industriAll 32/2013
THE EUROPEAN COMPANY – SE (Societas Europea)
industriAll European Trade Union guidelines
(Document adopted by the 3rd Meeting of the industriAll Europe Executive Committee
Luxembourg, 26-27 November 2013)
The adoption of the Regulation n°2157/2001 of 8th October 2001 on the Statute for a
European company (SE), together with the Council Directive 2001/86/EC of 8 th October 2001
supplementing the Statute for a European Company with regard to the involvement of
employees led the trade unions to develop strategies for negotiating information,
consultation and participation rights in multinational companies which opted for an SE.
This document presents a revised version of the existing guidelines, taking stock of the
experience gained through the negotiation of SE agreements. Since the Regulation and
Directive on the SE came into force, more than 900 SEs have been registered. However,
according to the ETUI database1 only 189 are “normal SEs” i.e. with operations and
employees. Out of the 189 “normal SEs”, 57 are active in the industriAll Europe sectors.
It is worth emphasising that companies can freely opt for an SE and, contrary to a European
Works Council, the initiative to start negotiations on setting up workers’ involvement in an
SE has to come from the management. Furthermore, management and workers’
representatives have to negotiate an agreement on workers’ involvement before an SE can
be registered.
In practise, negotiations on participation in SEs have proved to be a challenge for workers’
representatives and trade unions because of the complexity of the matter, the stakes
involved and the limited timeframe to conclude negotiations (6 months).
Over the past years, industriAll Europe has amassed valuable experience in SE negotiations
and has drawn lessons on how to ensure smooth and successful negotiations. It is of
particular importance to:
 Prepare for the negotiations as early as possible;
 Actively include all countries concerned in the negotiations and build cross-border
contacts as soon as possible;
 Inform the European Trade Union Federation, industriAll Europe, as early as possible
 Involve a Trade Union expert from IndustriAll Europe before and during the
negotiations
 Make sure that the Special Negotiation Body (SNB) receives some training prior to
the actual negotiations.
1
European Trade Union Institute which compiles the ecdb (http://ecdb.worker-participation.eu)
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Tel: +32 (0)2/226 00 50 info@industriall-europe.eu www.industriall-europe.eu
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Negotiations on arrangements for the involvement of workers in an SE are carried out
between the central management and an SNB. The purpose of these negotiations is to
conclude an agreement which lays the foundations for effective workers’ involvement, in
addition to strengthening the influence of workers’ representatives and trade unions in an
SE.
Negotiations on the participation rights of workers in the SE are, on the one hand, focused
on the establishment of an SE Works Council, which is set up in a similar way to a European
Works Council (EWC). The industriAll Europe Guidelines on EWCs also apply to SE Works
Councils. However, as far as SEs are concerned, the negotiations also focus, where
necessary, on the representation of employees in the supervisory/administrative body.
This document presents a comprehensive set of guidelines for the negotiations, with a
particular focus on the representation of employees in the supervisory/administrative body.
In terms of the negotiations on the setting-up of an SE Works Council, the document refers
to
the
industriAll
Europe
guidelines
on
EWCs
http://www.industrialleurope.eu/committees/cp/cp.asp?job=cpcmt&mloc=pc&cpx=4#Guide.
It is supplemented by the resources developed by the European Trade Union Institute which
can be used during preparation of the negotiations.
1.
Basic principles
1.1.
No opt-out on participation
IndustriAll Europe is in favour of participation in the SE. We want to take advantage
of the full potential of an SE and therefore we do not choose to opt out of the right
to participate.
Equally SE agreements cannot undermine existing national rights.
1.2.
Level of participation
In negotiations on participation, industriAll Europe will choose the highest level of
participation. This means that we will refer to the national system that offers the
largest number of seats to employee representatives, regardless of whether the
dualistic or monistic system is being negotiated.
The qualitative aspect of participation is described in point 4.4.
1.3.
United union approach in negotiations
Before negotiations begin, all unions and/or SNB employee representatives
concerned should strive to agree common demands for information, consultation
and company participation rights.
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1.4.
SE Supervisory/Administrative Body mandates : European mandates
The mandate in a cross-border company with a European Company Statute is a
European mandate with strong national roots. The SE Supervisory/Administrative
Body members represent not only those Member States from which the members
come, but the interests of the employees of the company as a whole.
This means that there must be a democratic, legitimated, transparent and
representative procedure to select worker representatives as members of the
Supervisory/Administrative Body. Management shall not be permitted to nominate
employee representatives to the supervisory/administrative body. The procedure is
defined in point 4.2.
Proposals for membership of the Supervisory/Administrative Body must be drawn up
jointly by the SE Works Council, industriAll Europe affiliates and industriAll Europe.
1.5.
Experts for the SNB
-
The SNB should request the assistance of at least one trade union expert during
negotiations with management. This trade union expert is entitled to attend all
SNB meetings with full authority to speak. The company shall cover the costs of
the experts. Additionally, the expert for the SNB should be determined in
cooperation with the participating trade unions.
