Directive 2009/38/EC is amended as follows:
(1)
Article 1 is amended as follows:
(a)
paragraph 3 is replaced by the following:
‘3. Information and consultation of employees must occur at the relevant level of management and representation, according to the subject under discussion. To achieve that, the competence of the European Works Council and the scope of the information and consultation procedure for employees governed by this Directive shall be limited to transnational issues, taking into account the possible effects on the workforce and the level of management involved.’
;
(b)
paragraph 4 is replaced by the following:
‘4. Matters shall be considered to be transnational where they can reasonably be expected to concern the Community-scale undertaking or Community-scale group of undertakings as a whole, or at least two undertakings or establishments of the undertaking or group situated in at least two different Member States.
Those conditions shall be deemed to be met where:
(a)
the measures considered by management of the Community-scale undertaking or Community-scale group of undertakings can reasonably be expected to affect workers of that undertaking, of that group, or of any establishment of that undertaking or group, in more than one Member State; or
(b)
the measures considered by management of the Community-scale undertaking or Community-scale group of undertakings can reasonably be expected to affect workers of that undertaking, of that group, or of any establishment of that undertaking or group, in one Member State, and their workers in at least one other Member State can reasonably be expected to be affected by the consequences of those measures.’
;
(2)
in Article 2(1), points (f) and (g) are replaced by the following:
‘(f)
“information” means transmission of data by the employer to the employees’ representatives in order to enable them to acquaint themselves with the subject matter and to examine it;
(g)
“consultation” means the establishment of dialogue and exchange of views between employees’ representatives and central management or any more appropriate level of management;’
;
(3)
in Article 3, paragraph 1 is replaced by the following:
‘1. 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 and decisions which govern it.’
;
(4)
Article 5 is amended as follows:
(a)
paragraph 1 is replaced by the following:
‘1. In order to achieve the objective set out in Article 1(1), 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 joint or separate written request of at least 100 employees or their representatives in at least two undertakings or establishments situated in at least two different Member States.’
;
(b)
in paragraph 2, point (b) is replaced by the following:
‘(b)
The members of the special negotiating body shall be elected or appointed in a manner that strives to achieve a gender-balanced representation, whereby women and men each comprise at least 40 % of the members of the special negotiating body, and in proportion to the number of employees employed in each Member State by the Community-scale undertaking or the Community-scale group of undertakings, by allocating in respect of each Member State one seat per portion of employees employed in that Member State, amounting to 10 %, or a fraction thereof, of the number of employees employed in all the Member States taken together. If the objective of gender balance is not achieved, the special negotiating body shall explain, in writing, the reasons to the workers. Failure to achieve the objective of gender balance shall not prevent the creation of a special negotiating body.’
;
(c)
in paragraph 4, the first subparagraph is replaced by the following:
‘4. With a view to the conclusion of an agreement in accordance with Article 6, central management shall convene a sufficient number of negotiation meetings with the special negotiating body. It shall inform the local managements accordingly.’
;
(d)
paragraph 6 is replaced by the following:
‘6. Any expenses relating to the negotiations referred to in paragraphs 3 and 4 shall be borne by central management so as to enable the special negotiating body to carry out its task in an appropriate manner. Those expenses shall include reasonable costs of experts, including of legal experts, insofar as necessary for that purpose. Such expenses shall be notified to central management before they are incurred.
In compliance with this principle, Member States may lay down budgetary rules regarding the operation of the special negotiating body.’
