2.2.5 Right to information and consultation

the social partners. Article 152 TFEU therefore represents an interesting opportunity for the social partners to put a stop to the European institutions.

In addition, Art. 154 and 155 TFEU are equally interesting in this respect, as they provide a good example of how social dialogue can be transformed into collective bargaining. Art. 154 TFEU contains here the scheme of compulsory social dialogue in the EU. In particular, the Commission must promote social dialogue, and it is obliged to consult the social partners before making legislative proposals in the social policy field, and later to consult them on the specific content of those proposals. Art. 154 TFEU creates a certain right to social dialogue for the social partners at EU level. Art. 154.4 and 155 TFEU extend this right even further. Indeed, the social partners are given the right to inform the Commission that they are taking the initiative out of its hands and will themselves seek to conclude a collective agreement at EU level. Art. 155.1 TFEU clearly states that social dialogue can lead to contractual relations and thus to collective bargaining. These two articles demonstrate well that social dialogue and collective bargaining belong together. However, Art. 154 TFEU only creates a right to social dialogue in the specific situation of the EU legislative procedure. It does not explicitly establish a fundamental right to social dialogue, but it can support such a right. Moreover, it follows from the coherence of Article 154 TFEU with Article 155 TFEU that social dialogue can flow over into collective bargaining and form part of it. According to this view, social dialogue may fall within the scope of the right to collective bargaining.

76. PRINCIPLE 8 OF THE EUROPEAN PILLAR OF SOCIAL RIGHTS - Finally, besides the Treaties, the 8th Principle of the European Pillar of Social Rights states that the social partners shall be consulted on the design and implementation of economic, employment and social policies according to national practices. This However seems to only implicate the European and national social partners. At the company level the principle states that Workers or their representatives have the right to be informed and consulted in good time on matters relevant to them, in particular, on the transfer, restructuring and merger of undertakings and on collective redundancies. This relates to the right to information an consultation (see below). Finally, the principle states that support for increased capacity of social partners to promote social dialogue shall be encouraged, this could be directed to all levels of social dialogue. In any case, this principle is not useful before a court, but it can be used to support a more political or moral argument when European an national unions feel that they lack the capacity to take up their role as social partners or when they are being obstructed by the Member States.

2.2.5 Right to information and consultation

77. INTRODUCTION AND CONTENT – Finally, a last important collective fundamental right is the right to information and consultation of workers. Unlike the other rights, this right is focusing on the competences of certain social dialogue bodies or worker representatives at company-level. This is the right to receive certain information of the employer or to be consulted by the employer regarding certain issues. Often these rights relate to important decisions, e.g. in case of restructuring, collective dismissals, closing or transfer of undertaking. But sometimes these information and consultation obligations go further than this. The right to information and consultation in general does not receive the same esteem as the freedom of association, the right to collective bargaining and the right to collective bargaining

which from the three pillars of industrial rights. Nonetheless, the right to information and consultation provides substance to two important forms of social dialogue and therefore could be seen as a part of the right to social dialogue that has been best elaborated, as well as an accessory of the right to collective bargaining, since a right to information and consultation may constitute a preliminary stage for further collective bargaining. However, information and consultation can also be a completely separated process from collective bargaining. In any case, the fundamental protection of this right might seem weak in comparison with the freedom of association, the right to collective bargaining and the right to collective action, but concerning the European Union, it is by far the most substantiated aspect of collective labour rights in the secondary EU legislation (see below). A distinctive right to information and consultation can be found in the following international legal sources:

• ILO Convention no. 158 on the termination of Employment (and Recommendation no. 166); • ILO Recommendation no. 94 on Cooperation at the level of the undertaking; • ILO Recommendation no. 143 on the Workers’ Representatives; • ILO Recommendation no. 129 on the Communications within the Undertaking • Possibly article 11 ECHR (but very uncertain); • Article 21 Revised European Social Charter; • Article 2 of the Additional Protocol of 1988 to the European Social Charter of 1961; • Article 27 EU Charter of Fundamental Rights; • Principle 8 of the European Pillar of Social Rights;

78. PROTECTION BY THE ILO – The ILO does not know a single general fundamental right to information and consultation on every issue of importance within the undertaking. In the absence of such a general right, the ILO has produced a number of recommendations that do try to give more body to the principle of information and consultation (which the ILO tries to promote): • ILO Recommendation no. 94 of 1952 on Cooperation at the level of the undertaking: indicates that it is necessary to promote the consultation and collaboration between employers and workers at company level for issues of common interest which are not covered by collective bargaining or which are not normally the subject of other procedures which establish working conditions. • ILO Recommendation no. 143 of 1971 on the Workers’ Representatives: affirms the need of a consultation, before the dismissal of a workers’ representative becomes final.

