With EU contribution
“CONCILIATION AND ARBITRATION: two ways to manage the effects
of disputes on information and consultation rights in the context of
Banking mergers, acquisition and restructuring” (VS/2010/0668)
Florence, 6 December 2011, Centro Studi CISL
Conciliation and arbitration of
collective labor disputes
in EWC.
Domenico Iodice – APF Research Dept.
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“CONCILIATION AND ARBITRATION: two ways to manage the effects
of disputes on information and consultation rights in the context of
Banking mergers, acquisition and restructuring” (VS/2010/0668)
The “Gordian knot” of public justice at work.
Main limitations:

Congestion in the courtroom.
Overloading of roles, procedural delays, downtime, etc..


Lack of knowledge of the micro-lived business.
Frequent recourse to technical consultants, insufficient level of
the institution of personal appearance of parties.
Potentially instrumental use of procedural institutions.
The excessive time dilation of pronouncement means,
sometimes, legal uncertainty: legitimize it in fact elusive
practices of individual rights, influencing the stay of
proceedings, if any, to 'reverse burden of proof.
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The alternative hypothesis: a conventional private
justice.
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What are A (L) DR
Acronym for 'Alternative Labour Dispute Resolution' expressing a
tendency Community recorded in other areas (civil, commercial
and consumer contracts). Not intended to replace the decision of
the court (arbitration), but to support the parties in finding a
consensual definition of the conflict.
What is the main form of ALDR
The mediation, understood in everyday language.
Why apply it?
The alternative methods of resolving conflicts are presented as
possible answers to the problems of access to justice, not only in
Italy but in Europe. This explains the interest of the European
Commission Employment and Social Affairs, as expressed in the
Green Paper.
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Objectives of community culture of ALDR.
in summary :



Promoting a new culture of communication between economic
actors (stakeholders), physiologically opposing stakeholders.
Promoting the knowledge of specific terms of individual conflict.
To allow the parties to mediate the resumption (maieutica) of
broken dialogue: preliminary common solutions.
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Conciliation and Arbitration in the general theory of law.
Assumptions:
a) The existence of individual rights; b) a dispute concerning
their alleged infringement.

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The individual right is, formally, a category transcendent
function to maintain the status quo (Kelsen), essentially a
position of interest protected and regulated by law.
The controversy arises when those who must not adapt
spontaneously to the legal precept: the ordering is in crisis, and
transfers to third parties or their bodies the task of restoring
violated order.
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Individual forms of dispute resolution: some
categorizations
Means of self-composition:
Renunciation, recognition, transaction, conciliation.
renunciation
recognition
transaction
conciliation
Unilateral acts “dismissivi”
Plurilateral acts of negotiated agreement
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Individual forms of dispute resolution: some
categorizations (2)
Means of hetero-composition:
Arbitration.
Arbitration
Conciliation
Composite measure:
an agreement of compromise and an act of
decision
Act hybrid (auto / hetero-composed):
a negotiating agreement and a act of third
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Conciliation and Arbitration: structural
differences
Effective discharge of the dispute
Role of the third
Conciliation:
Arbitration:
only business support and
advice
decisional activity
chronology
consilium precede the
negotiating agreement
decisum follow the agreement
of compromise
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Conciliation: types.
administrative
type
Union type
Judicial type
Verbal process
(Authentication) Decree
of enforceability
Recognition
mechanisms
Carried out by State bodies.
Environment infra / extra judicial
Carried out by external bodies
recognized by the State.
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Arbitration: types.

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Arbitration / arbitration no ritual.
The arbitration shall be subject to strict procedures, the arbitration
shall be relieved from the obligation to comply with the
requirements of the code of ritual.
Arbitration in accordance with law and in equity.
The decision is bound to comply with applicable laws (secundum
legem), the decision may overcome the constraints of the law
(either strained or ultra) in adherence to principles of fairness.
Principle of alternative nature: electa una via, non datur recursus ad
alteram
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The use of delegated legislation in the banking sector
The renewal of the CCNL agreement of 11 July 1999:
Article. 9.

