Are European Fundamental Rights to Information and Consultation Getting Diluted By National Implementations? Study on Implementation of European Works Councils Directive 2009/38/EC in the Field of Access to Justice

The paper aims at drawing attention to proper transposition of EU directives as a challenge for ensuring effective workers’ rights to information and consultation (I&C). To this end it looks at the example of implementation of the European Works Council (EWC) directives 94/45/EC and 2009/38/EC with a special focus on enforcement provisions. The choice of implementation of EWCs legislation as a ‘lab case’ is relevant in several ways: a) being an EU originating institution requiring  implementation into national industrial relations (IR) and legal systems they represent a perfect example of tension between coherence of centrally introduced rights and their national ‘conjugation’; b) the original directive 94/45/EC, substantially modified by recast directive 2009/38/EC and recently transposed provides for an apt up-to-date test-case; c) it addresses loopholes in existing research and has both a political and practical relevance for over 1000 active EWCs and over 17 mil. workers  they represent.

The paper will provide comparative overview of national transpositions of specific key provisions of directive 2009/38/EC and an analysis of their coherence with the source regulation. Focusing on transposition of enforcement provisions on access to justice and sanctions it will argue that a formalistic ‘copy-paste implementation’ without consideration of the ultimate principle of effectiveness acts as impediment to coherent application of the  fundamental right to I&C. To this end it will present jurisprudence of the European Court of Justice and research on the meaning of ‘effective, proportionate and dissuasive sanctions’.

The paper will also argue against the lenient approach supporting the view that differences between national IR justify cases of substantial/excessive, divergences in implementation. By means of reference to EU institutional developments and interventionism in the field of financial market and environmental  regulation it will also challenge the view that the European Commission has no competence with regard to setting sanctions.