recast directive on european works councils - the role of implementation

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

R. Jagodzinski © etui (2009) Recast directive on EWCs - the role of implementation3

New provisions / changes to the EWC directive Issue Article Recital Remarks

1 Transnational character of information & consultation / competence of EWC

1.2

10.1

12, 16 Transnationality / competence to collectively represent employees’ interests

2 Minimum burden on companies 2.1 g 9

3 Minimum limitation of decision making power of management

1.2 14

4 Information and consultation – definitions 1.2; 1.3; 2.1 f and g

14, 15, 21, 22, 23, 36, 37, 43

5 Relationship EWC – national bodies of information & consultation

12 21, 29

6 Information to commence negotiations for an EWC

4.4; 5.2 b and c)

25

7 Role of trade unions 2.2 c); 5.4 27

8 Termination & renegotiation clauses in agreements

6.2 g) 28

9 Select Committee 6.2 e) 30

10 Agreements in force and adaptation clause 6.2 g); 13; 14 39, 40

12 Content of agreements 6.2 b), c), e) and g)

13 Informing back employees 10.2; 12.2 33

14 Entitlement to training 12.4

15 Sanctions 36

16 Means for EWCs 10.1 Not only an EWC collectively, but its members


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)● 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

http://en.wikipedia.org/wiki/Francovich_principle

http://en.wikipedia.org/wiki/Francovich_principle


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.”



● 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


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“)



● 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


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


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


Meaning of institutions of law in safeguarding compliance with the directive

Category of breach Possible sanctions

Le

ga

l p

ers

ona

lity

Ca

pacity to

act in

cou

rts

En

titlem

en

t to

sta

rt p

rocee

din

gs

No

crim

e

Off

ence

/in

frin

gem

ent

Cri

me

No

t sp

ecifie

d

Inju

nction

s /

S

um

ma

ry

pro

ce

du

res

fin

e /

fin

an

cia

l co

mp

en

sa

tio

n

imp

riso

nm

en

t

nu

ll an

d v

oid

NA

/ d

efine

d in c

ou

rt

Sanctions for breach of

confidentiality in EWC law Court costs

AT ● ○ ● ● ○ ● each party its own

BE ○ ○ ● ● ● ●

imprisonment usually the party that looses

BG ○ ○ ○ ● ○ ●

civil liability for damages free of charge

CY ○ ○ ○ ● ○ ● ● not known

CZ ○ ○ ○ ● ○ ●

normally by applicant (the Court Fees Act)

DE ● ○ ● ● ○ ● ● penal sanctions

(offence)

EWCs (similar to national works councils) exempted

DK ○ ○ ○ ● ○ ● as stipulated by

separate acts

EWC members individually / trade union

EE

○ ○ ● ● ● ●

not specified / not applicable due to procedure before Labour Inspectorate

ES ○ ● ● ● ○ ●

no court fees applicable

FI ○ ○ ○ ● ● ●

fine the party that looses

FR ● ○ ● ● ● ● ● ●*

civil penalties

if EWC wins employers claim costs

GR ○ ○ ○ ● ○ ● ●

each party its own; court fees upon application

HU ○ ○ ○ ● ● *** ●

court fees payable in advance by plaintiff/applicant

IE

○ ● ● ● ● ● ● penal sanctions (offence)

each party bears it's own costs; court fees payable upon application


IT ○ ○ ○ ● ○ ●

disciplinary sanctions

applicant upon starting procedures

LT ○ ● ● ● ○ ● not known

LU ○ ○ ○ ● ○ ● ●

upon order of court at the end of proceedings

LV

○ ○ ○ ● ○ ●

the party that looses / applicant upon submitting an application

MT ○ ○ ○ ● ○ ● not known

NL

○ ● ● ● ○ ●

Not stipulated / Court fees payable upon instituting legal proceedings / costs of legal proceedings by the loosing party

NO ○ ● ● ● ○ ● not known

PL ○ ● ● ● ○ ● ● criminal

sanctions

not stipulated / but EWC has its own budget (by law)

PT

○ ○ ○ ● ○ ●

civil penalties

Not stipulated / Court fees payable in instalments (first instalment payable upon application)

RO ● ● **

● ** ● ○ ●

offence as other breaches of EWC law

not stipulated but EWC has its own budget (by law) and is exempted from court fees

SE ● ● ● ● ○ ● applicant upon starting procedures

SK ○ ● ● ● ○ ●

applicant /plaintiff upon starting procedures

SL ○ ○ ○ ● ○ ● upon application / the loosing party

UK ○ ● ● ● ○ ●

Not stipulated / usually the party that looses

Category of breach Possible sanctions

Le

gal p

ers

ona

lity

Ca

pac

ity to

act

in c

ourt

s

En

title

men

t to

sta

rt p

roce

edi

ngs

No

crim

e

Off

enc

e/in

frin

gem

ent

Cri

me

No

t sp

ecifi

ed

Inju

nct

ion

s /

Su

mm

ary

p

roce

dure

s

fine

/ fin

anci

al c

om

pen

satio

n

imp

riso

nmen

t

nu

ll an

d v

oid

NA

/ d

efin

ed

in c

ourt

Sanctions for breach of

confidentiality in EWC law Court costs

Source: R. Jagodzinski @ etui (2009)


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?


● 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 lawDiversity of national solutions


Execution and enforcement of EWC lawSanctions

● 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)


● 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 lawDiversity 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


Conclusions

● Precondition for effectiveness of the new recast directive

● Proper and complete transposition

● Meaning of negotiated arrangementsArt. 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.”


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


● www.etui.org● www.worker-participation.eu

European Works Councils Revision of Directive FAQ on Recast Directive - new

● www.ewcdb.eu ● www.etuc.org

Our Activities Social dialogue and industrial

relations European Works Councils

● www.ec.europa.eu

EU policies Employment, social affaires and equal opportunities Labour law

Further information

http://www.etui.org/

http://www.worker-participation.eu/

http://www.ewcdb.eu/

http://www.etuc.org/

http://www.ec.europa.eu/

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