Despite the efforts by the EU and the British government to come to an arrangement concerning Brexit and despite the fact that officially 'negotiations are progressing well and both we and the EU continue to work hard to seek a positive deal', the 'no deal' scenario remains possible. Especially that the UK prime minister, Theresa May, in her speech at the Conservative Party Conference seemed to clearly indicate that the UK was heading for a "hard Brexit".

In this context, on the 23 August, 2018 the British Government (Department for Business, Energy & Industrial Strategy) published a Guidance document concerning various pieces of legislation on workers participation in a scenario of 'Brexit without a deal' after the 29 March 2019. In this document, the question of what will happen to European Works Councils is addressed.

The Guidance stipulates that:

'With regards to European Works Councils, in a ‘no deal’ scenario, the government will ensure the enforcement framework, rights and protections for employees in the UK European Works Councils continue to be available, as far as possible in a ‘no deal’ scenario. There are implications for UK businesses and trade unions with regards to their European Works Council agreements.

UK regulations will be amended so that:

• no new requests to set up a European Works Council or Information and Consultation procedure can be made
• provisions relevant to the ongoing operation of existing European Works Councils will remain in force
• requests for information or to establish European Works Councils or Information and Consultation procedures made before EU exit but not completed by EU exit will be allowed to complete.'

In terms of actions that may be required of the stakeholders in a 'no deal' scenario the document, somewhat cryptically, informs that 'UK businesses with European Works Councils, and trade unions that are parties to European Works Council agreements, may need to review those agreements in light of there no longer being reciprocal arrangements between the UK and the EU.' In plain English the Guidance seems to stipulate that since there will be no legal foundation justifying the operation of British EWCs and the participation of British reprsentatives in EWCs established in other countries such agreements will have to be renegotiated to allow a continued operation of existing EWCs, a change of law on which they are based to that of another country's and/or a change of rules concerning participation of British representatives in existing foreign EWCs.

Consequences of a hard Brexit for EWCs will be profound and may comprise the following implications:

1. EWCs will no longer be able to function based on the British law, as the British Transnational Information and Consultation Regulations (TICER) transposing the EWC Directive 2009/38/EC will no longer be in place. Thus EWCs will have to migrate their agreement under the law of other Member States of the EU. British EWCs will thus have to renegotiate their agreements.
2. UK employees would no longer be legally entitled to be represented on EWCs.
3. The continued existence of “Subsidiary Requirement” EWCs could be called into question.
4. Question marks would be raised over UK union officials acting as experts to EWCs.

The British government insists that this Guidance is part of a 'series of technical notices' which set out 'information to allow businesses and citizens to understand what they would need to do in a "no deal" scenario, so they can make informed plans and preparations.'