Conclusions
OPINION OF ADVOCATE GENERAL
TIZZANO
delivered on 11 July 2002 (1)
Case C-440/00
Gesamtbetriebsrat der Kühne & Nagel AG & Co. KG
v
Kühne & Nagel AG & Co. KG
(Reference for a preliminary ruling from the Bundesarbeitsgericht, Germany)
((Directive 94/45/EC – European Works Council – Group of undertakings – Central management situated in a non-Member State – Constructive representative within the Community – Obligation of the undertakings in the group to send information to that representative – Extent))
1. By order of 27 June 2000, the Bundesarbeitsgericht (Federal Labour Court), Germany, referred to the Court of Justice under
Article 234 EC two questions for a preliminary ruling regarding the interpretation of Council Directive 94/45/EC on the establishment
of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for
the purpose of informing and consulting employees
(2)
(hereinafter
Directive 94/45 or, simply, the
directive). In particular, the Bundesarbeitsgericht asks whether, in the case of a group of undertakings which has its central management
outside the territory of the Member States, the undertakings established within the Community are obliged to supply information
to the undertaking the management bodies of which take on the responsibilities of central management under the directive and,
if so, asks the Court to state the extent of that obligation.
I ─ Relevant provisions
A ─
Relevant provisions of the directive
2. Article 1 of the directive provides that:
1. The purpose of this Directive is to improve the right to information and to consultation of employees in Community-scale undertakings
and Community-scale groups of undertakings.
2. To that end, a European Works Council or a procedure for informing and consulting employees shall be established in every
Community-scale undertaking and every Community-scale group of undertakings, where requested in the manner laid down in Article
5(1), with the purpose of informing and consulting employees under the terms, in the manner and with the effects laid down
in this Directive....
4. Unless a wider scope is provided for in the agreements referred to in Article 6, the powers and competence of European Works
Councils and the scope of information and consultation procedures established to achieve the purpose specified in paragraph
1 shall, in the case of a Community-scale undertaking, cover all the establishments located within the Member States and,
in the case of a Community-scale group of undertakings, all group undertakings located within the Member States....
3. Article 2(1) of the directive provides that: For the purposes of this Directive:
(a) Community-scale undertaking means any undertaking with at least 1 000 employees within the Member States and at least 150 employees in each of at least
two Member States;
(b) group of undertakings means a controlling undertaking and its controlled undertakings;
(c) Community-scale group of undertakings means a group of undertakings with the following characteristics:
-
- ─
at least 1 000 employees within the Member States,
at least 1 000 employees within the Member States,
-
- ─
at least two group undertakings in different Member States, and
at least two group undertakings in different Member States, and
-
- ─
at least one group undertaking with at least 150 employees in one Member State and at least one other group undertaking with
at least 150 employees in another Member State;
at least one group undertaking with at least 150 employees in one Member State and at least one other group undertaking with
at least 150 employees in another Member State;
...
(e) central management means the central management of the Community-scale undertaking or, in the case of a Community-scale group of undertakings,
of the controlling undertaking; ...
4. Article 3(1) provides that: For the purposes of this Directive,
controlling undertaking means an undertaking which can exercise a dominant influence over another undertaking (
the controlled undertaking) by virtue, for example, of ownership, financial participation or the rules which govern it.
5. By virtue of Article 4 of the directive:
1. The central management shall be responsible for creating the conditions and means necessary for the setting up of a European
Works Council or an information and consultation procedure, as provided for in Article 1(2), in a Community-scale undertaking
and a Community-scale group of undertakings.
2. Where the central management is not situated in a Member State, the central management's representative agent in a Member
State, to be designated if necessary, shall take on the responsibility referred to in paragraph 1.In the absence of such a representative, the management of the establishment or group undertaking employing the greatest number
of employees in any one Member State shall take on the responsibility referred to in paragraph 1.
3. For the purposes of this Directive, the representative or representatives or, in the absence of any such representatives,
the management referred to in the second subparagraph of paragraph 2, shall be regarded as the central management.
