With EU contribution

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With EU contribution

““CONCILIATION AND ARBITRATION: two ways to manage the effects CONCILIATION AND ARBITRATION: two ways to manage the effects of disputes on information and consultation rights in the context of of disputes on information and consultation rights in the context of Banking mergers, acquisition and restructuring” (VS/2010/0668)Banking mergers, acquisition and restructuring” (VS/2010/0668)

EWC Directive 2009/38/CE:a retrospective of trade union policy

Domenico Iodice – APF Research Department


““CONCILIATION AND ARBITRATION” (VS/2010/06668)CONCILIATION AND ARBITRATION” (VS/2010/06668)

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The EWCs, new social actors of change

- The philosophy plant reshapes the operation of EWCs as promoters "broad sense" of flexibility and security agreements or stakeholders involved in the preparation and monitoring of codes of conduct / ethics: the force of social pacification.

- The idea is the Corporate Social Responsibility, and thus assumes a broader role in negotiating (multi-stakeholder), did not properly contract (in the technical sense).

- The one subject of contract is the DSN

EWC: the enigma of the role



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Objectives analysis

- Understand the "ratio legis", the regulatory environment and policy of the Directive, the issues in the field of mediation and reached or not reached allows to evaluate the effectiveness of current or expected achievements with the transposition into national legislation.

- It also allows you to refine the possible corrective instruments designed to recover full efficiency and maximum application of the participation rights of workers. (The rooms of Conciliation and Arbitration at the supranational and national levels along these desired)

The new Directive: Macro-goals



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The context of the recasting• While the Directive has its roots in the '94 'Protocol on Social Policy "introduced by the

Maastricht Treaty (" the single market as the seat of social rights "), the recast Directive calls instead of art. 27 of the Charter of Fundamental Rights: the head "solidarity", "workers' rights to information and consultation in the enterprise." Moreover, in the Social Agenda is treated in the section on "full employment" and not in the "new dynamic for industrial relations".

• What does this mean?

The new Directive: Macro-goals

The old Directive was moving in the traditional industrial relations, and was intended to "exclude different treatment of workers are affected by decisions": not so much introducing a notion of trans-nationality, as a new category of cross-border workers, defined as new subjects of individual rights.

The recast Directive is to overcome the concept of cross-border industrial relations. It's connected to the European Employment Strategy, the discourse on' "anticipating and managing change": not only redesigned the EWC as a subject of negotiation, but as social actors "broad sense".



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The EWCs, new social actors of change

- The philosophy plant reshapes the operation of EWCs as promoters "broad sense" of flexibility and security agreements or stakeholders involved in the preparation and monitoring of codes of conduct / ethics: the force of social pacification.

- The idea is the Corporate Social Responsibility, and thus assumes a broader role in negotiating (multi-stakeholder), did not properly contract (in the technical sense).

- The one subject of contract is the DSN




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EWCs nature- Rather than negotiating body representative, is a

forum for dialogue between the parties.

- In France they have legal personality and are chaired by management in Belgium take the contracts of work (although without legal personality).

- They are social actors are constituted and represent only the workers, and not a common institutional interest in the company.

- For this reason (Article 10) must provide them with the central management "means (financial) enough" even to allow the initiation of litigation.




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Overcome the conflict of competence with the national unions- The involvement of the EWCs does not imply a contractual power, but the

guarantee (through the timing, methods and appropriate content of the information) to participate effectively in the process of formation of the enterprise will, through an "opinion" on the "proposed action", stop the "management responsibility". In the accompanying measures is even enshrined a right to "obtain a reasoned response to opinion as any."

-The assumption is therefore the possibility of a preemptive "thorough evaluation"

-The outcome of the procedure is always a unilateral decision of business!

"Consultation" means, therefore, in the EWC Directive, novelty of the procedure with respect to the measure "proposal". In the Directive on collective redundancies, however, following consultation with the measure "covered" in decision-making. Therefore, the Directive on the SE still anticipates, compared to the EWC Directive, the moment of engagement. Conclusions: inconsistencies and worrying risk of bypass EWC delegation .




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EWC “versus” Trade Union?- The identification of representatives of workers EWC is a matter of

Member States (appointed by trade unions and elected by the workers).

