The SE consultation Jan Cremers March 2012 [email protected]

The SE consultation

Jan CremersMarch [email protected]

Jan Cremers - AIAS Amsterdam 2012

EU after Enlargement


Relevant European Directives

EWC Directive 1994/45/EC + 2009/38/EC

Directive national information and consultation 2002/14/EC

Directive on workers‘ involvement in SE&SCE SE: 2001/86/EC SCE: 2003/72/EC

Information and consultation in EU active transnationals. Oper: 09/1996 + 12/1999 (UK) Oper: 06/2011 (4 MS not yet)

National minimum standards Information and consultation. Oper: 03/2005

Mandatory negotiations on

workers‘involvement: Information, consultation, & participation.

Oper: 10/2004 (SE) & 08/2006 (SCE)


Information and consultation


Participation in the board


Background

SE (Societas Europaea) legislation consists of two intertwined legal acts: Regulation 2157/2001 and Directive 2001/86

Rules are based on a balanced compromise reached after more than 30 years of intensive debates in the EU and the Member States

Purpose was to establish a single legal corporate model throughout Europe


Characteristics

The Directive contains provisions for a legally binding procedure of company-level negotiations on transnational information and consultation bodies (SE Works Council) and on participation at board level.

Workers’ involvement is in accordance with the so-called ‘before-and-after principle’.


Short history

SE rules entered into force in October 2004.

At this moment >1113 SEs registered. Only 210 of these SEs can be classified as

‘normal’, in the sense that they are both operational and have employees.

The total of Czech SE companies makes up 60% of the total number of SEs in Europe. There it has become an alternative for the normal national company form.


SE balance sheet early 2012

1 March 2012, - in total 1113 registered SEs in ETUI’s European Company Database (ECDB). Increase is mainly due to SE registration in the Czech Republic (in total 676) – in the meantime 60% of all registered SEs. The overall distribution in March 2012: Normal – 210, Micro – 103, Shelf – 137, Empty – 104, UFO – 559 (454 in Czech Republic).http://ecdb.worker-participation.eu


SE and EWC


The 2008 Consultation

Social partners agreed: too early to start revision, given the lack of experience of applying the national provisions transposing the Directive.

BusinessEurope: involvement overly complicated; structured provisions around employee participation and the creation of Special Negotiating Body substantial obstacles to increasing the number of SEs; greater flexibility needed.

ETUC: size of the body has to be discussed; rights exercised; protection


Assessment by the EU 2008: too early, procedure is complex, but

compromise took 30 years of negotiations 2011: three problematic areas identified, i.e. a) complexity of the procedure for employee

involvement; b) lack of legal certainty concerning certain

aspects of the negotiation procedure; c) concern that the use of the SE form could

have an effect on the rights to employee involvement granted by national or EU law.


Main questions Commission

1. Opinion on the provided analysis – any additional items

2. Revision needed (in parallel with the revision of the Regulation) – scope?

3. Other action, what form?4. A dialogue under Article 155

TFEU?

Deadline 30 September 2011


BusinessEurope

+ The smaller size of the supervisory board+ Image & Promotion of efficient structures - Interference of SE workers involvement;

distortion national labour frameworks- Negotiation procedure cumbersome

Priority is simplification of the Regulation Calls for removal of obstacles, in

particular from a company law and taxation perspective


Workers’ involvement a ‘burden’ – a SEEurope report No hard evidence of serious hindrance No high incidence in countries where WP

is absent Lack of proper information Other incentives/disincentives determineEmployers fear possible increase in level

and scope of employee involvement

See for more: http://www.worker-participation.eu/About-WP/What-s-new/News-Bulletin/News-Bulletin-worker-participation.eu3



More information

◗ Website ETUC: http://www.etuc.org ◗ General information on EBR, SE and

workers‘involvement: http://www.worker-participation.eu

◗ EWC-Database of ETUI: http://www.ewcdb.org

◗ Database of the Social Development Agency (SDA): http://www.sda-asbl.org

◗ Information on the revised EWC see: „European Works Councils: a trade union guide to Directive 2009/38/EC“, available at www.etui.org

Documents

The SE consultation Jan Cremers March 2012 [email protected]