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Single article for two extrajudicial institutions (organic).
“Cascade "of conventional private justice: the Parties shall
define the collective model, the individual choose whether
and when to apply it.
Osmosis protection of the ordinary judgment of grade 1.
Experimental nature of the negotiating tools.
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The conciliation in accordance with
covenantal
Joint Commission
(a representative of an ABI
+ for the unions signatory)
administrative
Commission
At the Dir Prov.
Work (4 +4 +1)
Private art. 9
(Article coherences. c.p.c. 410)
COMPOSITION OF
THE BODY
MODE OF ACTION
CRITERIA FOR THE
PREPARATION OF
MINUTES
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The headquarters of conciliation covenantal union

by ABI in Rome or Milan
or
"At the company to the dispute"
The second option expresses a new philosophy of management of the
litigation, aimed at bringing the dispute to the context from which it
arises: to understand the specific technical and professional skills, share
routes and anticipate the compositional logic of conflict resolution.
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MARC in the Community scenario.

the Green Paper of 19 April 2002, produces the following
notion:
"Alternative methods of dispute resolution procedures designate
the non-judicial dispute resolution conducted by a neutral third
party."
The European Commission intends to create uniform
mechanisms for conciliation and voluntary arbitration, in view
of complementarity (instead of the alternative nature)
compared to the work process.

However, marked differences persist in regulation in EU
countries. The experiences are diverse and contradictory.
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Lines of macro-trend : characteristics
Great Britain:
 alternative compositional tools. Voluntary choice.
Italy, Germany, France:
 compositional tools functionally complementary.
Belgium, Finland:
 requirement for a preliminary review to the ADR judicial.
Denmark, Ireland:
 creation of conventional ADR (Arbejdsmarkedets Ankenarven;
Conciliation Service of the Labour Relations Commission)
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The German experience.
The system of labor law has a strong social perspective to
reconstruct an essential balance between
:
weaker party
(worker)



strong party
(employer)
Apply standard regulatory safeguards essential mandatory
downwards. (sociality as Grundnorm).
The source legislation bargaining (union) ensure development of law
and dynamism.
The Employment Tribunals consider the rights, but also driving skills of
dispute (with positive results).
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Dogmatic categories
The law on the trial of the 1979 work introduces the distinction
between:
Disputes of Interest
Solving mechanisms:
(extrajudicial)
Conciliation and Arbitration.
Law disputes
Solving mechanisms:
(judicial)
Processes before the courts.
The admissibility of the arbitration commission for the protection
of individual rights is excluded. They are then invested with the
residual competence (clarification / regulatory interests at stake).
The Employment Tribunals are composed of a President (toga) and
two lay judges (representing the employers and workers).
Overall competence.
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Reasons for an apparent success



most of the individual labor disputes is com-poses outside the
judging phase.
The attempt at conciliation is mandatory (within two weeks of the
quote) and takes place prior to the hearing in court.
The success rates are very high (40%).
This is due to competition of two reasons:
a) the ineffectiveness of the system of SO-CALLED "Real protection": the trial system
does not guarantee the worker the provisional preservation of jobs (in defense of the
interest in the final reinstatement).
b) The dynamic and proactive role granted to the President of the Court being
conciliatory.
The tool provides a conciliatory mere claim for redress
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The French experience.
 The system of labor law has markedly conflicting
characteristics
 In regards dismissal, disputes have been
speaking inquisitorial, with assurances of
defense
 The Board of Arbitrators has elected joint
composition.
Characteristics of
the process
 Search the reconciliation (preventive and
compulsory) and cognitive powers of
investigation.
 The unions have active procedural legitimation
"in place" of employees.
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The alternative means of composition.
Little used by the employer (not
considered non-partisan for his
powers of sanction).
Labor inspector
Simple "trait d'union"
between employee and
employer in the
prodromal phase
Role of delegating
too biased
towards the
worker
director of staff
MEDIATION
Union
Representative
Boards of conciliation provided by some CCNL: condemned as neo-corporatism.
Joint bodies branch: opposed by employers face.
Councillors of employees: the role of trade unions considered vicar.
Joint committees on pensions: one full-blown case of success.
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Build a new European scenario ...
According to a study reported in the Green Paper (35),
fewer than one in four restructuring to meet goals for cost
reduction and increased productivity.
The banking system recorded a marked increase in the current
conflict as a result of corporate restructuring
A buffer solution is to constrain the signing of specific
agreements with the unions (under the CCNL) and agreements
setting up / amending of EWC to the “ad hoc” creation of joint
commissions of a prior conciliation which are mandated to find
common solutions.
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Coherence of the model with the guidance
established.
"Restructuring in a socially responsible means
balance and take into consideration the interests and
concerns of all parties affected by the changes and
decisions. Concretely, in the form, not a restructuring
is less important than substance. It 'should be ensured
involvement of those affected through
open consultation process. "
Green Paper, 37.
In summary: the best way of settling conflicts is to prevent them!
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What happens in the EWC?


