Frequently Asked Questions (FAQ) on EWCs

Content from Frequent Questions / European Works Councils / Home - WORKER PARTICIPATION.eu (worker-participation.eu) should be displayed here

A short video (courtesy of FNV Formaat) explaining the basics of EWC and its purpose available at https://www.youtube.com/watch?v=zQLtOPtDpCc

Council Directive 94/45/EC of 22 September 1994 (henceforth, the ‘EWC Directive’) introduces European Works Councils or alternative procedures/structures in order to ensure information and consultation for employees of multinational companies that meet certain criteria.

The following criteria apply under Directive 2009/38/EC (EWC Directive):

a. community-scale undertakings (multinational companies) – undertakings employing at least 1,000 employees within the EU Member States and the European Economic Area (EEA: EU 27 + Liechtenstein, Iceland and Norway) and at the same time employing at least 150 employees in each of at least two EU Member States.

b. community-scale groups of undertakings – groups of undertakings (a controlling undertaking and its controlled companies) employing in total within the EU Member States and EEA at least 1,000 employees and controlling at least two group undertakings in different Member States, of which each employs at least 150 employees.

It is worth noting that the location of the headquarters of a multinational company or group of undertakings has no influence on the application of the EWC Directive. Even if the company’s main HQ is outside the EU, as long as the company has 1,000 employees in the EU and at least 150 in two or more EU Member States the EWC Directive still applies. In fact, many companies registered for instance in the USA or Japan meet the above criteria and thus are covered by the EWC Directive.

· The amendments to the EWC Directive largely concern some new or revised procedural law provisions relating to the establishment of future EWCs, such as the revised arrangements on the composition of the Special Negotiating Body for negotiations with the central management or additional provisions concerning matters whose inclusion in an EWC agreement is now mandatory.
In this way the situation of plant workers’ representatives and of the trade unions in the founding of EWCs was improved and a basis formed, by means of several new provisions that now have to be included in EWC agreements, for making the work of the EWC more effective.
The provisions on cross-border information and consultation of employees and their representatives in the EWC have been refined significantly and clarifications provided on the forms of participation of workers’ representatives at national and European level. These approximate how things currently stand as regards the Directive on employee involvement in the European Company of 2002.
Finally, existing EWCs retain the right to renegotiate in the event of structural changes in the company, if practicable information and consultation of all employees in accordance with the agreed standard is no longer guaranteed.

The Mergers Directive shall be without prejudice to the rights provided in the EWC Directive. European works councils can also be established in addition. In contrast to the SE legislation the Mergers Directive does not provide for the establishment of a transnational representative organ with information and consultation rights. These rights can, therefore, be exercised only through the establishment of a European works council.

As the title already suggests, the directive represents a supplement to the ECS with regard to the involvement of employees. No SE with employees can be set up without an arrangement for involvement of the employees.

The SNB represents the employees in negotiations with the managements of the companies involved in the merger in order to reach a written agreement on employee participation in the company resulting from the merger. In principle, the SNB should be established if one of the three exceptional cases under Art. 16 II Mergers Directive applies. Timewise, the SNB must be established as soon as the enterprise managements have made known their intention to merge. The SNB can request that experts of its choice assist it in its work. In this context, the Directive explicitly mentions the possibility of calling in representatives of Community-level trade union organisations (Art. 16 III lit. a Mergers Directive in conjunction with Art. 3 IV SE Directive).

The SNB has the task of determining, in accord with the central management, by written agreement:

the scope,
composition,
functions, and
term of office

of an EWC.

Yes, an SNB has the right to call upon experts of its choice. Directive 94/45 explicitly stipulates (Art. 5 paragraph 6) that the cost of expert advice and any other costs of the functioning of an SNB shall be borne by the central management. But Member States are entitled to limit (in their transposition laws) the coverage of expert costs borne by the management to one expert only.

Procedures for the selection of SNB members are laid down by the national transposition laws of the Member State in which the given member is to be elected. These procedures may differ in each Member State. It is highly advisable that each elected member of the SNB present the SNB with proof of a lawful mandate (for example, protocol of the elections).

