Proposal for a COUNCIL DIRECTIVE on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC
Date: 1996-01-31
Institutions: European Commission
Subjects: equal treatment, framework agreement, parental leave, professional association, social policy

COMMISSION  OF THE EUROPEAN  COMMUNITIES 

Brussels,  31.01.1996 
COM(96)  26  final 

96/0033 (PRT) 

Proposal  for a 
COUNCIL  DIRECTIVE 

on the framework  agreement  on parental  leave  concluded by 
UNICE,  CEEP and the ETUC 

(presented  by the Commission) 

I'' 

m-

EXPLANATORY  MEMORANDUM 

Introduction 

1.  Reconciling  working  and  family  life  is  a  key  element  in  equal  opportunities  policy. 
Since the  beginning  of  the  '80s,  it has been  one  of  the  Commission's  priorities  in  this 
area.  On  24 November  1983 
for  a 
Council  Directive  on  parental  leave  and  leave  for  family  reasons0}.  The  aim  of  this 
proposal  was to grant to workers the right to a minimum  period of leave following  the 
birth  or adoption  of  a child.  It  also provided  for  leave for  other  family  reasons. 

the  Commission  submitted  a  proposal 

2.  The  Economic  and  Social  Committee  gave  its  opinion  on  24  May  1984.  The 
European  Parliament  gave its opinion  on 30 March  1984, proposing  17 amendments to 
the  Commission's  proposal.  In  accordance  with  Article  149  of  the  Treaty,  the 
Commission  submitted  an  amended  proposal(2)  to  the  Council  on  15 November  1984, 
incorporating  some of the  amendments proposed  by  Parliament. 

3. 

4. 

5. 

This proposal  was discussed in the Council and by the Ministers themselves on various 
occasions between  1985  and  1994, but the  unanimity  required  in  accordance  with  the 
legal  basis  (Article  100)  was  not  obtained.  Despite  in-depth  discussions  within  the 
Council  and  the  broad  consensus  which  emerged  particularly  clearly  in  1993,  the 
proposal  was not  adopted. 

In  addition  to  submitting  this  proposal,  the  Commission  has  stressed  the  key  role 
conciliation  can play  in  effectively  promoting  equal  opportunities  at  work,  in  a series 
of texts submitted  over the past ten years. Many  of these initiatives  were supported by 
the Council  of Ministers(3). 

In  July  1994  the  Commission  published  the  White  Paper  on  the  future  of 
European  social policy, in which it reiterates its desire to make progress in this area and 
indicates  in  Chapters  3  and  5  that  it  will  examine  the  possibility  of  a  framework 
directive on conciliation, providing for  career breaks such as parental leave. The aim of 
the proposal would be to encourage people to devise new models catering better for the 
needs  of European  society  and to  enable  women  to be integrated  fully  into  the labour 
market. 

6.  As no progress had  been  made in the Council, the Commission  decided  to initiate the 
procedure  under  Article 3 of the Agreement  on  Social  Policy.  On 22 February  1995 it 
therefore  gave its approval  for  consultation  of the social partners  under Article 3(2) of 
the said Agreement  on the basis of a text which retraced the steps of the  Commission's 
conciliation  policy  and  examined  it  from  various  points  of  view.  At  the  end  of  a 
consultation  period  of  six weeks, the Commission  received  17 responses. 

(i) 

(2) 

(3) 

COM(83) 686  final. 
COM(84)631  final. 
For  example,  point  16 of  the  Community  Charter  of  Fundamental  Social  Rights  for 
Workers, the Third medium-term  action programme on equal opportunities for men and 
women, 1991 to 1995 and the Council Recommendation of 31 March  1992 on child care 
(OJ No L  123, 8.5.1992, p  16). 

7.  The social partners' responses showed that there was a consensus on the need for action 
on  conciliation  in  one  form  or  another  in  accordance  with  the  guidelines  in  the 
Commission's  first  document.  The  social  partners  came  out  very  clearly  in  support  of 
promotion  of equal  opportunities  for  men and  women.  As regards the proper  form  and 
level  for  action  to  be  undertaken  in  this  area,  it  was  generally  acknowledged  that  a 
Community  initiative  might  be what  was needed.  At the  very  least,  a Community  text 
might recommend various measures and standards, and a binding Community  framework 
measure  was  also  suggested  to  establish  guidelines  which  could  be  implemented  at 
national,  local  or  enterprise  level.  Many  of  the  responses  also  recommended  that  the 
social  partners  play  an  active  role  in  drafting  the  principles  and  in  putting  them  into 
practice through  collective  negotiations. 

8.  After  analysing the reactions to its document, the Commission decided to initiate the second 
round of  consultation  provided  for  under  Article  3(3) of  the Agreement  on  Social  Policy. 
On 5 July three organizations (UNICE, CEEP and the ETUC) announced their intention of 
starting negotiations on this matter and, in particular, on parental leave. At the end of these 
negotiations, the  three organizations  concluded  a framework  agreement  on  14 December. 
At  the  same time  they  forwarded  the  Agreement  to  the  Commission,  asking  for  it  to  be 
implemented by a Council decision on a proposal from the Commission in accordance with 
Article  4(2) of the Agreement  on  Social  Policy. 

Examination of the Agreement 

9. 

In its Communication  concerning the application  of the Agreement on  Social Policy(4), 
the  Commission  stressed  that  "by  virtue  of  its  role  as  guardian  of  the  Treaties  the 
Commission will prepare proposals for decisions to the Council following  consideration 
of the  representative  status  of the  contracting parties, their  mandate  and the  "legality" 
of  each  clause  in  the  collective  agreement  in  relation  to  Community  law,  and  the 
provisions regarding small and medium-sized undertakings set out in Article 2(2). At all 
events, the Commission intends to provide an explanatory memorandum on any proposal 
presented  to  the  Council  in  this  area,  giving  its  comments  and  assessment  of  the 
agreement  concluded  by  the social partners". 

