Social partners in Belgium have reached agreement on the transposition of the SE directive on 6 October 2004.
There is no general right in Belgium for employees to be represented at board level in companies. Both unions and employers were involved in negotiating how the directive was to be implemented in Belgium and seem satisfied with the outcome.
There is no system of board level representation for employees in the private sector in Belgium. And in the public sector there are only a very few companies where employees are present at board-level.
Both unions and employers were fully involved in the process of implementing the directive in Belgium as the directive was transposed through a collective agreement between the two sides (see section on form of transposition). Although this involved detailed negotiations, in which clear differences emerged, there is no evidence to suggest that either side was unhappy with the outcome, or that there was substantial public interest in the negotiations.
Directive was implemented through a collective agreement, implemented by a royal decree, and followed by subsequent legislation to give legal force to a number of issues which the agreement could not deal with. The agreement was reached in time for the October 2004 deadline but other legislation came later.
Belgium was unusual in that the directive on employee involvement in European companies was in the first instance implemented through a collective agreement. The agreement, Collective Agreement No. 84, was reached in the National Labour Council between the three main Belgian union confederations and the employers associations and it was signed on 6 October 2004, just before the 8 October deadline, by which point the directive was supposed to come into force. However, the royal decree that made the collective legally binding was only signed on 22 December 2004. The title of the royal decree is: Royal Decree implementing
Collective Labour Agreement No 84 of 6 October 2004, concluded within the National Labour Council, concerning the involvement of employees in the
European company (Arrêté royal rendant obligatoire la convention collective de travail n° 84 du 6 octobre 2004, conclue au sein du Conseil national du Travail, concernant l'implication des travailleurs dans la société européenne– in French andKoninklijk besluit waarbij algemeen verbindend wordt verklaard de collectieve arbeidsovereenkomst nr. 84 van 6 oktober 2004, gesloten in de Nationale Arbeidsraad, betreffende de rol van de werknemers in de Europese vennootschap–in Flemish).
In addition, two further laws, one dealing primarily with confidentiality, the protection of employee representatives and supervision and the sanctions, the other with the judicial process, were passed on 10 august 2005 and 17 September 2005 respectively. Because of the involvement of the courts, these were issues which could not be regulated by the agreement.
A separate royal decree covering the changes necessary to adapt Belgian company law to the Regulation on European companies was passed on 1 September 2004 and came into effect on 8 October 2008.
Special negotiating body (SNB)
Belgian members of the SNB are chosen initially by the employee members of works council and if this does not exist by a range of other bodies. However, as works council employee members can only be nominated by the unions, in practice the unions have the central role.
Belgian SNB members are, in the first instance chosen “by and from among the worker representatives who are members of the works councils of the companies”. Only if there are no works councils, are they chosen, first by the employee members of the health and safety committees and then by the trade union delegations in the companies involved. If none of these bodies exist they are elected by the employees.
In practice, this gives the central role to the unions, as only the unions can nominate candidates to the works councils and the health and safety committees. Works councils (CE – French, OR – Flemish) should be set up in companies with at least 100 employees, and health and safety committees (CPPT – French, Comité PB – Flemish) in companies with at least 50 employees. The thresholds for setting up trade union delegations, which as the name suggests are purely trade union bodies, depend on the legally binding agreement reached for the particular sector. However, there are wide variations, with some agreements imposing no thresholds and others setting them at 10, 50 or 75 employees.
The Belgian legislation also stipulates that a reserve list of SNB members – one from each member state – should be drawn up (Article 9).
Belgian legislation specifically provides for the presence of external union representatives from Belgium on the SNB.
The section of the legislation on the choice of the Belgian members of the SNB explicitly states that “it may include a representative of the representative organisations of the employees [the unions] whether or not he or she is employed by a participating company” (Article 9).
Funding limited to a single expert.
The Belgian legislation on funding states that funding is “limited to a single expert, unless the parties agree otherwise” (Article 17).
Standard rules under the fallback procedure
Same arrangements apply as for SNB members – members are chosen initially by the works council and then by other bodies, but in practice the unions have the key role.
The same arrangements which apply for the choice of Belgian members of the SNB also apply for the choice of Belgian members of the SE representative body – known as the representative body (l'organe de representation – French, het vertegenwoordigingsorgaan - Flemish) in the Belgian legislation. In other words, they are chosen in the first instance by the worker representatives on the works councils, and if there are no works councils, are they chosen, first by the employee members of the health and safety committees and then by the trade union delegations in the companies involved. Only if none of these bodies exist they are elected by the employees. In practice, this gives the central role to the unions (see section on SNB). However, in contrast to the rules on SNB membership, the arrangements for choosing members of the representative body do not allow for the appointment of individuals who are not employees (Article 28).
