THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 153(2), point (b), in conjunction with Article 153(1), point (e), thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee(1),
After consulting the Committee of the Regions,
Acting in accordance with the ordinary legislative procedure(2),
(1) Pursuant to Article 27 of the Charter of Fundamental Rights of the European Union (the ‘Charter’), workers or their representatives are, at the appropriate levels, to be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national law and practices. Principle No 8 of the European Pillar of Social Rights reaffirms the right of workers or their representatives to be informed and consulted in good time on matters relevant to them.
(2) With regard to transnational matters, the objective of Directive 2009/38/EC of the European Parliament and of the Council(3)is to give practical effect to those basic principles by setting minimum requirements for informing and consulting employees in Community-scale undertakings and Community-scale groups of undertakings.
(3) In its evaluation of Directive 2009/38/EC of 15 May 2018, the Commission confirmed the added value and relevance in principle of that Directive. It found that many of the Directive’s provisions are sufficiently flexible to accommodate evolving technological and economic realities and a variety of forms of undertaking or group. For example, it applies to all Community-scale groups of undertakings, regardless of the type of legal arrangements that allow the exercise of the dominant influence between the controlling and the controlled undertakings forming such groups. Consequently, undertakings linked, for instance, by franchise or license agreements can fall under the definition of Community-scale group of undertakings, provided that dominant influence is established.
(4) However, the Commission evaluation also identified shortcomings regarding, for instance, the effectiveness of the consultation process, access to justice, penalties and the interpretation of certain concepts.
(5) On 2 February 2023, the European Parliament adopted, pursuant to Article 225 of the Treaty on the Functioning of the European Union (TFEU), a legislative own-initiative resolution with recommendations on a revision Directive 2009/38/EC. Subsequently, the Commission carried out a two-phase consultation of the social partners pursuant to Article 154 TFEU on the need for and possible content of measures to address the shortcomings of Directive 2009/38/EC. The Commission also collected evidence through a study involving a targeted online survey, stakeholder interviews, workshops and an analysis of national case-law and of relevant provisions in national law.
(6) Evidence shows that legal uncertainty regarding the concept of transnational matters has led to differences in interpretation and disputes. In order to improve legal certainty and reduce the risk of such disputes, it is necessary to clarify the concept of transnational matters. To that end, it is appropriate to clarify that Directive 2009/38/EC not only covers cases where measures considered by the management of an undertaking or 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, but also cases where such measures can reasonably be expected to affect such workers in only one Member State and the consequences of those measures can reasonably be expected to affect such workers in at least one other Member State. Such clarification is necessary in light of cases where an undertaking envisages measures, such as lay-offs, redundancies, the allocation of production activities or the outsourcing of activities, which explicitly target establishments in only one Member State but which can reasonably be expected to have consequences affecting workers of that undertaking, of that group, or of any establishment of that undertaking or group, in another Member State, for instance due to changes in the cross-border supply chain or in production activities. The concept of transnational matters covers measures which could affect employees in a substantial and not in a merely trivial manner and which do not concern only individual employees or ordinary operational decisions. To that end, it should be clarified that the scope of the potential effects of transnational issues on the workforce and the level of management involved are to be taken into account to determine whether a matter falls within the competence of a European Works Council.
(7) The definitions of information and consultation in Directive 2009/38/EC include normative requirements. For the sake of coherence and legal clarity, it is appropriate to move those normative provisions to the article on the operation of the European Works Council and the information and consultation procedure for workers.
(8) The election and appointment of employees’ representatives is governed by national law and practice. The national systems for the election and appointment of employees’ representatives vary among Member States. Employees’ representatives can be trade union representatives, where the national law or practice of a Member State so provides.
(9) With a view to concluding an agreement establishing a European Works Council, central management is required to negotiate with a special negotiating body representing employees. To increase legal certainty in that regard, it should be clarified that central management is required to convene a number of meetings with the special negotiating body sufficient for both parties to reach such an agreement.
