Amended proposal for a Directive of the European Parliament and of the Council establishing a general framework for improving information and consultation rights of employees in the European Community (presented by the Commission pursuant to Article 250 (2) of the EC Treaty)
Date: 2001-05-23
Institutions: European Commission
Subjects: European undertaking, job security, labour law, worker consultation, worker information

28.8.2001

EN

Official Journal of the European Communities

C 240 E/133

Amended proposal for a Directive of the European Parliament and of the Council establishing a
framework for improving information and consultation rights of employees in the
general

European Community (1)

(2001/C 240 E/21)

COM(2001) 296 final (cid:151) 1998/0315(COD)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 23 May 2001)

(1) OJ C 2, 5.1.1999, p. 3.

INITIAL PROPOSAL

AMENDED PROPOSAL

THE COUNCIL OF THE EUROPEAN UNION,

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

Deleted

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

Having regard to the proposal from the Commission,

Unchanged

Having regard to the opinion of
Committee,

the Economic and Social

Having regard to the opinion of
Committee (1),

the Economic and Social

Having regard to the opinion of
Regions (2),

the Committee of

the

Acting in accordance with the procedure referred to in Ar-
ticle 189c,

Acting in accordance with the procedure referred to in Ar-
ticle 251 (3),

Whereas, on the basis of the Protocol on Social Policy annexed
to the Treaty establishing the European Community, and with
the exception of the United Kingdom of Great Britain and
Northern Ireland,
the European
Community, hereinafter referred to as the (cid:145)Member States(cid:146),
desirous of implementing the Social Charter of 1989, have
adopted an Agreement on Social Policy;

the Member States of

Whereas Article 2(2) of
Council
directives;

the said Agreement authorises the
to adopt minimum requirements by means of

(1) Whereas, pursuant

the Agreement, a
to Article 1 of
particular objective of the Community and the Member
States is to promote social dialogue between management
and labour.

Whereas:

Deleted

(1)

to Article 136 of

Pursuant
the Treaty, a particular
objective of the Community and the Member States is
to promote social dialogue between management and
labour.

___________
(1) OJ C 258, 10.9.1999, p. 24.
(2) 14.12.2000.
(3) The opinion of the European Parliament was published in OJ C 219,

30.7.1999, p. 223.

C 240 E/134

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Official Journal of the European Communities

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INITIAL PROPOSAL

AMENDED PROPOSAL

(2) Whereas point 17 of the Community Charter of Funda-
mental Social Rights of Workers provides, inter alia, that
(cid:145)information, consultation and participation for workers
must be developed along appropriate
taking
account of
the practices in force in different Member
States(cid:146).

lines,

(2)

Point 17 of the Community Charter of Fundamental Social
Rights of Workers provides, inter alia, that (cid:145)information,
consultation and participation for workers must be
developed along appropriate lines, taking account of the
practices in force in different Member States(cid:146).

(3) Whereas the Commission, pursuant to Article 3(2) of the
Agreement on Social Policy, has consulted management
and labour at Community level on the possible direction
of Community action on the information and consultation
of workers in undertakings within the European Union.

(3) The Commission has consulted management and labour at
Community level on the possible direction of Community
action on the information and consultation of workers in
undertakings within the European Union.

(4) Whereas the Commission, considering after this consul-
tation that Community action was advisable, has again
consulted the social partners on the content of
the
planned proposal, pursuant to Article 3(3) of the said
Agreement, and the social partners have presented their
opinions to the Commission.

(4) The Commission, considering after this consultation that
Community action was advisable, has again consulted the
social partners on the content of the planned proposal,
and the social partners have presented their opinions to
the Commission.

the

(5) Whereas, having completed this second stage of consul-
informed the
social partners have not
tation,
Commission of
the process
potentially leading to the conclusion of an agreement, as
provided for in Article 4 of the said Agreement.

their wish to initiate

(5) Having completed this second stage of consultation, the
social partners have not
informed the Commission of
their wish to initiate the process potentially leading to
the conclusion of an agreement.