The SNB must have a minimum of three and may have a maximum number of members equal to the number of Member States in which a company is active (recent technical amendment of the EWC Directive adopted on 20 November 2006 by the European Commission, COUNCIL DIRECTIVE 2006/109/EC), in respect of the fact that:

i) each Member State in which a company has a subsidiary must have at least one member, and

ii) there are supplementary members in proportion to the number of employees working in the establishments within one country of operations.

It is obligatory to inform the central and local management about the composition of the SNB.

i) each Member State in which a company has a subsidiary must have at least one member, and

ii) there are supplementary members in proportion to the number of employees working in the establishments within one country of operations.

It is obligatory to inform the central and local management about the composition of the SNB.

In general, the SNB takes its decisions (e.g. to conclude an agreement) by an absolute majority of its members which must also represent the majority of the employees. Each member has one vote.

However, if the decision should lead to a reduction of participation rights, a double 2/3 majority is required, i.e. at least 2/3 of the SNB members representing 2/3 of the employees. Moreover, the votes must come from at least two different countries. These high requirements are needed only when participation covered 25% (merger) or 50% (holding / subsidiary) of the employees. (Reduction of participation rights means a proportion of board members which is lower than the highest proportion existing within the participating companies).

A double 2/3 majority (see above) is also needed if the SNB decides not to open or to terminate negotiations.

(> possible results of negotiations)

In general, the SNB takes its decisions (for example, to conclude an agreement) by an absolute majority of its members, which must also represent the majority of the employees. Each member has one vote (Art. 16 III lit. a Mergers Directive in conjunction with Art. 3 IV SE Directive).

However, if the resolution would lead to a reduction of participation rights, it can be passed only with a qualified majority, that is, at least two-thirds of the SNB members representing two-thirds of the employees must pronounce in favour of it. Moreover, the votes must come from at least two different member states. These exacting requirements are applied only when participation covers 25% of the employees of the involved companies before the merger. A reduction of participation rights means a proportion of supervisory or administrative board members of the company resulting from the merger which is lower than the highest proportion previously existing within one of the companies involved; see Art. 16 III a Mergers Directive in conjunction with Art. 3 IV SE Directive.

This qualified majority is necessary when the SNB wishes to resolve not to enter into negotiations or to break them off (Art. 16 IV b Mergers Directive).

The special negotiating body and central management shall negotiate an agreement on an EWC in a spirit of cooperation with a view to reaching an agreement on the detailed arrangements. Normally, such negotiations lead to the signing of an agreement. But if no agreement is signed within three years of a request to establish an EWC being submitted due to, for example, a conflict or different views of the negotiating parties the so-called ‘subsidiary requirements’ come into force. Subsidiary requirements are provisions laid down by the legislation of a Member State (transposition law) and they need to be in line with the Annex to Directive 94/45. These provisions were designed to avoid a situation in which obstruction by one party during the negotiations leads to a deadlock in the process of establishing an EWC. Thus, they set minimal standards which stipulate basis principles governing the functioning of a EWC.

According to Art. 16 III a Mergers Directive and Art. 3 II SE Directive, the seats in the SNB are allocated proportionally among the member states in which the companies involved in the merger have employees: for every 10% (or fraction thereof) of the total number of employees of the companies involved in the merger, the country has the right to send one member to the SNB. Thereby, all countries concerned will have at least one representative on the SNB. There could be additional seats (but not more than 20% of the total number) to ensure that all involved companies are represented in the SNB.

It was up to the individual member states to define how their SNB members are elected or appointed in their national transposition laws related to the SE Directive. Furthermore, the member states could provide that trade union representatives be allowed to become SNB members, even if they are not employees (Art. 16 III a Mergers Directive in conjunction with Art. 3 II b SE Directive). In Germany, for example, in the case of an SNB with more than two members from the home country, every third member must a trade union representative (§8 III MgVG [Mitbestimmung Verschmelzungsgesetz – Participation Merger Law]).

