WRITTEN QUESTION P-1947/00

by Ulla Sandbæk (EDD) to the Commission

(7 June 2000)

Subject: Implementation of directives in Member States via collective bargaining agreements

The then Commissioner Padraig Flynn gave an assurance on 10 May 1993 that it is possible to implement directives via collective bargaining agreements without supplementary legislation. Was it implicit in Commissioner Flynn's letter that such implementation can take place only where there is 100 % coverage by such an agreement?

How does the Commission envisage that Danish workers not covered by collective bargaining agreements could come within the scope of Council Directive 93/104/EC(1) of 23 November 1993 concerning certain aspects of the organisation of working time?

(1) OJ L 307, 13.12.1993, p. 18.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(12 July 2000)

In respect of the use of collective agreements as a means of implementation the Honourable Member is referred to Article 137(4) (ex Article 118) of the EC Treaty:

A Member State may entrust management and labour, at their joint request, with the implementation of directives pursuant to paragraphs 2 and 3. In this case, it shall ensure that, no later than the date on which a directive must be transposed in accordance with Article 249, management and labour have introduced the necessary measures by agreement, the Member State concerned being required to take any necessary measure enabling it at any time to be in a position to guarantee the results imposed by that directive.

Secondly, the Court of Justice has stated that:

Although Member States may leave the implementation of the (principle of equal pay) in the first instance to representatives of management and labour, that possibility does not discharge them from the obligation of ensuring, by appropriate legislative and administrative provisions, that all workers in the Community are afforded the full protection provided for in Directive(1). That State guarantee must cover all cases where effective protection is not ensured by other means, for whatever reason, and in particular cases where the workers in question are not union members, where the sector in question is not covered by a collective agreement or where such an agreement does not fully guarantee (the principle of equal pay)(2).

At present, the Commission is examining the implementation of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time(3) with a view to presenting a comprehensive implementation report concerning all Member States. As regards the Danish implementation of the Directive, the Commission has been in contact with the Danish authorities with a view to clarifying whether certain provisions of the Directive are implemented in a way which ensures that all workers are granted the full extent of their rights.

(1) Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ L 45, 19.2.1975).

(2) Case 143/83 Commission v. Kingdom of Denmark [1985] ECR 427. See also e.g. Case 235/84 Commission v. Italian Republic [1986] ECR 2291.

(3) OJ L 307, 13.12.1993.