Proposal for a Directive of the European Parliament and of the Council amending Council Directive 80/987/EEC on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer
Date: 2001-01-15
Institutions: European Commission
Subjects: approximation of laws, employer, financial solvency, occupational safety, pay, social security

29.5.2001

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Official Journal of the European Communities

C 154 E/109

Proposal for a Directive of the European Parliament and of the Council amending Council
Directive 80/987/EEC on the approximation of the laws of the Member States relating to the
protection of employees in the event of the insolvency of their employer

(2001/C 154 E/08)

(Text with EEA relevance)

COM(2000) 832 final (cid:151) 2001/0008(COD)

(Submitted by the Commission on 16 January 2001)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 137(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of
Committee,

the Economic and Social

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty,

Whereas:

(1) The Community Charter of Fundamental Social Rights for
Workers adopted on 9 December 1989 states, in point 7,
that (cid:145)the completion of the internal market must lead to
an improvement in the living and working conditions of
. . .
workers
The
European Community.
improvement must cover, where necessary,
the devel-
opment of certain aspects of employment regulations
such as procedures for collective redundancies and those
regarding bankruptcies(cid:146).

the

in

(2) Directive 80/987/EEC (1) aims to provide a minimum
degree of protection for employees in the event of the
insolvency of their employer. To this end, it obliges the
Member States to establish a body which guarantees
payment of the outstanding pay claims of the employees
concerned.

(3) Changes in insolvency law in the Member States and the
the internal market mean that certain

development of
provisions of that Directive must be adapted.

(4) Legal certainty and transparency also require clarification
with regard to the scope and certain definitions of
Directive
possible
In
exclusions granted by way of exception to the Member
States should be indicated in the scope of Directive
80/987/EEC and the Annex thereto should be deleted.

80/987/EEC.

particular

the

(5) In order to ensure equitable protection for the employees
concerned, the definition of the state of insolvency should
be adapted to new legislative trends in the Member States
and should also include within this concept insolvency
proceedings other than liquidation. This amendment is
also necessary to ensure
consistency with Council
Directive 77/187/EEC of 14 February 1977 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 under-
takings or businesses (2).

(6) It should be ensured that the employees referred to in
Directive 97/81/EC of 15 December 1997 concerning
the Framework Agreement on part-time work concluded
by UNICE, CEEP and the ETUC (3), Directive 1999/70/EC
of 28 June 1999 concerning the framework agreement on
fixed-term work concluded by ETUC, UNICE and CEEP (4)
and Directive 91/383/EEC of 25 June 1991 supplementing
the measures to encourage improvements in the safety
and health at work of workers with a fixed-duration
employment relationship or a temporary employment
relationship (5) are not excluded from the scope of this
Directive.

Justice of

(7) In order to ensure legal certainty for employees in the
event of
insolvency of undertakings pursuing their
activities in a number of Member States, and to strengthen
workers’ rights in line with the established case law of the
a
Court of
provision should be introduced which expressly states
which institution is responsible for meeting pay claims
in these
relevant
arrangements
are properly implemented by making
provision for collaboration between the competent admin-
istrative authorities in the Member States.

the European Communities,

to ensure

cases

that

and

the

(8) In order

it

to make

to identify insolvency
easier
proceedings in particular in situations with a cross-border
dimension, provision should be made for the Member
States to notify the Commission and the other Member
States about insolvency proceedings giving rise to inter-
vention by the guarantee institution.

(9) Directive 80/987/EEC should be amended accordingly.

(2) OJ L 61, 5.3.1977, p. 26; Directive as last amended by Directive

98/50/EC (OJ L 201, 17.7.1998, p. 88).

(3) OJ L 14, 20.1.1998, p. 9; Directive as last amended by Directive

98/23/EC (OJ L 131, 5.5.1998, p. 10).

(1) OJ L 283, 28.10.1980, p. 23. Directive as last amended by the Act

of Accession of Austria, Finland and Sweden.

(4) OJ L 175, 10.7.1999, p. 43.
(5) OJ L 206, 29.7.1991, p. 19.

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Official Journal of the European Communities

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(10) In accordance with the principles of subsidiarity and
proportionality as set out in Article 5 of the Treaty, the
objectives of the proposed action, namely the amendment
of certain provisions of Directive 80/987/EEC to take
account of changes in the labour market, cannot be
sufficiently achieved by the Member States and can
therefore be better achieved by the Community. This
Directive confines itself
to the minimum required in
order
to achieve those objectives and does not go
beyond what is necessary for that purpose,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 80/987/EEC is amended as follows:

1. The title is replaced by the following:

(cid:145)Council Directive 80/987/EEC of 20 October 1980 on the
protection of employees in the event of the insolvency of
their employer.(cid:146)

2. Sections I and II are replaced by the following:

(cid:145)SECTION I

Scope and definitions

Article 1

1.
This Directive shall apply to employees’ claims arising
from contracts of employment or employment relationships
and existing against employers who are in a state of
insolvency within the meaning of Article 2(1).