6. Article 5(1) of the directive provides that:In order to achieve the objective in Article 1(1), the central management shall initiate negotiations for the establishment
of a European Works Council or an information and consultation procedure on its own initiative or at the written request of
at least 100 employees or their representatives in at least two undertakings or establishments in at least two different Member
States.
7. Under Article 6(1) of the directive:The central management and the special negotiating body must negotiate in a spirit of cooperation with a view to reaching
an agreement on the detailed arrangements for implementing the information and consultation of employees provided for in Article
1(1).
8. Article 11 of the directive provides that:
1. Each Member State shall ensure that the management of establishments of a Community-scale undertaking and the management of
undertakings which form part of a Community-scale group of undertakings which are situated within its territory and their
employees' representatives or, as the case may be, employees abide by the obligations laid down by this Directive, regardless
of whether or not the central management is situated within its territory.
2. Member States shall ensure that the information on the number of employees referred to in Article 2(1)(a) and (c) is made
available by undertakings at the request of the parties concerned by the application of this Directive.
3. Member States shall provide for appropriate measures in the event of failure to comply with this Directive; in particular,
they shall ensure that adequate administrative or judicial procedures are available to enable the obligations deriving from
this Directive to be enforced....
9. Lastly, according to Article 14(1) of the directive:... the Member States being obliged to take all necessary steps enabling them at all times to guarantee the results imposed
by this Directive. They shall forthwith inform the Commission thereof.
B ─
The German legislation
10. The Federal Republic of Germany transposed the directive in the Gesetz über Europäische Betriebsräte (Law on European Works
Councils) of 28 October 1996 (hereinafter the
EBRG).
(3)
11. Paragraph 1(3) of the EBRG defines the concept of
central management of the undertaking or group of undertakings, and Paragraph 2(2) makes provision for cases where that management is located
in a non-Member State: in such cases, where there is neither a subordinate management nor a representative designated by the
central management, the German legislation has recourse to a legal fiction, regulating the matter in accordance with the second
subparagraph of Article 4(2) and with Article 4(3).
12. Paragraph 5 of the EBRG provides that:
1. The central management must give to the employees' representatives, upon request, information on the average numbers of employees
and the distribution of these within the Member States, on the undertakings and establishments and on the structure of the
company or group of companies.
2. A works council or a central works council may exercise the right granted in subparagraph 1 against the local management of
the establishment or undertaking; the latter shall be required to obtain from the central management the information and documents
necessary to provide the particulars requested.
(4)
II ─ Facts and proceedings in the national court
13. The action pending in the Bundesarbeitsgericht is between the German company Kühne & Nagel AG & Co. KG (hereinafter
Kühne & Nagel or the
German company) and the Gesamtbetriebsrat (central works council) of that company.
14. The order for reference states that Kühne & Nagel forms part of a Community-scale group of undertakings the central management
of which is situated in Switzerland. No European Works Council has been established in this group or any procedure for the
purpose of informing and consulting employees within the meaning of Article 1(2), and attempts by the employees to establish
a special negotiating body within the meaning of Article 5 of the directive have never been successful.
15. The order for reference also shows that there is no subordinate management of the Kühne & Nagel group in any Member State,
and that the central management has never designated any local representative under the first subparagraph of Article 4(2)
of the directive. Since the German company is the group undertaking with the greatest number of employees in the Member States,
it therefore ─ under Paragraph 2(2) of the EBRG (second subparagraph of Article 4(2), and Article 4(3), of the directive)
─ takes on the responsibility of the central management. On that basis, the Gesamtbetriebsrat therefore requested Kühne &
Nagel to send it the particulars specified in Paragraph 5(1) of the EBRG, and also the names and addresses of the employee
representation bodies set up in the group undertakings situated in the other Member States.
16. Receiving a refusal from Kühne & Nagel, the Gesamtbetriebsrat applied to the competent German court for satisfaction of its
claim. The first- and second-instance courts found against Kühne & Nagel, which therefore appealed to the Bundesarbeitsgericht.
The German company does not dispute the obligation to send the particulars specified in Paragraph 5(1) of the EBRG but claims
that it is not in a position to comply, since the central management of the group is not subject to Community law and refuses
to give it these particulars. The requests made to the other group companies have also remained unanswered and Kühne & Nagel
itself has no information on the matter. It is therefore not possible to respond to the Gesamtbetriebsrat's claim, which
consequently must be rejected. In any case, apart from that, the German company considers that there is no legal basis for
the request for information on the employee representation bodies set up in the other Member States.
