The European regulatory framework actively promotes employee participation in company life, acknowledging its importance towards constructive social dialogue and economic change. Over the years, a system of information and consultation rights for employees within companies operating at a European level has been developed, along with a framework of sanctions for employers’ conduct that hinders the effective exercise of these rights. Established by a European measure in 1994, European Works Councils (EWCs) are now governed by Directive 2009/38/EC (the “Directive”), implemented in Italy by Legislative Decree No. 113/2012 (the “Decree”), which also provides for the establishment of alternative procedures for information and consultation in companies and group of companies operating at European level. This legislation applies – on an optional basis and following a request from the involved employees – to companies employing at least 1,000 employees throughout the European area (of which at least 150 are employed in two or more Member States). The purpose of the regulation is to ensure that decisions with a transnational impact are preceded by consultation with employee representatives. To this end, both European and national legislation place a real responsibility on companies to create the conditions and provide the tools necessary for the establishment and functioning of such representative bodies. Once the relevant request has been received, the central management of the involved company (or of the company group to which it belongs) must allow the establishment of a “special negotiating body” (SNB), composed of employees staffed by the latter, who are selected internally, in proportion to the number of employees in each Member State concerned. The SNB is responsible for determining, together with the central management and by written agreement, the terms, conditions, and scope of the powers that will be assigned to the EWC. The mentioned agreement mentioned has a mandatory content (as defined by the Directive itself) which includes, among others, details of the establishments of the company or company group operating at a European level, the composition of the EWC, the procedures it must follow, and the place, duration, and frequency of its meetings, as well as the financial and material resources that must be allocated to it (which are supported by central management, as provided for by the relevant Italian law). Additionally, the Decree provides that, if the central management of the company fails to fulfil its duties and does not comply with its obligations to obtain and transmit to the interested parties the information necessary to start negotiations for the establishment of the EWC, the latter shall be sanctioned with an administrative fine ranging from minimum EUR 5,165 to maximum EUR 30,988. In any case, the same Decree determines the establishment of a conciliation commission, aimed at solving potential disputes between the parties in a preliminary and non-contentious manner, in order to ensure full compliance with its own obligations. In this regard, the European Parliament approved the provisional agreement for the revision of the Directive last October, which is aimed at strengthening its social role. In order to follow the procedural process that will lead to a revision of the regulations hereby analysed, it will be necessary for this same text to be formally adopted by the Council as well, so that it will reach the Italian authorities, which will be called upon its transposition into national law. Therefore, it is advisable to wait for further developments concerning the complex issue of worker participation in company decisions, also in light of the most recent national forecasts on the subject.
2026 - Morri Rossetti
