•ir it 
if * COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 24.02.1997 
COM(97) 60 final 
94/0203 (CNS) 
AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE 
AMENDING DIRECTIVE 77/187/EEC 
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 BUSINESSES 
(presented by the Commission pursuant to Article 189 a (2) 
of the EC-Treaty) 

Explanatory memorandum 
The European Parliament, the Economic and Social Committee and the Committee of the 
Regions have adopted their respective opinions on the proposal for a Council Directive 
amending Directive 77/187/EEC on the approximation of the laws of the Member States 
relating to the safeguarding of employées* rights in the event of transfers of undertakings. 
The present amended proposal for a Directive, submitted in accordance with Article 
189A(2) of the EC Treaty, takes into account the amendments of the European 
Parliament approved on 16 January 1997, the opinion of the Economic and Social 
Committee adopted on 30 March 1995 and the opinion of the Committee of the Regions 
adopted on 21 April 1995. 
Several technical improvements have been made in the interests of legal certainty and 
consistency. 
Title 
In connection with the discussion of Article 1(1), second subparagraph, of the reference 
proposal for a Directive1, which we shall examine below, the European Parliament had 
already requested, in its Resolution of 18 January 1996, that the proposal for a Directive 
replacing Directive 77/187/EEC be transformed into a proposal for a Directive amending 
Directive 77/187/EEC. The title of the present proposal takes account of the opinion of 
the European Parliament on this point. As soon as the amended proposal has been 
adopted by the Council, the Commission will initiate the codification procedure laid down 
in the Interinstitutional Agreement of 20 December 19942 designed to ensure that 
Community legislation is clear and is understood correctly. In the light of the above, the 
first recital has therefore been deleted, as requested by Parliament. 
Article 1 
COM(94) 300 final, of 8.9.1994, 94/0203(CNS), OJ C 274 of 1.10.1994, p. 10 
Interinstitutional Agreement of 20.12.1994. Accelerated working method with a view to the official 
codification of legislative texts signed by the Commission of the European Communities, the 
European Parliament and the Council of the European Union. 
d 
Article 1, paragraph 1, of the Commission proposal was analysed several times in the 
Council's Working Party on Social Questions under both the German Presidency (second 
half of 1994) and the French Presidency (first half of 1995). These meetings revealed 
certain problems of comprehension relating to the definition of the transfer of 
undertakings as set out in this Article (clarification of the transfer of only an activity of the 
undertaking). 
The Economic and Social Committee delivered an opinion on this proposal on 30 March 
19953, as did the Committee of the Regions on 21 April 19954. The scope of the Directive 
(the transfer of only an activity of an undertaking) has always been the most controversial 
point. In particular, the Economic and Social Committee questioned the ability of a new 
Article ,L^P.aragraph 1, to clarify this issue and proposed a new text. The employer' 
group tabled an amendment designed to exclude subcontracting from the scope of the 
Directive. This amendment was rejected. 
The European Parliament was highly critical of the concept of the transfer of 
undertakings, as defined in Article 1, Paragraph 1, of the proposal. The various political 
groups in the Parliament took the view that the proposed amendments to Article 1, 
Paragraph 1, did not improve legal certainty and, on the contrary, introduced new sources 
of uncertainty which might prove detrimental to the rights of workers and the interests of 
firms. A resolution was therefore adopted at the plenary sitting of 18 January 1996 with 
the unanimous agreement of all the political groups, calling on the Commission to propose 
an amended version of Directive 77/187/EEC, without replacing it by a new text, and to 
leave Article 1(1), second subparagraph, unchanged. 
In the light of the opinions adopted by the Economic and Social Committee and the 
Committee of the Regions, the progress of discussions in the Council's Working Party on 
Social Questions, and Resolution B4-00033/96 of 18 January 1996 adopted unanimously 
by the European Parliament, the Commission decided on 7 February 19965 to inform 
Parliament that it would be willing to accept amendments designed to transform its 
proposal for the revision of Council Directive 77/187/EEC into a Directive amending 
Directive 77/187/EEC and to delete the proposed amendment to Article 1(1), second 
subparagraph, contained in the initial proposal. 
