Reexamined proposal for a COUNCIL DIRECTIVE on the establishiment 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 employess
Date: 1994-09-20
Institutions: European Commission
Subjects: European undertaking, group of companies, labour law, worker consultation, worker information, works council

COMMISSION  OF  THE  EUROPEAN  COMVIUNITIES 

C0M(94) 406 final 
Brussels,  20.09.1994 

94/0113  (PRT) 

Reexamined  proposal  for a 

COUNCIL  DIRECTIVE 

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 

(presented  by the Commission  pursuant  to Article  189 C (d) 
of  the EC Treaty) 

EXPLANATORY  MEMORANDUM 

On  13 April  1994, the Commission  adopted  a "Proposal  for  a Council  Directive  on  the 
establishment  of European  committees  or  procedures  in  Community-scale  undertakings 
and  Community-scale  groups  of  undertakings  for  the  purposes  of  informing  and 
consulting employees"1. 

The Economic and  Social  Committee  delivered  its opinion  on  1 June  19942. 

The European  Parliament  delivered  its opinion  at first reading on 4 May  19943. 

On  3 June  1994, the Commission  adopted  an  amended  proposal  under  Article  189a (2) 
of the EC Treaty, incorporating  a number of the amendments proposed by the European 
Parliament4. 

On  18 July  1994, the Council  adopted a common position on the Commission's amended 
proposal5. 

The European Parliament examined  the Council's common position at second reading on 
15 September  1994 and  approved  it subject  to  12 proposed  amendments. 

The Commission has examined the amendments proposed by the European Parliament at 
second  reading,  incorporating  a number  of them  into the present  reexamined  proposal. 

The Commission's position on each of the amendments approved by Parliament at second 
reading is as follows. 

AMENDMENTS  1  AND  2 

These amendments seek to reduce the thresholds indicated in Art.  12(l)(a) and (c) of the 
common  position,  for  the  number  of  employees  on  the  payroll  of  a  Community-scale 
undertaking  or group  of undertakings,  from  1 000 to 500 and from  150 to  100. 

As it pointed  out  in the course of the first  reading in Parliament,  the Commission  feels 
that the scope of the directive must be limited to the largest European undertakings.  1 000 

OJC  135,  18.5.1994, p. 8. 
Not yet  published  in  the  Official  Journal. 
Not  yet  published  in  the  Official  Journal. 
OJ  C  199, 21.7.1994,  p. 10 
OJC  244, 31.8.1994,  p.37 

employees  has  always  been  regarded  as  the  most  appropriate  yardstick  for  this  new 
approach  to  the  international  information  and  consultation  of  workers.  The  Commission 
would,  however,  point  to  the  terms  of  Article  15  of  the  common  position,  which  states 
that  the  Commission  is  required  to  review  the  application  arrangements  within  a  fixed 
period,  with  special  reference  to  the  workforce  size  thresholds.  This  will  give  the 
Commission  an  opportunity  to  take  a fresh  look  at this  question. 

The Commission  is willing to accept the European Parliament's amendment  regarding the 
second  threshold  (number  of workers employed  in  at least two different  Member  States). 

AMENDMENT  3  (AND  AMENDMENTS  4,  ll  AND  14) 

Amendment  3 seeks to allow only workers' representatives for the undertakings  belonging 
to the  group  to  appoint  the  the workers'  representatives  on  the  special  negotiating  body. 
Amendments  4,  11  and  14  are  also  concerned  with  the  arrangements  for  setting  up  the 
special  negotiating  body  or  the  European  Works  Council,  proposing  the  introduction  of 
a  number  of  additional  rules. 

The Commission  appreciates  the desire of the  European  Parliament  to uphold  democratic 
principles  in  setting up these worker-representation  bodies. Nonetheless,  the  Commission 
is convinced  that the best  approach  is not to interfere  in  existing  forms  and  arrangements 
for  employee  representation  at  national  level  (which  are  themselves  in  conformity  with 
democratic  principles)  and  to  allow  them  to  be  used  in  the  procedures  imposed  by  the 
directive,  if  the  Member  States  so  wish.  This  principle,  which  is  the  corollary  to  the 
principle  of  subsidiarity,  is reflected  in  Article  2 (1) (d), according  to which  "employees' 
representatives  means the  employees' representatives  provided  for  by  national  law  and/or 
practice". 

