C-62/99

BOFROST *

OPINION OF ADVOCATE GENERAL SAGGIO delivered on 26 September 2000 1

1. In this reference for a preliminary ruling, The relevant Community and national law the Landesarbeitsgericht (Higher Labour Court) Düsseldorf has applied to the Court for an interpretation of a provision on which the Court has not made any ruling before: Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a proce- dure in Community-scale undertakings and 2. Article 1 of the directive states that its Community-scale groups of undertakings purpose is to improve the right to informa- for the purposes of informing and consult- tion and to consultation of employees in ing employees (hereinafter 'the directive'). 2 Community undertakings. For this pur- This reference for a preliminary ruling is pose, it provides the means of establishing made to establish whether, even before an employees' council in Community-scale formally initiating the procedure to estab- undertakings or groups of undertakings. lish the works council provided in the directive, the central management of the undertaking is required to give the internal representatives of the employees the infor- mation and documents requested by the body representing the employees, where the purpose of the request is in fact to establish that procedure for the group to which the undertaking belongs. Article 2(1) identifies the scope ratione personae of the directive, listing the types of undertakings in which a European works council must be established and those who take part in the procedure. It states that for the purposes of the directive:

Regarding the term 'controlling undertak- — at least 1 000 employees within the ing', referred to in Article 2(1)(b), Article 3 Member States, provides that it means 'an undertaking which can exercise a dominant influence over another undertaking ("the controlled undertaking") by virtue, for example, of ownership, financial participation or the rules which govern it' (paragraph 1) and that 'the ability to exercise a dominant — at least two group undertakings in influence shall be presumed, without pre- different Member States, and judice to proof to the contrary, when, in relation to another undertaking, directly or indirectly [an undertaking]:

— at least one group undertaking with at least 150 employees in one Member State and at least one other group undertaking with at least 150 employees in another (a) holds a majority of that undertaking's Member State; subscribed capital; or

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(b) controls a majority of the votes establishments of a Community-scale attached to that undertaking's issued undertaking and the management of under- share capital; or takings which form part of a Community- scale group of undertakings which are situated within its territory and their employees' representatives or, as the case may be, employees abide by the obligations laid down by [the directive], regardless of whether or not the central management is (c) can appoint more than half of the situated within its territory' (paragraph 1). members of that undertaking's admin- In particular, the Member States must istrative, management or supervisory ensure 'that the information on the number body.' of employees referred to in Article 2(1 )(a) and (c) is made available by undertakings at the request of the parties concerned by the application of [the directive]'.

Paragraph 5 of the Law, implementing The works council had several times Article 11 of the directive, expressly requested the undertaking's management imposes an obligation to provide informa- committee to provide information on the tion as follows: number of employees and the structure of the group undertakings, under Paragraph 5 of the German Law. The committee had not acted upon that request and, in a letter of 9 January 1997, had given a categorical refusal to provide the information. '(1) The central management must give to the employees' representatives, upon request, information on the average num- ber of employees and the distribution of these within the Member States, on the undertakings and establishments and on the structure of the company or group of 5. The works council therefore applied to companies. the Arbeitsgericht, by application filed on 3 March 1998, requesting that the defen- dant undertaking be ordered to supply to the plaintiff, by 'production and transmis- sion of written documents', information on (a) the relationship of the German company (2) A works council or a central works bofrost* — by means of shares held by the council may exercise the right granted in company itself or its members — with subparagraph 1 against the local manage- other European undertakings, specifically ment of the establishment or undertaking; with bofrost"" J.H. Boquoi Deutschland Ost the latter shall be required to obtain from GmbH & Co. KG, bofrost* Dienstleistungs the central management the information GmbH & Co. KG, spedbo Speditions and documents necessary to provide the GmbH & Co. KG, bofrost* Italy, bofrost* particulars requested.' Spain, bofrost* Austria, bofrost* France, bofrost* Netherlands, bofrost* Greece and bofrost* England; (b) the average number of employees in those undertakings; (c) the legal form of the undertaking, showing the registered office of the firm and where it is registered; (d) the law applying to those undertakings, and (e) their supervisory The national proceedings and the questions bodies and the persons with power of referred appointment.