Given that Parliament proposes in its opinion that Article 1(1), second subparagraph, be 
deleted, and in the light of the above analysis, the Commission has amended its proposal 
accordingly and has deleted the seventh recital, as requested by Parliament. 
Article 3 
Paragraph 1, second subparagraph 
Parliament calls for joint and several liability of the transferor and the transferee in respect 
of obligations which arise from a contract of employment. The Commission's proposal 
3 CES 317/95 
4 CdR 143/95 
5 PV (96) 1279, pages 23 and 24 
had already taken this aspect into account. Nevertheless, in order to make the wording 
clearer and more precise, and to avoid false interpretations, the Commission now 
proposes that this liability be limited to the obligations that fall due prior to the date of the 
transfer. 
Paragraph 5 (new) 
The main objective of Directive 77/187/EEC, according to its recitals, is to protect 
workers in the event of a change of employer, in particular to ensure that their rights are 
safeguarded. Consequently, any amendment which reduces the protection afforded to 
certain benefits connected to the transfer rule (as provided for in Articles 3 (4) and 4 (3) 
and (4) of the proposal for undertakings, businesses or parts of businesses transferred in 
the context of certain insolvency proceedings) must be examined with particular care. 
Accordingly, it is necessary to bolster the adoption of measures to prevent the fraudulent 
use of insolvency proceedings, as requested by Parliament. 
Article 4 
Paragraph 3 
The responsibility of the employees' representatives, given that they may permit changes 
to the terms and conditions of employment with the agreement of the employer or his 
representatives, means that they must enjoy sufficient independence to be able to carry out 
the functions assigned to them (see Article 5 A (new)). 
The Commission proposal now takes account of Parliament's amendment on this point. 
Paragraph 4 
The amended proposal takes into account the amendment of the European Parliament, 
which adds the terms "referred to in the agreement" to paragraph 4. By improving the 
text's clarity, this will make it easier to understand. 
Paragraph 5 
The powers given to the judicial authorities to terminate a contract of employment or an 
employment relationship may cause considerable difficulties in the national law of some 
Member States which do not provide for such a possibility. The Commission welcomes 
Parliament's comment concerning the deletion of this paragraph, and its proposal removes 
potential legal obstacles at a non-essential point in the text. 
Article 6A (new) 
In view of, inter alia, the powers granted in Article 4, paragraph 4, to the employees' 
representatives, who may, in certain cases, amend the terms and conditions of 
employment, it appears necessary to strengthen their role so that they enjoy sufficient 
independence to accomplish their tasks. 
This effectively reflects the idea expressed by Parliament on this point. 
Article 6 
Paragraph I 
3 
Technical improvements have been made to the text so that it is clearer and more legally 
precise, and hence easier to understand: when the transfer of an undertaking, business or 
part of a business is planned, the transferor and the transferee are obliged to inform the 
representatives of their respective employees affected by the transfer. 
Paragraph 2 
This small grammatical change ("when") makes the wording of the proposal for a 
Directive more precise. 
Paragraph 4 
The inclusion of the spirit of the European Parliament amendment improves the wording 
of the proposal. Accordingly, any failure to comply with the Directive's provisions on 
consultations, which results from the fact that the undertaking or the natural or legal 
person who/which took the transfer decision failed to inform the employer in due time, 
cannot be tolerated. Recital No 13 has been drafted in harmony with this paragraph. 
Paragraph 5 
Given that the adoption of minimum rules at European level on information and 
consultation in national undertakings could be planned under the Communication from the 
Commission on Worker Information and Consultation6, and that such rules could stipulate 
a minimum threshold concerning the obligation to provide for employees' representatives, 
it would be wise not to make any changes in this area for the time being and to leave the 
wording of the existing directive in its current form, as requested by Parliament. 
Article 7 A (new) 
To ensure that Community law is properly implemented, the Member States must provide 
for effective, proportionate and dissuasive sanctions in the event of failure to comply with 
the national provisions adopted under the Directive. Parliament's amendment adopted in 
the light of the case-law of the Court of Justice strengthens the Commission's text. This 
amendment is in keeping with the Commission's Medium-Term Social Action Programme 
1995-19977, point 11.1.8 of which states that "Member States' authorities must ensure 
that Union legislation is fully enforced through inter alia appropriate systems of control or 
sanctions, which are effective in practice and have a deterrent value". In the same point, 
the Commission also commits itself to insert in all future legislation a "standard clause" 
establishing an obligation for Member States to impose sanctions which are effective, 
proportionate and dissuasive. 
