9.4 Final conclusion

Under European law, employees have been given a role if the company in whose undertaking they are working seeks to merge across borders. Though, the European rules are not always easy to apply. In terms of workers involvement in the undertaking, most of the obstacles can be overcome within the current system. This is a result of the way in which the European legislator have regulated this form of involvement where there is a cross-border merger proposal. The European legislator joined a system which exists independently of cross-mergers as such. This approach makes that obstacles can simply be solved by hooking onto the solutions already in place for domestic mergers. This form of workers involvement in the undertaking is given its due in the manner the European legislator envisaged. The rights enables the Dutch workers to affect the decision-making, without the decision-making process needlessly being delayed.

A different picture emerges for the employee participation rights at company level. My research demonstrates that problems come up in applying the criteria of Article 16 Tenth Directive and in working out the details of the result to which Article 16 points. Briefly stated, these problems can be traced to four factors: (i) the text of Article 16 is ambiguous in many respects; (ii) the approach to the idea of participation revolving around the number and form of the rights causes the application of Article 16’s criteria to the idiosyncrasies of national participation law to be tricky; (iii) Article 16 deals with employee participation as a separate matter from company law and (iv) implementation (at least in the Netherlands, Germany and Belgium – the focus of this research) has occurred based on national perspectives on the way employee participation should be dealt with.

It is not likely that Article 16 Tenth Directive will be amended in the near future. At this point, priority might best be given to properly implementing the more or less faulty options which Article 16 offers. Accordingly, in my research, I have sought solutions to the problems observed within the existing system. This is quite possible when it comes to the application of Article 16 Tenth Directive prior to the merger. The criteria in Article 16 must not be applied too strictly. The notion of protection affords the criteria the flexibility to take into account the typical aspects of Dutch participation law within the current system. The principle of freedom of establishment does not preclude this. This solution does not provide an answer, however, to every conundrum. Whether the right to speak constitutes European participation is debatable. This has to do with the incorrect manner in which the Dutch legislator has implemented Article 16’s second exception. Dutch law needs to adjust this exception in accordance with European law. It makes sense for the Dutch legislator to explicitly state that the right to speak falls under the concept of European participation. That would provide guidance to the management of Dutch companies as to how they should handle this complex subject. Further, it would reduce the risk that foreign authorities will wrongly fail to consider the Dutch right to speak in their review of whether the participating companies applied Article 16 Tenth Directive properly.

The research into the manner in which a transnational participation system works within the company created by the merger suggests a less optimistic picture. Particularly in those instances in which the statutory standard rules determine the solution, it does not always appear possible to give the transnational participation system a position which does justice to the protective notion on which Article 16 Tenth Directive rests. The participating companies may curtail the duties and rights of the members to whose appointment the participation rights pertains. However, the protection of existing participation rights does not extend so far that the companylaw environment within which the participation rights applied prior to the merger will become part of the system set forth in Article 16 Tenth Directive. In addition, a transnational participation system results in a ‘dilution’ of the Dutch participation rights. Dutch employees must share their rights after the merger with foreign employees who will flesh out the participation rights accorded to them in their own way. There is no solution to be found for these problems within the present system.