Common Position (EC) No 30/2002 of 18 February 2002 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting 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 (Text with EEA relevance)
Date: 2002-02-18
Institutions: Council of the European Union
Subjects: EU Member State, approximation of laws, employer, financial solvency, occupational safety, pay, social security

22.5.2002

EN

Official Journal of the European Communities

C 119 E/1

I

(Information)

COUNCIL

COMMON POSITION (EC) No 30/2002

adopted by the Council on 18 February 2002

with a view to adopting Directive 2002/. . ./EC of the European Parliament and of the Council
of . . . 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

(2002/C 119 E/01)

(Text with EEA relevance)

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 (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Having consulted the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

Whereas:

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

in the European Community and that

(2) Directive 80/987/EEC (4) 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

(1) OJ C 154 E, 29.5.2001, p. 109.
(2) OJ C 221, 7.8.2001, p. 110.
(3) Opinion of the European Parliament of 29 November 2001 (not yet
published in the Official Journal), Council Common Position of 18
February 2002 and European Parliament Decision of . . . (not yet
published in the Official Journal).

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

1994 Act of Accession.

Member States to establish a body which guarantees
payment of
the employees
concerned.

the outstanding claims of

(3) Changes in insolvency law in the Member States and the
development of the internal market mean that certain
provisions of that Directive must be adapted.

(4) Legal certainty and transparency also require clarification
with regard to the scope and certain definitions of
possible
Directive
In
should be
exclusions granted to the Member States
indicated in the enacting provisions of the Directive and
consequently 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
In this context,
proceedings other
than liquidation.
the
Member States
the guarantee institution, be able to lay
liability of
down that where an insolvency situation results
in
several
insolvency proceedings, the situation be treated
as a single insolvency procedure.

to determine

in order

should,

of

28

(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 (5), Council Directive
1999/70/EC
the
June
framework agreement on fixed-term work concluded by
the ETUC, UNICE and CEEP (6) and Council 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 (7) are not excluded from the scope of this
Directive.

concerning

1999

(5) 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).

(6) OJ L 175, 10.7.1999, p. 43.
(7) OJ L 206, 29.7.1991, p. 19.

C 119 E/2

EN

Official Journal of the European Communities

22.5.2002

(7) In order to ensure legal certainty for employees in the
insolvency of undertakings pursuing their
event of
activities
in a number of Member States, and to
strengthen workers' rights in line with the established
case law of the Court of Justice, provisions should be
introduced which expressly state which institution is
responsible for meeting pay claims in these cases and
the aim of cooperation between the
establishes as
competent administrative authorities of
the Member
States the early settlement of employees' outstanding
claims. Furthermore it is necessary to ensure that the
relevant arrangements are properly implemented by
making
the
competent administrative authorities
in the Member
States.

collaboration

provision

between

for

(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 the types of insolvency proceedings which
give rise to intervention by the guarantee institution.

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

in the Community,

(10) Since the objectives of the proposed action, namely the
amendment of certain provisions of Directive 80/987/EEC
to take account of changes in the activities of under-
takings
sufficiently
achieved by the Member States and can therefore be
better achieved at Community level,
the Community
in accordance with the principle
may adopt measures,
of subsidiarity as set out in Article 5 of the Treaty. In
accordance with the principle of proportionality, as set
out in that Article, this Directive does not go beyond
what is necessary in order to achieve that objective,

cannot be

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 80/987/EEC is amended as follows:

1. The title shall be replaced by the following:

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. Where such provision already applies in their national
legislation, Member States may continue to exclude from
the scope of this Directive:

(a) domestic servants employed by a natural person;

(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
the employer, as provided for
based on insolvency of
under the laws, regulations and administrative provisions
of a Member State, and involving the partial or total
divestment of the employer's assets and the appointment
of a liquidator or a person performing a similar task, and
to the said
the authority which is competent pursuant
provisions has:

(a) either decided to open the proceedings, or

(b) established that the employer's undertaking or business
has been definitively closed down and that the available
assets are insufficient to warrant the opening of the
proceedings.

2.
This Directive is without prejudice to national law as
regards the definition of the terms “employee”, “employer”,
“pay”, “right conferring immediate entitlement” and “right
conferring prospective entitlement”.

‘Council Directive 80/987/EEC of 20 October 1980 on the
protection of employees in the event of the insolvency of
their employer.’

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

2. Section I shall be replaced by the following:

97/81/EC;

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

‘SECTION I

SCOPE AND DEFINITIONS

Article 1

1.
This Directive shall apply to employees' claims arising
from contracts of employment or employment relationships

(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.

22.5.2002

EN

Official Journal of the European Communities

C 119 E/3

3. Member States may not set a minimum duration for
the contract of employment or the employment relationship
in order
this
Directive.

for workers to qualify for claims under

This Directive does not prevent Member States from
4.
extending workers' protection to other
situations of
insolvency established by proceedings different from those
mentioned in paragraph 1 as provided for under national
law.

Such procedures shall not however create a guarantee obli-
gation for the institutions of the other Member States in the
cases referred to in Section IIIa.’

3. Articles 3 and 4 shall be replaced by the following:

‘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.

When Member States exercise this option, they shall inform
the Commission of the methods used to set the ceiling.’

