IR Notes

Despite polling particularly well in large EU Member States (Germany, France, Italy, Poland) and in Austria, the far-right parties have not achieved domination in the European Parliament, meaning that the current alliance between the EPP conservatives, the Socialists and Democrats (S&D) and the Renew centrist-liberals can look ahead to establishing a new coalition with an absolute majority. This majority might reappoint the European Commission’s current President, Ursula von der Leyen. So, is nothing about to change? The European trade union movement is concerned by the large number of votes gained by the far-right parties, with which it is engaged in a constant battle, pointing out that these parties systematically vote against workers’ interests. The movement believes that there cannot be “business as usual”, nor any discussions aimed at forming an alliance between conservatives, liberals and the far right. These results “make clear that business as usual cannot continue”, said ETUC General Secretary Esther Lynch. “Europe needs to urgently resolve the economic and social insecurity that lies behind growing anger and fear in our society” (see press release). The IndustriAll Europe trade union federation is calling on democrats to “work together to deliver what Europe needs to tackle the challenges of our times: investment, cohesion and solidarity” (see press release). It wants to see a just transition, as does the European Transport Workers’ Federation, which is calling for greater investment in public services and public transport (see press release). On the other hand, none of the three employers’ European organisations have yet issued a press release. This impression of stability should not however mask the fact that the recent progress made by social Europe will be hard to reproduce: 1/ Parliament, which is by nature fairly progressive, has emerged with a more conservative profile, and the far right has a greater influence;  2/ in light of the national results, the Council too, is likely to see a strengthening of government coalitions made up of far-right parties or even led by the far right, which will make it even less progressive. Social Europe can still rely on a number of MEPs, such as Dennis Radtke (EPP), who know how to push the boundaries, but he will no longer be able to count on the support of his colleague Agnes Jongerius (S&D) who did not stand this time. Jacques Delors, the emblematic Commission President and father of Social Europe, said: “If the European Union is to work, it will need competition to boost it, solidarity to unify it and cooperation to strengthen it.” However, we are currently losing the latter two of these three driving forces.

Combating human trafficking : On 27 May, the Council definitively adopted the directive amending Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. Some aspects of this law apply to legal persons, i.e. companies: 1/ The sanctions regime applicable to companies found guilty of human trafficking has been expanded: Member States will be able to exclude these companies from tender procedures and concessions. 2/ Member States must ensure that they do not prosecute or apply penalties to victims in relation to criminal offences that they have been compelled to commit, such as undeclared work, as a direct result of being subject to trafficking. The aim is to encourage them to report the crime or to seek support and assistance. 3/ The directive criminalises the use of a service provided by a victim of human trafficking, when the company is aware that the person providing the service is a victim of trafficking. This is in addition to the obligation requiring companies to exercise due diligence. The text will have to be transposed within two years (see Council press release).

• Road transport: Delegated directive (EU) 2024/846 of 14 March 2024 amending Directive 2006/22/EC on minimum conditions for the implementation of social legislation relating to road transport activities has been published in the OJEU. This text revises the list of infringements of regulations relating to the social legislation applicable to this sector, and includes infringements leading to risks of serious injuries or fatalities or distortion of competition in the road transport market.

Council’s position on the European Works Council directive: : On 5 June, the Council adopted the fourth compromise text on the proposal for a directive on the revision of the European Works Council directive (see IR Notes 222). This text, which is now the Council’s negotiating position, will be presented on 20 June for adoption by the Employment and Social Affairs Council. Trilogue negotiations will commence after the new European Parliament has been established. This Parliament will first have to adopt its negotiating mandate, based on the Radtke report (see IR Notes 228). Some of the revisions contained in the compromise are as follows: 1/ Transnationality: “measures considered by management” that can “reasonably be expected to affect employees” of that undertaking or group, “or its establishments in one Member State”, and the consequences of those measures that can reasonably be expected to affect their employees in another Member State, can be classified as transnational. Recital 5 states that the concept of transnational matters “covers those measures which could affect employees in a substantial way, i.e. in a way which does not affect them in a trivial manner and does not only concern individual employees or ordinary operational decisions”. Furthermore, “the standard of reasonableness should be objectively ascertained, having regard to the nature and purpose of the measures that are envisaged and the circumstances of the case”. 2/ Expert assistance: the text stipulates that the financial and material resources to be allocated to the EWC shall include the possible use of experts, “including legal experts”.  3/ Recourse: European Works Councils or special negotiating bodies shall enjoy “effective access to judicial proceedings or, where relevant, administrative proceedings”. “The reasonable costs of legal representation and participation in such proceedings are borne by the central management” unless Member States take “other measures to avoid any de facto restriction of such access for reasons of lack of financial resources”. 4/ Existing agreements: the compromise abolishes all of the derogations provided for by previous directives that permit agreements to depart from the substantive content of directives. Thus it stipulates that where a EWC agreement has been concluded under the previous directives and does not comply with the new directive’s amendments to Article 6 (which specifies the content of agreements establishing a EWC), the management must open a negotiation, either on its own initiative, or at the request of at least 100 employees (or their representatives) of at least two establishments in two different Member States. If no agreement can be reached after two years, the subsidiary requirements will apply. The compromise states that this provision must not prevent compliance with the new directive’s minimum requirements. 5/ Subsidiary requirements: the scope of EWCs’ competence is extended to include matters linked to the green and digital transitions. At least one meeting per year must be held in person.

Social partners’ positions : The struggle for influence over Member States’ representatives on the Council within the framework of revision of the EWC directive grew more acute with the publication, on 31 May, of a new joint statement issued by the European employers’ organisations (CEEMET, HOTREC, EuroCommerce, EBF, ECEG, and BusinessEurope), in which they reiterate their opposition to a number of measures, including abolition of the derogations granted by previous directives (see above). This initiative prompted the European Trade Union Confederation and six European trade union federations to send a letter to Member States’ representatives, on 3 June, stating: “We are […] surprised by the sharp opposition of the employers’ side to any progress in this dossier.” The trade unions, which are calling on the Council to adopt the directive without delay after the next European Parliament has been established, say that “it gives the impression that, despite statements to the contrary, the employers’ side seek to deliberately undermine the right to information and consultation of their European workforce”.

Trench warfare around the EWC directive : The European Economic and Social Committee (EESC) failed to speak with just one voice when its opinion on the proposal for revision of the European Works Council Directive was adopted by a narrow majority (see IR Notes 222). The Committee is made up of three groups – workers, civil society organisations and employers (see European Economic and Social Committee). However, the employers did not support the opinion, which welcomes the Commission’s initiative, takes the view that most of the measures it contains are useful, and echoes the European trade union movement’s demands. In fact the employers’ group submitted an amendment that entirely rewrites the opinion. As a result, this differing opinion is now appended to the opinion, after it was supported by more than 25% of EESC members, including some civil society representatives.  This means that the EESC’s opinion will not carry the same force that it would have done, had it been adopted with a broad consensus. Nevertheless, it may provide support for the progressive political groups in Parliament. In terms of its substance, the opinion adopts a trade union demand, which has been excluded from the Commission’s proposal, for “companies that sell goods or provide services through franchise or licence agreements” to be covered by the scope of the directive. The opinion includes an innovative suggestion: “creation of an expert group supporting the implementation [of the legislation]”. It also proposes expanding the scope of issues covered by the European Works Council’s competence to include “investment, training, occupational health and safety, data protection and climate transition”, and advocates that EWCs should “be given the right to propose their own issues”. In terms of confidentiality, like the European trade union movement, the EESC is calling for “EWC members [to be able to] share information with national or local trade unions and worker representatives.”