17. The court making the reference holds that the claim by the Gesamtbetriebsrat to receive the information referred to in Paragraph
5(1) of the EBRG is sound but it perceives the situation of the German company to be unbalanced: it is required to send that
information but it does not have appropriate means of obtaining it from the group undertakings established in the other Member
States. If the objection by Kühne & Nagel is to be rejected, it must in fact have those means. The Bundesarbeitsgericht
states that the solution cannot be sought in the German legislation, which has no effect in respect of undertakings situated
outside Germany; but it does accept that, on the basis of the second subparagraph of Article 4(2), and of Article 11(1) and
(2), of the directive, a management which takes the place of the central management may be entitled to information from group
undertakings and establishments situated in other Member States.
18. Furthermore, the court making the reference accepts that there may be a basis in the directive for the Gesamtbetriebsrat's
claim to receive in addition the information on the employee representation bodies in undertakings of the Kühne & Nagel group
established in the other Member States. It is of the opinion, however, that that point will be resolved only if it is affirmed
that the
constructive central management of the group is entitled to the information.
19. In consequence, being uncertain of the interpretation to be attached to the relevant provisions of the directive, the Bundesarbeitsgericht
stayed proceedings, referring the following questions to the Court for a preliminary ruling:
1. Is it a requirement of Directive 94/45/EC on the establishment of a European Works Council or a procedure in Community-scale
undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees, in particular
Articles 4 and 11 thereof, that undertakings which belong to a group of undertakings whose controlling undertaking is resident
outside the Community are obliged to provide the undertaking which is regarded as the central management under the second
paragraph of Article 4(2) and Article 4(3) of the directive with information on the average total number of employees and
their distribution across the Member States, the establishments of the undertaking and the undertakings controlled by it,
and on the structure of the undertaking and of the undertakings controlled by it?
2. If the answer to the first question is in the affirmative: Does the obligation to provide information also encompass the names and addresses of the employee representations which are
to participate, on behalf of the employees of the undertaking or the undertakings controlled by it, in the setting up of a
special negotiating body in accordance with Article 5 of the directive or in the establishment of a European Works Council?
III ─ Procedure before the Court of Justice
20. In the written procedure, observations were submitted to the Court by the Gesamtbetriebsrat, Kühne & Nagel, the Federal Republic
of Germany, the Kingdom of Sweden and the Commission of the European Communities. The German and Swedish Governments and
the Commission subsequently responded to the written questions put to them by the Court. The Gesamtbetriebsrat, Kühne & Nagel
and the Commission also took part in the hearing on 15 January 2002.
IV ─ Legal analysis
A ─
The first question referred
1. Summary of observations submitted to the Court
21. Kühne & Nagel first of all denies that the relationship between the central management and the other companies of the group
can be defined on the basis of the directive. In this particular case, in any event, there is simply a
constructive management, identified by law in place of the actual management. But the legal fiction affords the
constructive central management no power in respect of its sister companies, which are independent, and hence no power to obtain information
from them, particularly since that information might be confidential. Nor could such a power stem from the national legislation
implementing the directive. Furthermore, according to Kühne & Nagel, in order to secure the practical effect of the directive,
there is no need to risk the independence of the individual undertakings in the group, for it is sufficient to accord the
workers' representatives a right to information in respect of each of those undertakings. The question ought therefore to
be answered in the negative.
22. The Gesamtbetriebsrat and the German and Swedish Governments gave contrary responses. The former, in particular, considers
that the right to information held by the workers' representatives can be guaranteed only if the
constructive central management itself has a right to information in respect of the other group companies established in the Member States:
it would otherwise not be possible to achieve the object of the directive. The Gesamtbetriebsrat also points out that Article
11 shows that the directive attaches considerable importance to the true and effective implementation of the rights which
it confers. Failure to comply with the directive, as a result of a refusal by the other companies in the group to cooperate,
must therefore be penalised by means of the appropriate judicial procedures.
