European Court ruling over failure to transpose EU directive

Under the 2002 European directive establishing a general framework for informing and consulting employees, EU Member States were granted a period of three years to adopt national measures in compliance with the directive. Although the official deadline was set for 23 March 2005, Belgium has not yet transposed the directive into its national legislation. As a result, the country was recently found guilty by the European Court of Justice (ECJ) for its failure to comply with the directive. A critical issue which has prevented agreement and the directive’s transposition is workers’ representation in small and medium-sized enterprises (SMEs) – an issue on which employer organisations and trade unions have adopted different stances.

In 2002, the European Parliament and Council of Ministers adopted EU Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community. According to the directive, all undertakings with at least 50 employees or establishments with at least 20 employees must inform and consult employee representatives about business developments, employment trends and changes in work organisation, with the Member States determining the method for calculating the thresholds for the numbers employed.

Member States were granted three years from the publication date to comply with the requirements of the directive (EU0204207F). Accordingly, by 23 March 2005, the directive should have been transposed into national legislation by each EU Member State. However, two years after the official deadline, Belgium has not yet implemented the requirements of the directive. As a result, the country was recently ordered by the European Court of Justice (ECJ) to immediately transpose the directive’s provisions (BE0610059I).

Differing interpretations of directive

For many years, the issue of workers’ representation in small and medium-sized enterprises (SMEs) in Belgium has constituted a source of conflict between the employer organisations and trade unions (BE0102339N). This conflict has prevented the government from making any decisions regarding trade union representation in SMEs and therefore from complying with the requirements of the EU directive on informing and consulting employees.

Belgian legislation still stipulates a threshold of 100 workers in order for companies to be obliged to set up a works council (Conseil d’Entreprise/Ondernemingsraden, CE/OR), which is consulted about the company’s financial and employment trends. Companies employing more than 50 but fewer than 100 employees are legally obliged to establish a Committee for Prevention and Protection in the Workplace (Comité pour la prévention et protection au travail/Comité voor preventie en bescherming op het werk, CPPT/CPBW), which is consulted on health and safety matters.

The employer organisations, including representatives of SMEs, have already expressed their view on the matter. The employer groups comprise the Belgian Federation of Employers (Fédération des Entreprises de Belgique/Verbond van Belgische Ondernemingen, FEB/VBO), the Organisation for the Self-Employed (Unie van Zelfstandige Ondernemers, UNIZO) and the Union of the Middle Classes (Union des Classes Moyennes, UCM). They believe that a simple and quick transposition of the directive’s provisions, which includes some minimal adaptations to Belgian law, would respect the EU legislation and the threshold of 50 workers.

However, the trade unions – namely, the Confederation of Christian Trade Unions (Confédération des Syndicats Chrétiens/Algemeen Christelijk Vakverbond, CSC/ACV) and the Belgian General Federation of Labour (Fédération Générale du Travail de Belgique/Algemeen Belgisch Vakverbond, FGTB/ABVV) – interpret the directive from a wider perspective. The trade unions are not only seeking the establishment of a works council for all companies employing more than 50 employees, but also argue in favour of a CPPT/CPBW in SMEs employing more than 20 workers. Moreover, they want to extend the responsibilities of the latter committees with regard to financial and economic information. According to the trade unions, these demands are essential in terms of democracy as well as health and safety. For instance, 48% of workers in Belgium are employed in SMEs with fewer than 50 employees, and the majority of workplace accidents occur in companies in which social dialogue is non-existent.

According to the employer organisations, this interpretation of the directive is incorrect. They also argue that there is no correlation between industrial accidents and company size, but rather between accidents and the risks that workers face.

Government proposal

Until now, no government in Belgium has dared to take any steps to adopt the EU directive on informing and consulting employees, for fear of antagonising both sides of industry. However, if the government does not respond quickly, the ECJ could impose a fine on Belgium of €69,000 a day for its delay in transposing the directive’s provisions.

The current Minister of Employment, Peter Vanvelthoven, proposed to establish a works council in SMEs with more than 50 employees, but without increasing the number of worker representatives. The members of CPPT/CPBWs would simply extend their responsibilities to financial and economic information. In relation to companies employing between 20 and 50 employees, the minister plans to establish a CPPT/CPBW in those companies in which industrial accidents exceed average levels.

Nevertheless, both social partners have refused to back down on their demands, thus preventing the transposition of the directive.

Emmanuelle Perin, Institut des Sciences du Travail (IST), Catholic University of Leuven