The procedure is similar to that for which provision is contained in the European Works Council (EWC) Directive. Instead of prescribing detailed provisions on how employees have to be involved, the Directive provides for an agreement negotiated between the participating companies and a special negotiating body (SNB) representing the employees . Additionally, it provides for obligatory standard rules in cases where the negotiating partners fail to reach an agreement.

There is one major difference with the EWC procedure: No initiative by the employees is needed. In fact, it is the management or administrative bodies of the participating companies which have to take the necessary steps to start – as soon as possible – negotiations with the representatives of the companies’ employees on arrangements for the involvement of employees in the SE.

(> time frame for the negotiations)

Recast Directive 2009/38/EC

With the adoption and entry into force of the Recast Directive 2009/38/ec in June 2011 the situation of workers with regard to the right to training greatly improved. In Recital 33 of the Preamble it is recognised that 'In order to perform their representative role fully and to ensure that the European Works Council is useful, employees’ representatives must report to the employees whom they represent and must be able to receive the training they require.'

Based on the provision of Art. 10 of the Recast Directive now 'In so far as this is necessary for the exercise of their representative duties in an international environment, the members of the special negotiating body and of the European Works Council shall be provided with training without loss of wages.'

It is important to highlight that training is to be provided without the loss of wages (i.e. in the working time) and for both members of the SNB and EWC. The bone of contention may be the vague formulation 'in so far as this is necessary for the exercise of their representative duties' as the Directive is not clear on who decides about this and the Member States do not specify this, but implicitly this should be workers' representatives themselves who determine their needs themselves.

The change in legislation brought about an essential improvement in EWCs access to trainings, which is however, still not perfect:

EWC training from FF2015

Source: De Spiegelaere and Jagodzinski (2015) European and SE Works Councils 2015. Facts and Figures.

Please note that the Education Department of the ETUI provides tailor made trainign for EWCs. More information about the training can be found on the dedicated website www.ewc-training.eu

Old directive 94/45/EC

EWC Directive 94/45 did not mention training for EWC members. This is one of the most serious drawbacks of this regulation, especially compared to other EU acts dealing with employee representation such as the ‘SE Directive’. Therefore, negotiating provisions securing training opportunities for EWC members was purely a contractual affair. This weak positioning of training was reflected in a relatively low rate of EWC agreements mentioning an entitlement to education (28 per cent of all EWC agreements, both active and no longer valid – reported ETUI database on EWCs in 2006).

The Directive stipulates that EWCs should:

a) be established at the group level, and

b) unless wider scope is provided for in the agreements governing their powers and competences (or the scope of information and consultation procedures, if such an alternative exists at a company), cover all establishments and all group undertakings located within the Member States .

In other words, EWCs shall be established at supranational level and, at the same time, cover all the subsidiaries and establishments of that group/multinational company.

The experience of over 800 EWCs and many research projects proves a simple correlation: the more often an EWC meets during a year the greater its efficacy and the more important its role. The majority of EWCs (over 50 per cent) have only one annual session foreseen in their agreement, plus an extra meeting in cases of restructuring or other exceptional circumstances. Unfortunately for these EWCs they find it very difficult to make their meetings an effective instrument of employee representation and to go beyond merely fulfilling the formal obligation to have EWC sessions.

The following criteria apply under Directive 2009/38/EC (EWC Directive):

In professional jargon one often hears about German- or French-type EWCs. The two terms refer to different compositions of EWC sessions. The criterion for distinguishing between them is whether management participates in the sessions of an EWC or not. In an EWC of the German type only the employee representatives are allowed to participate in the sessions. No delegates of the management are invited nor admitted to such internal EWC sessions. This approach stems from the German tradition of industrial relations and is closely related to the concept of the German works council or Betriebsrat, which is exclusively an employee body.

On the other hand, the French type of EWC comprises at its sessions representatives of both management and employees. They debate and reach decisions together. Moreover, in contrast to the German model, the EWC is most often chaired by a representative of the central management. Such a solution is not acceptable for German EWC members or trade unionists for whom works councils and EWCs are bastions of employee representation.