The new EWC Directive 2009/38/EC aims to
strengthen the constitution making enforceable and
practicable rights to information and consultation,
including through an appropriate system of sanctions.
The project operates on a preliminary and
complementary aims to make the due rights of EWCs
through the establishment of safeguards, physical
places to prevent and resolve conflicts (conciliation
and arbitration chambers in supranational and
national).
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When there is violation of the rights of information /
consultation?
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Article 6.2 (c)
The functions and the procedure for information and consultation of the EWC and the
manner in which information and consultation of the EWC will coordinate with the
information and consultation of national representative bodies of workers in
accordance with the principles laid down in Article . 1.3 (principle of shared
responsibility).
The Recital 37 clarifies that the CAC can be aware before of national representation, or
simultaneously to the same, but not thereafter.
Article 2
"Information" is data transmission by the employer to the employee representatives to
provide knowledge and consideration of the issue. The information is timely, manner
and content are appropriate to enable to carry out a thorough impact assessment and
prepare, if appropriate, consultation with the competent organ of the Community-scale
group Community-scale undertakings.
Workers' representatives should receive necessary information in a timely manner in
order to carry out a detailed examination in view of the consultation.
See also recital 22 ("without slowing down the decision-making in enterprises").
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Recognizing the "lesion"
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Article 2
"Consultation" means a dialogue and exchange of views between
employees 'representatives and central management or any other more
appropriate level of management, timing, method and content that
enable workers' representatives, on the basis of information provided,
to express, within a reasonable time, an opinion on the proposed
measures to which the consultation relates (subject to the
responsibilities of management) that can be taken into account within
the Community-scale group Community-scale undertakings.
See also recital 14 (accruals) and 23.
Annex 1: It occurs to allow workers' representatives to meet
with the central management and obtain a reasoned
response to their every possible opinion
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Transnationality of the "lesion"
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Article 1 (3) ... the competence of the EWC and the
extent of the procedure for informing and consulting
employees is limited to transnational issues.
4) are considered to be transnational those
concerning the Community-scale undertaking or
Community-scale group of undertakings as a whole
or at least two plants of 'undertaking or group
situated in two different Member States.
See also the 'Article 1.2 (principle of effectiveness)
and recitals 12 and 16 (range of potential effects).
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Safeguards: delegate to Member States
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Article 10 (1). - continuedNational legislation could possibly have a duty to
intervene to ensure, for example., That EWCs have
the means proceedings (such as the right to appeal
to the courts to defend themselves), as well as
substantial resources necessary for this purpose
(legal personality, finance, communication tools: the
law guarantees the effectiveness of employees, id est
all "necessary means" for this purpose).
The provision does not concern only the EWC, but
also each of its members
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EWC: capacity to act
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What is meanwhile already "guaranteed" by the Directive?
The expertise of the EWC are extended, pursuant to Article 12.1, the area of collective
representation of workers' interests. This provision will help to clarify the question of the
ability of EWC to sue in the event of legal conflict. So far, some of the difficulties faced
EWC (eg. The case of P & O within the Conciliation Council in the UK) to be recognized
as parties authorized to participate in court proceedings.
The Community legislator has introduced the "legitimacy" without the explicit prior to the
granting of legal personality EWC general, possible source of conflict in some countries.
Almost legal status granted to EWC indirectly, subject to national implementation in the
future could create doubts and confusion in practice.
Yet it would be easy to say that the traditional monopoly of trade unions (in terms of
legal mandate exclusive representation of interests of workers) should not prevent EWC
to exercise and defend the fundamental rights of information and consultation in the
presence of the courts.
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The current “vulnus” regulatory

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The recast Directive does not identify the
means of prevention and settlement of
collective disputes on rights to information
and consultation.
Nor declares them mandatory.
The possibility of conciliation and arbitration bodies to
date can be scheduled only in the negotiation: the time of
formation of the EWC or the renegotiation of the
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This is the only option?