(i) 

Representative  status of the  contracting  parties  and their mandate 

10.  The organizations which are parties to the Agreement are UNICE, CEEP and the ETUC. 
These three organizations have, since 1985, committed themselves to an autonomous and 
voluntary  process  known  as the  "Val  Duchesse" social  dialogue.  This has given  rise to 
14  joint  opinions,  two  recommendations  and  two  agreements.  They  concluded  a 
significant  agreement  in  October  1991  which  was  designed  to  define  the  role  and 
position  of  social  dialogue  in the new  Community  framework.  Articles  3 and 4 of the 
Agreement on  Social  Policy  are  largely  inspired  by this  Agreement. 

11.  The three  organizations  all  fulfil  the  following  criteria  defined  in  the  Communication 

from  the Commission  (point 24): 

they  are cross-industry  and are organized  at European  level; 

they consist of organizations which are themselves an integral and recognized part 
of  Member  State  social  partner  structures,  have  the  capacity  to  negotiate 
agreements  and  are representative  of  all  Member  States; 

they  have  adequate  structures 
implementing  the  Agreement  on  Social  Policy. 

to  ensure  their  effective  participation 

in 

(4) 

COM(93)  600 of  14 December  1993. 

12.  These three organizations are the only three general cross-industry  organizations within 
the meaning of Annex 2 to the Communication from  the Commission. The study on the 
social partners annexed to the Communication  arrives at several conclusions with regard 
to the  representative  status of  employers'  and trade  union  organizations: 

Employers'  organizations 

12.1  The employers' federation  which is most representative  of all the industrial  sectors and 
the  categories  of  enterprises  is  UNICE.  In  all  the  Member  States  the  organizations 
affiliated  to  the  UNICE  are  by  far  the  most  representative  cross-industry  employers' 
federations.  All  the  affiliated  organizations  at  national  level  are  directly  or  indirectly 
involved in collective bargaining and participate in the International Labour Conference. 
CEEP provides significant  representation of public enterprises or enterprises with public 
participation  in the Member  States. 

Trade  union  organizations 

12.2  By  far  the  most  representative  general  cross-industry  trade  union  confederation  is the 
ETUC. Its affiliated  organizations are the most representative cross-industry trade union 
confederations  in all the Member States. All its affiliated  organizations at national level 
are  directly  or  indirectly  involved  in  collective  bargaining  and  participate  in  the 
International  Labour  Conference. 

13.  The  Commission  notes  that  the  members  of  these  three  organizations  at  national 
level  have given  them  a specific  mandate  for  negotiations  on  parental  leave  and  have 
ratified  the  framework  agreement.  The  three  organizations  have  concluded  the 
framework  agreement  on behalf  of their  national  members. 

14.  The  Commission  concludes  that  these  three  organizations  fulfil  the  condition  of 
representativeness  which  it  had  undertaken  to  verify  before  forwarding  its  proposal. 
However,  the  Commission  has  forwarded  the  framework  agreement  to  all  the 
organizations  which  it  had  previously  consulted  or  informed,  and  has  organized  a 
meeting  for  exchange  of  information  with  them.  Certain  organizations  have  contested 
the representative  status of contracting parties and maintained  that the agreement  does 
not take into account the interests of certain  sectors or categories of enterprises. On the 
contrary, other organizations have underlined the flexible  character of the provisions of 
the agreement that will allow account to be taken, when transposing it into national law, 
of the  specific  needs of  some sectors or sub-sectors. 

(ii) 

"Legality" of  the clauses of the agreement 

15.  The  Commission  has  carefully 

the 
examined 
framework  agreement  and  does not find  any provisions  contrary  to Community  law in 
the main clauses thereof  (Clauses  1, 2 and 3). The fact  that the agreement provides for 
obligations on the Member States does not prevent it from  being legal. On thé contrary, 
it follows from  the second declaration  annexed to the Agreement on Social Policy(5) that 
the second of the arrangements for  application  of the agreements between  management 
and labour at Community level is likely to create obligations for the Member States. The 
obligations  imposed  on  Member  States  do  not  derive  directly  from  the  agreement 

the  clauses  of 

each  of 

(5) 

"The  11  High  Contracting  Parties  declare  that  the  first  of  the  arrangements  for 
application  of  the  agreements  between  management  and  labour  at  Community  level  -
referred  to  in  Article  4(2)  -  will  consist  in  developing,  by  collective  bargaining 
according  to  the  rules  of  each  Member  State, the  content  of  the  agreements,  and  that 
consequently  this arrangement implies no obligation on the Member States to apply the 
agreements  directly  or  to  work  out  rules for  their  transposition,  nor  any  obligation  to 
amend national  legislation  in  force  to facilitate  their  implementation." 

between  the  social  partners  but  from  the  arrangement  for  applying  the  agreement. 
Paragraph  (iv)  contains the  Commission's  assessment  of  the  content  of the  agreement. 

16.  Clause 4 regarding the procedural  rules for applying the agreement is different.  Without 
amending these rules, the Commission  is obliged  to propose to the Council, in the text 
of  its  proposed  legislation,  the  provisions  which  will  be  necessary  to  ensure  that  the 
social  partners'  framework  agreement  is  applied  in  practice  by  the  Member  States  in 
accordance  with  Community  law. 

(iii)  Respect for provisions  regarding small  and medium-sized undertakings 

17.  Article 2(2) of the Agreement on social policy  provides that legislation  on social policy 
shall  avoid  imposing  administrative,  financial  and  legal  constraints  in  a  way  which 
would hold back the creation and development of small and medium-sized undertakings. 

18.  Special  consideration  was  given  to  the  specific  situation  of  SMUs  when  the 
framework  agreement  was drawn  up. There  are two  explicit  references  to them: 

General  Considerations,  12. 

"Whereas  this  agreement  takes  into  consideration  the 
need to improve social  policy  requirements, to enhance 
the competitiveness of the Community  economy  and to 
avoid  imposing  administrative,  financial  and  legal 
constraints  in  a  way  which  would  hold  back  the 
creation  and  development  of  small  and  medium-sized 
undertakings." 

Clause 2.3.f: 

"Member  States  and/or  Social  Partners  may,  in 
particular, 
arrangements 
to meet the operational and organizational  requirements 
of  small  undertakings". 

authorize 

special 

... 

