CELEX: 51991PC0345
Language: en
Date: 1991-09-16
Title: Amended proposal for a COUNCIL DIRECTIVE on the establishment of a European Works Council in Community­scale undertakings or groups of undertakings for the purposes of informing and consulting employees

COMMISSION OF THE EUROPEAN COMMUNITIES
                                       COM(91) 3 4 5 final
                                       Brussels, 16   September 1991
                        Amended proposal for a
                           COUNCIL DIRECTIVE
     on the establishment of a European Works Council
              in Community-soale undertakings or
                     groups of undertakings
                       for the purposes of
           informing and consulting employees
       (presented by the Commission pursuant to Article 149(3)
                          of the EEC-Treaty)
 ---pagebreak---                             EXPLANATORY MEMORANDUM
Parliament   and   the   Economic   and   Social   Committee   have   delivered
opinions on the proposal for a Council Directive on the establishment
of a European Works Council In Community-scale undertakings and groups
of undertakings for the purposes of informing and consulting employees.
The amended proposal which the Commission          is submitting pursuant to
Article   149   of   the   EEC   Treaty,    takes   account  of   Parliament's
amendments   approved   on   10 July    1991   and  the  Economic   and   Social
Committee's opinion adopted on 21 March 1991. A number of technical
 improvements have been incorporated for the sake of legal certainty and
consistency.
                                   Article 2
Point (a) has been amended      in order to link the secondary workforce
threshold (100 employees) with the Member State rather than with the
establishment. This amendment      is In line with the wishes expressed by
Parliament   and   the   Economic    and   Social   Committee.   It   was   also
recommended   in a report on company size and structure carried out at
the Commission's request, on the ground that a number of undertakings
in the service sector would have otherwise been excluded. A bank, for
Instance, or a retail "chain" store or a distribution "company" might
employ thousands of people in each of a number of Member States without
any of its workplaces reaching      the threshold of 100 employees.
 ---pagebreak---                                           - 2 -
Point   (d) has     been    amended    at   the   request    of   Parliament    and   the
Economic   and    Social     Committee.     In order     to    make   it  possible    for
employees' representatives          In companies' administrative, managing or
supervisory     bodies     to   be  members     of   the    EWC   where   the   relevant
 legislation of a Member State so allows, the phrase "with the exception
of   members    of    administrative,      managing     or    supervisory    bodies    of
companies who sit        in such bodies as employees' representatives" has
been   deleted.     The    new   text   mirrors     the    definition     of  "workers'
representatives" in Article 1(1)(b) of Council Directive 75/129/EEC on
collective dismissals^1).
Point (e), inserted to reflect the opinions of the Parliament and the
Economic and Social Committee, is designed to overcome the                   problem of
short-term fluctuations In the number of employees by specifying that
the workforce size        thresholds     laid down by       the Directive should be
based on the      number of persons normally employed during a period of
two years prior       to the relevant moment.         It goes without saying that
where an undertaking         has been     In operation or under          control   for a
period shorter than two years, the relevant period shall extend to the
date on which the operations, or, as the case may be, the control,
began.
                                       Article 3
Paragraph    3.    It   would    be   contrary     to   the    Directive's    aims    and
objectives to      Impose the setting up of European Works Councils upon
investment    companies      or   financial     holding    companies     which   do   not
involve themselves, directly or            indirectly,     in the management of the
undertaking in which they have holdings. Within the meaning of Article
3   (5) (a) of Council         Regulation    (EEC) of     21 December      1989 on    the
concentrations between undertakings,<2), an Investment company carries
out transactions and dealings In securities for its own account or for
the account of others, holds on a temporary basis securities which it
has acquired in an undertaking with a view to re-selling them and does
not exercise voting rights with a view to determining the behaviour of
the undertaking concerned. Provided that this Is the case, it should
(1) 0J No L 48/29 of 22.02.1975
(2) 0.J n* L 395/1 of 30.12.1989
 ---pagebreak---                                          - 3 -
 not be considered tb be a controlling undertaking with respect to the
 company   in which It has holdings. The same holds true with respect to
 financial holding companies         within the meaning of Article 3(5)(c) of
 the aforementioned Regulation which requires that the voting rights In
 respect of the holdings are exercised only to maintain the full value
of Investments and not to determine directly or Indirectly the conduct
of those undertaking. The new paragraph inserted into Article 3                 takes
account of this particular situation.
                                      Article 4
The amendment to paragraph 1 follows that made to Article 2(a) and ties
 in with paragraph 1, point(a) of the Annex and by ninth recital of the
proposal. It has been        Introduced    in response to Parliament's wishes.
The new text lays down that the powers and competence of the EWC shall
cover    all    establishments     and   group   undertakings      located   In   the
Community,     irrespective of their workforce,         provided that they belong
to a Community-scale undertaking or group of undertakings.
