Marianne Ruizeveld and Leonard Verburg*
THE EUROPEAN WORKS COUNCIL IN THE NETHERLANDS
INTRODUCTION gradually, more and more multinational companies in The Netherlands are beginning to establish a European Works Council. Yet, the European Works Council is still relatively unknown and is sometimes mistakenly understood to be a Dutch Works Council at European level. This article focuses on the powers and limitations of the European Works Council in the Netherlands.
THE IMPLEMENTATION OF COUNCIL DIRECTIVE 94/95 IN THE NETHERLANDS
On 22 September 1994, the Council of the European Union adopted Direc- tive 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 (hereinafter: "the Directive")'. The Directive had to be implemented by each of the Member States prior to 22 September 1996. In the meaning of the Directive, "Member States" are all the member states of the European Union, with the exception of the United Kingdom, and all other states that are party to the Agreement concerning the European Economic Area. In the Netherlands, a separate act was drafted to implement the provisions necessary to comply with the Directive. This is the Act on the European Works Councils" (hereinafter: "the Act")2. It entered into force
* Marianne Ruizeveld and Leonard Verburg are attorneys at law with Loeff Claeys Verbeke Amsterdam.
I OJ EC No. L 254/64 (1994). 2 Official Parliamentary Reports 24 641, Staatsblad 1997 32.
81 belatedly on 5 February 1997. Instead of inserting an additional chapter into the Dutch Works Councils Act, the Dutch government opted for a separate act for two major reasons. First, a separate act would emphasise that the Dutch Works Council cannot be considered subordinate to the European Works Council. The European Works Council is not considered the "top" consultation body and the Act does not prejudice the rights of employees to information and consultation under the Dutch Works Councils Act3. In fact, on a national level, the Dutch Works Council has considerably more authority and powers than the European Works Council. The second reason is that the definitions used in the Directive differ from those used in the Dutch Works Councils Act. The Act is divided into four chapters. Chapter 1 (General provisions) contains various definitions, rules for protection of employees who perform activities under the Act, rules on confidentiality and the issue of jurisdiction. Chapter 2 (Informing and Consulting Employees on Dutch Community-scale Undertakings and Groups) details the obligations for the central management on how to set up a special negotiating body and how to set up a European Works Council. It also provides for minimum requirements concerning employees' informa- tion and consultation rights if the management and the special negotiating body cannot reach agreement on a European Works Council. Chapter 3 stipulates in its sole provision, rules regarding the appointment of Dutch employees as member of a special negotiating body or European Works Council established outside the Netherlands. Chapter 4 contains some final provisions. These provisions deal especially with the treatment of "Article 13 Directive agreements" and the treatment of Mem- ber States in which the legislation for implementation has not (yet) entered into force. The Act has recently undergone a number of amendments due to the fact that the job protection rule of Article 4 paragraph 8 was transferred to the Dutch Civil Code 4. Two new provisions we re added to the Act as per January 1, 1999. The first provision entitles every employee who works in the Netherlands to require from the employer information about the total number of employees that are employed with the Community-scale under- taking or Community-scale group of undertakings and the number of employees in each Member State. The second provision stipulates the employer's obligation to inform the central management about the election or appointment of an employee as member of the special negotiating body
3 Article 12.2 of the Directive.
4 Act of 14 May 1998 (Wet Flexibiliteit en Zekerheid) Staatsblad 1998 300.