CELEX: 51991PC0294
Language: en
Date: 1991-07-24
Title: AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE ON A FORM OF PROOF OF AN EMPLOYMENT RELATIONSHIP

COMMISSION OF THE EUROPEAN COMMUNITIES
                                               COM(91) 294 final
                                               Brussels, 24  July 1991
                                  Amended proposal for a
                                     COUNCIL DIRECTIVE
                    on a form of proof of an employment relationship
                 (submitted by the Commission pursuant to Article 149(3)
                                    of the EEC Treaty)
   $ffif
 SSK-ff 4 •
tlik p
 ---pagebreak---                                  - 2 -
                            EXPLANATORY MEMORANDUM
 Following the adoption by the European Parliament of certain amendments to
 the proposal for a Directive, ,the Commission      is presenting an amended
 proposal for a Directive.
 In this new proposal the Commission has taken account of the Parliament's
 amendments In as far as they aim to consolidate the means of achieving its
objective, namely to Inform the worker about his or her main terms of
employment.
The Commission has thus adopted various amendments concerning the method of
drawing up the written declaration. Whatever the form of the document which
may replace the written declaration, referring to the collective or statutory
provisions applicable, such a document must be drawn up in accordance with
 the conditions provided for in the declaration. The parallelism between the
 information content of this document (e.g. contract of employment, letter of
appointment) and the content of the written declaration renders the proposal
for a Directive more effective and efficient.
Article 3 is revised      in accordance with an amendment     adopted by the
Parliament to cover all changes to the elements of information contained in
the written declaration rather than the original "any substantive change".
The fifth indent of Article 2(2) is revised to cater for the amendment to the
effect that workers must be informed of overtime arrangements.
Finally, regarding the possibility of implementation of the proposal for a
Directive by the Member States on the basis of an agreement, the revised
proposal complies with the Parliament's wish for the principle of respecting
the autonomy of the social partners to be incorporated into the eleventh
reel ta I.
 ---pagebreak---                                          mUmmàtm*m*m                                         «4Mn«HMMMMMMM»*
                                                         - 3 -
                                           Amended p r o p o s a l f o r a
                                                 COUNCIL DIRECTIVE
                         on a form of proof of an employment               relationship
                  Commission propose I                                        Modified Proposal
Having regard to the Treaty establishing                the   Unchanged
European Economic Community, and In            particular
Article 100 thereof.
Having regard to the proposal from the Commission. Unchanged
Having regard to     the Opinion of     the European Unchanged
Parliament,
Having regard to the Opinion of the Economic and Unchanged
Social Committee.
tthereas the development In the Member States of             Unchanged
new forms of work has led to an Increase In the
number of types of employment relationship;
tthereas, faced with this development, certain                Unchanged
Member States have considered it necessary to
subject      employment relationships      to formal
 requirements;    whereas these provisions              are
 designed to provide employees with improved
 protection against infringements of their           rights
 and to create greater transparency in the labour
 market;
 Whereas the relevant legislation      of the Member           Unchanged
  States differs considerably in such fundamental
  areas as the requirement to put the conclusion of
  an employment contract      into writing         or the
  obligation    to provide written     proof of an
  employment relationship;
 ---pagebreak---                                                                - 4-
                   Commission Proposal                                              Modified Proposal
Whereas it is necessary to establish at Community                  Unchanged
level    the general requirement          to that       provide
every employee must be provided with a document
constituting    a form of proof of the main terms of
his employment relationship         with his employer;
whereas it is nonetheless necessary to maintain a                  Unchanged
certain     degree of      flexibiIity       in employment
relationships     and the aforementioned obligation           to
provide a written declaration should not therefore
apply to employment relationships              involving      no
more than eight hours' work on average per week;
Whereas the provision of a written declaration                 is  Whereas the provision     of a written        declaration      is
superfluous     in cases where there is a                written   superfluous    in cases where there           is a       written
contract of employment , a letter of appointment or                contract of employment , a letter         of appointment cr
any other document making reference               to current       any other document -_ drawn up in accordance with the
provisions or collective        agreements:                        coiidijions Iàu1_ dowj) fc/j^the    circiaration     - making
                                                                   reference   to    current    provisions       or      collective
                                                                   agreements;
Whereas, in order to protect             the interests        of   Unchanged
employees with regard to obtaining                 a     written
déclarât ion,      any substantive         change in         the
contents of the declaration must be brought to the
employee's attention       in writing,      particularly        if
he is sent to work abroad;
Whereas these differences           in the legislation        of   Unchanged
 the Member States may have a direct effect on the
operation of the Common Market;
Whereas point 9 of Title               I of the Community          Unchanged
Charter of Fundamental Social Rights of Workers
states that the conditions of employment of every
worker     of    the European Community shall                 be
stipulated    in laws, a collective          agreement or a
contract of employment , according to arrangements
applying in each country;
Whereas Article 117 of the EEC Treaty provides for                 Unchanged
the Member States to agree upon the need to
promote improved working conditions                   and an
improved standard of living for workers, so as to
make possible        their    harmonization while the
improvement is being maintained;
 ---pagebreak---                                                                         - 5-
                       Commission Proposal                                                       Modified   Proposal
   Whereas the Member States may, in the                             first Whereas the Member States may, out of respect for the
   instance,      leave it up to the social partners to                     indépendance of the social partners,             leave it up to
   attain      the aims of this Directive,               and in such        them to attain       the aims of this Directive,           and in
   cases it is up for them to implement whatever                           such cases it is up for the® to implement whatever
   provisions        are     necessary         for     its       general   provisions are necessary for its general               application;
   applicat ion;
   Whereas ft        is appropriate          to ensure fhat           the  Whereas it         is    necessary     to ensure        that     the
   obiigat ions arising           from this          Directive        are  obi igations       artsmg      from     this     Directive      are
   effectively      implemented by the Member States;                      effectively      implemented by the Member States;
   HAS ADOPTED THIS DIRECTIVE:
                               Article     1                                                            Article  1
   1. This Directive           applies        to any employment            Unchanged
       relationship        which        is      subject        to     the
       legislation      in force in a Member State.
