Gesamtbetriebsrat der Kühne & Nagel AG & Co. KG v Kühne & Nagel AG & Co. KG.
Date: 2004-01-13
40. As is clear from the Directive ' s general scheme, transnational informing and consulting of employees are essentially to be ensured by means of a system of negotiations between central management and the employees ' representatives ( Bofrost* , paragraph 29).
46. Furthermore, the Court has already stated that, if the Directive is to serve a useful purpose, it is essential that the employees concerned be guaranteed access to information enabling them to determine whether they have the right to demand the opening of negotiations between central management and the employees ' representatives, such a right to information constituting a necessary prerequisite for determining whether a Community-scale undertaking or group of undertakings exists, which is itself a condition precedent for the setting up of a European Works Council or of a transnational procedure for informing and consulting employees ( Bofrost* , paragraphs 32 and 33).
47. The Court similarly stated, in paragraph 39 of its judgment in  Bofrost* , that, where information relating to the structure or organisation of a group of undertakings forms part of the information which is essential to the opening of such negotiations for the setting up of a European Works Council, all undertakings within the group are required to supply the information which they possess or are able to obtain to the internal employees ' representative bodies requesting it.
49. As regards, first, the responsibility of central management, the latter must, in accordance with Article 4(1) of the Directive, create the conditions and means necessary for the setting up of a European Works Council.
51. In order to create the conditions and means necessary for the setting up of a European Works Council, the responsibility of either central management or the deemed central management includes an obligation to supply the employees ' representatives with the information essential to the opening of negotiations for establishing such a council.
52. Central management, in the case of a Community-scale group of undertakings, is the central management of the controlling undertaking, namely the undertaking which can exercise a dominant influence over all the other controlled undertakings of the group, within the meaning of Article 3(1) and (2) of the Directive. It is thus in possession of, or is in a position to obtain, the information referred to in the preceding paragraph and can readily comply with the obligation concerned.
54. However, given the objective and overall scheme of the Directive and in order that deemed central management can take on the responsibility, and fulfil the obligations, which usually fall to central management, Article 4(1) of the Directive must be interpreted as meaning that deemed central management is required to request the information essential to the opening of negotiations for the establishment of a European Works Council from the other undertakings belonging to the group which are located in the Member States, and has a right to receive that information from them.
56. Furthermore, it follows from Article 11(1) of the Directive that each Member State is to ensure that the management of undertakings belonging to a Community-scale group of undertakings which are situated within its territory abides by the obligations laid down by the Directive, regardless of whether or not the central management is situated within its territory.  As the Court held in paragraph 31 of the judgment in  Bofrost* , the actual wording of the provision makes it clear that the scope of the obligations to which it refers is not to be confined, on the employers ' side, exclusively to central management.
59. In view of the provisions of the Directive referred to in paragraphs 55 and 56 of this judgment and in order to ensure that the Directive serves a useful purpose, the other undertakings belonging to the group and located in the Member States are therefore under an obligation to assist the deemed central management in fulfilling the main obligation.  It follows that the corollary of the deemed central management ' s right to receive essential information is an obligation on the part of the management of each of the other undertakings belonging to the group to supply the deemed central management with the information concerned where it is in possession of the information or is in a position to obtain it.
64. In the light of the foregoing, the answer to be given to the first part of the first question is that Articles 4(1) and 11(1) of the Directive must be interpreted as meaning that:
─ where, in a situation such as that at issue before the national court, the central management of a Community-scale group of undertakings is not located in a Member State, central management ' s responsibility for providing the employees ' representatives with the information essential to the opening of negotiations for the establishment of a European Works Council lies with the deemed central management under the second subparagraph of Article 4(2) of the Directive;
─ where central management does not, for the purpose of establishing a European Works Council, make certain information available to the deemed central management under the second subparagraph of Article 4(2) of the Directive, the latter, in order to be able to fulfil its obligation to provide information to the employees ' representatives, must request the information essential to the opening of negotiations for the establishment of such a council from the other undertakings belonging to the group which are located in the Member States, and has a right to receive that information from them;
─ the management of each of the other undertakings belonging to the group which are located in the Member States is under an obligation to supply the deemed central management under the second subparagraph of Article 4(2) of the Directive with the information concerned where it is in possession of the information or is in a position to obtain it;
─ the Member States concerned are to ensure that the management of those other undertakings supplies the information to the deemed central management under the second subparagraph of Article 4(2) of the Directive.
The second part of the first question and the second question
69. Furthermore, the Court has already pointed out, in paragraph 64 of this judgment, that the management of each of the other undertakings belonging to the group which are located in the Member States is under an obligation to supply the deemed central management with the information essential to the opening of negotiations for the establishment of a European Works Council which is in its possession or which it is in a position to obtain.
70. It follows that the provision of information on the average total number of employees and their distribution across the Member States, the establishments of the undertaking and the group undertakings, and on the structure of the undertaking and of the undertakings in the group, as well as the names and addresses of the employee representation which might participate in the setting up of a special negotiating body in accordance with Article 5 of the Directive or in the establishment of a European Works Council, may be demanded to the extent to which that provision is essential to the opening of negotiations for the establishment of such a council.