Article 7 - B (new) 
A clause has been inserted banning discrimination on the basis of race, sex, age, handicap, 
sexual orientation, skin colour, religion or nationality, which is in line with the 
Communication from the Commission on racism, xenophobia and anti-semitism of 
6 COM (95) 0547 
7 COM (95) 134 
13 December 19958. The Commission therefore welcomes the European Parliament's 
approach in this area. 
Recital No 18 (new) has been drafted in line with this Article. 
8 COM (95) 653 final 
S 
AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE AMENDING 
DIRECTIVE 77/187/EEC 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 BUSINESSES1. 
TEXT OF THE INITIAL PROPOSAL2 TEXT OF THE AMENDED PROPOSAL 
Proposal for a Council Directive 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 
businesses. Proposal for a Council Directive amending 
Directive 77/187/EEC 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 
businesses. 
THE COUNCIL OF THE EUROPEAN 
UNION, 
Having regard to the Treaty establishing the 
European Community, and in particular 
Article 100 thereof. 
Having regard to the Proposal from the 
Commission' 
Having regard to the opinion of the 
European Parliament» 
Having regard to the opinion of the 
Economic and Social Committee' 
Having regard to the opinion 
Committe of the Regions. of the 
1. Whereas Council Directive 77/187/EEC 
concerns 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 businesses; 
whereas, in the interests of clarity, rather 
than amend the existing Directive, it 
would be preferable to replace it with a 
new text; Deleted 
1 OJ No L 61, 5.3.1977. 
2 COM(94) 300 final, 8.9.1994, 94/0203(CNS) OJ C 274, 1.10.1994. 
C 
2. Whereas the Community Charter of the Unchanged 
Fundamental Social Rights of Workers 
adopted by the Heads of State or 
Government of eleven Member States at 
the Strasbourg European Council on 9 
December 1989 states, at point 7, first 
paragraph, first sentence and second 
paragraph, point 17, first paragraph and 
point 18(ii) that: 
"7. The completion of the internal market 
must lead to an improvement in the 
living and working conditions of 
workers in the European Community. 
The improvement must 
cover, where necessary, the 
development of certain aspects of 
employment regulations such as 
procedures for collective redundancies 
and those regarding bankruptcies. 
17. Information, consultation and 
participation for workers must be 
developed along appropriate lines, 
taking account of the practices in force 
in the various Member States. 
18. Such information, consultation and 
participation must be implemented in 
due time, particularly in the following 
cases: 
- in connection with restructuring 
operations in undertakings or in 
cases of mergers having an impact 
on the employment of workers;" 
~\ 
3. Whereas Council Directive 
77/187/EEC of 14 February 1977 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 businesses 
promotes the harmonisation of the 
relevant national laws ensuring the 
safeguarding of the right of transferred 
employees and requiring transferors 
and transferees to inform and consult 
employees' representatives in good 
time; Unchanged 
Whereas the purpose of this proposal is 
to amend Council Directive 
77/187/EEC of 14 February 1977 in 
the light of the impact of the internal 
market, the legislative tendencies of the 
Member States with regard to the 
rescue of undertakings in economic 
difficulties, the case law of the 
European Court of Justice, the adopted 
revision of the Directive on collective 
redundancies and the legislation 
already in force in most Member 
States; Unchanged 
5. Whereas considerations of legal 
security and transparency require that 
the legal concept of transfer be clarified 
in the light of the case law of the 
European Court of Justice; whereas 
such a concept must cover any transfer 
of an undertaking, business or part of a 
business to another employer effected 
by means of contract, deed, 
administrative measure, judicial 
decision or operation of law, including 
mergers and divisions; Unchanged 
8 
6. Whereas requirements of legal security Unchanged 
and transparency also require that it be 
expressly provided that the Directive 
should apply to private or public 
undertakings carrying out economic 
activities, whether or not they operate 
for gain; 
7. Whereas the principles of legal security Deleted 
demand that a clear distinction be made 
between transfers of undertakings, 
businesses or parts of businesses and 
the transfer of only an activity of an 
undertaking; Whereas the transfer of an 
activity which does not also involve the 
transfer of an economic entity whose 
identity is affected by such transfer, an 
economic entity being understood to 
consist of several parts operating 
autonomously and pursuing a specific 
objective, even if a partial one, is not 
covered by the Directive; 
8. Whereas considerations of flexibility Unchanged 
justify the exclusion of sea-going 
vessels from the scope of Section III of 
the Directive, but not from its other 
provisions; 
9. Whereas a minimal harmonisation of Unchanged 
the concept of "employee" is necessary 
in order that there may be a uniform 
application of the Directive in the 
different Member States; 
10. Whereas differences still remain Unchanged 
between the Member States' legislation 
concerning the joint liability of the 
transferor and the transferee; 
3 
11. Whereas, with a view to ensuring the 
survival of insolvent undertakings. 