;
(5)
Article 6 is amended as follows:
(a)
paragraph 2 is amended as follows:
(i)
points (c) and (d) are replaced by the following:
‘(c)
the functions and the procedure for information and consultation of the European Works Council and the arrangements for linking information and consultation of the European Works Council and national employee representation bodies, in accordance with the principles and requirements set out in Article 1(3) and Article 9;
(d)
the format, venue, frequency and duration of meetings of the European Works Council;’
;
(ii)
points (f) and (g) are replaced by the following:
‘(f)
the financial and material resources to be allocated to the European Works Council, including at least with respect to the following aspects:
(i)
the possible use and participation in meetings of experts, including the possible use and participation in meetings of legal experts and representatives of recognised Community-level trade union organisations, to assist the European Works Council in the discharge of its functions,
(ii)
the provision of relevant training to the members of the European Works Council, without prejudice to Article 10(4), first subparagraph;
(g)
the date of entry into force of the agreement, its duration, its possible extension, the arrangements for amending or terminating the agreement and the cases in which the agreement shall be renegotiated and the procedure for its renegotiation, including, where necessary, where the structure of the Community-scale undertaking or Community-scale group of undertakings changes.’
;
(b)
the following paragraph is inserted:
‘2a. Central management and the special negotiating body, when negotiating or renegotiating a European Works Council agreement, shall lay down the necessary arrangements and make all reasonable efforts to achieve, without prejudice to the national law and practice on electing or appointing employees’ representatives, the objective of gender balance, whereby women and men each comprise at least 40 % of the members of the European Works Council and, where applicable, at least 40 % of the members of the select committee. If the objective of gender balance is not achieved, the European Works Council shall explain, in writing, the reasons to the workers. Failure to achieve the objective of gender balance shall not prevent the creation of a European Works Council or a select committee.’
;
(6)
in Article 7(1), the second indent is replaced by the following:
‘—
where the first meeting of the special negotiating body is not convened by central management within six months following a request pursuant to Article 5(1),’
;
(7)
Article 8 is replaced by the following:
‘Article 8
Provision of information in confidence
1. Member States shall provide that members of special negotiating bodies, members of European Works Councils, or employees’ representatives in the framework of an information and consultation procedure, and any experts who assist them, are not authorised to disclose information which central management has expressly provided to them in confidence, in the legitimate interest of the undertaking, in accordance with objective criteria laid down by the Member State. In addition, central management may set up appropriate transmission and storage arrangements to help safeguard the confidentiality of information.
2. When central management provides information in confidence pursuant to paragraph 1, it shall inform the members of the special negotiating bodies, the members of the European Works Councils, or the employees’ representatives in the framework of an information and consultation procedure, of the reasons justifying confidentiality and shall determine the duration of the confidentiality obligation where possible.
3. The confidentiality obligation referred to in paragraph 1 shall continue to apply, wherever the persons referred to in that paragraph are, even after the expiry of their terms of office, until the reasons for the confidentiality obligation have become obsolete.’
;
(8)
the following article is inserted:
‘Article 8a
Non-transmission of information
1. Member States shall provide, in specific cases and under the conditions and limits laid down by national legislation, that central management situated in their territory is not obliged to transmit information to members of special negotiating bodies, members of European Works Councils, or employees’ representatives in the framework of an information and consultation procedure, and any experts who assist them, when the nature of that information is such that, in accordance with objective criteria laid down by the Member State, the transmission of that information would seriously harm the functioning of the undertakings concerned.
A Member State may make such dispensation subject to prior administrative or judicial authorisation.
2. When central management does not transmit information on the ground referred to in paragraph 1, it shall inform the members of the special negotiating bodies, members of the European Works Councils, or employees’ representatives in the framework of an information and consultation procedure, of the reasons justifying the non-transmission of information.’
;
(9)
Articles 9 and 10 are replaced by the following:
‘Article 9
Operation of the European Works Council and the information and consultation procedure for workers
1. Central management and the European Works Council shall work in a spirit of cooperation with due regard to their reciprocal rights and obligations.
The same shall apply to cooperation between central management, and employees’ representatives in the framework of an information and consultation procedure for workers.
2. Information on transnational matters shall be provided at such time, in such fashion and with such content as are appropriate to enable employees’ representatives to undertake an in-depth assessment of their possible impact and, where appropriate, prepare for consultations with the competent organ of the Community-scale undertaking or Community-scale group of undertakings. The provision of such information shall also take into account any arrangements pursuant to Article 6(2), point (c).