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
The old Directive 94/95 art. Demandava 11 member
states for the establishment of "administrative and
judicial procedures" which allow us to enforce the
obligations of information and consultation.
There was plenty of time to correct transposition of
demando.
For example, in Italy Legislative Decree. N ° 74 of 04.02.2002
"Implementation of Council Directive of 22 September 1994, 94/45/EC on
the establishment of a European Works Council or a procedure for informing
and consulting employees in undertakings and Community-scale groups of
undertakings ".
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Tools of mandatory

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Article 17 Sanctions
1. Unless the act constitutes a crime, the violation of the provision in
Article 11 the Ministry of Labour and Social Affairs, after hearing the
parties concerned, administrative sanction for payment of a sum of money
of 1,033 euros to 6,198 euros.
2. If questions arise concerning the obligations of information and
consultation consists of a conciliation committee consisting of members
appointed by stakeholders and chaired by a person appointed by the
Parties by mutual agreement. In the absence of agreement between the
parties within thirty days regarding the existence of obligations, the
Director General of the protection of working conditions of the Ministry of
Labour and Social Affairs, after hearing the parties themselves in
contradictory to each other, and ascertain the possible failure orders the
fulfillment of these obligations. If not complied with the order within
thirty days, the Director General shall be chargeable to the defaulting
party to an administrative penalty of 5,165 euros to 30,988 euros. "
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Assumptions about the succession of
laws
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
The Body is established "by operation of law" (the
agreement is not required)
The provision applies "ipso jure" to all agreements
concluded under the previous Directive and not
renewed
Probably, the national laws enacted in under the
previous Directive and transposing it, because not
expressly repealed, remain in the part of the tool
in full force.
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Suggestions


You could even build a dam to the operations of
the sales of businesses occurred without prior
information, by a REQUEST TO MEMBERS OF
TRADE UNIONS TO COMPOSE A Conciliation
Board in a decentralized site.
If the invitation is rejected, it is doubtful whether
corporate behavior can be criticized on a real
(effective suspension of the measures taken) or a
mandatory (through fines).
The letter of the law is to favor the first hypothesis, the ratio of the
standards of procedural protection gives way to the second
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Arguments in support

The Directive 77/187 on protection of
workers in case of transfer of undertakings
(as amended by Directive 2001/23)
provides for employer liability for a "timely"
and in any case before the transfer of
'company, the ineffectiveness of the
penalty decisions.
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De jure condendo



Laws would need to transpose national and carried out remedial tools
effectively, as conciliation and arbitration boards
Should be a European Regulation, immediately binding, which would
impose "ab externo", on the initiative of the injured parties, to all EWC
(both existing Directive, is made ​even under the Directive 94/95, is up
in the future), the activation chambers of conciliation and arbitration in
accordance with rules and procedures of representation and
homogeneous standards.
Should establish a definite schedule for the procedures, rules
propaedeutic between instruments, and especially the activation of the
same state that suspends the effectiveness of business decisions, in
practice, the most important effects of the Group's strategic choices
(such as transfer of businesses or business units, the conversion and
collective redundancies) declare themselves legally frozen until the
outcome of the conciliation and arbitration.
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De jure condito. National Laws: Overview of the
existing laws.
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Tools of Appeal.
In all countries the courts are competent to deal with disputes
relating to the representation of lavoratori.Si is in most cases (A, B,
D, E, EL, F, I, S, NL and P) of the Courts work (for individual
questions) and / or ordinary courts (DK, FIN, F - for collective
disputes), or the jurisdiction of the companies (NL).
Ireland has made ​the choice of arbitration, it should be emphasized
when taking into account the transnational nature of disputes (the
call is possible only if questions of law).
Finally, some peculiarities. In Finland, there is an oversight role that
is assigned to the Minister of Labour.
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Priorities and objectives of the
analysis