(10) It is possible that members of special negotiating bodies need legal advice to carry out their tasks under Directive 2009/38/EC. It is however not sufficiently clear that they are entitled to have the associated legal fees covered. To that end, it should be clarified that central management bears such expenses when incurred by members of special negotiation bodies. Such expenses should be notified in advance by special negotiation bodies to central management. Where the precise amount of the expenses is not known in advance, an estimate of the expenses, including information about their nature, should be notified to central management. It is appropriate to limit central management’s liability for such expenses to reasonable legal costs, to ensure that central management is not liable for manifestly disproportionate costs, costs without a justifiable link to the provision of relevant legal advice, or costs created by manifestly unfounded, frivolous or vexatious claims. Moreover, Directive 2009/38/EC gives Member States discretion to lay down budgetary rules regarding the operation of special negotiating bodies and European Works Councils based on subsidiary requirements, having regard to the principle that expenses relating to the appropriate conduct of the special negotiating body’s functions must be borne by central management. The provisions in Directive 2009/38/EC referring to the number of experts to be funded by central management are therefore redundant and should be deleted.
(11) Directive 2009/38/EC requires the parties to a European Works Council agreement to determine the venue for the meetings of the European Works Council. Those parties should also determine the format of such meetings, namely whether they are in person, online or hybrid, in order, inter alia, to avoid any doubt about their freedom to agree, on the one hand, to hold some or all of the meetings in a virtual environment, using online meeting tools, reducing the environmental footprint of meetings in line with Union, national and company emission reduction targets, while ensuring the meaningful and efficient sharing of information and consultation at a lower environmental and financial cost, and, on the other, to hold physical meetings which can offer a confidential environment that instils trust and provides an opportunity for exchanges in person.
(12) There can also be uncertainty and disputes with respect to the coverage of certain expenses and access to certain resources during the operation of European Works Councils. In accordance with the principle of the autonomy of the parties, it is appropriate to require that certain types of financial and material resources be determined specifically in European Works Council agreements, namely the possible assistance of experts – such as representatives of recognised Union-level trade union organisations, technical subject-matter experts or legal experts –, the coverage of experts’ fees and the possible participation of experts in meetings. The agreements should also address the provision of relevant training to the members of the European Works Council and the coverage of related expenses, without prejudice to the requirement to provide the necessary training pursuant to Directive 2009/38/EC.
(13) The requirement in Directive 2009/38/EC to take into account, where possible, the need for balanced representation of employees with regard to their gender when determining the composition of European Works Councils has proven insufficient to promote gender balance. Women remain underrepresented in most European Works Councils. Therefore, it is necessary to lay down more effective and specific objectives regarding gender balance, to be implemented by management and employees’ representatives when negotiating or renegotiating their agreements. To attain those objectives, it may in certain cases be necessary to give priority to the underrepresented sex in composing European Works Councils or their select committees. In accordance with the case-law of the Court of Justice of the European Union(4), such positive action is possible, in accordance with the principle of equal treatment of men and women, provided that the measures taken to achieve the gender balance objective do not automatically and unconditionally give priority to persons of a certain gender but allow to take into account other criteria, such as merits and qualifications and the procedure for election established by the relevant national laws. Parties to European Works Council agreements should therefore be allowed the flexibility necessary to respect the legal and factual limitations to the positive action. For similar considerations, it is also appropriate to strive to achieve gender balance in the composition of the special negotiating bodies, so that gender balance is already promoted during the negotiation phase.
(14) Evidence shows that the initiation of negotiations is sometimes delayed beyond the period of six months provided for in Directive 2009/38/EC. In some cases, management neither takes steps nor expressly refuses to commence negotiations following a request to set up a European Works Council. It should therefore be specified that the subsidiary requirements laid down in Directive 2009/38/EC apply where the first meeting of the special negotiating body is not convened within six months following a request to establish a European Works Council, irrespective of whether central management expressly refuses to commence negotiations.