- Any limitation of sovereignty in danger of being challenged before the CGE. Was likely to be also a European standard only to legitimize the trade unions!

- In practice, Member States may decide how to integrate the national unions of National Trade Union Delegation, even if those representatives were not included in the labor force affected by the EWC.

- In line with the SE Directive, in addition, the National Trade Union Delegation may appoint an expert with the function of assistants, with costs borne by the Central Directorate (we are still in the preparatory phase to the establishment of the EWC).

But the rules do not say anything about the next step to the establishment of EWCs




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The harmonization of levels- In the proliferation of Directives on worker involvement (SE 2001, SCE 2003),

the EWC Directive from 1994 until the recast was unchanged on this point. It, saying the coexistence of levels of involvement (national and supranational levels, without indicating any time-hierarchy), represents some synthesis, but no bold solutions to the problem of coordination between levels

- Or the Agreement establishes the hierarchy or the rules set incidental coexistence

- Some guidelines are from thece European Court of Justice, which is building a body of legislation of address (Rechtsfortbildung). Compared to the "necessary information" to determine if the companies fall in the EWC Directive (which are the subjects which the workers' representatives to reach, what information they are entitled to get), the Court has provided answers: If Bofrost (no need to identify the direction central); case Kuhne & Nagel (all subsidiaries are required to cooperate with the central management); ADS Anker case (the central management must provide information to each subsidiary).




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What does this mean?- While the identification of persons responsible for the

information is clarified, the quality / quantity of information needed is left to the evaluation, case by case basis, the national courts. In practice, they are essential to determine whether it is structured to reveal how the representation of employees

- We return to the objective of the Project: to identify new subjects, such as commissions of conciliation and arbitration supra, for the solution of these problems of interpretation

-The problem is that if the EWC has not yet made , the source of regulatory commissions can not be the EWC agreement. And what then?




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The objectives of effectiveness of the Recast

Improving the right to information and consultation regulations through guarantees of effectiveness, solve practical problems, overcome regulatory uncertainty

The "ancillary provisions" and "reserve clause" assume a contractual governance: the Directive establishes a core of compulsory questions which should lead to the conclusion of an EWC agreement. But failing that, the tools involved subsidiarity.

All questions that are not defined by the Agreement are affected by the reserve clause: true defence of effectiveness, beyond the bargaining strength of the Parties. The problem is that establishing national laws!

The open questions from the Recast



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The question of "transnational"- The Directive of 1994 had highlighted the risk of unequal

treatment between European workers and the priority indicated: broaden the base of participation rights. The rules were an “minimum minimorum” can be improved through the freedom of contract

- The recast Directive expands the audience in the "recital", but, in articles and even the circumscribed limits the competence of the EWC to transnational issues concerning the company or group located in at least two Member States. The rules represent a "weak point" contractual autonomy, because it precludes (or rather: do not provide legally) the creation of new EWCs in firms interested otherwise.




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“potential impact"-The Recital says that, regardless of the number of

Member States involved, are worth the potential effects expected in the community

-The articulated legislation restricts the protection to the effects actually achieved or expected between Member States

The question is perhaps surmountable. As a matter of interpretation, the damage to the interests of workers present in at least two Member States do not necessarily relate to the “hic et nunc", but also the effects over an extended period of time. Any plan to restructure the company has long-term effects of reverb capable of two or more Member States! The recital therefore is recoverable by the courts.

British Airways case, CGE December 6 2006 (outsourcing)




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The agreement with respect to representation: legitimacy

Under Article. 12 of the Directive of 2009, the relationship between EWCs and national bodies representing the employees must be defined by the Agreement (instituting source) between National Trade Union Delegation and Head Office. The risk is that the scope of transnationality is further restricted “in pejus”.

But the agreement "without prejudice to the provisions of the law and / or practice": what prevents a European forum of representation (the NTUD to exceed the number of representatives from each Member State according to the rules in force there.




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Hierarchy between transnational and national agreements

There's a problem of “concordantia seu consecutio temporum”, solved by law.

- In France, the local representatives of the EWC had sought to postpone a meeting of the Comité d'entreprise, asking earlier: they were right (TGI Nanterre, August 1, 2003, Alstom-Power). In the case of Marks & Spencer, it was the company management to support the existence of a cross-border were to block a request from the Comité d'entreprise: the Tribunal de Grande Istance of Paris (April 9, 2001) gave it wrong.