   2. The provisions          of this Directive             shall     not
       apply to employment relationships                 involving no
       more than eight hours' work on average a week.
                               Article     2                                                            Article  2
       The employer shall provide the worker with a                         1. Unchanged
       written      declaration       in accordance with              the
       provisions of this Directive              no later than one
       month after he has been              recruited.
       The employer shall           sign the declaration             and
       keep a copy.
   2. The declaration           referred       to in paragraph 1            2. Unchanged
       shall contain the following                main elements of
        information:
        - the identity      of the parties-,                                    - the identity     of the parties;
        - place of work;                                                        - place of work;
        - a description        of the job and category of                       - a description         of the job and category of
           employment;                                                             employment;
        - the duration of the employment                     relationship       - the duration of the employment relationship             and,
           and, if appropriate,             the duration          of the            if   appropriate,     the duration        of the       triai
           trial   period, and the period of notice;                               period, and the period of notice:
         - working time and paid leave;                                         - working time, overtime rules and paid leave;
         - remuneration and method of payment;                                   -remuneration      and method of payment;
         - the social security system applicable and, if                         - a reference         to    the   collective      agreements
           appropriate,     any supplementary scheme,                               applicable.
         - a reference        to the collective              agreements
           applicable.
>i
A
 ---pagebreak---                     Commission Proposal                                                   Modified    Proposal
     Employees shall receive written not ification                of      Employees shall receive written            not if ication of
     any substantive         change to the elements of                    any change to the elements of information                listed
     information     listed     in paragraph 2,          especially       in    paragraph     2,   especially      in cases where
     in cases where employees are required to work                        employees are required to work in another country;
     in another country;           in such cases employees                in such cases employees must be assured, before
     must be assured, before their                 departure,     of      their     departure,     of    receiving       the      written
     receiving the written declaration              provided for          déclarât ion provided for in paragraph 2, which in
     in paragraph 2, which in this case must contain                      this case must contain the following           supplementary
     the following supplementary             information:                 informat ion:
     - the duration of employment abroad;                                 Unchanged
     - the foreign currencies used for the payment
       of wages or        salaries;
     - any benefits attendant on employment abroad;
     - if appropriate,         the circumstances of           return
        to the employee's home country.
                             Article   3                                                         Article   3
The written declaration           in accordance with         Article  The written declaration        in accordance with Article 2
2 shall not be compulsory if there is:                                shall not be compulsory if there ;s.- a contract of
                                                                      employment in writing,       or a letter of appointment or
-    a contract   of employment in writing,            or             other document referring        to a collective     agreement or
-    a letter     of appointment or other document                    other regulations      governing employment          relationships,
     referring   to a collective          agreement or other          containing     at least      the elements laid           down in
     regulations    governing employment relationships ,              Article   2(2).
     copies of   which are easily          accessible.
                             Article   4                                                         Article   4
This Directive         shall    not affect        Member States'      Unchanged
prerogative        to      apply      or      introduce        laws,
regulations or administrative            provisions which are
more favourable to employees.
                             Article   5                                                         Article   5
Member States shall            take such measures as are              Unchanged
necessary to ensure the application               by all    natural
and legal persons of the obligations                 which derive
from      this   directive          and    to     penalize       any
infringement      of provisions          made to apply           this
directive.
 ---pagebreak---                                                                     - 7-
                      Commission Proposai                                                     Modified   Proposal
                              Article     6                                                          Article  6
   1. Member States           shall      implement      the      laws,   Unchanged
      regulations        and      administrative           provisions
      necessary to comply with this Directive                   by 31
      December 1992. or shall ensure that the social
      partners      establish       the necessary          provisions
       through agreement, without             prejudice       to the
      obligation     on the Member States to achieve th&
      results sought by this             Directive.
   2. Member States shall take the necessary measures
       to ensure that,         for employment           relationships
      which already exist when these provisions                   enter
        into force, the declaration           for the employees
       referred to by this Directive            is issued to them
       within    six months of the date indicated                     in
       paragraph 1.
   3. When Member Stetes adopt these                      provisions,
        these shall       contain       a reference         to      this
       Directive,     or shall        be accompanied by such
       reference      at    the time of           their         official
       publication.      The procedure for such reference
       shall be adopted by the Member States.
   4. Member States shall              immediately      inform       the
        Commission of the measures adopted to comply
        with this      Directive.
                               Article     7                                                          Article  7
    This Directive     is addressed to the Member States.                 Unchanged
    Done a t     Brussels,                                                 For t h e C o u n c i l
                                                                           The P r e s i d e n t
i
ft
•r
 ---pagebreak---  ---pagebreak---                                                                      ISSN 0254-1475
                                                              COM(91) 294 final
                                                      DOCUMENTS
EN                                                                              04
                                 Catalogue number : CB-CO-91-345-EN-C
                                                             ISBN 92-77-74826-5
Office for Official Publications of the European Communities
L-2985 Luxembourg