Common Position (EC) No 33/2001

adopted by the Council on 23 July 2001

with a view to adopting Directive 2001/.../EC of the European Parliament and of the Council of ... establishing a general framework for informing and consulting employees in the European Community

(2001/C 307/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 137(2) thereof,

Having regard to the proposal from the Commission(1),

Having regard to the opinion of the Economic and Social Committee(2),

Having regard to the opinion of the Committee of the Regions(3),

Acting in accordance with the procedure referred to in Article 251 of the Treaty(4),

Whereas:

(1) Pursuant to Article 136 of the Treaty, a particular objective of the Community and the Member States is to promote social dialogue between management and labour.

(2) Point 17 of the Community Charter of Fundamental Social Rights of Workers provides, inter alia, that information, consultation and participation for workers must be developed along appropriate lines, taking account of the practices in force in different Member States.

(3) The Commission consulted management and labour at Community level on the possible direction of Community action on the information and consultation of employees in undertakings within the Community.

(4) Following this consultation, the Commission considered that Community action was advisable and again consulted management and labour on the contents of the planned proposal; management and labour have presented their opinions to the Commission.

(5) Having completed this second stage of consultation, management and labour have not informed the Commission of their wish to initiate the process potentially leading to the conclusion of an agreement.

(6) The existence of legal frameworks at national and Community level intended to ensure that employees are involved in the affairs of the undertaking employing them and in decisions which affect them has not always prevented serious decisions affecting employees from being taken and made public without adequate procedures having been implemented beforehand to inform and consult them.

(7) There is a need to strengthen dialogue and promote mutual trust within undertakings in order to improve risk anticipation, make work organisation more flexible and facilitate employee access to training within the undertaking while maintaining security, make employees aware of adaptation needs, increase employees' availability to undertake measures and activities to increase their employability, promote employee involvement in the operation and future of the undertaking and increase its competitiveness.

(8) There is a need, in particular, to promote and enhance information and consultation on the situation and likely development of employment within the undertaking and, where the employer's evaluation suggests that employment within the undertaking may be under threat, the possible anticipatory measures envisaged, in particular in terms of employee training and skill development, with a view to offsetting the negative developments or their consequences and increasing the employability and adaptability of the employees likely to be affected.

(9) Timely information and consultation is a prerequisite for the success of the restructuring and adaptation of undertakings to the new conditions created by globalisation of the economy, particularly through the development of new forms of organisation of work.

(10) The Community has drawn up and implemented an employment strategy based on the concepts of "anticipation", "prevention" and "employability", which are to be incorporated as key elements into all public policies likely to benefit employment, including the policies of individual undertakings, by strengthening the social dialogue with a view to promoting change compatible with preserving the priority objective of employment.

(11) Further development of the internal market must be properly balanced, maintaining the essential values on which our societies are based and ensuring that all citizens benefit from economic development.

(12) Entry into the third stage of economic and monetary union has extended and accelerated the competitive pressures at European level. This means that more supportive measures are needed at national level.

(13) The existing legal frameworks for employee information and consultation at Community and national level tend to adopt an excessively a posteriori approach to the process of change, neglect the economic aspects of decisions taken and do not contribute either to genuine anticipation of employment developments within the undertaking or to risk prevention.

(14) All of these political, economic, social and legal developments call for changes to the existing legal framework providing for the legal and practical instruments enabling the right to be informed and consulted to be exercised.

(15) This Directive is without prejudice to national systems regarding the exercise of this right in practice where those entitled to exercise it are required to indicate their wishes collectively.

(16) This Directive is without prejudice to those systems which provide for the direct involvement of employees, as long as they are always free to exercise the right to be informed and consulted through their representatives.

(17) Since the objectives of the proposed action, as outlined above, cannot be adequately achieved by the Member States, in that the object is to establish a framework for employee information and consultation appropriate for the new European context described above, and can therefore, in view of the scale and impact of the proposed action, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve these objectives.

(18) The purpose of this general framework is to establish minimum requirements applicable throughout the Community while not preventing Member States from laying down provisions more favourable to employees.

(19) The purpose of this general framework is also to avoid any administrative, financial or legal constraints which would hinder the creation and development of small and medium-sized undertakings. To this end, the scope of this Directive should be restricted, according to the choice made by Member States, to undertakings with at least 50 employees or establishments employing at least 20 employees.

(20) However, on a transitional basis Member States in which there is no established statutory system of information 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.

