CELEX: 51996PC0620
Language: en
Date: 1996-11-29
Title: Proposal for a COUNCIL DIRECTIVE on the approximation of the laws of the Member States relating to collective redundancies (codified version)

COMMISSION OF THE EUROPEAN COMMUNITIES
                                            Brussels, 29.11.1996
                                            COM(96) 620 final
                                            96/ 0290 (CNS)
                             Proposal for a
                       COUNCIL DIRECTIVE
on the approximation of the laws of the Member States relating to collective
                               redundancies
                             Modified version^
                   (presented by the Commission)
 ---pagebreak---  ---pagebreak---                                EXPIANATORV MEMORANDUM
1.  In the context of a people's Europe, the Commission, attaches great importance to
    simplifying and clarifying Community law so as to make it clearer and more accessible
    to the ordinary citizen» thus giving him new opportunities and the chance to make use
    of the specific rights it gives him.
    This aim cannot be achieved so long as numerous provisions that have been amended
    several times, often quite substantially, remain scattered, so that they must be sought
    partly in the original instrument and partly in later amending ones. Considerable re-
    search work, comparing many different instruments, is thus needed to identify the
    current rules.
    For this reason a consolidation of rules that have frequently been amended is also
    essential if Community law is to be clear and transparent
2.  On 1 April 1987 the Commission therefore decided to instruct its staff that all legis-
    lative measures should be consolidated after no more than ten amendments, stressing
    that this was a minimum requirement and that departments should endeavour to con-
    solidate at even shorter intervals the texts for which they were responsible, to ensure
    that the Community rules were clear and readily understandable.
3.  The Conclusions of the Presidency of the Edinburgh European Council (December
     1992) confirmed this, stressing the importance of legislative consolidation as it offers
    certainty as to the law applicable to a given matter at a given time.
     It must be undertaken in full compliance with the normal Community legislative pro-
     cedure.
     Given that no changes of substance may be made to the instruments affected by legis-
     lative consolidation, Parliament, the Council and the Commission have agreed, by an
     interinstitutional agreement dated 20 December 1994, that an accelerated procedure
     may be used for the fast-track adoption of codification instruments.
4.   The purpose of this proposal (l) for consolidation of Council Directive 75/129/EEC of
      17 February 1975 on the approximation of the laws of the Member States relating to
     collective redundancies is to undertake official codification of this type. The new di-
     rective will supersede the various directives incorporated in it (?); their content is fully
     preserved, and they are brought together with only such formal amendments as are
     required by the codification exercise itself.
 5.  This consolidation proposal was drawn up on the basis of a prdiminary consolidation.
     in all the official languages, of Directive 75/129/EEC and the instruments amending it,
     carried out by the Office for Official Publications of the European Communities, by
     means of a data-processing system referred to in the conclusions of the European
      Council meeting in Edinburgh. Although the articles have been given new numbers,
      the former number is printed alongside in each case for the reader's convenience; the
      correlation between the old and new numbers is shown in a table contained in Annex
      II to the consolidated Directive.
       (1) Entered in the legislative programme for 1996.
       (2) See Part A of Annex I.