Member States should be expressly 
allowed not to apply Articles 3 and 4 
of the Directive to transfers effected in 
the framework of liquidation 
proceedings, and certain derogations 
from the Directive's general provisions 
should be permitted in the case of 
transfers effected in the context of 
insolvency pre-liquidation proceedings; 
whereas such provisions constitute a 
measure of deregulation in comparison 
with the existing legal situation; Unchanged 
12. Whereas the circumstances in which 
the function and status of employee 
representatives are to be preserved 
should be clarified; Unchanged 
13. Whereas, in order to ensure equal 
treatment of similar situations, it is 
necessary to ensure that the 
information and consultation 
requirements laid down in Council 
Directive 77/187/EEC are complied 
with irrespective of whether the 
decision leading to the transfer is taken 
by the employer or by an undertaking 
controlling the employer; Whereas, in order to ensure equal treatment 
of similar situations, it is necessary to 
ensure that the information and consultation 
requirements laid down in Council 
Directive 77/187/EEC are complied with 
irrespective of whether the decision leading 
to the transfer is taken by the employer or 
by another natural or legal person: 
14. Whereas the Member States' faculty 
not to apply the information and 
consultation requirements to certain 
undertakings on grounds of workforce 
size thresholds must be clarified; Deleted 
15. Whereas it is necessary to clarify the 
circumstances in which employees 
must be informed where there are no 
employee representatives; Unchanged 
16. Whereas considerations of efficacy 
require that the Member States take 
appropriate measures in the event of 
failure to comply with this Directive; Unchanged 
17. Whereas the present Directive shall be 
without prejudice to the Member 
States' obligations concerning the 
deadline for transposai of Directive 
77/187/EEC indicated in Annex I; Deleted 
18. (new) 
Whereas, when the Member States applv 
the provisions contained in this Directive, 
they may under no circumstances introduce 
discrimination on the basis of race, sex, age. 
handicap, sexual orientation, colour, 
religion or nationality. 
HAS ADOPTED THIS DIRECTIVE: 
Section I 
Scope and definitions 
Article 1 Section I 
Scope and definitions 
Article 1 
1. This Directive shall apply to the 
transfer of an undertaking, business or 
part of a business to another employer 
effected by contract or by some other 
disposition or operation of law, judicial 
decision or administrative measure. Unchanged 
A A 
The transfer of an activity which is Deleted 
accompanied by the transfer of an 
economic entity which retains its 
identity shall be deemed to be a 
transfer within the meaning of the 
Directive. The transfer of only an 
activity of an undertaking, business or 
part of a business, whether or not it 
was previously carried out directly, 
does not in itself constitute a transfer 
of an undertaking within the meaning 
of the Directive. 
2. This Directive shall apply where and Unchanged 
insofar as the undertaking, business or 
part of the business to be transferred is 
situated within the territorial scope of 
the Treaty. 
3. This Directive shall apply to public or Unchanged 
private undertakings engaged in 
economic activities whether or not they 
are operating for gain. 
4. Member States need not apply Section Unchanged 
III of this Directive to sea-going 
vessels. 