Introducing  uniform  and  restrictive  rules  into  the  text  of  the  directive  would  seriously 
limit the freedom  which  it would  seem  desirable  for Member  States to enjoy.  In  addition, 
the  proposed  rule  whereby  it would  be up  to  each  Member  State to  lay  down  the  criteria 
for  determining  supplementary  members is impracticable  in that,  if adopted,  it would  lead 
to  a  conflict  of  laws  which  would  be  very  difficult  to  resolve. 

The  same  arguments  can  be  advanced  with  regard  to  Parliament's  call  for  account  to  be 
taken  of  the  relative  significance  of  the  various  employee  categories,  this  constituting  a 
principle which  is completely  unknown  in much  existing  national  legislation  and  practice 
and  which  would  therefore  be  difficult  to  apply  in  a  uniform  and  across-the-board 
manner. 

Nonetheless,  the  Commission  can  agree  to  a  new  recital  in  the  preamble  to  the 
reexamined  proposal  stating that Member  States may,  if they  so wish,  make provision  for 
the  representation  of  the  various  employee  categories. 

AMENDMENT  5 

This amendment seeks to enable employees' representatives from third countries to be on 
the  special  negotiating  body,  with  undertakings  and  establishments  situated  in  such 
countries  being  regarded  for  this  purpose  as  situated  in a Member  State. 

The  text  of  the  proposed  directive  as  it  stands  does  little  or  nothing  to  prevent  the 
participation  of  employees'  representatives  from  third  countries,  either  in  the  special 
negotiating  body  or in a European Works Council  or in an information  and  consultation 
procedure.  Nonetheless,  the  directive  adopts  a voluntarist approach  in  this  regard.  This 
is  perfectly  understandable  in  that  it  would  not  be  possible  to  require  the  direct 
application  of the directive's rules outside the directive's territorial  scope (i.e. the territory 
of  the  eleven  Member  States  to  which  the  directive  is  addressed).  Here  too,  the 
Commission  feels  that it  is up to Member  States,  if  they  think  it  useful  and  desirable,  to 
introduce  the  appropriate  compulsory  measures  to  impose  on  undertakings  and  groups 
whose  central  management  is  situated  on  their  territory  a  wider  framework  for  the 
transnational  information  and  consultation  of  employees  than  derives  from  the  directive 
itself.  (The directive has to be restricted  to its natural  field  of application,  i.e.  the  territory 
of  the  eleven  Member  States  concerned.) 

AMENDMENT  7 

Amendment  7 seeks to  reduce  to  one  and  a half years the three-year  period  provided  for 
in  Article  7  (1)  of  the  common  position  as  the  period  within  which  the  subsidiary 
provisions  adopted  by the Member  States in  accordance  with the annex  do not  yet  apply. 

This  deadline  has  emerged  gradually  in  the  course  of  institutional  discussions  on  the 
proposal  presented  by  the  Commission  last  April.  The  proposal  then  was  for  a  two-year 
period;  the  Council  decided  to  introduce  into  its  common  position  a three-year  deadline, 
with  no  opposition  from  the  Commission.  The  Commission's  initial  texts  (dating  from 
1991),  on  the  other  hand,  provided  for  only  one  year. 

The  evident  point  of  extending  the  deadline  was  to  encourage  voluntary  agreements 
between  the  special  negotiating  body  and  the  central  management.  The  Commission  is 
sympathetic  to  this  standpoint,  as  is  illustrated  by  its  changing  position  over  time. 
Nonetheless,  the  Commission  realises  that  extending  the  deadline  has  the  disadvantage 
of delaying the implementation  of the information  and consultation  mechanisms  provided 
for  in  the  directive  in  extreme  situations  of  unwillingness  to  implement. 

