CELEX: 51996PC0026
Language: en
Date: 1996-01-31
Title: Proposal for a COUNCIL DIRECTIVE on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC

COMMISSION OF THE EUROPEAN COMMUNITIES
                                     Brussels, 31.01.1996
                                     COM(96) 26 final
                                     96/0033 (PRT)
                           Proposal for a
                     COUNCIL DIRECTIVE
    on the framework agreement on parental leave concluded by
                   UNICE, CEEP and the ETUC
                  (presented by the Commission)
I''
m-
 ---pagebreak---  ---pagebreak---                               EXPLANATORY MEMORANDUM
 Introduction
 1.    Reconciling working and family life is a key element in equal opportunities policy.
       Since the beginning of the '80s, it has been one of the Commission's priorities in this
       area. On 24 November 1983 the Commission submitted a proposal for a
       Council Directive on parental leave and leave for family reasons0}. The aim of this
       proposal was to grant to workers the right to a minimum period of leave following the
       birth or adoption of a child. It also provided for leave for other family reasons.
 2.    The Economic and Social Committee gave its opinion on 24 May 1984. The
       European Parliament gave its opinion on 30 March 1984, proposing 17 amendments to
       the Commission's proposal. In accordance with Article 149 of the Treaty, the
       Commission submitted an amended proposal(2) to the Council on 15 November 1984,
       incorporating some of the amendments proposed by Parliament.
 3.    This proposal was discussed in the Council and by the Ministers themselves on various
       occasions between 1985 and 1994, but the unanimity required in accordance with the
       legal basis (Article 100) was not obtained. Despite in-depth discussions within the
       Council and the broad consensus which emerged particularly clearly in 1993, the
       proposal was not adopted.
 4.    In addition to submitting this proposal, the Commission has stressed the key role
       conciliation can play in effectively promoting equal opportunities at work, in a series
       of texts submitted over the past ten years. Many of these initiatives were supported by
       the Council of Ministers(3).
 5.    In July 1994 the Commission published the White Paper on the future of
       European social policy, in which it reiterates its desire to make progress in this area and
       indicates in Chapters 3 and 5 that it will examine the possibility of a framework
       directive on conciliation, providing for career breaks such as parental leave. The aim of
       the proposal would be to encourage people to devise new models catering better for the
       needs of European society and to enable women to be integrated fully into the labour
       market.
 6.    As no progress had been made in the Council, the Commission decided to initiate the
       procedure under Article 3 of the Agreement on Social Policy. On 22 February 1995 it
       therefore gave its approval for consultation of the social partners under Article 3(2) of
       the said Agreement on the basis of a text which retraced the steps of the Commission's
       conciliation policy and examined it from various points of view. At the end of a
       consultation period of six weeks, the Commission received 17 responses.
(i)
       COM(83) 686 final.
(2)
       COM(84)631 final.
(3)
      For example, point 16 of the Community Charter of Fundamental Social Rights for
      Workers, the Third medium-term action programme on equal opportunities for men and
      women, 1991 to 1995 and the Council Recommendation of 31 March 1992 on child care
      (OJ No L 123, 8.5.1992, p 16).
 ---pagebreak---  7.   The social partners' responses showed that there was a consensus on the need for action
      on conciliation in one form or another in accordance with the guidelines in the
      Commission's first document. The social partners came out very clearly in support of
     promotion of equal opportunities for men and women. As regards the proper form and
      level for action to be undertaken in this area, it was generally acknowledged that a
      Community initiative might be what was needed. At the very least, a Community text
      might recommend various measures and standards, and a binding Community framework
      measure was also suggested to establish guidelines which could be implemented at
     national, local or enterprise level. Many of the responses also recommended that the
      social partners play an active role in drafting the principles and in putting them into
      practice through collective negotiations.
 8.  After analysing the reactions to its document, the Commission decided to initiate the second
     round of consultation provided for under Article 3(3) of the Agreement on Social Policy.
     On 5 July three organizations (UNICE, CEEP and the ETUC) announced their intention of
     starting negotiations on this matter and, in particular, on parental leave. At the end of these
     negotiations, the three organizations concluded a framework agreement on 14 December.
     At the same time they forwarded the Agreement to the Commission, asking for it to be
     implemented by a Council decision on a proposal from the Commission in accordance with
     Article 4(2) of the Agreement on Social Policy.
 Examination of the Agreement
 9.  In its Communication concerning the application of the Agreement on Social Policy(4),
     the Commission stressed that "by virtue of its role as guardian of the Treaties the
     Commission will prepare proposals for decisions to the Council following consideration
     of the representative status of the contracting parties, their mandate and the "legality"
     of each clause in the collective agreement in relation to Community law, and the
     provisions regarding small and medium-sized undertakings set out in Article 2(2). At all
     events, the Commission intends to provide an explanatory memorandum on any proposal
     presented to the Council in this area, giving its comments and assessment of the
     agreement concluded by the social partners".