All in all, these two models are not very different from each other. This is due to the fact that in the German-type EWC such exclusively internal meetings are followed by a joint session with the management, during which all issues are discussed again. In the French-type EWC, on the other hand, it is a commonplace that the joint sessions of the EWC are preceded by preparatory meetings of the employee representatives. During these pre-sessions the employee delegates prepare the agenda, discuss points of special interest, agree upon strategy, and so on. Therefore, although the two models represent different philosophies and traditions of industrial relations they have relatively moderate implications for the functioning of EWCs.

An alternative and a compromise between the French and German models is a system of alternate chairmanship. In this structure the employees’ representative holds the chairmanship for a certain period of time, after which its counterpart on the management side takes over. Another alternative may be a system of joint chairmanship, in which the chair is a two-person office held jointly by employees’ and management representatives. The latter solution might have serious legal implications in case of a conflict between the EWC and the company management, however; in some cases, where the possibility of a joint chair is not foreseen by national legislation, the EWC might be hindered in bringing a case to court in consequence of having a management representative as the chairman.

Yes, all EWC members, as well as members of the special negotiating body, enjoy the same protection as trade union members in their home countries (the countries which they represent).

The EWC Directive does not mention any substructures within the EWC apart from the offices of Chair and Select Committee (see also Question 23). The EWC is, nonetheless, not limited in its freedom to establish, for example, working groups. Such working groups exist in some EWCs and have the task of tackling specific issues, either on a regular basis or ad hoc matters that arise in the course of the functioning of the EWC (for example, the EWC at Gucci). Such subgroups present the EWC with reports and possible solutions, and are often equipped to work closely with the company management between the plenary sessions of the EWC.

The first step in establishing an EWC involves negotiations between a Special Negotiating Body and the management of the company. Negotiations may be initiated either by the management (more seldom) or at the written request of at least 100 employees or their representatives from at least two undertakings or establishments in at least two Member States.

In case of employees or their representatives submitting the demand to the management to start negotiations it is necessary for the workers’ side to obtain information about employee numbers and company undertakings operating in other Member States. The management is obliged to provide such information to the employees or their representatives without unnecessary delay and cannot refuse to fulfil this obligation by saying they have no access to such data.

At the beginning of July 2008 the European Commission adopted the long awaited legislative proposal for a revised EWC Directive. This had been preceded by a hard-fought struggle between the ETUC (European Trade Union Confederation) and employers’ federations under the leadership of Businesseurope (European confederation of industrial and employers’ federations). For the last decade or so they had blocked every initiative to improve interest representation in European companies to the bitter end.
This refractory stance was also the reason why in spring 2008 the ETUC did not make use of the possibility of bringing about a revision of the EWC Directive via social partner negotiations on the basis of the social dialogue. It was all too clear that this would only lead to further delays.
The ETUC therefore expressly welcomed the Commission’s proposal to surmount the European employers’ opposition by taking the legislative initiative itself. In any case, the existing 1994 EWC Directive was not the result of the social dialogue. Even then, at the end of the 1980s, there was no real chance of reaching agreement with European employers on putting into practice the right to information and consultation laid down in the European Charter of Fundamental Rights for employees.
A good 15 years after the adoption of the EWC Directive a window of opportunity opened up once more to adapt the rights of EWCs to the realities of the European Single Market and so to strengthen the options of EWCs and to clear up remaining legal uncertainties.

The EWC Directive, under ‘Subsidiary requirements’, stipulates that ‘the EWC shall have the right to meet with the central management once a year, to be informed and consulted, on the basis of a report drawn up by the central management’. This provision states a normal frequency of meetings (in exceptional circumstances the EWC has to meet more often).

Despite the fact that Directive 94/45 speaks about only one meeting this statement should be considered solely as a minimal standard. Much research has shown that one EWC session a year is insufficient to enable this body to function effectively. The relationship between the frequency of meetings of an EWC and its efficacy is clear: the more often the EWC members meet the more effective they are in representing employee interests.