(15) When sharing sensitive information with members of special negotiating bodies, members of European Works Councils, or employees’ representatives in the framework of an information and consultation procedure, central management can require such information to be shared in confidence and prohibit it from being disclosed further. To prevent the excessive use of such confidentiality restrictions and to align the relevant provisions of Directive 2009/38/EC with the corresponding provisions in Directive 2002/14/EC of the European Parliament and of the Council(5), confidentiality restrictions should be possible only to protect the legitimate interest of the undertaking concerned. The existence of such a legitimate interest should be assessed on the basis of objective criteria to be laid down in national law. Moreover, when sharing information in confidence, central management should be required to provide at the same time reasons justifying confidentiality. The confidentiality restriction should be applied only for as long as the reasons for confidentiality persist. Setting up adequate arrangements to safeguard the confidentiality of sensitive information can instil trust and facilitate the sharing of such information, while protecting the interests of businesses and workers, including averting growing risks such as industrial espionage.
(16) The possibility of central management not to transmit information to the members of special negotiating bodies, the members of European Works Councils, or employees’ representatives in the framework of an information and consultation procedure, should be limited to cases where such transmission would seriously harm the functioning of the undertakings concerned. For reasons of transparency and effective redress, central management should also be required to specify the reasons justifying the non-transmission of information in a way which allows for sufficient legal scrutiny, while not disclosing protected information.
(17) With a view to increasing legal clarity, it is appropriate to lay down the provisions on the transmission of information in confidence and on the non-transmission of information in two separate articles. Moreover, the provision allowing Member States to lay down particular rules for undertakings pursuing the aim of ideological guidance should be moved to an article concerning the relationship with other national provisions, because it pertains to the implementation of the requirements of Directive 2009/38/EC more broadly.
(18) Decisions on transnational matters can have far-reaching consequences for employees, such as in the case of redundancies arising from business plans, social plans, or process innovations. Effective transnational consultation requires a genuine dialogue between central management and European Works Councils, or employees’ representatives in the framework of an information and consultation procedure. This implies that information and consultation is to be conducted in a meaningful and timely way that enables employees’ representatives to express their opinion prior to the adoption of the decision. It also implies that opinions issued by European Works Councils or employees’ representatives are to receive a reasoned response from central management or a more appropriate level of management before the decision on the proposed measure at issue is adopted. Explicit requirements to that effect should be laid down in Directive 2009/38/EC, to ensure legal certainty.
(19) In the context of information and consultation on transnational matters, it is important to ensure that Community-scale undertakings or Community-scale groups of undertakings can take decisions effectively and that information and consultation does not result in undue delays in the decision-taking process. It is also crucial that employees’ representatives are provided with adequate time to form, coordinate and express their views on sometimes complex transnational matters, taking into account any agreed arrangements for linking information and consultation of the European Works Council and national employee representation bodies. To enable parties to reconcile those considerations in practice, the minimum requirements for the consultation process should remain sufficiently flexible, allowing them to schedule the process as appropriate in light of the respective circumstances and content of the consultation. Rather than imposing a rigid timeframe for employees’ representatives to issue their opinion and for management to provide a reasoned response, it is appropriate to provide for the principle that consultation is to take place within a reasonable time, taking into account the degree of urgency of the matter. That principle enables the parties to expedite the consultation process in urgent situations. It should also be clarified that the requirement for management to provide a reasoned response prior to adopting a decision applies where the employees’ representatives expressed their opinion within a reasonable time, with regard to all relevant circumstances, such as the complexity or significance of the matter, or management’s interests in taking a decision promptly.
(20) The provisions of Directive 2009/38/EC on the role and protection of employees’ representatives should be amended to increase clarity and accuracy, in particular with regard to the protection of the members of special negotiating bodies and the members of European Works Councils against retaliatory measures or dismissals relating to the exercise of their functions. Members of special negotiating bodies, members of European Works Councils, and employees’ representatives in the framework of an information and consultation procedure, should enjoy, in the exercise of their functions, protection and guarantees equivalent to those provided for national employees’ representatives by the national law or practice applicable in their country of employment.
(21) In order to avoid disputes, it should also be specified that central management bears the reasonable costs of training and related expenses of the members of the special negotiating body and of the members of the European Works Council, which are necessary for the exercise of their duties, where central management has been informed of those costs in advance.
