COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and the Council establishing a general framework for informing and consulting employees in the European Community

1998/0315 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and the Council establishing a general framework for informing and consulting employees in the European Community

1- BACKGROUND

Date of transmission of the proposal to the European Parliament and the Council (COM(1998)612 final - 1998/0315 (COD)): // 17.11.1998.

Date of the opinion of the Economic and Social Committee: // 07.07.1999.

Date of the opinion of the European Parliament at first reading: // 14.04.1999.

Date of transmission of the amended proposal: // 23.05.2001.

Date of adoption of the common position: // 23.07.2001.

2- AIM OF THE COMMISSION'S PROPOSAL

To complement legal provisions in force at national and Community level concerning employee information and consultation.

3- COMMENTS ON THE COMMON POSITION

The common position of the Council contains three types of amendments relating to the Commission's initial proposal: those resulting automatically from the change in the legal basis, those designed to incorporate into the text a number of European Parliament amendments and, finally, those resulting from the debates within the Council. In the points set out below, reference is made to the amendments adopted by the European Parliament but not included in the Council's common position.

3.1. Amendments arising from the change in the legal basis

At various points in the text, references to Article 2(2) of the Agreement on Social Policy attached to the Protocol on Social Policy annexed to the Treaty establishing the European Community have been replaced by references to Article 137(2) of the Treaty establishing the European Community. Other changes have been made which automatically result from this amendment.

3.2. Amendments adopted by the European Parliament, accepted by the Commission and included in the common position

The common position specifically includes a number of amendments adopted by the European Parliament at first reading which the Commission had itself endorsed and incorporated into its amended proposal:

* amendments 2, 9 and 25 (removal of the specific threshold of 100 employees with regard to information and consultation of employees on developments in the employment situation within the undertaking): see recital 19 and Articles 3 and 4;

* amendments 3, 6 and 32 (non-regression clause): see Article 9(4);

* amendment 7 (reference to minimum requirements): see Article 1(1);

* amendment 10 (reference to national law and/or practice concerning the definition of "employer"): see Article 2(c);

* amendment 13, first part (definition of "consultation"): see Article 2(g);

* amendment 16, in part (determination by the Member States of the level at which information and consultation must be provided): see Articles 3(1) and 4(1).

A number of other amendments also adopted by the European Parliament are clearly consistent with the Directive. This is the case with the following amendments:

* amendment 1 (reference to the continuing acquisition of qualifications, innovation and adherence by employees to new forms of work organisation);

* amendment 37 (limits to the right of employers to claim confidentiality or withhold particularly sensitive information);

* amendment 5 (reference to provisions that are more favourable to employees);

* amendments 8 and 43 (obligation to respect the minimum requirements laid down by the proposed Directive);

* amendment 11 (permanent, stable and independent nature of employees' representatives);

* amendment 13, third part (details concerning the instrumental nature of information with regard to consultation);

* amendments 22 and 23 (non-exhaustive list of decisions that have to be the subject of information and consultation);

* amendment 26 (employee representatives' right to request the assistance of experts);

* amendment 28 (details concerning the protection of employees' representatives);

* amendment 35 (inclusion of ceilings among the subjects to be covered by the review of the Directive).

These detailed provisions nevertheless have no place in this Directive, which provides a general framework and allows the Member States considerable scope for its transposition into national law.

3.3. Amendments by the European Parliament not accepted by the Commission and not included in the common position

The common position of the Council omits a number of amendments adopted by the European Parliament at first reading with respect to which the Commission had expressed reservations. The following amendments are concerned:

* amendments 4 and 15 ("Tendenzschutz");

* amendment 41 (definition of "social partners");

* amendment 13, second and fourth parts (reference to the planning stage in the context of defining "consultation" and to the obligation to seek agreement on all issues which are the subject of information and consultation);

* amendment 17 (obligation on the member States to promote the social dialogue in small and medium-sized enterprises);

* amendments 20 and 43 (limit on the autonomy of parties in the context of agreements - possible derogation from the general rules only where arrangements are then more favourable for employees);

* amendment 21 (introduction, in addition to information, of consultation on the development of the undertaking's economic and financial situation);

* amendment 24 (continuation of consultations in particularly serious cases);

* amendment 27 (removal of the employer's right to withhold particularly sensitive information);

* amendment 29 (extension of the concept of serious violation of information and consultation obligations);

* amendment 33 (application of the Directive in the civil service);

* amendment 34 (obligation on the Member States to consult the social partners in connection with transposition of the Directive).

3.4. Amendments resulting from the debates within the Council

The text of the common position of the Council contains other changes compared with the initial proposal and the Commission's amended proposal. Most of these amendments seem compatible with Parliament's wish to see appropriate and effective information and consultation of the employees of a company in the European Community promoted through this new Community legal instrument. Others seek to meet the legitimate concerns expressed by Member States with reference to their particular national practices and, in the Commission's view, do not call into question the central objective of the proposed Directive.

These concern in particular:

* the reference in Article 1(2) (new version) to the need to ensure the effectiveness of information and consultation procedures irrespective of how these are implemented;

* the inclusion in Article 2 of definitions of "establishment", "employer" and "employee";

* the introduction in Article 3(1) of a second threshold of 20 employees in cases where a Member State takes an establishment rather an undertaking as its benchmark for the purposes of transposing the Directive;

* the introduction in Article 3(3) of a provision whereby Member States may derogate from the Directive by introducing special arrangements applicable to crews of ocean-going ships;

* switching round the former Articles 3 and 4 of the Commission's initial proposal, together with a few changes arising from this;

* moving part of the definitions of "information" and "consultation" to Article 4(3) and (4);

* rearrangement of and minor amendments to the provisions concerning confidentiality the withholding of information, and the control and use of these arrangements (Article 6);

* the introduction in Article 10 of a provision whereby Member States with no generally applicable and compulsory arrangements for information and consultation, or for employee representation, may introduce the Directive's requirements on a gradual basis depending on the size of the establishments or undertakings concerned (number of employees).

The Commission is able to accept the changes made by the Council. However, the common position of the Council does not include one provision contained in the Commission's initial proposal and in the amended proposal (the former Article 7(3) of the initial proposal) which provided for specific sanctions in the event of a serious breach of employee information and consultation obligations. Parliament supported the Commission on this point and even proposed a stricter provision (in which a "serious breach" was defined more broadly); the Commission did not, however, incorporate this into its amended proposal.

The Commission notes that the common position, which was adopted unanimously, does not include this provision proposed by the Commission and supported by the European Parliament.

4- CONCLUSIONS

The Commission is able to generally accept the text of the common position of the Council and welcomes the fact that the text has met with the unanimous support of the Member States, without the fundamental provisions which it proposed in 1998 having had to be sacrificed. It nevertheless reiterates its view concerning the sanctions to be imposed in the event of a serious breach of information and consultation obligations by the employer

The Commission anticipates rapid progress at the second reading and, where applicable, at subsequent stages, and declares its readiness to cooperate with the European Parliament and the Council in seeking satisfactory solutions to the issues which remain unresolved.

5- STATEMENT FOR THE COUNCIL MINUTES

"The Council and the Commission declare that, where a Member State applies the Directive to undertakings with at least 50 employees within its territory, it may continue to apply this threshold even when choosing establishments as a benchmark for the purposes of Article 3".