Recital (25)

Undertakings with an agreement on the transnational information and consultation of employees concluded before 23 September 1996, that is to say prior to the date of application of Council Directive 94/45/EC, are exempted from the application of the obligations arising from Directive 2009/38/EC. The employee information and consultation bodies established under such agreements have been concluded and continue to operate outside the scope of Union law. Directive 2009/38/EC does not provide the employees in the exempted undertakings with the possibility to request an establishment of a European Works Council under that Directive. However, for reasons of legal clarity, equal treatment and effectiveness, employees and their representatives in all Community-scale undertakings or Community-scale groups of undertakings should, in principle, have the right to request the establishment of a European Works Council. Almost 30 years after a legislative framework setting minimum requirements for the transnational information and consultation of employees was established at Union level, those reasons prevail over the considerations of continuity for pre-existing agreements which initially motivated the exemption. That exemption should therefore be deleted, without prejudice to the legal status of such agreements, which continue to be governed by the applicable national rules. The initiation and conduct of negotiations for the establishment of European Works Councils in undertakings with such agreements should be subject to the procedure provided for in Directive 2009/38/EC, while the period after which the subsidiary requirements come into force should be reduced from three to two years, in line with the period applicable to the adaptation of existing European Works Council agreements.