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Umsetzung der Rahmenrichtlinie zur Unterrichtung und Anhörung (Richtlinie 2002/14/EC)

The Transposition of the Directive in the EU Members States was due to 23 March 2005.

In December 2005 the ETUI-REHS presented an implementation report of EU Council Directive 2002/14/EC based on the replies to the questionnaire elaborated within the frame of the NETLEX and circulated to ETUC affiliates. Main purpose of this comparison is to analyse the domestic implementation provisions of directive 2002/14/EC in the EU Members States and some of the acceding countries.

It focuses on the stumbling blocks for national transposition. It appears already that many Member States adopt a minimal interpretation in their transposition measures. Additionally, the second purpose of the report is to relate the hard and difficult climb to democracy in the undertaking in Europe. It shows, that the right to information and consultation, a European social value and a major and fundamental trade union right remains a fragile ‘acquis’ in the European Union, calling for a mobilisation of all the bodies concerned.

National debates

Directive 2002/14/EC, in referring explicitly in its article 2(e) to the representatives of employees as the institution with which the right of information and consultation is deposited, requires countries with a voluntarist tradition (i.e. countries without legally binding rules on information and consultation) to arrange by statute or agreement for the creation and operation of such bodies. Moreover, Directive 2002/14/EC introduces changes to the Member States’ systems of employee representation that directly affect the very organisation of representation.

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Automatic procedure or intervention needed?

The terms of the directive do not specify whether the right to information and consultation requires specific intervention by the workers’ representatives or whether it is automatic. In many Member States, the right to information and consultation is a right “on demand”: the intended recipients of this right must claim its formal application from the employer, sometimes even when the thresholds are complied with.

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The notion of undertaking and thresholds

In most domestic transposition measures, the term “undertaking” or “establishment” is taken to refer to current national definitions. These definitions may be very diversified, to the point of not reflecting the terminology proposed by the directive.

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Confidentiality

Article 6 of the directive envisages two important limits on employees’ right to be informed and consulted: 1. Employees’ representatives and their experts may be forbidden to reveal to third parties the information provided to them in confidence. 2. The employer may not be obliged to communicate information where it might seriously harm the functioning of the undertaking, to the extent that it can argue that there are objective criteria for its action and that it is a specific situation as envisaged by the laws of the Member States.

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Resources and protection

The European legislator says little on the resources that should be granted to employees’ representatives in order to exercise their mandate. The very vague wording of Article 7 of the Directive leaves ample room for manoeuvre by Member States in transposing the directive into domestic law.

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