Do airline pilots eat more than air hostesses? : On 6 June, the Advocate General of the EU Court of Justice delivered his opinion, in a case concerning discrimination between flight deck crew and cabin crew employed by the same Spanish airline, Air Nostrum. To cover subsistence costs incurred during the course of their duties, flight deck crew enjoy a daily allowance of between 65 and 100 euros, depending on whether the trip in question involves a domestic or an international flight, whereas cabin crew receive between 37.06 and 59.06 euros for the same flights. These allowances are set by two different company agreements, concluded by the employer with the trade unions representing each of the two categories. Given that 93% of flight deck employees are men, and 93% of cabin crew are women, the Spanish courts have asked the EU Court of Justice to rule on whether this constitutes indirect discrimination (see Indirect discrimination). Can the existence of two separate collective agreements provide objective justification for this difference in treatment? In the Advocate General’s opinion, the answer is no. The Court of Justice will rule on the case later this year (CJEU, Opinion,  6 June 2024, Case  C-314/23)

LGBTI : On 6 June, the Ministry of Employment announced that a national agreement had been reached with the trade unions and employers’ organisations, aimed at creating a more egalitarian working environment for LGBTI persons, and supplementing Law 4/2023 of 28 February, enacting genuine and effective equality for trans persons and guaranteeing the rights of LGTBI persons (see IR Notes 199 and article in El País).

Artificial intelligence : On 2 June, the government presented a draft law on artificial intelligence (AI), adopting the content of the European regulation approved on 13 March into its domestic law (see IR Notes 226). Article 10, which is devoted to employment relationships, states that AI must be used to enhance working conditions and protect workers’ health, and to boost the quality of work performance and employee productivity, in compliance with EU law. Leaving these objectives aside, the measures set out in the law are – to say the least – short on detail, and more will be required. It is stated that the use of AI in the workplace must be safe, reliable and transparent, and must neither be prejudicial to human dignity nor breach the confidentiality of personal data. Workers must be informed that AI is in use at the time they are recruited.

Abolishing EWCs : On 16 May, the government launched a public consultation on the abolition of European Works Council legislation, which has been kept in place after Brexit, so that the EWCs of companies with their registered office in the United Kingdom can continue to function, while at the same time ensuring that no new EWCs can be created (see Brexit and labour standards). However, as “it was never the government’s intention that EWCs in the UK should continue to operate indefinitely”, the government is proposing to abolish the legal framework governing EWCs. This would remove the current dual obligation for UK companies to maintain a EWC governed by their own domestic law, while at the same time having to set up a EWC governed by the legislation of an EU Member State, in order to comply with European legislation. The government claims that abolishing the 67 UK-based EWCs would lead to savings of between £4.4 and £7.2 million for UK companies. In addition, removing EWCs “could reduce the current environmental impacts”. The consultation document says that this move will not affect employees’ rights: a number of EWCs are ineffective, and their role can be taken over by trade unions or other forms of employee representation.

Reorganisation : In March, the Unilever group announced that it was putting up its ice cream business (7,500 employees) up for sale, without informing and consulting its EWC about this move. The EWC has since signed a cooperation agreement with the three Italian trade union federations FAI-CISL, FLAI-CGIL and UILA-UIL, so that it will carry more weight in the discussions.

Negotiation : On 3 and 4 June, the Swedish publishing group Karnov (1200 employees) assembled a special negotiating body in Paris, for the purpose of negotiating a EWC agreement. Following the acquisition of some of the Spanish and French businesses owned by the Dutch group Wolters Kluwer, which has its own EWC, Karnov is now a group of European stature. The agreement is being negotiated under Swedish law.

Employee share ownership : On 29 May, the food manufacturer Bel announced that it was adopting the status of “mission-led company”, as provided for by French law, and launching a global employee share ownership plan. This plan, which was first introduced in France in April 2014, will be rolled out in all of the company’s other countries by 2026, with the aim of moving towards a value creation model that benefits all stakeholders (see press release).