     (i)     Representative status of the contracting parties and their mandate
 10. The organizations which are parties to the Agreement are UNICE, CEEP and the ETUC.
     These three organizations have, since 1985, committed themselves to an autonomous and
     voluntary process known as the "Val Duchesse" social dialogue. This has given rise to
      14 joint opinions, two recommendations and two agreements. They concluded a
     significant agreement in October 1991 which was designed to define the role and
     position of social dialogue in the new Community framework. Articles 3 and 4 of the
     Agreement on Social Policy are largely inspired by this Agreement.
 11. The three organizations all fulfil the following criteria defined in the Communication
     from the Commission (point 24):
            they are cross-industry and are organized at European level;
            they consist of organizations which are themselves an integral and recognized part
            of Member State social partner structures, have the capacity to negotiate
            agreements and are representative of all Member States;
            they have adequate structures to ensure their effective participation in
            implementing the Agreement on Social Policy.
(4)
     COM(93) 600 of 14 December 1993.
 ---pagebreak---  12. These three organizations are the only three general cross-industry organizations within
      the meaning of Annex 2 to the Communication from the Commission. The study on the
       social partners annexed to the Communication arrives at several conclusions with regard
      to the representative status of employers' and trade union organizations:
       Employers' organizations
 12.1 The employers' federation which is most representative of all the industrial sectors and
      the categories of enterprises is UNICE. In all the Member States the organizations
       affiliated to the UNICE are by far the most representative cross-industry employers'
       federations. All the affiliated organizations at national level are directly or indirectly
       involved in collective bargaining and participate in the International Labour Conference.
       CEEP provides significant representation of public enterprises or enterprises with public
       participation in the Member States.
       Trade union organizations
 12.2 By far the most representative general cross-industry trade union confederation is the
      ETUC. Its affiliated organizations are the most representative cross-industry trade union
       confederations in all the Member States. All its affiliated organizations at national level
       are directly or indirectly involved in collective bargaining and participate in the
      International Labour Conference.
 13. The Commission notes that the members of these three organizations at national
       level have given them a specific mandate for negotiations on parental leave and have
       ratified the framework agreement. The three organizations have concluded the
       framework agreement on behalf of their national members.
 14. The Commission concludes that these three organizations fulfil the condition of
      representativeness which it had undertaken to verify before forwarding its proposal.
       However, the Commission has forwarded the framework agreement to all the
      organizations which it had previously consulted or informed, and has organized a
       meeting for exchange of information with them. Certain organizations have contested
      the representative status of contracting parties and maintained that the agreement does
      not take into account the interests of certain sectors or categories of enterprises. On the
      contrary, other organizations have underlined the flexible character of the provisions of
      the agreement that will allow account to be taken, when transposing it into national law,
      of the specific needs of some sectors or sub-sectors.
      (ii)     "Legality" of the clauses of the agreement
 15.  The Commission has carefully examined each of the clauses of the
      framework agreement and does not find any provisions contrary to Community law in
      the main clauses thereof (Clauses 1, 2 and 3). The fact that the agreement provides for
      obligations on the Member States does not prevent it from being legal. On thé contrary,
      it follows from the second declaration annexed to the Agreement on Social Policy(5) that
      the second of the arrangements for application of the agreements between management
      and labour at Community level is likely to create obligations for the Member States. The
      obligations imposed on Member States do not derive directly from the agreement
(5)   "The 11 High Contracting Parties declare that the first of the arrangements for
      application of the agreements between management and labour at Community level -
      referred to in Article 4(2) - will consist in developing, by collective bargaining
      according to the rules of each Member State, the content of the agreements, and that
     consequently this arrangement implies no obligation on the Member States to apply the
     agreements directly or to work out rules for their transposition, nor any obligation to
     amend national legislation in force to facilitate their implementation."
 ---pagebreak---      between the social partners but from the arrangement for applying the agreement.
    Paragraph (iv) contains the Commission's assessment of the content of the agreement.
16. Clause 4 regarding the procedural rules for applying the agreement is different. Without
    amending these rules, the Commission is obliged to propose to the Council, in the text
    of its proposed legislation, the provisions which will be necessary to ensure that the
    social partners' framework agreement is applied in practice by the Member States in
    accordance with Community law.
    (iii)   Respect for provisions regarding small and medium-sized undertakings
17. Article 2(2) of the Agreement on social policy provides that legislation on social policy
    shall avoid imposing administrative, financial and legal constraints in a way which
    would hold back the creation and development of small and medium-sized undertakings.
18. Special consideration was given to the specific situation of SMUs when the
    framework agreement was drawn up. There are two explicit references to them:
    General Considerations, 12.        "Whereas this agreement takes into consideration the
                                      need to improve social policy requirements, to enhance
                                      the competitiveness of the Community economy and to
                                       avoid imposing administrative, financial and legal
                                       constraints in a way which would hold back the
                                      creation and development of small and medium-sized
                                       undertakings."
