

Policy option 4c would also allow for a 
greater  compliance  with  the  rights  and 

 
Impact / 
affected 
stakeholders 

Baseline 

Policy option 4a 

Policy option 4b 

Policy option 4c 

(Commission 
recommendation) 

(Facilitating supervision by COM, 
clarifying MSs’ obligation to ensure 
effective sanctions & remedies) 

(Suspension of management decisions; 
pecuniary sanctions up to 2% resp. 4% 
of undertakings global turnover) 

impacts), 

matters.415 

for  EWC 
Member  States 
related 
As 
mentioned  above  (cf.  analysis 
of  economic 
the 
current  sanctions  regimes  in 
Member  States  are  diverse. 
Overall, the maximum levels of 
are 
sanctions 
pecuniary 
considered 
not 
and 
low 
dissuasive in comparison to the 
the  Union-scale 
turnover  of 
undertakings. 

in  Annex  8.  However,  and 
although 
evidence 
the 
gathered does not allow for a 
clear  quantification,  the  non-
binding 
the 
nature 
Commission 
recommendation  will  not 
create 
legal 
requirements,  which  could 
undermine 
expected 
the 
results.  

new 

any 

of 

This  option  would  therefore 
contribute only marginally to 
improving  enforcement  of 
EWCs’ rights and thereby the 
social 
on 
dialogue 
transnational matters. 

As  enforceability  is  a  crucial 
the  effective 
for 
condition 
implementation 
of  EWCs’ 
rights,  the  described  issues  are 
likely to  have a  negative effect 
with 
compliance 
on 
information  and  consultation 
requirements,  and  thus  on  the 
social  dialogue  in  Union-scale 

requirement  of  effective  access 
to 
justice.  Based  on  evidence  gathered, 
the  measure  would  guarantee  better 
access  to  justice  for  population  of  ca. 
4.3  million  EU 
of 
undertakings that fall within the scope 
of the Directive.416  

employees 

Policy  option  4b  would  thus  foster 
greater compliance with the rights and 
obligations laid down in the Directive. 
By  providing  pecuniary  sanctions 
based  on 
turnover, 
companies  will  indeed  be  given  more 
legal 
to  follow  all 
incentives 
requirements. 

annual 

the 

the 

The  combination  of  the  measures  will 
therefore  positively  impact  a  high 
number  of  employees  and 
their 
representatives  by  ensuring  a  better 
justice  and  a  better 
access 
to 
the 
the  rules  of 
compliance  with 

obligations  laid  down  in  the  Directive. 
By  providing  pecuniary  sanctions  up  to 
turnover, 
the  global  annual 
4%  of 
companies will indeed have very strong 
incentives to strictly follow all the legal 
requirements.  Similarly,  the  prospect  of 
the suspension of management decisions 
is  likely  to  be  an  effective  deterrent  of 
non-compliance. 

The  combination  of  the  measures  will 
impact  a  high 
therefore  positively 
number  of 
their 
and 
employees 
representatives  by  ensuring  a  better 
access to justice and a better compliance 
with the rules of the Directive.  

in 

for 

some 

study, 

interviews 

However, 
the 
EWC 
supporting 
representatives  pointed  out  that  very 
harsh 
be 
counterproductive  for  on  employees.  In 
particular, sanctioning methods that lead 

sanctions 

could 

415 This also corresponds to the estimated share of EWCs based in IE and FI (ca. 14 %), where systemic limitations in access to courts have been identified.  
416 14 % of 31 million EU employees of Union-scale undertakings.  

209 

 
 
Impact / 
affected 
stakeholders 

Impacts 
employment  

on 

Baseline 

Policy option 4a 

Policy option 4b 

Policy option 4c 

(Commission 
recommendation) 

(Facilitating supervision by COM, 
clarifying MSs’ obligation to ensure 
effective sanctions & remedies) 

(Suspension of management decisions; 
pecuniary sanctions up to 2% resp. 4% 
of undertakings global turnover) 

undertakings. 

costs 

entail 

Null 
to  negligible.  As 
explained  under  economic 
impacts  policy  option  4a 
additional 
could 
enforcement 
to 
companies.  These  would 
however 
negligible. 
be 
Therefore,  the  impact  should 
be  limited  and  not  affect 
nor 
business 
employment 
the 
undertakings.  

operations 

in 

the 

information 

Directive.  The  positive  impact  on  the 
quality  of 
and 
consultation  at  the  EU  level  should 
therefore  be  significant  and  benefits  a 
high  number  of  employees  and  their 
representatives.   

