sou · GSB385 · 2005-01-01 00:00:00 — (21) However, on a transitional basis, Member States in which there is no established statutory system of infor- mation and consultation of employees or employee representation should have the possibility of further restricting the scope of the Directive as regards the numbers of employees. (22) A Community framework for informing and consulting employees should keep to a minimum the burden on undertakings or while ensuring the effec- tive exercise of the rights granted. (23) The objective of this Directive is to be achieved through the of a general framework comprising the principles, definitions and arrangements for informa- tion and consultation, which it will be for the Member States to comply with and adapt to their own national situation, ensuring, where appropriate, that management and labour have a leading role by allowing them to define freely, by agreement, the arrangements for informing and consulting employees which they consider to be best suited to their needs and wishes. (24) Care should be taken to avoid affecting some specific rules in the field of employee information and consulta- tion existing in some national laws, addressed to under- takings or which pursue political, profes- sional, organisational, religious, charitable, educational, scientific or artistic aims, as well as aims involving infor- mation and the expression of opinions. (25) Undertakings and should be protected against disclosure of certain particularly sensitive infor- mation. (26) The employer should be allowed not to inform and consult where this would seriously damage the under- taking or the or where he has to comply immediately with an order issued to him by a regulatory or supervisory body. (27) Information and consultation imply both rights and obligations for management and labour at undertaking or level. L 80/31 (28)Administrative or judicial procedures, as well as sanc- tions that are effective, dissuasive and proportionate in relation to the seriousness of the offence, should be applicable in cases of infringement of the obligations based on this Directive. (29)This Directive should not affect the provisions, where these are more specific, of Council Directive 98/59/EC of 20 1998 on the approximation of the laws of the Member States relating to collective redundancies (1) and of Council Directive 2001/23/EC of 12 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (2). (30)Other rights of information and consultation, including those arising from Council Directive 94/45/EEC of on the of a or a procedure in Community-scale undertakings and Community-scale groups of undertak- ings for the purposes of informing and consulting employees (3), should not be affected by this Directive. (31)Implementation of this Directive should not be sufficient grounds for a reduction in the general level of protection of workers in the areas to which it applies, 1.The purpose of this Directive is to establish a general framework setting out minimum requirements for the right to information and consultation of employees in undertakings or within the Community. 2.The practical arrangements for information and consulta- tion shall be defined and implemented in accordance with national law and industrial relations practices in individual Member States in such a way as to ensure their effectiveness. 3.When defining or implementing practical arrangements for information and consultation, the employer and the employees' representatives shall work in a spirit of cooperation and with due regard for their reciprocal rights and obligations, taking into account the interests both of the undertaking or and of the employees. (1) OJ L 225, , p. (2) OJ L 82, 22.3.2001, p. (3) OJ L 254, 30.9.1994, p. Directive as amended by Directive 97/ 74/EC (OJ L 10, , p. For the purposes of this Directive: (a)undertaking means a public or private undertaking carrying out an economic activity, whether or not oper- ating for gain, which is located within the territory of the Member States; (b)means a unit of business defined in accord- ance with national law and practice, and located within the territory of a , where an economic activity is carried out on an ongoing basis with human and material resources; (c)employer means the natural or legal person party to employment contracts or employment relationships with employees, in accordance with national law and practice; (d)employee means any person who, in the concerned, is protected as an employee under national employment law and in accordance with national practice; (e)employees' representatives means the employees' represen- tatives provided for by national laws and/or practices; (f)information means transmission by the employer to the employees' representatives of data in order to enable them to acquaint themselves with the subject matter and to examine it; (g)consultation means the exchange of views and establish- ment of dialogue between the employees' representatives and the employer. This Directive shall apply, according to the choice made by Member States, to: (a)undertakings employing at least 50 employees in any one , or (b)employing at least 20 employees in any one . Member States shall determine the method for calculating the thresholds of employees employed. 2.In conformity with the principles and objectives of this Directive, Member States may lay down particular provisions applicable to undertakings or which pursue directly and essentially political, professional organisational, religious, charitable, educational, scientific or artistic aims, as well as aims involving information and the expression of opin- ions, on condition that, at the date of entry into force of this Directive, provisions of that nature already exist in national legislation. 3.Member States may derogate from this Directive through particular provisions applicable to the crews of plying the high seas. L 80/32 Practical arrangements for information and consultation 1.In accordance with the principles set out in Article 1 and without prejudice to any provisions and/or practices in force more favourable to employees, the Member States shall deter- mine the practical arrangements for exercising the right to information and consultation at the appropriate level in accordance with this Article. 2.Information and consultation shall cover: (a)information on the recent and probable development of the undertaking's or the 's activities and economic situation; (b)information and consultation on the situation, structure and probable development of employment within the undertaking or and on any anticipatory measures envisaged, in particular where there is a threat to employment; (c)information and consultation on decisions likely to lead to substantial changes in work organisation or in contractual relations, including those covered by the Community provi- sions referred to in Article 9(1). 