The company should bear the expenses of the representative body, including one expert.
The company is obliged to cover the costs of the representative body. These specifically include organising meetings, interpreting services, accommodation and travel expenses of members (Article 43), although the finding “shall cover one expert only” (Article 41). There is also a “collaboration protocol”, which, among other things, regulates “budgetary rules” (Article 54).
Arrangements for the election of employee board members are the same as those for the representative body – members are chosen initially by the works council and then by other bodies, but in practice the unions have the key role.
Belgian employee representatives at board level are to be chosen in the same way as members of the representative body. In fact the text states only that they should be chosen “in compliance with Article 28 of this agreement” – the article regulating the membership of the representative body. This means that they are chosen in the first instance by the worker representatives on the works councils, and if there are no works councils, are they chosen, first by the employee members of the health and safety committees and then by the trade union delegations in the companies involved. Only if none of these bodies exist they are elected by the employees. In practice, this gives the central role to the unions (see section on SNB). And it means that, in contrast to the rules on SNB membership, the arrangements for choosing members of the representative body do not allow for the appointment of individuals who are not employees (Article 48).
Misuse of procedures and structural change
The issue of misuse of procedures is not addressed in the Belgian collective agreement, nor in the supporting legislation.
There is nothing in either the collective agreement or the legislation that makes it binding, or supports it in other ways, which covers the situation where procedures are misused to deprive employees of their right to participate in company decisions.
Structural changes in the SE are not covered in the Belgian legislation.
There is no automatic right to renegotiate the agreement if there are changes in the structure of the SE, even if these are fundamental and occur immediately after the agreement has been reached, as this issue is not covered in the Belgian legislation.
The implementation of the directive was negotiated between unions and employers, rather than being decided upon by the government, as in most other states. Although there were a number of points at issue between the unions and employers, the final result was a joint text, which seems to have broadly satisfied both sides.
Unions and employers negotiated the agreement implementing the directive in Belgium in the National Labour Council (CNT – French, NAR – Flemish), initially in a technical working group. Some of the key points at issue were whether or not external union officials could be members of the SNB (finally conceded by the employers), the arrangements for experts (only one paid for, unless mutually agreed) and changes to the SNB structure if the SE changes in the course of the negotiations (agreed). The final agreement was signed by both sides and both seem broadly happy with the outcome.
L. Fulton (2008) Anchoring the European Company in National Law - Country Overviews (online publication, prepared for worker-participation.eu)
Luc Triangle (CCMB, EMF)
The regulation on the European Company Statute was adopted by ‘Arret Royale’ on 14 May 2004. Transposition of the SE Employee Involvement Directive will take place in Belgium by means of a collective agreement between the employers’ federations and the trade unions. The negotiations will be organised by the National Labour Council, first within the framework of a technical workgroup, then at the National Labour Council’s general meeting. At present (10 June 2004), the negotiations in the technical workgroup are almost completed and the first draft of the collective agreement is ready.However, a number of fundamental points of disagreement remain.
First, the Belgian trade unions insist on trade union officials being allowed to stand as employee representatives in meetings of the Special Negotiating Body (SNB), based on positive experiences in the negotiations on European Works Councils: the trade unions made a major contribution to improving the agreements. The Belgian employers’ federations are against this, despite the fact that the directive allows it. For the trade unions, this represents what they call a “breakpoint”.
Another point of disagreement is the possibility of drawing up a list of substitutes for the Representative Body.
Agreement was reached at the final meetings of the technical workgroup on the following, among other things: the employer will cover the expenses of one expert, although more experts can be covered by mutual agreement; the SNB shall be reconstituted in the case of major changes in company structure; there shall be a written report if exceptional circumstances arise.
Another technical workgroup is planned for 24 June. This will probably be the last. Unresolved issues will then be forwarded to the main parties and representatives of the social partners (political level) in the National Labour Council who will make the relevant decisions. Political agreement between the social partners should be reached by the end of June 2004.
Luc Triangle (CCMB, EMF)
1. Transposition will be done by collective agreement.
2. A Working Group has been established at the level of the National Labour Council. Composition: representatives from the national employers’ organisation, VBO-FEB, and the trade unions (ACV-CSC, ABVV-FGTB,…)
3. The Working Group started in November 2003. There have been five meetings so far.
4. The ‘opt-out’ principle will not be used in Belgium.
5. In the Working Group’s activities frequent reference is made to the work done by the European group of experts.
6. So far, the focus has been on the following articles of the SE Directive:
– art 2: definitions;
– art 3: creation of the SNB.
7. No agreement has yet been reached on:
– the possibility of trade union officials serving as employee representatives;
– adjustment of SNB composition if SE structure changes in the course of SNB negotiations;
– number of experts.