It is obvious that EWCs are likely to become cognisant of confidential information. Various kinds of information may be of crucial importance for the company’s interests and performance and their dissemination should be protected in order to avoid the EWC being the source of ‘leaks’, causing losses for the company. On the other hand, if an EWC is to be taken seriously it is imperative that it be treated as an insider with an insight into the company’s performance, financial and production reports, and so on, and all data concerning the functioning of its undertakings. These circumstances have the potential for a conflict of interests.

For the reasons mentioned above, in Art. 8 of the Directive it is stipulated that the information conveyed to the EWC or experts as explicitly confidential must not be passed on by EWC members or experts. Individual Member States were granted a rather wide margin of discretion as regards setting rules for confidentiality.

On the other hand, EWC practice reveals that managements sometimes abuse the confidentiality clause, so hindering the flow of information both to ordinary employees and to external experts assisting the EWC (for example, trade union experts). Cases of such conduct on the part of the central management are extremely difficult to litigate on the grounds of Art. 9 of the Directive, namely the obligation to work in a spirit of cooperation with due regard to the reciprocal rights and obligations of the parties. It can be argued that the abuse of the confidentiality clause in extreme cases can be countered with an appeal to a labour court on the basis of, for example, Art. 9 of the Directive. Nonetheless, lawsuits are costly, represent the last resort for an EWC and are by no means advisable as a universal instrument.

Firstly, subsidiary requirements are provisions setting minimal standards for EWC functioning (see also Question 14). They are laid down in the Annex to the Recast Directive 2009/38/EC

Article 7 of the Directive lists situations in which subsidiary requirements come into force:

when the parties to negotiations decide so;
when the central management refuses to commence negotiations within six months of the submission of a request;
when, three years from the date of this request, the parties are unable to conclude an agreement.

This list of possibilities for application of the subsidiary requirements is closed.There is, however, an important problem with implementation of Art. 7 at national level, as in most countries there are no clear provisions stating what is the procedure for applying Subsidiary Requirements in case when management refused to commence negotiations or when negotiations failed after 3 years.

The following criteria apply under Directive 2009/38/EC (EWC Directive):

Contrary to the old repealed directive 94/45/EC where only a definition of consultation (art. 2 point f of the Directive): ‘ the exchange of views and establishment of dialogue between employees’ representatives and central management or any more appropriate level of management’ was given the Recast Directive 2009/38/EC made substantial progress. The Recast Directive now provides both a definition of information and consultation (Art. 2.1):

‘information’ means 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 the possible impact and, where appropriate, prepare for consultations with the competent organ of the Community-scale undertaking or Community-scale group of undertakings;

‘consultation’ means the 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;

The ultimate aim of the EWC Recast Directive 2009/38/ECis to provide the employees of multinational companies with proper information and consultation procedures. The EWC is a concept/structure proposed by the Directive as, in legal terms, the most precisely described and thus the easiest to apply form of institutionalised flow of information and channel for consultation. Nonetheless, it is not the only solution. The Directive gives the contracting parties (SNB and company management) the ability to elaborate a solution that will be the functional equivalent of an EWC. Such an alternative must not be named an EWC, however, even if it performs the minimal functions foreseen for an EWC (see Question 12), that is, first and foremost, exchange of information and consultation. Such a body may even go far beyond the competencies of a standard EWC, may have another name, and so on, yet the procedures for its establishment and, to some extent, its functioning need to be in line with the requirements foreseen for EWCs.

At the time of adoption of the EWC directive it was applicable to companies having operations in the then EU Member States (excluding the UK on the basis of the opt-out clause in the Maastricht Social Protocol): Belgium , Denmark, Germany, France, Greece, Ireland, Italy, Luxemburg, the Netherlands, Portugal and Spain. In 1995, with the accession of three new Member States – Austria, Sweden and Finland – the scope of the Directive was increased to companies operating also in these countries. In 1997 Directive 97/74/EC of 15 December extended the application of the EWC Directive also to the UK. Finally, in 2004, with the enlargement of the EU by ten new Member States, the EWC Directive became applicable also to undertakings operating in these states: Cyprus , Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovenia, Slovakia.

