In September 2003, the EU’s European Economic and Social Committee approved an opinion on the experience to date of the European Works Councils Directive and its possible revision. This feature highlights the key points and potential significance of the opinion.
In September 2003, the European Economic and Social Committee (EESC), the EU consultative body made up of national representatives of employers, employees and other interest groups, adopted an exploratory opinion on the experience to date of the European Works Councils (EWCs) Directive (94/45/EC) and its possible revision. The Committee drew up the opinion in response to a request by the European Commission, which is due to initiate consultations before the end of 2003 with EU-level employer and trade union bodies about revising the Directive. The EESC’s opinion is expected to help shape the Commission’s approach to this issue.
Background
The EESC is an EU consultative body made up of three groups of nationally-nominated representatives - covering employers (Group I), employees (Group II) and 'various interests' (Group III).
The European Commission wrote to the EESC in November 2002 asking it to draw up an exploratory opinion on the 'practical application of the [EWCs] Directive and on any aspects of the Directive that might need to be revised'. An 'exploratory opinion' is a particular type of EESC opinion based on a September 2001 cooperation agreement between the two institutions under which the Commission can ask the EESC to reflect and make suggestions on a particular issue before the Commission draws up its own proposals. Thus the EESC can potentially play an influential role at an early stage of the EU policy-making process.
In seeking such an opinion, the Commission appeared to hope that the EESC’s traditional approach of seeking a consensus or compromise between the different views of the three constituent groups on the Committee might contribute to finding a way forward on the issue, despite the sharp divisions that exist between the EU-level social partner organisations - the European Trade Union Confederation (ETUC) the Union of Industrial and Employers' Confederations of Europe/European Association of Craft, Small and Medium-sized Enterprises (UNICE/UEAPME) and the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP) - over the merits of revising the Directive (EU0212208F).
The process of drawing up an opinion
An initial draft of the EESC’s opinion was drawn up by a study group made up of 15 members - ie five representatives from each of the three groups. The EESC appointed Daniel Le Scornet (Group III) from the Fédération des Mutuelles de France to chair the study group. Josly Piette (Group II), general secretary of the Belgian Confederation of Christian Trade Unions (Confédération des Syndicats Chrétiens/Algemeen Christelijk Vakverbond, CSC/ACV), acted as its rapporteur, charged with drafting the opinion.
The study group met on three occasions between April and July 2003 and produced a draft opinion that was discussed and adopted unanimously by the Employment, Social Affairs and Citizenship Section of the EESC on 10 September.
The full plenary session of the EESC adopted the opinion on 24 September 2003, without amendment, by 122 votes to one with six abstentions.
Key points
The EESC notes that the opinion could be useful to the Commission in determining its approach to calls for the revision of the EWCs Directive, and that 'the social partners will be able to draw support from the evidence and commonly agreed facts presented in the opinion, without prejudice to their autonomy or their decision on this matter'. The opinion is 'primarily meant to be a corpus of information and its aim is to take stock of the experience acquired following the implementation of the Directive'.
The opinion describes the EWCs Directive as 'a crucial step forward in the development of a truly European social dialogue at company level'. It states that, since the publication of the Commission’s April 2000 report on the application of the Directive (EU0005248F), 'the European labour market has undergone considerable change'. In particular, 'the quickening pace and changing nature of transnational restructuring ... represent challenges for EWCs'. It also notes that EU enlargement will have an important impact both on existing EWCs, which will have to include employee representatives from the accession countries, and in terms of bringing new companies within the scope of the Directive.
Highlighting the 'already considerable body of experience' of EWCs, the opinion notes that out of 1,865 companies or groups covered by the Directive, employing a total of 17 million people, 639 had an EWC at the end of 2002, accounting for 11 million employees. Many of the companies or groups that have yet to establish an EWC 'are smaller in size and less integrated in transnational terms but already engage in significant transnational operations'. The opinion suggests that 'it could be useful to consider practical arrangements for supporting the establishment of transnational social dialogue' in the companies yet to establish EWCs, for example through the use of existing EU budget lines in this area.
The EESC quotes a number of surveys of employer opinion which suggest that, despite initial reservations, there has been a growing recognition on the part of employers that EWCs can play a positive role and 'add value' (EU0301204F), and notes that a small number EWCs have moved beyond information and consultation and negotiated joint texts on certain issues.
The opinion touches on certain problematic aspects of EWCs. These include:
- the adjustment or renegotiation of existing agreements, which can raise 'sensitive issues' where there are no provisions on this in agreements;
- the 'serious imbalance' in the representation of men and women on EWCs; and
- variations in Member States’ approaches to 'the question of the legal personality of EWCs and their right to take part in court proceedings, manage assets and conclude agreements'.
In its conclusions, the opinion states that 'a number of fundamental questions remain open'. Specifically, these concern:
- 'the concepts of 'useful effect' and 'timeliness' with regard to informing and consulting employees';
- the scope of the Directive in terms of the nature of the enterprises covered by the concept of 'undertaking' and the position of joint ventures, public enterprises etc;
- 'the question of representation and proportionality of representation on EWCs, which is not covered by transnational rules';
- the impact of EWCs on social dialogue in the company at national level;
- the possibility of EWC representatives visiting establishments to communicate with the workers they represent; and
- enhancing the role of EWCs and workers’ representatives in the EU’s merger control procedures.
The opinion concludes by stating that 'EESC members are divided on the significance of the findings put forward on the application of the Directive and the operation of EWCs. Some feel that the present exploratory opinion must simply provide a corpus of information, without any intention of influencing possible future discussion by the social partners on the revision of the Directive ... Others consider that it should be possible to use the evidence presented by the Committee ... as a basis for assessing any aspects of the Directive which might need to be revised.'
Commentary
The EESC’s opinion may be seen as disappointing by some in that it does not make specific recommendations in relation to revising the EWCs Directive. However, it was perhaps inevitable that, in order to secure agreement between the employer and employee groups on the EESC, the text of the opinion would need to take a fairly neutral view on the issue. Moreover, as indicated by passages of the opinion quoted above, there was some concern within the EESC that the opinion should not prejudice the forthcoming consultation of the social partners. Nevertheless, Commission officials may still find the opinion valuable in that it draws on a range of experience and research in assessing progress under the Directive to date and, in particular, represents the first time that an official body involving both employer and trade union representatives has engaged in a joint evaluation of EWCs and produced an agreed text.
The opinion is arguably open to the criticism that, in presenting a largely positive view of the operation of EWCs, it underplays both research evidence and trade union concerns about the 'symbolic' rather than 'active' role of many EWCs and their inability to influence management decision-making effectively. At the same time, however, the issues and questions identified by the opinion can be seen as pointing towards a tentative agenda for reform.
The Commission’s work programme for 2003 scheduled the consultation of the social partners to begin in October, but this is now likely to be delayed slightly to allow sufficient time for the EESC’s opinion to be taken into account in the Commission’s consultation document. (Mark Hall, IRRU)