 ---pagebreak---                                                  Proposal for a
                                       COUNCIL DIRECTIVE -./.../EC
                                                      of.-
       on the approximation of the laws of the Member States relating to collective redundancies
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European
   Community, and in particular Article 100 thereof,
   Having regard to the proposal from the Commission,
   Having regard to the opinion of the European Parlia-
   ment (l),
   Having regard to the opinion of the Economic and So-
   cial Committee (2),
1) Whereas for reasons of clarity and rationality Council
   Directive 75/129/EEC of 17 February 1975 on the
   approximation of the laws of the Member States relating
   to collective redundancies (3) should be consolidated;
2) Whereas it is important that greater protection should           1. 75/129/EEC
   be afforded to workers in the event of collective redun-
   dancies while taking into account the need for balanced
   economic and social development within the Community;
3) Whereas, despite increasing convergence, differences still
   remain between the provisions in force in the Member
   States concerning the practical arrangements and pro-
   cedures for such redundancies and the measures de-
   signed to alleviate the consequences of redundancy for
   workers;
4) Whereas these differences can have a direct effect on            3. (adapted)
   the functioning of the internal market;
5) Whereas the Council resolution of 21 January 1974 con-           4. (adapted)
   cerning a social action programme (4) made provision
   for a Directive on the approximation of Member States'
   legislation on collective redundancies;
6) Whereas the Community Charter of the Fundamental                 1. 92/56/EEC
   Social Rights of Workers, adopted at the Regulation
   Council meeting held in Strasbourg on 9 December 1989
   by the Heads of State or Government of eleven Member
   States, states inter alia in point 7, first paragraph, first
   sentence, and second paragraph; in point 17, first para-
   graph; and in point 18, third indent:
   ( )
    2
   ( )
        OJ No L 48,22.2.1975, p. 29. Directive amended by Directive
   (3) 92/56/EEC (OJ No L 245,26.8.1992, p. 3).
        OJ No C 13,12. 2.1974, p. 1.
   (4)
 ---pagebreak---     '7.    The completion of the internal market must lead to        92/56/EEC
           an improvement in the living and working condi-
           tions of workers in the European Community (...).
           The improvement must cover, where necessary, the
           development of certain aspects of employment re-
           gulations such as procedures for collective redun-
           dancies and those regarding bankruptcies.
           (...)
    17. Information, consultation and participation for
           workers must be developed along appropriate lines,
           taking account of the practices in force in the vari-
           ous Member States.
           (...)
     18. Such information, consultation and participation
           must be implemented in due time, particularly in
           the following cases:
            — in cases of collective redundancy procedures;
           (-      -)';
 7) Whereas this approximation must therefore be promoted         5. 75/129/EEC
    while the improvement is being maintained within the
    meaning of Article 117 of the Treaty;
 8) Whereas, in order to calculate the number of redun-           2. 92/56/EEC
    dancies provided for in the definition of collective redun-      (adapted)
    dancies within the meaning of this Directive, other forms
    of termination of employment contracts on the initiative
    of the employer should be equated to redundancies, pro-
    vided that there are at least five redundancies;
 9) Whereas it should be stipulated that this Directive              (adapted)
     applies in principle also to collective redundancies result-
     ing where the establishment's activities are terminated as
     a result of a judicial decision;
10) Whereas the Member States should be given the option
     of stipulating that workers' representatives may call on
     experts on grounds of the technical complexity of the
     matters which are likely to be the subject of the inform-
     ing and consulting;
11)  Whereas it is necessary to ensure that employers' obliga-       92/56/EEC
     tions as regards information, consultation and notifica-
     tion apply independendy of whether the decision on col-
     lective redundancies emanates from the employer or
     from an undertaking which controls that employer;
12)  Whereas Member States should ensure that workers'            7. (adapted)
     representatives and/or workers have at their disposal ad-
     ministrative and/or judicial procedures in order to ensure
     that the obligations laid down in this Directive are ful-
     filled;
13)  Whereas this Directive must not affect the obligations of
     the Member States concerning the deadlines for trans-
     position of the Directives set out in Annex I, Part B,
     HAS ADOPTED THIS DIRECTIVE:
 ---pagebreak---                           SECTION I                          75/129/EEC
                    Definitions and scope
                           ArticU 1
1.     For the purposes of this Directive:
(a) 'collective redundancies' means dismissals effected by
     an employer for one or more reasons not related to
     the individual workers concerned where, according to
     the choice of the Member States, the number of re-
     dundancies is:
     —     either, over a period of 30 days:
           (\) at least 10 in establishments normally em-
                ploying more than 20 and less than 100
                workers;
           (2) at least 10 % of the number of workers in
                establishments normally employing at least
                100 but less than 300 workers;
           (3) at least 30 in establishments normally em-
                ploying 300 workers or more;
     —    or, over a period of 90 days, at least 20, what-
          ever the number of workers normally employed
          in the establishments in question;
(b) Vorkers' representatives' means the workers' repre-
     sentatives provided for by the laws or practices of the
     Member States.
