Last Updated on November 20, 2025
On 27 October 2025, the Council of the European Union approved a measure amending Directive 2009/38/EC relating to the establishment of European Works Councils (EWCs) .
EWCs are cross-border employee representation bodies that must be involved in information and consultation procedures whenever a company or a group addresses transnational issues that impact their workforce.
EWCs are constituted in accordance with the provisions of an agreement negotiated between the Special Negotiating Body (SNB) and the Central Management of:
- a Community-sized business with at least 1,000 employees and at least 150 workers in each Member State in at least two countries;
- a group of Community-sized businesses with at least 1000 employees and at least two companies in different Member States, each having at least 150 workers in each country.
The new Directive will be published in the Official Journal of the EU and must be implemented by the Member States within two years.
Scope of application
The measure clarifies the concept of “transnational issues” which determines the competence of the EWC. In this sense, an issue is considered transnational not only when the measures directly affect workers in at least two Member States, but also when, although adopted in only one country, these measures may have foreseeable consequences for staff in at least one other State.
This clarification extends, therefore, the competence of the EWC to those situations in which a decision, while formally applying in only one country (e.g. closure of a plant), has a chain effect on workers in other Member States, for example due to changes in the supply chain or cross-border production activities.
Gender Balance
The underrepresented gender (women or men) must account for at least 40% of the members of both the SNB and the EWC. Although the failure to achieve this target does not invalidate their constitution, it must be justified in writing to the workers.
Confidential information
Regulation of confidentiality, one of the most delicate aspects of the dialogue between Management and workers’ representatives, is amended with the aim of making the system more transparent and of limiting company discretion regarding withholding or secreting information.
In particular, when the Management provides information that it qualifies as confidential, it must now indicate in writing the reasons and, if possible, the duration of the confidentiality constraint.
Should the Management decide not to provide certain information, it must also inform the workers’ representatives of the reasons for this refusal.
Information and consultation procedure
This new measure aims to make consultation more effective and incisive, stipulating that the opinion expressed in this context by the workers’ representatives on the transnational issue receives a written justified response from the Central Management.
In the original Directive, this opinion could simply be “taken into account” by the Management, whereas the new wording ensures that workers receive a formal reply before the decisions become operational, reinforcing the effectiveness of the dialogue.
Ancillary limitations
The ancillary limitations are also amended, namely the standard provisions in the Directive regarding the composition and operation of the EWC that apply in the absence of an agreement between the Central Management and the SNB. This sees the number of mandatory annual meetings between the EWC and the Central Management doubled, from one to at least two per year. The new procedural guarantees are also implemented, such as the right to receive a justified response and the objective of gender balance.
Access to justice and sanctions
To counteract the poor effectiveness of legal protection, the measure also covers access to justice and applicable sanctions.
In the event of violation of the information and consultation obligations, Member States will be obliged to implement effective, dissuasive, proportionate fines, the amount of which must take into account factors such as the seriousness, duration, and malicious or culpable nature of the non-compliance, as well as the company’s turnover, to ensure the deterrent effect.
In addition, to remove economic barriers to access to the courts, the Central Management shall bear the expenses for experts, including legal representatives, both during the negotiation for the establishment of the EWC and in judicial proceedings to enforce the rights deriving from the Directive.
Pre-existing agreements
Exemption from the obligations of Directive 2009/38/EC is eliminated for so-called “pre-existing agreements“, i.e. agreements entered into before 1996 or concluded in the transitional period 2009-2011.
Companies that benefited from these exemptions may be promoters or the subject of a request for the establishment of an EWC according to the new rules.
This new measure is included in an already structured context in Italy, pursuant to Legislative Decree no. 113/2012, but it introduces significant innovations aimed at making information and consultation rights more effective, procedurally guaranteed and easily enforceable in court.
Italy will have to transpose these changes, amending the above Decree and adapting, as a consequence, relative practices and collective bargaining.
Toffoletto De Luca Tamajo is at your disposal for any support and/or clarification you may need.
For further information: comunicazione@toffolettodeluca.it