(21) A Community framework for informing and consulting employees should keep to a minimum the burden on undertakings or establishments while ensuring the effective exercise of the rights granted.

(22) The objective of this Directive is to be achieved through the establishment of a general framework comprising the principles, definitions and arrangements for information 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.

(23) Care should be taken to avoid affecting some specific rules in the field of employee information and consultation existing in some national laws, addressed to undertakings or establishments which pursue political, professional, organisational, religious, charitable, educational, scientific or artistic aims, as well as aims involving information and the expression of opinions.

(24) Undertakings and establishments should be protected against disclosure of certain particularly sensitive information.

(25) The employer should be allowed not to inform and consult where this would seriously damage the undertaking or the establishment or where he has to comply immediately with an order issued to him by a regulatory or supervisory body.

(26) Information and consultation imply both rights and obligations for management and labour at undertaking or establishment level.

(27) This Directive should not affect the provisions, where these are more specific, of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies(5) and of Council Directive 2001/23/EC of 12 March 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(6).

(28) Other rights of information and consultation, including those arising from Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees(7), should not be affected by this Directive.

(29) 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,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Object and principles

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 establishments within the Community.

2. The practical arrangements for information and consultation 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 establishment and of the employees.

Article 2

Definitions

For the purposes of this Directive:

(a) "undertaking" means a public or private undertaking carrying out an economic activity, whether or not operating for gain, which is located within the territory of the Member States;

(b) "establishment" means a unit of business defined in accordance with national law and practice, and located within the territory of a Member State, 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 Member State concerned, is protected as an employee under national employment law and in accordance with national practice;

(e) "employees' representatives" means the employees' representatives 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 establishment of dialogue between the employees' representatives and the employer.

Article 3

Scope

1. This Directive shall apply, according to the choice made by Member States, to:

(a) undertakings employing at least 50 employees in any one Member State, or

(b) establishments employing at least 20 employees in any one Member State.

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 establishments 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 opinions, 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 vessels plying the high seas.

Article 4

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 determine 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 establishment's activities and economic situation;

(b) information and consultation on the situation, structure and probable development of employment within the undertaking or establishment 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 provisions referred to in Article 9(1).

3. Information shall be given at such time, in such fashion and with such content as is appropriate to enable, in particular, 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 relevant information to be supplied by the employer 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 paragraph 2(c).

Article 5

Information and consultation deriving from an agreement

Member States may entrust management and labour at the appropriate level, including at undertaking or establishment 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.

Article 6

Confidential information

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 establishment, has expressly been provided to them in confidence. This obligation shall continue to apply, wherever the said representatives or experts are, even after expiry of their terms of office. However, a Member State 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 establishment or would be prejudicial to it.

3. Without prejudice to existing national procedures, Member States shall provide for administrative or judicial review procedures when the employer requires confidentiality or does not provide the information in accordance with paragraphs 1 and 2. They may also provide for procedures intended to safeguard the confidentiality of the information in question.

Article 7

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.

Article 8

Protection of rights

1. 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.

2. Member States shall provide for adequate penalties to be applicable in the event of infringement of this Directive by the employer or the employees' representatives. These penalties must be effective, proportionate and dissuasive.

Article 9

Link between this Directive and other Community and national provisions

1. 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 Member State and in relation to the general level of protection of workers in the areas to which it applies.

Article 10

Transitional provisions

Notwithstanding Article 3, a Member State in which there is, at the date of entry into force of this Directive, no general, permanent and statutory system of information and consultation 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 establishments employing at least 100 employees until ...(8), and

(b) undertakings employing at least 100 employees or establishments employing at least 50 employees during the two years following the date in point (a).

Article 11

Transposition

1. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive not later than ...(9) 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.

Article 12

Review by the Commission

Not later than ...(10), 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.

Article 13

Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 14

Addresses

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(1) OJ C 2, 5.1.1999, p. 3.

(2) OJ C 258, 10.9.1999, p. 24.

(3) OJ C 144, 16.5.2001, p. 58.

(4) Opinion of the European Parliament of 14 April 1999 (OJ C 219, 30.7.1999, p. 223), confirmed on 16 September 1999 (OJ C 54, 25.2.2000, p. 55), Council Common Position of 23 July 2001 and Decision of the European Parliament of ... (not yet published in the Official Journal).

(5) OJ L 225, 12.8.1998, p. 16.

