1. Recast Directive on European Works Councils - the role of implementation Journée d'étude du 24/04/09 Comité d'entreprise Européen / Studiedag van 24/04/09 -Europese Ondernemingsraad Romuald Jagodzinski

2. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 2 Agenda 1. Introduction - Background 2. Court cases before the European Court of Justice 3. Court cases before national labour courts 4. ETUC Early Warning System

3. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 3 New provisions / changes to the EWC directive

4. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 4 Legal nature of directive ● Directive ● Sets goals for Member States (MS) without prescribing concrete measures guaranteeing its attainment ● Measures leading to accomplishment of the given goals remain in competence of national authorities ● Directive ≠ regulation ● Addresse are MS  no direct application of the directive (however ECJ Francovich v. Italy)Francovich v. Italy ● Requires implementation onto the national level – various forms are possible (social partners agreement, act, provisions directly in labour code) ○ Absolutely crucial meaning for rights and obligations stemming from the directive ● Must be in line with the directive (goals) ● Is the basis for EWC agreements

5. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 5 Implementation report on directive 94/45 ● European Commission’s Implementation Report of 2000 (COM(2000)188): ● Generally a ‘very positive’ assessment of solutions applied by the MS ● „a number of minor discrepancies” between the directive and implementation acts ○ method of counting part-time workers ○ number of representatives in the SNB ○ a lack of detail (preparatory meetings) ● “In any event, these discrepancies must be interpreted as being in the spirit of the Directive.”

6. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 6 Implementation report on directive 94/45 ● Issues needing "further interpretation“ ○ the concepts of "controlling undertaking" and "expert", ○ the "effects of geographical and proportional criteria (presumably in relation to the allocation of SNB and EWC seats) ○ the conditions for renewing Article 13 agreements ○ the law applicable to agreements and their legal status

7. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 7 Background – Implementation report ● The Directive has been "smoothly integrated into the industrial relations systems of the different countries ● the report notes the possibility in some circumstances of "friction" between national and European - level employee representatives ● These issues can be resolved by the parties concerned or by the courts (!) ● a number of "legal and practical problems" (highlighted at the April 1999 conference on "European Works Councils: practice and development“)

8. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 8 Background – Implementation report ● questions as to whether the present Directive is sufficiently clear on the timing of information and consultation, i.e. before a decision is taken; ● the importance of a right to training for SNB and EWC members ● the need for "efficient information and consultation systems to exist at national level" and for an effective flow of information between Community and national levels of worker representation.

9. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 9 Implementation report on directive 94/45 ● Guarantees concerning law enforcement and access to justice for EWCs ● Commission’s report: shortly, superficially and descriptively ○ 3 areas ● Confidentiality and sanctions for breach (point 3.9) ● Generally penal and/or civil sanctions (damages) ● Penalties for breach of provisions of the transposition acts (generally) (point 3.11) ● Naruszenie porozumień zbiorowych (DK, SE) ● Ogólne procedury prawa pracy ● Remedies = Jurisdiction / competence of courts (point 3.12) ● Lack of a thorough reflection + conclusions by the Commission ● Lack of corrective actions to remedy possible failures in implementation

10. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 10 ETUI Project “EWC related jurisprudence” ● EWC agreements as a specific embodiment of social dialogue ● Tailor-made solutions ● High flexibility / generality of provisions ● EWC Directive’s weak / missing provisions ( generality!) ● Key definitions of ‘information’ and ‘consultation’ ● Guarantees for EWC rights and their enforcement ○ Lack of sanctions for breach of EWC law and absence of uniform procedures ● Resources for EWCs and objectives (mismatch!)

11. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 11 Transposition acts as the crucial link between the EWC directive and EWC agreements ● Information and consultation is a form of the social dialogue ● Quality of the dialogue is a result of parties’ intentions and willingness ● EWC agreement is the primary source of EWC rights ● Key role of negotiations / renegotiations of agreements ○ According to the recast directive (EC) agreements (re)negotiated between announcement in OJ and implementation deadline out of scope of the recast directive ○ Recast will cover agreements after implementation deadline (may 2011?) ○ Adaptation clause of the art. 13 (recast directive) ● Social dialogue can generate conflicts! ● Role of institutions of law in enforcing, executing and allowing access to justice in case of conflicts

12. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 12 ETUI Project “EWCs in court rooms across EU” ● 3 hypotheses: ● weak and vague provisions of the EWC directive, and consequently of national transpositions, can lead to court disputes ● in view of imprecise and incomplete provisions of the EWC directive(s) increased role of labour courts ● Claiming I&C laws strongly depends upon national enforcement measures and the quality of law ● Findings: ● Over 50 cases of national litigation across the EU ● Main objects of litigation: ○ Restructuring ○ Withholding information + timing + content ○ procedural issues (elections, mandate to represent) ● Tools: ● Mapping EWC related cases in Europe ● Mapping EWC legal standing in national transposition law

13. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 13 Meaning of institutions of law in safeguarding compliance with the directive

14. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 14 Source: R. Jagodzinski @ etui (2009)

15. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 15 Differences in transposition of directive 94/45 Competence of ‘tribunals/courts/supervisory organs: ● Variety of solutions ○ Courts: labour courts / civil courts (art. 13 AT) / penal courts ○ conciliation/arbitration bodies (NO, UK) ○ Labour Inspectorates only (EE) ○ control committees / special bodies (RO) ○ ad hoc committees in ministry (IT) ○ Not specified (LV, LT) ● Variable court competence depending on object of litigation (e.g. penal courts vs. civil courts) ● Variable court competence depending on type of agreement ○ Art. 13 – civil courts ○ Art. 6 – labour courts / other ● Question ad. Recast directive: ● Will the EC ensure proper implementation of access to justice? ● Ensuring execution of establishment of EWCs on subsidiary requirements?

16. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 16 ● Legal personality / capacity to act in courts ● In 4 countries (AT, FR, DE, SE) EWCs have legal personality ● Capacity to act in courts in 9 countries (UK, IE, LT, NL, LO, PL, RO, SK, ES, SE) ● Entitlement to start legal proceedings: BE, EE Conclusions: ●  the right to act in courts is guaranteed in 15 MS ●  13 MS does not stipulate / guarantee access to justice (!) ● Recast directive art. 10: “(…) rights stemming from this directive to collectively represent the interests of the employees” Mapping EWC legal standing in national transposition law Diversity of national solutions

17. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 17 Execution and enforcement of EWC law Sanctions ● Disproportion (?): sanctions for breach of confidentiality seem more stringent (penal sanctions; see Implementation Report 2000) ○ imprisonment, civil liability for damages, disciplinary santions ● Category of breach/infringement ● Breach of I&C law not classified as offence or crime (CZ, EE, FL, GR, HU, LV, LU, MT, NL, NO, SL, SE) ● No crime – BG ● Offence / minor infringement ● Variety of solutions ○ fine (various limits) ○ Detention / imprisonment (rare) ○ Absence of the null and void sanction – only FR in jurisprudence ● Underdevelopment as compared to SE regulations Lack of precision concerning sanctions - In 9 countries (AT, BE, BG, CZ, ES, HU, LV, NL, SK) sanctions are not defined in the act transposing the EWC directive - limited transparency / limited confidence in law / problems with assessing the possible outcome - lack of clearly defined sanctions might reinforce ignorant and persistent breach of law Differences in scope of sanctions - minimum limit: 4 Euro (PL) and 290 (LT) - maximum limit: 1100 EUR (PL) vs. 15 000 EUR (DE)

18. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 18 ● Costs of legal proceedings ● Costs of registration / court fees ● Legal counselling ● Costs of court proceedings ● In all MS defined by reference to other acts ● Each party its own costs: AT, IE ● The party that looses: BE, FL ● Trade unions / EWC members individually: DK ● Depending on courts decision ● Exemption from court fees (ES, FR, DE) ● EWC has own budget by law: FR, PL, RO Mapping EWC legal standing in national transposition law Diversity of national solutions Recast directive: major improvement in Art. 10: “(…) the members of the EWC shall have the means required to apply the rights stemming from this Directive to collectively represent the interests of employees …” The directive 94/45 does not guarantee coverage of costs of an EWC (only content of the agreement art. 6.2 f) in BE transposition art. 42: “The operating expenses of an EWC shall be borne by the central management” Lack of regulation of the question of costs of legal proceedings = lack of legal security / transparency

19. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 19 Nowe postanowienia / zmiany w dyrektywnie o ERZ

20. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 20 Conclusions ● Precondition for effectiveness of the new recast directive ● Proper and complete transposition ● Meaning of negotiated arrangements Art. 9 of an EWC Agreement: ● “(…) The EWC shall be able to receive support… ● (…) The two parties recognise and declare that they proceed to the present agreement on good will (…). Nevertheless, they recognise that in cases where a legal procedure is necessary, always in relation to the Law, (…), the expenses for launching a legal procedure shall be covered by the Group under the condition that the latter shall be informed beforehand about this cost and that it only refers to procedures necessary for the application of the legislation provisions. Furthermore, it is understood and stated that the purpose of the present provision is not to constitute the issue of costs as prohibiting for the beginning of the procedure for the provision of decrees as these are foreseen by legislation.”

21. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 21 Conclusions ● Key role of the forthcoming implementation ● Monitoring of government work on implementation ● Lobbying for effective, complete and transparent legal solutions ● Lobbying towards the EC ○ Working Party for Implementation ○ Special character of the EWC directive (social dialogue) ○ Special position of social partners ? ○ Qualitative counseling for MS on implementation ○ Monitoring of implementation works across the EU ○ possible corrective actions ● Special meaning of law enforcement and guarantees for access to courts ● Renegotiation of EWC agreements in the spirit of the recast directive ○ Special value of cooperation with EIFs

22. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 22 ● www.etui.org www.etui.org ● www.worker-participation.eu www.worker-participation.eu  European Works Councils  Revision of Directive  FAQ on Recast Directive - new ● www.ewcdb.eu www.ewcdb.eu ● www.etuc.org www.etuc.org  Our Activities  Social dialogue and industrial relations  European Works Councils ● www.ec.europa.eu www.ec.europa.eu  EU policies  Employment, social affaires and equal opportunities  Labour law Further information

23. R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation 23 Why is knowledge of court cases useful? ● Electrolux 2006 ● BenQ 2007 ● Nokia 2008: (complete) transfer of production from DE (Bochum) to Romania ● Salaries in RO less than 10% of the level in Germany ● IG Metal Programme: “Better instead of cheaper” (Besser statt billiger) ● ETUC Early Warning System ● EPSU legal advice in court cases ● Revision of the EWC Directive