19.  The  agreement  ensures  that the  special  situation  of  SMUs  is taken  into  consideration, 
explicitly  authorizing  the  Member  States  and/or  social  partners  to  make  special 
arrangements  for  them. 

20. 

In addition, other provisions of the framework  agreement, without explicitly mentioning 
SMUs,  enable  national  provisions  to  be  taken  which  take  account  of  their  special 
situation.  This is true of the  following: 

Clause 2.3.a 

Clause  2.3.e 

"Member  States  and/or  Social  Partners  may, 
in 
particular ... decide whether parental leave is granted on 
a full-time  or part-time basis, in a fragmented  way or in 
the form  of  a time-credit  system," 

"Member  States  and/or  Social  Partners  may,  in 
particular  ...define  the  circumstances  in  which  the 
employer  ...  is  allowed  to  postpone  the  granting  of 
parental  leave  for  justifiable  reasons  relating  to  the 
operation  of  the  enterprise". 

These two provisions  show that the social partners are keen to encourage new,  flexible 
ways  of  organizing  work  and  time  which  are  better  suited  to  the  changing  needs  of 
society  and  which  should  take the  needs  of  both  the  enterprises  and  the  workers  into 
account  (General  Considerations, 6). 

21.  The Commission  therefore  concludes that the framework  agreement  complies  with the 
provisions  concerning  SMUs.  In  drawing  it  up, the  social  partners  provided  scope  for 
the  special  circumstances  of  SMUs  to  be  taken  into  account,  particularly  when  the 
agreement  is being transposed  into national  law. 

(iv)  Assessment of the agreement 

22.  The Commission considers parental leave to be an important factor in reconciling family 
and  working  life.  It  also  constitutes  an  important  element  in  the  introduction  of new, 
flexible  ways  of  organizing  work  and  time.  As  a  result,  the  Commission  asked  the 
social  partners  for  their  reactions  to this  more broadly  based  approach. 

23.  The  Commission  wholeheartedly  endorses 

the  aims  of 

the  social  partners' 

framework  agreement  and  sees  it as an  important  step  in two respects. 

24.  First,  minimum  standards  with  regard  to  parental  leave  are  a  big  step  forward  in 
achieving  equal  opportunities  for  men  and  women.  Sharing  of  family  responsibilities 
between  parents  is a key  element  in  the strategies  designed  to  improve  equality  in the 
labour  market.  It  is also  likely  to  increase the number  of  women  in work.  Reconciling 
working  and family  life  must be part of a long-term  strategy to increase the number of 
women in the working population. The Essen European  Council in December  1994 gave 
top priority  to promoting  employment  and  equal  opportunities.  This was confirmed  by 
the European  Councils  of  Cannes  and  Madrid. 

25.  Secondly,  the  introduction  of  parental  leave  also  contributes  to  realizing  another 
objective  set by the European  Council  in Essen - the introduction of new, flexible  ways 
of  organizing  work.  Such  flexibility  must  meet  the  needs  of  enterprises  which,  faced 
with international  competition, have to increase their competitiveness. It must also take 
account of the interests of workers by enabling them to tailor their  working hours more 
closely  to  their  needs.  An  agreement  between  the  social  partners  on  this  matter  as a 
result of negotiations between employers and workers is the right vehicle for reconciling 
the interests  of the two parties. 

26.  The  Commission  considers  that  all  the  conditions  are  fulfilled  for  a  proposal  for  the 
implemented  by  a 

the  social  partners 

to  be 

framework  agreement  between 
Council  decision. 

The Commission's  proposal 

27. 

In  its  Communication  of  14 December,  the  Commission  stated  that  "implementing  an 
agreement concluded  at Community  level by means of a Council decision on a proposal 
from  the Commission  at the joint  request of the social partners would give the Council 
no  opportunity  to  amend  the  agreement.  For  this  reason, the  Commission  will  merely 
propose,  following  examination  of  the  agreement  between  the  social  partners,  the 
adoption  of a decision  on the  agreement  as  concluded". 

28.  The  Commission  also  took  the  view  that  "the  Council  decision  must  be  limited  to 
making binding the provisions of the agreement  concluded between the social partners, 
so the text of the agreement would not form  part of the decision but would be annexed 
thereto". 

29.  Finally, the Commission  announced that "if the Council decides, in accordance with the 
procedure  set  out  in  the  last  subparagraph  of  Article  4(2),  not  to  implement  the 
agreement  as  concluded  by  the  social  partners,  the  Commission  will  withdraw  its 
proposal  for  a  decision  and  will  examine,  in  the  light  of  the  work  done,  whether  a 
legislation  instrument  in the  area  in question  would  be  appropriate". 

30.  Hence, the  Commission  has not  incorporated  the text  of  the  agreement  in  its  proposal 
but  simply  annexed  it  thereto.  Moreover,  it  reiterates  that,  if  the  Council  amends  the 
agreement  concluded  between  the  social  partners, it will  withdraw  its proposal. 

(i) 

Legal basis 

31.  Article 4(2) of the Agreement on Social  Policy  provides that "agreements concluded at 
Community  level  shall  be  implemented,  in  matters  covered  by  Article  2,  at  the joint 
request  of  the  signatory  parties,  by  a  Council  decision  on  a  proposal  from  the 
Commission".  The  agreement  on parental  leave  relates to  equal  opportunities  for  men 
and  women  in  the  labour  market  and  equal  treatment  at  work,  which  come  under 
Article  2(1)  of  the  Agreement  on  Social  Policy.  This  is  one  of  the  areas  where  the 
Council  may  act  by  a  qualified  majority.  As  a  result  Article  4(2)  is  the  proper 
legal  basis for  the Commission's proposal. 

32.  That  Article  does not provide  for  consultation  of the European  Parliament  on  requests 
addressed to the Commission  by the social partners. In accordance with the undertaking 
in  its  Communication,  the  Commission  has  kept  the  Parliament  informed  about  the 
various phases of consultation  of the social partners. It is also forwarding  this proposal 
to the Parliament  so that  it  can  deliver  its opinion  to the Commission  and the  Council 
if it so wishes. The  same applies to the Economic  and  Social  Committee. 

