Workers on the Board of the European Company?

Abstract

The European Company Statute and its accompanying Directive on worker involvement in the European Company (SE) hold out the prospect of employee influence over the composition of the board of directors of the SE and even of representation on it. This article explores a number of issues which arise in the course of assessing whether that potential is likely to be realised. First, there is the question of whether the SE, which is an optional form of incorporation, will prove attractive to the managements of large companies. Second, the Directive normally requires board level participation in the SE only where this was required of a substantial proportion of the workforce who are to be employed in the SE. How does this ‘before and after’ principle work? How does the Directive deal with situations where only a part of the workforce was previously subject to mandatory worker participation? Where there is a choice between not permitting the SE to be used as an escape mechanism from national requirements and imposing participation on workers and management who were not previously subject to it, how is that choice made? Finally, how far may the employee representatives either unilaterally or in agreement with management choose something different from what the ‘before and after’ principle would require?

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