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


Necessary to analyze the existing EWC agreements in Europe
Should single out the negotiating tools of excellence already set and
promote knowledge.
Need to flesh out the application of good practice already sanctioned
agreements, and promote awareness and dissemination.
It should identify the guiding principles for promoting conciliation and
arbitration implementing and / or modifying existing EWC agreements
and those of future stipulation.
It should identify the means of harmonization of these instruments of
composition in the central depository with any national standards (like
the Italian one) involving composition tools in the decentralized
(Alternativity? Prerequisites? Temporal succession? Prevalence?)
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Agreements: an overview of the existing.



There are two types of EWC agreements: those "Article
13" and "Article 6". Until the entry into force of the
Directive of 1996, companies covered by Article. 13
(Agreements to February 22, 1996) were able to
circumvent the requirements of the Directive, and to
renew these agreements indefinitely.
In Europe, the overall agreements in force in 2006 were
741, of which 439 are still "Article 13".
In large part, are based in Germany and apply German
law (jus loci).
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How to overcome the problem


While the national body representing the workers
(eg "Betriebsrat", “RSU" or "RSA") addresses their
dispute by relying on national law and national
collective agreements, EWC issues must be
managed with reference to the company.
It 's necessary to provide clear rules in the
Agreement or, in the meantime, groped to apply
the principle of responsibility of the local impact of
the decision (decentralized office, if later).
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OUTCOME OF CONSULTATION AND STUDY OF LEGISLATIVE TEXTS
OF EWC SIGNIFICANT AGREEMENTS WITH RESPECT TO THE
PREDICTION OF TOOLS OF CONCILIATION AND ARBITRATION OF
COLLECTIVE DISPUTES ON INFORMATION AND CONSULTATION
RIGHTS.
EWC AGREEMENTS CONSULTED: 75
AGREEMENTS WITH NOTHING value: 64
AGREEMENTS WITH REDUCED value: 6
AGREEMENTS WITH RELEVANT value: 5
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AGREEMENTS WITH REDUCED VALUE
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AGUSTAWESTLAND = ART. 12 LEGAL STATUS AND INTERPRETATION =
EXCLUSIVE ITALIAN JURISDICTION (CALLED D. LGS. 74/02)
ASSICURAZIONI GENERALI = ART. INTERPRETATION 14 / = DISPUTES
SETTLEMENT IN CONTEXT OF PARENT, IF DISAGREE PERSISTS, EXCLUSIVE ITALIAN
JURISDICTION
CEMENTIR = ART. 8 HOW '= DOCUMENTATION AND INFORMATION TIMES AT
LEAST 30 DAYS. FIRST MEETING; Contextuality 'TRANSNATIONAL INFORMATION
AND NATIONAL POSSIBILITY' OF OPINION MOTIVATED IN 7 DAYS. AFTER THE
MEETING.
ENEL = ART. RELATIONSHIP WITH NATIONAL STANDARDS 14 = THE AGREEMENT
IS SUBJECT TO THE RULES IN FORCE FOR BEST COUNTRY MEMBERS.
ENI = ART. 16 AGREEMENT AND APPLICABLE LAW = 'SUBJECT TO THE LAWS, THE
COLLECTIVE AGREEMENTS AND RULES APPLICABLE IN ITALY
INDESIT (1996) = ART. 8 TERM OF DIRECTIVE 94/95 DEFENSIVE AND CLAUSE (DO
NOT APPLY THE EFFECTS OF THE DIRECTIVE).
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AGREEMENTS WITH SIGNIFICANT VALUE
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H.J. HEINZ = SECTION 12, DISPUTE
RESOLUTION (AAA)
1. IS INTENTION OF THE PARTIES THAT ANY DISPUTE ARISING FROM THIS
AGREEMENT IS ANSWERED BY STEERING BUREAU. IF THE DISPUTE IS RESOLVED,
WE APPLY THE FOLLOWING PROCEDURES. 2. ANY QUESTION OF INTERPRETATION
OR ALLEGED VIOLATION OF THE PROVISIONS OF THIS AGREEMENT WILL BE
SUBJECT TO ARBITRATION BY A BOARD OF THREE REFEREES. 3. AN ARBITRATOR
WILL BE DESIGNATED BY CENTRAL MANAGEMENT, AN ARBITRATOR FROM EWC. A
THIRD ARBITRATOR WILL BE DESIGNATED BY THE BUREAU OF STEERING JOINT
AGREEMENT. 4. THE ARBITRATION SHALL DECIDE FOR MAJORITY OF VOTES AND
EXPRESSES ITS EVALUATION WITHIN 15 DAYS TO CENTRAL AND EWC.
