Since its introduction in October 2004, the number of SEs has increased steadily year by year. By end of March 2009 some 350 companies had been founded in the form of a Societas Europaea. However, this rather impressive total should not blind observers to the fact that many SEs do not conform to the standard definition, for they are, in their overwhelming majority, SEs without any employees (‘empty SEs’) and/or not even a specific business purpose (‘shell SEs’). This development represents a potential threat to worker involvement rights in an SE. In this regard, it has to be borne in mind that mechanisms for securing employee rights to information, consultation and participation are guaranteed only at the moment of founding of SEs. It is accordingly difficult to negotiate workers’ rights at a later point in time, when the company has recruited its employees. In this respect, the existing mechanisms of the SE Directive do not represent a sufficient guarantee. The Commission has in fact acknowledged this shortcoming in its recent communication on the revision of the SE.
By March 2009 an agreement on worker involvement had been concluded in no more than 41 out of the total of roughly 300 SEs. Particularly the agreements of the larger SEs are in general in line with good ‘EWC practice’ and on certain points they go beyond what is legally foreseen in the SE Directive. In 21 SEs out of the 41 where agreements on worker involvement have been signed, the rights enshrined in the agreement include board-level participation, thereby adding an important dimension for workers’ voice in company decision-making. By March 2009 around 75 employee board members originating from 9 countries (AU, BE, DK, FR, DE, IT, NL, PL, UK) representing the interests of the workforce on SE supervisory or administrative boards. A fundamental innovation introduced by the SE legislation is the transnational component of participation at board level. In a number of SEs (e.g. Allianz SE, BASF SE and MAN Diesel SE) employee representatives from several countries sit on the board and represent the interests of the whole workforce in Europe.