(6) Whereas the existence of legal frameworks at national and
intended to ensure that workers are
Community level
involved in the affairs of
the undertaking employing
them and in decisions which affect them has not always
prevented serious decisions affecting workers from being
taken and made public without adequate procedures
having been implemented beforehand to inform and
consult them.

legal

frameworks at national and
(6) The existence of
intended to ensure that workers are
Community level
involved in the affairs of
the undertaking employing
them and in decisions which affect them has not always
prevented serious decisions affecting workers from being
taken and made public without adequate procedures
having been put
in place beforehand to inform and
consult them.

(7) Whereas there is a need to strengthen dialogue and
promote mutual trust within undertakings in order to
improve risk anticipation, make work organisation more
flexible and facilitate employee access to training within
security, make
the
employees aware of adaptation needs, increase employees’
to
availability to undertake measures
increase
employee
involvement in the operation and future of the under-
taking and increase its competitiveness.

undertaking while maintaining

and activities

employability,

promote

their

(7) There is a need to strengthen dialogue and promote
mutual
trust within undertakings in order to improve
risk anticipation, make work organisation more flexible
and facilitate employee access to training within the
undertaking while maintaining security, make employees
aware of adaptation needs, increase employees’ availability
to undertake measures and activities to increase their
employability, promote employee involvement
in the
operation and future of the undertaking and increase its
competitiveness.

28.8.2001

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Official Journal of the European Communities

C 240 E/135

INITIAL PROPOSAL

AMENDED PROPOSAL

(8)

In particular, there is a need to promote and strengthen
information and consultation on the
situation and
probable development of employment within the under-
taking and, where it ensues from the evaluation carried
out by the employer that employment within the under-
taking is likely to come under threat, on any anticipatory
measures envisaged, in particular in terms of training and
enhancing employees’ skills, with a view to offsetting
and
negative
consequences
or
improving the employability and adaptability of
the
employees likely to be affected.

developments

their

(8) Whereas

timely information and consultation is

a
prerequisite for the success of restructuring and adap-
tation of undertakings to the new conditions created by
globalisation of the economy, particularly via the devel-
opment of new forms of work organisation.

(9) Timely information and consultation is a prerequisite for
the success of restructuring and adaptation of under-
takings to the new conditions created by globalisation of
the economy, particularly via the development of new
forms of work organisation.

(9) Whereas the European Community has drawn up and
implemented an employment
strategy based on the
concepts of (cid:145)anticipation(cid:146), (cid:145)prevention(cid:146) and (cid:145)employability(cid:146),
which are to be incorporated as key elements into all
including
public policies likely to benefit employment,
the policies of individual undertakings, by strengthening
the social dialogue with a view to promoting with
preserving the priority objective of employment.

(cid:145)anticipation(cid:146),

(10) The European Community has drawn up and imple-
mented an employment strategy based on the concepts
of
(cid:145)prevention(cid:146) and (cid:145)employability(cid:146), which
must constitute key elements of all public policies likely
including enterprise policies, by
to benefit employment,
social dialogue with a view to
strengthening the
promoting
the
compatible with preserving
change
priority objective of employment.

(10) Whereas further development of the internal market must
be properly balanced, maintaining the essential values on
which our societies are based and ensuring that all
citizens benefit from economic development.

(11) Further development of

the internal market must be
properly balanced, maintaining the essential values on
which our societies are based and ensuring that all
citizens benefit from economic development.

(11) Whereas the third stage of economic and monetary union
will extend and accelerate the competitive pressures at
European level;
this will mean that more supportive
measures are needed at national level.

(12) The third stage of economic and monetary union will
at
the
this will mean that more supportive

extend and accelerate
European level;
measures are needed at national level.

competitive pressures

(12) Whereas

level

frameworks

consultation

the existing legal

for employee
and
and
information
tend to adopt an excessively a posteriori
national
change, neglect
the
approach to the process of
economic
taken and do not
aspects of decisions
contribute to genuine anticipation of employment devel-
opments within the undertaking or to risk prevention.

at Community

(13) The existing legal frameworks for employee information
and consultation at Community and national level tend to
adopt an excessively a posteriori approach to the process of
change, neglect the economic aspects of decisions taken
and do not
anticipation of
employment developments within the undertaking or to
risk prevention.

to genuine

contribute

C 240 E/136

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Official Journal of the European Communities

28.8.2001

INITIAL PROPOSAL

AMENDED PROPOSAL

(13) Whereas, as a result of all these political, economic, social
and legal developments, action is needed at Community
level to make the essential changes to the existing legal
framework.

