A procedure before the European Court of Justice (C-566/15 Erzberger v. TUI AG) reactivated the debate on transnational representation of workers in MNCs’ boards. In contrast with heated debates surrounding the issue, the Court laconically concluded that a national legislation precluding foreign subsidiaries’ workers from participating in elections to parent-company boards was fully compliant with EU law in its current state, acknowledging countries’ free choice on the reach and form of their co-determination rules.
From a European labour perspective, the judgment could have paved the way for a European conception of workers’ participation rights and sketched some legal effects in the relationship between parent companies and workers in a MNC. Instead, it chose to make a case for Member States’ sovereignty, and not for industrial citizenship and effective labour rights’ protection.
This paper discusses the current situation of co-determination rights under EU law, and the legal and political implications of the judgement. Different national regulations are compared in the treatment they provide to foreign subsidiary workers’ in their access to rights and electoral methods. The findings show great diversity and uncover deep conceptual distinctions across IR systems, but also some innovative solutions. If co-determination rights are to prevail, then EU legislation should offer pan-European solutions and generalise them in multinational groups.
