European works council
(Court of appeal of Versailles, 21 May 2015, No. 14/08628)
FRANCE – The Regional Court of Nanterre, by an ordinance dated 26 November 2014, dismissed the claims of the European works council for the group Transdev, which had requested to be consulted on the future of the subsidiary of the group, SNCM. This ordinance has been confirmed by the court of appeal of Versailles.
After having been reimbursed by the SCNM for its advance payments to the current account, the group deposited a declaration of suspension of payments and an application to open insolvency proceedings. The European works council determined that it should have been consulted on the decision taken to request reimbursement, which resulted in the opening of these proceedings.
At first instance, the Regional Court based its decision on the agreement establishing the works council. Highlighting Article 16 of Directive 2009/38/CE, this agreement defines the questions relating to at least two sites in two different Member States as transnational ones or questions which, regardless of the number of Member States involved, are of significance for European workers concerning the scale of their potential impact or the transfer of activities between Member States.
This case involved only one country, France, and the tribunal quickly eliminated the existence of a link to transnationality. However, the court should have verified whether the claim had any significance for European workers although only one Member State was involved, in view of the potential impact of those letters or the existence of a transfer of activities.
According to the court, the decision to make payable cash advances does not imply any transfer of activity and only affects the employees of SNCM, which represent only 2,5% of the group’s staff.
Thus, there is no reason to assume that the situation of CNCM has a noteworthy impact on European workers. The Court agreed that the European Works Council did not have to be consulted on this case.
This first judiciary decision which takes Art. 16 of the directive into account on the basis of its integration into the agreement establishing the European Works Council was validated by the Court of Appeal of Versailles.
The Court of Appeal follows the various clauses of the agreement on the powers of the European Works Council, in particular, in case of exceptional circumstances, and notes that it only has jurisdiction over transnational questions.
The Court of Appeal concludes that questions which necessitate preliminary consultation of the European Works Council must have an international or European dimension as regards their effects. Otherwise, consultation of the European Works Council is not necessary.
The court has analysed the decision to request compensation from SNCM. The case only concerns an entity in one Member State.
The decision was taken by a French company against one of its French affiliates. Thus, this decision does not have a transnational dimension. The court then examined whether this decision has an important impact for European workers.
The decision to make advances payable, regardless of the number of Member States involved, has no relevance for European workers in terms of potential impact, neither does it imply a transfer of activity between Member States in accordance with Article 3 of the agreement, nor does the case have any transnational characteristics, it does not modify the structure and strategic orientations of the group Veolia Transdev and it does not significantly affect the employees' interests under Article 7.3.2 of the agreement.
To conclude, the European Works Council does not have jurisdiction over this case.