Community law of Information and Consultation

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Community law ofInformation and Consultation

Isabelle Schömann European Trade Union Institute
for Research, Education and Health and
Safety http//www.etui-rehs.org
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Community law on information and
consultationBrief 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

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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.

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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
• gt CJEC, C-382 and 383/92 staff representation
  is compulsory

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Fragmented Community law

• Directive 89/391/EEC Health and safety of
  workers Art. 10 11
• 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

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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

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Community law on information and consultation
Objectives

• 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 undertakings activities,
• its financial and economic situation,
• employment and specifically the decisions likely
  to bring about major changes to the organisation
  of work.

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Community law on information and consultation
Context
works councilcomité dentrepriseBetriebsrat
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Community law on information and consultation
Context
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Community law on information and consultation
Context
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Community law on information and consultation
A long and arduous way to pass the legislative act

• 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 gt Directive
  2002/14/EC

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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

20 20 20
Public or private undertakings carrying out an
economic activity, whether or not operating for
gain, located within the territory of the Member
States
50
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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

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Community law on information and consultation
Directive 2002/14/EC main clauses
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
Recent and probable development of the
undertaking's activities and economic situation
Confidential information
decisions likely to lead to substantial changes
in work organisation or in contractual relations
modalités pratiquesprotection, procedures,
sanctions, works council, members...? Legal
transposition Acts and In accordance with the
procedures and practices of management and
labour in the members states
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Community law on information and
consultationTransposition of Directive
2002/14/EC
Entry into force 23 March 2005 Infringement procedure
Transposition ¼ 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

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Stumbling blocks
Major aspects Inadequate 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 gt20 workers Undertakings gt50 workers Method of calculation Dispensations BE gt100 workers (CJEC C-320/06) MT establishmentgt50 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
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Stumbling blocks
Arrangements for the exercise of the right Art. 4 Content and quality of the information / appropriate IC Content and quality of the consultation dialogue to achieve an agreement No definition of appropriate IC CY CZ EE DE GR HU IE IT LT LU MT PO SIUK 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 lt 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
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Community law on information and
consultationTransposition of Directive
2002/14/EC pro and cons

• 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
• 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

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Community law on information and consultation
Objectives impact UK

• 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

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Community law on information and consultation
Review process
Consultation on cross-border transfers
Consultation on restructuring operations
Rolling programme simplification (2006-2009)
EWC Recast directive 2009/38/EC
European Commission implementation report
23 March 2007 Review deadline
EU Parliament resolution
EU Parliament resolution
2006 2007 2008 2009 2010
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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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http//www.worker-participation.eu/EU-Framework-fo
r-I-C-P