Paragraph     2   clarifies   the   original    text.    In  accordance    with   the
proposed    amendments,     the   central   management    of   the   undertaking   or
controlling      undertaking    is   responsible    for   the   fulfilling   of   any
obligation     concerning    the   setting   up  of   the   EWC   Imposed  upon   the
Community-scale undertaking or group of undertakings in accordance with
the DirectIve.
                                      Article 5
 In paragraph 1 the words "elected by" have been introduced in response
to Parliament's amendment        to paragraph 5.      The term "nature" has been
replaced    by    "scope"   which    reflects   more    accurately     the  intended
meaning.     In effect, the      EWC agreement may empower        the EWC set up a
numbe*- of EWCs In response to the complexity of the group structure or
the   diversity     of  sectors    and   activities    concerned.     The  amendment
proposed attempts to overcome the ambiguity of the term "nature".                 For
consistency,        identical     amendments      have     been     introduced     in
Article 6(1)(a).
 ---pagebreak---                                      - 4 -
 In  paragraph   2   the  terms  "or   group  of  undertakings"   have   been
 incorporated at Parliament's request.
The maximum membership of the special negotiating body is in line with
the limitation to membership of the EWC prescribed by paragraph K b ) of
Annex. The composition of the special negotiating body will take into
account, as far as possible, the different categories of the employees
concerned   in  line with    the wishes expressed   by  Parliament   and  the
Economic and Social Committee with respect to the composition of the
EWC.
Paragraph 3. As requested by Parliament priority has been given to the
employees' representatives over employees as regards requests from the
central management     to convene the special negotiating body.
In paragraph 5 the words "appointed or" have been deleted to take into
account Parliament's wishes.
                                  Article 6
The amendment to paragraph 1 point(a) was determined by that to Article
5(1) and 5(5), the latter at Parliament's request.
                                  Article 7
The new phrase     "must negotiate in good faith to reach the agreement
mentioned in Article 6" was Included in respond to an amendment made by
Parliament   and   reinforces   the   aspects  of  the  proposal   based   on
agreement.
 ---pagebreak---                                    - 5 -
                                 Article 8
Paragraph   1  incorporates an amendment adopted by Parliament with a
view to discouraging any management abuse of the directive's secrecy
clause. Accordingly, the new text expressly requires any withholding of
Information to be on the basis of objective criteria.
Paragraph   2 clarifies, for   the purpose of consistency   the original
wording   making  an  explicit   reference  to  members of   the special
negotiating body   and experts.
                                Article 11
The wording of paragraph 2 has been amended slightly for reasons of
accuracy and clarity.
                                Article 13
This Article was added to take      into account Parliaments wishes. It
provides for a review of the operation of the Directive, notably of the
workforce thresholds applicable five years after the date referred to
in Article 12(1).
 ---pagebreak---                                         - 6 -
                                       ANNEX
                                    paragraph 1
Point (b) has been amended In the light of the views of the Parliament
and   Economic     and   Social    Committee   and    in   accordance   with    the
abovementloned amendments to Article 5(4) and 6 1(a). The reference to
"appointment" has been deleted at Parliament's request. As regards the
composition of EWC, the Introduction of an upper             limit of 30 members
was recommended      by the Economic and Social        Committee. The provision
stating   that   In the overall     composition ofthe EWC account should be
taken of the various employment categories with the opinion of both the
Parliament and the Economic and Social Committee.
Point  (d). Pursuant      to the opinions of      Parliament and the Economic
and Social    Committee, a non-exhaustive        list of management      proposals
likely to have major consequences for the Interests of employees has
been    incorporated.     Express    reference    Is    made,   inter   alia,    to
relocation, mergers, reduction        In size or closure of undertakings and
Introduction of new technologies.
In accordance with the opinion of the Economic and Social Committee ,
account   has been     taken of    the diversity    and   complexity   of groups'
structures    by   involving    In  the   consultation    process   any   level  of
management   within    the group which      contemplates    a decision   having a
transnational dimension and liable to have major consequences for the
employees.
Point  (e) reflects      the opinions of Parliament        and  the Economic and
Social Committee.      It expressly provides that        the EWC   is entitled to
meet alone, prior to meetings with the relevant management.
 ---pagebreak---                       Amended proposal for a Council Directive
                on the establishment of a European Works Council
                           in Community-scale undertakings or
                                    groups of undertakings
                                      for the purposes of
                        informing and consulting employees C D
                  ORIGINAL PROPOSAL                                   AMENDED PROPOSAL
Proposal     for a Council Directive on the         Amended proposal for a Council Directive on the
establishment of a European Works Council in        establishment of a European Works Council In
Community-scalele undertakings      or groups of of Community-scale     undertakings   or groups of
undertakings for the purposes of Informing and      undertakings for the purposes of Informing and
consulting employees.
               iloyees.                             consulting employees.