(22) In certain Member States, rightsholders under Directive 2009/38/EC encounter difficulties in bringing legal action to enforce their rights. It is therefore necessary to strengthen Member States’ obligations to ensure effective remedies and access to justice and the supervision by the Commission of their compliance with those obligations. With regard to rightsholders under that Directive, including special negotiating bodies and European Works Councils, Member States should, in accordance with national law on legal standing or on the form of legal representation, guarantee access to judicial proceedings and, where relevant, administrative proceedings to enforce the rights under Directive 2009/38/EC. Moreover, it should be clarified that the relevant proceedings have to enable timely and effective enforcement. Where Member States impose mandatory pre-judicial out-of-court settlement procedures, it is important to ensure that such requirements neither prevent parties from fully exercising their right of access to the judicial system nor make it in practice impossible or excessively difficult for them to exercise their rights under Union law, with regard to any delays, effects on time limits, costs and other potential obstacles(6). It should therefore be clarified in Directive 2009/38/EC that, where Member States render access to judicial proceedings conditional upon the prior implementation of an alternative dispute resolution procedure, that procedure should not prejudice or limit the right of the parties concerned to bring judicial proceedings. Moreover, for the purposes of supervision by the Commission, Member States should be required to notify the Commission of the manner and circumstances in which rightsholders under Directive 2009/38/EC can bring judicial proceedings and, where relevant, administrative proceedings, in respect of their rights under that Directive.
(23) The Commission’s 2018 evaluation of Directive 2009/38/EC showed that penalties applicable in the case of non-compliance with transnational information and consultation requirements are often not sufficiently effective, dissuasive or proportionate. Therefore, it is appropriate to lay down an obligation on the part of Member States to provide for effective, dissuasive and proportionate penalties. Financial penalties should be provided for in the case of non-compliance with the information and consultation procedures set out in Directive 2009/38/EC. Other forms of penalties could also be provided for. In order to be effective, dissuasive and proportionate, penalties should be determined taking into consideration the gravity, duration and consequences of non-compliance and whether such non-compliance is intentional or negligent. For the penalties to be dissuasive, the turnover of the undertaking or group concerned should be taken into account or the applicable penalties should have a similarly dissuasive nature.
(24) Special negotiating bodies, European Works Councils, and, on their behalf, their members should have the necessary means to cover the costs of legal representation and participation in judicial proceedings and, where relevant, administrative proceedings. Such costs can cover the travel and subsistence costs of participation in such proceedings of the members acting on behalf of the body concerned. The Member States should either provide for central management to bear the reasonable costs of legal representation and participation in judicial proceedings and, where relevant, administrative proceedings, or should take other, equivalent measures to ensure that special negotiating bodies and European Works Councils are not de facto prevented from participating in judicial proceedings or, where relevant, administrative proceedings, due to a lack of financial resources. This could be achieved, for example, by requiring the allocation of an appropriate operational budget to the European Works Council, the setting up of solidarity funds at national level, the provision of insurance to cover legal costs, the granting of access to legal aid in certain circumstances or other provisions in accordance with national law and practice.
(25) Undertakings with an agreement on the transnational information and consultation of employees concluded before 23 September 1996, that is to say prior to the date of application of Council Directive 94/45/EC(7), are exempted from the application of the obligations arising from Directive 2009/38/EC. The employee information and consultation bodies established under such agreements have been concluded and continue to operate outside the scope of Union law. Directive 2009/38/EC does not provide the employees in the exempted undertakings with the possibility to request an establishment of a European Works Council under that Directive. However, for reasons of legal clarity, equal treatment and effectiveness, employees and their representatives in all Community-scale undertakings or Community-scale groups of undertakings should, in principle, have the right to request the establishment of a European Works Council. Almost 30 years after a legislative framework setting minimum requirements for the transnational information and consultation of employees was established at Union level, those reasons prevail over the considerations of continuity for pre-existing agreements which initially motivated the exemption. That exemption should therefore be deleted, without prejudice to the legal status of such agreements, which continue to be governed by the applicable national rules. The initiation and conduct of negotiations for the establishment of European Works Councils in undertakings with such agreements should be subject to the procedure provided for in Directive 2009/38/EC, while the period after which the subsidiary requirements come into force should be reduced from three to two years, in line with the period applicable to the adaptation of existing European Works Council agreements.