-
The decision regarding the industriAll Europe expert should equally take into
consideration the following :
- the currently applicable standard and existing experiences with
participation rights at national level
- the distribution of employment across countries
- the country in which the company will have its future headquarters
Should the decision not be clear, industriAll Europe shall be consulted and
requested to take a decision.
See also : industriAll Europe EWC Binding guidelines and recommendations (http://www.industrialleurope.eu/committees/cp/cp.asp?job=cpcmt&mloc=pc&cpx=4#Guide)
-
1.6.
IndustriAll Europe Coordinators in SE Companies
In every European company, a Trade Union Coordinator will be designated to act as a
liaison between the SE and industriAll Europe.
An IndustriAll Europe coordinator must be rapidly identified after the conclusion of
the agreement.
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1.7.
Protection of employee representatives
1.8.
Members of the SNB, SE Works Council and supervisory or administrative bodies
should enjoy the same protection and guarantees as those provided by the national
legislation for employee representatives.
Confidentiality
-
1.9.
In the SE Works Council: The rules of confidentiality can only cover such
information which constitutes a business secret and has been explicitly declared
as such. Confidentiality should be defined in such a way that transmission of
information remains possible for the SE Works Council members.
In the supervisory or administrative body: see 4.4.
In the case of restructuring (mergers, acquisitions, etc.)
If an SE acquires another company or merges, discussions should be launched on
how employee representatives of the acquired or merged company can be
integrated in the existing SE Works Council and/or supervisory/administrative body.
The agreement reached between the SNB and management should also address how
this point will be dealt with.
In the case of restructuring, the SE Works Council should be informed and consulted
in full conformity with the spirit and content of consultation as defined in the SE
directive on employee involvement. IndustriAll Europe will particularly ensure that
the SE Council is consulted prior to management’s final decisions.
1.10. An appropriate working structure shall be established, enabling the regular exchange
of information between SE Council members and members of the
supervisory/administrative body, with the inclusion of the industriAll Europe
coordinator and the trade unions involved.
This working structure should preferably be set out in the SE agreement.
1.11. The need for financial regulation
Employee members of the supervisory/administrative body have the same rights and
duties as those supervisory/administrative body members who are appointed by the
shareholders. Costs arising from their duties shall be covered by the SE.
A commitment to pay part of the board remuneration to the ETUC foundation
“board of trustees” shall be made by the employee members of the
supervisory/administrative body.
With respect to this, the ETUC resolution on the European Workers Participation
Fund adopted on 15 and 16 October 2008 clarified that:
Workers’ representatives in a supervisory/administrative body of the SE must;
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Transfer 10% of their remuneration if the remuneration is less than or equal to 3,500
euros;
In addition to the deduction described in the first bullet point above, transfer 90% of
any remaining remuneration over and above 3,500 euros;
The basis for the amount of the transfer is the value after taxation according to
national rules (see explanation on taxation in the annex). Affiliates of the ETUC may
decide at national level that the part to be transferred could be higher than 90 per
cent.
The resources will be given to the corresponding member organisations of the ETUC
(or their affiliates) or to trade union institutions (foundations, educational
institutions, etc.). These, on the other hand, are obliged to pass on 50 percent of the
resources to the European Workers Participation Fund (EWPF) set up by the ETUI.
Affiliates may decide that the part transferred to the EWPF may be higher than 50
per cent.
The resources thus transferred to the ETUI will be used to support the work of
workers’ representatives in European Companies (SEs) (for more detail see annex).
A Board of Trustees will decide on how the resources are to be utilised.
1.12. ECS and Candidate countries
IndustriAll Europe and its affiliates attach the greatest importance to the inclusion of
worker representatives from Switzerland, as well as representatives from accession
countries, as full members in the SNB, the SE Council and the supervisory or
administrative body.
1.13. Link with existing EWCs
-
1.14
Where an EWC (or EWCs) exists, it (they) should remain in place as long as no
new agreement on the SE Works Council has been reached.
Existing EWCs should be kept informed about progress in the SNB negotiations
with the SE.
Should an SE be created at subsidiary level (for instance, in the case of a joint
venture), a clear link should be established between the SE Works Council and
the EWC at group level.
If the establishment of the SE leads to the disappearance of national level
management structures, then the SE is to nominate a management representative
who is empowered to act opposite the national level employee representative
bodies, insofar as this is necessary.
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2.
Special Negotiating Body
2.1.
National affiliates must inform the industriAll Europe Secretariat, which will
coordinate the involvement of all countries concerned, of the nomination of
delegates to the SNB and of the designation of an expert for industriAll Europe.
2.2.
The management is obliged to provide all the necessary information needed to start
negotiations, in particular regarding the structure of the company, the countries
involved, the number of employees as well as the existing systems of participation.
2.3.
Once the company has officially declared its intention to establish an SE, the unions
concerned or/and the SNB or/and industriAll Europe should announce their
willingness to conclude an agreement covering information and consultation as well
as participation rights.
2.4.
IndustriAll Europe should make sure that the allocation of seats and union
representation within the SNB conform to the legal provisions set out in the
Directive.
2.5.
