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On 22 May, a European Works Council agreement was signed within the Lactalis group (30,824 employees within the EU), after the trade unions secured the opening of negotiations by bringing legal action before a French court (see IR Notes 91). According to the European trade-union federation EFFAT, the text of this agreement, which was approved by 11 of the special negotiating body’s 19 members, is “the worst one ever signed”. As far as we are aware, the Lactalis agreement is probably the only one ever to explicitly initiate consultation regarding events that have already happened. Firstly, under the agreement, the Social Dialogue Body’s scope of competence is limited to just two areas: 1° “Restructuring and mergers with an international impact”; 2° “Reduction or closure of a company with a transnational origin, be it structural or short-term”. Moreover, in connection with these two limited areas, the Social Dialogue Body is consulted only on “international issues that have occurred since the previous [annual] meeting”. Even though Directive 2009/38 on European Works Councils grants the parties extensive freedom to decide on the content of an agreement, management still runs the risk that, in the event of a dispute, a domestic court will set aside any clauses that are in breach of the letter and the spirit of the Directive. The question can indeed be asked as to whether a body can be validly consulted after a proposal has already gone ahead. This would probably be regarded as clearly prejudicial to the beneficial effects of the directive.
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