Null to negligible. As described under 
economic  impacts,  policy  option  4b 
to  moderate  or  even 
could 
for 
significant  enforcement  costs 
sanctioned businesses.  

lead 

In 

theory, 

The  evidence  indicates  that  managers 
believe that heavy sanctions would put 
EU-based  companies  at  a  competitive 
disadvantage. 
heavy 
sanctions  could  negatively  affect 
business  operations  and  entail  job 
losses.  However, 
impact  on 
employment  is  very  uncertain  and 
cannot  be  quantified.  It  would  in  any 
case apply only to the – likely small – 
fraction  of  sanctioned  undertakings 
amongst  the  overall  population  of 
EWC. 
with 
undertakings 
Furthermore,  the  measures  provided 
under  policy  option  4b  could  also 

the 

an 

to job losses would defeat their purpose. 

Negligible  to  moderate.  As  described 
under  economic  impacts,  policy  option 
4c could lead to significant or even very 
for 
enforcement 
significant 
businesses.  Owing  to  the  high  level  of 
maximum level of sanctions, impacts of 
option 
in 
undertakings  would  likely  be  higher 
than  under  option  4b.  However,  such 
impact cannot be quantified.  

employment 

costs 

on 

4c 

that 

believe 

The  evidence  gathered  indicates  that 
managers 
heavily 
sanctioned  obligations  could  put  EU-
based  companies  at  a  competitive 
this  could 
disadvantage.  In 
negatively  affect  business  operations 
and entail job losses in the undertakings 
/  EU.  However,  same  as  for  option  4b, 
the  impact  on  employment  is  very 

theory, 

210 

 
 
 
Impact / 
affected 
stakeholders 

Baseline 

Policy option 4a 

Policy option 4b 

Policy option 4c 

(Commission 
recommendation) 

(Facilitating supervision by COM, 
clarifying MSs’ obligation to ensure 
effective sanctions & remedies) 

(Suspension of management decisions; 
pecuniary sanctions up to 2% resp. 4% 
of undertakings global turnover) 

indirectly  lead  to  a  better  rate  of 
compliance  with  the  obligations  laid 
down  in  the  Directive.  This  would 
the  incidence  of  pecuniary 
reduce 
thereby  mitigate 
sanctions, 
possible 
on 
impacts 
financial  stability  and 
companies’ 
related redundancy risks.  

and 
negative 

uncertain and cannot be quantified.  

to 

their  deterrent  effect, 

the 
Due 
measures  under  option  4c  could  also 
indirectly  contribute  to  a  better  rate  of 
compliance  with 
and 
obligations  laid  down  in  the  Directive, 
which should mitigate those risks. 

rights 

the 

Impacts on competitiveness 

Impact  on  cost 
and 
price 
competitiveness 
EU 
for 
businesses  

No  such 
impacts 
under the baseline. 

identified 

See  baseline  under  economic 
impacts.   

Null 
to  negligible.  The 
impact  of  a  Commission 
recommendation 
the 
on 
sanctions 
effectiveness  of 
and  on  an  increasing  access 
to  courts  is  uncertain.  Its 
non-binding 
status  would 
limited  changes 
to 
lead 
the  baseline. 
compared 
to 
expected 
Accordingly, 
price 
impacts 
competitiveness  are  null  to 
negligible. 

on 

(see 

sanction 

Null to limited. Policy option 4b could 
entail  moderate  to  significant  costs  to 
those  undertakings  that  would  get  a 
above 
pecuniary 
assessment of economic impacts). The 
rare  occurrence  of  legal  disputes  and 
application  of  sanctions  is  unlikely  to 
change  with  the  increase  of  ceiling  of 
sanctions.  Moreover,  sanctions  would 
have  to  be  determined  in  accordance 
with  the  principle  of  proportionality, 
and  national  courts  are  expected  to 
take  into  account  criteria  such  as  the 
severity, duration and consequences of 
the infringement. Therefore, it is likely 
to 
that 
a 
companies’ 
significant 

amounting 
of 

penalties 

share 

the  global  annual 

Moderate  to  significant.  As  described 
above,  policy  option  4c  provides  for 
pecuniary sanctions based on the annual 
turnover  with  a  maximum  level  of  4  % 
of 
turnover,  and 
suspension  of  management’s  decision. 
These  sanctions,  in  particular  where 
combined, could lead to very significant 
direct 
costs 
and 
(economic losses) (see above assessment 
of economic impacts). 

indirect 

(fines) 

Though  it  is  not  expected  that  the  rare 
occurrence  of 
legal  disputes  and 
application  of  sanctions  would  change 
with  the  definition  of  a  high  ceiling  for 
pecuniary  sanctions,  expected  impacts 

