The revision of the EWC Directive 2009/38 has come to a close with an agreement reached on 21 May as a result of the trilogue (between European Parliament, Commission and Council). The draft agreement for a revised Directive (‘the Revision’ or ‘the Revised Directive’) was published on 28 May 2025; it is in the process of being formally approved by the Council and the Parliament and no further changes are expected.

1.  Many commentators appear to be relieved with the result. At the outset, in February 2023 with the Radtke Report of the European Parliament, the business community was horrified by the prospect of a revised Directive with remedies and sanctions mechanisms which would fundamentally change the existing model of cross-border EU level information/consultation towards a bargaining forum with threats of injunctive relief, draconic penalties and harsh sanctions.   The Parliament held on to those concepts throughout the trilogue, but did not prevail. 

Does this mean that the Revision is like the elephant having given birth to a mouse? We do not necessarily believe so, with a closer look at the changes it brings to the current legal framework. These changes require attention and in some cases action as they affect - sometimes quite fundamentally - both existing EWC agreements (any of the current about 1,200 agreements) as well as new to be negotiated EWC agreements. 

2. The most important change for those companies which operate an ‘old’ EWC is the fate reserved for the so-called legacy agreements (the ‘Article 13’ pre-Directive agreements concluded before end September 1996[1]), which still account for over 30% of currently active EWC agreements.   Under the Revision, a process for negotiation of a proper EWC agreement can be launched any time (under the basic rules of a central management initiative or the formal request from over 100 employees from two member states), but the deadline to complete the negotiation is limited to two years (instead of 3 years) from the launch date onwards.  So, there is no automatic abolishment of such legacy agreements as the Parliament advocated. Failure to reach agreement within the above deadline leads to the application of the (new) subsidiary requirements (see below).

On the face of it, businesses with such legacy agreements thus appear to have 3 possible courses of action, i.e. (i) wait for the Revised Directive to come into effect and await the request for negotiation of a proper EWC agreement (to be concluded by end 2029, see below), or (ii) pro-actively start negotiations for an update of the existing pre-Directive agreement to accommodate the rules of the Revised Directive and preserve absolute continuity in cross-border EU level I/C (without strict deadline), or (ii) most likely the least obvious option, give termination on the current agreement and subsequently start negotiations for a proper EWC agreement (with the 3-year deadline), most probably then applying the new rules of the Revised Directive (see below).    

3. Similarly, for current EWC agreements (governed by Directive 94/45 or Directive 2009/38), the Revision requires that these agreements be amended on several points, not automatically, but through negotiation at the request of the EWC or of at least 100 employees from at least two EU jurisdictions, also within a time limit of two years (as for the legacy agreements).  These amendments are only required to the extent the points at stake are not yet covered contractually, notably