When it adopted the “Radtke” report on 2 February 2023, the European Parliament called on the European Commission to present a recast of the European Works Council Directive 2009/38 by 31 January 2024 (see European Works Councils). In reply, the Commission quickly announced that it was going to set in motion a consultation of European social partners, under Article 154 para. 2 of the Treaty. Accordingly, on 11 April, it unveiled the first-phase consultation document for the purpose of gathering their opinions on the benefits of taking such an initiative (see European social dialogue).
The document adopts Parliament’s proposed amendments: redefining the notion of transnational issues; reviewing the definition of consultation, to make sure that the EWC is consulted and is able to express an opinion before management comes to a decision; preventing the abuse of confidentiality rules as a means to limit EWC members’ access to information; a stricter deadline for negotiating EWC agreements (18 months instead of three years); guaranteeing access to justice and increasing the sanctions applicable in cases where employees’ rights to information and consultation are breached, by bringing them into line with those imposed by the GDPR regulation (a fine of up to 20 million euros or 4% of the company’s global turnover); granting the courts powers to suspend a company’s decision in cases involving a possible breach of information and consultation procedures; ending permitted exemptions by requiring all agreements, including pre directive agreements signed before September 1996, to be brought into compliance with the future directive; specifying the resources available to EWCs in terms of training or recourse to expert support; and strengthening the content of subsidiary requirements applicable in the absence of an agreement.
On this basis, social partners are invited to answer three questions, by 23 May 2023:
– Are the issues and possible areas for further EU action correctly identified?
– Is EU action needed to address the identified issues?
– Would you consider initiating a dialogue on any of the issues identified?
Once these opinions have been obtained, the Commission will be able to embark on the second-phase consultation of European social partners (Article 154 para. 3), to find out their opinions regarding a draft proposal for a directive. Here too, they will have six weeks to react. Although no time interval has been fixed between the two consultation phases, these are expected to follow on from one another quite quickly, so that the Commission can put forward a text before the end of the year, as requested by Parliament. At the same time, the Commission must analyse Parliament’s proposals, to check that they comply with the principles of subsidiarity, proportionality and enhancement of legislation, seeking to avoid imposing unnecessary burdens on companies. It will also receive the results of an impact assessment of these same proposals, to be performed by the consultancy firm ICF.
The Commission believes it is unlikely that the social partners will tackle the subject during the consultation process, with a view to negotiating a European agreement (Article 154 para. 4), and is likely to present a proposal for a directive at the end of the year. It will then be up to the future Commission, which will come into being after the European elections in May 2024, to initiate the legislative process.
> Source: IR Notes 206 – 19 April 2023
