Betriebsrat der Firma ADS Anker GmbH v ADS Anker GmbH.
Date: 2004-07-15
46. As is clear from its general scheme, transnational informing and consulting of employees under the Directive are essentially to be ensured by means of a system of negotiations between the central management and the workers’ representatives ( Bofrost* , paragraph 29, and Case C-440/00 Kühne & Nagel  [2004] ECR I-0000, paragraph 40).
50. 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 an essential 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, and Kühne & Nagel , paragraph 46).
51. As regards, first, the setting up of such a council, the central management must, in accordance with Article 4(1) of the Directive, create the conditions and means necessary for the setting up of such a council. That responsibility includes an obligation to supply the employees’ representatives with the information essential to the opening of negotiations for establishing a European Works Council (see Kühne & Nagel , paragraphs 49 and 51).
52. Central management 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 that undertaking which, by virtue of its dominant influence, can request − and oblige − the other undertakings in the group to provide it with the information essential for opening negotiations in order to enable it to communicate that information to the representatives (see also, to that effect, Kühne & Nagel , paragraphs 52 and 54).
54. 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 under an obligation to assist the deemed central management in fulfilling the main obligation referred to in Article 4(1) of the Directive. 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 ( Kühne & Nagel , paragraph 59).
58. The Directive seeks to impose obligations on all undertakings in the group intended to facilitate the setting up of European Works Councils (see, to that effect, Bofrost* , paragraphs 31 and 35). As the Court has already held, it is implicit in the Directive’s purpose that the obligations which it lays down are to be fulfilled in such a way as to enable the workers concerned, or their representatives, to have access to the information which is necessary if they are to be able to determine whether or not they are entitled to request the opening of negotiations ( Bofrost* , paragraph 38).
63. Next, where the management of the other undertakings belonging to the group is located in the Member States, there is 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 where it is in possession of the information or is in a position to obtain it ( Kühne & Nagel , paragraphs 64 and 69).
64. Finally, as evidenced by paragraph 58 of this judgment, it is implicit in the Directive’s purpose that the obligations which it lays down are to be fulfilled in such a way as to enable the workers concerned, or their representatives, to have access to the information which is necessary for them to be able to determine whether or not they are entitled to request the opening of negotiations and, where relevant, to make that request in due form ( Bofrost* , paragraph 38).
65. It follows that the provision of information on the group’s companies and establishments, their legal form and representational structure, the average total number of employees and their distribution across the Member States, may be requested in so far as that information is essential for the opening of the negotiations referred to in Article 5(1) of the Directive for the establishment of a European Works Council (see, to that effect, Kühne & Nagel , paragraph 70). The same holds true for information on the names of the employees’ representation bodies and their representatives required to participate, on behalf of the employees of the undertakings or of undertakings controlled by them, in the establishment of a European Works Council.