(6) OJ L 82, 22.3.2001, p. 16.

(7) OJ L 254, 30.9.1994, p. 64. Directive as amended by Directive 97/74/EC (OJ L 10, 16.1.1998, p. 22).

(8) Five years after the date of entry into force of this Directive.

(9) Three years after the date of entry into force of this Directive.

(10) Five years after the date of entry into force of this Directive.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

The Commission's proposal for a Directive of the European Parliament and of the Council establishing a general framework for informing and consulting employees in the Community was submitted to the Council on 17 November 1998. It was based on Article 137(2) of the Treaty.

The European Parliament, the Economic and Social Committee, and the Committee of the Regions delivered their opinions on 14 April 1999, 7 July 1999, and 13 and 14 December 2000 respectively.

The Commission submitted an amended proposal on 23 May 2001.

The Council adopted a Common Position on 23 July 2001, in accordance with the procedure laid down in Article 251 of the Treaty.

II. AIM OF THE PROPOSAL

The purpose of the Commission proposal is to lay down a general framework setting minimum requirements for the right of employees to be informed and consulted, applicable at national level to undertakings in the Member States. Its aim is also to supplement the existing Directives on collective redundancies and transfers of undertakings, as well as the Directive on a European Works Council applying to undertakings situated in two or more Member States.

III. ANALYSIS OF THE COMMON POSITION

1. GENERAL OBSERVATIONS

According to Article 136 of the Treaty, the Community and the Member States "shall have as their objectives (...) improved living and working conditions (...), dialogue between management and labour (...)", etc. To this end Article 137(2) of the Treaty states that the Council "may adopt, by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States".

The Council Common Position is in accordance with the objectives of Article 137(2) of the Treaty in the area covered, since it is designed to introduce minimum requirements for the information and consultation of employees in undertakings or establishments in the European Union. Furthermore, the Common Position largely respects the objectives put forward by the Commission and supported by Parliament.

The Directive is to apply to undertakings employing at least 50 employees or to establishments employing at least 20 employees within a Member State, in accordance with the choice made by the Member State.

However, Member States in which there is currently no general, permanent and statutory system of information and consultation of employees, nor of employee representation at the workplace, may apply an additional transitional period. They may, during the first five years after the entry into force of the Directive, limit the application of the national provisions implementing the Directive to undertakings employing at least 150 employees or to establishments employing at least 100 employees and, for a further two years, to undertakings employing at least 100 employees or establishments employing at least 50 employees. The reason for this derogation being included in the text of the Directive was the need to provide an adequate timetable for small and medium-sized undertakings to adjust to the Directive's requirements where such undertakings at present have no formal information and consultation obligations at all.

Member States should define and implement the practical arrangements for information and consultation at the appropriate level, in accordance with national law and industrial relations practices.

This includes entrusting management and labour at the appropriate national level with defining freely and at any time through negotiated agreement the practical arrangements for informing and consulting employees. These agreements may establish provisions which are different from those referred to in Article 4 of the Directive.

The key element is the right of the employees to be informed on the recent and probable development of central aspects of the undertaking's activities and economic and employment situation, and to be consulted on these as well as on anticipatory measures regarding the employment situation, and on decisions likely to lead to substantial changes in work organisation or in contractual relations. Consultation includes an exchange of views and a dialogue between the employer and the representatives of the employees, enabling them to express their opinions to the employer and to obtain a reasoned response, with a view to reaching agreement on decisions to be taken by the employer.

The Directive contains provisions enabling the employer to provide certain information in confidence to the employees' representatives, where this is in the legitimate interest of the employer. It also authorises the employer not to communicate information or undertake consultation where this would seriously harm the functioning of the undertaking or establishment.

The Directive requires effective, proportionate and dissuasive penalties to be applicable in the event of infringement of the Directive by the employer or the employees' representatives.

2. THE EUROPEAN PARLIAMENT'S AMENDMENTS ON FIRST READING

2.1. European Parliament amendments adopted by the Council

2.1.1. The following 10 amendments were taken up in their entirety, both in the Commission's amended proposal and in the Council's Common Position, either word for word, or at least in spirit and substance: 2, 3, 6, 7, 9, 10, 13 (introductory sentence) 16, 25 and 32.

