Community law of Information and Consultation Isabelle Schömann European Trade Union Institute for Research, Education and Health and Safety

2 Community law on information and consultation : Brief overview ● Background ● Fragmented mechanism ● Difficult linkage of the various levels of information and consultation ● Brief overview of the main clauses of the Directive 2002/14/EC ● Progress with the transposition of Directive 2002/14/EC ● European initiatives: Review process towards the necessary harmonization? ● EU Parliament v. EU Commission: action v. ‘wait and see policy’

3 Background: Long-standing collective right ● At European level: the principle of Community law Art. 21 European Social Charter (1961/1996), Point 17 Community Charter of Fundamental Social Rights (1989) ● Art. 27 Charter of Fundamental Rights of the European Union (2000): ‘Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices’. Article 6, Treaty on European Union: The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

4 Background: Long-standing collective right ● Long-standing law in continental Europe ○ Universal legal basis ○ Information and consultation are general, permanent and binding ○ Monistic model: trade union / dualistic model: elected and trade union representation ● Major innovation in the common law countries ○ Voluntary model ○ Minimalist legal basis stemming from Community law => CJEC, C-382 and 383/92: staff representation is compulsory

5 Fragmented Community law ● Directive 89/391/EEC: Health and safety of workers Art ● Directive 98/59/EC: Collective redundancies – Art. 2 ● Directive 94/45/EC ( 2009/38/EC ): European Works Councils – Art. 2f ● Directive 2001/23/EC: Transfers of undertakings – Art. 7 ● Directive 2001/86/EC: Statuts of the SE – Art. 2h + 2i ● Directive 2002/14/EC: Information – consultation ● Directive 2003/72/EC: European cooperative society ● Directive 2004/25/EC: Takeover bids – Art. 14 ● Directive 2005/19/EC: Mergers, divisions, transfers of assets and exchanges of shares – Art. 10 ● Directive 2005/56/EC: Cross-border mergers – Art. 16

6 Fragmented Community law Difficult linkage of the various levels of information and consultation and different branches of Community law depending on the situation of the undertaking in time, in space Difficult linkage between national law and Community law Legal gaps in national law

7 ● Generalisation of the obligation upon the Member States to provide for an effective, permanent and regular worker information and consultation procedure ● On the recent and probable evolution of ○ the undertaking’s activities, ○ its financial and economic situation, ○ employment and specifically the decisions likely to bring about major changes to the organisation of work. Community law on information and consultation: Objectives

Community law on information and consultation Context works council comité d’entreprise Betriebsrat

Community law on information and consultation Context

11 ● COM(95)547: unbalanced level of protection in the Member States (good time; content of the information, purpose of the consultation, no deterrent sanctions, etc) ● Consultation of the social partners in June and November 1997: diverging opinions ○ The Renault Vilvorde case: Summary redundancies without complying with the consultation procedures in February 1997 / legal action in Belgium and France / signature of an amendment to the agreement on 6 March 1998 ● Draft Directive in November 1998 – Blocking minority in 2000 ● Arbitration between European Parliament and European Council 2002 > Directive 2002/14/EC Community law on information and consultation: A long and arduous way to pass the legislative act

Community law on information and consultation Directive 2002/14/EC: main clauses ● A general statutory framework for informing and consulting employees in the European Union: effective, permanent and regular Public or private undertakings carrying out an economic activity, whether or not operating for gain, located within the territory of the Member States

Community law on information and consultation Directive 2002/14/EC: main clauses information ● transmission by the employer to the employees' representatives of data in order to enable them to acquaint themselves with the subject matter and to examine it ● at such time, in such fashion and with such content as are appropriate to enable,employees' representatives to conduct an adequate study and, where necessary, prepare for consultation consultation ● exchange of views and establishment of dialogue between the employees' representatives and the employer. ● in such a way as to enable employees' representatives to meet the employer and obtain a reasoned response,to any opinion they might formulate; ● with a view to reaching an agreement on decisions

Community law on information and consultation Directive 2002/14/EC: main clauses Recent and probable development of the undertaking's activities and economic situation Situation, structure and probable development of employment within the undertaking and on any anticipatory measures envisaged, in particular where there is a threat to employment decisions likely to lead to substantial changes in work organisation or in contractual relations Confidential information modalités pratiques protection, procedures, sanctions, works council, members...  Legal transposition Acts and In accordance with the procedures and practices of management and labour in the members states