The Council of the European Communities,            The Council of the European Communities,
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
Pari lament,
Having regard to the Opinion of the Economic and    Unchanged
Social Committee,
Whereas point 17 of the Community Charter of        Whereas point 17 of the Community Charter of
Fundamental Social Rights of Workers provides,      Fundamental Social Rights of Workers provides,
inter alia, that Information and consultation for   inter alia, that information, consultation and
workers, roust be developed along appropriate       participation for workers, must be developed along
lines, taking account of the practices In force In  appropriate lines, taking account of the practices
the various Member States-, whereas the Charter     In force In the various Member States; whereas the
states that "this shall apply especially In         Charter states that "this shall apply especially
companies     or groups     of companies    having  in companies or groups of companies having
establishments or companies In two or more Member   establishments or companies in two or more Member
States";                                            States";
                                                    Whereas It Is Important to develop diaioguo
                                                    between management and employee representation at
                                                    Community-1 eve I;
(1)   O.J. C-39/91 pg 90 of 15.02.1991
                                                                                                      ?
 ---pagebreak---                   ORIGINAL PROPOSAL                           AMENDED PROPOSAL
Whereas the completion of the Internal market is    Unchanged
bound to generate a process of concentrations of
undertakings, cross-border mergers, take overs,
joint      ventures      and     consequently,    a
transnatlonaiization of undertakings and groups of
undertakings; whereas, If economic activities are
to develop In a harmonious fashion, this situation
requires    that    undertakings and groups of
undertakings operating In more than one Member
State must Inform and consult the representatives
of their employees affected by their decisions;
Whereas procedures for informing and consulting     Unchanged
employees as embodied in legislation or practice
in Member States are often inconsistent with the
transnational structure of the entity which takes
the decision affecting those employees; whereas
this may lead to unequal treatment of employees
affected by the decisions of one and the same
undertaking, or group of undertakings;
Whereas Council Directive 75/129/EEC of 17          Unchanged
February 1975 on the approximation of the laws of
the Member       States   relating    to collective
redundancies*2) and Council Directive 77/187/EEC
of 14 February 1977 on the safeguarding of
employees' rights In the event of transfers of
undertakings, businesses or part of businesses
incorporate compulsory procedures for Informing
and consulting the representatives of the
employees affected by the operations In question;
Whereas   these     information    and consultation Unchanged
requirements do not aim to cover all situations
likely to affect the employees' Interests and, in
particular, do not extend specifically to
situations in which the decision-making centre Is
not situated in the Member State in which the
employees affected by Its decisions are employed;
Whereas this situation has a direct effect on the   Unchanged
operation of the Internal market and consequently
needs to be remedied;
Whereas appropriate provisions must be adopted to   Unchanged
ensure that the employees of Community-scale
undertakings or groups of undertakings are
properly Informed and consulted in cases where
decisions likely to affect them are taken outside
the Member State in which they are employed;
(2)   OJ L 48, 22.2.1975.
 ---pagebreak---                   ORIGINAL PROPOSAL                                       AMENDED PROPOSAL
Whereas, in order to guarantee that the employees      Unchanged
of undertakings or groups of undertakings
operating in two or more Member States are
properly informed and consulted, a European Works
Council must, In principle, be set up;
Whereas    European     Works    Councils    in such   Unchanged
undertakings or groups must encompass all
establishments or, as the case may be, group
undertakings      located     in    the     Community,
irrespective of whether the undertaking or, In the
case of a group, the controlling undertaking, has
Its central management outside the Community;
Whereas, in accordance with the principle of           Unchanged
autonomy of the parties,            It is for the
representatives of employees and the management of
the undertaking or the controlling undertaking in
a group to determine by agreement the nature,
composition, competence, mode of operation,
procedures and financial resources of the European
Works Council so as to suit their own particular
circumstances;
Whereas, however, in the absence of such an            Unchanged
agreement, certain minimum requirements in respect
of the composition, functions and powers,
procedures and financial resources of the European
Works Council should apply-,
Whereas, moreover, the employees' representatives      Whereas, moreover, the employees' representatives
may unanimously agree not to seek the setting up       may unanimously agree not to seek the setting up
of a European Works Council and, In these              of a European Works Council; whereas the parties
circumstances, the parties may decide upon an          may decide upon an alternative procedure for the
alternative procedure for Informing and consulting     Information and consultation of employees on
employees on condition that such an alternative        condition that such an alternative procedure meets
procedure meets certain basic conditions;              certain basic conditions-,
Whereas the European Works Council must be kept        Unchanged
informed as to the activities and prospects of
the undertaking or group of undertakings so that
it may assess the possible Impact on the workers'
interests-, whereas, to this end, the undertaking
or the controlling undertaking should be required
to communicate to the European Works Council, on
the occasion of an annual meeting, general
information directed towards the interests of the
employees     and     information     relating    more
specifically to those aspects of the undertaking's
or group of undertakings' activities and prospects
which are liable to affect the employees'
interests;
                                                                                                          4
 ---pagebreak---                   ORIGINAL PROPOSAL                              AMENDED PROPOSAL
Whereas, before the implementation of any decision  Unchanged
significantly affecting the employees' Interests,
the European Works Council should also be informed
 In good time and invited to give its opinion;
Whereas     the    Information   and   consultation Unchanged
requirements laid down by this Directive should be
 Implemented In the case of an undertaking or, in a
group, a controlling undertaking, having its
central management In a non-member country, by its
representative agent In the Community or, in the
absence of such an agent, by the establishment or
controlled undertaking employing the highest
number of employees In the Community-,
Whereas appropriate remedies must be provided by    Unchanged
Member States In the event of failure to comply
with this Directive;
HAS ADOPTED THIS DIRECTIVE :                        Unchanged
                      Section I                                   Section I
                       General                                     Genera I
                      Article 1                                   Article 1
1. The object of this Directive is to Improve the   1. Unchanged
    Information to and consultation of employees In
    Community-scale undertakings and groups of
    undertakings.
