Second stage consultation on the EWC Directive revision

Following a Report widely approved by the EU Parliament in March 2023 calling for a thorough revision of the Directive (and commented in a few Newsletters of Bird & Bird), the EU Commission started a pre-legislative process in April 2023 (under article 154 TFEU) by consulting the social partners on the need for and possible scope of such revision. That first stage has been completed, and the replies have been analysed.

The consultation document addressed to the EU social partners in this second stage proves - as could be expected - that the EU Commission concluded that there is indeed scope for further EU action on improving the Directive. It sets out possible objectives and avenues for EU action to allegedly make the information and consultation of employees (‘I/C’) at transnational level more effective. Four objectives are listed in particular:

• Abolish unjustified differences in I/C rights, meaning, for instance, that the legacy regimes (of so-called ‘Article 13’ EWC agreements) could be phased out and that the Directive’s remit could extend the transnational I/C rights to structurally independent but contractually linked groups of companies,
• Ensure a more efficient and effective process for setting up EWCs, meaning that the SNB process would be streamlined (i.e., shortened) and better supported (i.e., with a clear role for official trade union representatives and paid for by central management), in a more gender-balanced way,
• Secure, effective processes of I/C, including appropriate resources, for instance, by providing more certainty on the concept of transnationality, by finetuning the concept of effective consultation and addressing issues around confidentiality, and
• Improve effective enforcement of the Directive, for instance, through dissuasive and proportionate sanctions (for national laws to have a genuine deterrence of violations of I/C rights) and by securing access to justice to enforce the I/C rights.
• In terms of scope and content of a possible revision, the listed objectives pick up many of the desiderata of the EU Parliament (see Bird & Bird Newsletter, ‘An (unexpected) revision of the EWC Directive underway?’, 30 January 2023). They are clearly inspired by the trade union movement’s wish list.

Regarding relevant policy instruments to be used in the revision, the EU Commission confirms that some of the avenues of EU action under consideration may require a revising Directive as a legally binding instrument to secure the uniform adaptation of the minimum requirements of the Directive. However, for some of the above objectives and venues, non-binding measures may well be more appropriate, probably because of the ‘constitutional’ limits on EU action in the field of social policy and I/C rights (see Bird & Bird Newsletter, ‘Some legal issues in connection with the EP‘s recommended revised EWC Directive’, 17 February 2023).

This being said, the social partners may, during or after concluding this second-stage consultation round, decide to try and negotiate an agreement (under article 155 TFEU), which in case of success, will then be confirmed in the proper binding EU policy instrument (by EU Council decision). The social partners' ability to achieve this cannot be overestimated, since there was no agreement on revising the initial EWC Directive 94/45 in 2008. Additionally, the framework agreements under art 155 TFEU are scarce and quite outdated (parental leave (1996), part-time work (1997) and fixed-term work (1999)).