2.1.2. The following 24 amendments were neither taken up in the Commission's amended proposal nor, for the following reasons, in the Council's Common Position:

- amendment 1: this was regarded as consistent with recitals 7 and 8, but at the same time unnecessarily detailed,

- amendments 4 and 15: the recital and the article on "Tendenzschutz" were considered necessary, in line with the "European Works Council Directive",

- amendment 37: this was considered too inflexible in respect of the employer's right to withhold particularly sensitive information, in line with the Council's position on amendment 27; furthermore, recitals should not contain wording which has the nature of a binding provision,

- amendment 5 and 31: these were considered unnecessary, as they were already covered by the provisions of Article 9(3),

- amendment 8: although this was considered to be consistent with the spirit of Article 1(3), it was also considered to put demands on the Member States which these would not be able to meet,

- amendment 11: this was regarded as being too resctrictive for matters which should be left to national law and practice, including the social partners,

- amendment 41: this was considered too detailed and unnecessary, and incompatible with the situation in some Member States,

- amendment 13 (first and third indents): this was considered unnecessarily detailed, since consultation could, in any case, only take place on the basis of information given,

- amendment 17: this was regarded as potentially burdensome for small and medium-sized enterprises, and as not entirely appropriate as a legal provision,

- amendment 43: although this was considered to be consistent with the spirit of Article 5, it was regarded as an unnecessary restriction of the freedom of negotiation of the social partners,

- amendment 20: this was regarded as too restrictive for the freedom of the social partners to conclude agreements,

- amendment 21: this was considered to be too detailed and to cover areas which were not suitable for consultation,

- amendments 22 and 23: these were considered to be in line with the spirit of the Directive, but at the same time unnecessarily detailed,

- amendment 24: this was considered too far-reaching in the light of national legislation in most Member States, which did not give the employees' representatives such a right to a suspensive veto,

- amendment 26: this was regarded as unnecessary in the light of Article 6(1) which already mentions "any experts who assist" the employees' representatives, and also too vague in respect of the rights and role of such experts,

- amendment 27: the employer's right not to communicate information and undertake consultation when this would seriously harm the undertaking was considered necessary,

- amendment 28: this was considered too detailed and alien to the situation existing in many Member States,

- amendment 29: this was considered to present problems of legal enforcement, given that the intention of the employer would be very difficult to establish; in fact the Council rejected the whole paragraph to which the amendment was related,

- amendment 33: this amendment, which aimed to extend the scope of the Directive to the whole of the public sector, was not considered appropriate, given that publicly-owned undertakings would in any event be covered; the Directive was not, however, adapted to the nature, activities, and types of decisions taken by other public sector bodies,

- amendment 34: this was considered to interfere unduly with the legislative process in the Member States, which in any case normally includes the consultation of the social partners,

- amendment 35: this was considered unnecessary because it singled out one particular aspect of the Directive, which is likely to be included in the review in any case.

3. THE COMMON POSITION IN RELATION TO THE COMMISSION'S AMENDED PROPOSAL

3.1. Article 3(3), which allows Member States to derogate from the Directive in respect of the crews of vessels plying the high seas, was not included in the Commission's amended proposal, but was considered necessary by the Council because of the practical difficulties of consulting seafarers absent on lengthy voyages, and was subsequently accepted by the Commission.

3.2. The Commission's amended proposal (and its initial proposal) contained a provision (Article 8(3)) on specific sanctions in case of serious breach by the employer of his/her information and consultation obligations. However, although the Council recognised the need for sanctions in such a case, it considered that Article 8(2) provided a sufficient basis for introducing effective, proportionate and dissuasive penalties into national legislation. The Council could therefore not accept paragraph 3, the following specific reasons also being mentioned by several Member States:

- the provision included the notion of the "non-production of legal effects" of certain decisions by the employer, which was alien to most national legal systems,

- the provision could lead to legal uncertainty because of lengthy judicial procedures, with serious financial consequences for the undertaking and its ability to safeguard its present level of employment, and for its relations with its business partners, and

- the provision could lead to legal uncertainty in respect of information and consultation in situations covered by the existing Directives on collective redundancies and transfers of undertakings.

3.3. Article 10, which provides for transitional periods in respect of the thresholds laid down in Article 3 for the application of the Directive, was not included in the Commission's amended proposal; it was proposed by the Commission at the meeting of the Council on 11 June 2001, and was accepted by the Council.

IV. CONCLUSION

The Council considers that, as a whole, the Common Position is well in line with the objectives of the amended Commission proposal. It also considers that it has basically taken account of the main objectives pursued by the European Parliament in its proposed amendments.