2. To this end, a European Works Council            2. Unchanged
    (hereinafter "EWC") shall be established In
    every Community-scale undertaking and group of
    undertakings, where this is requested In the
   manner provided for by Article 5.3, with the
   purpose of Informing and consulting their
   employees upon the terms, in the manner and
   with the effects laid down by this Directive.
                                                                                  /7*
 ---pagebreak---                    ORIGINAL PROPOSAL                                          AMENDED PROPOSAL
                        Article 2                                               Article 2
For the purposes of this Directive :                     For the purposes of this Directive
(a)    A "Community-scale undertaking" means an
       undertaking with at least 1,000 employees         (a)    A "Community-scale undertaking" means an
       within the Community and with at least two               undertaking with at least 1,000 employees
       establishments in different Member States                within    the     Community    including 100
       each employing at least 100 employees;                   employees In at least each of two Member
                                                                States;
(b)    A "Community-scale group of undertakings"         (b)    Unchanged
       means a group of undertakings with at least
       1,000 employees within the Community and
       with at least two group undertakings In
       different Member States each of which
       employs at least 100 employees within the
       Community;
(c)    A "group of undertakings" comprises a             (c)    Unchanged
       controlling undertaking and its controlled
       undertakings.
(d)    "Representatives of the employees" means the      (d)    "Representatives of the employees" means
       employees' representatives provided for by               the employees' representatives provided for
       the laws or practice of the Member States,               by the laws or practice of the Member
       with    the     exception    of     members    of        States.
       administrative, managing of supervisory
       bodies of companies who sit on such bodies
       as employees' representatives.
                                                         (e)    The prescribed workforce size thresholds
                                                                shall be based on the number of employees
                                                                normally employed during the previous two
                                                                years.
                        Article 3                                              Article 3
   For the purpose of this Directive, a                  1. Unchanged
    "controlling undertaking" Is an undertaking
   which :
    (a) has a majority of the shareholders' or
        members'     voting     rights    of     another
        undertaking (control led undertaking);
   or
    (b) has the right to appoint or remove a
        majority     of     the    members     of    the
        administrative, management or supervisory
        board of another undertaking, and Is at the
        same time a shareholder in, or member of,
        that undertaking (controlled undertaking);
   or
                                                                                                             4*
 ---pagebreak---                 ORIGINAL PROPOSAL                                      AMENDED PROPOSAL
 (c) has the right to exercise a dominant                    (Unchanged)
      influence over an undertaking of which it
     is a shareholder or member, pursuant to a
     contract entered Into with that undertaking
     or to a provision In its memorandum and
     articles of association, where the law
     governing that undertaking (controlled
     undertaking) permits Its being subject to
     such contracts or provisions;
or
(d) is a shareholder        In or   member  of an
     undertaking, and :
    (I) has had the power to appoint, solely as
         a result of the exercise of its voting
         rights, a majority of the members of the
         administrative,       management      or
         supervisory bodies of that undertaking
         (controlled undertaking) who have held
         office during the financial year and
        during the preceding financial year; or
    (II) alone     controls,   pursuant    to  an
          agreement with other shareholders In or
          members of that undertaking (controlled
          undertaking),      a     majority    of
          shareholders' or members' voting rights
          In that undertaking.
                                                                                                         41
For the purposes of paragraph 1(a). (b) and       2. Unchanged
(d), the controlling undertaking's rights as
regards voting, appointment and removal shall
Include the rights of any other controlled
undertaking and those of any person or body
acting in his or its own name but on behalf of
the controlling undertaking or of any other
controlled undertaking.