23. According to the German and Swedish Governments, the existence of the right concerned is to be inferred not only from the
principle of the practical effect of the directive but also from Articles 4(1) and 6(1), which presume an obligation of cooperation
within the group as between the central management and the other undertakings established in the Member States. The central
management's right to information is also to be inferred from the obligation to provide information which Article 11(2) of
the directive imposes on all undertakings in the group, since it is the central management which coordinates those undertakings
when a European Works Council is established. And the wording of the directive further shows that the mechanisms for information
and consultation which it provides for relate to all undertakings of the group and that the undertakings are therefore all
required to cooperate in achieving the ends of the directive. The Swedish Government adds that it is therefore for the Member
States to identify the means needed for that purpose.
24. The Commission accepts that it can be inferred from Articles 4 and 11 of the directive that the
constructive central management has a right to obtain information from the other undertakings in the group but questions whether, in most
cases, that is an appropriate means of achieving the practical effect of the directive. It lays stress on the difficulties
which the
constructive central management would encounter in asserting such a right, starting from the point that it might not have knowledge of
the structure of the entire group and, therefore, might not be able to identify all the undertakings or establishments to
which the directive applies. And, furthermore, if the
constructive central management is in practice to assert such a right to information in respect of the other group undertakings, particularly
if they are situated in different Member States, there would be a need at national level for specific provisions to be laid
down to that effect in the measures to transpose the directive.
25. The Commission therefore suggests that the problem should be viewed in a different light, one which it considers more in keeping
with the wording and the broad logic of the directive. The Commission starts from the assumption that, even when the central
management is situated in a non-Member State, it may not evade compliance with the directive in respect of those group undertakings
and establishments which are within the territory of the Member States, within which it must therefore guarantee the workers'
right to information laid down in the directive. It is thus the central management which must give the
constructive central management ─ which takes on its responsibility for the purposes of the directive ─ the information requested by the
workers. According to the Commission, far from relieving the
constructive central management from that responsibility, the central management's withholding of cooperation lays it open to application
of the measures laid down in Article 11(3) of the directive. This would ─ albeit indirectly ─ be a way of penalising the
failure by the central management and, ultimately, by the group as a whole, to meet the obligations imposed by the directive.
Therefore, the Commission concludes, there is nothing in this case to preclude Kühne & Nagel from being ordered to supply
the information requested and, if appropriate, being subjected to the measures of enforcement provided in German legislation
for failure to meet that obligation.
2. Assessment
26. In the present proceedings, the Court has to rule for a second time on the right of workers to obtain information for the
purpose of establishing a European Works Council under Directive 94/45. This occurred for the first time in the Bofrost*
case,
(5)
which sought to establish whether workers may rely on Article 11(2) of the directive to obtain information from an undertaking
belonging to a group when the group central management has not yet been identified. This time, however, the question referred
to the Court relates to a case where the group central management is known but is outside the territory of the Member States
and the obligations imposed upon it for the purposes of the second subparagraph of Article 4(2), and of Article 4(3), of the
directive are taken on by a
constructive central management. The national court is seeking to find out whether and how, in this case also, the directive guarantees
effective exercise of the workers' right to information in respect of the central management.
27. As we have seen, Kühne & Nagel does not dispute the workers' right to obtain information for the purposes of the directive,
but it does object that, as the
constructive central management of the group, it is not able to guarantee respect of that right without cooperation from the true central
management and the other undertakings of the group. The court making the reference therefore asks whether, in order to overcome
that obstacle, it is possible to assume that the German company has a corresponding right to information in respect of the
group undertakings situated in the Member States, on the basis of Articles 4 and 11 of the directive.
28. In answering this question, it must be noted first of all that, as is shown by Article 1, the purpose of this directive is
to improve the transnational information and consultation of the employees of undertakings and groups of undertakings operating
in two or more Member States, making provision for the establishment, within those undertakings and groups where it is requested,
of a European Works Council or of other procedures equally suited to achieve that purpose. That, as Article 1 of the directive
also states, covers the entire Community-scale undertaking or, in a group of undertakings, all the undertakings which are
part of the group and are situated in the Member States and so concerned in implementation of the directive.