For the purpose of calculating the number of redundancies    92/56/EEC - Art 1 (1) (a)
provided for in the first subparagraph of point (a), ter-    Corrigendum, OJ No L 311,28.10.1992, p. 40
minations of an employment contract which occur on the
employer's initiative for one or more reasons pot related
to the individual workers concerned shall be assimilated to
redundancies, provided that there are at least five redun-
dancies.
2.     This Directive shall not apply to:                    75/129/EEC
(a) collective redundancies effeaed under contracts of
     employment concluded for limited periods of time or
     for specific tasks except where such redundancies take
     place prior to the date of expiry or the completion of
     such contracts;
(b) workers employed by public administrative bodies or
     by establishments governed by public law (or, in
     Member States where this concept is unknown, by
     equivalent bodies);
(c) the crews of sea-going vessels.
 ---pagebreak---                          SECTION n                          92/56/EEC - Art 1 (2)
                Information and consultation
                           Article 2
1.      Where an employer is contemplating collective re-
dundancies, he shall begin consultations with the workers'
representatives in good time with a view to reaching an
agreement
2.      These consultations shall, at least, cover ways and
means of avoiding collective redundancies or reducing the
number of workers affected, and of mitigating the conse-
quences by recourse to accompanying social measures
aimed, inter alia, at aid for redeploying or retraining
workers made redundant
Member States may provide that the workers' representa-     Corrigendum, OJ No L 311, 28.10.1992, p. 40
tives may call upon the services of experts in accordance
with national legislation and/or practice.
3.      To enable workers' representatives to make con-
structive proposals, the employers shall in good time dur-
ing the course of the consultations:
(a) supply them with all relevant information and
(b) in any event notify them in writing of:
      (i)  the reasons for the projected redundancies;
     (ii) the number of categories of workers to be made
           redundant;
     (iii) the number and categories of workers normally    Corrigendum, OJ No L 311, 28.10.1992, p. 40
           employed;
     (iv) the period over which the projected redundancies
           are to be effected;
     (v) the criteria proposed for the selection of the
           workers to be made redundant in so far as
           national legislation and/or practice confers the
           power therefor upon the employer;
     (vi) the method for calculating any redundancy pay-
           ments other than those arising' out of national
           legislation and/or practice.
The employer shall forward to the competent public auth-
ority a copy of, at least, the elements of the written com-
munication which are provided for in the first subpara-
graph, point (b), subpoints (i) to (v).
4.      The obligations laid down in paragraphs 1, 2 and 3
shall apply irrespective of whether the decision regarding
collective redundancies is being taken by the employer or
by an undertaking controlling the employer.
In considering alleged breaches of the information, con-
sultation and notification requirements laid down by this
Directive, account shall not be taken of any defence on the
part of the employer on the ground that the necessary in-
formation has not been provided to the employer by the
undertaking which took the decision leading to collective
redundancies.
 ---pagebreak---                         SECTION m                              75/129/EEC
            Procedure for collective redundancies
                          Article 3
1.     Employers shall notify the competent public author-
ity in writing of any projected collective redundancies.
However, Member States may provide that in the case of         92/56/EEC- Art 1(3)
planned collective redundancies arising from termination of
the establishment's activities as a result of a judicial deci-
sion, the employer shall be obliged to notify the competent
public authority in writing only if the latter so requests.
This notification shall contain all relevant information con-  75/129/EEC
cerning the projected collective redundancies and the con-
sultations with workers' representatives provided for in Ar-
ticle 2, and particularly the reasons for the redundancies,
the number of workers to be made redundant, the number
of workers normally employed and the period over which
the redundancies are to be effected.
2.     Employers shall forward to the workers' representa-
tives a copy of the notification provided for in paragraph
1.
The workers' representatives may send any comments they
may have to the competent public authority.