                                                  3. Notwithstanding     paragraph    1  above.    an
                                                      undertaking shall not be deemed to be a
                                                      "controlling undertaking" with respect to
                                                      another undertaking In which It has holdings
                                                      where the former undertaking Is a company
                                                      within the scope of Article 3(5)(b) or
                                                      Article 3(5)(c
                                                      (EEC) 4064/891 k    of    CouncI     Regulation
                                                  <3)     O.J. No. L 395/4 of 30.12.1989
                                                                                                      1Ï
 ---pagebreak---                     ORIGINAL PROPOSAL                                      AMENDED PROPOSAL
                         Article 4                                          Article 4
 1. EWCs sha11 encompass :                                The powers and competence of the EWCs resulting
                                                          from the EWC agreement referred to In Article 6
     (a) in     the     case     of    Community-scale    or In the absence thereof, from the minimum
         undertakings,      all    the  establishments    requirements laid down in accordance with the
         located within the Community each of which       Annex, shall cover. In the case of a Community-
         employs at least 100 employees;                  scale undertaking, all the establishments
                                                          located within the Community and, in the case
    (b) in the case of the Community-scale group of       of a Community-scale group of undertakings, all
         undertakings, all the group undertakings         group    undertakings    located     within   the
         located within the Community each of which       Community.
         employs at least 100 employees.
2. The setting up of the EWC shall be the              2. Any obligation concerning the setting up of the
    responsibility of the central management of the       EWC    Imposed    upon    the     Community-scale
    Community-scale undertaking or, in the case of        undertaking or group of undertakings In
    a Community-scale group of undertakings, of           accordance with this Directive sha11 be the
    the central management of the controlling             responsibility of the central management of the
    undertaking.                                          Community-scale undertaking or, in the case of
                                                          a Community-scale group of undertakings, of
                                                          the central management of the controlling
                                                          undertaking.
3. Where a Community-scale undertaking or, In the      3. Unchanged
    case     of    a    Community-scale    group    of
    undertakings, the controlling undertaking, has
    Its central management outside the Community,
    the responsibility referred to In paragraph 2
    shall lie with its representative agent In the
    Community to be designated, if necessary, or,
    in the absence of such an agent, by the
    management of the establishment, or the central
    management of the group undertaking employing
    the highest number of employees in a Member
    State.
4. The law applicable in order to determine            4. Unchanged
    whether an undertaking is a "controlling
    undertaking" shall be the law of the Member
    State which governs that undertaking. Where the
    law governing the undertaking is not that of a
    Member State, the applicable law shall be the
    law of the Member State in which the
    representative agent of the undertaking or, in
    the absence of such an agent, the central
   management of the group undertaking which
    employs the highest number of employees in the
   Community Is situated.
                                                                                                          /)%
 ---pagebreak---                  ORIGINAL PROPOSAL                                     AMENDED PROPOSAL
                     Section II                                         Section II
                 The EWC Agreement                                  The EWC Agreement
                     Article 5                                           Article 5
1. The nature, composition, competence and mode of 1. The scope, composition, competence and mode of
   operation of the EWC shall be determined by        operation of the EWC shall be determined by
   means of a written agreement concluded between     means of a written agreement concluded between
   the central management of the Community-scale      the central management of the Community-scale
   undertaking, or, In the case of a Community-       undertaking, or, In the case of a Community-
   scale group, the controlling undertaking, and a    scale group, the controlling undertaking, and a
   special negotiating body drawn from the            special negotiating body drawn from and elected
   representatives of the employees of the            by_ representatives of employees of the
   undertaking or group. Where there are no           undertaking or group. Where there are no
   employee representatives within the meaning of     employee representatives within the meaning of
   Article 2(d), the employees concerned shall be     Article 2(d), the employees concerned shall be
   entitled to elect from among their number          entitled to elect from among their number
   representatives for the purpose of this            representatives for the purposes of this
   Article.                                           Article.
2. The special negotiating body shall include at   2. The special negotiating body shall in any case
    least one employee representative from each        include one employee representative from each
   Member State in which the Community-scale          Member State in which the Community-scale
   undertaking employs at least 100 employees or,     undertaking or group of undertakings has at
    In the case of a Community-scale group of          least 100 employees and, in the case of a
   undertakings, from each group undertaking          Community-scale group of undertakings, from
   employing at least 100 employees within the        each group undertaking employing 100 employees
   Community. Member States shall make provision      within the Community, up to a maximum equal to
   for the special negotiating body to Include        the number of Member States of the European
   additional representatives, up to a maximum of     Community. Member States shallmake provision
   five, to be drawn from Member States or, as the    for the special negotiating body to include
   case may be, group undertakings in which           additional representatives, up to a maximum of
   significantly more than 100 employees are          five, to be drawn from the Member States or, as
   employed. The additional representatives shall     the case may be, groups undertakings in which
   be allocated In accordance with systems which      significantly more than 100 employees are
   take into account the number of staff they         employed. The additional representatives shall
   represent.                                         be allocated in accordance with systems which
                                                      take into account the number of staff they
                                                      represent and the categories to which they
                                                      belong.
                                                                                                     /It?
