In a report published on 14 May, two year’s later than due, the European Commission offers an evaluation of the implementation of the European Works Council Directive (recast Directive 2009/38/EC) in Member States and countries in the EEA. It presents a series of conclusions, in view of the objectives pursued by the directive, such as increasing the prevalence of EWCs and, in particular, ensuring the rights of information and consultation. While the report highlights the limited influence of staff representatives on final decisions as well as few means of action when information and consultation obligations are flouted, it proposes a practical handbook as a solution.
The Commission has put forward its evaluation on the basis of a wider study. Such an analysis from the EU executive body was required under the 2009 directive, which said the Commission would need to present a report on the directive’s implementation (in June 2016) and table, if necessary, some suitable proposals. The obligation to conduct a review was meant to act as a launch pad to ultimately revise the directive. That is at least what European trade unions – who despite having had an influence in the final stretch of negotiations over the directive, saw the steps take as too weak – had hoped for. The European Trade Union Confederation is keenly awaiting a revision of the directive. However, the Commission does not believe now is the time for a new text.
Has the directive encouraged the creation of EWCs? The assessment is mixed on this first point. The report underlines that the recast directive “provided some impetus for setting up European Works Councils and renegotiating existing European Works Councils agreements while it did not stop the declining trend of creation of European Works Councils”, although the “average size of companies setting up European Works Councils since the Recast Directive’s adoption is smaller than under the previous legislation”. In the Commission’s view: “There is room for improvement to encourage creation of such bodies, as it is estimated that half of the companies eligible to do so have not yet set up a European Works Councils”.
Has the directive improved the quality and scope of staff information and consultation procedures? “The Recast Directive improved the information for workers in terms of quality and scope but as regards consultation, it has been less effective,” the report concludes, adding that “despite having the right to express an opinion, European Works Councils members seem to have little influence in the decision-making process in their companies, notably in cases of restructuring”. Furthermore, “the evaluation noted weaknesses in the means in place allowing European Works Councils to enforce their rights and significant differences in the type and level of sanction”, which is a black spot that trade unions have pointed to for some time and which they have used to explain the weakness of consultation procedures. In the Commission’s view, the current text, which obliges Member States to put in place “effective, proportionate and dissuasive” sanctions for violation of its requirements, is sufficient. However the body pledges to “continue to support Member States’ work to improve implementation of the Directive’s provisions, and will facilitate exchanges between Member States, notably on the sanctions”.
A practical guide and new funding. To increase the number of EWC’s and to improve the efficacy of consultation with such bodies, the Commission plans to publish a practical handbook, which would seek to “spread good practice by codifying and sharing concrete examples of approaches that have worked well in practice”. This handbook would provide concrete advice and guidance and it should also help employers and company representatives to fulfil their duties as set out in the recast directive. The Commission plans to draw up the guide in 2018, working alongside social partners. Furthermore, it will set aside €7 million in 2019, as part of a call for proposals to fund activities to develop employee involvement in companies, giving EWC’s specific priority.