CELEX: 31996L0034
Language: en
Date: 1996-06-03 00:00:00
Title: Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC

Avis juridique important

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31996L0034

Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC  

Official Journal L 145 , 19/06/1996 P. 0004 - 0009

COUNCIL DIRECTIVE 96/34/EC of 3 June 1996 on  the framework agreement on parental leave concluded by UNICE, CEEP and the ETUCTHE  COUNCIL OF THE EUROPEAN UNION, Having regard to the Agreement on social policy, annexed to the Protocol (No 14) on social policy,  annexed to the Treaty establishing the European Community, and in particular Article 4 (2)  thereof, Having regard to the proposal from the Commission, (1)  Whereas on the basis of the Protocol on social policy, the Member States, with the exception  of the United Kingdom of Great Britain and Northern Ireland, (hereinafter referred to as 'the  Member States`), wishing to pursue the course mapped out by the 1989 Social Charter have concluded  an Agreement on social policy amongst themselves; (2)  Whereas management and labour may, in accordance with Article 4 (2) of the Agreement on social  policy, request jointly that agreements at Community level be implemented by a Council decision on  a proposal from the Commission; (3)  Whereas paragraph 16 of the Community Charter of the Fundamental Social Rights of Workers on  equal treatment for men and women provides, inter alia, that 'measures should also be developed  enabling men and women to reconcile their occupational and family obligations`; (4)  Whereas the Council, despite the existence of a broad consensus, has not been able to act on  the proposal for a Directive on parental leave for family reasons  (1), as amended  (2) on 15  November 1984; (5)  Whereas the Commission, in accordance with Article 3 (2) of the Agreement on social policy,  consulted management and labour on the possible direction of Community action with regard to  reconciling working and family life; (6)  Whereas the Commission, considering after such consultation that Community action was  desirable, once again consulted management and labour on the substance of the envisaged proposal in  accordance with Article 3 (3) of the said Agreement; (7)  Whereas the general cross-industry organizations (Unice, CEEP and the ETUC) informed the  Commission in their joint letter of 5 July 1995 of their desire to initiate the procedure provided  for by Article 4 of the said Agreement; (8)  Whereas the said cross-industry organizations concluded, on 14 December 1995, a framework  agreement on parental leave; whereas they have forwarded to the Commission their joint request to  implement this framework agreement by a Council Decision on a proposal from the Commission in  accordance with Article 4 (2) of the said Agreement; (9)  Whereas the Council, in its Resolution of 6 December 1994 on certain aspects for a European  Union social policy; a contribution to economic and social convergence in the Union  (3), asked the  two sides of industry to make use of the possibilities for concluding agreements, since they are as  a rule closer to social reality and to social problems; whereas in Madrid, the members of the  European Council from those States which have signed the Agreement on social policy welcomed the  conclusion of this framework agreement; (10)  Whereas the signatory parties wanted to conclude a framework agreement setting out minimum  requirements on parental leave and time off from work on grounds of force majeure and referring  back to the Member States and/or management and labour for the definition of the conditions under  which parental leave would be implemented, in order to take account of the situation, including the  situation with regard to family policy, existing in each Member State, particularly as regards the  conditions for granting parental leave and exercise of the right to parental leave; (11)  Whereas the proper instrument for implementing this framework agreement is a Directive within  the meaning of Article 189 of the Treaty; whereas it is therefore binding on the Member States as  to the result to be achieved, but leaves them the choice of form and methods; (12)  Whereas, in keeping with the principle of subsidiarity and the principle of proportionality  as set out in Article 3b of the Treaty, the objectives of this Directive cannot be sufficiently  achieved by the Member States and can therefore be better achieved by the Community; whereas this  Directive is confined to the minimum required to achieve these objectives and does not go beyond  what is necessary to achieve that purpose; (13)  Whereas the Commission has drafted its proposal for a Directive, taking into account the  representative status of the signatory parties, their mandate and the legality of the clauses of  the framework agreement and compliance with the relevant provisions concerning small and  medium-sized undertakings; (14)  Whereas the Commission, in accordance with its Communication of 14 December 1993 concerning  the implementation of the Protocol on social policy, informed the European Parliament by sending it  the text of the framework agreement, accompanied by its proposal for a Directive and the  explanatory memorandum; (15)  Whereas the Commission also informed the Economic and Social Committee by sending it the text  of the framework agreement, accompanied by its proposal for a Directive and the explanatory  memorandum; (16)  Whereas clause 4 point 2 of the framework agreement states that the implementation of the  provisions of this agreement does not constitute valid grounds for reducing the general level of  protection afforded to workers in the field of this agreement. This does not prejudice the right of  Member States and/or management and labour to develop different legislative, regulatory or  contractual provisions, in the light of changing circumstances (including the introduction of  non-transferability), as long as the minimum requirements provided for in the present agreement are  complied with; (17)  Whereas the Community Charter of the Fundamental Social Rights of Workers recognizes the  importance of the fight against all forms of discrimination, especially based on sex, colour, race,  opinions and creeds; (18)  Whereas Article F (2) of the Treaty on European Union provides that 'the Union shall respect  fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and  Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional  traditions common to the Member States, as general principles of Community law`; (19)  Whereas the Member States can entrust management and labour, at their joint request, with the  implementation of this Directive, as long as they take all the necessary steps to ensure that they  can at all times guarantee the results imposed by this Directive; (20)  Whereas the implementation of the framework agreement contributes to achieving the objectives  under Article 1 of the Agreement on social policy, HAS ADOPTED THIS DIRECTIVE: Article 1 Implementation of the framework agreement The purpose of this  Directive is to put into effect the annexed framework agreement on parental leave concluded on 14  December 1995 between the general cross-industry organizations (Unice, CEEP and the ETUC). Article 2 Final provisions 1.  