It is obvious that EWCs are likely to become cognisant of confidential information. Various kinds of information may be of crucial importance for the company’s interests and performance and their dissemination should be protected in order to avoid the EWC being the source of ‘leaks’, causing losses for the company. On the other hand, if an EWC is to be taken seriously it is imperative that it be treated as an insider with an insight into the company’s performance, financial and production reports, and so on, and all data concerning the functioning of its undertakings. These circumstances have the potential for a conflict of interests.

For the reasons mentioned above, in Art. 8 of the Directive it is stipulated that the information conveyed to the EWC or experts as explicitly confidential must not be passed on by EWC members or experts. Individual Member States were granted a rather wide margin of discretion as regards setting rules for confidentiality.

On the other hand, EWC practice reveals that managements sometimes abuse the confidentiality clause, so hindering the flow of information both to ordinary employees and to external experts assisting the EWC (for example, trade union experts). Cases of such conduct on the part of the central management are extremely difficult to litigate on the grounds of Art. 9 of the Directive, namely the obligation to work in a spirit of cooperation with due regard to the reciprocal rights and obligations of the parties. It can be argued that the abuse of the confidentiality clause in extreme cases can be countered with an appeal to a labour court on the basis of, for example, Art. 9 of the Directive. Nonetheless, lawsuits are costly, represent the last resort for an EWC and are by no means advisable as a universal instrument.