In order to set up a European Works Council (EWC), the central management of a company must initiate negotiations with its employees’ representatives. This can happen at central management’s own initiative or at the written request of at least 100 employees or their representatives in at least two of the company’s establishments, in at least two different Member States.
Once the intention of setting up an EWC has been formulated, the EWC Directive (2009/38/EC) stipulates that a Special Negotiating Body (SNB) must be established to negotiate the agreement that will serve as the basis for the future EWC’s work. The EWC Directive also provides guidelines on how the members of an SNB are to be elected or appointed.

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In this article, we will give a short overview of the main elements that the Directive mentions with regards to the composition, the purpose, and the working method of an SNB. Near the end, we will make some remarks on the intervention of external experts in the negotiation process and what happens when central management and the SNB fail to reach an agreement.

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SNB Members

The basic idea is that whoever becomes a member of the SNB has the competence and skills to represent the employees from their establishment or country during the negotiation of the EWC agreement. The Directive leaves it up to Member States to elect or appoint SNB members according to their own labour laws and employee representation traditions. Whereas in some countries SNB members are elected through a ballot amongst the whole workforce, in others it may be that the trade union appoints one of their members, or that a representative from a local or central works council is invited to negotiate at the European level. On the number of SNB Members, the EWC Directive only says that it should be ‘in proportion to’ the number of employees of the company in each Member State. At the beginning of the negotiation process, both management and the competent European workers’ and employers’ organisations are to be informed of the composition of the SNB.

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Purpose

The main purpose of the SNB is to negotiate with central management on the scope, the composition, the functions, and the term of office of the future European Works Council. These should be configured to establish a structure and procedure for the information and consultation of Europe-based employees.

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Working Method

Central management has to convene at least one meeting with the SNB to discuss and negotiate the establishment of an EWC agreement. It is common for SNBs to meet on several occasions within the three-year time frame to reach an agreement. The Directive stipulates that SNB members should be given the opportunity and the necessary means of communication (e.g. interpreters, training) to meet without representatives of central management before and after any meeting. The expenses related to the negotiations are to be borne by Central Management.

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External Experts

The Directive states that the Special Negotiating Body may request assistance from experts of its choice and makes reference to representatives from Community-level (i.e. European) trade union organisations, who, when needed, intervene in an advisory capacity. Member States may lay down budgetary rules that limit the funding to cover one expert only.

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No Agreement – Other Scenarios

There are four scenarios where the working method differs from what is described above:

1. Refusal to Negotiate: Central management convenes a meeting with the Special Negotiating Body, and the latter decides by two-thirds of the votes not to open negotiations. This stops the whole procedure and means that, unless both parties agree on a shorter period, no new requests to convene an SNB may be made in the two years following the refusal to start negotiations.
2. Adopting Subsidiary Requirements: Central management and the SNB decide to adopt the subsidiary requirements laid down in the legislation of the Member State where central management is based. These requirements are general provisions that are not company-specific.
3. Failure to Commence Negotiations: Central management refuses to commence negotiations despite the written request by its employees. If central management fails to start negotiations within six months of the written request, the subsidiary requirements of the legislation of the Member State where central management is based apply.
4. No Agreement within Three Years: If no agreement is concluded in the three years following the date of the written request, the subsidiary requirements laid down in the legislation of the Member State where central management is based apply.

These are the basic elements concerning the SNB. If you would like to read the full text of the Directive, download it here.