Fragmented legislation to be harmonised

The rights pertaining to information and consultation of the workforce under Community law are currently some of the most fragmented in the EU legislative body. In total, more than 15 Directives deal with information and consultation in some kind of a general or specific sense. Currently, three major European Directives form part of the social acquis in this regard: (i) the Directive on European works councils (EWC); (ii) the Directive on employee involvement in the European Company (SE), and (iii) the European framework Directive on information and consultation. Besides this general frame, a range of Directives secure the right of information and consultation of workers in specific situations, such as in relation to health and safety at the work place, or in case of collective redundancies, transfer of undertaking, mergers, takeover, etc, as shown in Figure 1.

Although the EWC Directives and the SE/SCE Directives are aimed at improving employee involvement rights in Community-scale companies, this framework was in 2002 completed – in order to plug the loopholes in Community law – by the general framework for informing and consulting employees. This was designed to close the kind of legal gaps that had been used by Renault to close down the Vilvorde plant and it had the effect of broadening the scope of the right to information and consultation to all EU member states, a development of particular relevance for countries (such as the UK and Ireland) where no such rules previously existed. The existing Directives are a clear expression of the willingness at European level to make employees citizens in their places of work. The same intention is reflected in the EU Charter of fundamental rights (referred to in the Reform Treaty) which gives information and consultation rights the status of a basic right of European citizens.

However, such fragmentation creates confusion and legal insecurity for both workers and their representatives as well as for management, compounded by the fact that most Directives are poorly implemented. To give some examples, although these Directives have a common subject, many of their components vary. For example, and in addition to the fact that their legal basis is different (‘employment’ Directives being based on former article 100 of the EC Treaty, whereas the Directive on European works councils is the first to be based on article 2(2) of the Social Policy Agreement, which did not require unanimity), thresholds for the application of the ‘ collective dismissals’ Directive are assessed in relation to the establishment, i.e. a work unit employing at least 20 people, and not in relation to the undertaking, deemed to be a decision centre according to Court of Justice case law (Judgment in Rockfon, ECJ 17 December 1995, C-449/93). In the ‘ transfer of undertakings’ Directive, it is a case of an economic entity being transferred, identified as being an undertaking which, according to the interpretation of the Court, is an activity or set of material, intellectual and human resources placed in the service of an economic purpose (Spijkers judgment, ECJ 18 March 1986, C-24/85/EC).

Moreover, whereas the ‘employment’ Directives relate to serious and specific situations such as collective dismissals and the transfers of undertakings, the European works councils Directive is broader in that it covers the development of the activities of an undertaking, whether economic and social, financial and technical, as well as any event substantially affecting the interests of the employees. The European works council Directive thus extends to transnational undertakings the right of workers’ representatives – as that right is derived from the ‘employment’ Directives – to be informed and consulted in exceptional circumstances. The scope of the ‘employment’ Directives is still national, whereas the ‘European works council’ Directive hypothetically concerns only undertakings or groups with a Community dimension. Lastly, the latter Directive leads to the introduction of an institution for the representation of workers through a new body created by Community law, whereas the ‘employment’ Directives refer to national representative bodies.

For the abovementioned reasons, the latest resolution of the European Parliament of 10 May 2007 urges the Commission ‘to take initiatives with a view to reviewing and updating Community legislation concerning information and consultation of workers, in order to ensure a coherent and efficient framework of law, guarantee legal certainty and improve the realisation of the social dialogue between the national and the European levels’. Consequently, the European Commission, on the basis of an experts’ report, produced under the supervision of Professor Ales, on the implementation of Directive 2002/14/EC (not yet published), intends in 2008 to undertake a harmonisation / codification exercise of the Information and Consultation Directives in the context of its simplification Rolling programme 2006-2009 (point 75 ‘to simplify {by recasting} the Directives on information and consultation of workers (conditional) in light of 2007 report on Directive 2002/14 and further discussions with member states)’. It is clear that procedure and outcomes in relation to this action point are still uncertain.