5. The Member States need not apply Unchanged 
Articles 3 (1, 2 and 3) and 4 (1 and 2) 
of this Directive in cases where the 
undertaking, business or part of a 
business being transferred is the subject 
of bankruptcy proceedings or any other 
analagous proceedings instituted with a 
view to the liquidation of the assets of 
a natural or legal person and under the 
supervision of a competent public 
authority. 
Article 2 Article 2 
1. For the purposes of this Directive: Unchanged 
)^ 
a) "transferor" means any natural or 
legal person who, by reason of a 
transfer within the meaning of 
Article 1(1), ceases to be the 
employer in respect of the 
undertaking, business or part of 
the business; Unchanged 
b) "transferee" means any natural or 
legal person who, by reason of a 
transfer within the meaning of 
Article 1(1), becomes the 
employer in respect of the 
undertaking, business or part of 
the business; Unchanged 
c) "representatives of the employees" 
means the representatives of the 
employees provided for by the 
laws or practice of the Member 
States. Unchanged 
This Directive is without prejudice to 
national law as regards the definition of 
contract of employment or employment 
relationship. However, Member States 
shall not exclude from the scope of this 
Directive contracts of employment or 
employment relationships solely 
because: Unchanged 
a) of the number of working hours 
performed or to be performed, or Unchanged 
b) they are employment relationships 
governed by a fixed-duration 
contract of employment within the 
meaning of Article 1(1) of Council 
Directive 91/383/EEC, aimed at 
encouraging improvements in the 
safety and health of workers with a 
fixed-duration employment 
relationship or a temporary 
employment relationship; Unchanged 
•1 3 
c) they are temporary employment 
relationships within the meaning of 
Article 1(2) of Council Directive 
91/383/EEC. Unchanged 
Section II 
Safeguarding of employees' rights 
Article 3 Section II 
Safeguarding of employees' rights 
Article 3 
The transferor's rights and obligations 
arising from a contract of employment 
or from an employment relationship 
existing on the date of a transfer within 
the meaning of Article 1(1) shall, by 
reason of such transfer, be transferred 
to the transferee. Unchanged 
Member States shall provide that, after 
the date of transfer within the meaning 
of Article 1(1) and in addition to the 
transferee, the transferor shall continue 
to be liable in respect of obligations 
which arose from a contract of 
employment or employment 
relationship. However, in respect of 
obligations that fall due after the date 
of transfer, the transferor shall be liable 
only to the extent corresponding to the 
portion of the relevant period which 
expired on the date of the transfer. 
Member States may limit the 
transferor's joint liability to those 
obligations which arose before the date 
of the transfer and fall due within the 
first year following that date. Member States shall provide that, after the 
date of transfer within the meaning of 
Article 1(1), the transferor and the 
transferee shall be jointly and severally 
liable in respect of obligations which arose 
from a contract of employment or an 
employment relationship and fell due before 
the date of transfer. 
IV 
2. Following the transfer within the 
meaning of Article 1(1), the transferee 
shall continue to observe the terms and 
conditions agreed in any collective 
agreement on the same terms 
applicable to the transferor under that 
agreement, until the date of termination 
or expiry of the collective agreement or 
the entry into force or application of 
another collective agreement. Unchanged 
Member States may limit the period for 
observing such terms and conditions 
with the proviso that it shall not be less 
than one year. Unchanged 
Paragraphs 1 and 2 shall not cover 
employees' rights to old age, invalidity 
or survivors' benefits under 
supplementary company or inter­
company pension schemes outside the 
statutory social security schemes in 
Member States. Unchanged 
Member States shall adopt the 
measures necessary to protect the 
interests of employees and of persons 
no longer employed in the transferor's 
business at the time of the transfer in 
the meaning of Article 1(1) in respect 
of rights conferring on them immediate 
or prospective entitlement to old age 
benefits, including survivors' benefits 
under supplementary schemes referred 
to in the first subparagraph. Unchanged 
AS 
wrriR 
Notwithstanding paragraphs 1, 2 and 3 
of this Article, the laws of the Member 
States may provide that the transferor's 
debts - arising from a contract of 
employment or an employment 
relationship - due before the transfer or 
before the opening of insolvency 
proceedings, shall not be transferred to 
the transferee in cases of transfers 
effected in the context of insolvency 
proceedings other than the proceedings 
mentioned in Article 1(5), such as 
administration or judicial arrangements, 
compositions, suspension of payments, 
or other analogous non-liquidation 
proceedings, provided that such 
proceedings: Unchanged 
(a) are conducted under the 
supervision of a competent public 
authority, which may be an 
insolvency practitioner authorised 
by a competent public authority, 
and, Unchanged 
(b) give rise, according to the 
legislation of the Member State in 
question, to the protection laid 
down by its national law, ensuring 
a level of protection at least 
equivalent to that provided for by 
Council Directive 80/987/EEC on 
the approximation of the laws of 
the Member States relating to the 
protection of employees in the 
event of the insolvency of their 
employer-Unchanged 
5. Member States shall provide for the 
necessary measures to ban the use of 
fraudulent insolvency proceedings intended 
to deprive employees of the rights laid 
down in this Directive. 
