Konference for medarbejdervalgte bestyrelsesmedlemmer
November 6, 2012
E
D
Aline Conchon
Researcher
European Trade Union Institute aconchon@etui.org

A.
European perspectives on BLER
1.
2.
3.
4.
Current situation in Europe: overview of national rights
Trends in Europe : evolution of national rights
Current situation at EU level: BLER in EU company law
Trends at EU level: BLER rights under pressure
B.
BLER in Denmark: Preliminary findings of a survey
1.
Who are the respondents?
2.
3.
What influence on boardrooms decisions?
What interests do BLEReps defend?
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1. Current situation in Europe: overview of national rights
● BLER rights in the European Economic Area
DK
NL
BE
E
LU
NO SE
NO
SE FI
FI
Widespread participation rights comprising private (and privatised) as well as state-owned companies
(14 countries)
Limited participation rights
Only found in state-owned companies (4 countries)
No (or very limited) participations rights
(12 countries)
FR
LI
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MT
SI RO
BG
At least
=
17,442 BLEReps
CY and another 5,733 companies with BLEReps (FI, NL, CZ, SK,
DE Drittel)
Board-level employee representation in Europe and Denmark

2. Trends in Europe: evolution of national rights
C HALLENGES
● The impact of privatisation in countries where BLER is to be found only in state-owned companies
 BLER disappeared in MT
 BLER might soon disappeared in GR and ES savings banks
 Dramatic decrease of the number of SOEs in IE and PL (+ bill in PL to eliminate BLER, but stalled since March 2011)
● Weakening of BLER rights on the occasion of the introduction of the one-tier system ( HU , SI ), and even elimination ( CZ ), though not in DK nor NL
O PPORTUNITIES
● Initiatives from political actors
 In FR , by the end of 2012, a bill for employee reps on remuneration committee and a national debate to extend BLER in the entire private sector
 In IT : a government decree by spring 2013 for facultative BLER in companies with a two-tier board and >300 employees
● Some trade unions’ demands for extending the coverage of BLER rights
(in NO , DE , LU , FR , NL , IE ), and creating some kind of BLER ( UK )

3. Current situation at EU level: BLER in EU company law
● BLER is a European fundamental right!
Information, consultation and participation of workers must be developed along appropriate lines
1989 Community Charter for fundamental social rights for workers
‘The Union shall support and complement the activities of the Member States in the following fields: […] - Representation and collective defence of the interests of workers and employers, including codetermination ’
Art. 153 (f) Treaty on the functioning of the EU
● BLER is anchored in 3 pieces of European Company law:
 The 2001 European Company statute (SE – Societas Europaea )
 The 2003 European Cooperative Society statute (SCE
–
Societas
Cooperativa Europaea )
 The 2005 Cross-border Merger [CBM] Directive
6
No harmonisation but flexibility based on two key principles:
 Negotiation on BLER arrangements
 ‘before and after’ principle for safeguarding pre-existing BLER rights alineconchon © etui (2012) Board-level employee representation in Europe and Denmark

● Companies can restrict or even circumvent national BLER rights because of:
7
Loopholes in the current EU legislation

The Cross-Border Merger Directive is less protective than the SE Directive (e.g. merged companies with a one-tier structure could restrict BLER to 1/3 of the board)
 In theory (but rare in practice), the SE statute could be used to avoid or “freeze”
BLER, as negotiations on employee involvement take place before the setting up of the SE, and there is a legal uncertainty as to the possibility of reopening negotiation
(even in the case of a significant increase of the workforce)
The emergence of a European “Delaware effect”

It is legal for companies to shop amongst the different national regulatory regimes and opt for the one with the least stringent rules (esp. on BLER)
 Rulings of the European Court of Justice indeed allow companies to register in one
Member States (and be subject to its company law) while having all its business activities in another Member States (without applying its legal provision on BLER). =>
43 large German companies do not have BLER as they registered abroad (e.g. as British Plc.) alineconchon © etui (2012) Board-level employee representation in Europe and Denmark

● Paradox of a worker right not attached to workers but to companies as the applicable legal framework:
 Is not that of the country where workers habitually carry out their work
 But that of the country where the company is registered
● Counter-actions and proposals from
 The European Parliament : multiple calls for a 14 th Directive on crossborder transfer of seat
 The ETUC : demand for European minimum standards for employee involvement in Europe
All the legal forms of company entity at the EU level SE, SCE and pending
SPE) must be subject to binding regulations on worker participation in company boards and on information and consultation with worker representatives regarding cross-border issues.
Companies that have operations in several countries should be covered by the regulations that entail the best available model for worker participation.
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Characteristics of individuals
Gender Age
13% 87%
Min. 30
Max. 66
Average: 51 ½
Education
1 V OCATIONAL TRAINING
(50%)
2 Elementary education
(31%)
Position
1 B LUE COLLAR (47%)
2 Technician (24%)
3 Professional (23%)
4 White collar (5,5%)
5 Manager (0,5%)
Characteristics of the companies in which they sit
Listed on the stock exchange
Don’t know Listed
3,3% 23,7%
Extra large >5 000
Size
4%
1% Micro 1-9
10% Small 10-49
Non-listed
73%
Large
250-4 999
38%
Medium
50-249
47%
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Board-level employee representation in Europe and Denmark

The Influence/Power Continuum (inspired by Heller 1971)
Information
22%
Influence 52%
Consultation
30%
Power 48%
Joint-decision Control/Co-Management
19% 29%
Explanation: the running of the board!
The majority (53,6%) considers that the main decisions are made outside the board meetings, without employee representatives.
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ETUI survey (2009)
I NTERESTS
Employees
The company
Shareholders
Trade unions
Local labour market
Wider society
Environment
Other
%
81,8
61,4
24,2
14,1
5,6
4,2
2,8
1,4
Note: total >100% as figures present the sum of the items placed in ranking position #1 and #2
Ranking
1
2
5
6
3
4
Rose/Kvist (2003)
I NTERESTS
Employees
LT economic return
Environment
Shareholders
Local community
Trade unions
%
78,5
77,5
71
56,5
45,5
37,5
With the exception of “Environment” findings are similar
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BLEReps defend a stakeholder approach, but not to the detriment of the company (ranked #2) nor of the shareholders (ranked #3 &4)!
alineconchon © etui (2012) Board-level employee representation in Europe and Denmark

Thank you for your attention!
More information to be found at:
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