The  Commission  therefore  agrees  to  resubmit  this  question  to  the  Council  (on  the  basis 
of  a 2-year  period)  to  enable  the  Council  to  reexamine  its  common  position  in  the  light 
of  the  stance  adopted  by  the  European  Parliament  at  second  reading. 

AMENDMENT  8 

Amendment  8 sets out to restrict the facility  available to Member  States to make  special 
arrangements  for  the  central  management  of  undertakings  established  on  their  territory 
and  which  pursue  directly  and  essentially  the  aim  of  ideological  guidance  with  respect 
to  information  and  the  expression  of  opinions  to  instances  where  rules  in  this  field 
already  exist  in  national  law. 

The  Commission  is  able to  accept this  point  of  view,  which  has been  incorporated  into 
the  reexamined  proposal. 

AMENDMENT  9 

Amendment  9  seeks  to  give  more  substance  to  the  measures  for  the  protection  of 
employees' representatives set out in general terms in Article  10 of the common  position. 
Special  mention  is  made of the prohibition  of any form  of discrimination  and  protection 
against  dismissal  or other  sanctions  in  respect  of  activities  associated  with  the  exercise 
of  a mandate  as an  employees'  representative. 

Although  it feels that this type of measure was already covered by the wording  of Article 
10 of the common position, the Commission  is willing to incorporate the required details 
into  its  reexamined  proposal. 

AMENDMENT  10 

This represents a bid by the European Parliament to reduce the period allowed  in Article 
15  for  review  of the  directive. 

The  Commission  can  go  along  with  the  5-year  period  proposed  by  Parliament. 

REEXAMINED  PROPOSAL  FOR A 

COUNCIL  DIRECTIVE 

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 

COMMON  POSITION 

AMENDED TEXT 

Citations 

Recitals 1-15 

Recital  15 a (new) 

Recitals  16-22 

Article 1 

Article 2 

Unchanged 

Unchanged 

in  accordance  with 

Whereas, 
the 
principle  of  subsidiarity,  it  is  for  the 
Member States to determine who are the 
employees'  representatives  and  to  make 
provision,  should  they  think  fit,  for 
balanced  representation  of  the  various 
categories of  employees 

Unchanged 

Unchanged 

1. For the purposes  of this Directive: 

a) 

"Community-scale  undertaking" 
means  any  undertaking  with  at 
least  1 000 employees within  the 
Member  States  and  at  least  150 
employees in each of at least two 
Member  States; 

a) 

"Community-scale  undertaking" 
means  any  undertaking  with  at 
least  1 000 employees within  the 
Member  States  and  at  least  100 
employees in each of at least two 
Member  States; 

Point (b) 

Unchanged 

c) 

- 

- 

- 

group 

"Community-scale 
of 
undertakings"  means  a  group  of 
undertakings  with  the  following 
characteristics: 

at  least  1 000  employees  within 
the Member  States; 

at  least  two  group  undertakings 
in  different  Member  States;  and 

at  least  one  group  undertaking 
with  at  least  150  employees  in 
one  Member  State  and  at  least 
one other group undertaking with 
at least 159 employees in  another 
Member  State; 

c) 

- 

- 

- 

group 

"Community-scale 
of 
undertakings"  means  a  group  of 
undertakings  with  the  following 
characteristics: 

at  least  1 000  employees  within 
the Member  States; 

at  least  two  group  undertakings 
in  different  Member  States;  and 

at  least  one  group  undertaking 
with  at  least  100  employees  in 
one  Member  State  and  at  least 
one other group undertaking  with 
at least  100 employees  in  another 
Member  State; 

Points  (d) to  ûù 

Paragraph  2 

Articles  3 -6 

Article  7 

Unchanged 

Unchanged 

Unchanged 

1.  In  order  to  achieve  the  objective  in 
Article  1 (1), the subsidiary  requirements 
the  legislation  of  the 
laid  down  by 
Member  State  in  which 
the  central 
management  is  situated  shall  apply: 

