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The recast EWC Directive : a Glorious Evolution

The Recast EWC Directive, at last ? . 22 september 1999 : a Commission deadline for the START of the Review of the EWC Directive 94/95May (?) 2009 : The Recast EWC Directive, only 10 years after the deadline for the start of the Review process The notion of the EWC was introduced in the first Societas Europaea Proposal for Regulation (1970)The idea of (trans)national Information and Consultation within complex structures dates back to the Vredeling Proposal (1980) .

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The recast EWC Directive : a Glorious Evolution

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    1. The recast EWC Directive : a Glorious Evolution Filip Dorssemont Université Catholique de Louvain FNRS-FRS

    2. The Recast EWC Directive, at last ? 22 september 1999 : a Commission deadline for the START of the Review of the EWC Directive 94/95 May (?) 2009 : The Recast EWC Directive, only 10 years after the deadline for the start of the Review process The notion of the EWC was introduced in the first Societas Europaea Proposal for Regulation (1970) The idea of (trans)national Information and Consultation within complex structures dates back to the Vredeling Proposal (1980)

    3. « Shortcomings », what’s in a name ? Shortcomings in relation to the objectives (7th Recital) Ensuring effectiveness of transnational ICP rights Increasing the proportion of EWC’s Resolving problems encountered in practical application Remedying the lack of legal certainty A better linking (articulation)- between EC Directives

    4. Getting Started Assesment whether undertaking- group of undertaking fall within the ambit ? -no legal clarification of what constitutes the information required for commencing negotiations ? -no anti-victimisation clauses for employee(s) (representatives) requesting to commence negotiations ?

    5. Getting Started Who has to co-ordinate and finance the establishment of the SNB ?

    6. Trans-nationality, a limit to the competence of the EWC? Trans-nationality has been reshuffled from the SR to the body of the Recast Directive as a formal limit of the EWC comptences Is this a restriction of the autonomy of the SNB and CM to define the competence of the EWC? = Matters of concern to the Community-scale entity as a whole or to at least two components in two different MS

    7. Trans-nationality, a limit to the competence of the EWC? 16 th Recital allows for a more qualitative approach, which transcends the case of transfer between MS ? the scope of their potential effects for the workforce Decision to close plant X is a decision NOT to close Y Z etc Decision to close plant X can be avoided by a transversal policy to operate cuts British Airways case allows for an assessment of restructuring operations over a wider time span

    8. Information and Consultation Major Improvement ? Introducing definition of information Improving a definition on consultation Articulating the link between I and C Anteriority of Consultation vis-à-vis restructuring decisions (proposed measures) No simultaneous Information and Consultation : information is a preparatory stepstone to consultation

    9. Information and Consultation Proposed measures are not envisaged measures (SE 2001/86) Proposed measures are not exceptional circumstances or decisions (SR) No IC « with a view to reach an agreement » No formal duty for CM to provide a response to the opinion (in the corpus of the EWC Directive)

    10. Linking- Articulation There is a need for a comprehensive articulation of the various EC Directives related to WI (« patch work ») Patch Work creates an employer’s argument for not informing consulting or for postponing IC procedures at local level The EWC Recast precludes the not informing, but does not solve the issue of timing Contractual governance within the article 6 agreement is not a feasible solution ? EWC might provide a RIGHT for local works councils to postpone IC proceedings at local level

    11. Facilitating the functioning SNB- EWC Major improvements : -right to training without loss of wages SNB EWC -right to pre and post meetings for the SNB Quid with financing of the training? Quid with the autonomous organisation of training? Quid with prior and posterior meetings for the members of the conventional EWC; the post meetings of the statutory EWC? Quid with visits of EWC Members at local level?

    12. Contractual Governance, a structural threat to legal security The Recast raises and solves the issue of continuity of all conventional and statutory EWCs in the case of restructuring : Duty to adapt in case of significant (?) changes Quid in case of expiry of termination of conventional EWC’s unrelated to restructuring and adaptation ?

    13. Sanctions No specific sanctions have been imposed to implementing MS The scope of Article 10 (collectively represent) is UN-clear (ius agendi)

    14. Conclusion effectiveness : no specific sanctions, no rules on standing (? : better definition) Increasing the proportion of EWC’s : thresholds unaltered – discontinuity Resolving problems encountered in practical application (reminiscent of problems) Remedying the lack of legal certainty (to soon) A better linking (articulation)- between EC Directives : Work in Progress (?-? SE Directive)

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