3 — We find in the order of reference that the Shareholders' Advisory Council, established by the majority shareholders of the bofrost* undertakings, attends meetings of the bofrost* Europe Steering Committee in an advisory capa- city. In accordance with their advisory and supervisory obligations to the individual bofrost* undertakings, the members of the Shareholders' Advisory Council state, at meetings of the bofrost* Europe Steering Committee, their opinions on the benefit, profitability, expediency and 7. Bofrost* appealed against the order, by a lawfulness of the measures put forward for a decision. In the case of decisions on commercial transactions and document of 23 November 1998, in the measures which go beyond the normal conduct of business, the members of the Shareholders' Advisory Council exercise Landesarbeitsgericht at Düsseldorf. In the the shareholders' right to grant or withhold approval by appeal, the parties repeated the same analogy with Paragraph 164 of the Commercial Code (HGB). On the other hand, the function of the bofrost* arguments. The court expressed doubt as Europe Steering Committee, is to lay down the fundamental to whether the internal body representing principles for the commercial activity of the bofrost* undertakings with a view to ensuring the most uniform the employees had the right to request and effective market penetration possible of the Bofrost mark in Europe having regard to the specific characteristics information unless it were shown that the of each country. The bofrost* Europe Steering Committee is group was of Community scale and that the composed of the members of the national management bodies to be determined, in each case, by the bofrost* undertaking was dominant within the undertakings inaccordance with the relevant national rules. Each contracting party (i.e. each country in which bofrost* group. The court also queried what were undertakings operate) is allocated one vote. Where a party is the appropriate means of securing the represented by two or more persons, such persons may exercise their voting right only in concert. Decisions are information to appraise the link between adopted by unanimity; where unanimity cannot be achieved, the decision is postponed until a subsequent the German undertaking and the other meeting. undertakings of the bofrost* group.

If the first question is answered in the affirmative: does the right to information in Article 11(1) and (2) of Directive 94/45/EC also include the right of a works council to request from the undertaking concerned information which gives rise to the pre- 10. In the instance submitted to the court sumption referred to in Article 3(2) of making the reference, the appeal — as Directive 94/45/EC? mentioned earlier — is against the right of the works council for the bofrost* establishment situated at Straelen to request, and receive, from the management of that establishment information and documents essentially relating to: (a) the links between the German bofrost* com- pany and the group companies situated in Does Article 11(1) and (2) of Directive other Member States, (b) the number of 94/45/EC also include the right of a works employees within those undertakings and council to request documents from an the type of employment contract made with undertaking to clarify and explain such them, (c) the national law applying to those information?' companies' internal relations, (d) the

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organs having external representation of more than one Member State, and groups those companies and (e) the organs of of undertakings which are situated in internal supervision. several national territories. 5Furthermore, the directive makes provision only for the establishment of the works councils and not for their operation, although the nine- teenth recital and points 2 and 3 of the subsidiary requirements, annexed to the directive, give a generalised statement of Two points are raised in this reference: does the rights of the works council, consisting the directive apply to a case such as this of a right to information and a degree of and, if so, what rights must be conceded to participation in decisions on internal orga- the employees' representatives, within the nisation and the strategies of the under- meaning of and for the purposes of the taking. directive?

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employees' representatives are taking the Community-scale undertaking or group action for the purpose of establishing a which, under Article 4(1) of the directive, is European Works Council. 'responsible for creating the conditions and means necessary for the setting up' of the council, and, on the other, the 'special negotiating body' with a minimum of three and a maximum of 17 members who are employees of the establishments situated in the various Member States in which the undertaking has its establishments or the In the main proceedings, and in its obser- group has its undertakings (Article 5(2)(b) vations submitted during the present case, and (c)). 6 the works council maintains that, without the information requested, the employees are unable to activate the procedure to set up the European Works Council.