(ii)  The form the instrument is to take 

33.  The  term  "decision"  within  the  meaning  of  Article  4(2)  of  the  Agreement  on 
Social  Policy  refers  to one of  the binding  legislative  instruments  under  Article  189 of 
the Treaty.  It  is  up to  the Commission  to propose  to the Council  the  most  appropriate 
of the three binding instruments under the said Article (regulation, directive or decision). 
In  this  case,  given  the  nature  (framework  agreement)  and  the  content  of  the 
social  partners'  document,  it  is  clear  that  the  framework  agreement  is  intended  to  he 
applied  indirectly  by  means  of  provisions  to  be  transposed  into  national  law  by  the 
Member  States or the social  partners. Hence, in that  case, the most suitable  instrument 
for its application is a Council directive. Moreover, in accordance with the undertakings 
it has given, the Commission  considers that the text of the agreement should not be part 
of the  decision  but  should  be  annexed thereto. 

34.  The Commission's  comments on the Articles  in  its proposal  are given  below: 

Article 1 

34.1  This  Article  confines 

itself  to  making  the  framework  agreement  between  the 
social  partners obligatory  in order to enable it to be implemented by a Council decision 
under  Article 4(2) of the Agreement  on  Social  Policy. 

Articles  2 and 3 

34.2  These  Articles  contain  the  usual  provisions  for  transposai  into the  national  law of  the 
Member  States. More particularly, Article 2(1) says that the provisions of the Directive 
only prescribe minimum requirements, giving Member States the possibility of adopting 
stricter  measures in the relevant  field. 

34.3  Article 2(2) consists of  a "non-regression"  clause that affects  Member  States having, at 
the  time  of  the  adoption  of  the  Directive,  a  higher  level  of  protection  than  the  one 
guaranteed  by  the  framework  agreement  attached  to  it.  This  clause  concerns  the 
non-regression of the workers' general level of protection on grounds of the adoption of 
the Community Directive. However, it offers  Member States the possibility  of adopting 
different  measures required by their economic and social policies, subject to observance 
of the minimum  requirements prescribed  by the framework  agreement.  It is clear in all 
the circumstances that the room for  manoeuvre of Member  States covers only the level 
of protection  higher than  the one  guaranteed  by the Directive. 

34.4  Article 2(3) is a non-discrimination  clause in accordance with the undertaking given by 
the Commission in its Communication(6) on racism, xenophobia and antisemitism. In this 
connection,  the  solemn  declaration  adopted  by  the  social  partners  in  Florence  in 
October  1995  on  the  prevention  of  racial  discrimination  and  xenophobia  and  the 
promotion  of  equal  opportunities  at  work  should  also be  borne  in  mind. 

34.5  Article  2(4)  obliges  Member  States  to  provide  penalties  which  are  effective, 
commensurate  with  the infringement  and constitute  a sufficient  deterrent.  Indeed, when 
applying Community  law, it is necessary, as in every legal system, on the one hand, that 
those  bearing  obligations  resulting  from  this  law are  dissuaded  from  infringing  it and, 
on the other hand, that  those  who  do not  respect  Community  law are duly  penalized. 

Justification  of the Directive  in respect of subsidiarity 

35.  The proposal  for  a Council  Directive concerning  the framework  agreement on parental 
leave concluded by UNICE, CEEP and CES complies with the principle of  subsidiarity 
as  regards  its  two  criteria,  namely  the  necessity  and  proportionality  as  laid  down  in 
Article  3(b) of the Maastricht  Treaty. 

36.  The first  criterion, namely  the need to  undertake  Community  action, is justified  by the 
fact that social partners, within the framework  of the procedure provided for in Article 3 
of the Agreement on Social Policy, have agreed that it is necessary  to undertake action 
at  Community  level  and  they  have  requested  the  implementation  of  their  agreement 
which has been concluded  at Community  level, through  a Council decision based upon 
a proposal from  the Commission, pursuant to Article 4(2) of that agreement.  Moreover, 
it should be noted that "parental  leave" forms part of the measures which allow men and 
women  to  reconcile  their  professional  and  family  responsibilities  with  a  view  to 
promoting the equality of opportunities, which has been acknowledged as being of major 
importance  at the European  Council  held  in Essen  in December  1994. 

37.  The Council  Directive  corresponds to the requirement  of proportionality  in  so far  as it 
only  defines  the  major  objectives  to  be  attained  by  Member  States,  while  allowing 
social  partners and not the  Community  to fix its  content. 

Conclusion 

38.  The  Council 

the 
framework  agreement  on parental  leave concluded  by UNICE,  CEEP and the ETUC. 

for  a  Directive  on 

the  proposal 

is  requested 

to  adopt 

(6)  COM(95) 653  final  of  13 December  1995. 

8 

Proposal  for  a 
COUNCIL  DIRECTIVE 

on  the  framework  agreement  on  parental  leave  concluded  by 
UNICE,  CEEP  and the  ETUC 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Agreement  on  Social  Policy  annexed  to  the  Protocol  (No  14)  on 
Social  Policy, annexed to the Treaty establishing  the European Community  and, in particular, 
Article  4(2)  thereof, 

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

Whereas on the basis of  the Protocol  on  Social  Policy  annexed to the Treaty  establishing  the 
European  Community,  the  Member  States,  with  the  exception  of  the  United  Kingdom  of 
Great  Britain  and Northern  Ireland  (hereinafter  referred  to as  "the Member  States"),  wishing 
to  implement  the  Social  Charter of  1989,  have  concluded  an  agreement  on  social  policy, 

Whereas  management  and  labour  (the  social  partners)  may,  in  accordance  with  Article  4(2) 
of  the  Agreement  on  Social  Policy,  request jointly  that  agreements  at  Community  level  be 
implemented  by  a Council  decision  on  a proposal  from  the  Commission; 

Whereas point  16 of  the  Community  Charter  of  the  Fundamental  Social  Rights  of  Workers, 
dealing  with  equal  treatment  for  men  and  women,  provides  inter  alia  that  "measures  should 
also  be  developed  enabling  men  and  women  to  reconcile  their  occupational  and  family 
obligations"; 

