1. ETUC stressed in its last Congress in Prague in 2003 that a high level of worker participation should be guaranteed in the European Company and that there should be no possibility of opting out. Following this line ETUC fully endorses the final compromise, which was reached in respect of the European Company Directive concerning participation rights. That is why ETUC urges all EU institutions to be fully in accordance with this historic compromise regarding all legal provision in respect of cross-border company structures. Therefore, the 10th Directive on cross-border mergers, as well as the envisaged 14th Directive on the transfer of registered offices, must not fall back behind this compromise.

 2. Furthermore, workers’ participation at board level is an important element of corporate governance systems existing in several Member States and could be a real asset in terms of corporate dynamics and the company board’s capacity to aim at long-term value creation. ETUC can, therefore, only endorse the present proposal for a directive on the condition that it avoids any reduction but, instead, fully reflects the workers’ rights to participation as well as to information and consultation.

 3. While ETUC welcomes that the draft Directive on cross-border mergers embodies a provision (article 14) aimed at safeguarding the rights to board level participation, which the workers of the companies being dissolved by the merger could exercise before the merger, it urges the EU institutions that there should be no fall-back behind the level of protection already reached in the Directive concerning participation in the European Companies (SE-Directive 2001/86/EC).

That is why it is of utmost importance that article 14 should be completed in such a way as:

  to cover not only the case where the national law applicable to the company created by the merger does not impose compulsory worker participation but also the case where that law does provide for a weaker system of worker participation as well;

  to cover all types of mergers as meant in article 1 under a, b and c;

  to provide that, in all cases covered, all the workers of the company created by the merger, whether or not employed in the Member State of that company’s seat, can take part in the system of participation on an equal footing.

 4. The draft Directive should recognise the role of the workers’ representatives of the companies taking part in a merger (in the sense of the Directive) throughout the decision-making process with regard to a planned merger on the basis of the Collective Redundancies Directive, the Transfer of Undertakings Directive, the General Framework on Information and Consultation Directive and the EWC Directive or, if it is guaranteeing a higher level of protection, the Member States’ legislation implementing them. Furthermore,

  the information about the draft terms of the merger should be completed with information with regard to the workers’ rights to information and consultation in the company created by the merger as well as their other rights as far as not yet covered by the Transfer of Undertakings Directive (e.g. pension schemes) and should also be delivered to the workers (articles 3 and 4).

  the expert report should also be made available to the workers’ representatives of the companies taking part in the merger (article 5).

 5. As in the case of other labour law directives it should be stated explicitly that implementation of this Directive does not justify any reduction in the national level of protection (non-regression clause) but allow for better provisions in national law (most favourable clause).

 6. There was no consultation of the Social Partners in the framework of Article 138 EC. That is why ETUC asks to be properly consulted.

 7. It is disappointing that the European Employers’ organisation UNICE has positioned itself against the provision with regard to the safeguarding of workers’ participation of the Directive proposal and, at this stage, more in general against any participation model. In other words, UNICE is leaving the compromise reached in respect of the EU Company Directive, regarding participation rights. On the contrary, the experience confirms that the enterprises which have integrated social and community interests in their management agenda, and which regard the representatives of the employees’ interests have an unquestionable added value for better governance. This will positively distinguish European companies, within the framework of global competition, from enterprises originating in other parts of the worlds.

 8. Concerning the envisaged Coordination Directive relating to transfers of registered offices, it is of utmost importance that the same rules apply as in the case of the European Company (SE) Directive 2001/86/EC in respect of safeguarding the workers’ participation. Transfers should not be used as a means to reduce, undermine or even get rid of acquired workers’ rights.