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The management of Lactalis, the world’s leading producer of dairy products, has been issued with a summons, by the European trade-union federation Effat and nine affiliated national trade-union federations, to appear at a hearing before the Laval Regional Court in France, on 26 March. The trade unions accuse the group, which employs 35,000 people in Europe, of refusing to set up a European Works Council, despite repeated requests submitted to the management in 2014 and 2016. In a reply sent to Effat in July 2017, which is quoted in the summons issued by the unions’ barrister, Maître Rachid Brihi, Lactalis management takes the view that Effat has “illegitimately taken advantage of a power to represent the employees of our group or of a trade union mandate […]", whereas in fact "the national federations […], either directly or via Effat, are not empowered to initiate a request to set up a special negotiation group, in the light of European legislation or of the French Employment Code". The unions intend to demonstrate that their requests are admissible, and that Lactalis should therefore be ordered to establish a European Works Council, which should have been set up no later than September 2017, i.e. six months after the latest request submitted to management. This dispute will serve a purpose as it will enable some of the terms of directive 2009/38 on European Works Councils to be clarified. The directive states that a company’s management must embark on negotiations with a view to setting up a European Works Council “at the written request of at least 100 employees or their representatives in at least two undertakings or establishments in at least two different Member States" (Article 5 of the directive). So, who are these “workers’ representatives"? In light of the principle of subsidiarity, the diversity of employment relations models within the EU and the fact that the Union has no powers to act in the field of employment relations (Article 153.5 of the treaty), the directive indicates that “‘employees’ representatives’ means the employees’ representatives provided for by national law and/or practice" (Article 2.1 d). This provision makes it necessary to examine the legislation of each of the countries of origin of the trade-union federations seeking the creation of a European Works Council. For example, the French Employment Code stipulates that the members of the special negotiation group or the European Works Council shall be appointed by the trade unions from among their “elected representatives holding a seat on works councils or committees or their trade union representatives within the company or group", based on the results of the latest workplace-level elections. Spanish legislation is more explicit and specifies that "the status of workers’ representatives corresponds to that of trade union representatives, works council representatives and workforce delegates". Likewise in Italy, the application may be submitted by "trade unions that have signed the national collective agreement that applies to the company or group of companies concerned". Will the courts take this information into account and recognise that national trade-union federations are lawfully entitled to seek the creation of a European Works Council and to take legal action to achieve this goal? This case will also show to what extent a European trade-union federation, such as Effat, can apply on behalf of its affiliated national trade-union federations for negotiations to be initiated.
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