Whereas the Council,  despite the existence of  a broad consensus  amongst the  majority  of the 
Member  States,  has  not  been  able  to  act  on  the  proposal  for  a  Council  Directive  on 
parental  leave  and  leave  for  family  reasons(2),  as  amended(3),  on  15  November  1984; 

Whereas the Commission, in accordance  with Article 3(2) of the Agreement on Social  Policy, 
consulted management  and labour on the possible direction of Community  action with regard 
to  reconciling  occupational  and  family  life; 

Whereas  the  Commission,  considering  after  such  consultation  that  Community  action  was 
desirable,  once  again  consulted  management  and  labour  on  the  substance  of  the  envisaged 
proposal  in  accordance  with  Article  3(3)  of  the  said  Agreement; 

Whereas  the  general  cross-industry  organizations  (UNICE,  CEEP  and the  ETUC)  informed 
the  Commission  in  their joint  letter  of  5 July  1995  of  their  desire  to  initiate  the  procedure 
provided  for  by  Article  4  of  the  said  Agreement; 

Whereas  those  cross-industry  organizations  have  concluded,  on  14  December  1995,  a 
framework  agreement on parental leave; whereas they have forwarded to the Commission their 
joint  request to implement the framework  agreement on parental  leave by  a Council  decision 
on  a proposal  from  the Commission,  in accordance  with  Article  4(2)  of  the said  Agreement; 

0) 

(2) 

(3) 

O J N oC 
O J N oC  333,  9.12.1983,  p.  6. 
O J N oC  316,  27.11.1984,  p.  7. 

Whereas  the  Council,  in  its  Resolution  of  6  December  1994  on  certain  aspects  for  a 
European  Union  social  policy,  a  contribution  to  economic  and  social  convergence  in  the 
Union(4),  asked  management  and  labour  to  make  use  of  the  opportunities  for  concluding 
agreements,  since  they  are  as  a  rule  closer  to  social  reality  and to  social  problems;  whereas 
in  Madrid  the  members  of  the  European  Council  from  those  States  which  had  signed  the 
Agreement  annexed  to  the  Protocol  on  Social  Policy  welcomed  the  conclusion  of  this 
framework  agreement; 

Whereas  the  proper  instrument  for  implementing  the  framework  agreement  is  a  directive 
within the meaning of Article  189 of the Treaty; whereas it therefore binds the Member States 
as to  the  result  to  be  achieved,  whilst  leaving  them  the  choice  of  form  and  methods; 

Whereas,  in  accordance  with  the  principles  of  subsidiarity  and  proportionality  as  set  out  in 
Article  3(b) of  the Treaty, the  objectives  of this  Directive  cannot be  sufficiently  achieved by 
the  Member  States  and  can  therefore  be  better  achieved  by  the  Community;  whereas  this 
Directive limits itself to the minimum required for the attainment of those objectives and does 
not  go  beyond  what  is  necessary  for  that purpose; 

Whereas the Commission has dratted its proposal  for a Council  Directive, taking into  account 
the  representative  status  of  the  contracting  parties,  their  mandate  and  the  legality  of  each 
clause  of  the framework  agreement,  and compliance  with  the  relevant provisions  concerning 
small  and  medium-sized  undertakings; 

Whereas  the  Commission, 
the 
application  of the Agreement on Social  Policy, informed  the European Parliament by sending 
it  the  text  of  the  agreement,  accompanied  by  its  proposal  for  a  Directive  and  the 
Explanatory  Memorandum; 

its  Communication  concerning 

in  accordance  with 

Whereas the Commission also informed the Economic and Social Committee by sending it the 
text  of 
the 
Explanatory  Memorandum; 

the  Agreement,  accompanied  by 

for  a  Directive  and 

its  proposal 

Whereas  the provisions  of this Directive  should  lay  down  minimal  requirements, thus  giving 
Member  States  the  option  of  introducing  more  favourable  provisions; 

Whereas  the  implementation  of  this  Directive  should  not  serve  to justify  any  regression  in 
relation  to  the  situation  which  already  exists  in  every  Member  State; 

Whereas the Community  Charter of the Fundamental  Social Rights of Workers recognizes the 
importance  of  the  fight  against  all  forms  of  discrimination,  especially  based  on  sex,  colour, 
race,  opinions  and  creeds;  whereas  the  Commission  adopted  on  13  December  1995  a 
Communication^ on  racism,  xenophobia  and  antisemitism;  whereas  management  and labour 
adopted  a solemn  declaration  on the prevention  of  racial  discrimination  and xenophobia and 
promotion  of  equal  opportunities  at work  in  Florence  in  October  1995; 

Whereas,  in  keeping  with  Article  5  of  the  Treaty,  Member  States  should  take  all  measures 
necessary  to  safeguard  the  scope  and  the  efficiency  of  Community  law,  and  should  in 
particular,  in  the  event  of  infringement,  determine  penalties  which  are  effective  and 
commensurate  with  it  and  which  constitute  a sufficient  deterrent; 

Whereas a Member  State may  entrust  management  and labour, at their joint  request, with the 
implementation  of  this  Directive,  as  long  as  that  Membr  State  takes  all  the  necessary  steps 
to  ensure  that  it  can  at all  times  guarantee  the  results  imposed  by  this  Directive; 

(4)  OJ No  C  368,  23.12.1994,  p.  6. 
(5)  COM(95)  653  final. 

10 

Whereas  the  implementation  of  the  framework  agreement  contributes  to  achieving  the 
objectives  under  Article  1 of  the  Agreement  on  Social  Policy; 

Whereas parental  leave  is  a matter relating  to  equal  opportunities  at work  under Article  2(1) 
of  the  said  Agreement;  whereas  the  Council  is  therefore  acting  by  a qualified  majority, 

HAS  ADOPTED  THIS  DIRECTIVE: 

Article 1 

The  framework  agreement  on  parental  leave  concluded  on  14 December  1995  between  the 
general  cross-industry  organizations  (UNICE,  CEEP  and  the  ETUC)  and  annexed  to  this 
Directive  is  made  binding. 

Article  2 

1.  Member  States  may  introduce  more  favourable  provisions  than  those  laid  down  in 

this  Directive. 

2. 