211 

 
Impact / 
affected 
stakeholders 

Baseline 

Policy option 4a 

Policy option 4b 

Policy option 4c 

(Commission 
recommendation) 

(Facilitating supervision by COM, 
clarifying MSs’ obligation to ensure 
effective sanctions & remedies) 

(Suspension of management decisions; 
pecuniary sanctions up to 2% resp. 4% 
of undertakings global turnover) 

turnover  would  be  imposed  only  in 
very  rare  cases.  Accordingly, 
the 
cost 
impact  of  option  4b  on 
competitiveness would range from null 
to limited and no noticeable impact on 
consumer prices is expected.  

on  competitiveness  would  range  from 
moderate  to  significant  due  to  the  risk 
that companies could be prevented from 
implementing  decisions,  which  could 
lead  to  significant economic losses,  and 
to the potentially very high impact of the 
sanctions.   

far-reaching 

Noticeable  consumer  price  effects  are 
considered  unlikely  even  under  this 
option.  Firstly, 
most 
sanctions  and  remedies  apply  only  in  a 
likely  small  number  of  individual  cases 
and  are  thus  unlikely  to  feed  into  the 
pricing  considerations  of  Union-scale 
undertakings.  Secondly,  it  is  expected 
that competitive pressures on sanctioned 
undertakings  will  disincentivise  them 
from  passing  enforcement  costs  on  to 
consumers. 

on 

Impact 
international 
competitiveness 
for 
EU 
businesses  and 
their capacity to 

No  such 
under the baseline. 

impacts 

identified 

See  baseline  under  economic 
impacts 

Null 
to  negligible.  The 
impact  of  a  Commission 
on 
recommendation 
the 
effectiveness  of 
sanctions 
and  on  an  increasing  access 
to  courts  is  uncertain.  Its 
status  would 
non-binding 

lead 

Null  to  limited.  As  described  above, 
to 
policy  option  4b  could 
moderate  or  even  significant  direct 
(fines) 
sanctioned 
undertakings (see above assessment of 
economic  impacts).  The  higher  the 
sanctions to be imposed in practice, the 

those 

for 

Moderate  to  significant.  As  described 
above,  policy  option  4c  could  lead  to 
significant  or  even  very  significant 
direct 
costs 
and 
(economic  losses)  for  those  sanctioned 
undertakings  (see  above  assessment  of 
economic  impacts).  The  more  often 

indirect 

(fines) 

212 

 
 
Impact / 
affected 
stakeholders 

innovate 

Baseline 

Policy option 4a 

Policy option 4b 

Policy option 4c 

(Commission 
recommendation) 

(Facilitating supervision by COM, 
clarifying MSs’ obligation to ensure 
effective sanctions & remedies) 

(Suspension of management decisions; 
pecuniary sanctions up to 2% resp. 4% 
of undertakings global turnover) 

to 

lead 
compared to the baseline. 

limited  changes 

In any case, expected impacts 
international 
on 
competitiveness 
EU 
business and their capacity to 
innovate 
to 
are 
negligible. 

null 

of 

the 

more 
international 
impact  on 
competitiveness  for  those  sanctioned 
undertaking. 

that 

As  part  of  the  survey417,  more  than 
80%  of  management  representatives 
imposing  pecuniary 
indicated 
sanctions  linked  to  company  turnover 
would  be  negative  or  even  very 
negative  for  the  competitivity  of  EU 
businesses.  

Any  such  impact  would  however  be 
limited  to  the  sanctioned  undertakings 
only.  Considering  the  rare  occurrence 
of  legal  disputes  and  sanctions  in  this 
policy  area,  which  is  not  expected  to 
increase  with  the  higher  ceiling  of 
sanctions,  the  expected  impacts  on 
competitiveness  of  EU  businesses  and 
their  capacity  to  innovate  is  null  to 
limited.   

national 
judicial 
administrative  or 
authorities would use the upper echelons 
of  the  spectrum  of  penalties  defined  by 
the  2%  resp.  4%  ceilings,  the  more  the 
impact  on  international  competitiveness 
for those sanctioned undertaking. 

that 

the  survey418,  a  strong 
As  part  of 
the  management’s 
majority 
of 
representatives 
the 
indicated 
envisaged sanctions under policy option 
4c  would  have  a  negative  or  very 
negative  impact  on  the  competitiveness 
of  EU-based  companies  vs  non-EU-
impact  on 
based  companies.  The 
international  competitiveness  would  be 
limited  to  the  sanctioned  undertakings 
only.  Though  it  is  not expected  that  the 
rare  occurrence  of  legal  disputes  and 
application  of  sanctions  would  change 
with the increase with the definition of a 
high  ceiling  for  pecuniary  sanctions, 
expected  impacts  on  competitiveness 