 ---pagebreak---                 ORIGINAL PROPOSAL                                     AMENDED PROPOSAL
3. At the written request of any employees or of   3. At the written request of any employees where
   their representatives, or on the initiative of     there are no employees' representatives within
   the central management of a Community-scale        the meaning of Article 2(d). or of their
   undertaking or, In the case of a Community-        representatives, where these exist within the
   scale group, of a controlling undertaking, a       meaning of Article 2(d). or on the Initiative
   meeting of the special negotiating body shall      of the central management of a Community-scale
   be convened by the said central management. The    undertaking or, In the case of a group, of a
   composition of this body shall be determined In    controlling undertaking, a meeting of the
   accordance with paragraph 2. At the end of the     special negotiating body shall be convened by
   aforesaid meeting, the special negotiating body    the said central management. At the end of the
   shall inform the central management In writing     aforesaid meeting, the special negotiating body
   of its request for the opening of negotiations     shall inform the central management in writing
   with a view to concluding the agreement            of Its request for the opening of negotiations
   referred to In Article 6(1). For the purpose of    with a view to concluding the agreement
   such negotiations, it may be assisted by           referred to in Article 6. For the purpose of
   experts of Its choice. However, the special        such negotiations, it may be assisted by
   negotiating body may decide unanimously not to     experts of its choice. However, the special
   request the setting up of a EWC.                   negotiating body may decide unanimously not to
                                                      request the setting up of a EWC.
                                                                                                      /lb
 ---pagebreak---                   ORIGINAL PROPOSAL                                      AMENDED PROPOSAL            10
    Member States shall also make provision for the   4. Unchanged
    costs of the discussions held under paragraph 1
    and 3 to be met by the undertaking or, In the
    case of a group, by the controlling
    undertaking.
5. Each Member State shall determine the manner in   5. Each Member State shall determine the manner in
   which representatives of employees or, in the         which representatives of employees or, in the
    absence thereof, the body of employees,              absence thereof, the body of employees,
   employed in its territory by Community-scale          employed In its territory by Community-scale
   undertakings or groups of undertakings shall          undertakings or groups of undertakings shall
   appoint or elect members of the special               elect members of the special negotiating body.
   negotiating body.
   For     the    purpose    of    identifying   the 6. Unchanged
   representatives of employees employed In other
   Member States, each Member State shall refer
   to the appropriate laws which implement
   paragraph 5 above in the other Member States .
                      Article 6                                            Article 6
   The agreement between the central management of   1. Unchanged
   the Community-scale undertaking or, In the case
   of a Community-scale group, the controlling
   undertaking and the special negotiating body
   sha11 determine :
   (a) the nature and composition of the EWC, the        (a) the scope and composition of the EWC, the
        number of members, the allocation of seats           number of members, the allocation of seats,
        and the method and duration of appointment           the election procedures and the term of
        or election of the members-,                         office;
   (b) the functions and powers of the EWC;              (b) Unchanged
   (c) the procedure for informing and consulting        (c) Unchanged
        the EWC;
   (d) the place, frequency       and   duration  of     (d) Unchanged
        meetings of the EWC;
   (e) the financial and material resources to be        (e) Unchanged
        allocated to the EWC.
  However, by written agreement between the          2. Unchanged
  central management of the Community-scale
  undertaking or, in the case of a group, the
  controlling undertaking        and the special
  negotiating body entered into at the conclusion
  of the negotiations, it may be decided not to
  set up a EWC but only on condition that the
  minimum requirements in relation to information
  and consultation set out at paragraphs (a),
  (c), (d), (f) and (g) of the Annex, as well as
   in Article 9 of this Directive are respected
  •utatis mutandis.
                                                                                                         JL
 ---pagebreak---                   ORIGINAL PROPOSAL                                     AMENDED PROPOSAL          11
                      Section III                                        Section IN
                 Absence of Agreement                              Absence of Agreement
                       Article 7                                          Article 7
1. Where the central management of the Community-      The central management of the Community-scale
   scale     undertaking,     or   the  controlling    undertaking, or the controlling undertaking in
   undertaking In a Community-scale group of           a group of undertakings, and the special
   undertakings, and the special negotiating body      negotiating body must negotiate in good faith
   so decide, or In so far as they fall to reach       to reach the agreement mentioned In Article 6.
   the agreement mentioned In Article 6 within one     Where they so decide, or in so far as they fail
   year of the initial request to convene the          to reach the agreement mentioned in Article 6
   special negotiating body referred to In Article     within one year of the Initial request to
   5.3, the minimum requirements laid down by the      convene the special negotiating body referred
    legislation of the Member State in which the       to in Article 5(3), the minimum requirements
   central management of the undertaking or, In         laid down by the legislation of the Member
   the case of a group, the controlling                State !n which the central management of the
   undertaking Is situated, shall apply.               undertaking or, in the case of a group, the
                                                       controlling undertaking is situated, shall
                                                       apply.
   The minimum requirements referred to In          2. Unchanged
   paragraph 1 shall be subject to the rules
   contained in the Annex.