• ILO Recommendation no. 129 of 1967 on the Communications within the Undertaking refers to the rights and obligations of social partners concerned by a restructuring and the rules which are supposed to guide the information-consultation process. It highlights the importance of a climate of comprehension and reciprocal trust at company level and that communicating and consulting before decisions on matters of major concern are taken by the management. Next, the recommendation lists a themes to be included in the information-consultation process at company level, e.g. working conditions (hire, transfer, termination) but also the general situation of the company and the explanation of decisions susceptible to affect directly or indirectly

the situation of the personnel. So the recommendation goes beyond mere restructuring issues.

Besides these non-binding Recommendations, the ILO also provides a binding Convention no. 158 of 1982 on the Termination of Employment (together with Recommendation no. 166). This Conventions obliges the employer, in case of (collective) redundancies due to economic or technologic reasons to provide the workers’ representatives in good time with all relevant information, including the reasons behind the envisaged redundancies, the number and the categories of workers likely to be affected and the period over which these are expected to be implemented’’, in order to limit the effects. Besides, the employer has the obligation to carry out consultations with the workers representatives prior to the layoffs. The binding nature of this convention makes it more interesting that the above-mentioned recommendations. But it also does not constitute a general right to information and consultation (only in case of certain redundancies). Finally, the ILO also has the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (2000), which establishes principles dealing with consultation within multinational companies. According to the Declaration, ‘‘in multinational as well as in national enterprises, systems devised by mutual agreement between employers and workers and their representatives should provide, in accordance with national law and practice, for regular consultation on matters of mutual concern. Such consultation should not be a substitute for collective bargaining.”

79. UNCERTAIN PROTECTION UNDER ARTICLE 11 ECHR – Article 11 ECHR does not contain an express mention of the right of information and consultation, but neither does it mention the right to collective bargaining and the right to collective action, which have been found to be protected by the provision according to the case law of the ECtHR (see above). However, in the National Union of Belgian Police v. Belgium case (1975) 39 the applicant trade union complained that the Belgian Government had not recognised it as one of the most representative organisations which the Ministry of the Interior was required by law to consult. The Court held that there had been no violation of Article 11, finding that the applicant trade union had other means of acting vis-à-vis the Government, besides consultations with the Ministry of the Interior. Therefore, the conclusion was that Article 11 ECHR does not contain a right to be consulted for the trade unions. Nevertheless, we can ask ourselves whether this vision would still be held after the evolution of the Demir & Baykara case law (see above), when a right to collective bargaining was clearly recognised. Especially when information and consultation can be seen as an accessory of collective bargaining, a certain extension of the protection of Article 11 ECHR can be expected. However, in the absence of ECtHR case-law in this sense, the protection of the right to information and consultation under the ECHR remains very weak or even uncertain.

80. ARTICLE 21 REVISED EUROPEAN SOCIAL CHARTER – Article 21 of the Revised European Social Charter (1996) explicitly recognises the right to information and consultation. 40 It reads as follows:

With a view to ensuring the effective exercise of the right of workers to be informed and consulted within the undertaking, the Parties undertake to adopt or encourage measures enabling workers or their representatives, in accordance with national legislation and practice:

39 ECtHR 27 October 1975, no. 4464/70, National Union of Belgian Police v. Belgium. 40 Only valid for Member states which ratified the revised ESC, see further below.

• A) to be informed regularly or at the appropriate time and in a comprehensible way about the economic and financial situation of the undertaking employing them, on the understanding that the disclosure of certain information which could be prejudicial to the undertaking may be refused or subject to confidentiality; and • B) to be consulted in good time on proposed decisions which could substantially affect the interests of workers, particularly on those decisions which could have an important impact on the employment situation in the undertaking.

According to the views of the ECSR, this provision applies to all private and public undertakings. However, States may exclude undertakings employing less than a certain number of workers from its scope. Moreover, the article does not apply to public servants (in a strict sense). All categories of employees (in other words all employees with an employment contract with an undertaking, whatever their status, length of service or workplace) must be taken into account when calculating the number of employees covered by the right to information and consultation. The thresholds established by Directive 2002/14/EC (see 2.3.9) which concern undertakings with at least 50 employees or establishments with at least 20 employees in any one EU member state are in conformity with this provision. Workers and/or their representatives must be informed on all matters relevant to their working environment except where the conduct of the business requires that some confidential information not be disclosed. Furthermore, they must be consulted in good time with respect to proposed decisions that could substantially affect the workers’ interests, in particular those which may have an impact on their employment status. Workers must have legal remedies when these rights are not respected and there should be sanctions for employers which fail to fulfil their obligations.