417 ICF(2023), Section 5.1.2.7. 
418 Ibid. 

213 

 
 
Impact / 
affected 
stakeholders 

Baseline 

Policy option 4a 

Policy option 4b 

Policy option 4c 

(Commission 
recommendation) 

(Facilitating supervision by COM, 
clarifying MSs’ obligation to ensure 
effective sanctions & remedies) 

(Suspension of management decisions; 
pecuniary sanctions up to 2% resp. 4% 
of undertakings global turnover) 

risk 

range 

from  moderate 
the 

to 
would 
significant  due 
that 
to 
companies  could  be  prevented  from 
implementing  decisions,  which  could 
lead  to  significant economic losses,  and 
to the potentially very high impact of the 
sanctions.  It  is  also  likely  that  the 
undertakings  sanctioned  would  have  to 
reduce  some  of 
their  expenditures, 
which  could  negatively  impact  their 
capacity to innovate. 

Moderate  to  significant.  The  positive 
impacts  discussed  under  policy  option 
4b are valid for policy option 4c.  

Impacts on fundamental rights  

to 

Impact  on  the 
fundamental 
right 
effective 
remedy and to a 
fair trial  

an 

See  baseline  under 
impacts 

social  

sanctions 
be 
follow 
of 

explained 
Limited.  As 
above,  there  is  a  plausible 
risk 
that  Member  States 
which  have  far  not  ensured 
and 
effective 
least 
remedies  will 
the 
inclined 
the 
recommendations 
Commission.  Therefore,  it  is 
likely  that  policy  option  4a 
would  have  only  a  limited 
positive  impact  on  the  right 
to an affective remedy and to 
a  fair  trial  compared  to  the 

to 

to 

significant.  Policy 
Moderate 
option  4b  would  ensure  a  more 
effective 
the 
monitoring 
Commission  of  how  access  to  justice 
and  effective  remedies  are  ensured  in 
the different Member States.  

by 

Depending  on  the  outcome  of  this 
monitoring,  the  impact  on  the  right  to 
an  effective  remedy  and  to  a  fair  trial 
would be moderate to significant.  

the 
Based  on  evidence  gathered, 
measure would guarantee better access 

214 

 
 
 
 
Impact / 
affected 
stakeholders 

Baseline 

Policy option 4a 

Policy option 4b 

Policy option 4c 

(Commission 
recommendation) 

(Facilitating supervision by COM, 
clarifying MSs’ obligation to ensure 
effective sanctions & remedies) 

(Suspension of management decisions; 
pecuniary sanctions up to 2% resp. 4% 
of undertakings global turnover) 

on 

Impact 
workers’ 
fundamental 
right 
to 
information and 
consultation 
within 
undertaking  

the 

See  baseline  under 
impacts 

social 

to  justice  for  population  of  ca.  4.3 
million EU employees of undertakings 
that  fall  within  the  scope  of  the 
Directive.419 

to 

Moderate 
significant.  Policy 
option  4b  also  provides  for  more 
effective  pecuniary  sanctions,  which 
are  currently  too  limited  compared  to 
the  annual  turnover  of  undertakings 
reinforced 
with  an  EWC.  Such 
sanctions  could  contribute  to  more 
effective transnational information and 
consultation rights by ensuring a better 
compliance  with the  requirements laid 
down in the recast Directive.  

Moderate to  significant.  The  measures 
under  policy  option  4c  provide  for 
reinforced  sanctions  and  remedies  that 
could  entail  significant  or  even  very 
significant  costs 
that 
would  be  sanctioned.  This  is  likely  to 
encourage  all  undertakings  to  strictly 
comply  with  the  existing  requirements 
under the EWC Directive.   

to  companies 

baseline. 

level 

Limited.  More  dissuasive 
effective 
and 
sanctions 
remedies  should  presumably 
improve 
of 
the 
compliance  with  the  existing 
requirements under the recast 
Directive.  However,  and  as 
explained 
policy 
measure 4a is not expected to 
changes 
great 
entail 
the  baseline. 
to 
compared 
Therefore, 
impact  on 
the 
workers’ right to information 
and  consultation  within  the 
undertaking 
be 
negligible.  

above, 

would 

419 14 % of 31 million of EU employees of Union-scale undertakings.  

