Home / Eurobetriebsräte / Recast Directive / Brief overview on the revision process

Brief overview on the revision process

In art. 15 of the EWC Directive (94/45/EC) the European Commission bound itself to pursue a review of the directive by 1999. In April 2004, almost five years after the deadline set out in the Directive itself, the European Commission officially started the review of the European Works Council (EWC) Directive. In its communication, the Commission emphasised the positive contribution that EWCs have made, particularly in dealing with structural changes.

In the adopted EWC Recast Directive 2009/38/EC Art. 15 stipulated that "No later than 5 June 2016, the Commission shall report to the European Parliament, the Council and the European Economic and Social Committee on the implementation of this Directive, making appropriate proposals where necessary". The Commission published the report in May May 2018, i.e. with a two year delay.

The European Trade Union Confederation (ETUC) has for a long time had a detailed list of proposals for improving the Directive. Those demands were reiterated in the ETUC’s response to the Communication of the European Commission opening the first stage of consultations on the revision. For example, it has been calling for SE Directive’s more precise definition of cross border information and consultation rights to be incorporated into the EWC Directive. In fact, this could help to solve a common problem faced by many EWCs – that, as before, they are often not informed until after decisions have been taken. Other key ETUC demands include: a greater involvement of the European trade union industry federations, improved training rights for EWC members, a reduction of the maximum length of negotiations to one year, a precise procedure for the renegotiation of agreements (especially ‘art. 13 agreements’), a tightening of the definition of confidentiality, tougher penalties when a company ignores the rights of the EWC and a reduction of the threshold for setting up an EWC from the current 1,000 employees across the EU to 500.

The employers’ organisation BusinessEurope (former Unice) expressed a vehement opposition towards the legislative revision by the European Commission, claiming the best way to make EWCs more effective was to leave it up to the bargaining partners to decide in each case about the optimum solutions. Thus, according to BusinessEurope any legislative action by the Commission would lead to imposing superfluous burdens on companies and, consequently, would turn out counter-productive. Progress, in BusinessEurope’s view, should take place at company level in the sense of an exchange of best practice. It has been constantly emphasized that dealing with the extension of EWCs into the new EU countries of central and Eastern Europe had a higher priority than any possible revision of the Directive.

In March 2005 the Commission has issued a communication COM 2005(120) “Restructuring and unemployment” by which it announced the opening of the second stage of consultations with social partners. The communication was based, among others, upon a joint seminar by UNICE, CEEP and ETUC. The ETUC has rightly criticised this move by the Commission as not in line with the formal requirements for a valid opening of the second stage of public consultation. Subsequently, a period of a relative stagnation took place until March 2006 when the European Parliament adopted a resolution on “Restructuring and Unemployment” (2005/2188(INI), see ibidem) followed by ECOSOC Position on EWC revision (see ibidem). The EP spoke out again in May 2007 in this regard. Both organs of the EU called upon the Commission to step up its actions in favour of the formal revision of the directive.

The Commission seemed not to have reacted to those important calls until October 2007 when it announced its Work Programme for 2008, where the formal revision of the EWC directive was reinstalled (see ibidem). This point was explicitly welcomed by the EP in its resolution of December 2007 (ibidem). In February 2008 the Commission formally (re)opened the second stage of consultations with social partners by indicating elements to be revised and asking ETUC and BusinessEurope on their responses and suggestions. More importantly, the social partners were invited to indicate whether they were willing to engage into negotiations. BusinessEurope after having denied the necessity of revision since many years has accepted the invitation to negotiations (see ibidem; reply to EC on the 2nd stage consultation).

The ETUC, on the other hand, taking into account the past position of BusinessEurope arrived to the conclusion that perspectives for achieving compromise on key issues regarding the directive are scarce and thus negotiations over this contentious subject would not be productive, unless BusinessEurope signed real commitment to discus the core points presented by ETUC. Since this was not the case and despite the general readiness for negotiations, ETUC declined negotiations and requested the European Commission to continue the revision as legislator.

Alle Recast Directive