Legislative resolution embodying Parliament's opinion on the 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 (COM(94) 0300 C4-0151/94 94/0203(CNS))
Date: 1997-01-16
Institutions: Committee on Employment and Social Affairs, European Parliament
Subjects: approximation of laws, bankruptcy, company law, dismissal, industrial restructuring, labour law, merger, occupational safety, transfer of businesses













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51996AP0367

Legislative resolution embodying Parliament's opinion on the 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 (COM(94) 0300 C4-0151/94 94/0203(CNS))  


Official Journal C 033 , 03/02/1997 P. 0081 





A4-0367/96Proposal 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 (COM(94)0300 - C4- 0151/94 - 94/0203(CNS))The proposal was approved with the following amendments:(Amendment 1)Title>Original text>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 and parts of businesses>Text following EP vote>Proposal for a Council Directive amending Directive 77/187/EEC1 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 and parts of businesses__________1 OJ L 61, 5.3.1977, p. 26.(Amendment 2)Recital 1>Original text>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 and 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;>Text following EP vote>Deleted(Separate vote)Recital 7>Original text>Whereas the considerations of legal security and transparency also demand, in the light of the case-law of the Court of Justice, 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 cases where the transfer of only an activity is not accompanied by the transfer of an economic entity which retains its identity after the said transfer should be excluded from the scope of the Directive;>Text following EP vote>Deleted(Amendment 3)Recital 14>Original text>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;>Text following EP vote>Whereas the Member States' faculty not to apply the information and consultation requirements to certain undertakings on grounds of workforce size thresholds must await the adoption of harmonized Community rules on information and consultation in national undertakings;(Amendment 4)Article 1(1), 2nd subparagraph>Original text>The transfer of an activity which is accompanied by the transfer of an economic entity which retains its identity shall be deemed to be a transfer within the meaning of this 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 within the meaning of the Directive.>Text following EP vote>Deleted(Amendment 5)Article 3(1), 2nd subparagraph>Original text>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.>Text following EP vote>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 jointly and severally 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.(Amendment 6)Article 3(3), first sentence>Original text>3. 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.>Text following EP vote>3. 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 insofar as those rights have accrued prior to the date of transfer.(Amendment 19)Article 3(3a) (new)>Text following EP vote>3a. Member States shall take the necessary measures to prohibit the recourse to insolvency proceedings initiated with the intention of depriving employees of the rights laid down in this Article.(Amendment 7)Article 4(3)>Original text>3. 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 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.>Text following EP vote>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 referred to in Article 6(1), on the other hand, to change the terms and conditions of employment by a legally enforceable 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.(Amendment 8)Article 4(4)>Original text>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.>Text following EP vote>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 specified 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 specified in the agreement are effected for economic, technical and organisational reasons, entailing changes in the work force.(Amendment 9)Article 4(5)>Original text>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.>Text following EP vote>Deleted(Amendment 10)Article 6(-1) (new)>Text following EP vote>-1. For the purposes of the information and consultation requirements laid down by this Article the Member States shall provide for representatives of employees who shall be independent from and not subject to the control or domination of the employer.(Amendment 11)Article 6(1) and (2)>Original text>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:- the reasons for the transfer,- the legal, economic and social implications of the transfer for the employees,>Text following EP vote>1. The transferor and the transferee shall be required to consult as soon as a transfer is contemplated with the representatives of employees affected by the transfer in good time and with a view to reaching agreement on- the legal, economic and social implications of the transfer for the employees,>Original text>- any measures envisaged in relation to the employees.>Text following EP vote>- any measures envisaged in relation to the employees>Original text>The transferor must give such information to the representatives of his employees in good time before the transfer is carried out. The transferee must give such 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.>Text following EP vote>and must give such representatives the information (including the reasons for the transfer) necessary for that purpose.The transferee shall cooperate with the transferor in providing the information necessary to comply with the above requirements.>Original text>2. If the transferor or the transferee envisages measures in relation to his employees, he shall consult the representatives of his employees in good time on such measures with a view to reaching an agreement.(Amendment 12)Article 6(4a) (new)>Text following EP vote>4a. Where any natural or legal person other than the transferor or the transferee took the decision leading to the transfer, that person shall provide to the transferor and the transferee any information in its possession as will allow them to comply with their obligations under this Directive.(Amendment 13)Article 6(5)>Original text>5. 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 threshold for the election or nomination of a collegiate body representing the employees.>Text following EP vote>5. The Member States may limit the obligations laid down in paragraphs 1 and 3 to undertakings or businesses which, in respect of the number of employees, fulfil the conditions for the election or designation of a collegiate body representing the employees.(Amendment 14)Article 8>Original text>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.This Article shall also apply to employees' representatives in respect of their rights under Articles 4(3), (4) and (5), 5 and 6.>Text following EP vote>Member States shall provide for sanctions in the case of breach of the national provisions adopted pursuant to this Directive, and shall take all measures necessary to ensure that those sanctions are applied. The sanctions thus provided for shall be effective, proportionate and dissuasive. Member States shall notify the relevant provisions to the Commission not later that the date specified in Article 9(1) and shall notify any subsequent changes as soon as possible.(Amendment 15)Article 8a (new)>Text following EP vote>Article 8aWhen the Member States implement the provisions of this Directive, they shall prohibit any discrimination based on race, sex, age, disability, sexual orientation, colour, religion or nationality.(Amendment 16)Article 10>Original text>Article 10Directive 77/187/EEC is repealed with effect from the date of transposal of the present Directive, without prejudice to the Member States' obligations with regard to the deadline for transposal of Directive 77/187/EEC, indicated in Annex I.>Text following EP vote>Deleted>Original text>Any references made to the repealed 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.(Amendment 17)Annex II>Text following EP vote>This Annex to be deletedLegislative resolution embodying Parliament's opinion on the 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 (COM(94)0300 - C4-0151/94 - 94/0203(CNS))(Consultation procedure)The European Parliament,- having regard to the Commission proposal to the Council, COM(94)0300 - 94/0203(CNS) ((OJ C 274, 1.10.1994, p. 10.)),- having been consulted by the Council pursuant to Article 100 of the EC Treaty (C4-0151/94),- having regard to Rule 58 of its Rules of Procedure,- having regard to the report of the Committee on Social Affairs and Employment and the opinions of the Committee on Economic and Monetary Affairs and Industrial Policy, the Committee on Legal Affairs and Citizens' Rights and the Committee on Women's Rights (A4-0367/96),1. Approves the Commission proposal, subject to Parliament's amendments;2. Calls on the Commission to alter its proposal accordingly, pursuant to Article 189a(2) of the EC Treaty;3. Calls on the Council to notify Parliament should it intend to depart from the text approved by Parliament;4. Calls for the conciliation procedure to be opened should the Council intend to depart from the text approved by Parliament;5. Asks to be consulted again should the Council intend to make substantial modifications to the Commission proposal;6. Instructs its President to forward this opinion to the Council and Commission.