81. ARTICLE 2 OF THE ADDITIONAL PROTOCOL TO THE 1961 EUROPEAN SOCIAL CHARTER - Finally, it is important to mention that the original European Social Charter of 1961 does not mention a right to information and consultation itself. However, this right was added with Article 2 of the Additional Protocol to the European Social Charter of 1988. Therefore, unlike for the right to collective bargaining and the right to collective action in article 6 (where the text of the 1961 version and the 1996 are the same), here it is important to make a division between the different texts. The difference with the text of the Revised Charter is that it does not include a right to be consulted in good time on proposed decisions which could substantially affect the interests of workers, particularly on those decisions which could have an important impact on the employment situation in the undertaking. In addition, the 1988 provision also explicitly states that the Parties may exclude from the field of application, those undertakings employing less than a certain number of workers, to be determined by national legislation and practice. This is not included in the 1996 version, but such restrictions are still allowed by the ECSR. In practice, the 1988 Protocol text is only of importance for EU Member States who have not ratified the revised charter and who have ratified the additional protocol, these are: Croatia, Czech Republic and Denmark. furthermore Luxembourg and Poland (and Iceland, Switzerland and the UK) have ratified the 1961 Charter, but not the Additional Protocol, therefore these States are not bound by a right to information and consultation under the European Social Charter in any form.

82. ARTICLE 29 OF THE REVISED EUROPEAN SOCIAL CHARTER – Next to a general right to information and consultation, the revised European Social Charter also contains a more specific information and consultation right in case of collective redundancy procedures

(somewhat similar to ILO Convention no. 158). For this specific situation, article 29 provides that “the Parties undertake to ensure that employers shall inform and consult workers’ representatives, in good time prior to such collective redundancies, on ways and means of avoiding collective redundancies or limiting their occurrence and mitigating their consequences, for example by recourse to accompanying social measures aimed, in particular, at aid for the redeployment or retraining of the workers concerned. A similar provision does not exist in the original ESC of 1961, nor in its additional protocols.

83. ARTICLE 27 EU CHARTER OF FUNDAMENTAL RIGHTS - Article 27 of the EU Charter recognises the workers’ right to information and consultation within the undertaking. The provision states that “Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices.” This fundamental right has been extensively developed in secondary legislation, notably in Directive 2002/14/EC establishing a general framework for informing and consulting employees in the EU (see 2.3.9), but also in the Transfer of Undertaking Directive 2001/23/EC (see 2.3.2), Directive 98/59/EC on Collective Redundancies (see 2.3.9) and the Directive 2009/38/EC on the establishment of a European Works Council (see 2.3.10). Furthermore the Treaty on the Functioning of the European Union also provides for a right to be informed and consulted for the European Social Partners in article 154 TFEU. As seen, every time the EU Commission wishes to submit a legislative proposal relating to social policy, it will first have to consult the European Social Partners. These can give their viewpoint on the proposal of the Commission but they can also decide that they will start to bargain collectively on the matter. In any case, seen the large amount of secondary EU legislation, it is recommendable to support a case on the relevant directives rather than (solely) on article 27 of the EU Charter. In the Association de Médiation Socialecase (C-176/12) the CJEU has ruled that it cannot be invoked in a dispute (also concerning Directive 2002/14EC) between individuals (employer and trade union/workers). Article 27 of the EU Charter therefore lacks a horizontal effect and is thus more seen as an obligation for the EU Member States that for the employers. The Court also did not seem to value the right to information and consultation as a true right but merely as a principle (which cannot be invoked).

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84. PRINCIPLE 8 OF THE EUROPEAN PILLAR OF SOCIAL RIGHTS – The 7th Principle of the EPSR is titled “Information about employment conditions and protection in case of dismissals” but this concerns an individual right to information for the workers in certain circumstances. The collective information and consultation right is again enshrined in the 8th principle, which states that Workers or their representatives have the right to be informed and consulted in good time on matters relevant to them, in particular on the transfer, restructuring and merger of undertakings and on collective redundancies. As the EU has created a good deal of secondary legislation to give substance to this right, referring to the (non-binding) EPSR does not seem to bring much to a case when it can be supported by the relevant directives.

41 CJEU 15 January 2014, C-176/12, Association de médiation sociale v. Union locale des syndicats CGT, et. al.