The Member States shall bring into force the laws, regulations  and administrative provisions necessary to comply with this Directive by 3 June 1998 at the latest  or shall ensure by that date at the latest that management and labour have introduced the necessary  measures by agreement, the Member States being required to take any necessary measure enabling them  at any time to be in a position to guarantee the results imposed by this Directive. They shall  forthwith inform the Commission thereof. 2.  The Member States may have a maximum additional period of one year, if this is necessary to  take account of special difficulties or implementation by a collective agreement. They must forthwith inform the Commission of such circumstances. 3.  When Member States adopt the measures referred to in paragraph 1, they shall contain a  reference to this Directive or be accompanied by such reference on the occasion of their official  publication. The methods of making such reference shall be laid down by Member States. Article 3 This Directive is addressed to the Member States. Done at Luxembourg, 3 June 1996. For the Council The President T. TREU  ANNEX FRAMEWORK AGREEMENT ON PARENTAL LEAVE PREAMBLE The enclosed framework  agreement represents an undertaking by Unice, CEEP and the ETUC to set out minimum requirements on  parental leave and time off from work on grounds of force majeure, as an important means of  reconciling work and family life and promoting equal opportunities and treatment between men and  women. ETUC, Unice and CEEP request the Commission to submit this framework agreement to the Council for a  Council Decision making these minimum requirements binding in the Member States of the European  Community, with the exception of the United Kingdom of Great Britain and Northern Ireland.I.  GENERAL CONSIDERATIONS 1.  Having regard to the Agreement on social policy annexed to the Protocol  on social policy, annexed to the Treaty establishing the European Community, and in particular  Articles 3 (4) and 4 (2) thereof; 2.  Whereas Article 4 (2) of the Agreement on social policy provides that agreements concluded at  Community level shall be implemented, at the joint request of the signatory parties, by a Council  decision on a proposal from the Commission; 3.  Whereas the Commission has announced its intention to propose a Community measure on the  reconciliation of work and family life; 4.  Whereas the Community Charter of Fundamental Social Rights stipulates at point 16 dealing with  equal treatment that measures should be developed to enable men and women to reconcile their  occupational and family obligations; 5.  Whereas the Council Resolution of 6 December 1994 recognizes that an effective policy of equal  opportunities presupposes an integrated overall strategy allowing for better organization of  working hours and greater flexibility, and for an easier return to working life, and notes the  important role of the two sides of industry in this area and in offering both men and women an  opportunity to reconcile their work responsibilities with family obligations; 6.  Whereas measures to reconcile work and family life should encourage the introduction of new  flexible ways of organizing work and time which are better suited to the changing needs of society  and which should take the needs of both undertakings and workers into account; 7.  Whereas family policy should be looked at in the context of demographic changes, the effects of  the ageing population, closing the generation gap and promoting women's participation in the labour  force; 8.  Whereas men should be encouraged to assume an equal share of family responsibilities, for  example they should be encouraged to take parental leave by means such as awareness programmes; 9.  Whereas the present agreement is a framework agreement setting out minimum requirements and  provisions for parental leave, distinct from maternity leave, and for time off from work on grounds  of force majeure, and refers back to Member States and social partners for the establishment of the  conditions of access and detailed rules of application in order to take account of the situation in  each Member State; 10.  Whereas Member States should provide for the maintenance of entitlements to benefits in kind  under sickness insurance during the minimum period of parental leave; 11.  Whereas Member States should also, where appropriate under national conditions and taking into  account the budgetary situation, consider the maintenance of entitlements to relevant social  security benefits as they stand during the minimum period of parental leave; 12.  Whereas this agreement takes into consideration the need to improve social policy  requirements, to enhance the competitiveness of the Community economy and to avoid imposing  administrative, financial and legal constraints in a way which would impede the creation and  development of small and medium-sized undertakings; 13.  Whereas management and labour are best placed to find solutions that correspond to the needs  of both employers and workers and must therefore have conferred on them a special role in the  implementation and application of the present agreement, THE SIGNATORY PARTIES HAVE AGREED THE FOLLOWING: II. CONTENT Clause 1: Purpose and scope 1.  This agreement lays down minimum  requirements designed to facilitate the reconciliation of parental and professional  responsibilities for working parents. 2.  This agreement applies to all workers, men and women, who have an employment contract or  employment relationship as defined by the law, collective agreements or practices in force in each  Member State. Clause 2: Parental leave 1.  