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tion and would nullify the right which the Article 2(e) of the directive and, on the directive gives to employees to establish a other hand, the employees' representative European Works Council. In other words, organs and, hence, not only the special to withhold such a right from employees delegations as referred to in Article 2(h). would be equivalent to prohibiting access Consequently, the undertaking also has a to any information, although such a prohi- general obligation to inform during the bition is clearly contrary to the intention of preparatory phase preceding the procedure the directive which we are discussing, for specified in Article 4 et seq. of the directive. that would negate the assumptions which underlie this new instrument of European social policy — these assumptions being the right of employees to have access to information for the purpose of establishing the means whereby they are able to parti- cipate in the life of the undertaking. This conclusion is further confirmed by Article 11(1) which, in general terms, sets out the duty to observe 'the obligations laid down by [the directive]' incumbent upon all managements of Community-scale undertakings and all managements of undertakings belonging to Community- scale groups, and also upon all employees' representatives and employees of such establishments or undertakings. The range of persons covered by the directive cannot be restricted therefore only to the principal parties in the procedure to establish the council.

17. But what is the information that can be accessed by employees' representatives who, although recognised at the national level, are not included in the parties acting Since the initial contacts between the in the procedure to establish the European management and the employees of an Works Council? In other words, where undertaking — just like those in the main information or documents are confidential, proceedings — are not part of the proce- is the undertaking still required to make dure governed by the directive, I consider them accessible to the employees even at that at this stage the undertaking is only this stage, prior to the formal initiation of required to communicate information the establishment procedure? Essentially, which is not regarded as confidential for that is the point raised by the court in the the purposes of national law, meaning second and third questions. either public information or information which, under the relevant national law, cannot be claimed as secret. 8 Indeed, Article 11(2) provides that only 'the infor- mation on the number of employees refer- red to in Article 2(l)(a) and (c) is made available by undertakings' to any person concerned, meaning particulars of the number of employees — these being regar- ded as public — for the purpose of judging 18. Clearly, if the information requested is whether the undertaking or the group is of public or in any way accessible to the union Community scale. As regards groups, it is representatives, there can be no doubt not clear how far the reference to the total about the undertaking's obligations to number of employees in all undertakings of

the group necessarily entitles those workers The number of employees and the location to access information on the links among of registered offices are normally details the various undertakings — and in this that are published or at least accessible. case the request for information made by The only details on which there might be the bofrosr' works council is focussed doubt concerning confidentiality relate to precisely on these details. The general the links between undertakings — specifi- scheme of the directive makes it possible, cally the details regarding the type of even in the case of the information which control or relationship between undertak- may be regarded as confidential, to identify ings, and the 'position of control' held by those particulars of a general nature which any one of them over the others in the the management must communicate to the group; such information might be regarded organisers. in national law as confidential.

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the works council, but is not required to company's controlling position within its provide further and more precise details on group, even when those making the the individual links among the entities of request, that is the employees' representa- the group. In other words, if the manage- tives, have not gathered sufficient informa- ment merely indicates that there is a link tion. The court must then establish whether with a number of undertakings, within the such information is confidential and, if so, meaning of and for the purposes of Arti- ensure appropriate treatment. cle 2(1) of the directive, and identifies the controlling undertaking, such information is sufficient for the employees of the various undertakings concerned to act in concert for the purpose of establishing a works council.

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fidential, they have no right to request Where the management is unlawfully production of secret documents. But non- obstructive, interested parties may always disclosure of specific details contained in apply to the courts to secure compliance those documents must be offset by fair with and, hence, proper application of the collaboration afforded by the management directive. The national court must be of the undertaking, subject to the limits satisfied that those documents are confi- stated above. dential and must ensure they are treated properly.

Conclusion

24. In the light of the foregoing, I propose that the Court should reply as follows to the questions referred for a preliminary ruling by the Landesarbeitsgericht Düsseldorf:

(1) Article 11(1) and (2) of Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees is to be interpreted as meaning that the obligation to give the employees' representatives the information needed to activate the procedure to establish a European Works Council applies not only to those undertakings which are found to hold a controlling position within a Community-scale group, under Article 2(1 )(b) of the directive, but on all undertakings situated within Community territory.