(6)
29. It is also to be noted that the system described in the directive hinges upon the role of the central management of the Community-scale
undertaking or group of undertakings, upon which Article 4(1) of the directive places primary responsibility for achieving
the purpose laid down in the directive, since it is the effective decision-making centre of the undertaking or the group [Article
2(1)(e) and Article 3(1)]. The
principle that the central management is responsible must in fact, according to a number of commentators, be regarded as one of the guiding principles of the directive.
(7)
In any event, as Article 4(1) makes clear the responsibility of the central management is very wide and covers all the conditions
and means necessary for setting up the mechanisms for informing and consulting employees specified in the directive. That
responsibility includes the obligation, using all available resources, to meet any need that may arise in the setting up of
a European Works Council or a procedure for the purpose of informing and consulting employees under the directive, limited
only in that the activity requested of the central management should be truly
necessary for the purpose.
30. From that it follows that, for the present purposes, the central management is required to create all the physical and logistical
conditions and means for negotiations with the workers' representatives to be able to proceed duly
(8)
and, prior to that, to make it possible to set up a special negotiating body within the meaning of Article 5(2) of the directive.
But primarily it follows that there is an obligation imposed on the central management to afford the workers all information
necessary for the initiation and the successful outcome of the negotiations and, if appropriate, for the European Works Council
to be established by force of law under Article 7 of the directive, where the conditions for that obtain.
(9)
31. That having been said, I must point out here that, as we see from the 14th recital in the preamble
(10)
and from Article 11(1) of the directive, the mechanisms for informing and consulting employees must be correctly established
in the Community-scale undertaking or group of undertakings whether or not the central management is situated inside the territory
of the Member States. In fact, to prevent the establishment of the central management in a non-Member State from hindering
achievement of the purposes of the directive, Article 4 lays down a system whereby such a situation may be dealt with. As
we have seen, subparagraph 2 proposes that a representative agent of the central management in a Member State should be designated
and, in the absence of such representative, provides that
... the management of the ... group undertaking employing the greatest number of employees in any one Member State shall take
on the responsibility referred to in paragraph 1. In any event, subparagraph 3 lays down that the designated representative or, if none, the
constructive management
[f]or the purposes of this Directive ... shall be regarded as the central management.
(11)
In both cases, the result is that the responsibility which the directive places on the central management is entirely transferred
to the
constructive management, which will therefore be subject to the same obligations as the former and, like it, will be responsible for fulfilling
them.
32. I have to note that an approach not very dissimilar to that described above is to be found in other directives adopted within
the context of Community legislation on social policy. I am referring in particular to the Community directive on collective
redundancies
(12)
and also to that on safeguarding employees' rights in the event of transfers of undertakings ─ this latter also referred
to by the Swedish Government in its observations to the Court.
(13)
These directives expressly provide that the obligations which they impose upon employers, of advance information to and
consultation of workers in a collective redundancy or transfer of an undertaking, must be met whether the decisions concerned
are taken by the employer or by another undertaking controlling the employer. In order to ensure that those obligations are
met, these directives provide that the employer is not relieved of responsibility on account of the fact that the controlling
undertaking has not supplied the information needed.
(14)
33. As we have seen, it has also been objected that full compliance with the obligations stemming from Article 4(1) cannot be
required of the
constructive central management because ─ unlike the actual central management ─ it does not hold the powers to direct and coordinate
the group which are necessary for that purpose. This is, very clearly, also the concern of the national court, which asks
whether, in order to enable the
constructive central management to meet the obligation to provide information which is incumbent upon it by virtue of Article 4(1), it
may be inferred from the directive that that management has the right to obtain the information needed for the purpose from
the other undertakings in the group, in particular relying upon the provisions of Article 11(2) of the directive which, as
we have seen, imposes upon those undertakings an obligation to provide information.
34. However, I feel that the objection does not grasp the sense of the rules laid down in Article 4(2) and (3) of the directive.