                      Section IV                                         Section IV
                    Miscellaneous                                      Miscellaneous
                       Article 8                                          Article 8
1. Each Member State may provide that the central      Each Member State may provide that the central
   management of the Community-scale undertakings      management of the Community-scale undertakings
   or controlling undertakings situated in its         or controlling undertakings situated in Its
   territory have the right to whithhold               territory have the right          to whithhold
   Information     which,    if disclosed,    would    Information which, if disclosed, would, In the
   substantially damage the Interest of the            light of objective criteria, substantially
   undertakings concerned.                             damage the interest of the undertakings
                                                       concerned.
2. Member States shall provide that members of the     Member States shall provide that members of the
   EWC or the employees to whom they refer, shall      special negotiating body and of the EWC and the
   not reveal to third parties any Information         experts who assist them shall not reveal any
   which has been provided to them In confidence.      information which has expressly been provided
                                                       to them in confidence. This obligation shall
                                                       be maintained even after the end of their
                                                       mandates.
                                                                                                      11
 ---pagebreak---                    ORIGINAL PROPOSAL                                       AMENDED PROPOSAL           12
                        Article 9                                            Article 9
The members of the special negotiating body and        Unchanged
the members of the EWC shall enjoy In the exercise
of their functions the same protection and
guarantees provided for employees' representatives
by the national legislation or practice In force
In the country of employment. In any event they
must be allowed to attend meetings of the special
negotiating body or the EWC and those members who
are employees of the Community-scale undertaking
or group undertaking must be guaranteed payment of
full wages for the duration of any absence from
work in connection with their duties.
                        Section V                                            Section V
                    Final provisions                                     Final provisions
                        Article 10                                          Article 10
1. Each Member State shall ensure that the             1. Unchanged
    management of the establishments or group
    undertakings situated In Its territory and
    their employees' representatives or, as the
    case may be, employees abide by the obligations
     laid down by this Directive, Irrespective of
    whether the central           management of the
    Community-scale       undertaking    or    of the
    controlling undertaking Is situated in its
    territory.
 2. Member States shall provide for appropriate         2. Unchanged
     remedies in the event of failure to comply with
     this Directive, and, in particular, shall
     ensure that adequate procedures exist at the
     suit of the EWC for the enforcement of
     obligations under this Directive.
                         Article 11                                           Article 11
  1. This Directive shall be without prejudice to        1. Unchanged
      measures taken pursuant to Directive 75/129/EEC
      and Directive 77/187/EEC.
  2. Nothing In this Directive shall affect the          2. This Directive is without prejudice to the laws
      operation of the laws or practices of the             or practices of the Member States in respect of
      Member States In respect of the provisions of         the provisions of information and consultation
       information and consultation of employees at         of employees at group ievel, undertaking level
      group      level,     undertaking     level  and      and establishment level.
      establishment level.
  3. This Directive shall not affect the right of        3. Unchanged
      the Member States to apply or Introduce laws,
       regulations or administrative provisions more
       favourable to employees.
                                                                                                            4%
 ---pagebreak---                  ORIGINAL PROPOSAL                                     AMENDED PROPOSAL            13
                     Article 12                                          Article 12
   Member States shall implement the laws,          1. Unchanged
   regulations and      administrative   provisions
   necessary to comply with this Directive by 31
   December 1992 at the latest. They shall
    immediately Inform the Commission thereof.
2. When member States adopt these provisions,       2. Unchanged
   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.
                                                                         Article 13
                   (Non-foreseen)                   Five years after the date referred to In Article
                                                    12(1) the Commission shall review the operation of
                                                    this    Directive   and.     In  particular.    the
                                                    appropriateness of the workforce size thresholds
                                                    with a view to proposing, where necessary, the
                                                    adequate amendments.
                     Article 13                                          Article 14
This Directive is addressed to the Member States.   This Directive Is addressed to the Member States.
                                                                                                        41
 ---pagebreak---                    ORIGINAL PROPOSAL                                    AMENDED PROPOSAL           14
                       Ann**                                              Annex
                  Minimm requirements                               Minimum requirements
1. The minimum requirements referred to In Article   1. Unchanged
   7(1) shall cover the matters set out in Article
   6(1) and shall be subject to the following
   conditions :
   (a) The competence of the EWC shall be limited       (a) Unchanged
        to those matters which concern the
        Community-scale undertaking or group of
       undertakings as a whole or at least two of
        Its establishments or group undertakings
       situated in different Member States. In the
       case of Community-scale undertakings or
       groups of undertakings referred to in
       Article 4, paragraph 3 of this Directive
       the competence of the EWC shall be limited
       to those matters concerning all their
       establishments      or group     undertakings
        located inside the Community or concerning
       at least two of their establishments or
       group undertakings in different Member
       States.