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AGREEMENTS WITH SIGNIFICANT VALUE
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RCS (2009, AA+) = ART. 9 DISPUTES
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BEFORE YOU SEEK THE BODIES OF JUSTICE, is
PROVIDED AN ATTEMPT AT CONCILIATION OF DISPUTES
THROUGH MANDATORY TECHNICAL COMMISSION,
MUST CONCLUDE THAT ITS OPERATIONS WITHIN TWO
MONTHS OF RECEIPT OF THE APPLICATION OF THE
SUBJECT.
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AGREEMENTS WITH SIGNIFICANT VALUE
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SAN BENEDETTO (AA+) = ART. 10 DISPUTES
BEFORE YOU SEEK THE BODIES OF JUSTICE, IS
PROVIDED AN ATTEMPT AT CONCILIATION OF DISPUTES
THROUGH MANDATORY TECHNICAL COMMISSION,
MUST CONCLUDE THAT ITS OPERATIONS WITHIN TWO
MONTHS OF RECEIPT OF THE APPLICATION OF THE
SUBJECT.
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AGREEMENTS WITH SIGNIFICANT VALUE
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UNICREDIT (AA+) = ART. 20 DISPUTES
BEFORE YOU SEEK THE BODIES OF JUSTICE, IS
PROVIDED AN ATTEMPT AT CONCILIATION OF DISPUTES
THROUGH MANDATORY TECHNICAL COMMISSION,
MUST CONCLUDE THAT ITS OPERATIONS WITHIN TWO
MONTHS OF RECEIPT OF THE APPLICATION OF THE
SUBJECT
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AGREEMENTS WITH SIGNIFICANT VALUE
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TAKEDA PHARMACEUTICALS (AA)= ART. 11.2
In case of dispute between the parties relating to this Agreement
which can not be settled amicably, the holes in England and Wales
shall have exclusive jurisdiction. Before you go to court, the parties
shall seek to resolve any differences internally, using as an example
to the services provided by ACAS (Advisory, Conciliation and
Arbitration Service, counseling, conciliation and arbitration).
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The only recent case in court: VISTEON
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The new German legislation is already having its test in court immediately after its entry into force, June
18, 2011. On 8 September 2011, the Labour Court of the State of Cologne, decided in the second
instance in a case involving the EWC of Visteon, for violation of rights of participation in the context of a
plant closure in Spain. On one hand, the Court concluded that the rights of the EWC had been denied.
Second, the judge has found a useful tool to enforce the provisions of the new EWC Directive into the
German legal system.
Visteon announced its plans to close a company in Spain June 23, 2011. The EWC has subsequently
commenced the consultation process, a special meeting of July 12, 2011 and the start of legal
proceedings. Although the consultation procedure, including an examination of possible alternatives to
closure had not yet started, the management company wanted to "force", creating a fait accompli. To
preserve their rights, the EWC had no choice but to pursue legal action.
The question of EFFECTIVE TOOLS is very controversial. At stake is whether a Directive of the
European Union may be without effect in Germany, while exactly the same Directive, in France and
Belgium, is strongly protected.
Will the German legislature FORGET TO INTRODUCE effective, dissuasive and proportionate to the
seriousness of the offense"? A proposal put forward by the Social Democrats (SPD) during the legislative
procedure was rejected April 6, 2011 by the conservative Liberal of the German Bundestag. The German
trade union DGB therefore requested legal clarification on the issue, even before the case became public
knowledge Visteon.
TWO CONSIDERATIONS. 1. There are no legal precedents to judgment, in Germany. The only known
case is that of Forbo, a chemical company, which ended in 2004 before the Labour Court of Lower
Saxony, without ruling. 2. If the actual process should end before the European Court of Justice, would
impact on all European Union countries.
An irregularity in the consultation process can be expensive . This was the experience of the