The implementation  of  this Directive  shall not in any  case constitute sufficient  grounds 
to justify  a reduction  in the general  level  of protection  of  workers  in the  fields  covered 
by  this Directive; this  shall  be without  prejudice  to the rights of Member  States and/or 
management  and labour  to  lay  down,  in  the  light  of  changing  circumstances,  different 
legislative,  regulatory  or  contractual  arrangements  to  those  prevailing  at  the  time  of 
adoption  of  this  Directive,  provided  always  that the  minimum  requirements  laid  down 
in this  Directive  are  adhered to. 

3.  When  Member  States  adopt  the  provisions  to  implement  this  Directive,  these  shall 
prohibit  any  discrimination  based  on  race,  sex,  sexual  orientation,  colour,  religion  or 
nationality. 

4.  Member  States  shall  determine  the  range  of  penalties  applicable  for  infringements  of 
national provisions made in implementation of this Directive  and shall take all necessary 
steps  to  ensure  that they  are  enforced.  The  penalties  must  be  effective,  commensurate 
with  the  infringement,  and  must  constitute  a  sufficient  deterrent.  Member  States  shall 
notify  these  provisions  to the  Commission  by  the  date mentioned  in paragraph  5 at the 
latest,  and  any  subsequent  amendment  thereto  in  good  time. 

5.  Member  States shall bring into force  the laws, regulations  and administrative  provisions 
necessary  to comply  with this Directive by  [31 March  1998] at the latest or shall  ensure 
that,  by  that  date  at the  latest,  management  and  labour  have  introduced  the  necessary 
measures  by  agreement,  the  Member  States  being  required  to  take  any  necessary 
measures enabling them  at any time to be in a position  to guarantee the results  imposed 
by  this  Directive.  They  shall  forthwith  inform  the  Commission  thereof. 

Member  States  may  have  a  maximum  of  one  more  year,  if  this  is  necessary,  to  take 
account  of  special  difficulties  or implementation  by  a collective  agreement.  They  shall 
inform  the  Commission  forthwith  in  such  circumstances. 

When Member  States  adopt the provisions  referred  to  in the first paragraph, these shall 
contain  a reference  to  this  Directive  or  shall  be  accompanied  by  such  reference  at the 
time of  their official  publication.  The procedure  for  such  reference  shall  be  adopted by 
Member  States. 

11 

This  Directive  is  addressed  to  the  Member  States. 

Article  3 

Done  at Brussels, 

For  the  Council 
The  President 

12 

FRAMEWORK  AGREEMENT  ON  PARENTAL  LEAVE 

ANNEX 

PREAMBLE 

The  enclosed  framework  agreement  represents  an  undertaking  by  UNICE,  CEEP  and  the 
ETUC  to  set  out  minimum  requirements  on  parental  leave,  as  an  important  means  of 
reconciling  professional  and  family  responsibilities  and  promoting  equal  opportunities  and 
treatment  between  m«n  and  women. 

ETUC, UNICE  and  CEEP request  the Commission  to submit  this framework  agreement  to  the 
Council  for  a Council  decision  making  thtse  requirements  binding  in  the  Member  States  of 
the  European  Community  with  the  exception  of  the  United  Kingdom  of  Great  Britain  and 
Northern  Ireland. 

General Considérai*» 

1. 

Having  regard  to  the  Agreement  on  Social  Policy  annexed  to  the  Protocol  on 
Social  Policy  attached  to the Treaty  establishing  the  European  Community  and  in 
particular  Articles  3(4)  and  4(2)  thereof, 

2.  Whereas  Article 4(2) of the Agreement  on  Social  Policy  provides that  agreements 
concluded  at  Community  level  shall  be  implemented,  at  the joint  request  of  the 
signatory  parties,  by  a  Council  decision  on  a  proposal  from  the  Commission; 

3.  Whereas  the  Commission  has  announced  its  intention  to  propose  a  Community 

measure  on  the  reconciliation  of  work  and  family  life; 

4.  Whereas the Community  Charter of fundamental  social  rights stipulates at point  16 
dealing  with  equal  treatment  for  men  and  women,  that  measures  should  be 
developed  to  enable  men  and  women  to  reconcile  their  occupational  and  family 
obligations; 

5.  Whereas  the  Resolution  of  the  Council  of  6  December  1994  recognizes  that  an 
effective  policy  of  equal  opportunities  presupposes  an  integrated,  overall  strategy 
allowing  for  better  organization  of  working  hours  and  greater  flexibility,  and  for 
an easier  return to working  life,  and notes the important  role of the  Social  Partners 
in this  area and  in offering  both  men  and  women  an  opportunity  to reconcile  their 
work  responsibilities  with  family  obligations; 

6.  Whereas  measures  to  reconcile  work  and  family 

life  should  encourage  the 
introduction  of  new  flexible  ways  of  organizing  work  and  time  which  are  better 
suited  to  the  changing  needs  of  society  and  which  should  take  the  needs  of  both 
the  enterprises  and  the  workers  into  account; 

7.  Whereas family  policy  should  be looked  at in the context of demographic  changes, 
the  effects  of  the  ageing  population,  closing  generation  gap  and  promoting 
women's  participation  in  the  labour  force; 

8.  Whereas  men  should  be  encouraged 

to  assume  an  equal  share  of  family 
responsibilities,  for  example  they  should  be  encouraged  to  take  parental  leave  by 
means  such  as  awareness  programmes; 

13 

9.  Whereas  this  agreement  is  a  framework  agreement  setting  out  minimum 
requirements and provisions for parental  leave, distinct from  maternity  leave, and 
for  time  off  from  work  on  grounds  of  force  majeure,  and  refers  back  to 
Member  States  and  Social  Partners  for  the  establishment  of  the  conditions  for 
access  and  modalities  of  application  in  order  to  take  account  of  the  situation  in 
each  Member  State; 

10.  Whereas  Member  States  should  provide  for  the  maintenance  of  entitlements  to 
benefits  in  kind  under  sickness  insurance  during  the  minimum  period  of 
parental  leave; 

11  Whereas Member  States should also, where appropriate under national  conditions 
and  taking  into  account  the  budgetary  situation,  consider  the  maintenance  of 
entitlements to  relevant social  security benefits  as they stand during the minimum 
period  of parental  leave; 

12.  Whereas this Agreement takes into consideration the need to improve social policy 
requirements, to enhance the competitiveness  of the Community  economy  and to 
avoid  imposing  administrative,  financial  and  legal  constraints  in  a  way  which 
would 
and 
hold 
medium-ized  enterprises; 

development 

creation 

small 

back 

and 

the 

of 

13.  Whereas  the  Social  Partners  are best  placed  to  find  solutions  that  correspond  to 
the needs of both employers and workers and shall therefore be conferred  a special 
role in the implementation  and  application  of this  agreement. 

