CELEX: 51980PC0423
Language: en
Date: 1980-10-23
Title: Proposal for a Council Directive on procedures for informing and consulting the employees of undertakings with complex structures, in particular transnational undertakings

15. 11. 80                         Official Journal of the European Communities                          No C 297/3
                                                           II
                                                    (Preparatory Acts)
                                              COMMISSION
             Proposal for a Council Directive on procedures for informing and consulting the
             employees of undertakings with complex structures, in particular transnational under-
                                                         takings
                           (Submitted by the Commission to the Council on 24 October 1980)
THE COUNCIL OF THE EUROPEAN                                     same obligations in relation to Community employees
COMMUNITIES,                                                    affected by their decisions, whether they are
                                                                employed in the Member State to whose legislation
                                                               the undertaking is subject or in another Member
Having regard to the Treaty establishing the                    State;
European Economic Community, and in particular
Article 100 thereof,
                                                               Whereas the procedures for informing and consulting
Having regard to the proposal from the Commission,             employees as embodied in legislation or practiced in
                                                               the Member States are often inconsistent with the
                                                               complex structure of the entity which takes the
Having regard to the opinion of the Economic and               decisions affecting them; whereas this may lead to
Social Committee,                                              unequal treatment of employees affected by the
                                                               decisions of one and the same undertaking; whereas
                                                               this may stem from the fact that the information and
                                                               consultation procedures do not apply beyond national
Having regard to the opinion of the European Par-              boundaries;
liament,
Whereas the Council adopted on 21 January 1974 a               Whereas this situation has a direct effect on the
Resolution concerning a social action programme (');           operation of the common market and consequently
                                                               needs to be remedied by approximating the relevant
                                                               laws while maintaining progress as required under
                                                               Article 117 of the Treaty;
Whereas in a common market where national
economic are closely interlinked it is essential, if
economic activities are to develop in a harmonious
fashion, that undertakings should be subject to the
                                                               Whereas this Directive forms part of a series of
                                                               directives and proposals for directives in the field of
(') OJ No C 13, 12. 2. 1974, p. 1.                             company and labour law;
 ---pagebreak--- No C 297/4                          Official Journal of the European Communities                              15. 11. 80
HAS ADOPTED THE FOLLOWING DIRECTIVE:
                                                      SECTION I
                                              SCOPE AND DEFINITIONS
                         Article 1                           (b) Management
                                                                 The person or persons responsible for               the
This Directive relates to:
                                                                 management of an undertaking under                  the
— procedures        for   informing    and    consulting         national legislation to which it is subject.
    employees employed in a Member State of the
                                                             (c) Decision-making centre
    Community by an undertaking whose decision-
    making centre is located in another Member State             The place where the management of an under-
    or in a non-member country (Section II);                     taking actually performs its functions.
— procedures        for   informing    and    consulting
    employees where an undertaking has several
                                                                                      Article 3
    establishments, or one or more subsidiaries, in a
    single Member State and where its decision-
    making centre is located in the same Member               1.    For the pursoses of this Directive an under-
    State (Section III).                                     taking shall be regarded as dominant in relation to all
                                                             the undertakings it controls, referred to as sub-
                                                             sidiaries.
                         Article 2
                                                             2.     An undertaking shall be regarded as a subsidiary
For the purposes of this Directive the following
                                                             where the dominant undertaking, either directly or
definitions shall apply:                                     indirectly,
(a) Employees'representatives
                                                             (a) holds the majority of votes relating to the shares
    The employees' representatives refered to in                  it has issued,
    Article 2 (c) of Council Directive 77/187/EEC of
                                                                 or
     14 February 1977 on the approximation of the
     laws of the Member States relating to the safe-         (b) has the power to appoint at least half of the
    guarding of employees' rights in the event of                members of its administrative, management or
    transfers of undertakings, businesses or parts of            supervisory bodies where these members hold the
    businesses (').                                              majority of the voting rights.