(14) As a result of all these political, economic, social and legal
developments, action is needed at Community level to
legal
make
framework in the form of legal and practical instruments
allowing the right of information and consultation to be
exercised.

essential

changes

existing

to the

the

(15) This Directive does not prejudice national systems under
which the concrete exercising of
implies a
collective expression of will on the part of the entitled
parties.

this right

(16) This Directive does not prejudice systems providing for
the direct involvement of employees, provided the latter
are always free to exercise their right to information and
consultation via their representatives.

(14) Whereas, in accordance with the principles of subsidiarity
and proportionality as set out in Article 3b of the Treaty,
the objectives of the proposed action, as outlined above,
cannot be adequately achieved by the Member States, in
that the object is to establish a framework for employee
information and consultation appropriate for the new
European context described above; but whereas, in view
of the scale and impact of the proposed action, these
objectives can be better achieved at Community level by
the introduction of minimum regulations applicable to the
entire European Community;
the present Directive
constitutes no more than the minimum necessary to
achieve these objectives.

(17) In accordance with the principles of subsidiarity and
proportionality as set out in Article 5 of the Treaty, the
objectives of
the proposed action, as outlined above,
cannot be adequately achieved by the Member States, in
that the object is to establish a framework for employee
information and consultation appropriate for the new
in view of
European context described above; however,
the scale and impact of
these
objectives can be better achieved at Community level by
the introduction of minimum regulations applicable to the
entire European Community;
the present Directive
constitutes no more than the minimum necessary to
achieve these objectives.

the proposed action,

(15) Whereas the purpose of

this general

to this end,

framework is to
establish minimum requirements applicable throughout
the European Community. while avoiding any adminis-
trative, financial or legal constraints which would hinder
the creation and development of small and medium-sized
undertakings; whereas,
this
Directive should be restricted to undertakings with at
least 50 employees, without prejudice to any more
favourable national or Community provisions; whereas,
in order to maintain the appropriate balance between
the above-mentioned factors,
this minimum may be
raised to 100 employees in the case of the more inno-
vative measures proposed herein on the information and
consultation of
in the
employment situation within the undertaking.

employees on developments

the scope of

applicable

throughout

to this end,

the scope of

framework is to establish
(18) The purpose of this general
minimum requirements
the
European Community. while avoiding any administrative,
financial or legal constraints which would hinder the
creation and development of small and medium-sized
undertakings; whereas,
this
Directive should be restricted to undertakings with at
least 50 employees, without prejudice to any more
favourable national or Community provisions; whereas,
in order to maintain the appropriate balance between
the above-mentioned factors,
this minimum may be
raised to 100 employees in the case of the more inno-
vative measures proposed herein on the information and
in the
consultation of
employees on developments
employment situation within the undertaking.
It does
not prevent Member States from adopting provisions
that are more favourable to employees.

(19) It is also the purpose of this general framework to avoid
any administrative,
financial or legal constraints which
would hinder the creation and development of small
and medium-sized undertakings; it would appear appro-
priate, to this end, to restrict the scope of this Directive to
undertakings with at least 50 employees or establishments
with at least 20 employees, at the choice of the Member
States.

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Official Journal of the European Communities

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INITIAL PROPOSAL

AMENDED PROPOSAL

(16) Whereas a Community framework for informing and
consulting employees must keep to a minimum the
effective
burden on businesses while
exercise by employees of their rights.

ensuring the

(20) The Community framework for informing and consulting
employees must keep to a minimum the burden on busi-
nesses while ensuring the effective exercise of rights.

a general

establishment of

(17) Whereas the objectives of this Directive are to be achieved
through the
framework
comprising the definitions and purpose of the information
and consultation, which it will be up to the Member
to their own national
States to complete and adapt
situation, ensuring, where appropriate,
the social
partners have a leading role by allowing them to define
freely the arrangements for
informing and consulting
employees which they consider to be best suited to their
needs and wishes.