15 Community law on information and consultation Transposition of Directive 2002/14/EC Entry into force 23 March 2005 Infringement procedure Transposition¼ MS transposed on time 2/4 transposed until 2007 FR: C-385/05 (18/01/2007) IT : C-327/06 (1/03/2007) BE: C-320/06 (29/03/2007) LU: C-321/06 (14/06/2007) Not transposed DE, BE, AU, FR: adequate national provisions

16 Major aspectsInadequate transposition or lack of transposition Objective and principles Art. 1 Implementation in a spirit of cooperation CY; LV; PT; SL; ES: partial transposition Spirit of cooperation, not transposed: CY; LV; PT; SI; ES DK: not transposed Definitions Art. 2 undertaking/establishment / employer Workers /representatives Information and consultation Exclusion of atypical workers / MS with no general permanent system for representation: no obligation on employers LU: no definition/consultation mixed committee Field of application Art: 3 Thresholds: Establishments >20 workers Undertakings >50 workers Method of calculation Dispensations BE >100 workers (CJEC C-320/06) MT: establishment>50 workers Exclusion of workers under atypical contracts: FI; FR (CJEC C-385/05); GR; IE; IT; LU; NL; PO; ES; UK CY; GR; MT: exclusion of high-seas fisheries crews Stumbling blocks

17 Arrangements for the exercise of the right Art. 4 Content and quality of the information / appropriate I+C Content and quality of the consultation: dialogue to achieve an agreement No definition of appropriate I+C: CY; CZ; EE; DE; GR; HU; IE; IT; LT; LU; MT; PO; SI;UK ‘relevant level of management and representation’: BE; EE ; PT. No def.: ES; MT Agreement Art. 5 Agreement / renewal before publication of directive No mention of the conditions and limits in Art.4: CY; DE; IE; LT; MT; PO; UK Confidential information Art. 6 Legitimate interest of the undertaking Specific cases – objective criteria Procedures for recourse / Specific procedure No transposition FI; GR; HU; LU; ES: no transposition AT; CY; CZ; DN; DE; EE; FR; IE; IT; LV; LT; MT; NL; PO; SK; SI; UK: no obj. criteria No transposition: AT; BE; CY; CZ; FI; LT; LU; NL; PO; PT; SL; SI; SW; UK Protection of workers’ representatives Art. 7 Adequate protection / rights and guarantees Paid time: DP < CE CY: no protection Protection of rights and sanctions Art. 8 Administrative and judicial procedures Sanctions Difficulty of evaluating the effective deterrent character of the measures Stumbling blocks

18 Community law on information and consultation Transposition of Directive 2002/14/EC: pro and cons 1. Added values ● catalyst for change towards more participative and dialogue oriented relations between managment and labour ● Recognition of employee representation at the work place ● Involvement of trade unions and employers associations in the transpostion phase ● Allows for adaptation to the national systems of IC 1. Deficits ● Transposition a minima-attempt to reduce effectiveness ● By-pass unions towards direct information with individuals ● Introduce additional triggering mechanisms – abuse of thresholds ● No dissuasive sanctions – no clear definition of confidentiality

19 ● The 2002/14/EC Directive allowed considerable flexibility in transposition and implementation. ● Directive as a key tool in allowing EC law to become embedded in the national legal and industrial relations systems, ● Thus made it possible for the British social systems to respond in an innovative way to the changing forms of employee representation. ● Weakness: Nature of the legal obligations, Enforcement mechanism and Degree to which legal resources could be utilised by trade unions Community law on information and consultation: Objectives – impact UK

European Commission implementation report Rolling programme simplification ( ) EU Parliament resolution Community law on information and consultation Review process EU Parliament resolution 23 March 2007 Review deadline Consultation on cross-border transfers Consultation on restructuring operations EWC Recast directive 2009/38/EC

21 CONCLUSION ○ The indispensable and sometimes the only basis for workers’ right to information and consultation. ○ Generalisation of worker representation ○ Limits: without as such including SMEs Recourse to direct representation Transposition ‘a minima’ Difficult linkage between the different levels Future initiative: What harmonization of rights to information and consultation in the European Union?

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