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The growth of companies, both nationally and internationally, increasingly leads to questions in our practice about the role of employee participation in these corporate groups. Sometimes employee participation is confronted with decisions made elsewhere in the group or even with decisions where it is unclear where in the group they were made. These decisions can have consequences for the company where the works council is also established, but the question is whether the works council can play a role in this. Solutions have been developed in case law for this.
Attribution always involves a decision made by someone other than the company's own entrepreneur. For example, the parent company makes a decision that directly affects the subsidiary. It is possible that this decision can also be attributed to the subsidiary. This means that at the subsidiary level (for example), advice must be sought from the works council. For attribution, it is required that the management of the subsidiary is involved in the decision-making at the group level by the parent company or that the subsidiary supports this decision-making. The decision of the parent company itself is not subject to advice. There is no attribution of a decision from the parent company to the subsidiary if the decision does not directly intervene in the subsidiary's business and/or there are no social consequences.
Another form is co-entrepreneurship. Here too, it concerns a proposed decision by the parent company that directly intervenes in the subsidiary's business. The difference with attribution is that the parent company can be regarded as a co-entrepreneur, making the parent company equally responsible for careful decision-making.
Two conditions apply to co-entrepreneurship:
There will be no co-entrepreneurship if it concerns a proposed decision by the parent company on a subject that falls outside the powers of the subsidiary's entrepreneur.
Works councils must therefore be alert to the entire decision-making process within a group and must determine where a decision was made to see if there is a role for them. If this decision was made elsewhere than by their own entrepreneur but does intervene in their own business, there may be attribution or co-entrepreneurship. Do you have questions about this? Contact Eveline Bakker.
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