Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the 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 (presented by the Commission pursuant to Article 250 (2) of the EC Treaty)
Date: 2002-05-23
Institutions: European Commission
Subjects: EU Member State, European Parliament, amendment, approximation of laws, employer, financial solvency, labour law, wage earner

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 23.5.2002
COM(2002) 265 final

2001/0006 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
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

(presented by the Commission pursuant to Article 250 (2) of the EC Treaty)

2001/0006 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
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

1.

BACKGROUND

The  Commission forwarded the  above-mentioned proposal  for  a  directive  based  on
Article 137(2) to the Parliament and to the Council on 16 January 2001.

The Economic and Social Committee gave its opinion on 30 May 2001.

The European Parliament adopted an opinion at first reading on 29 November 2001.

The  Commission  accepted  some  of  the  Parliament’s  amendments.  It  submitted  an
amended proposal to the Council on 3 December 2001 including these amendments.

The Council adopted a common position unanimously on 18 February 2002.

On  14  May  2002,  at  second  reading,  the  European  Parliament  adopted  six
amendments to the Council’s common position.

This  opinion  sets  out  the  Commission’s  position  on  the  European  Parliament’s
amendments in accordance with Article 251(2)(c) of the EC Treaty.

2.

AIM OF THE COMMISSION PROPOSAL

To revise Council Directive 80/987/EEC with a view to adapting and improving it,
bearing  in  mind  the  case  law  of  the  Court  and  the  developments  which  have
demonstrated the gaps or inadequacies of the text adopted in 1980.

3.

COMMISSION’S OPINION ON THE PARLIAMENT’S AMENDMENTS

3.1.

Summary of the Commission’s position

The  Commission  can  accept  the  six  European  Parliament  amendments  in  full.  It
considers  that  these  amendments  will  extend  and  improve  the  text  of  the  common
position.

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3.2.

Parliament amendments at second reading

3.2.1.

Amendments accepted

3.2.1.1. Amendment  1  (possibility  of  restricting  the  responsibility  of  the  guarantee

institutions) (new recital)

The purpose  of  the  amendment is to introduce  a  recital  to  clarify  Article  4(3),  first
subparagraph  (cf.  amendment  5  below)  which  authorises  Member  States  to  set
ceilings on the payments made by the guarantee institutions. These ceilings may be
differentiated but must be compatible with the social objective of the Directive.

The Commission accepts this amendment in that it gives greater clarity to the option
given to Member States under Article 4(3) of the Directive.

3.2.1.2. Amendment 2 (report on implementation of the Directive) (new recital)

This  amendment  adds  a  recital  with  a  view  to  including  a  new  article  in  the  final
provisions concerning a report on implementation of the Directive (cf. amendment 7
below).

The Commission accepts this amendment in that it is directly linked to amendment 7
introducing a new article into the final provisions.

3.2.1.3 Amendment  3  (option  for  Member  States  of  extending  protection  under  the
Directive)  ARTICLE  1,  POINT  2  (Article  2(4),  first  subparagraph  of  Directive
80/987/EEC)

The  purpose  of  this  amendment  is  to  cover  the  greatest  possible  number  of
insolvency  situations  in  Article  2(4),  first  subparagraph.  It  extends  the  text  to  the
effect that the Directive does not prevent Member States from extending protection to
de facto stopped payments on a permanent basis.

Since  this  is  an  option  which  does  not  impose  obligations  on  the  guarantee
institutions  of  other  Member  States  in  cross-border  situations  (Article  8a),  the
Commission accepts this amendment.

3.2.1.4. Amendment  4  (payment  of  wage  claims)  ARTICLE  1,  POINT  2  (Article  3,  first

subparagraph of Directive 80/987/EEC)

This  amendment  specifies  that,  where  provided  for  by  national  law,  severance  pay
on  termination  of  employment  relationships  is  included  in  payment  of  employees'
outstanding claims.

The Commission accepts this clarification of outstanding claims in Article 3, in that
the severance pay referred to is included in the concept of pay within the meaning of
Article 2(2) of the Directive and where it is actually due under national law.

3.2.1.5. Amendment 5 (option for Member States to limit payments) ARTICLE 1, POINT 3

(Article 4(3), first subparagraph of Directive 80/987/EEC)

The  purpose  of  the  amendment  is  to  specify  that  the  ceiling  which  may  be  set  by
Member States need not necessarily be a single ceiling (cf. amendment 1).

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The  Commission  accepts  this  amendment,  given  that  these  ceilings  (possibly
differentiated)  must  not  fall  below  a  level  which  is  compatible  with  the  social
objective of the Directive.

3.2.1.6. Amendment  7  (report  on  implementation)  (new  Article  3  in  the  final  provisions  of

the Directive)

The  Commission  accepts  this  amendment,  which  provides  for  a  report  on  the
implementation and application of the Directive to be established by the Commission
within five years of the date indicated in Article 2 of the Directive.

3.3.

Amended proposal

The  Commission  is  not  submitting  an  amended  proposal  but  urges  the  Council  to
take  full  account  of  the  above  opinion  when  examining  the  Parliament’s
amendments.

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