    Clause 2.3.f:                      "Member States and/or Social Partners may, in
                                      particular, ... authorize special arrangements
                                      to meet the operational and organizational requirements
                                      of small undertakings".
19. The agreement ensures that the special situation of SMUs is taken into consideration,
    explicitly authorizing the Member States and/or social partners to make special
    arrangements for them.
20. In addition, other provisions of the framework agreement, without explicitly mentioning
    SMUs, enable national provisions to be taken which take account of their special
    situation. This is true of the following:
    Clause 2.3.a                      "Member States and/or Social Partners may, in
                                      particular ... decide whether parental leave is granted on
                                      a full-time or part-time basis, in a fragmented way or in
                                      the form of a time-credit system,"
    Clause 2.3.e                      "Member States and/or Social Partners may, in
                                      particular ...define the circumstances in which the
                                      employer ... is allowed to postpone the granting of
                                      parental leave for justifiable reasons relating to the
                                      operation of the enterprise".
    These two provisions show that the social partners are keen to encourage new, flexible
    ways of organizing work and time which are better suited to the changing needs of
    society and which should take the needs of both the enterprises and the workers into
    account (General Considerations, 6).
21. The Commission therefore concludes that the framework agreement complies with the
    provisions concerning SMUs. In drawing it up, the social partners provided scope for
    the special circumstances of SMUs to be taken into account, particularly when the
    agreement is being transposed into national law.
 ---pagebreak---       (iv)   Assessment of the agreement
22.   The Commission considers parental leave to be an important factor in reconciling family
      and working life. It also constitutes an important element in the introduction of new,
     flexible ways of organizing work and time. As a result, the Commission asked the
     social partners for their reactions to this more broadly based approach.
23.  The Commission wholeheartedly endorses the aims of the social partners'
     framework agreement and sees it as an important step in two respects.
24.  First, minimum standards with regard to parental leave are a big step forward in
     achieving equal opportunities for men and women. Sharing of family responsibilities
     between parents is a key element in the strategies designed to improve equality in the
     labour market. It is also likely to increase the number of women in work. Reconciling
     working and family life must be part of a long-term strategy to increase the number of
     women in the working population. The Essen European Council in December 1994 gave
     top priority to promoting employment and equal opportunities. This was confirmed by
     the European Councils of Cannes and Madrid.
25.  Secondly, the introduction of parental leave also contributes to realizing another
     objective set by the European Council in Essen - the introduction of new, flexible ways
     of organizing work. Such flexibility must meet the needs of enterprises which, faced
     with international competition, have to increase their competitiveness. It must also take
     account of the interests of workers by enabling them to tailor their working hours more
     closely to their needs. An agreement between the social partners on this matter as a
     result of negotiations between employers and workers is the right vehicle for reconciling
     the interests of the two parties.
26.  The Commission considers that all the conditions are fulfilled for a proposal for the
     framework agreement between the social partners to be implemented by a
     Council decision.
The Commission's proposal
27.  In its Communication of 14 December, the Commission stated that "implementing an
     agreement concluded at Community level by means of a Council decision on a proposal
     from the Commission at the joint request of the social partners would give the Council
     no opportunity to amend the agreement. For this reason, the Commission will merely
     propose, following examination of the agreement between the social partners, the
     adoption of a decision on the agreement as concluded".
28.  The Commission also took the view that "the Council decision must be limited to
     making binding the provisions of the agreement concluded between the social partners,
     so the text of the agreement would not form part of the decision but would be annexed
    thereto".
29. Finally, the Commission announced that "if the Council decides, in accordance with the
    procedure set out in the last subparagraph of Article 4(2), not to implement the
     agreement as concluded by the social partners, the Commission will withdraw its
    proposal for a decision and will examine, in the light of the work done, whether a
    legislation instrument in the area in question would be appropriate".
30. Hence, the Commission has not incorporated the text of the agreement in its proposal
    but simply annexed it thereto. Moreover, it reiterates that, if the Council amends the
    agreement concluded between the social partners, it will withdraw its proposal.
 ---pagebreak---      (i)     Legal basis
31.  Article 4(2) of the Agreement on Social Policy provides that "agreements concluded at
     Community level shall be implemented, in matters covered by Article 2, at the joint
     request of the signatory parties, by a Council decision on a proposal from the
     Commission". The agreement on parental leave relates to equal opportunities for men
     and women in the labour market and equal treatment at work, which come under
     Article 2(1) of the Agreement on Social Policy. This is one of the areas where the
     Council may act by a qualified majority. As a result Article 4(2) is the proper
     legal basis for the Commission's proposal.
32. That Article does not provide for consultation of the European Parliament on requests
     addressed to the Commission by the social partners. In accordance with the undertaking
     in its Communication, the Commission has kept the Parliament informed about the
     various phases of consultation of the social partners. It is also forwarding this proposal
     to the Parliament so that it can deliver its opinion to the Commission and the Council
     if it so wishes. The same applies to the Economic and Social Committee.
