Comparative Company Law
Readings 3: Workers’ Participation
Case law
Case C-566/15 Konrad Erzberger v. TUI AG
TUI is managed by the management board and a supervisory board
(20 members, of which 10 are shareholders representatives and 10
are employee representatives, and of the latter are 3 trade union
people and 7 designated employee representatives) however,
people not working in the German part of TUI may not participate
in the employee part of the supervisory board, and if they do and go
abroad to work at one of the foreign subsidiaries, they have to give
up their board position
Examination on the basis of Article 45 TFEU freedom of
movement for workers
When workers move within the TUI group to another MS Article
45 TFEU should apply
National law applies in this case and the German law sets out an
objective and justifable criterion for participation in voting about
the employee council no violation of EU law
Reading Materials
Dorresteijn, ‘European Corporate Law’
Chapter 7: Involvement of Employees
I. Introduction
Information – consultation – participation in decisionmaking
where MNE’s are centred in one state, the employees in that home
state will be able to exercise infuence, if the MNE is dispersed, it
might be benefcial to give this right to foreign employees as well
1980: Commission proposal for Directive concerning employee
participation in MNE’s developed into a Charter which was
adopted by all the EU MSs except the UK European Works
, Council Directive was also adopted by the UK (Directive
2009/38/EC)
Employees can also become shareholders (ESO) obstacles to
make these transnational are the diferent rules per MS
Organisational performance is afected positively if managers
respond positively towards employee participants’ ideas
Directive 2002/14/EC: overall character, general framework for
informing and consulting employees, Community-scale
undertakings/groups of undertakings shall have an EWC
Worker participation: only for cross-border mergers or SE/SCE
no harmonisation!
Tenth Directive Article 16 refers to the SE directive for the issue
of participation rights, meaning that the involvement of employees
will be the same as in Article 2(h) of the SE Directive
II. Information and consultation: The EWS, the SE and the SCE
Directive 2009/38/EC establishment of an EWC or a diferent
procedure for the purpose of informing and consulting employees
only when company employs minimum 1000 people in the ER, and
150 in at least two other MSs, or when a group of companies has
two undertakings in diferent MSs each employing more than 150
people (Article 2(1)(c))
Article 14 Directive is only applicable if there exists no
agreement on worker participation and transnational information
and consultation rights before the date of the entry into force and if
upon expiration of such agreement no renewal is decided upon
contractual nature, where negotiations are combined with a
fallback on standardised rules if no agreement is reached
Article 4 management is responsible for setting up an EWC or
alternative procedure may initiate but is required when a petition
of more than 100 employees in two MSs ask for it
Article 5 guidelines for composition of negotiating body and its
tasks (decision in writing about the scope, composition and the
functions and terms of ofice of the EWC)
Readings 3: Workers’ Participation
Case law
Case C-566/15 Konrad Erzberger v. TUI AG
TUI is managed by the management board and a supervisory board
(20 members, of which 10 are shareholders representatives and 10
are employee representatives, and of the latter are 3 trade union
people and 7 designated employee representatives) however,
people not working in the German part of TUI may not participate
in the employee part of the supervisory board, and if they do and go
abroad to work at one of the foreign subsidiaries, they have to give
up their board position
Examination on the basis of Article 45 TFEU freedom of
movement for workers
When workers move within the TUI group to another MS Article
45 TFEU should apply
National law applies in this case and the German law sets out an
objective and justifable criterion for participation in voting about
the employee council no violation of EU law
Reading Materials
Dorresteijn, ‘European Corporate Law’
Chapter 7: Involvement of Employees
I. Introduction
Information – consultation – participation in decisionmaking
where MNE’s are centred in one state, the employees in that home
state will be able to exercise infuence, if the MNE is dispersed, it
might be benefcial to give this right to foreign employees as well
1980: Commission proposal for Directive concerning employee
participation in MNE’s developed into a Charter which was
adopted by all the EU MSs except the UK European Works
, Council Directive was also adopted by the UK (Directive
2009/38/EC)
Employees can also become shareholders (ESO) obstacles to
make these transnational are the diferent rules per MS
Organisational performance is afected positively if managers
respond positively towards employee participants’ ideas
Directive 2002/14/EC: overall character, general framework for
informing and consulting employees, Community-scale
undertakings/groups of undertakings shall have an EWC
Worker participation: only for cross-border mergers or SE/SCE
no harmonisation!
Tenth Directive Article 16 refers to the SE directive for the issue
of participation rights, meaning that the involvement of employees
will be the same as in Article 2(h) of the SE Directive
II. Information and consultation: The EWS, the SE and the SCE
Directive 2009/38/EC establishment of an EWC or a diferent
procedure for the purpose of informing and consulting employees
only when company employs minimum 1000 people in the ER, and
150 in at least two other MSs, or when a group of companies has
two undertakings in diferent MSs each employing more than 150
people (Article 2(1)(c))
Article 14 Directive is only applicable if there exists no
agreement on worker participation and transnational information
and consultation rights before the date of the entry into force and if
upon expiration of such agreement no renewal is decided upon
contractual nature, where negotiations are combined with a
fallback on standardised rules if no agreement is reached
Article 4 management is responsible for setting up an EWC or
alternative procedure may initiate but is required when a petition
of more than 100 employees in two MSs ask for it
Article 5 guidelines for composition of negotiating body and its
tasks (decision in writing about the scope, composition and the
functions and terms of ofice of the EWC)
