The Functioning of the EWC: a complex process between law and practice

Introduction - Issues and dialogue between stakeholders

Managing employee representation at European level is a complex process and a challenge. The applicable European directives often have general principles, without providing the social partners at company level with sufficient recommendations on how to effectively organize and involve the European Works Council (EWC) in the important issues relating to a transnational group.

Three themes relating to the functioning of European works councils are commonly at the root of questions and even conflicts for the actors involved
1 – The definition of the field of competence of European Works Councils: what is a transnational issue?

2 – Management of the procedure for informing and consulting committees

3 – The management of the confidentiality of information provided to European Works Councils.

When is the European works council qualified? What is a transnational issue?

EWCs are only called upon to intervene in the presence of transnational issues and are therefore not intended to replace local employee representation bodies. Although the EWC Directive stipulates that transnationality concerns the company or group as a whole or at least two sites located in two different Member States, the question of the transnational nature of companies remains an often controversial subject.
The following figure explains when a decision is considered to fall within the EWC’s jurisdiction.


When a decision...

Concerns the whole group or at least 2 sites in 2 Member States Is of importance for the EU workforce because of potential effects Group level management is the relevant level of management Remarks
X X X … it is in the scope of the EWC.
0 X X … could be in the scope considering whereas 16 (“regardless of the number of Member States involved”)
X 0 X … not in the scope of the EWC if there is no important effect on the workforce.
X X 0 … it is in the scope even if the decision is not taken by central management (but a regional headquarter).
0 0 X Not in the scope.
0 X 0 … could be in the scope if the project affects one Member State but has an impact on the EU workforce.
0 0 0 Not in the scope

Information and consultation management in European Works Councils

Information and consultation on projects of a transnational nature is the main task of EWCs. The management of this process is often a controversial issue, as long as it allows the committee to play a useful role. The regulations in force, while defining the general principles applicable in this area, do not provide detailed guidance on how to put all this into practice.

What are, in summary, the difficulties reported by companies and employee representatives in I&C?

The timing of the initiation of information/consultation is an important issue. The management logically aims not to delay the implementation of the projects that occupy them, however employee representatives plead for timely information/consultation and therefore sufficient time to conduct the process.

The “articulation clause” between the European Committee and local representative bodies. Article 12 of Directive 2009/38 EC relies on the ability of the actors to organize by themselves the articulation between the various European and national I&C procedures, which is not necessarily obvious.

How and when does the consultation begin after the information is provided?

How to deal with the difference between “ordinary” consultation and consultation in extraordinary circumstances?

What should the appropriate content of the information consist of? What information is needed, what level of detail is required, should “local” information be provided?

How to manage dynamic processes? As can be seen in multinational companies, decision-making is increasingly centralized, generating an increasing number of transnational issues requiring EWC information/ consultation. How can a company that only has one or two meetings a year with the EWC find its way around?

What should we do then? Go further:

Confidentiality management in European works councils

EWC members are expected to participate in the central decision-making process at an early stage through their rights to information and consultation. They are therefore often likely to receive strategic information. But should they all be kept confidential? The question is therefore what EWC members can do with the information received without endangering the company’s interests.

Distinctions to be made

Secrecy refers to the right of central management not to be obliged to provide information which would plausibly cause serious harm to or be prejudicial to the functioning of the company

Right of management
Duty of Employee Reps

In the case of confidentiality, EWC members get the information, but are limited in the possibilities to pass it onwards.

Difficulties Mentioned

Concerns of the company Feeling of workers’ representatives
Avoid giving competitors the opportunity to react quickly to announced changes or figures Why does management want to inform us if we cannot act as a representative?
Manage customer relations Should we sometimes “leak” information?
Avoid unnecessary or undue concern among workers Are we reduced to the role of a courier?
Supplier loyalty Why information that is already public is also considered confidential?
Political sensitivity If the direction says “100”, it will be much more…
Impact of stock exchange regulations Is all this a game?

What should we do then? Go further: