Legal framework
EU legislation provides workers with rights to information, consultation and participation, which establish mechanisms for social dialogue to prevent collective industrial action.
The right to information and consultation is enshrined in the EU Charter of Fundamental Rights of 2000 (Article 27). The Treaty on the Functioning of the European Union (TFEU) also promotes social dialogue between the social partners (Article 151) and recognises the role of the social partners (Article 152).
Council Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community defines “information” as “the communication 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” (Article 2(f)). “Consultation” is defined as “the exchange of views and establishment of dialogue between the employees’ representatives and the employer” (Article 2(g)). This Directive introduces the obligation to inform and consult with employees’ representatives within the undertaking and creates the legal basis for the establishment of a works council (WC). It applies to companies with at least 50 employees in a Member State or EU establishments with at least 20 employees in a Member State. The Directive gives Member States flexibility in the practical arrangements they can make in agreement with the social partners. However, they must comply with the principles set out in Art. 1. In defining or implementing practical arrangements for information and consultation, the employer and the employees’ representatives shall work in a spirit of cooperation and with due regard for their mutual rights and obligations, taking into account the interests both of the undertaking or establishment and of the employees.”
The information and consultation procedures shall cover:
- information on the recent and probable development of the undertaking’s or the establishment’s activities and economic situation;
- information and consultation on the situation, structure and probable development of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment;
- information and consultation on decisions likely to lead to substantial changes in work organisation or in contractual relations,
The right to information and consultation is also granted to employees in transnational companies operating in the European Union. Directive 94/45/EC on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees and its subsequent update, Directive 2009/38/EC, created the basis for the establishment of European Works Councils (EWCs). These are permanent employee representation bodies that facilitate information and consultation processes.
In the ongoing transformation of the world of work, driven by environmental, economic and social sustainability, the meaningful involvement of employees at all levels and their representatives in the anticipation and management of change can help to reduce job losses, maintain employability, enhance competitiveness and mitigate the impact on social welfare systems and related adjustment costs. European Works Councils (EWCs), information and consultation bodies representing EU-based employees in multinational companies, whose rules are laid down in the European Works Councils Directive 2009/38/EC1 (“recast Directive”), are an important part of a comprehensive policy framework for social dialogue.
Directive 94/45/EC has been amended after 15 years. In particular, the new Directive 2009/38/EC (recast) has strengthened the role and rights of EWCs in many areas:
- it strengthened and defined more clearly EWC rights to information and consultation,
- distinguished more clearly information and consultation within the EWC from processes carried out by national bodies and thus introduces a new definition of “transnational issues”, which are the responsibility of the EWC;
- gave a stronger role to trade unions,
- entitled EWC members to participate in training without losing remuneration due to absenteeism,
- included rules for adapting EWCs to structural changes in the context of multinational companies.
List of the relevant EU directives
Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees https://eur-lex.europa.eu/eli/dir/1994/45/oj
Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A31998L0059
Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the protection of workers’ rights in the event of transfer of undertakings, plants or parts of undertakings or plants https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52021IP0508
Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32001L0086
Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community – Joint declaration of the European Parliament, the Council and the Commission on employee representation https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32002L0014
Directive 2003/72/EC supplementing the statute for a European cooperative society with regard to employee involvement. https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32003L0072
Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32005L0056
Council Directive 2008/94/EC of 22 October 2008 on the protection of employees in the event of the insolvency of their employer https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32008L0094
Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (Recast) https://eur-lex.europa.eu/eli/dir/2009/38/oj
Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32017L1132
Directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019 amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32019L2121