(26) Moreover, for the same considerations, the same minimum requirements should apply to all Community-scale undertakings with European Works Councils operating under Directive 2009/38/EC and those in which a European Works Council agreement was signed or revised between 5 June 2009 and 5 June 2011. Therefore, the exemption of the those undertakings from the application of Directive 2009/38/EC should also be deleted.
(27) European Works Councils operating on the basis of the subsidiary requirements set out in Annex I to Directive 2009/38/EC have the right to meet with central management once a year, to be informed and consulted on the progress of the business of the relevant Community-scale undertaking or Community-scale group of undertakings and its prospects. In order to strengthen the transnational information and consultation of those European Works Councils, it is appropriate to increase the number of such ordinary meetings in the subsidiary requirements to two meetings held in person.
(28) In addition, certain technical changes should be made to the subsidiary requirements set out in Annex I to Directive 2009/38/EC, to ensure consistency with the enacting terms.
(29) Therefore, it is appropriate to amend Directive 2009/38/EC to bring all eligible undertakings within its scope, clarify some of its key concepts, improve the transnational information and consultation process, and ensure effective redress and enforcement.
(30) Pursuant to Article 27 of the United Nations Convention on the Rights of Persons with Disabilities, persons with disabilities are to be able to exercise their labour and trade union rights on an equal basis with others. As the Union and the Member States are parties to that Convention, Directive 2009/38/EC and relevant national legislation are to be interpreted in accordance with that principle, for instance in relation to accessibility and reasonable accommodation for members of special negotiating bodies, members of European Works Councils, and employees’ representatives in the framework of an information or consultation procedure, as well as the bearing of related costs by central management.
(31) Pursuant to Directives 2014/23/EU(8), 2014/24/EU(9)and 2014/25/EU(10)of the European Parliament and of the Council, Member States are to take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of social and labour law established by Union law. The integration, as appropriate, of social sustainability criteria in the award criteria designed by contracting entities for identifying the most economically advantageous tenders can contribute to the effective implementation of the requirements under this Directive. However, this Directive does not create any additional obligation in relation to those Directives.
(32) When implementing Union law, Member States are to respect the rights set out in the Charter and to promote the application thereof in accordance with Article 51 of the Charter, including the right to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.
(33) In order to give employees’ representatives and central management in Community-scale undertakings or Community-scale groups of undertakings sufficient time to consider the revised minimum requirements and to prepare for their application, it is appropriate to defer by one year the application of the provisions adopted by Member States to comply with this Directive.
(34) It is possible that European Works Council agreements concluded under Directive 94/45/EC or 2009/38/EC before the transposition of this Directive, do not address the requirements for the content of those agreements as amended by this Directive. It is therefore appropriate to provide for transitional arrangements enabling the parties to such agreements to amend their agreements.
(35) Since the overall objective of this Directive, namely to ensure the effectiveness of the requirements of Directive 2009/38/EC regarding the information and consultation of employees of Community-scale undertakings and Community-scale groups of undertakings, cannot be sufficiently achieved by the Member States but can rather, by reason of the inherently transnational nature and scale of those requirements, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective,
HAVE ADOPTED THIS DIRECTIVE:

Article 1
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:
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:
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:
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.
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:
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.
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.

Article 2
1. Member States shall adopt and publish, by 1 January 2028, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions.
They shall apply those provisions from 2 January 2029. However, they shall apply the provisions transposing Article 1, points (12) and (13), insofar as they relate to Article 14 and Article 14a(1), (2) and (3), from 2 January 2028.
When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The method of making such a reference shall be laid down by Member States.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Member States shall notify the Commission by 1 January 2028 of the means by which special negotiating bodies, European Works Councils and employees’ representatives can, pursuant to Article 11(2) to (5) of Directive 2009/38/EC, as amended, bring judicial proceedings and, where relevant, administrative proceedings, in respect of all the rights under that Directive.

Article 3
This Directive shall enter into force on the twentieth day following that of its publication in theOfficial Journal of the European Union.

Article 4
This Directive is addressed to the Member States.