215 

 
 
ANNEX 13: MONITORING AND EVALUATION 

Specific objective 
1. Avoid unjustified 
differences in 
workers’ minimum 
information and 
consultation rights at 
transnational level  

2. Ensure an efficient 
and effective setting-
up of EWCs  

3. Ensure the 

Operational objectives 
Simplified  and  coherent 
legislative 
framework:  applicability  of  the  recast 
Directive 
Union-scale 
undertakings 

all 

to 

Facilitate  enforcement  of  information 
and  consultation  rights  in  currently 
exempted undertakings 

Prevent delays in the setting up of SNBs 

Avoid  legal  uncertainty  and  disputes 
regarding  the  coverage  of  legal  costs 
and expenses related to training of SNB 
members 

Improve  gender  balance  on  EWCs  and 
select committees 

Increase 
disputes  regarding 
transnational matters 

legal  certainty  and  avoid 
the  concept  of 

Indicators / results / success criteria v. baseline 
- Deletion out of exemptions / legacy legal regimes under 
national law (= success criterion) 
- Number of EWCs newly established in previously 
exempted undertakings (Success: smooth transition to EWC 
regime; absence of disputes) 
See indicators for area 4.  

Sources of data 
- Transposition checks/implementation 
report 
- Information notified by Member States 
in accordance with option 4a 
- ETUI database of EWCs 
Potential survey / study 

- Potential ad hoc survey/study 
- Transposition checks/implementation 
report 
- ETUI database of EWCs and national 
case-law 
- Desk research 
- Complaints to the Commission 

- Clear deadlines and obligations set out in national law (= 
success criterion) 
- % of cases where negotiations start >6 months after the 
request to set up an EWC (Success: decrease of cases 
exceeding 6 months) 
- Number of new EWCs with subsidiary requirements 
(Success: lower portion than under baseline) 
- Number of disputes on the setting up of SNB (Success: 
decrease) 
- Number of disputes on the coverage of SNBs’ resources 
(Success: decrease) 
Percentage of women in EWCs and select committees 
under new or re-negotiated agreements (Success: increase 
compared to baseline EWCs) 
- Clear criteria for transnationality laid down in national laws 
(= success criterion) 
- Number of disputes about whether a certain matter falls 

216 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
appropriate 
resourcing of EWCs 
and an effective 
process for their 
information and 
consultation 

Ensure  a  timely  and  genuine  dialogue 
with EWCs on transnational matters 

Reduce  the  risk  of  excessive  imposition 
of  confidentiality  or  withholding  of 
information by central management 
Increase  legal  certainty  and  prevent 
disputes regarding the coverage of legal 
costs,  expertise  and  expenses  related  to 
training of EWC members 

Facilitate  and  effective  enforcement 
monitoring by the Commission 

4. Promote a more 
effective 
enforcement of the 
recast Directive 

under transnational information and consultation 
requirements (Success: decrease) 

- Number of disputes on timing of consultation (Success: 
decrease) 
- Number of disputes on the lack of a reasoned response by 
management (Success: decrease) 
- Clear requirement for reasoned response laid down in 
national laws (= success criterion) 
Number of disputes on confidentiality or withholding of 
information (Success: decrease) 

- % of EWC agreements with clauses on the access to / 
financing of experts (Success: increase) 
- % of EWC agreements with clauses on the coverage of 
legal and training costs / expenses (Success: increase) 
- Number of disputes on the resourcing of EWCs (Success: 
decrease) 
- % of Member States that notified comprehensive 
information about measures ensuring access to justice and 
effective remedies with respect to all the rights set out in the 
recast Directive (Success: all Member States) 
- Number of EU-Pilot / infringement procedures launched 
against Member States (after transpositions checks 
completed) to ensure effective enforcement regime (Success: 
zero/decrease ) 

217 

- Potential ad hoc survey/study 
- Transposition checks/implementation 
report 
- ETUI database of EWCs and national 
case-law 
- Desk research 
- Complaints to the Commission 

- Information notified by Member States 
in accordance with option 4a 
- Transposition checks 
- Complaints to the Commission 
- Potential ad hoc survey / study covering 

 
 
 
 
 
 
 
 
 
 
 
 
 
Ensure effective remedies and sanctions 
for  infringements  of  rights  under  the 
recast Directive 

- % of Member States whose notified measures are assessed 
as sufficiently effective to ensure proper access to justice, 
effective remedies and deterrent sanctions (Success: all 
Member States) 
- Number of cases where access to justice is denied to EWCs 
/ SNBs (Success: zero unjustified cases) 
- Number of judicial actions in Member States to enforce 
rights under the Directive (Success: to be determined based 
on qualitative assessment of each case) 

enforcement 
- Desk research 
- ETUI database of national case-law 

218