- The contradiction is only apparent: the guiding principle is that only the workers representatives at national level have the "legal option" to exercise or not to exercise the right at constant cross-border procedure

The problem can be solved only by the national case law from time to time . No intervention of sources above.




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What does the EWC Directive say?

It does not establish a clear concordantia temporum. It refers instead to the Agreement between NTUD and central management to scale the articulation between the levels.

Without prejudice, however, the national legislation and practices (Article 6 par.2, Lett. There art. 12, paragraph 2): source hierarchy prevailing.

In the absence of agreement, the safeguard clause: the simultaneous procedures

Yet in Recital 37 it is expected that national legislation may be "appropriate" to ensure that the appropriate EWC will also be informed "before." As is the case? Who can standardize as a source higher than the national law? Not the Agreement, but only the Directive (and it did not translate the recital in an article). So in a way, the Recital has no force here or preceptive or guidance.




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“Facilitating the NTUD and EWC”- The right of assembly "before" and "after" every meeting is

about the NTUD. For members of EWC, only "first" (without the presence of management)

- The obligation of the EWC members to transfer information to employee representatives on the results of the procedure.

- No explicit provision of the right of the EWC members to have contact with local representatives "first" meeting of the EWC, the doctrine (Dorssement) establishes a right of access to facilities.

- The right to paid training is the hard core of rights expressly set out, to the extent necessary to discharge its functions: to how the charges and says nothing of the training program.Fees payable by the company: is a part of the obligation to deliver the

"necessary means". Financial aspects: the company has a say. Educational content: no.




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Contractualisation involvement: the risks and problems

1. Can not start any negotiation.

2. The expiration of the Agreement may result in a "vacuum juris."

3. In the absence of regulatory constraints, the Agreement may waive in pejus the rules

4. The agreement binds only the existing work force at the time of subscription, not its subsequent amendments.

The choice of the Directive to entrust the social partners the implementation of rights to information and consultation is positive. But it also hides some pitfalls:




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1) "Can not start any negotiation”.

- Formally, it is not enacted a real obligation to bargain (“Nemo ad factum precise cogi potest”), but a mere imputation of responsibility. In such a reading art. 7, the subsidiary requirements would not apply if no agreement follows the act of impulse of the Head Office, and instead would apply if the negotiations start on the initiative of representatives of workers.

- However, Recital 32 speaks of taking requirements which in any case no agreement is reached.




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2) The expiration of the Agreement and the “vacuum juris”.

The Directive avoids to confirm the permanent effect after the expiry of the Agreement. In the Equant pronunciation (District Court of Amsterdam, 01.23.2003) the court ruled that the EWC finsh to exist until the conclusion of a new agreement.

-The Directive covers only ad hoc solutions for specific cases of termination, such as the obligation to negotiate and the continued operation of EWCs in negotiating agreements for adaptation to changes in the structure of EU companies (Article 13).

- Do not formalized, however, a principle of continuity of the EWC is therefore legitimate resolution of the old agreement after after the signing of the new.




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3)The Accord and a derogation 'in pejus "of subsidiary rules

- Formally, the Parties may, in the Agreement, the subsidiary requirements differ “in pejus” (covering only the case of non-conclusion).

- However, Recital 44 states that the acts of subsidiary rules in each case by "reference to the negotiations" introduces a general fairness clause, that is valid in the interpretation and integration of the agreements.

- Is The Agreement "contra considerandum" objectionable in court?




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4)The agreement binds only the existing work force at the time of signing

- The modification of the agreements to change the structure of companies is needed to ensure global coverage contract.

- Normally, it is the agreement that should include an adjustment clause.

- Failing that, the art. 13 provides a safeguard clause is a requirement for central management to begin negotiations on its own initiative or at the request of at least 100 workers "in at least two Member States".

- The only element of continuity is that at least 3 existing members of the EWC must enter in the new National Trade Union Delegation.




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In a nutshell ...Recast Directive provides effective legal instruments to improve the effectiveness of existing information and consultation procedures.

It will be useful to workers who already receive benefit from EWCs, but does not solve the chronic problems of those who have none.

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