It is true that under those rules the system is based on the (actual) management of the undertaking or of the group in the
light of its powers to direct and coordinate and, therefore, on its leading position within the undertaking or the group;
however, it is also true that, although in no way seeking to redefine the internal organisation of the undertaking or group,
the directive is concerned to prevent the undertaking or the group, by locating the central management outside the Community,
from escaping the obligations imposed upon them. Indeed, that is why, in Article 4, subparagraphs 2 and 3 treat the
constructive central management, presumptively, in the same way as the actual central management and transfer to the former all the responsibilities
laid down for the latter. The result is that, as the Commission also has pointed out, in accordance with Article 11(1) and
Article 14 of the directive the competent authorities of the Member States must penalise any failure on the part of the
constructive central management to meet obligations stemming from Article 4(1) exactly as they would failure on the part of the actual
central management of the group, in particular by means of the
administrative or judicial procedures ... to enable the obligations deriving from this Directive to be enforced provided for in Article 11(3).
35. That is not, of course, to overlook the fact that it is none the less the actual central management which has the means and
the resources to take all the measures necessary to comply with the obligations imposed by the directive. But the presumption
that the
constructive central management is responsible, and the consequent application to it of the system of penalties, are in fact intended
to exert pressure on the actual central management so that, in the interests of the group, it will enable the
constructive central management to meet those obligations. Therefore, to argue that the
constructive central management escapes responsibility if the actual central management should not wish to cooperate would be to encourage
the latter not to take the measures needed to meet the obligations imposed by the directive and so, in short, to frustrate
the objective pursued by the provisions laid down in Article 4(3); in other words, it would be to offer a convenient pretext
for nullifying the practical effect of the directive by establishing the central management outside the Community.
36. I therefore feel that the approach adopted by the national court is open to question where it considers that it is unable
to penalise a failure by Kühne & Nagel to meet the obligation to supply information to the workers unless that company is
allowed a corresponding right to information in respect of the other undertakings of the group. Such an approach would mean
altering the sense and the purpose of the provisions at issue, for it would remove the responsibility for implementing the
directive from the central management to the other undertakings of the group, making the obligations incumbent upon the former
secondary ─ if not actually meaningless ─ whereas the entire system laid down by the directive hinges upon the central management,
because it alone is able, directly or indirectly, to ensure its full and effective application.
37. Next, more specifically, I must note that, because of its particular and limited function, I do not feel that the obligation
to provide information which Article 11(2) of the directive imposes on individual undertakings is appropriate for the purpose
of meeting the requirements referred to by the national court. As we see from the wording of that provision, the obligation
which it lays down is intended only to enable the workers to establish whether the directive does apply to the undertaking
or the group of undertakings within which they are employed and, as appropriate, to identify the central management of the
group. Firstly, that provision is addressed to the undertakings without distinction and on an individual basis, not mentioning
the concepts either of a central management or of the Community-scale undertaking or group of undertakings, and it refers
to requests for information made, generally, by the
parties concerned by the application of this Directive. Secondly, the obligation which it imposes relates only to information on the
number of employees [within the undertaking or group] referred to in Article 2(1)(a) and (c) of the directive, meaning that information which makes it possible to determine whether the undertaking or the group is of
Community scale.
(15)
38. However, once it has been established that the undertaking or the group falls within the field of application of the directive
then, by virtue of the general responsibility arising under Article 4(1), it is the central management which is subject to
the obligation to send the workers all the information needed to set up the European Works Council, including of course the
information which each of the undertakings in the group must supply, on the specific aspects which relate to it, for the purposes
of Article 11(2). These undertakings are indeed subject to an individual obligation to supply, upon request, the information
laid down in that provision, but that is not relevant to the central management's responsibility, which has been neither replaced
nor restricted and is subject to Article 4(1) ─ not to Article 11(2) ─ of the directive. The matter and the general extent
of that responsibility therefore remain full and intact, and the responsibility of the
constructive central management also remains intact, given what has been said above.
39. Apart from that, I must note that the solution whereby the
constructive central management is granted a right to information in respect of the other companies in the group, although creating many
difficulties of implementation in practice ─ as has been amply shown during the procedure before the Court, can indeed serve
to guarantee the workers access to the information needed for setting up the European Works Council. However, on a more general
level, it gives no guarantee of effective implementation of the information and consultation mechanisms provided in the directive.