that

the

freely

(21) The objective of this Directive are to will be achieved
through the establishment of by establishing a general
framework comprising the definitions and purpose of
the information and consultation, which it will be up to
the Member States to complete and adapt to their own
national situation, ensuring, where appropriate, that the
social partners have a leading role by allowing them to
define
and
arrangements
consulting employees which they consider to be best
suited to their needs and wishes setting out the principles,
definitions and procedures for information and consul-
tation which Member States will have to comply with
situation, ensuring
and adapt
where appropriate
social partners have a
the
leading role by allowing them to define freely, through
agreements, the procedures for informing and consulting
employees which they consider to be best suited to their
needs and wishes.

to their own national
that

informing

for

(18) Whereas care must be taken to avoid affecting some
specific rules in the field of employees’ information and
consultation existing in some national laws, addressed to
undertakings which pursue political, professional organi-
scientific or
sation,
artistic aims, as well as aims involving information and
the expression of opinions.

religious, charitable, educational,

(22) Care must be taken to avoid affecting some specific rules
in the field of employees’
information and consultation
existing in some national laws, addressed to undertakings
which pursue adversely affecting certain specific rules in
the field of employee information and consultation which
exist in some national laws and are aimed at undertakings
pursuing political, professional organisation,
religious,
charitable, educational, scientific or artistic aims, as well
as aims involving information and the expression of
opinions.

(19) Whereas undertakings must be protected against public
disclosure of certain particularly sensitive information.

(23) Undertakings must be protected against public disclosure

of certain particularly sensitive information.

(20) Employers must be entitled not

to inform or consult
employees where this would be seriously prejudicial to
to comply
the undertaking or where
immediately with an injunction issued by a monitoring
or surveillance authority.

they have

(24) Employers must be entitled not

to inform or consult
employees where this would be seriously prejudicial to
to comply
the undertaking or where
immediately with an injunction issued by a monitoring
or surveillance authority.

they have

(21) Whereas modernisation of work implies both rights and
obligations for the two social partners at undertaking
level.

(25) Information and consultation are both rights and obli-
gations of the social partners at undertaking level.

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INITIAL PROPOSAL

AMENDED PROPOSAL

(22) Whereas a reinforced and dissuasive sanction, applicable
in the case of decisions taken in serious breach of the
obligations under this Directive must be established at
Community level, without prejudice to the general obli-
gations of Member States in this respect.

(26) A reinforced and dissuasive sanction, applicable in the
case of decisions taken in serious breach of the obligations
under this Directive must be established at Community
level, without prejudice to the general obligations of
Member States in this respect.

redundancies (1)

(23) Whereas this Directive also applies to the subjects covered
by Council Directive 98/59/EC of 20 July 1998 on the
approximation of the laws of the Member States relating
and Council Directive
to collective
77/187/EEC of 14 February 1998 on the approximation
of the laws of the Member States relating to the safe-
guarding of employees’ rights in the event of transfers
of undertakings, businesses or parts of businesses,
amended
98/50/EC of
the Council Directive
by
29.6.1998 (2).

(24) Whereas other employee information and consultation
including those arising from Council Directive
rights,
94/45/EEC of 22 September 1994 on the establishment
of a European Works Council or a procedure
in
and Community-scale
Community-scale undertakings
informing
groups of undertakings for the purposes of
and consulting employees (3) must not be affected by
this Directive,

(27) This Directive also applies to the subjects covered by
Council Directive 98/59/EC of 20 July 1998 on the
approximation of the laws of the Member States relating
to collective
and Council Directive
2001/23/EC of 12 March 2001 on the approximation of
the laws of the Member States relating to the safeguarding
of employees’ rights in the event of transfers of under-
takings, businesses or parts of businesses (2).

redundancies (1)

from Council

employee
(28) This Directive must not prejudice other
including those
information and consultation rights,
arising
of
94/45/EEC
22 September 1994 on the establishment of a European
Works Council or a procedure in Community-scale under-
takings and Community-scale groups of undertakings for
the purposes of informing and consulting employees (3)
and Council Directive 97/74/EC of 15 December 1997
extending this Directive (4) to the United Kingdom.