THE SIGNATORY  PARTIES HAVE AGREED THE FOLLOWING: 

II.  Content 

Clause  1: Purpose and scope 

1. 

2. 

This  agreement  lays  down  minimum  requirements  designed  to  facilitate  the 
reconciliation  of parental  and professional  responsibilities  for  working parents. 

This agreement applies to all workers, men and women, who have an employment 
contract  or  employment  relationship  as defined  by  the law, collective  agreement 
or  practice  in force  in  each Member  State. 

Clause 2: Parental leave 

1. 

2. 

3. 

This  agreement  entitles,  subject  to  clause  2.2,  men  and  women  workers  to  an 
individual  right to parental leave on the grounds of the birth or adoption of a child 
to  enable  them  to take  care of that  child,  for  at  least three  months, until  a given 
age of  up to  eight years to be  defined  by  Member  States and/or  Social Partners. 

To promote equal opportunities and equal treatment between men and women, the 
parties  to  this  agreement  consider  that  the  right  to  parental  leave  provided  for 
under  clause  2.1 should,  in principle, be granted  on  a non-transferable  basis. 

The conditions for  access and modalities of application  of parental  leave shall be 
defined  by law and/or  collective  agreement  in the Member  States, as long  as the 
minimum  requirements  of  this  agreement  are  respected.  Member  States  and/or 
Social  Partners  may, in  particular: 

(a)  decide whether parental  leave is granted on a full-time  or part-time basis, in 

a fragmented  way or  in the form  of  a time-credit  system; 

14 

(b)  make entitlement  to parental  leave subject  to a period of work  qualification 

and/or  a length  of  service  qualification  which  shall  not  exceed  one year; 

(c) 

(d) 

adjust  conditions for  access  and  modalities of  application  of parental  leave 
to the  special  circumstances  of  adoption; 

establish  notice  periods  to  be  given  by  the  worker  to  the  employer  when 
exercising  the  right  to parental  leave  specifying  the  beginning  and the  end 
of the period  of leave; 

(e)  define  the  circumstances  in  which  an  employer,  following  consultation  in 
accordance with national law, collective agreements and practices, is allowed 
to postpone  the  granting  of  parental  leave  for justifiable  reasons  related  to 
the  operation  of  the  undertaking  (e.g.  where  work  is of  a seasonal  nature, 
where  a  replacement  cannot  be  found  within  the  notice  period,  where  a 
significant  proportion of the workforce applies for parental leave at the same 
time,  where  a  specific  function  is  of  strategic  importance).  Any  problem 
arising  from  the  application  of  this  provision  should  be  dealt  with  in 
accordance  with  national  law, collective  agreements  and practices; 

(f) 

in  addition  to  (e)  above,  authorize  special  arrangements  to  meet  the 
operational  and organizational  requirements of  small  undertakings. 

4. 

In  order  to  ensure  that  workers  can  exercise  their  rights  to  parental  leave, 
Member  States and/or Social Partners shall take the necessary  measures to protect 
workers  against  dismissal  on the grounds of  an  application  for,  or the taking  of, 
parental  leave in accordance  with national  law, collective  agreements or practice. 

5.  At  the  end  of  parental  leave,  workers  shall  have  the  right  to  return  to  the  same 
job, or, if that is not possible, to an equivalent or similar job consistent with their 
employment  contract  or  employment  relationship. 

6. 

Rights acquired  or in the process of being acquired  by the worker  on the date on 
which  parental  leave  starts  shall  be  maintained  as  they  stand  until  the  end  of 
parental  leave.  At  the  end  of  parental  leave, these  rights,  including  any  changes 
arising  from  national  law,  collective  agreements or  practice, shall  apply. 

7.  Member  States  and/or  Social  Partners  shall  define  the  status  of  the  employment 

contract  or  employment  relationship  for  the period  of parental  leave. 

8.  All  matters  relating  to  social  security  in  relation  to  this  agreement  are  for 
consideration  and  determination  by  Member  States  according  to  national  law, 
taking  into  account  the importance  of the continuity  of  the entitlements  to social 
security  cover  under  the different  schemes,  in  particular  health  care. 

Clause 3: Time-off  from work on grounds of force  majeure 

1.  Member States and/or  Social Partners shall take the necessary  measures to entitle 
workers to time-off  from  work, in accordance with national  legislation, collective 
agreements and/or practice, on grounds of force majeure  for urgent family  reasons 
in  cases  of  sickness  or  accident  making  the  immediate  presence  of  the  worker 
indispensable. 

2.  Member  States and/or  Social  Partners  may  specify  the  conditions  for  access and 
modalities  of  application  of  clause  3.1  and  limit  this  entitlement  to  a  certain 
amount  of time per year  and/or per case. 

15 

Clause  4:  Final  provisions 

1.  Member  States  can  maintain  or  introduce  more  favourable  provisions  than  set  out 

in  this  agreement. 

2. 

3. 

Implementation  of  the  provisions  of  this  agreement  shall  not  constitute  valid 
grounds  for  reducing  the  general  level  of  protection  afforded  to  workers  in  the 
field  of  this  agreement.  This  does not prejudice  the  right  of Member  States  and/or 
Social  Partners 
legislative,  regulatory  or  contractual 
provisions,  in  the  light  of  changing  circumstances  (including  the  introduction  of 
non-transferability),  as  long  as  the  minimum  requirements  provided  for  in  this 
agreement  are  complied  with. 

to  develop  different 

This  agreement  does  not  prejudice  the  right  of  the  Social  Partners  to  conclude,  at 
the  appropriate  level  including  European 
level,  agreements  adapting  and/or 
complementing  the  provisions  of  this  agreement  in  order  to  take  into  account 
particular  circumstances. 