We need only remember that, unless it is desired to intervene in the arrangement of the legal and organisational links among
the companies in the group, even if the European Works Council were set up, the cooperation of the actual central management
of the group would still be essential to ensure that it operated properly. Clearly, in fact, only the actual central management
can effectively inform and consult the council regarding the general position and the prospects of the group, or on the strategic
decisions likely to have a significant effect on the workers' interests as provided by the directive,
(16)
whilst the
constructive central management would not be able to gather the information needed for the purpose from the other companies in the group.
40. In conclusion, I consider that the answer to the first question must be that, in groups of undertakings where the central
management is situated outside the territory of the Member States, it is the management taking the place of the central management
for the purposes of the second subparagraph of Article 4(2) and of Article 4(3) of the directive which must make available
to the internal bodies representing the workers so requesting all the information necessary for the purpose of setting up
a European Works Council or a procedure for the purpose of transnational information and consultation of employees. It is
for the Member States to guarantee compliance with this obligation in accordance with Article 11(1) and (3) and Article 14
of the directive.
B ─
The second question referred
41. In this question, the national court asks whether the obligation to provide information which is laid down in the directive
also encompasses the names and addresses of the employee representations participating in the setting up of a special negotiating
body in accordance with Article 5 of the directive or in the establishment of a European Works Council. In the light of the
answer which I have proposed should be given to the first question, I consider that the second question also must be examined.
42. I would note first of all that, according to Kühne & Nagel, information relating to the names and addresses of the worker
representations do not come within the scope of the directive, because that would go beyond what is necessary for the purposes
of setting up a European Works Council. The Commission thinks similarly, adding that ─ precisely for that reason ─ it is
not possible to infer an obligation to provide that information from the duty of cooperation required by the directive as
between undertakings and workers or their representatives. However, the Gesamtbetriebsrat and the German Government believe
that this information is part of the information necessary for setting up a European Works Council and therefore falls within
the scope of the directive.
43. I feel that all that can be said in this regard is that, in order to determine the extent of the obligation to provide information,
we must consider whether the information requested is necessary for the purpose of setting up a European Works Council.
(17)
But I believe that it is not for the Court of Justice but for the court making the reference, using all the evidence available
to it, to find whether in this instance the information referred to in the question is necessary in this way. I would only
add that, because this obligation to provide information is incumbent upon the central management because of the general responsibility
placed upon it by Article 4(1) of the directive then, for the reasons described above, that same obligation is incumbent also
upon the management taking the place of the central management under the second subparagraph of Article 4(2), and Article
4(3).
44. I therefore believe that the second question referred is to be answered to the effect that the central management of the group
or, as appropriate, the management taking on responsibility under the second subparagraph of Article 4(2), and Article 4(3),
of Directive 94/45 is required to provide the workers' representatives at their request with the information relating to the
names and addresses of the representations of the employees of undertakings which are part of a group of undertakings if such
information is necessary to the setting up, within that group, of a European Works Council.
V ─ Conclusions
45. In the light of the considerations above, I therefore propose that the Court should answer as follows to the questions referred
to it by the Bundesarbeitsgericht by its order of 27 June 2000:
(1) Articles 4 and 11 of Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a
procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting
employees are to be interpreted to mean that, in the case of a group of undertakings the central management of which is situated
outside the territory of the Member States, it is the management taking the place of the central management for the purposes
of the second subparagraph of Article 4(2) and of Article 4(3) of the directive which must make available to the internal
bodies representing the workers so requesting all the information necessary for the purpose of setting up a European Works
Council or a procedure for the purpose of transnational information and consultation of employees. It is for the Member States
to guarantee compliance with this obligation in accordance with Article 11(1) and (3) and Article 14 of the directive.
(2) The central management of the group or, as appropriate, the management taking on responsibility under the second subparagraph
of Article 4(2) and Article 4(3) of Directive 94/45 is required to provide the workers' representatives at their request with
the information relating to the names and addresses of the representations of the employees of undertakings which are part
of a group of undertakings if such information is necessary to the setting up, within that group, of a European Works Council.
- 1 –
- Original language: Italian.
