European Works Council

Parallel to economical unification, the EU has also to build up a social society. One of the most important measures taken in this direction is the Council Directive 94/45/CE (Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of companies for the purposes of informing and consulting employees, completed by Council Directive 97/74/CE).

As of 6 June 2011, the text of this directive has been adapted, mainly in accordance to best practices developped on the base of the original directive (Council Directive 2009/38/CE).

According to those rules, companies which correspond to the following criteria have to create a EWC. It also applies when the seat of the company is situated outside the EU.


Criteria:

• Minimum 1'000 workers in the EU countries;
• Minimum two companies or groups of companies with each 150 workers in minimum two EU countries;
• No internal participation rules on information of workers which are based on the original directive (art. 6 and 13 of 94/45/CE or 3 §1 97/74/CE)

Companies concerned by this Directive have to constitute a EWC through the special negociating group within 3 years of the fullfilment of thoses conditions. This implies that the company has to support an information and participation proceeding on the European level and create internal rules of participation abiding to the Directive. The EWC Directive implies also that negotiations have to take place at top management level or at least with the top management in Europe.

In case there is no such regulation in the company submitted to the Directive, minimal standards according to the Directive apply (Annexe I). Which are:

• Creation and implementation of a EWC through a coordinating body of minimum 5 workers;
• Minimum one assembly per year for information exchange with the management including a right of a yearly report from the management on the companies situation;
• Obligation to inform in extraordinary situations (mass dismissal, factory closing, delocalization, etc.);
• Obligation of the EWC to question the opportunity to create an EWC according to article 6 of the directive 2009/38.
• The EWC has a right to counseling by an independent external expert;
• EWC activities at costs of the company.


Pierre Serge Heger, Attorney at law 
Legal counselor for the french speaking part
 of Switzerland and european law
 pierre.heger@employes.ch
 or pierre.serge.heger@legalus.ch