4.  Member  States  shall  adopt  the  laws,  regulations  and  administrative  provisions 
necessary  to  comply  with  the  Council  Decision  within  a period  of  two years  from 
its  adoption  or  shall  ensure0)  that  the  Social  Partners  establish  the  necessary 
measures  by  way  of  agreement  by  the  end  of  this  period.  Member  States  may,  if 
necessary  to take account of particular  difficulties  or implementation  by  collective 
agreement,  have  up  to  a  maximum  of  one  additional  year  to  comply  with 
this  decision. 

5. 

The  prevention  and  settlement  of  disputes  and  grievances  arising  from  the 
application  of  this  agreement  shall  be  dealt  with  in  accordance  with  national  law, 
collective  agreements  and  practices. 

6.  Without  prejudice  to  the  respective  roles  of  the  Commission,  national  courts  and 
the  Court  of  Justice,  any  matter  relating  to  the  interpretation  of  this  agreement  at 
European  level  should,  in  the  first  instance,  be  referred  by  the Commission  to  the 
signatory  parties  who  shall  give  an  opinion. 

7. 

The  signatory  parties  will  review  the  application  of  this  Agreement,  five  years 
after  the  date  of  the  Council  Decision,  if  requested  by  one  of  the  parties  to 
this  agreement. 

y 

Brussels,  14 December  1995 

Fritz Verzetnitsch 
President  of the ETUC 

Antonio Castellano  Auyanet 
President  of the CEEP 

François  Perigot 
President  of the UNICE 

Emilio  Gabaglio 
Secretary  General  of 
ETUC 

the 

Roger  Gourvès 
Secretary  General  of 
CEEP 

the 

Zygmunt  Tyszkiewicz 
Secretary  General  of 
UNICE 

the 

ETUC 
Bid Emile Jacqmain  155 
B-1210 Bruxelles 

CEEP 
Rue de la Charité 15 
B-1040 Bruxelles 

UNICE 
Rue Joseph  II 40 
B-1040  Bruxelles 

0)  Within  the  meaning  of  Article  2(4)  of  the  Social  Policy  Agreement  annexed  to  the 

EC  Treaty. 

16 

IMPACT ASSESSMENT FORM 
THE IMPACT OF THE PROPOSAL ON  BUSINESS 

with special  reference to small  and medium-sized 
enterprises (SMEs) 

TITLE OF PROPOSAL: 

Proposal  for  a Council Directive on the framework  agreement 
on parental  leave concluded  by UNICE, CEEP and the ETUC 

THE PROPOSAL: 

1.  Taking account of the principle of subsidiarity, why is Community legislation necessary 

in this area and what are its main aims? 

The  aim of this  Directive  is to implement  the  framework  agreement  on parental  leave 
under Article 4(2) of the Agreement on social policy annexed to the Treaty. This Article 
provides  for  implementing  agreements  concluded  by  the  social  partners  by  a 
Council  decision on a proposal from the Commission. The signatories have jointly asked 
the Commission  to present  a proposal  to the Council.  The  Commission,  in  accordance 
with  its  Communication*1}  on  the  application  of  the  Agreement  on  Social  Policy, 
undertook a three-fold  analysis of the agreement. The Commission considers that all the 
conditions have been met (representative status of the signatories, legality of the clauses 
of  the  agreement  and  compliance  with  specific  provisions  on  SMEs)  and  that  its 
proposal for  a Council Directive should be adopted. The Madrid European Council also 
welcomed  the  agreement. 

THE IMPACT ON BUSINESS: 

2.  Who will  be affected  by the proposal? 

All  enterprises  and  all  workers  may  be  affected  by  the  framework  agreement, 
irrespective of the sector  or  size of  the  enterprise  concerned. 

3.  What will  business have to do to comply with the proposal? 

The enterprises have several options to make up for the absence of workers on parental 
leave, the main  being  as  follows: 

hiring  of  replacements; 

sharing  of the work  between  colleagues; 

postponing  work  until  the persons  concerned  return  to work. 

(1) 

COM(93) 600  final. 

17 

4.  What economic  effects  is die proposal  likely  to  have? 

Introduction  of  parental  leave  will  also  contribute  to  achieving  the  second  priority  set 
in Essen by the European Council - the introduction  of new flexible  ways of organizing 
work.  Such  flexibility  should  cater  for  the  needs  of  enterprises  which,  in  the  face  of 
international  competition,  must  increase  their  competitiveness  and  for  the  interests  of 
workers  by  enabling  them  to  adjust  their  working  time  to  their  personal  needs.  The 
agreement  between  the  social  partners  on  this  matter,  which  has  been  negotiated 
between  employers  and  workers,  is  the  most  suitable  instrument  for  reconciling  the 
interests of  the two parties. 

The job guarantee accompanying parental  leave should normally  underpin  continuity in 
the labour  market  - whereas hitherto gainful  employment  had to be interrupted  - to the 
benefit  of  workers  and  enterprises  alike.  Workers  may  be  spared  some  of  the  cost of 
returning  to  working  life  and  can  maintain  the  benefits  of  their  experience  and  their 
seniority  with  their  employers.  The  employers  keep the  labour  force  which  they  have 
trained and, depending on the way in which they  replace workers on leave, do not have 
to  commit  expenditure  for  recruitment  or training  of  new personnel. 

5.  Does the proposal contain measures to take account of the specific situation of small and 

medium-sized firms (reduced or different  requirements, etc.)? 

Yes.  See paragraphs  17 to  21 of the Explanatory  Memorandum. 

CONSULTATION 

6.  List the organizations which have  been consulted  about die proposal  and outline their 

main views. 

A list of the organizations  which  have been  consulted  is annexed.  Paragraph  14 of the 
Explanatory  Memorandum  explains their views. 

18 

ISSN 0254-1475 

COM(96) 26  final 

DOCUMENTS 

EN 

04 

Catalogue number  :  CB-CO-96-048-EN-C 

ISBN 92-78-00159-7 

Office for Official Publications of the European Communities 

L-2985 Luxembourg 

19