3. Consultation shall take place at such time, in such fashion and with such content as enables employees’ representatives to express their opinion prior to the adoption of the decision, on the basis of the information provided in accordance with paragraph 2, without prejudice to the responsibilities of management, and within a reasonable time, taking into account the urgency of the matter. The employees’ representatives shall be entitled to a reasoned written response from central management or any more appropriate level of management prior to the adoption of the decision on the measures in question, provided that the employees’ representatives have expressed their opinion within a reasonable time in accordance with this paragraph.
Article 10
Role and protection of employees’ representatives
1. Without prejudice to the competence of other bodies or organisations in this respect, the employees’ representatives, including the members of the special negotiating body and the members of the European Works Council, shall have the means required to apply the rights arising from this Directive, to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings.
2. Without prejudice to Articles 8 and 8a, the members of the European Works Council shall have the right and necessary means to inform the representatives of the employees of the establishments or of the undertakings of a Community-scale group of undertakings or, in the absence of representatives, the workforce as a whole, of the content and outcome of the information and consultation procedure, in particular before and after meetings with central management.
3. Members of special negotiating bodies, members of European Works Councils and employees’ representatives exercising their functions under the procedure referred to in Article 6(3) shall, in the exercise of their functions, enjoy protection and guarantees equivalent to those provided for employees’ representatives by the national law or practice in force in their country of employment.
This shall apply in particular to attendance at meetings of special negotiating bodies or European Works Councils or any other meetings within the framework of the agreement referred to in Article 6(3), the payment of wages for members who are on the staff of the Community-scale undertaking or the Community-scale group of undertakings for the period of absence necessary for the performance of their duties, and protection against retaliatory measures or dismissal.
A member of a special negotiating body or of a European Works Council, or such a member’s alternate, who is a member of the crew of a seagoing vessel, shall be entitled to participate in a meeting of the special negotiating body or of the European Works Council, or in any other meeting under any procedures established pursuant to Article 6(3), where that member or alternate is not at sea or in a port in a country other than that in which the shipping company is domiciled, when the meeting takes place.
Meetings shall, where practicable, be scheduled to facilitate the participation of members or alternates, who are members of the crews of seagoing vessels.
Where a member of a special negotiating body or of a European Works Council, or such a member’s alternate, who is a member of the crew of a seagoing vessel, is unable to attend a meeting, the possibility of using, where possible, new information and communication technologies shall be considered.
4. In so far as this is necessary for the exercise of their representative duties in an international environment, the members of the special negotiating body and of the European Works Council shall be provided with training without loss of wages.
Without prejudice to agreements concluded pursuant to Article 6(2), point (f), the reasonable costs of such training and related expenses shall be borne by central management, provided that central management has been informed thereof in advance.’
;
(10)
Article 11 is amended as follows:
(a)
paragraph 2 is replaced by the following:
‘2. Member States shall provide for appropriate measures in the event of failure to comply with the national provisions adopted pursuant to this Directive. In particular, they shall ensure that:
(a)
adequate procedures are available to enable the rights and obligations deriving from this Directive to be enforced in a timely and effective manner;
(b)
penalties that are effective, dissuasive and proportionate are applicable in cases of infringement of the rights and obligations deriving from this Directive.
Member States shall provide for dissuasive financial penalties for a failure to comply with any national provisions transposing the obligations laid down in Article 9(2) and (3). Such penalties shall be determined considering the criteria listed in the third subparagraph of this paragraph, without prejudice to the possibility to provide for other types of penalties in addition.
For the purposes of point (b), when determining penalties, Member States shall take into consideration the gravity, duration and consequences of the failure to comply, and whether the failure to comply is intentional or negligent. In the case of financial penalties, they shall also take into account the annual turnover of the undertaking or group concerned, or ensure that the applicable penalties have a similarly dissuasive nature.’