Directive

(29) Application of the provisions of this Directive must not
level of

constitute grounds
employee protection within the scope of the Directive,

reducing the general

for

HAS ADOPTED THIS DIRECTIVE:

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Object and principles

Unchanged

The purpose of this Directive is to establish a general
informing
in undertakings within the

1.
framework to information and consultation for
and
consulting
European Community.

employees

___________
(1) OJ L 225, 12.8.1988 p. 16.
(2) (OJ L 61, 5.3.1977, p. 26 and (OJ L 201, 17.7.1998, p. 88).
(3) OJ L 254, 30.9.1994, p. 64.

1.
The purpose of this Directive is to establish a general
framework laying down minimum requirements concerning
employees’ rights to information and consultation in under-
takings within the European Community.

___________
(1) OJ L 225, 12.8.1998 p. 16. This Directive consolidates Council
Directive 75/129/EC of 17 February 1975 (OJ L 48, 22.2.1975,
p. 29) and Council Directive 92/56/EC of 24 June 1992 (OJ
L 245, 26.8.1992, p. 3).

(2) OJ L 82, 22.3.2001, p. 16. This Directive consolidates Council
Directive 77/187/EC of 14 February 1997 (OJ L 61, 5.3.1997,
p. 26) and Council Directive 98/50/EC of 29 June 1998 (OJ
L 201, 17.7.1998, p. 88), which amended it.

(3) OJ L 254, 30.9.1994, p. 64.
(4) OJ L 10, 16.1.1998, p. 23.

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Official Journal of the European Communities

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INITIAL PROPOSAL

AMENDED PROPOSAL

Information and consultation procedures shall be estab-

2.
lished and implemented so as to ensure their effectiveness.

2. When defining or implementing information and consul-
tation procedures, the employer and the employees’ represen-
tatives shall work in a spirit of co-operation and with due
regard for their reciprocal rights and obligations, taking into
account
the
employees.

the undertaking and of

the interests both of

3. When defining or implementing information and consul-
tation procedures, the employer and the employees’ represen-
tatives shall work in a spirit of co-operation and with due
regard for their reciprocal rights and obligations, taking into
account
the
employees.

the undertaking and of

the interests both of

Article 2

Unchanged

Definitions and scope

Definitions

For the purposes of this Directive:

Unchanged

an economic

a) (cid:145)undertakings(cid:146) means public or private undertakings
activity, whether or not
carrying out
operating for gain, which are located within the territory
of the Member States of the European Community and have
at least 50 employees, without prejudice to the provisions of
Article 4(3);

a) (cid:145)undertakings(cid:146) means public or private undertakings
activity, whether or not
carrying out
operating for gain, which are located within the territory
of the Member States of the European Community;

an economic

b) (cid:145)establishment(cid:146) means a place of business with no legal
personality, which is part of an undertaking and where a
non-transitory economic activity is carried out with human
means and goods;

b) (cid:145)employer(cid:146) means the natural or legal person party to
employment contracts or employment relationships with
employees;

c) (cid:145)employer(cid:146) means the natural or legal person party to
employment contracts or employment relationships with
employees,
legislation and
practice;

in accordance with national

d) (cid:145)employee(cid:146) means any person who,

in the Member State
concerned,
is protected as an employee under national
labour legislation and in accordance with national practice;

c) (cid:145)employees’ representatives(cid:146) means the employees’ represen-
tatives provided for by national laws and/or practices;

e) (cid:145)employees’ representatives(cid:146) means the employees’ represen-
tatives provided for by national laws and/or practices;

representatives of

d) (cid:145)information(cid:146) means transmission by the employer to the
information containing all
employees’
facts on the subjects set down in Article 4(1),
relevant
ensuring that
the timing, means of communication and
content of the information are such as to ensure its effec-
tiveness, particularly in enabling the employees’ represen-
tatives to examine the information thoroughly and, where
appropriate, prepare consultations;

f)

(cid:145)information(cid:146) means transmission of details by the employer
to the employees’ representatives so that they can take note
of and consider the subject in question;

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INITIAL PROPOSAL

AMENDED PROPOSAL

e) (cid:145)consultation(cid:146) means the organisation of a dialogue and
exchange of views between the employer and the employees’
representatives on the subjects set out in Article 4(1)(b)
and (c),

g) (cid:145)consultation(cid:146) means the exchange of views and establishing
of a dialogue between the employees’ representatives and
the employer.