AC 
Article 4 Article 4 
1. The transfer of an undertaking, Unchanged 
business or part of a business shall not 
in itself constitute grounds for 
dismissal by the transferor or the 
transferee. This provision shall not 
stand in the way of dismissals that may .-~*M»«^ ^«•**.-^.. 
take pace for economic, technical or 
organisational reasons entailing 
changes in the workforce. 
Member States may provide that the Unchanged 
first subparagraph shall not apply to 
certain specific categories of employees 
who are not covered by the laws or 
practice of the Member States in 
respect of protection against dismissal. 
2. If the contract of employment or the Unchanged 
employment relationship is terminated 
because the transfer within the meaning 
of Article 1(1) involves a substantial 
change in working conditions to the 
detriment of the employee the 
employer shall be regarded as having 
been responsible for termination of the 
contract of employment or of the 
employment relationship. 
1 } 
Notwithstanding Article 3(1, 2 and 3), 
the laws of the Member States may 
allow the employer or the person or 
persons exercising the employer's 
powers, on the one hand, and the 
employees' representatives, on the 
other hand, to change the terms and 
conditions of employment by an 
agreement concluded as a means of 
-ensuring the^suBdyal of an undertaking, 
business or part of a business 
transferred in the context of the 
proceedings referred to in Article 3(4). 
Such an agreement may also determine 
whether and to what extent dismissals 
may take place for economic, technical 
or organisational reasons entailing 
changes in the workforce. 3. Notwithstanding Article 3(1 and 2), 
the laws of the Member States may allow 
the employer or the person or persons 
exercising the employer's powers, on the 
one hand, and the employees' 
representatives, on the other hand, insofar 
as they enjoy sufficient independence to 
carry out the functions assigned to them, to 
change the terms and conditions of 
employment by an agreement concluded as 
a means of ensuring the survival of an 
undertaking, business or part of a business 
transferred in the context of the 
proceedings referred to in Article 3(4). 
Such an agreement may also determine 
whether and to what extent dismissals may 
take place for economic, technical or 
organisational reasons entailing changes in 
the workforce. 
4. Without prejudice to paragraph 2 of 
this Article, where the agreement 
referred to in paragraph 3 is concluded, 
it shall be presumed, unless proved to 
the contrary, that the alteration of the 
terms and conditions of employment is 
made as a means of ensuring the 
survival of the transferred undertaking, 
business or part of a business and that 
the dismissals concerned are effected 
for economic, technical and 
organisational reasons, entailing 
changes in the work force. 4. Without prejudice to paragraph 2 of 
this Article, where the agreement referred 
to in paragraph 3 is concluded, it shall be 
presumed, unless proved to the contrary, 
that the alteration of the terms and 
conditions of employment referred to in the 
agreement is made as a means of ensuring 
the survival of the transferred undertaking, 
business or part of a business and that the 
dismissals referred to in the agreement are 
effected for economic, technical and 
organisational reasons, entailing changes in 
the work force. 