1.  In  order  to  achieve  the  objective  in 
Article  1(1), the subsidiary  requirements 
the 
laid  down  by 
Member  State 
the  central 
management  is  situated  shall  apply: 

the  legislation  of 
in  which 

- 

- 

- 

where  the  central  management 
and  the  special  negotiating  body 
so decide,  or 

where  the  central  management 
refuses to commence negotiations 
within  six  months  of  the  request 
referred  to  in  Article  5 (1),  or 

where,  after  three  years  from  the 
date  of  this  request,  they  are 
unable  to  conclude  an  agreement 
as laid  down  in  Article  6  and  the 
special  negotiating  body  has  not 

- 

- 

- 

where  the  central  management 
and  the  special  negotiating  body 
so  decide,  or 

where  the  central  management 
refuses to commence  negotiations 
within  six  months  of  the  request 
referred  to  in  Article  5  (1),  or 

where,  after  two  years  from  the 
date  of  this  request,  they  are 
unable  to  conclude  an  agreement 
as laid  down  in  Article  6  and  the 
special  negotiating  body  has  not 

taken the decision  provided  for in 
Article  5 (5). 

taken the decision provided  for  in 
Article  5 (5). 

Paragraph  2 

Article  8 

Unchanged 

Paragraphs  1 and  2 

Unchanged 

for 

3.  Each  Member  State  may  lay  down 
the  central 
particular  provisions 
management  of  undertakings 
its 
in 
territory  which  pursue  directly  and 
essentially 
ideological 
guidance with  respect to information  and 
the  expression  of  opinions. 

aim  of 

the 

Article  9 

Article  10 

functions  under 

Members  of  special  negotiating  bodies, 
members  of  European  Works  Councils 
and employees' representatives exercising 
the  procedure 
their 
referred  to  in  Article  6  (3)  shall,  in  the 
exercise  of  their  functions,  enjoy 
the 
same protection  and  guarantees  provided 
for  employees'  representatives  by  the 
national  legislation  and/practice  in  force 
in  their  country  of  employment. 

No  provision  made 

for 

3.  Each  Member  State  may  lay  down 
the  central 
particular  provisions 
management  of  undertakings 
its 
in 
territory  which  pursue  directly  and 
essentially 
ideological 
guidance with  respect to information  and 
the expression  of opinions,  provided  that 
such  provisions  already  exist  in  national 
law. 

aim  of 

the 

Unchanged 

Unchanged 

to 

be 

from 

enjoy 

subject 

protection 

Thev  may 
no 
discrimination  bv  virtue  of  their  activity 
and 
from 
shall 
in  exceptional 
dismissal,  apart 
circumstances  which 
the  said 
dismissal,  and  protection 
from  other 
sanctions  imposed  by  reason  of  oral  or 
interventions 
action 
written 
connected  with 
their 
mandate. 

the  exercise  of 

justify 

and 

Unchanged 

in  particular 

apply 
at  meetings  of 

to 
This 
shall 
special 
attendance 
negotiating  bodies  or  European  Works 
Councils  or  any  other  meetings  within 
the framework  of the agreement  referred 
to  in  Article  6  (3),  and  the  payment  of 
wages  for  members  who  are on  the  staff 
of  the  Community-scale  undertaking  or 
the  Community-scale 
of 
undertakings  for  the  period  of  absence 
necessary  for  the  performance  of  their 
duties. 

group 

Articles  1 1 - 14 

Article  15 

Unchanged 

Not  later  than 
*,  the  Commission 
shall,  in  consultation  with  the  Member 
States  and  with  management  and  labour 
at  European  level,  review  its  operation 
and,  in  particular,  examine  whether  the 
workforce size thresholds are appropriate 
with  a  view 
suitable 
the  Council,  where 
amendments 
necessary. 

to  proposing 

to 

Not  later  than 
*,  the  Commission 
shall,  in  consultation  with  the  Member 
States  and  with  management  and  labour 
at  European  level,  review  its  operation 
and,  in  particular,  examine  whether  the 
workforce size thresholds are appropriate 
to  submitting  suitable 
with  a  view 
the 
amendments 
Council,  where  necessary. 

to  Parliament  and 

Article  16 

Annex 

Unchanged 

Unchanged 

*  six years after the adoption of this Directive 

* five years after the adoption of this Directive 

BSN 0254-1475 

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