   (b) The EWC shall :                                  (b) The EWC shall :
      (I) subject to paragraph b(II), have a                (I)   have a minimum of three members and a
             minimum of three members and a maximum               maximum of 30-,
             Of 30;
      (li) Include at least one member from each            (il)  Include at least one member from each
             Member State in the territory of which               Member State in the territory of
             a Community-scale undertaking has an                 which the Community-scale undertaking
             establishment employing at least 100                 or group of undertakings employs at
             employees or, In the case of a group,                least 100 employees and, in the case
             at least one member from each group                  of a group, at least one member from
             undertaking employing at least 100                   each group undertaking employing at
             employees;                                           least    100 employees    within the
                                                                  Community subject to the maximum
                                                                  referred to In subparagraph (i);
      ( H i ) be composed of representatives of the         (ill) be composed of representatives of the
              employees of the undertakings In                    employees of the establishments or
              question who are appointed, elected,                undertakings in question who are
              replaced    and removed      by the                 elected, replaced and removed by the
              representatives of employees or, in                 representatives of employees or, in
              the absence thereof, by the body of                 the absence thereof, by the body of
              employees, in accordance with systems               employees, in accordance with systems
              which take into account, in an                      which take into account, in an
              appropriate manner, the number of                   appropriate manner, the number of
              staff they represent.                               staff    they   represent    and the
                                                                  categories to which they belong.
                                                                                                        O
 ---pagebreak---               ORIGINAL PROPOSAL                                      AMENDED PROPOSAL           15
(c) The EWC shall have the right to meet with       (c) Unchanged
     the central management of the undertaking
    or controlling undertaking at least once a
    year, to be Informed of the progress of the
    undertaking's or group of undertakings'
    business and of Its prospects. This
     Information shall relate in particular to
     Its structure, economic and financial
    situation, the probable development of the
    business and of production and sales, the
    employment situation and probable trend,
    and Investment prospects.
(d) Subject to subparagraph (a) above, the EWC      (d) Subject to subparagraph (a) above, the EWC
    shall have the right to be Informed and             shall have the right to be informed and
    consulted by the central management of the          consulted by the central management of the
    undertaking or controlling undertaking              undertaking or controlling undertaking, and
    about any management proposal likely to             by any other more appropriate level of
    have serious consequences for the Interests         management within the group which Is
    of the employees of the undertaking. This           competent to take a particular decision,
    consultation shall be timely and shall be           about any management proposal likely to
    carried out on the basis of a report from           have serious consequences for the interests
    the central management of the undertaking           of the employees. Proposals likely to have
    or group of undertakings, on which the EWC          serious consequences may, in particular,
    may put forward its opinion. The final              relate to :
    decision    shall   be    exclusively   the
    responsibility of the central management of (I)     the relocation, merger, reduction in size
    the undertaking or controlling undertaking.         or closure of undertakings, establishments
                                                        or significant parts thereof,
                                                (ID     changes with regard to the organisation of
                                                        a Community-sea le undertaking or group of
                                                        undertakings; and
                                                (III) the Introduction of new working methods or
                                                        production processes.
                                                This consultation shall be timely and shall be
                                                carried out on the basis of a report from the
                                                central management of the undertaking or by the
                                                appropriate level of management of the group of
                                                undertakings on which the EWC may put forward Its
                                                opinion. The final decision shall be exclusively
                                                the responsibility of the central management of
                                                the undertaking or the appropriate level of
                                                management within the group of undertakings.
                                                                                                    7'
 ---pagebreak---                   ORIGINAL PROPOSAL                                     AMENDED PROPOSAL           16
(e)    In addition to the annual meeting provided    (e)    Unchanged
       for by paragraph (c), at least one special
      meeting between the EWC and the central
      management of the undertaking or controlling
      undertaking shall be held per year where
      necessary for the purposes of paragraph (d)
      above. This shall be convened by the central
      management of the undertaking or controlling
      undertaking at the request of the EWC.
                                                        The EWC shall be entitled to meet, prior to
                                                        meetings with the central management of the
                                                        Community-scale undertakings or with the
                                                        management of the group of undertakings,
                                                        without the management concerned being present.
   (f) The members of the EWC shall Inform the      (f)     Unchanged
        workers' representatives at establishment
        or at group undertaking level or, in the
        absence thereof, the body of employees, of
        the content and outcome of the Information
        and consultation process carried out in
        accordance with this Annex.
   (g) The operating expenses of the EWC shall be   (g)     Unchanged
        borne by the central management of the
       undertaking or controlling undertaking. The
       central management concerned shall provide
       the members of the EWC with such financial
       and material resources as enable them to
       Beet and perform their duties In an
       appropriate manner. In particular, the cost
       of      the meeting       facilities     and
        interpretation, and the accomodation and
       travel expenses of members of the EWC,
       sha 11 be met by the centra I management of
       the undertaking or controlling undertaking.
  Article 5, paragraphs 5 and 6, of            this 2. Unchanged
  Directive shall apply mutatis mutandis.
                                                                                                      11
 ---pagebreak---  ---pagebreak---                                                                      JSSN-Q254-1475
                                                               C0M(91) 345 final
                                                      DOCUMENTS
EN                                                                         0410
                                 Catalogue number : CB-CO-91-391-EN-C
                                                             ISBN 92-77-75679-9
Office for Official Publications of the European Communities
Lr2985 Luxembourg