4. The following Section IIIa shall be inserted:

‘SECTION IIIa

PROVISIONS CONCERNING TRANSNATIONAL
SITUATIONS

Article 8a

1. When an undertaking with activities in the territories
of at least two Member States is in a state of insolvency
within the meaning of Article 2(l),
institution
responsible for meeting employees' outstanding claims
shall be that in the Member State in whose territory they
work or habitually work.

the

The extent of employees' rights shall be determined by

2.
the law governing the competent guarantee institution.

in the cases

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

Article 4

Article 8b

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
covering the remuneration of the last three months of the
employment relationship prior to and/or after the date
referred to in Article 3. Member States may include this
minimum period of three months in a reference period
with a duration of not less than six months.

Member States having a reference period of not less than 18
months may limit the period for which outstanding claims
are met by the guarantee institution to eight weeks. In this
favourable to the
case,
those periods which are most
employee are used for the calculation of
the minimum
period.

1.
For the purposes of implementing Article 8a, Member
States shall make provision for the sharing of relevant
information between their competent administrative auth-
orities and/or
the guarantee institutions mentioned in
Article 3, making it possible in particular to inform the
guarantee institution responsible for meeting the employees'
outstanding claims.

2. Member States shall notify the Commission and the
other Member States of
their
competent administrative authorities and/or guarantee insti-
tutions. The Commission shall make these communications
publicly accessible.’

the contact details of

5. In Article 9 the following paragraph shall be added:

3.
Furthermore, Member States may set a ceiling on the
payments made by the guarantee institution. This ceiling
must not fall below a level which is socially compatible
with the social objective of the Directive.

‘Implementation of
this Directive shall not under any
circumstances be sufficient grounds for a regression in
relation to the current situation in the Member States and
in relation to the general level of protection of workers in
the area covered by it.’

C 119 E/4

EN

Official Journal of the European Communities

22.5.2002

6. In Article 10 the following point shall be added:

‘(c)

to refuse or reduce the liability referred to in Article 3
or the guarantee obligation referred to in Article 7 in
cases where the employee, on his or her own, or
together with his or her close relatives, was
the
owner of an essential part of the employer's under-
taking or business and had a considerable influence
on its activities.’

7. The following Article shall be inserted:

‘Article 10a

the

Member States shall notify the Commission and the other
Member States of
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.’

types of national

8. The Annex shall be deleted.

referred to in the first
They shall apply the provisions
subparagraph to 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 day of its publi-
cation in the Official Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

Article 2

Done at . . .

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
forthwith inform the
Directive before . . . (*). They shall
Commission thereof.

For the European Parliament

The President

For the Council

The President

(*) Three years after the date of entry into force of this Directive.

22.5.2002

EN

Official Journal of the European Communities

C 119 E/5

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 15 January 2001, the Commission submitted a proposal for a Directive amending Directive

80/987/EEC.

2. Acting in accordance with Article 251 of the Treaty, the European Parliament adopted its opinion at

first reading on 29 November 2001.

3. The Economic and Social Committee delivered its opinion on 31 May 2001. The Committee of the
Regions indicated in a letter dated 13 February 2002 that it would not be delivering an opinion on
the matter.

4. The Commission orally submitted an amended proposal before the Permanent Representatives
Committee on 30 November 2001, and this position was confirmed by Mrs Diamantopoulou at
the Council meeting on 3 December 2001.

5. On 3 December 2001, the Council expressed its unanimous political agreement on a draft Common

Position.

6. In accordance with Article 251 of the Treaty, the Council adopted its Common Position on 18

February 2002.

II. OBJECTIVE

The proposal aims to amend the 1980 Directive relating to the protection of employees in the event of
the insolvency of their employer, in order to take account of changes in national legislation and recent
Court of Justice case-law.

III. ANALYSIS OF THE COMMON POSITION

1. GENERAL OBSERVATIONS

the amendment of

The main objectives of
the Directive are to adapt developments on the
employment market and changes in national insolvency legislation, in conjunction with the entry
into force of Regulation (EC) No 1346/2000 on insolvency proceedings. The amendment also aims
to clarify the definition of the scope and to introduce rules to determine the relevant guarantee
institution in transnational situations.

2. AMENDMENTS MADE BY THE EUROPEAN PARLIAMENT

The European Parliament adopted 16 amendments.

2.1. Amendments by the European Parliament not taken on board by the Commission

In its amended proposal, the Commission did not accept nine of Parliament's amendments,
namely amendments 3, 5, 7, 8, 10, 12, 13, 17 and 19.

2.2. Amendments by the European Parliament accepted by the Commission

The Commission indicated it was able to accept three of Parliament's amendments in their
entirety, namely amendments 2, 4 and 9.

Moreover, the Commission accepted four other amendments, either in part or in spirit, namely
amendments 6, 11, 14, and 15.

C 119 E/6

EN

Official Journal of the European Communities

22.5.2002

3. CHANGES MADE BY THE COUNCIL TO THE COMMISSION'S AMENDED PROPOSAL

The Council accepted the same amendments as the Commission, with the exception of amendment
11. This amendment relates to Article 1(2) (1) (first paragraph of Article 3 of Directive 80/987/EEC)
and aims to add the obligation of paying indemnities on termination of
the employment
relationship. The Commission indicated that it was able to accept the amendment if the phrase
‘where appropriate’ was added.

The Council did not accept the amendment as it did not consider that this addition brought any
extra element of protection in so far as the indemnities are employee's outstanding claims resulting
from contracts of employment or employment relationships and are therefore covered by the first
paragraph of Article 3.

IV. CONCLUSIONS

The Council accepted all the amendments by the European Parliament that the Commission accepted,
with the exception of one for the aforementioned reasons.

The Council therefore considers that on the whole the text of the Common Position meets the
fundamental objectives of the Commission's proposal and those the European Parliament had in
mind when proposing its amendments.

(1) Article 1(3) of the Common Position.