5. The Member States may confer on the 
competent judicial authorities the 
power to alter or terminate contracts of 
employment or employment 
relationships existing on the date of a 
transfer effected in the framework of 
insolvency proceedings referred to in 
Article 3(4) to ensure the survival of 
the undertaking, business or part of a 
business. Deleted 
"W 
Article 5 
If the business preserves its autonomy, 
the status and function of the 
representatives or of the representation 
of the employees affected by a transfer 
within the meaning of Article 1 shall be 
preserved on the same terms and 
subject to the same conditions as 
existed before the date of-the transfer 
by virtue of law, regulation, 
administrative provision or agreement, 
provided that the conditions necessary 
for the constitution of the employees' 
representation are fulfilled. Article 5 
Unchanged 
The first subparagraph shall not apply 
if, under the laws, regulations, 
administrative provisions or practice in 
the Member States, or by agreement 
with the representatives of the 
employees, the conditions necessary 
for the reappointment of the 
representatives of the employees or for 
the reconstitution of the representation 
of the employees are fulfilled. Unchanged 
If the business does not preserve its 
autonomy and provided that the 
conditions necessary for the 
constitution of the representation of the 
employees are fulfilled, the Member 
States shall take the necessary 
measures to ensure that the employees 
transferred, who were represented 
before the transfer, continue to be 
properly represented during the period 
prior to the reconstitution or 
reappointment of the representation of 
employees. Unchanged 
A 9 
If the term of office of the 
representatives of the employees 
affected by a transfer within the 
meaning of Article 1(1) expires as a 
result of the transfer, the 
representatives shall continue to enjoy 
the protection provided by the laws, 
regulations, administrative provisions 
or practice of the Member States. Unchanged 
Section HI 
Information and consultation Section III 
Information and consultation 
Article 6 Article 6 
1. The transferor and the transferee shall 
be required to inform the 
representatives of employees affected 
by a transfer within the meaning of 
Article 1(1) of the following: 1- When the transferor and transferee 
envisage a transfer within the meaning of 
Article 1(1). they shall be required to 
inform the representatives of their 
respective employees affected by the 
transfer of the following: 
- the reason for the transfer, 
- the legal, economic and social 
implications of the transfer for the 
employees, 
- any measures envisaged in relation 
to the employees. Unchanged 
Unchanged 
Unchanged 
The transferor must give such 
information to the representatives of 
his employees in good time before the 
transfer is carried out. Unchanged 
<?: 
The transferee must give such Unchanged 
information to the representatives of 
his employees in good time, and in any 
event before his employees are directly 
affected by the transfer as regards their 
conditions of work and employment. 
2. If the transferor or the transferee When the transferor or the transferee 
envisages measures in relation to his envisages measures in relation to his 
««employees, -he*- shall consult -the employees, he shall consult the 
representatives of his employees in representatives of his employees in good 
good time on such measures with a time on such measures with a view to 
view to reaching an agreement. reaching an agreement. 
3. Member States whose laws, Unchanged 
regulations or administrative provisions 
provide that representatives of the 
employees may have recourse to an 
arbitration board to obtain a decision 
on the measures to be taken in relation 
to employees may limit the obligations 
laid down in paragraphs 1 and 2 to 
cases where the transfer carried out 
gives rise to a change in the business 
likely to entail serious disadvantages 
for a considerable number of the 
employees. 
The information and consultations shall Unchanged 
cover at least the measures envisaged 
in relation to the employees. 
The information must be provided and Unchanged 
consultations take place in good time 
before the change in the business as 
referred to in the first subparagraph is 
effected. 
I -i 
The obligations laid down in this 
Article shall apply irrespective of 
whether the decision leading the 
transfer is taken by the employer or by 
an undertaking controlling the 
employer. In considering alleged 
breaches of the information and 
consultation requirements laid down by 
this Directive, the argument that such 
breach occurred because-' the 
information has not been provided by 
the undertaking which took the 
decision leading to the transfer shall 
not be accepted as an excuse. 4 The obligations laid down in this 
Article shall apply irrespective of whether 
the decision resulting in the transfer is taken 
by a natural person or a legal person other 
than the employer. In considering alleged 
breaches of the information and 
consultation requirements laid down by this 
Directive, the argument that such breach 
occurred because the information has not 
been-provided by the natural or legal person 
who/which took the decision leading to the 
transfer shall not be accepted as an excuse. 