On 01.01.2007, as a result of the latest round of EU enlargement and the accession of Bulgaria and Romania, the geographical scope of the EWC Directive increased again, as the acquis communautaire was adopted on entry to the EU.

On the 01.07.2013 Croatia became the 28th Member of the EU and the EWC Directive is now applicable there too.

Meanwhile, on 22.06.1995, by means of the Decision of the Joint Committee of the European Economic Area the application of the Directive 94/45 was extended to the three EEA Member States: Iceland , Liechtenstein and Norway.

The EWC Directive currently applies to community-scale undertakings operating in the 30 Member States of the EU and EEA.

Finally, in 2019 when Brexit becomes reality the geographical scope of the Recast Directive on EWCs will shrink as it will no longer apply to the United Kingdom. This is a cause of significant concern for the operating EWCs, workers in the UK and social partners supporting the EWCs.

Firstly, companies (and thus EWCs) which established an EWC or a procedure for information and consultation before 22.09.1996 (deadline for transposition into national legal systems of the original Directive 94/45/EC) are exempt from the regime of the EWC Directive (so-called ‘Article 13 agreements’, voluntary EWC agreements).

Also, based on Article 14 of the Recast Directive obligations arising from this directive do not apply to companies where EWC agreement was concluded pursuant to Article 13(1) of Directive 94/45/EC (or Article 3(1) of Directive 97/74/EC), i.e. so called Art. 13 agreements, or where such agreements are adjusted because of changes in the structure of the undertakings or groups of undertakings;or an agreement concluded pursuant to Article 6 of Directive 94/45/EC is signed or revised between 5 June 2009 and 5 June 2011. When such agreeements expire, the parties to those agreements may decide jointly to renew or revise them; where this is not the case, the provisions of this Directive shall apply.

Secondly, in Art. 1 paragraph 7 the Directive states that it shall not apply to merchant navy crews.

Companies having headquarters outside the EU, though fulfilling the criteria laid down in the Directive are NOT exempt from the Directive.

In order to check whether a company meets the criteria laid down in Directive 94/45 one needs to make sure that this company is active in at least two EU/EEA Member States. Secondly, conformity with the given employee thresholds needs to be verified. All the prescribed employee thresholds should be based on the average number of employees, including part-time workers, employed during the previous two years. Methods of calculation must be in line with national legislation and/or practice.

The main partner of an EWC is always the central management of the company. In case the central management/headquarters are situated outside the EU or EEA (for example, in the USA) the central management shall be represented by a designated agent who is responsible for all issues concerning the EWC (or its establishment).

In the absence of such a representative of the central management the management of the establishment (or group undertaking) employing the largest number of employees in any Member State is considered the agent of the central management located outside the EU/EEA and hence has all the consequent responsibilities.

Directive 94/45 (Subsidiary requirements) stipulates that an EWC shall have a minimum of three members and a maximum of 30. But taking into consideration that in some large multinational companies there are representatives from all EU/EEA member states and that often there is more than one representative from a single country (on the basis of proportional formulae calculated according to the workforce in a given country) the maximum number is often exceeded (for example, the EWC at Saint Gobain has 70 members).

There are a few institutions which provide assistance for already existing EWCs and SNBs, as well as for those trying to start the process of establishing an EWC. The first, most practically-oriented bodies are always the European Trade Union Federations (in the past referred to as European Industry Federations (EIFs). They are European-level bodies representing employee interests in assorted ways at the international/European level. Each ETUF operates in a specific sector and is responsible for coordinating and contacts with employee representatives and trade unions acting in undertakings within that sector. Here is a list of ETUFs:

IndustriAll (regrouping former European Metalworkers Federation (EMF), European Mine, Chemical and Energy Workers’ Federation (EMCEF), European Trade Union Federation – Textile, Clothing and Leather): www.industriall.org
UNI-Europa covering services – www.union-network.org
European Federation of Food, Agriculture and Tourism (EFFAT) – www.effat.org
European Federation of Building and Woodworkers (EFBWW) – www.efbww.org
European Transport Federation (ETF) – www.etf.org
European Journalists’ Federation (EJF) – www.ifj-europe.org

Furthermore, the European Trade Union Confederation (www.etuc.org) regroups the trade unions' arguments and positions on EWCs.

