Series a practical guide for the new EWC Directive

Article 14 of the new directive deals with the status of the already concluded agreements.

Article 14
Agreements in force
1. Without prejudice to Article 13, the obligations arising from this Directive shall not apply to Community-scale undertakings or Community-scale groups of undertakings in which, either

an agreement or agreements covering the entire workforce, providing for the transnational information and consultation of employees have been concluded pursuant to Article 13(1) of Directive 94/45/EC or Article 3(1) of Directive 97/74/EC, or where such agreements are adjusted because of changes in the structure of the undertakings or groups of undertakings;
or
(b) an agreement concluded pursuant to Article 6 of Directive 94/45/EC is signed or revised between 5 June 2009 and 5 June 2011.

The national law applicable when the agreement is signed or revised shall continue to apply to the undertakings or groups of undertakings referred to in point (b) of the first subparagraph.

2. Upon expiry of the agreements referred to in paragraph 1, the parties to those agreements may decide jointly to renew or revise them. Where this is not the case, the provisions of this Directive shall apply.

Canyou understand this? Even among lawyers and EWC experts, Article 14 has led to much discussion. Here are the conclusions:

The famous “Article 13 agreements” – agreements that were signed before the conversion of the first EWC directive (1994) into national law (1996) – still fall under no single directive and the resulting national legislation. They can simply continue.

For all agreements that are concluded and signed in the coming transitional period of 2009-2011, either new or by renegotiation, the “old” directive of 1994 and the national legislation based on it, will apply permanently..
Moreover, they continue to fall under the old directive when they are extended or revised after 2011.

Naturally, nobody wants to remain forever under an obsolete directive or agreement. That’s also not necessary, but for this something has to happen.

Ad 1
If you want to get rid of an Article 13 agreement, then you have to cancel it and renegotiate. This brings the risk that you will be without European participation for awhile. In the negotiation over a new agreement, keep in mind the recommendations given below.

Ad 2
In the negotiation of a new agreement or in the renegotiation of an existing agreement, there are three ways to see to it that the new Directive will apply for you:

Sign the new or renegotiated agreement only after 6 June 2011 (or postpone the renegotiation for awhile) so that you are ready to sign after June 2011. This is not desirable in all cases: with the formation of a new EWC, it would be unfortunate to have to wait for two years before it takes effect. With an existing EWC, renegotiation could well be useful for all sorts of reasons (merger or takeover, establishment of developed practice, the readiness of both parties to implement substantial improvements).

Include in the agreement an article in which it is established that, after the new directive takes effect, one will negotiate again. This is rather laborious because you will have to sit down at the negotiation table again after two years at the most. The third option is simpler.

Conclude a new agreement between June 2009 and June 2011 and include in it an article that refers to the new directive and the national legislation to be based on it. Here is an example from practice. More examples are given in our practical guide on the new directive.

Dutch law is applicable to this agreement. If the EWC Law is changed in relation to the revised Directive 2009/38/EG, the amended EWC Law is immediately applicable to the agreement.

Ad 3
If you’re going to renegotiate an agreement after 2011 that was concluded between 2009 and 2011 and if it contains no specification as described above, the revised agreement will also continue to fall under the old directive. Here you can do something. In the revised agreement, you can include an article in which it states that it is concluded under Directive 2009/38/EC and the revised national legislation applicable to your agreement. Or you can break with the past and draw up the agreement again so that it is no longer a matter of a revision but of a new agreement.

The moral of this story: in the negotiation or renegotiation of an EWC agreement between now and June 2011, you have to be careful that you not remain locked forever into an obsolete directive
There could be companies that want to make use of Article 14 in order to conclude a weak agreement. Indeed, we received a message from a German employers’ association that strongly advised its members to conclude or renegotiate EWC agreements within two years.

Do you want to read more about the new directive? Order our Practical guide. You can receive it free of charge by sending an e-mail with your name and address to; eorservice@fnvformaat.nl