;
(b)
paragraph 3 is amended as follows:
(i)
the first subparagraph is replaced by the following:
‘3. Member States shall provide for judicial proceedings and, where relevant, administrative proceedings which the members of the special negotiating body or of the European Works Council, or employees’ representatives in the framework of an information and consultation procedure, may initiate in relation to the application of Article 8 or 8a.’
;
(ii)
the following subparagraph is added:
‘The duration of the proceedings referred to in the first subparagraph shall allow for the effective exercise of the information and consultation rights under this Directive.’
;
(c)
the following paragraphs are added:
‘4. With respect to the rights conferred by this Directive, Member States shall ensure effective access to judicial proceedings and, where relevant, administrative proceedings for special negotiating bodies, European Work Councils or, on their behalf, their members or representatives. Member States shall provide for the reasonable costs of legal representation and participation in such proceedings to be borne by central management or shall take other, equivalent measures to avoid any de facto restriction of access to such proceedings on the grounds of lack of financial resources.
5. Where Member States render access to judicial proceedings conditional upon the prior implementation of an alternative dispute resolution procedure, recourse to such a procedure shall not prejudice or limit the right of the parties concerned to bring judicial proceedings.’
;
(11)
Article 12 is amended as follows:
(a)
paragraph 2 is replaced by the following:
‘2. The arrangements for the links between the information and consultation of the European Works Council and national employee representation bodies shall be established, in the interest of good coordination between them, by the agreement referred to in Article 6. That agreement shall be without prejudice to the provisions of national law and/or practice on the information and consultation of employees.’
;
(b)
the following paragraph is added:
‘6. Each Member State may lay down particular provisions for central management of undertakings 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, at the date of adoption of this Directive such particular provisions already exist in the national legislation.’
;
(12)
Article 14 is deleted;
(13)
the following articles are inserted:
‘Article 14a
Transitional provisions
1. Where, after 1 January 2028, a European Works Council agreement concluded before 2 January 2029 in accordance with Articles 5 and 6 of Directive 94/45/EC or with Articles 5 and 6 of this Directive does not address, as a consequence of the amendments entered into force on 31 December 2025, one or several of the elements and requirements of Article 6 of this Directive, central management shall, at the written request of the European Works Council or of at least 100 employees or their representatives in at least two undertakings or establishments situated in at least two different Member States, initiate negotiations to adapt that agreement so as to address that or those elements and requirements of Article 6 of this Directive. Central management may also initiate such negotiations on its own initiative. Such negotiations may be limited to addressing in the agreement those elements and requirements of Article 6 of this Directive that were inserted on 31 December 2025.
2. Where the European Works Council agreement contains procedural arrangements for its adaptation or renegotiation, the adaptation may be negotiated pursuant to those arrangements. Otherwise, the adaptation shall follow the procedure set out in Article 5, in conjunction with Article 13, second and third paragraphs.
3. When an adaptation procedure under this Article does not lead to an agreement within two years from the date of the request of employees or their representatives or from the date of initiation of the negotiations by the European Works Council or by central management on its own initiative, the subsidiary requirements set out in Annex I shall apply.
4. This Article shall not have the effect of exempting the parties to European Works Council agreements from respecting the applicable minimum requirements in this Directive.
Article 14b
Formerly exempted undertakings
Where negotiations pursuant to Article 5 of this Directive are initiated in order to conclude an agreement pursuant to this Directive in a Community-scale undertaking or Community-scale group of undertakings in which an agreement covering the entire workforce providing for the transnational information and consultation of employees was concluded prior to the date of application of Directive 94/45/EC and is still in force, the period referred to in Article 7(1), third indent, of this Directive shall be reduced to two years. The initiation of negotiations does not affect the terms of the existing agreements in force.’
;
(14)
Annex I is amended in accordance with the Annex to this Directive.