(cid:151) ensuring that the timing, method and content are such

Deleted

that this step is effective;

(cid:151) at the appropriate level of management and represen-
tation, depending on the subject under discussion;

(cid:151) on the basis of the relevant information to be supplied
by the employer and the opinion which the employees’
representatives are entitled to formulate;

(cid:151) including the employees’ representatives’ right to meet
with the employer and obtain a response, and the
to any opinion they may
reasons for that response,
formulate;

(cid:151) including, in the case of decisions within the scope of
the employer’s management powers, an attempt to seek
prior agreement on the decisions referred to in Article
4(1)c.

In conformity with the principles and objectives of this
2.
Directive, Member States may lay down particular provisions
applicable to undertakings which pursue directly and essentially
political,
charitable,
organisation,
scientific or artistic aims, as well as aims
educational,
involving information and the expression of opinions, on
condition that, at the date of adoption of this Directive, such
particular provisions already exist in national legislation.

professional

religious,

Article 3

Unchanged

Information and consultation procedures deriving from an
agreement

Scope

This Directive shall apply, at the Member States’ choice,

1.
to:

(cid:151) undertakings with at least 50 employees in a Member State,

or

(cid:151) establishments with at least 20 employees in a Member

State.

The Member States shall establish the manner in which the
number of employees is calculated.

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C 240 E/141

INITIAL PROPOSAL

AMENDED PROPOSAL

In line with the principles and objectives laid down in
2.
this Directive,
the Member States may make provision for
specific arrangements applicable to undertakings pursuing
political,
charitable,
organisation,
scientific or artistic aims, as well as aims
educational,
involving
expression of opinions,
provided such specific arrangements already exist in national
law on the date on which this Directive is adopted.

information and the

professional

religious,

including at undertaking level,

1. Member States may authorise the social partners at the
appropriate level,
to define
the
freely and at any time through negotiated agreement
procedures for implementing the employee information and
consultation requirements referred to in Articles 1, 2 and 4
of this Directive.

Deleted

2.
The agreements referred to in paragraph 1 may establish,
while respecting the general objectives laid down by the
Directive and subject to conditions and limitations laid down
by the Member States, arrangements which are different to
those referred to in Article 2(1)(d) and (e) and Article 4 of
the present Directive.

Article 4

Unchanged

Content of, and procedures for information and consul-
tation

Procedures for information and consultation

1.
in
Acting in compliance with the principles set out
Article 1, and without prejudice to current provisions and/or
practices which are more favourable to employees, the Member
States shall establish the procedures under which employees
can exercise the right to information and consultation at the
appropriate level, in accordance with paragraphs 2, 3 and 4
below.

2.

Information and consultation shall cover:

1. Without prejudice to any provisions and/or practices
more favourable to employees in force in the Member States,
employee information and consultation shall,
if there is no
agreement between the social partners as envisaged in Article
3, cover:

a) information on the recent as well as the reasonably fore-
seeable development of the undertaking’s activities and its
economic and financial situation;

a) information on the recent as well as the probable devel-
the undertaking’s activities and its economic

opment of
and financial situation;

b) information and consultation on the situation, structure and
reasonably foreseeable development of employment within
the undertaking and, where the employer’s evaluation
suggests that employment within the undertaking may be
under
in
the anticipatory measures
particular
for employee training and skill development,
with a view to offsetting the potential negative devel-
opments or their consequences and increasing the employa-
bility of the employees likely to be affected;

envisaged,

threat,

b) information and consultation on the situation, structure and
probable development of employment within the under-
taking and on any anticipatory measures
envisaged,
especially in the event of a threat to employment;

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INITIAL PROPOSAL

AMENDED PROPOSAL

c) information and consultation on decisions likely to lead to
substantial changes in work organisation or in contractual
including those covered by the Community
relations,
provisions referred to in Article 8(1).

c) information and consultation on decisions likely to lead to
significant changes in work organisation or in contractual
relations, including those covered by the provisions referred
to in Article 9(1).

The Member States shall ensure that

2.
information and
consultation are effective and useful within the meaning of
Article 1 and Article 2(1)(d) and (e). To this end, they shall
determine the information and consultation procedures for the
subjects listed in paragraph 1.