- 2 –
- OJ 1994 L 254, p. 64. Being based on Article 2(2) of the Agreement on social policy annexed to Protocol 14 to the EC Treaty,
the directive did not originally apply to the United Kingdom. It was later extended to the United Kingdom by Directive 97/74/EC
(OJ 1998 L 10, p. 22).
- 3 –
- BGBl. 1996 I, p. 1548.
- 4 –
- Unofficial translation.
- 5 –
- Judgment in Case C-62/99
Bofrost* [2001] ECR I-2579.
- 6 –
- See also the 11th, 12th and 14th recitals in the preamble to the directive. And I would note that the directive also covers
the possibility that a Community-scale group of undertakings includes one or more sub-groups which are themselves of Community
scale or one or more Community-scale undertakings. Under Article 1(3) of the directive, a European Works Council is to be
established at the level of the entire group unless agreed otherwise between the parties concerned.
- 7 –
- In particular, see J. Leite, L. Fernandes, L. Amado, J. Reis,
Conselhos de empresa europeus. Comentários à directiva 94/45/EC, Lisbon, 1996 (in particular, p. 32). On the role of the central management, see also B. Teyssié,
Le comité d'entreprise européen, Paris, 1997 (in particular, p. 199), and also C. Gulotta,
Le relazioni industriali nelle impresi multinazionali. I diritti d'informazione e di consultazione dei lavoratori nell'Unione
europea e nel diritto internazionale, Milan, 2002 (in particular, p. 132).
- 8 –
- It ought also to be noted that, under Article 5(6) of the directive,
[a]ny expenses relating to the negotiations ... shall be borne by the central management so as to enable the special negotiating
body to carry out its task in an appropriate manner.
- 9 –
- Under Article 7 of the directive, a European Works Council is to be established even where no agreement is reached between
the parties, in particular where the central management refuses to commence negotiations within six months of the formal request
by the workers or where no agreement has been reached after three years from the date of that request. The competence and
the composition of the council so established are to be governed by the applicable national legislation, subject to the
subsidiary requirements annexed to the directive.
- 10 –
- I would note that, according to the 14th recital in the preamble,
the mechanisms for informing and consulting employees in such [Community-scale] undertakings or groups must encompass all
of the establishments or, as the case may be, the group's undertakings located within the Member States, regardless of whether
the undertaking or the group's controlling undertaking has its central management inside or outside the territory of the Member
States.
- 11 –
- For convenience, I shall refer from now on only to the
constructive management hypothesis, that is, where the central management's responsibility is taken on by the
management of the ... group undertaking employing the greatest number of employees in any one Member State. But, clearly, the points made on this will apply also where that responsibility is taken on by a representative agent designated
by the central management situated in a non-Member State.
- 12 –
- Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies
(OJ 1998 L 225, p. 16).
- 13 –
- Council Directive 77/187/EC of 14 February 1977, on the approximation of the laws of the Member States relating to the safeguarding
of employees' rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1977 L 61, p. 26), amended
by Directive 98/50/EC (OJ 1998 L 201, p. 88). This directive was later repealed by Directive 2001/23/EC (OJ 2001 L 82, p. 16).
- 14 –
- On collective redundancies, see Article 2(4) of Directive 98/59 but, on transfers of undertakings, see Article 6(4) of Directive
77/187, the provisions of which have been precisely repeated in Article 7(5) of Directive 2001/23.
- 15 –
- I feel that the Court's reasoning is the same as in the Bofrost* judgment, defining the extent of the obligation concerned
to include
the information which is necessary [for the workers concerned or their representatives] if they are to be able to determine
whether or not they are entitled to request the opening of negotiations [to set up a European Works Council or a procedure
for the transnational information and consultation of the workers] and, where relevant, to make that request in due form (paragraph 38). I would note that this judgment was given in respect of a group of undertakings where it had not yet been
established that there was a controlling undertaking and, hence, a central management, within the meaning of the directive.
- 16 –
- In particular, see points 2 and 3 of the Supplementary Requirements annexed to the directive (and see also note 9).
- 17 –
- On this, I would note further that, under Article 8(2) of the directive,
in specific cases and under the conditions and limits laid down by national legislation, the central management may refuse to transmit information 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.