A clear timeframe as well as a schedule of SNB meetings should be agreed with
management when the negotiation process commences.
2.6.
If envisaged in the national transposition law, trade union officials could be elected
as full SNB members. It is up to national unions to decide whether to use this
possibility or not. However, should industriAll Europe encounter difficulties in getting
an industriAll Europe expert accepted by the SNB, IndustriAll Europe strongly
recommends to the national affiliated trade unions that they use this legal
possibility. This could be a second way of securing trade union involvement in the
SNB. National affiliated unions should try to use this legal possibility in those cases.
2.7.
The SNB, with the support of the industriAll Europe expert, should also analyse the
existing participation rights in the different national companies involved. This is
important to avoid a reduction of participation rights in the final agreement between
SNB and management.
2.8.
Training of SNB members and trade union officials prior to the SNB negotiations will
be a high priority. Agreement with the future SE should be reached to secure
management financing for this training.
3.
Information and consultation: setting up of the SE Works Council
3.1.
IndustriAll Europe guidelines for EWCs are applicable in the setting up of the SE
Works Council.
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3.2.
Level of information and consultation: the SE Works Council should be set up at the
level at which strategic decisions are taken. If the size and different activities of the
SE make it necessary and useful, provisions could be made to also have SE Works
Councils at divisional level.
4.
Participation
4.1.
Highest level of participation
The SNB, trade unions or industriAll Europe will, according to the Statute, not be
directly involved in the company choice between the monistic and the dualistic
system. In any case, we will try to achieve the highest level and quality of
participation during the SNB negotiations and this in accordance with existing
national participation rights (see 1.2.).
4.2.
Election
When employee participation is secured, the SNB will negotiate the procedure for
the election of supervisory/administrative body members with the SE.
The following principles will be taken into account by industriAll Europe affiliates and
during the SNB negotiations:




The SE Works Council shall, in close cooperation with industriAll Europe,
endorse those employee representatives in the supervisory/administrative
body who are appointed or elected in accordance with respective national
systems and proposed by local and/or national unions.
In accordance with national traditions, part of the membership of the
supervisory/administrative body can be proposed by the trade unions
involved in the company.
An employee representative of a principal or parent company shall also be
taken into consideration for representation in the supervisory/administrative
body of the subsidiary SE.
The Employee representation at supervisory/administrative body level should
come from different countries and businesses.
For each full member of the supervisory/administrative body, a deputy should be
elected.
If the negotiation between the SNB and management fails, and if a sufficient number
of workers are already covered by participation prior to the agreement, the standard
rules leave it up to the Member States’ transposition laws to define the election
procedure for members of the supervisory/administrative body.
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7
Membership of the supervisory/administrative body is accessible to employee
representatives as well as to trade union officials. This will depend on the SNB
agreement or, in the event that standard rules apply, the applicable national
transposition law.
The election of supervisory/administrative body members must not be influenced or
decided by the company management.
4.3
Term of office
As provided for in the regulation, the term of office for an employee representative
shall be determined by the guidelines as set out by the SE Works Council/SNB.
The term of office may not exceed four full financial years. The term of the mandate
shall always be fixed in such a way that it concludes with the annual general meeting.
4.4
Role and duties in the supervisory/administrative body
The supervisory/administrative body Employee representatives shall have the same
rights and duties as the shareholder representatives.
The supervisory/administrative body is to be informed and consulted on all
economic, financial, social and strategic discussions and decisions of the SE.
Irrespective of the nature of the measures envisaged it is the duty of the
supervisory/administrative body employee representatives to represent the
interests of the workforce as a whole.
4.5
Confidentiality
The employee representative in the supervisory/administrative body shall have the
right to transfer confidential information to the SE Works Council, national employee
representatives and (trade union) experts.
4.6.
Facilities
Employee representatives in the participation board must have all facilities to fulfil
their tasks as members of the supervisory/administrative body.
The employee representative shall have the right to visit all the company’s plants
and other facilities with no restriction on meeting local shop stewards, etc.
Employee members of the supervisory/administrative body should have the right to
invite external experts to meetings of the supervisory/administrative body.
4.7.
Remuneration
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8
Employee representatives in the supervisory/administrative body must receive the
same remuneration as the other members of the supervisory/administrative body. In
line with point 1.11 employee representatives of the supervisory/administrative
body must commit to respect the ETUC principles concerning the (partial) transfer of
the remuneration to the European Worker Participation Fund.
5.
Training
The agreement shall ensure that employee representatives in the
supervisory/administrative body and SE-WC members receive the appropriate
training in order to fulfil their duty. Training for employee representatives in the
supervisory/administrative body and SE-WC members should be organised together.
6.
Linking SE-WC and supervisory/administrative body -level representation
The agreement should ensure that a clear link is established between the SE-WC and
the representation at supervisory/administrative body -level.
Resources:
European Worker Participation Competence Centre (EWPCC)
http://ewpcc.worker-participation.eu
SEEurope – the research network on the European Company
http://seeurope.worker-participation.eu
Worker-participation.eu
http://www.worker-participation.eu
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