     (ii)    The form the instrument is to take
33.  The term "decision" within the meaning of Article 4(2) of the Agreement on
     Social Policy refers to one of the binding legislative instruments under Article 189 of
     the Treaty. It is up to the Commission to propose to the Council the most appropriate
     of the three binding instruments under the said Article (regulation, directive or decision).
     In this case, given the nature (framework agreement) and the content of the
     social partners' document, it is clear that the framework agreement is intended to he
     applied indirectly by means of provisions to be transposed into national law by the
     Member States or the social partners. Hence, in that case, the most suitable instrument
     for its application is a Council directive. Moreover, in accordance with the undertakings
     it has given, the Commission considers that the text of the agreement should not be part
     of the decision but should be annexed thereto.
34. The Commission's comments on the Articles in its proposal are given below:
     Article 1
34.1 This Article confines itself to making the framework agreement between the
     social partners obligatory in order to enable it to be implemented by a Council decision
     under Article 4(2) of the Agreement on Social Policy.
     Articles 2 and 3
34.2 These Articles contain the usual provisions for transposai into the national law of the
     Member States. More particularly, Article 2(1) says that the provisions of the Directive
     only prescribe minimum requirements, giving Member States the possibility of adopting
     stricter measures in the relevant field.
34.3 Article 2(2) consists of a "non-regression" clause that affects Member States having, at
      the time of the adoption of the Directive, a higher level of protection than the one
      guaranteed by the framework agreement attached to it. This clause concerns the
      non-regression of the workers' general level of protection on grounds of the adoption of
      the Community Directive. However, it offers Member States the possibility of adopting
      different measures required by their economic and social policies, subject to observance
      of the minimum requirements prescribed by the framework agreement. It is clear in all
      the circumstances that the room for manoeuvre of Member States covers only the level
      of protection higher than the one guaranteed by the Directive.
 ---pagebreak--- 34.4 Article 2(3) is a non-discrimination clause in accordance with the undertaking given by
       the Commission in its Communication(6) on racism, xenophobia and antisemitism. In this
       connection, the solemn declaration adopted by the social partners in Florence in
       October 1995 on the prevention of racial discrimination and xenophobia and the
      promotion of equal opportunities at work should also be borne in mind.
34.5 Article 2(4) obliges Member States to provide penalties which are effective,
       commensurate with the infringement and constitute a sufficient deterrent. Indeed, when
      applying Community law, it is necessary, as in every legal system, on the one hand, that
      those bearing obligations resulting from this law are dissuaded from infringing it and,
      on the other hand, that those who do not respect Community law are duly penalized.
Justification of the Directive in respect of subsidiarity
35.   The proposal for a Council Directive concerning the framework agreement on parental
      leave concluded by UNICE, CEEP and CES complies with the principle of subsidiarity
      as regards its two criteria, namely the necessity and proportionality as laid down in
      Article 3(b) of the Maastricht Treaty.
36. The first criterion, namely the need to undertake Community action, is justified by the
      fact that social partners, within the framework of the procedure provided for in Article 3
      of the Agreement on Social Policy, have agreed that it is necessary to undertake action
      at Community level and they have requested the implementation of their agreement
      which has been concluded at Community level, through a Council decision based upon
      a proposal from the Commission, pursuant to Article 4(2) of that agreement. Moreover,
      it should be noted that "parental leave" forms part of the measures which allow men and
      women to reconcile their professional and family responsibilities with a view to
      promoting the equality of opportunities, which has been acknowledged as being of major
      importance at the European Council held in Essen in December 1994.
37. The Council Directive corresponds to the requirement of proportionality in so far as it
      only defines the major objectives to be attained by Member States, while allowing
      social partners and not the Community to fix its content.
Conclusion
38.   The Council is requested to adopt the proposal for a Directive on the
      framework agreement on parental leave concluded by UNICE, CEEP and the ETUC.
(6)
      COM(95) 653 final of 13 December 1995.