                                                       SECTION II
                INFORMATION AND CONSULTATION PROCEDURES IN TRANSNATIONAL UNDER-
                                                        TAKINGS
                         Article 4                           Community giving a clear picture of the activities of
                                                             the dominant undertaking and its subsidiaries taken
The management of a dominant undertaking whose               as a whole.
decision-making centre is located in a Member State
of the Community and which has one or more sub-
sidiaries in at least one other Member State shall be
required to disclose, via the management of those            2.     This information shall relate in particular to:
subsidiaries, information to employees' representatives
in all subsidiaries employing at least 100 employees in      (a) structure and manning;
the Community in accordance with Article 5 and to
consult therti in accordance with Article 6.                 (b) the economic and financial situation;
                                                             (c) the situation and probable development of the
                         Article 5                               business and of production and sales;
1.     At least every six months, the management of a        (d) the employment situation and probable trends;
dominant undertaking shall forward relevant infor-
mation to the management of its subsidiaries in the          (e) production and investment programmes;
(') OJ No L61, 5. 3. 1977, p. 26.                            (f) rationalization plans;
 ---pagebreak--- 15. 11. 80                          Official Journal of the European Communities                              N o C 297/5
(g) manufacturing        and    working      methods,    in     4.     Where, in the opinion of the employees' rep-
     particular the     introduction of      new working        resentatives, the proposed decision is likely to have a
     methods;                                                   direct effect on the employees' terms of employment
                                                                or working conditions, the management of the sub-
(h) all procedures and plans liable to have a sub-              sidiary shall be required to hold consultations with
     stantial effect on employees' interests.                   them with a view to reaching agreement on the
                                                                measures planned in respect of them.
3.     The management of each subsidiary shall be
required to communicate such information without
delay to employees' representatives in each subsidiary.         5.     Where the management of the subsidiaries does
                                                                not communicate to the employees' representatives
                                                                the information required under paragraph (3) or does
4.     Where the management of the subsidiaries is
                                                                not arrange consultations as required under
unable to communicate the information referred to in
                                                                paragraph (4), such representatives shall be auth-
paragraphs (1) and (2) to employees' representatives,
                                                                orized to open consultations, through authorized
the management of the dominant undertaking must
                                                                delegates, with the management of the dominant
communicate such information to any employees'
                                                                undertaking with a view to obtaining such infor-
representatives who have requested it to do so.
                                                                mation and, where appropriate, to reaching
                                                                agreement on the measures planned with regard to
5.     The Member States shall provide for appropriate          the employees concerned.
penalties for failure to comply with the obligations
laid down in this Article.
                                                                6.     The Member States shall provide for appropriate
                          Article 6                             penalties in case of failure to fulfil the obligations laid
                                                                down in this Article. In particular, they shall grant to
                                                                the employees' representatives concerned by the
 1.    Where the management of a dominant under-
                                                                decision the right of appeal to tribunals or other
taking proposes to take a decision concerning the
                                                                competent national authorities for measures to be
whole or a major part of the dominant undertaking
                                                                taken to protect their interests.
or of one of its subsidiaries which is liable to have a
substantial effect on the interests of its employees, it
shall be required to forward precise information to
the management of each of its subsidiaries within the
Community not later than 40 days before adopting                                         Article 7
the decision, giving details of:
                                                                1.     Where in a Member State a body representing
— the grounds for the proposed decision;                        employees exists at a level higher than that of the
                                                                individual subsidiary, the information provided for in
— the legal, economic and social consequences of                Article 5 relating to the employees of all the sub-
     such decision for the employees concerned;                 sidiaries thus represented shall be given to that body.
— the measures         planned     in   respect  of   these
     employees.                                                 2.     The consultations provided for in Article 6 shall
                                                                take place under the same conditions with the rep-
2.     The decisions referred to in paragraph (1) shall         resentative body referred to in paragraph (1).
be those relating to:
(a) the closure or transfer of an establishment or              3.     A body representing all the employees of the
     major parts thereof;                                       dominant undertaking and its subsidiaries within the
                                                                Community may be created by means of agreements
(b) restrictions,       extensions       or     substantial     to be concluded between the management of the
      modifications to the activities of the undertaking;       dominant undertaking and the employees' represen-
                                                                 tatives. If such a body is created, paragraphs 1 and 2
 (c) major modifications with regard to organization;            shall be applicable.
(d) the introduction of long-term cooperation with
      other undertakings or the cessation of such
      cooperation.
