"This article examines Directive 2009/38/EC concerning the establishment of a European Works Council (EWC) or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees, approved by the Parliament and the Council on 6 May 2009. Starting from the revision of the 1994 Directive, this article concentrates on the innovative aspects and ‘omissions' in the new Directive. The main aims of the new Directive are the determination of the powers of the EWC, now limited to ‘transnational issues'; the definitions of information and consultation; and the specification of preliminary information in the setting up of an EWC – in particular, information concerning the structure of the business (or group) and the number of employees. The most significant ‘omission' in the new Directive is the lack of any reference to the negotiating activity of the EWC, that as a general rule has given rise to forms of ‘transnational collective bargaining' and which, in recent years, has been the subject of numerous studies and research initiatives promoted by the European Commission. In conclusion, it is argued that the question of the (uncertain) legitimacy of EWCs as negotiating partners – and of the possible regulation of the forms of ‘transnational collective bargaining' – remains complex and difficult to resolve."

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