European Trade Union Institute via its European Workers' Participation Competence Centre provides expertise (via this website). It also runs a database of EWC agreements (available on this www.ewcdb.eu). The Education Department of ETUI provides EWCs, trade unions and other partners with customised training on various issues concerning the functioning of EWCs (see www.ewc-training.eu)

Most of the regulations in the recast EWC Directive apply in the first instance to EWCs yet to be established or to be revised/renegotiated after 2011. It was not possible to push through an automatic obligation to revise existing EWC agreements. Having said that, the text of the new Directive now contains a quite useful revision clause that it will be possible to apply for many existing EWCs in future, after the EWC Directive has come into force.
Existing EWCs retain the right to renegotiate the EWC agreement if substantial changes in the size or structure of the undertaking no longer guarantee practicable information and consultation of all employees in compliance with the agreed standard. The clarifications on this point are to be particularly welcomed, in accordance with which existing agreements are to remain in place during renegotiation.
EWCs founded before the existing EWC Directive came into force at national level in September 1996 will explicitly also be entitled to exercise this option. In the event of renegotiation of agreements reached voluntarily and with weak provisions, however, the regulation contains no compulsion for employers to agree to a better and more effective agreement. For example, the Directive lacks a clarification concerning what has to happen if agreement is not reached in the event of such renegotiation.
However, this possibility will not be available before 2011 and the implementation of the new EWC Directive in national law.
What is certain is that the new Directive from 2011 will not apply to agreements revised or newly concluded during the transitional period between May 2009 and May 2011. In these negotiations the improved regulations of the new Directive should be used proactively as guidelines in the conclusion of new agreements or in follow-up negotiations on existing EWC agreements. Alternatively, these agreements could be set to expire at the end of the transitional period or an appropriate adjustment clause can be agreed related to the new EWC legislation.

The revised Directive on EWCs was adopted at its first reading by a large majority in the European Parliament in mid-December 2008. Further substantial amendments were made on which almost unanimous agreement was reached immediately afterwards in the Council. As a result, there is no obstacle to the formal adoption of a resolution on the new EWC Directive by the Council of Ministers of Employment and Social Policy in spring 2009.
The new EWC Directive therefore replaces the 1994 text, but it will not come into force immediately. With the publication of the EU Official Journal begins the usual process for EU directives of implementing European framework legislation in the labour codes of individual member states.
That applies to all 27 EU member states and the EEA countries. All the countries that have joined the EU up to this point have to have implemented this directive at accession.
In effect, the new legal foundation for EWCs will therefore not come into force before 2011. From then on, no matter what the new procedural rules for founding EWCs, as well as the new legal entitlements of EWC members and the regulations on the revision clause for existing EWCs in the case of substantial structural changes in the undertaking shall apply.

We can assume that the situation of enterprise workers’ representatives and trade unions will improve as regards EWC foundation. For example, in future it will be much easier to get company managements to divulge the information needed on the structure of the company to prepare for the commencement of negotiations.
We can expect that this necessary clarification will in future contribute to avoiding possible disputes on this point. In the past on several occasions problems had to be fought out before the European Court of Justice. In extreme cases legal disputes lasted years concerning who exercised a dominant influence in a firm, among other conditions for founding an EWC. It should now be much more difficult for enterprises to shuffle out of their responsibility when the employees wish to found an EWC.
Nevertheless, enterprises are still under no obligation to inform concerning mergers or takeovers possibly resulting in the renegotiation of EWC agreements by virtue of being structural changes.
However, the trade unions have been granted a much more significant role in the implementation of the EWC Directive: both the European trade union confederations and the European employers’ organisations are to be informed of the commencement of negotiations and the composition of the Special Negotiating Body.
This amounts to express recognition of the positive role of the trade unions in negotiations and makes their participation in the EWC easier. In this way trade union assistance for workers’ representatives in undertakings should be ensured at an early stage.