                                                                                         Article 8
 3.    The management of each subsidiary shall be
 required to communicate this information without                Where the management of the dominant undertaking
 delay to its employees' representatives and to ask for          whose decision-making centre is located outside the
 their opinion within a period of not less than 30 days.         Community and which controls one or more sub-
 ---pagebreak--- N o C 297/6                         Official Journal of the European Communities                               15. 11. 80
sidiaries in the Community does not ensure the                shall disclose, via the management of those
presence within the Community of a least one person           establishments, information to the employees' repre-
able to fulfil the requirements as regards disclosure of      sentatives in all of its establishments in the
information and consultation laid down by this                Community employing at least 100 employees in
Directive, the management of the subsidiary that              accordance with Article 5 and consult them in
employs the largest number of employees within the            accordance with Article 6.
Community shall be responsible for fulfilling the
obligations imposed on the management of the                  2.    The management of an undertaking whose
dominant undertaking by this Directive.                       decision-making centre is located in a non-member
                                                              country and which has at least one establishment in
                         Article 9                            one Member State shall be subject to the obligations
                                                              referred to in paragraph (1).
1.     The management of an undertaking whose
decision-making centre is located in a Member State           3.     For the purposes of applying this Article, the
of the Community and which has one or more                    terms 'dominant undertaking' and 'subsidiary' in
establishments in at least one other Member State             Articles 4 to 8 shall be replaced by the terms 'under-
                                                              taking' and 'establishment' respectively.
                                                       SECTION III
               PROCEDURES FOR INFORMING AND CONSULTING THE EMPLOYEES OF UNDER-
               TAKINGS WITH COMPLEX STRUCTURES WHOSE DECISION MAKING CENTRE IS
                          LOCATED IN THE COUNTRY IN WHICH THE EMPLOYEES WORK
                         Article 10                           (g) manufacturing        and     working    methods,      in
                                                                   particular the     introduction of     new working
The management of a dominant undertaking whose                     methods;
decision-making centre is located in a Member State
                                                              (h) all procedures and plans liable to have a sub-
of the Community and which has one or more sub-
                                                                   stantial effect on employees' interests.
sidiaries in the same Member State shall be required,
via the management of its subsidiaries, to disclose
information to employees' representatives in all sub-         3.     The management of each subsidiary shall be
sidiaries employing at least 100 employees in that            required to communicate such information without
 State in accordance with Article 11 and to consult           delay to employees' representatives in such subsidiary.
them in accordance with Article 12.
                                                              4.     Where the management of the subsidiaries is
                                                              unable to communicate the information referred to in
                                                              paragraphs (1) and (2) above to employees' repre-
                         Article 11                           sentatives, the management of the dominant under-
                                                              taking must communicate such information to any
 1.    At least every six months, the management of a          employees' representatives who have requested it to
 dominant undertaking shall forward relevant infor-            do so.
 mation to the management of its subsidiaries in the
 Community giving a clear picture of the activities of         5.    The Member State shall provide for appropriate
 the dominant undertaking and its subsidiaries taken           penalties in case of failure to fulfil the obligation laid
 as a whole.                                                   down in this Article.
 2.    This information shall relate in particular to:                                  Article 12
 (a) structure and manning;
                                                               1.    Where the management of a dominant under-
 (b) the economic and financial situation;                     taking proposes to take a decision concerning the
 (c) the situation and probable development of the             whole or a major part of the dominant undertaking
      business and of production and sales;                    or of one of its subsidiaries which is liable to have a
                                                               substantial effect on the interests of its workers, it
 (d) the employment situation and probable trends;             shall be required to forward precise information to
                                                               the management of each of its subsidiaries within the
 (e) production and investment programmes;
                                                               Community not later than 40 days before adopting
 (f) rationalization plans;                                    the decision, giving details of:
 ---pagebreak--- 15. 11. 80                        Official Journal of the European Communities                            N o C 297/7
— the grounds for the proposed decision;                      laid down in this Article. In particular, they shall
                                                              grant to the employees' representatives concerned by
                                                              the decision the right of appeal to tribunals or other
— the legal, economic and social consequences of
                                                              competent national authorities for measures to be
    such decision for the employees concerned;
                                                              taken to protect their interests.
— the measures        planned     in  respect   of   these
    employees.
