Reservation and confidentiality
1. Member States shall provide that members of the special negotiating body or the representative body, and experts who assist them, are not authorised to reveal any information which as been given to them in confidence.
The same shall apply to employees' representatives in the context of an information and consultation procedure.
This obligation shall continue to apply, wherever the persons referred to may be, even after the expiry of their terms of office.
2. Each Member State shall provide, in specific cases and under the conditions and limits laid down by national legislation, that the supervisory or administrative organ of an SCE or of a participating legal entity established in its territory is not obliged to transmit information where its nature is such that, according to objective criteria, to do so would seriously harm the functioning of the SCE (or, as the case may be, a participating legal entity) or its subsidiaries and establishments or would be prejudicial to them.
A Member State may make such dispensation subject to prior administrative or judicial authorisation.
3. Each Member State may lay down particular provisions for SCEs in its territory which pursue directly and essentially the aim of ideological guidance with respect to information and the expression of opinions, on condition that, on the date of adoption of this Directive, such provisions already exist in the national legislation.
4. In applying paragraphs 1, 2 and 3, Member States shall make provision for administrative or judicial appeal procedures which the employees' representatives may initiate when the supervisory or administrative organ of an SCE or of a participating legal entity demands confidentiality or does not give information.
Such procedures may include arrangements designed to protect the confidentiality of the information in question.
Operation of the representative body and procedure for the information and consultation of employees
The competent organ of the SCE and the representative body shall work together in a spirit of cooperation with due regard for their reciprocal rights and obligations.
The same shall apply to cooperation between the supervisory or administrative organ of the SCE and the employees' representatives in conjunction with a procedure for the information and consultation of employees.
Protection of employees' representatives
The members of the special negotiating body, the members of the representative body, any employees' representatives exercising functions under the information and consultation procedure and any employees' representatives in the supervisory or administrative organ of an SCE who are employees of the SCE, its subsidiaries or establishments or of a participating legal entity shall, in the exercise of their functions, enjoy the same protection and guarantees provided for employees' representatives by the national legislation and/or practice in force in their country of employment.
This shall apply in particular to attendance at meetings of the special negotiating body or representative body, any other meeting under the agreement referred to in Article 4(2)(f) or any meeting of the administrative or supervisory organ, and to the payment of wages for members employed by a participating legal entity or the SCE or its subsidiaries or establishments during a period of absence necessary for the performance of their duties.
Misuse of procedures
Member States shall take appropriate measures in conformity with Community law with a view to preventing the misuse of an SCE for the purpose of depriving employees of rights to employee involvement or withholding such rights.
Compliance with this Directive
1. Each Member State shall ensure that the management of establishments of an SCE and the supervisory or administrative organs of subsidiaries and of participating legal entities which are situated within its territory and the employees' representatives or, as the case may be, the employees themselves abide by the obligations laid down by this Directive, regardless of whether or not the SCE has its registered office within its territory.
2. Member States shall provide for appropriate measures in the event of failure to comply with this Directive; in particular they shall ensure that administrative or legal procedures are available to enable the obligations deriving from this Directive to be enforced.
Link between this Directive and other provisions
1. Where an SCE is a Community-scale undertaking or a controlling undertaking of a Community-scale group of undertakings within the meaning of Directive 94/45/EC or of Council Directive 97/74/EC of 15 December 1997 extending the said Directive to the United Kingdom(6), the provisions of these Directives and the provisions transposing them into national legislation shall not apply to them or to their subsidiaries.
However, where the special negotiating body decides in accordance with Article 3(6) not to open negotiations or to terminate negotiations already opened, Directive 94/45/EC or Directive 97/74/EC and the provisions transposing them into national legislation shall apply.
2. Provisions on the participation of employees in company bodies provided for by national legislation and/or practice, other than those implementing this Directive, shall not apply to the SCEs to which Articles 3 to 7 apply.
3. This Directive shall not prejudice:
(a) the existing rights to involvement of employees provided for by national legislation and/or practice in the Member States as enjoyed by employees of the SCE and its subsidiaries and establishments, other than participation in the bodies of the SCE;
(b) the provisions on participation in the bodies laid down by national legislation and/or practice applicable to the subsidiaries of the SCE or to SCEs to which Articles 3 to 7 do not apply.
4. In order to preserve the rights referred to in paragraph 3, Member States may take the necessary measures to guarantee that the structures of employee representation in participating legal entities which will cease to exist as separate legal entities are maintained after the registration of the SCE.
Final provisions
1. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive no later than 18 August 2006, or shall ensure by that date at the latest that management and labour introduce the required provisions by way of agreement, 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.
2. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.
Review by the Commission
Not later than 18 August 2009, the Commission shall, in consultation with the Member States and with management and labour at Community level, review the application of applying this Directive, with a view to proposing suitable amendments to the Council where necessary.
Entry into force
This Directive shall enter into force on the date of its publication in the Official Journal of the European Union.
Addressees
This Directive is addressed to the Member States.
Done at Brussels, 22 July 2003.
For the Council
The President
G. Alemanno
(1) OJ C 236, 31.8.1993, p. 36.
(2) OJ C 42, 15.2.1993, p. 75.
(3) OJ C 223, 31.8.1992, p. 42.
(4) See page 1 of this Official Journal.
(5) OJ L 254, 30.9.1994, p. 64. Directive as amended by Directive 97/74/EC (OJ L 10, 16.1.1998, p. 22).
(6) OJ L 10, 16.1.1998, p. 22.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