3.Information shall be given at such time, in such fashion and with such content as are appropriate to enable, in partic- ular, employees' representatives to conduct an adequate study and, where necessary, prepare for consultation. 4.Consultation shall take place: (a)while ensuring that the timing, method and content thereof are appropriate; (b)at the relevant level of management and representation, depending on the subject under discussion; (c)on the basis of information supplied by the employer in accordance with Article 2(f) and of the opinion which the employees' representatives are entitled to formulate; (d)in such a way as to enable employees' representatives to meet the employer and obtain a response, and the reasons for that response, to any opinion they might formulate; (e)with a view to reaching an agreement on decisions within the scope of the employer's powers referred to in para- graph 2(c). Information and consultation deriving from an agreement Member States may entrust management and labour at the appropriate level, including at undertaking or level, with defining freely and at any time through negotiated agreement the practical arrangements for informing and consulting employees. These agreements, and agreements existing on the date laid down in Article 11, as well as any subsequent renewals of such agreements, may establish, while respecting the principles set out in Article 1 and subject to conditions and limitations laid down by the Member States, provisions which are different from those referred to in Article 4. 1.Member States shall provide that, within the conditions and limits laid down by national legislation, the employees' representatives, and any experts who assist them, are not authorised to reveal to employees or to third parties, any information which, in the legitimate interest of the undertaking or , has expressly been provided to them in confi- dence. This obligation shall continue to apply, wherever the said representatives or experts are, even after expiry of their terms of office. However, a may authorise the employees' representatives and anyone assisting them to pass on confidential information to employees and to third parties bound by an obligation of confidentiality. 2.Member States shall provide, in specific cases and within the conditions and limits laid down by national legislation, that the employer is not obliged to communicate information or undertake consultation when the nature of that information or consultation is such that, according to objective criteria, it would seriously harm the functioning of the undertaking or or would be prejudicial to it. 3.Without prejudice to existing national procedures, Member States shall provide for administrative or judicial review procedures for the case where the employer requires confidentiality or does not provide the information in accord- ance with paragraphs 1 and 2. They may also provide for procedures intended to safeguard the confidentiality of the information in question. Protection of employees' representatives Member States shall ensure that employees' representatives, when carrying out their functions, enjoy adequate protection and guarantees to enable them to perform properly the duties which have been assigned to them. Member States shall provide for appropriate measures in the event of non-compliance with this Directive by the employer or the employees' representatives. In particular, they shall ensure that adequate administrative or judicial procedures are available to enable the obligations deriving from this Directive to be enforced. L 80/33 Member States shall provide for adequate sanctions to be applicable in the event of infringement of this Directive by the employer or the employees' representatives. These sanctions must be effective, proportionate and dissuasive. Link between this Directive and other Community and national provisions This Directive shall be without prejudice to the specific information and consultation procedures set out in Article 2 of Directive 98/59/EC and Article 7 of Directive 2001/23/EC. 2.This Directive shall be without prejudice to provisions adopted in accordance with Directives 94/45/EC and 97/74/EC. 3.This Directive shall be without prejudice to other rights to information, consultation and participation under national law. 4.Implementation of this Directive shall not be sufficient grounds for any regression in relation to the situation which already prevails in each and in relation to the general level of protection of workers in the areas to which it applies. Notwithstanding Article 3, a in which there is, at the date of entry into force of this Directive, no general, permanent and statutory system of information and consulta- tion of employees, nor a general, permanent and statutory system of employee representation at the workplace allowing employees to be represented for that purpose, may limit the application of the national provisions implementing this Directive to: (a)undertakings employing at least 150 employees or estab- lishments employing at least 100 employees until 23 2007, and (b)undertakings employing at least 100 employees or estab- lishments employing at least 50 employees during the year following the date in point (a). 1.Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive not later than 23 2005 or shall ensure that management and labour introduce by that date the required provisions by way of agreement, the Member States being obliged to take all necessary steps enabling them to guarantee the results imposed by this Directive at all times. They shall forthwith inform the Commission thereof. 2.Where Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States. Review by the Commission Not later than 23 2007, the Commission shall, in consultation with the Member States and the social partners at Community level, review the application of this Directive with a view to proposing any necessary amendments. This Directive shall enter into force on the day of its publica- tion in the . This Directive is addressed to the Member States. Done at , 11 2002. J. PIQUÉ I CAMPS Joint declaration of Parliament, the Council and the Commission on employee representation With regard to employee representation, Parlia- ment, the Council and the Commission recall the judgements of Court of of 8 1994 in Cases C-382/92 (Safeguarding of employees rights in the event of transfers of undertakings) and C-383/92 (Collective redundancies).