2.    The decisions referred to in paragraph (1) shall
be those relating to:                                                                 Article 13
(a) the closure or transfer of an establishment or            1.    Where in a Member State a body representing
     major part thereof;                                      employees, exists at a level higher than that of the
                                                              individual subsidiary, the information provided for in
                                                              Article 11 relating to the employees of all the sub-
(b) restrictions,     extensions        or     substantial    sidiaries thus represented shall be given to that body.
     modifications to the activities of the undertaking;
(c) major modifications with regard to organization;
                                                              2.    The consultations provided for in Article 12
                                                              shall take place under the same conditions with the
(d) the introduction of long-term cooperation with            representative body referred to in paragraph (1).
     other undertakings or the cessation of such
     cooperation.
                                                              3.    A body representing all the employees of the
                                                              dominant undertaking and its subsidiaries within the
3.    The management of each subsidiary shall be              Community may be created by means of agreements
required to communicate this information without              to be concluded between the management of the
delay to its employees' representatives and to ask for        dominant undertaking and the employees' represen-
their opinion within a period of not less than 30 days.       tatives, unless provision is made for it by national law.
                                                              If such a body is created, paragraphs 1 and 2 shall be
                                                              applicable.
4.    Where, in the opinion of the employees' repre-
sentatives, the proposed decision is likely to have a
direct effect on the employees' terms of employment
or working conditions, the management of the sub-
sidiary shall be required to hold consultations with
them with a view to reaching agreement on the
measures planned in respect of them.
                                                                                       Article 14
5.    Where the management of the subsidiaries does            1.    The management of a dominant undertaking
not communicate to the employees' representatives              whose decision-making centre is located in a Member
the information required under paragraph (3) or does           State of the Community and which has one or more
not arrange consultations as required under                    establishments in the same Member State shall be
paragraph (4), such representatives shall be auth-             required to disclose, via the management of the sub-
orized to open consultations, through authorized               sidiaries, information to the employees' repres-
delegates, with the management of the dominant                 entatives in all its subsidiaries employing at least 100
undertaking with a view to obtaining such infor-               employees in accordance with Article 11 and to
mation and, where appropriate, to reaching                     consult them in accordance with Article 12.
agreement on the measures planned with regard to
the employees concerted.
                                                               2.    For the purposes of applying this Article, the
                                                               terms 'dominant undertaking' and 'subsidiary' in
6.    The Member States shall provide for appropriate          Articles 10 to 13 shall be replaced by the terms
penalties in the case of failure to fulfil the obligations     'undertaking' and 'establishment' respectively.
 ---pagebreak--- N o C 297/8                          Official Journal of the European Communities                            15. 11. 80
                                                         SECTION IV
                                               SECRECY REQUIREMENTS
                         Article 15                              2.   The Member States shall empower a tribunal or
                                                                 other national body to settle disputes concerning the
1.     Members and former members of bodies                      confidentiality of certain information.
representing employees and delegates authorized by
them shall be required to maintain discretion as
regards information of a confidential nature. Where
they communicate information to third parties they
shall take account of the interests of the undertaking           3.    The Member States shall impose appropriate
and shall not be such as to divulge secrets regarding            penalties in casts of infringement of the secrecy
the undertaking or its business.                                 requirement.
                                                        ' SECTION V
                                                   FINAL PROVISIONS
                         Article 16                              2.    The Member States shall communicate to the
                                                                 Commission the texts of laws, regulations and
This Directive shall be without prejudice to measures            administrative provisions which they adopt in the area
to be taken pursuant to Council Directive                        covered by this Directive.
75/129/EEC of 17 February 1975 on the approxi-                                           Article 18
 mation of the laws of the Member States relating to
collective redundancies (') and Directive 7 7 / 1 8 7 / E E C
                                                                 Within two years from the date fixed in Article 17,
 or to the freedom of the Member States to apply or
                                                                 the Member States shall transmit to the Commission
 introduce    laws,     regulations   or    administrative
                                                                 all information necessary to enable it to draw up a
 provisions which are more favourable to employees.
                                                                 report to be submitted to the Council relating to the
                                                                 application of this Directive.
                         Article 17
 1.    The Member States shall introduce the laws,
 regulations and administrative provisions necessary to                                  Article 19
 comply with this Directive not later than . . . (2). They
 shall forthwith inform the Commission thereof.                  This Directive is addressed to the Member States.
 (') OJ No L 48, 22. 2. 1975, p. 29.
 (2) Date to be specified at the time of adoption by the
     Council.