The Member States may limit the 
obligations laid down in paragraphs 1, 
2 and 3 to undertakings or businesses 
which normally employ 50 or more 
employees or which, if employing less 
than 50 employees, fulfil the workforce 
size thresholds for the election or 
nomination of a collegiate body 
representing the employees. 5. The Member States may limit the 
obligations laid down in paragraphs 1. 2 
and 3 to undertakings or businesses which, 
in terms of the number of employees, meet 
the conditions for the election or 
nomination of a collegiate body 
representing the employees. 
Member States shall provide that 
where there are no representatives of 
the employees in an undertaking or 
business, the employees concerned 
must be informed in advance when a 
transfer within the meaning of 
Article 1(1) is about to take place. Unchanged 
Article 6A 
1. For the purposes of the information 
and consultation requirements laid 
down in this Directive, the Member 
States shall provide for employee 
representatives who enjoy the 
necessary independence to carry out 
the functions assigned to them. 
Section IV 
Final provisions 
Article 7 Section IV 
Final provisions 
Article 7 
2<i 
^ttÊÊÊtÊBÊÊÊÊÊlÊm 
This directive shall not affect the right of 
Member States to apply or introduce laws, 
regulations or administrative provisions 
which are more favourable to employees or 
to promote or permit collective agreements 
or agreements between social partners more 
favourable to employees. Unchanged 
Article 7-A 
Member States shall provide for sanctions 
in the event of failure to comply with the 
national provisions adopted under this 
Directive and shall take the necessary 
measures to ensure that these sanctions are 
enforced. These sanctions shall be effective, 
proportionate and dissuasive. 
Article 7-B 
When the Member States apply the 
provisions contained in this Directive, they 
may under no circumstances introduce 
discrimination on the basis of race, sex, age, 
handicap, sexual orientation, colour. 
religion or nationality. 
Article 8 Article 8 
Member States shall introduce into their 
national legal systems such measures as are 
necessary to enable all employees who 
consider themselves wronged by failure to 
comply with the obligations arising from 
this Directive to pursue their claims by 
judicial process after possible recourse to 
other competent authorities. Unchanged 
This Article shall also apply to employees' 
representatives in respect of their rights 
under Articles 4(3, 4 and 5), 5 and 6. This Article shall also apply to employees' 
representatives in respect of their rights 
under Articles 4(3 and 4). 5 and 6. 
^3 
Article 9 Article 9 
1. Member States shall bring into force the Unchanged 
laws, regulations and administrative 
provisions necessary to comply with this 
Directive within 18 months at the latest 
from the date of its adoption or shall 
ensure, that, at that date at the latest, the 
employers' and employees' 
representatives have introduced the 
required provisions by means of 
agreement, the Member States being 
obliged to take the necessary steps 
enabling them at all times to guarantee 
the results imposed by this Directive 
2. When Member States adopt the Unchanged 
measures referred to in paragraph 1, 
such measures shall contain a reference 
to this Directive or shall be accompanied 
by such a reference on the occasion of 
their official publication. The methods of 
making such a reference shall be laid 
down by the Member States. 
Member States shall inform the Unchanged 
Commission immediately of the 
measures they take to implement this 
directive. 
Article 10 Article 10 
Directive 77/187/EEC is repealed with r)eieted 
effect from the date of transposai of the 
present Directive, without prejudice to the 
Member States' obligations with regard to 
the deadline for transposai of Directive 
77/187/EEC, indicated in Annex I. 
Any references made to the repealed j}eiet J 
Directive are understood as being made to 
the present Directive within the meaning of 
Article 9(1), and are to be interpreted on 
the basis of the Comparative Table in 
Annex II. 
Article 11 Article 11 
*1 
dtf^liUÉjXP 
This directive is addressed to the Member Unchanged 
States. 
This directive shall enter into force 20 days Unchanged 
after its publication in the Official Journal 
of the European Communities. 
is 
ISSN 0254-1475 
COM(97) 60 final 
DOCUMENTS 
EN 06 04 08 10 
Catalogue number : CB-CO-97-050-EN-C 
ISBN 92-78-15675-2 
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