This agreement grants, subject to clause 2.2, men and women workers  an individual right to parental leave on the grounds of the birth or adoption of a child to enable  them to take care of that child, for at least three months, until a given age up to 8 years to be  defined by Member States and/or management and labour. 2.  To promote equal opportunities and equal treatment between men and women, the parties to this  agreement consider that the right to parental leave provided for under clause 2.1 should, in  principle, be granted on a non-transferable basis. 3.  The conditions of access and detailed rules for applying parental leave shall be defined by law  and/or collective agreement in the Member States, as long as the minimum requirements of this  agreement are respected. Member States and/or management and labour may, in particular: (a)  decide whether parental leave is granted on a full-time or part-time basis, in a piecemeal way  or in the form of a time-credit system; (b)  make entitlement to parental leave subject to a period of work qualification and/or a length  of service qualification which shall not exceed one year; (c)  adjust conditions of access and detailed rules for applying parental leave to the special  circumstances of adoption; (d)  establish notice periods to be given by the worker to the employer when exercising the right  to parental leave, specifying the beginning and the end of the period of leave; (e)  define the circumstances in which an employer, following consultation in accordance with  national law, collective agreements and practices, is allowed to postpone the granting of parental  leave for justifiable reasons related to the operation of the undertaking (e.g. where work is of a  seasonal nature, where a replacement cannot be found within the notice period, where a significant  proportion of the workforce applies for parental leave at the same time, where a specific function  is of strategic importance). Any problem arising from the application of this provision should be  dealt with in accordance with national law, collective agreements and practices; (f)  in addition to (e), authorize special arrangements to meet the operational and organizational  requirements of small undertakings. 4.  In order to ensure that workers can exercise their right to parental leave, Member States  and/or management and labour shall take the necessary measures to protect workers against dismissal  on the grounds of an application for, or the taking of, parental leave in accordance with national  law, collective agreements or practices. 5.  At the end of parental leave, workers shall have the right to return to the same job or, if  that is not possible, to an equivalent or similar job consistent with their employment contract or  employment relationship. 6.  Rights acquired or in the process of being acquired by the worker on the date on which parental  leave starts shall be maintained as they stand until the end of parental leave. At the end of  parental leave, these rights, including any changes arising from national law, collective  agreements or practice, shall apply. 7.  Member States and/or management and labour shall define the status of the employment contract  or employment relationship for the period of parental leave. 8.  All matters relating to social security in relation to this agreement are for consideration and  determination by Member States according to national law, taking into account the importance of the  continuity of the entitlements to social security cover under the different schemes, in particular  health care. Clause 3: Time off from work on grounds of force majeure 1.  Member States and/or management and  labour shall take the necessary measures to entitle workers to time off from work, in accordance  with national legislation, collective agreements and/or practice, on grounds of force majeure for  urgent family reasons in cases of sickness or accident making the immediate presence of the worker  indispensable. 2.  Member States and/or management and labour may specify the conditions of access and detailed  rules for applying clause 3.1 and limit this entitlement to a certain amount of time per year  and/or per case. Clause 4: Final provisions 1.  Member States may apply or introduce more favourable provisions  that those set out in this agreement. 2.  Implementation of the provisions of this agreement shall not constitute valid grounds for  reducing the general level of protection afforded to workers in the field covered by this  agreement. This shall not prejudice the right of Member States and/or management and labour to  develop different legislative, regulatory or contractual provisions, in the light of changing  circumstances (including the introduction of non-transferability), as long as the minimum  requirements provided for in the present agreement are complied with. 3.  The present agreement shall not prejudice the right of management and labour to conclude, at  the appropriate level including European level, agreements adapting and/or complementing the  provisions of this agreement in order to take into account particular circumstances. 4.  Member States shall adopt the laws, regulations and administrative provisions necessary to  comply with the Council decision within a period of two years from its adoption or shall ensure  that management and labour  (1) introduce the necessary measures by way of agreement by the end of  this period. Member States may, if necessary to take account of particular difficulties or  implementation by collective agreement, have up to a maximum of one additional year to comply with  this decision. 5.  The prevention and settlement of disputes and grievances arising from the application of this  agreement shall be dealt with in accordance with national law, collective agreements and  practices. 6.  Without prejudice to the respective role of the Commission, national courts and the Court of  Justice, any matter relating to the interpretation of this agreement at European level should, in  the first instance, be referred by the Commission to the signatory parties who will give an  opinion. 7.  The signatory parties shall review the application of this agreement five years after the date  of the Council decision if requested by one of the parties to this agreement. Done at Brussels, 14 December 1995. Fritz VERZETNITSCH, President of the ETUC Emilio GABAGLIO, Secretary-General ETUC Bld Emile Jacqmain 155 B-1210 BrusselsAntonio Castellano AUYANET, President of the CEEP Roger GOURVÈS, Secretary-General CEEP Rue de la Charité 15 B-1040 BrusselsFrançois PERIGOT, President of the Unice Zygmunt TYSZKIEWICZ, Secretary-General UNICE Rue Joseph II 40 B-1040 Brussels