                                                 8
 ---pagebreak---                                         Proposal for a
                                  COUNCIL DIRECTIVE
                on the framework agreement on parental leave concluded by
                               UNICE, CEEP and the ETUC
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Agreement on Social Policy annexed to the Protocol (No 14) on
Social Policy, annexed to the Treaty establishing the European Community and, in particular,
Article 4(2) thereof,
Having regard to the proposal from the Commission(1),
Whereas on the basis of the Protocol on Social Policy annexed to the Treaty establishing the
European Community, the Member States, with the exception of the United Kingdom of
Great Britain and Northern Ireland (hereinafter referred to as "the Member States"), wishing
to implement the Social Charter of 1989, have concluded an agreement on social policy,
Whereas management and labour (the social partners) may, in accordance with Article 4(2)
of the Agreement on Social Policy, request jointly that agreements at Community level be
implemented by a Council decision on a proposal from the Commission;
Whereas point 16 of the Community Charter of the Fundamental Social Rights of Workers,
dealing with equal treatment for men and women, provides inter alia that "measures should
also be developed enabling men and women to reconcile their occupational and family
obligations";
Whereas the Council, despite the existence of a broad consensus amongst the majority of the
Member States, has not been able to act on the proposal for a Council Directive on
parental leave and leave for family reasons(2), as amended(3), on 15 November 1984;
Whereas the Commission, in accordance with Article 3(2) of the Agreement on Social Policy,
consulted management and labour on the possible direction of Community action with regard
to reconciling occupational and family life;
Whereas the Commission, considering after such consultation that Community action was
desirable, once again consulted management and labour on the substance of the envisaged
proposal in accordance with Article 3(3) of the said Agreement;
Whereas the general cross-industry organizations (UNICE, CEEP and the ETUC) informed
the Commission in their joint letter of 5 July 1995 of their desire to initiate the procedure
provided for by Article 4 of the said Agreement;
Whereas those cross-industry organizations have concluded, on 14 December 1995, a
framework agreement on parental leave; whereas they have forwarded to the Commission their
joint request to implement the framework agreement on parental leave by a Council decision
on a proposal from the Commission, in accordance with Article 4(2) of the said Agreement;
0)    OJNoC
(2)
      O J N o C 333, 9.12.1983, p. 6.
(3)
      O J N o C 316, 27.11.1984, p. 7.
 ---pagebreak---  Whereas the Council, in its Resolution of 6 December 1994 on certain aspects for a
 European Union social policy, a contribution to economic and social convergence in the
 Union(4), asked management and labour to make use of the opportunities for concluding
 agreements, since they are as a rule closer to social reality and to social problems; whereas
 in Madrid the members of the European Council from those States which had signed the
 Agreement annexed to the Protocol on Social Policy welcomed the conclusion of this
 framework agreement;
 Whereas the proper instrument for implementing the framework agreement is a directive
 within the meaning of Article 189 of the Treaty; whereas it therefore binds the Member States
 as to the result to be achieved, whilst leaving them the choice of form and methods;
 Whereas, in accordance with the principles of subsidiarity and proportionality as set out in
 Article 3(b) of the Treaty, the objectives of this Directive cannot be sufficiently achieved by
 the Member States and can therefore be better achieved by the Community; whereas this
 Directive limits itself to the minimum required for the attainment of those objectives and does
 not go beyond what is necessary for that purpose;
 Whereas the Commission has dratted its proposal for a Council Directive, taking into account
 the representative status of the contracting parties, their mandate and the legality of each
 clause of the framework agreement, and compliance with the relevant provisions concerning
 small and medium-sized undertakings;
 Whereas the Commission, in accordance with its Communication concerning the
 application of the Agreement on Social Policy, informed the European Parliament by sending
 it the text of the agreement, accompanied by its proposal for a Directive and the
 Explanatory Memorandum;
 Whereas the Commission also informed the Economic and Social Committee by sending it the
 text of the Agreement, accompanied by its proposal for a Directive and the
 Explanatory Memorandum;
 Whereas the provisions of this Directive should lay down minimal requirements, thus giving
Member States the option of introducing more favourable provisions;
 Whereas the implementation of this Directive should not serve to justify any regression in
 relation to the situation which already exists in every Member State;
 Whereas the Community Charter of the Fundamental Social Rights of Workers recognizes the
importance of the fight against all forms of discrimination, especially based on sex, colour,
 race, opinions and creeds; whereas the Commission adopted on 13 December 1995 a
 Communication^ on racism, xenophobia and antisemitism; whereas management and labour
adopted a solemn declaration on the prevention of racial discrimination and xenophobia and
 promotion of equal opportunities at work in Florence in October 1995;
Whereas, in keeping with Article 5 of the Treaty, Member States should take all measures
necessary to safeguard the scope and the efficiency of Community law, and should in
particular, in the event of infringement, determine penalties which are effective and
 commensurate with it and which constitute a sufficient deterrent;
Whereas a Member State may entrust management and labour, at their joint request, with the
 implementation of this Directive, as long as that Membr State takes all the necessary steps
to ensure that it can at all times guarantee the results imposed by this Directive;
(4)
       OJ No C 368, 23.12.1994, p. 6.
(5)
       COM(95) 653 final.
                                                10
 ---pagebreak--- Whereas the implementation of the framework agreement contributes to achieving the
objectives under Article 1 of the Agreement on Social Policy;
Whereas parental leave is a matter relating to equal opportunities at work under Article 2(1)
of the said Agreement; whereas the Council is therefore acting by a qualified majority,
HAS ADOPTED THIS DIRECTIVE:
                                            Article 1
The framework agreement on parental leave concluded on 14 December 1995 between the
general cross-industry organizations (UNICE, CEEP and the ETUC) and annexed to this
Directive is made binding.