2. Member States may, by way of exception, exclude
claims by certain categories of employee from the scope
of this Directive, by virtue of the existence of other forms
of guarantee if it is established that these offer the persons
concerned a degree of protection equivalent to that resulting
from this Directive.

3. Member States may exclude from the scope of this
Directive:

(a) either decided to open the proceedings,

(b) or established that

the employer’s undertaking or
business has been definitively closed down and that
the
the available assets are insufficient
opening of the proceedings.

to warrant

2.
This Directive is without prejudice to national law as
regards the definition of the terms (cid:147)employee(cid:148), (cid:147)employer(cid:148),
(cid:147)pay(cid:148), (cid:147)right conferring immediate entitlement(cid:148) and (cid:147)right
conferring prospective entitlement(cid:148).

However, the Member States may not exclude from the
scope of this Directive

(a) part-time employees within the meaning of Directive

97/81/EC;

(b) workers with a fixed-term contract within the meaning

of Directive 1999/70/EC;

(c) workers with a temporary employment

relationship
within the meaning of Article 1(2) of Directive
91/383/EEC.

3.
For the purposes of this Directive, the establishment
means any place of operations where the employer carries
out a non-transitory economic activity with human means
and goods.

SECTION II

Provisions concerning guarantee institutions

Article 3

Member States shall take the measures necessary to ensure
that guarantee institutions guarantee, subject to Article 4,
payment of employees’ outstanding claims resulting from
contracts of employment or employment relationships.

The claims taken over by the guarantee institution shall be
the outstanding pay claims relating to a period prior to
and/or, as applicable, after a given date determined by the
Member States.

(a) domestic servants employed by a natural person;

Article 4

(b) share-fishermen.

Article 2

1.
For the purposes of this Directive, an employer shall
be deemed to be in a state of insolvency where a request
has been made for the opening of collective proceedings, as
provided for under the laws, regulations and administrative
provisions of a Member State, based on insolvency of the
employer and involving the partial or total divestment of
the employer’s assets and the appointment of a liquidator
and the authority which is competent pursuant to the said
provisions has:

1. Member States shall have the option to limit
the
liability of the guarantee institutions referred to in Article 3.

2. When Member States exercise the option referred to in
paragraph 1, they shall specify the length of the period for
which outstanding claims are to be met by the guarantee
institution. However, this may not be shorter than a period
three months for which pay is still
covering the last
outstanding.

Member States may place this minimum three-month
period within a reference period of at least six months.

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3. Member States may set a ceiling on payments to be
made by the guarantee institution.

(cid:145)Article 10a

When Member States exercise this option, they shall inform
the Commission of the methods used to set the ceiling.(cid:146)

3. The following Section IIIa is inserted:

Member States shall notify the Commission and the other
Member States of national
insolvency proceedings falling
within the scope of this Directive, and of any amendments
relating thereto.

The Commission shall publish these communications in the
Official Journal of the European Communities.(cid:146)

(cid:145)SECTION IIIa

5. The Annex is deleted.

Provisions concerning transnational situations

Article 8a

least

1. When an undertaking with establishments in the terri-
tories of at
two Member States is in a state of
insolvency within the meaning of Article 2(1) and the
opening of insolvency proceedings has been requested in
a Member State other than that
in which the worker
habitually works, the competent guarantee institution shall
be that in the latter Member State.

The extent of employees’ rights shall be determined by

2.
the law governing the competent guarantee institution.

3. Member States shall take the measures necessary to
ensure that, in the cases referred to in paragraph 1 of the
Article, decisions
insolvency
proceedings referred to in Article 2(1), which have been
requested in another Member State, are taken into account
when determining the employer’s state of insolvency within
the meaning of this Directive.

taken in the context of

Article 8b

For the purposes of implementing Article 8a, Member States
shall make provision for
collaboration between their
competent administrative authorities.(cid:146)

Article 2

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 31 December 2003 at
the latest. They shall
forthwith inform the Commission thereof.

They shall apply the provisions referred to in the first to any
subparagraph any state of insolvency of an employer occurring
after the date of entry into force of those provisions.

When Member States adopt these provisions, they shall contain
a reference to this Directive or be accompanied by such
reference on the occasion of
their official publication.
Member States shall determine how such reference is to be
made.

2. Member States shall communicate to the Commission the
text of the provisions of national law which they adopt in the
field covered by this Directive.

Article 3

This Directive shall enter into force on the 20th day following
that of its publication in the Official Journal of
the European
Communities.

Article 4

4. The following Article 10a is inserted:

This Directive is addressed to the Member States.