Introduction

1. After years of discussion and countless delays, the European Council finally reached a compromise on 20 December 2000 regarding the creation of a new Community legal entity, the Societas Europaea (‘SE’). Until that time, the issue of employee involvement had divided the Member States between those who supported a system of employee participation and those who favoured a system based on mere information and consultation.

To resolve this impasse, a group of experts, led by Etienne Davignon, was appointed to examine the various possibilities for employee involvement in the new European company. Many of the solutions proposed by the experts were incorporated in the compromise reached by the Member States.

The issue of employee involvement was eventually solved by recourse to a ‘before and after’ principle, pursuant to which an SE formed from existing companies will strive to preserve, insofar as possible, their systems and rules for employee involvement. Supplementing Regulation No. 2157/2001 (the ‘Regulation’), Directive 2001/86/EC (the ‘Directive’) was published on 10 November 2001, thereby officially condoning and codifying the solution reached by the Member States on employee involvement.

The object of the Directive is to ensure that the establishment of an SE does not entail the disappearance or reduction of practices of employee involvement existing within the companies participating in the establishment of an SE. This object should be pursued through the creation of an employee representation body or rules for information and consultation.

The purpose of the present report is to examine the system for employee involvement created by the Directive. To this end, we first discuss the scope and entry into force of the Directive.