Finnish Fujitsu Siemens Computers, when he had to make additional payments of 3 million
employees, because of a consultation procedure is not performed properly.
Protecting the rights of the EWC in law
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In summary, we should ...
Replicate and spread good practice negotiating
Promote homogenous and preceptive, community,
for the prevention and settlement of disputes
Move from a system of fines for a violation that
discourages making unproductive effects
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These conclusions will be tendered, together with the analysis in a
forthcoming monograph bilingual APF available to the European
Commission.
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The state of transposition of the Directive
24.11.2011: The EC asks four countries to proceed expeditiously: HANDS UP! The European Commission
has asked Greece, Italy, Luxembourg and the Netherlands to implement the legislation on European Works
Councils (recast of the EU directive on European works councils) into national law.
The request takes the form of a 'reasoned opinion' under EU infringement proceedings. If Greece, Italy,
Luxembourg and the Netherlands do not conform their legislation with Community law within two months,
the Commission may decide to refer these Member States to the EU Court of Justice.
The Member States were to adopt the laws, regulations and administrative provisions necessary to comply
with new European Works Councils Directive into force by June 5, 2011 and notify to the Commission. In
the cases of Greece, Luxembourg and the Netherlands, the process of adoption of national measures of
implementation is underway, but have not been given precise directions in terms of completion of this
process. In the Italian case, no information is received by the Commission on the timing and modalities of
the implementation process.
In July 2011 the Commission sent warning letters to 17 Member States for failing to meet these
obligations. Infringement of these cases, eight cases were closed (SK, CY, CZ, FI, HU, IE, LT, SI) and five
cases are in the process of being closed or the Commission is awaiting a few last items for the closure (FR,
PL, RO, BE, UK), as these States have transposed the EU directive into national law.
Latest News (from E. Pichot): the Netherlands has just completed the transposition, UK and
Belgium are still in "standby" (there are reasons not to initiate infringement proceedings).
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Appendix. STATE of IMPLEMENTATION DIRECTIVE 2009/38/EC
Document
Note
Date
Rapport au Président de la République relatif à
l’ordonnance no 2011-1328 du 20 octobre 2011
portant transposition de la directive 2009/38/CE du
Parlement européen et du Conseil du 6 mai 2009
concernant l’institution d’un comité d’entrepris...
21/10/2011
article/documentation on legal issues
Report on ordonnance n°2011-1328 of 20/10/2011
Europese ondernemingsraden meer invloed
Denmark
01/04/2011
L 117 Bill to amend the Law on European Works
Councils
Implementation of Recast Directive 2009/38/EC Report, Group of Experts
29/03/2011
01/12/2010
Draft of the Italian participation code
The Labor Minister recently presented the first draft
of the "participation code." Containing a selection
of existing European and national laws, bills, union
agreements and good practices on workers'
involvement with the company's management and
profit
12/07/2010
Table: Eligibility criteria for EWC members /
selection procedures
Source: EMF, http://www.emf-fem.org/Areas-ofwork/Company-Policy/EWC-SE/European-WorksCouncils/EWC-legal-issues/Comparative-tablesfor-most-EU-Member-States-on-different-legalaspects
01/01/2005
Table: overview table on some legal aspects of
EWCs
Source: EMF, http://www.emf-fem.org/Areas-ofwork/Company-Policy/EWC-SE/European-WorksCouncils/EWC-legal-issues/An-overview-and-abrief-description-of-the-legal-systems-in-the-EUMember-States Author: A. Buggel