                                            Article 2
1.    Member States may introduce more favourable provisions than those laid down in
      this Directive.
2.    The implementation of this Directive shall not in any case constitute sufficient grounds
      to justify a reduction in the general level of protection of workers in the fields covered
      by this Directive; this shall be without prejudice to the rights of Member States and/or
      management and labour to lay down, in the light of changing circumstances, different
      legislative, regulatory or contractual arrangements to those prevailing at the time of
      adoption of this Directive, provided always that the minimum requirements laid down
      in this Directive are adhered to.
3.    When Member States adopt the provisions to implement this Directive, these shall
      prohibit any discrimination based on race, sex, sexual orientation, colour, religion or
      nationality.
4.    Member States shall determine the range of penalties applicable for infringements of
      national provisions made in implementation of this Directive and shall take all necessary
      steps to ensure that they are enforced. The penalties must be effective, commensurate
      with the infringement, and must constitute a sufficient deterrent. Member States shall
      notify these provisions to the Commission by the date mentioned in paragraph 5 at the
      latest, and any subsequent amendment thereto in good time.
5.    Member States shall bring into force the laws, regulations and administrative provisions
      necessary to comply with this Directive by [31 March 1998] at the latest or shall ensure
      that, by that date at the latest, management and labour have introduced the necessary
      measures by agreement, the Member States being required to take any necessary
      measures enabling them at any time to be in a position to guarantee the results imposed
      by this Directive. They shall forthwith inform the Commission thereof.
      Member States may have a maximum of one more year, if this is necessary, to take
      account of special difficulties or implementation by a collective agreement. They shall
       inform the Commission forthwith in such circumstances.
      When Member States adopt the provisions referred to in the first paragraph, 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
      Member States.
                                                11
 ---pagebreak---                                         Article 3
This Directive is addressed to the Member States.
Done at Brussels,                               For the Council
                                                The President
                                            12
 ---pagebreak---                                                                                  ANNEX
                  FRAMEWORK AGREEMENT ON PARENTAL LEAVE
PREAMBLE
The enclosed framework agreement represents an undertaking by UNICE, CEEP and the
ETUC to set out minimum requirements on parental leave, as an important means of
reconciling professional and family responsibilities and promoting equal opportunities and
treatment between m«n and women.
ETUC, UNICE and CEEP request the Commission to submit this framework agreement to the
Council for a Council decision making thtse requirements binding in the Member States of
the European Community with the exception of the United Kingdom of Great Britain and
Northern Ireland.
      General Considérai*»
      1.   Having regard to the Agreement on Social Policy annexed to the Protocol on
           Social Policy attached to the Treaty establishing the European Community and in
           particular Articles 3(4) and 4(2) thereof,
      2.   Whereas Article 4(2) of the Agreement on Social Policy provides that agreements
           concluded at Community level shall be implemented, at the joint request of the
           signatory parties, by a Council decision on a proposal from the Commission;
      3.   Whereas the Commission has announced its intention to propose a Community
           measure on the reconciliation of work and family life;
      4.   Whereas the Community Charter of fundamental social rights stipulates at point 16
           dealing with equal treatment for men and women, that measures should be
           developed to enable men and women to reconcile their occupational and family
           obligations;
      5.   Whereas the Resolution of the Council of 6 December 1994 recognizes that an
           effective policy of equal opportunities presupposes an integrated, overall strategy
           allowing for better organization of working hours and greater flexibility, and for
           an easier return to working life, and notes the important role of the Social Partners
           in this area and in offering both men and women an opportunity to reconcile their
           work responsibilities with family obligations;
      6.   Whereas measures to reconcile work and family life should encourage the
           introduction of new flexible ways of organizing work and time which are better
           suited to the changing needs of society and which should take the needs of both
           the enterprises and the workers into account;
      7.   Whereas family policy should be looked at in the context of demographic changes,
           the effects of the ageing population, closing generation gap and promoting
           women's participation in the labour force;
      8.   Whereas men should be encouraged to assume an equal share of family
           responsibilities, for example they should be encouraged to take parental leave by
           means such as awareness programmes;
                                               13
 ---pagebreak---     9.   Whereas this agreement is a framework agreement setting out minimum
         requirements and provisions for parental leave, distinct from maternity leave, and
         for time off from work on grounds of force majeure, and refers back to
         Member States and Social Partners for the establishment of the conditions for
         access and modalities of application in order to take account of the situation in
         each Member State;
    10.  Whereas Member States should provide for the maintenance of entitlements to
         benefits in kind under sickness insurance during the minimum period of
         parental leave;
    11   Whereas Member States should also, where appropriate under national conditions
         and taking into account the budgetary situation, consider the maintenance of
         entitlements to relevant social security benefits as they stand during the minimum
         period of parental leave;
    12.  Whereas this Agreement takes into consideration the need to improve social policy
         requirements, to enhance the competitiveness of the Community economy and to
         avoid imposing administrative, financial and legal constraints in a way which
         would hold back the creation and development of small and
         medium-ized enterprises;
    13.  Whereas the Social Partners are best placed to find solutions that correspond to
         the needs of both employers and workers and shall therefore be conferred a special
         role in the implementation and application of this agreement.
