Recital (6)

Evidence shows that legal uncertainty regarding the concept of transnational matters has led to differences in interpretation and disputes. In order to improve legal certainty and reduce the risk of such disputes, it is necessary to clarify the concept of transnational matters. To that end, it is appropriate to clarify that Directive 2009/38/EC not only covers cases where measures considered by the management of an undertaking or group of undertakings can reasonably be expected to affect workers of that undertaking, of that group, or of any establishment of that undertaking or group, in more than one Member State, but also cases where such measures can reasonably be expected to affect such workers in only one Member State and the consequences of those measures can reasonably be expected to affect such workers in at least one other Member State. Such clarification is necessary in light of cases where an undertaking envisages measures, such as lay-offs, redundancies, the allocation of production activities or the outsourcing of activities, which explicitly target establishments in only one Member State but which can reasonably be expected to have consequences affecting workers of that undertaking, of that group, or of any establishment of that undertaking or group, in another Member State, for instance due to changes in the cross-border supply chain or in production activities. The concept of transnational matters covers measures which could affect employees in a substantial and not in a merely trivial manner and which do not concern only individual employees or ordinary operational decisions. To that end, it should be clarified that the scope of the potential effects of transnational issues on the workforce and the level of management involved are to be taken into account to determine whether a matter falls within the competence of a European Works Council.