The position stresses that a number of shortcomings in the rules under the EU’s EWC directive 2009/38/EC mean that EWCs face deficiencies and obstacles in their set-up procedure and effective and meaningful operation, and that it should therefore be revised. The position paper argues in particular that in the directive:

1. The definition of ‘transnational matter’ must be sharpened:
   An obstacle that EWCs encounter frequently is that management abuses the vagueness of the definition of a ‘transnational matter’ and does not consider an issue as such and does not consult and EWC, even if it should. The directive should be revused ti set out a clearer definition of ‘transnational matters’ so that companies can no longer circumvent a consultation of an EWC in a relevant matter because of a blurry interpretation of what constitutes a ‘transnational matter’.
2. The definition of ‘consultation’ must be made more stringent:
   In practice a recurrent problem that numerous EWCs face is that consultations only take place pro-forma. It also occurs that decisions have even already been taken by management before consultations take place. A further problem relates to the absence of an obligation for management to take opinions of EWCs into consideration. The directive should be revised to strengthen the definition of ‘consultation’ to specifically require that (1) consultations must take place timely so that opinions of EWCs can still have an impact on decisions by management, that (2) consultations cannot simply be a formality after management has already made decisions, and that (3) opinions must necessarily be taken into account by management, and this in a meaningful way.
3. The scope and nature of ‘confidentiality restrictions’ must be clarified:
   Currently, the directive specifies that management is not obliged to transmit information to EWCs in situations “when its nature is such that, according to objective criteria, it would seriously harm the functioning of the undertakings concerned or would be prejudicial to them.” Further details are left for regulation (or not) by the Member States. The result is a plethora of national rules, and many of them are not strong enough to prevent situations of misuse where management refuses to share information in order to pre-empt a (legitimate) involvement of EWCs. This leads to an (illicit) obstruction of the involvement, work and functioning of EWCs. The directive should be revised to set a clear definition of what confidentiality restrictions apply and in which situations it is legitimate for management to withhold information. This will avoid companies uses confidentiality restrictions in an abusive way and as a pretext to circumvent a consultation of EWCs.
4. The process and the conditions to set-up new EWCs must be simplified to allow a swifter establishment:
   The directive should be revised to simplify the initiation process and set up of EWCs. In particular, the maximum duration of set up negotiations of three years between workers’ representatives and management representatives should be shortened. Practical experience has shown that long before the lapse periods of three years it is usually clear if management has a genuine interest to set up an EWC or not.
5. The provisions on sanctions for non-compliance with the directive must be reinforced: The directive is so far not always effective in ensuring in all Member States effective, deterring sanction and penalties for non-compliance, due to insufficient provisions in the directive. The directive should be revised to spell out a concrete framework with minimum sanctions for Member States to respect.
6. An adequate financial, material and legal support for EWCs should be ensured: Numerous EWCs lack the necessary financial, material and/or legal support to fulfill their work and purpose because of a failure or unwillingness of management to provide this. This appears as a practical and very concrete obstacle which obstructs the effective operation of many EWCs. The directive should be revised to stipulate more clearly that the central management is responsible to provide the necessary and adequate financial (e.g. travel and meeting costs, external judicial advice) and material (e.g. meeting facilities and equipment) resources to ensure that EWCs can effectively, timely and meaningfully pursue their mission.
7. Exemptions from the scope of the directive must be reduced: Currently, EWCs are diverse in their operational organisation not only because each EWC has its own rules and modalities as negotiated between management and workers based on general content-related categories set out in Article 6 of the EWC directive. They are also diverse because EWCs (established before the first EWC directive, after the first directive in 1996, and following the latest revision in 2011 respectively) all operate under their original directives. New rules established by the revisions of the EWC directive did not apply to EWCs that were already in place. This three-tier constellation is causing a plethora of confusing settings. Above all, it also means that improvements achieved in revisions of the EWCs following 1996 and 2011 do not apply to previously established EWCs. The directive should be revised to provide that it does only apply to new EWCs that will be established in the future. Indeed, a central objective of a revision should be a harmonisation of existing EWCs to ensure that all EWCs agreements fall under the latest consolidated version of the directive.

The full position is available here.