THE SIGNATORY PARTIES HAVE AGREED THE FOLLOWING:
II. Content
    Clause 1: Purpose and scope
    1.   This agreement lays down minimum requirements designed to facilitate the
         reconciliation of parental and professional responsibilities for working parents.
    2.   This agreement applies to all workers, men and women, who have an employment
         contract or employment relationship as defined by the law, collective agreement
         or practice in force in each Member State.
    Clause 2: Parental leave
    1.   This agreement entitles, subject to clause 2.2, men and women workers to an
          individual right to parental leave on the grounds of the birth or adoption of a child
          to enable them to take care of that child, for at least three months, until a given
          age of up to eight years to be defined by Member States and/or Social Partners.
    2.    To promote equal opportunities and equal treatment between men and women, the
          parties to this agreement consider that the right to parental leave provided for
          under clause 2.1 should, in principle, be granted on a non-transferable basis.
    3.    The conditions for access and modalities of application of parental leave shall be
          defined by law and/or collective agreement in the Member States, as long as the
          minimum requirements of this agreement are respected. Member States and/or
          Social Partners may, in particular:
          (a)   decide whether parental leave is granted on a full-time or part-time basis, in
                a fragmented way or in the form of a time-credit system;
                                              14
 ---pagebreak---       (b)   make entitlement to parental leave subject to a period of work qualification
            and/or a length of service qualification which shall not exceed one year;
      (c)   adjust conditions for access and modalities of application of parental leave
            to the special circumstances of adoption;
      (d)   establish notice periods to be given by the worker to the employer when
            exercising the right to parental leave specifying the beginning and the end
            of the period of leave;
      (e)   define the circumstances in which an employer, following consultation in
            accordance with national law, collective agreements and practices, is allowed
            to postpone the granting of parental leave for justifiable reasons related to
            the operation of the undertaking (e.g. where work is of a seasonal nature,
            where a replacement cannot be found within the notice period, where a
            significant proportion of the workforce applies for parental leave at the same
            time, where a specific function is of strategic importance). Any problem
            arising from the application of this provision should be dealt with in
            accordance with national law, collective agreements and practices;
     (f)    in addition to (e) above, authorize special arrangements to meet the
            operational and organizational requirements of small undertakings.
4.   In order to ensure that workers can exercise their rights to parental leave,
     Member States and/or Social Partners shall take the necessary measures to protect
      workers against dismissal on the grounds of an application for, or the taking of,
     parental leave in accordance with national law, collective agreements or practice.
5.    At the end of parental leave, workers shall have the right to return to the same
     job, or, if that is not possible, to an equivalent or similar job consistent with their
      employment contract or employment relationship.
6.   Rights acquired or in the process of being acquired by the worker on the date on
     which parental leave starts shall be maintained as they stand until the end of
     parental leave. At the end of parental leave, these rights, including any changes
     arising from national law, collective agreements or practice, shall apply.
7.   Member States and/or Social Partners shall define the status of the employment
     contract or employment relationship for the period of parental leave.
8.   All matters relating to social security in relation to this agreement are for
     consideration and determination by Member States according to national law,
     taking into account the importance of the continuity of the entitlements to social
     security cover under the different schemes, in particular health care.
Clause 3: Time-off from work on grounds of force majeure
1.   Member States and/or Social Partners shall take the necessary measures to entitle
     workers to time-off from work, in accordance with national legislation, collective
     agreements and/or practice, on grounds of force majeure for urgent family reasons
     in cases of sickness or accident making the immediate presence of the worker
     indispensable.
2.   Member States and/or Social Partners may specify the conditions for access and
     modalities of application of clause 3.1 and limit this entitlement to a certain
     amount of time per year and/or per case.
                                           15
 ---pagebreak---       Clause 4: Final provisions
      1.    Member States can maintain or introduce more favourable provisions than set out
            in this agreement.
      2.    Implementation of the provisions of this agreement shall not constitute valid
            grounds for reducing the general level of protection afforded to workers in the
            field of this agreement. This does not prejudice the right of Member States and/or
            Social Partners to develop different legislative, regulatory or contractual
            provisions, in the light of changing circumstances (including the introduction of
            non-transferability), as long as the minimum requirements provided for in this
            agreement are complied with.
      3.    This agreement does not prejudice the right of the Social Partners to conclude, at
            the appropriate level including European level, agreements adapting and/or
            complementing the provisions of this agreement in order to take into account
            particular circumstances.
