WRITTEN QUESTION E-2535/00

by Herbert Bösch (PSE) to the Commission

(28 July 2000)

Subject: Council Directive 94/45/EC on the establishment of a European Works Council

BASS PLC, a concern which manages more than 2 800 hotels and 3 000 restaurants, concluded before 22 September 1996 a voluntary agreement, pursuant to Article 13 of Directive 94/45/EC(1), on the establishment of a European Works Council, with the result that the existence of this agreement is safeguarded beyond the date on which Member States are required to transpose the directive.

The agreement lays down arrangements for the election of workers' representatives to the BASS European Forum (BASS PLC's European Works Council) which completely disregard the procedures for the legitimation of works councils laid down for Austria in that country's labour law.

Moreover, other provisions of the same agreement provide no guarantee that employees working on the individual premises run by the BASS concern are represented by legitimate workers' representatives, which runs counter to the objective of Directive 94/45/EC, i.e. to improve the information and consultation of workers in firms operating throughout the Community.

This state of affairs prompts the following questions:

1. The BASS concern is working on the assumption that the voluntary nature of the agreement pursuant to Article 13 will preclude the application to it as a firm of all the relevant provisions under European law and national labour standards. Does the Commission share this interpretation of the law, and does this not in fact amount to an opt-out clause from European law?

2. Is consideration being given, as part of the current revision procedure pursuant to Article 15 of Directive 94/45/EC, to removing these contradictions between the voluntary agreements pursuant to Article 13 and the current provisions of national and European law?

3. Would it not make sense to ensure that, in all cases, even if firms take the option provided for in Article 13, workers can exercise their rights to information and consultation, as laid down in Article 1 of the Directive, and that the provisions governing workers' representatives apply, as laid down in Article 2 of the Directive?

4. In that connection, would it not make sense to introduce a rule laying down the arrangements for the termination of agreements pursuant to Article 13 or to incorporate into the text of the directive procedures providing for a switch from Article 13 agreements to procedures pursuant to Article 6?

5. Would enhanced consultation rights for trade unions and stiffer penalties not be effective means of combating the repeated breaches of this and other provisions of the directive?

(1) OJ L 254, 30.9.1994, p. 64.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(4 October 2000)

According to Article 13 of 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(1), and the relevant provisions in national implementing legislation, social partners at company level can conclude voluntary agreements establishing a European works council. The obligations arising from this Directive shall not apply to Community-scale undertakings in which there was already an agreement, covering the entire workforce, providing for the trans-national information and consultation of employees. Such pre-directive agreements had to be signed before 22 September 1996.

Therefore, the legal effect of a valid pre-directive agreement is, in fact, that such undertakings are exempted from applying the Directive and in particular from applying the subsidiary provisions laid down in the annex.

Bass PLC has concluded an Article 13 agreement, which, on the basis of information available to the Commission, was amended in 1998 after negotiations between social partners and after consultation with the European committee of food, catering and Allied workers unions ECF-IUF.

As regards the revision of Directive 94/45/EC, the Commission, in its report of 4 April 2000 on the application of that Directive(2), has taken a formal position stating that the review process will continue taking into consideration the debates in the Council and in the European Parliament on the dossiers closely linked with the Directive (proposal for a Directive establishing a general framework for informing and consulting employees in the European Community(3); draft Directive on employee involvement within the European Company.) On the basis of the results of this review as well as on the basis of the evolution of the other dossiers, the Commission will at the given moment decide on the possible revision of the Directive.

(1) OJ L 254, 30.9.1994.

(2) COM(2000) 188 final.

(3) COM(98) 612 final.