01/01/2002
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transposition law 2009/38/EC
France
Ordonnance no 2011-1328 du 20 octobre
2011 portant transposition de la
directive 2009/38/CE du Parlement
européen et du Conseil du 6 mai
2009 concernant l’institution d’un
comité d’entreprise européen ou
d’une procédure dans les
entreprises ...
21/10/2011
Cyprus
Law 106(I)/2011 The Law of 2011 on the
Establishment of a European Works
Council is hereby issued through
publication in the Government
Gazette of the Republic of Cyprus in
accordance with Article 52 of the
Constitution.
29/07/2011
Estonia
Community-scale Involgement of
Employees Act [RT I 2007, 22, 112 entry into force 23.03.2007]
14/07/2011
Ireland
S.I. No. 380 of 2011- European
Communities (Transnational
information and consultation of
employees act 1996) (amendment)
regulations 2011
14/07/2011
Czech Republic
Law 185/2011 amending law 262/2006 on
Labour Code (July 2011) ZÁKON ze
dne 8. ervna 2011, kterým se mení
zákon c. 262/2006 Sb., zákoník
práce, ve znení pozdejších predpisu
08/07/2011
Lithuania
Law amending the law of the republic of
Lithuania on European Works
Councils, 22 June 2011, No XI-1507
(Valstyb?s žinios (Official Gazette)
2004, No 39-1271)
22/06/2011
With EU contribution
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of disputes on information and consultation rights in the context of
Banking mergers, acquisition and restructuring” (VS/2010/0668)
Germany
Second Law on EWCs (June 2011) Zweites
Gesetz zur Änderung des
Europäische Betriebsräte-Gesetzes Umsetzung der Richtlinie 2009/38/EG
über Europäische Betriebsräte
(2.EBRG-ÄndG), BGBl.1 18.6.2011
14/06/2011
Spain
Proyecto de Ley por la que se modifica la
Ley 10/1997, de 24 de abril, sobre
derechos de información y consulta
de los trabajadores en las empresas y
grupos de empresas de dimensión
comunitaria (621/000096)
18/04/2011
Denmark
Law 271 amending Law on EWCs (April
2011) LOV nr 281 af 06/04/2011 om
ændring af lov om europæiske
samarbejdsudvalg
06/04/2011
Bulgaria
Decree n° 55 on the grounds of Article 98
item 4 of the Constitution of the
Republic of Bulgaria
25/03/2011
Italy
Emendamenti al D.Lgs. n. 74/2002
25/03/2011
Spain
Proyecto de Ley por la que se modifica la
Ley 10/1997 de 24 de abril, sobre
derechos de información y consulta
de los trabajadores en las empresas y
grupos de empresas de dimensión
comunitaria
11/03/2011
France
Ordonnance relative à la transposition de la
directive 2009/38/CE du Parlement
européen et du Conseil du 6 mai 2009
concernant l’institution d’un comité
d’entreprise européen ou d’une
procédure dans les entreprises de
dimension communautaire...
01/03/2011
With EU contribution
France
“CONCILIATION AND ARBITRATION: two ways to manage the effects
of disputes on information and consultation rights in the context of
Banking mergers, acquisition and restructuring” (VS/2010/0668)
Rapport au Président de la République relatif à
l’ordonnance n° 2011- du portant transposition de
la directive 2009/38/CE du 6 mai 2009 concernant
l’institution d’un comité d’entreprise européen ou
d’une procédure dans les entreprises
01/03/2011
France
Decret relatif à la composition du groupe spécial
de négociation et du comité d’entreprise européen
01/03/2011
Slovakia
Slovak Labour Code
08/02/2011
Belgium
collective labor agreement (CCT) No. 101
transposing Directive 2009/38 on EWCs (recast)
21/12/2010
Belgium
Transnational collective agreement 62 quinquies
21/12/2010
Austria
Federal Law No 101: Amendment of the
Arbeitsverfassungsgesetz [Labour Constitution
Act], the Post-Betriebsverfassungsgesetz [Post
Office Employee Representation Act] and the
Landarbeitsgesetz 1984 [Agricultural Labour Act
1984]
14/12/2010
United Kingdom
2010 No. 1088 TERMS AND CONDITIONS OF
EMPLOYMENT The Transnational Information and
Consultation of Employees (Amendment)
Regulations 2010
06/04/2010
Portugal
Lei n° 96/2009 de 3 de Setembro - Conselhos de
empresa europeus Portuguese transposition law,
only availalbe in Portuguese
03/09/2009