                          Article 4
1.     Projected collective redundancies notified to the
competent public authority shall take effect not earlier
than 30 days after the notification referred to in Article 3
(1) without prejudice to any provisions governing individ-
ual rights with regard to notice of dismissal.
Member States may grant the competent public authority
the power to reduce the period provided for in the preced-
ing subparagraph.
2.     The period provided for in paragraph 1 shall be
used by the competent public authority to seek solutions to
the problems raised by the projected collective redun-
dancies.
3.     Where the initial period provided for in paragraph 1
is shorter than 60 days, Member States may grant the
competent public authority the power to extend the initial
period to 60 days following notification where the prob-
lems raised by the projected collective redundancies are
not likely to be solved within the initial period.
Member States may grant the competent public authority
wider powers of extension.
The employer must be informed of the extension and the
grounds for it before expiry of the initial period provided
for in paragraph 1.
 ---pagebreak--- 4.     Member States need not apply this Article to collec-    92/56/EEC - Art 1 (4)
tive redundancies arising from termination of the establish-
ment's activities where this is the result of a judicial deci-
sion.
                        SECTION IV                             75/129/EEC
                      Final provisions
                           Article 5
This Directive shall not affect the right of Member States
to apply or to introduce laws, regulations or administrative
provisions which are more favourable to workers or to pro-     92/56/EEC - Art 1 (5)
mote or to allow the application of collective agreements
more favourable to workers.
                           Article 6                           92/56/EEC - Art 1 (6) Article 5a
Member States shall ensure that judicial and/or administra-
tive procedures for the enforcement of obligations under
this Directive are available to the workers' representatives
and/or workers.
                           Article 7                           75/129/EEC             ArâskA
                                                               (adapted)
Member States shall communicate to the Commission the
texts of the laws, regulations and administrative provisions
which they adopt in the field covered by this Directive.
                           Article 8                                                  Article 7
Not later than 19 February 1979, Member States shall for-      (adapted)
ward all relevant information to the Commission to enable
it to draw up a report for submission to the Council on
the application of this Directive.
                           Article 9
 1.     The Directives listed in Annex I, Part A, are hereby
repealed without prejudice to the obligations of the Mem-
ber States concerning the deadlines for transposition of the
said Directives set out in Annex I, Part B.
2.      References to the repealed Directives shall be
 construed as references to this Directive and shall be read
 in accordance with the correlation table in Annex II.
                          Article 10
 This Directive shall enter into force on the twentieth day
 following that of its publication in the Official Journal of
 the European Communities.
 ---pagebreak---                         Article 11
This Directive is addressed to the Member States.
Done at Brussels,
                                     For the Council
                                     The President
 ---pagebreak---                                      ANNEX I
                                       Part A
                                Repealed Directives
                             (referred to by Article 9)
Council Directive 75/129/EEC
and its following amendment:
Council Directive 92/56/EEC
                                        10
 ---pagebreak---                                                      Part B
                                  Deadlines for transposition into national law
                                            (referred to by Article 9)
                   Directive                         Deadline for transposition
75/129/EEC (OJ No L 48, 22. 2. 1975, p. 29)          19. 2. 1977
92/56/EEC (OJ No L 245, 26. 8. 1992, p. 3)           24. 6. 1994
                                                       11
 ---pagebreak---                          ANNEX U
                     CORRELATION TABLE
Directive 75/129/EEC          This Directive
Article 1                     Article 1
Article 2                     Article 2
Article 3                     Article 3
Article 4                     Article 4
Article 5                     Article 5
Article 5a                    Article 6
Article 6 (1)
Article 6 (2)                 Article 7
Article 7                     Article 8
                              Article 9
                              Article 10
                              Article 11
                              Annex I
                              Annex II
                            12
 ---pagebreak---  ---pagebreak---  ---pagebreak---                                                                   ISSN 0254-1475
                                                            COM(96) 620 final
                                              DOCUMENTS
EN                                                                  06 04 05
                                    Catalogue number : CB-CO-96-616-EN-C
                                                             ISBN 92-78-11925-3
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