3.
Appropriate information shall be provided at the appro-
priate time and in the appropriate manner, so as to allow the
employees’ representatives to examine the matter properly and,
where appropriate, to prepare for consultation.

3. Member States may exclude from the information and
consultation obligations referred to in paragraph 1(b) of this
Article undertakings with fewer than 100 employees.

4.

Appropriate consultation shall take place:

(cid:151) at an appropriate time and using appropriate means;

(cid:151) at

the relevant management and representation level,

depending on the subject;

(cid:151) on the basis of

information provided by the
employer and the opinion which the employees’ represen-
tatives are entitled to formulate;

relevant

(cid:151) in a manner which allows the employees’ representatives to
meet the employer and obtain a reasoned response to any
opinion they have formulated;

(cid:151) with a view to reaching an agreement on the decisions
referred to in paragraph 2(c) which come under
the
employer’s prerogative.

Article 5

Information and consultation under an agreement

The Member States may allow the social partners at the appro-
priate level,
including undertaking or establishment level, to
define freely and at any time, through negotiated agreements,
the procedures
informing and consulting employees.
Provided they comply with the principles set out in Article
1, and subject
to conditions and limits laid down by the
Member States, such agreements may make provision for
procedures which differ from those set out in Article 4.

for

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INITIAL PROPOSAL

Article 5

AMENDED PROPOSAL

Article 6

Confidential information

Unchanged

1. Member States shall provide that the employees’ represen-
tatives and any experts who assist them are not authorised to
disclose any information which has expressly been provided to
them in confidence. This obligation shall continue to apply
irrespective of where the said representatives or experts are,
even after expiry of their term of office.

1. Member States shall provide, subject to conditions and
legislation, that the employees’
limits laid down in national
representatives and any experts who may assist them are not
authorised to disclose, except to employees bound by a confi-
dentiality obligation, any information which has expressly been
provided to them in confidence,
if this is in the legitimate
interest of the undertaking. This obligation shall continue to
apply irrespective of where the said representatives or experts
are, even after expiry of their term of office.

2. Member States shall provide, in specific cases and within
the conditions and limits laid down by national legislation, that
the employer is not obliged to communicate information or
undertake consultation when the nature of that information or
it
consultation is such that, according to objective criteria,
would seriously harm the functioning of the undertaking or
would be prejudicial to it.

Unchanged

to existing national procedures,
3. Without prejudice
Member States shall make provision for administrative or
judicial appeal procedures should the employer claim confiden-
tiality or fail to provide information in accordance with the
above paragraphs. They may also make provision for
procedures to safeguard the confidentiality of the information
in question.

Article 6

Article 7

Protection of employees’ representatives

Unchanged

representatives

Employees’
their
functions, enjoy adequate protection and guarantees to enable
them to perform properly the duties which have been assigned
to them.

shall, when carrying out

Article 7

Article 8

Protection of rights

Unchanged

1. Member States shall provide for appropriate measures in
the event of non-compliance with this Directive by the
employer or the employees’ representatives; in particular, they
shall ensure that adequate administrative or judicial procedures
are available to enable the obligations deriving from this
Directive to be enforced, including procedures which may be
instituted by the employer or the employees’ representatives
where either party considers that the other party is in breach
of the obligations provided for in Article 5.

1. Member States shall provide for appropriate measures in
the event of non-compliance with this Directive by the
employer or the employees’ representatives; in particular, they
shall ensure that adequate administrative or judicial procedures
are available to enable the obligations deriving from this
Directive to be enforced.

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INITIAL PROPOSAL

AMENDED PROPOSAL

2. Member States shall provide for adequate penalties to be
applicable in the event of infringement of this Directive by the
employer or the employees’ representatives. These penalties
must be effective, proportionate and dissuasive.

