THE NEW DIRECTIVE ON EUROPEAN WORKS COUNCILS: INNOVATIONS AND OMISSIONS

This article examines the new Directive 2009/38/EC concerning the establishment of a European Works Council (EWC) or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees, approved by the Parliament and the Council on 6 May 2009.Following an analysis of the process which has led to the revision of the 1994 Directive, the article concentrates on the innovations and the ‘omissions’ of the new Directive. From this, one can see how the new principal areas of the Directive regard the determination of the competence of the EWC, now limited to solely ‘transnational issues’; the definitions of information and consultation and the specification of the obligation for necessary preliminary information in the setting up of an EWC – specifically that information regarding the structure of the business (or group) and the number of employees. The most significant amongst the ‘omissions’ of the new Directive is the lack of any reference to the negotiation activity of the EWC, that as a general rule, has given rise to forms of ‘transnational collective bargaining’ and on which, in recent years, the European Commission itself has embarked upon numerous studies and research initiatives. The question of the (uncertain) legitimacy of the EWCs as a negotiating partner – like that of the eventual regulation of the forms of ‘transnational collective bargaining’ – remains complex and difficult to resolve as indeed the author seeks to explain in the concluding part of this article.