      4.    Member States shall adopt the laws, regulations and administrative provisions
            necessary to comply with the Council Decision within a period of two years from
            its adoption or shall ensure 0) that the Social Partners establish the necessary
            measures by way of agreement by the end of this period. Member States may, if
            necessary to take account of particular difficulties or implementation by collective
            agreement, have up to a maximum of one additional year to comply with
            this decision.
      5.    The prevention and settlement of disputes and grievances arising from the
            application of this agreement shall be dealt with in accordance with national law,
            collective agreements and practices.
      6.    Without prejudice to the respective roles of the Commission, national courts and
            the Court of Justice, any matter relating to the interpretation of this agreement at
            European level should, in the first instance, be referred by the Commission to the
            signatory parties who shall give an opinion.
      7.    The signatory parties will review the application of this Agreement, five years
            after the date of the Council Decision, if requested by one of the parties to
            this agreement.                                                       y
Brussels, 14 December 1995
Fritz Verzetnitsch                 Antonio Castellano Auyanet         François Perigot
President of the ETUC              President of the CEEP              President of the UNICE
Emilio Gabaglio                    Roger Gourvès                      Zygmunt Tyszkiewicz
Secretary General of the           Secretary General of the           Secretary General of the
ETUC                               CEEP                               UNICE
ETUC                               CEEP                               UNICE
Bid Emile Jacqmain 155             Rue de la Charité 15               Rue Joseph II 40
B-1210 Bruxelles                   B-1040 Bruxelles                   B-1040 Bruxelles
0)    Within the meaning of Article 2(4) of the Social Policy Agreement annexed to the
      EC Treaty.
                                                16
 ---pagebreak---                           IMPACT ASSESSMENT FORM
              THE IMPACT OF THE PROPOSAL ON BUSINESS
                     with special reference to small and medium-sized
                                     enterprises (SMEs)
TITLE OF PROPOSAL:            Proposal for a Council Directive on the framework agreement
                              on parental leave concluded by UNICE, CEEP and the ETUC
THE PROPOSAL:
1.  Taking account of the principle of subsidiarity, why is Community legislation necessary
    in this area and what are its main aims?
    The aim of this Directive is to implement the framework agreement on parental leave
    under Article 4(2) of the Agreement on social policy annexed to the Treaty. This Article
    provides for implementing agreements concluded by the social partners by a
    Council decision on a proposal from the Commission. The signatories have jointly asked
    the Commission to present a proposal to the Council. The Commission, in accordance
    with its Communication*1} on the application of the Agreement on Social Policy,
    undertook a three-fold analysis of the agreement. The Commission considers that all the
    conditions have been met (representative status of the signatories, legality of the clauses
    of the agreement and compliance with specific provisions on SMEs) and that its
    proposal for a Council Directive should be adopted. The Madrid European Council also
    welcomed the agreement.
THE IMPACT ON BUSINESS:
2.  Who will be affected by the proposal?
    All enterprises and all workers may be affected by the framework agreement,
    irrespective of the sector or size of the enterprise concerned.
3.  What will business have to do to comply with the proposal?
    The enterprises have several options to make up for the absence of workers on parental
    leave, the main being as follows:
          hiring of replacements;
          sharing of the work between colleagues;
          postponing work until the persons concerned return to work.
(1)
    COM(93) 600 final.
                                              17
 ---pagebreak--- 4. What economic effects is die proposal likely to have?
   Introduction of parental leave will also contribute to achieving the second priority set
   in Essen by the European Council - the introduction of new flexible ways of organizing
   work. Such flexibility should cater for the needs of enterprises which, in the face of
   international competition, must increase their competitiveness and for the interests of
   workers by enabling them to adjust their working time to their personal needs. The
   agreement between the social partners on this matter, which has been negotiated
   between employers and workers, is the most suitable instrument for reconciling the
   interests of the two parties.
   The job guarantee accompanying parental leave should normally underpin continuity in
   the labour market - whereas hitherto gainful employment had to be interrupted - to the
   benefit of workers and enterprises alike. Workers may be spared some of the cost of
   returning to working life and can maintain the benefits of their experience and their
   seniority with their employers. The employers keep the labour force which they have
   trained and, depending on the way in which they replace workers on leave, do not have
   to commit expenditure for recruitment or training of new personnel.
5. Does the proposal contain measures to take account of the specific situation of small and
   medium-sized firms (reduced or different requirements, etc.)?
   Yes. See paragraphs 17 to 21 of the Explanatory Memorandum.
CONSULTATION
6. List the organizations which have been consulted about die proposal and outline their
   main views.
   A list of the organizations which have been consulted is annexed. Paragraph 14 of the
   Explanatory Memorandum explains their views.
                                           18
 ---pagebreak---                                                                    ISSN 0254-1475
                                                             COM(96) 26 final
                                              DOCUMENTS
EN                                                                             04
                                     Catalogue number : CB-CO-96-048-EN-C
                                                              ISBN 92-78-00159-7
Office for Official Publications of the European Communities
L-2985 Luxembourg
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