Unchanged

3. Member States shall provide that in case of serious breach
the information and consultation obli-
by the employer of
gations in respect of
the decisions referred to in Article
4(1)(c) of
this Directive, where such decisions would have
direct and immediate consequences in terms of substantial
change or
the employment contracts or
these decisions shall have no legal
employment
effect
employment
relationships of the employees affected. The non-production
of legal effects will continue until such time as the employer
has fulfilled his obligations or,
if this is no longer possible,
adequate redress has been established, in accordance with the
arrangements and procedures to be determined by the Member
States.

termination of
relations,
the

employment

contracts

on

or

3. Member States shall provide that in case of serious breach
the information and consultation obli-
by the employer of
gations in respect of
the decisions referred to in Article
4(2)(c) of
this Directive, where such decisions would have
direct and immediate consequences in terms of substantial
the employment contracts or
change or
these decisions shall have no legal
employment
effect
employment
relationships of the employees affected. The non-production
of legal effects will continue until such time as the employer
has fulfilled his obligations or,
if this is no longer possible,
adequate redress has been established, in accordance with the
arrangements and procedures to be determined by the Member
States.

termination of
relations,
the

employment

contracts

on

or

The provision of the previous paragraph also applies to corre-
sponding obligations under
the agreements referred to in
Article 3,

The provision of the previous paragraph also applies to corre-
sponding obligations under
the agreements referred to in
Article 5,

Within the meaning of
breaches are:

the previous paragraphs,

serious

Unchanged

a) the total absence of information and/or consultation of the
employees’ representatives prior to a decision being taken or
the public announcement of that decision; or

b) the withholding of important information or provision of
false information rendering ineffective the exercise of the
right to information and consultation.

Article 8

Article 9

Link between this Directive and other Community and
national provisions

Unchanged

the general

This Directive constitutes

framework for
1.
employee information and consultation in undertakings in
the European Community.
to the
It
information and consultation procedures set out in Article 2
of Council Directive 98/59/EC and Article 6 of Directive
77/187/EC.

is also applicable

the general

This Directive constitutes

framework for
1.
employee information and consultation in undertakings in
the European Community.
to the
It
information and consultation procedures set out in Article 2
of Council Directive 98/59/EC and Article 7 of Council
Directive 2001/23/EC.

is also applicable

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INITIAL PROPOSAL

AMENDED PROPOSAL

2.
This Directive does not prejudice the provisions adopted
in accordance with Council Directive 94/45/EC of 24 September
1994 on the establishment of a European Works Council or a
procedure
and
Community-scale groups of undertakings for the purposes of
informing and consulting employees.

Community-scale

undertakings

in

2.
This Directive does not prejudice the provisions adopted
in accordance with Council Directive 94/45/EC of 24 September
1994 on the establishment of a European Works Council or a
procedure
and
Community-scale groups of undertakings for the purposes of
informing and consulting employees or Council Directive
97/74/EC of 15 December 1997 extending this Directive to
the United Kingdom.

Community-scale

undertakings

in

3.
This Directive shall be without prejudice to other rights
of employees to information, consultation and participation
under national law.

Unchanged

Application of the provisions of this Directive shall not
4.
for any regression in relation to the
constitute grounds
in
situation which already exists
respect of the general level of employee protection within the
scope of the Directive.

in the Member States

Article 9

Article 10

Transposition of the Directive

Unchanged

1. Member States shall adopt
the laws, regulations and
administrative provisions necessary to comply with this
Directive no later than . . . (two years after adoption) or shall
ensure
required
social partners
the Member States being
provisions by way of agreement,
obliged to take
enabling them to
steps
all necessary
guarantee the results imposed by this Directive at all times.
They shall forthwith inform the Commission thereof.

introduce

that

the

the

1. Member States shall adopt
the laws, regulations and
administrative provisions necessary to comply with this
Directive no later than . . .
(three years after adoption) or
shall ensure that the social partners introduce the required
the Member States being
provisions by way of agreement,
obliged to take
enabling them to
steps
all necessary
guarantee the results imposed by this Directive at all times.
They shall forthwith inform the Commission thereof.

2. Where Member States adopt these provisions, they shall
contain a reference to this Directive or shall be accompanied
by such reference on the occasion of their official publication.
The methods of making such reference shall be laid down by
the Member States.

Unchanged

Article 10

Article 11

Review by the Commission

Unchanged

Not later than . . . (five years after adoption), the Commission
shall, in consultation with the Member States and the social
partners at Community level, review the application of this
Directive with a view to proposing to the Council any
necessary amendments.

Article 11

Article 12

This Directive is addressed to the Member States.

Unchanged