CELEX: 51991PC0273(02)
Language: en
Date: 1992-03-05
Title: Proposal for a COUNCIL DIRECTIVE supplementing the Statute for a European association with regard to the involvement of employees

No C 99/ 14                               Official Journal of the European Communities                                    21.4. 92
              Prosoposal for a Council Directive supplementing the statute for a European association with
                                               regard to the involvement of employees
                                                            (92/C 99/02)
                                                   COM(91) 2 73final — SYN 387
                                          (Submitted by the Commission on 6. March 1992)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                              — Council Directive 77/ 187/EEC of 14 February
                                                                           1977 on the approximation of the laws of the Mem­
Having regard to the Treaty establishing the European                      ber States relating to the safeguarding of employ­
Economic Community, and in particular Article 54                           ees ' rights in the event of transfers of undertakings,
thereof,                                                                   businesses or parts of businesses (4), and
                                                                      — Council Directive . . ./ EEC on the establishment of
Having regard to the proposal from the Commission,
                                                                           a European Works Council in Community-scale
                                                                           undertakings or groups of undertakings for the pur­
In cooperation with the European Parliament,                               poses of informing and consulting employees (5);
Having regard to the opinion of the Economic and
Social Committee ,                                                    Whereas appropnate provisions must be adopted to
                                                                      ensure that the employees of EAs are properly
Whereas in order to attain the objectives set out in                  informed and consulted where decisions likely to affect
Article 8a of the Treaty, Regulation (EEC) No . . . (')               their interests are taken in a Member State other than
establishes a Statute for a European association (EA) ;               that in which they are employed ;
Whereas there are in the Member States laws, regula­
tions and administrative provisions concerning the                    Whereas the laws, regulations and administrative provi­
provision of information to and the consultation of the               sions of the Member States governing the participation
employees of undertakings, whatever their legal form ;                of employees in certain national legal entities may be
whereas in some Member States, there are provisions                   made applicable to EAs ;
concerning the participation of employees in certain
legal entities ;
                                                                      Whereas an EA may not be registered until a participa­
                                                                      tion model or, in the absence thereof, an employee
Whereas it is desirable to coordinate information and
                                                                      information and consultation system and in particular
consultation arrangements at Community level in order                 a separate committee has been chosen ;
to develop dialogue between the executive committee
of EAs and employees ;
                                                                      Whereas the natural persons who founded the EA or,
Whereas the realization of the internal market is giving              where no agreement is reached prior to registration of
rise to a process of concentration and conversion of                  the EA, the founder entities should propose to the gen­
associations ; whereas in order to ensure a harmonious                eral meeting called to approve the formation of the EA
development of economic activities, EAs carrying on                   certain requirements with respect to informing and con­
crossborder activities must adopt, if appropriate, a par­             sulting employees ;
ticipation model, or, failing this, inform and consult
employees on decisions which concern them ;
                                                                      Whereas the information and consultation committee
Whereas this Directive determines the minimum areas                   or any other alternative body must be informed and
where there must be information and consultation,                     consulted about activities and strategies of the EA cap­
without prejudice to the application of the following                 able of affecting employees ' interests ;
Directives :
— Council Directive 75 / 129/ EEC of 17 February                      Whereas in order to ensure the proper functioning of
     1975 on the approximation of the laws of the Mem­                the internal market and avoid any inequality in the
     ber States relating to collective redundancies (2), as           terms of competition, the employees of the EA should
     amended by Directive .../.. ./ EEC (3),                          be guaranteed equivalent levels of information and
                                                                       consultation ;
(') See page 1 of this Official Journal .
0    OJ No L 48 , 22 . 2 . 1975 , p. 29.                               (4) OJ No L 61 , 5 . 3 . 1977 , p. 26.
0    COM(91 ) 292 final, 15 . 7 . 1991 .                               0   COM(9Q) 581 final .
 ---pagebreak--- 21.4. 92                               Official Journal of the European Communities                             No C 99/ 15
Whereas in order to allow for more flexibility with res­          2. Where the EA is formed solely by natural persons,
pect to small EAs, Member States need not provide for             those persons shall lay down information and consul­
employee representation in EAs employing fewer than               tation procedures on the basis of the requirements with
50 workers ;                                                      respect to informing and consulting employees set out
                                                                  in Article 4(1 ); those procedures must be submitted to
Whereas the provisions of this Directive form an indis­           the general meeting called to approve the formation of
                                                                  the EA.
sociable supplement to those of Regulation (EEC) No
. . ./92 [on the Statute for a European association] ;
whereas it is therefore necessary to ensure that the two
sets of provisions are applied concomitantly,
                                                                  3 . Where in the circumstances described in paragraph
                                                                  1 no agreement can be reached, the representatives of
HAS ADOPTED THIS DIRECTIVE :                                      the employees of the founder entities may make a writ­
                                                                  ten statement setting out why in their opinion the for­
                                                                  mation of the EA is contrary to the employees' interests
                         Article 1                                and what measures should be taken with respect to the
                                                                  employees .
This Directive coordinates the laws, regulations and
administrative provisions of the Member States con­
cerning the involvement of employees in the EA.
                                                                  4.   The executive committees of the founder entities
                                                                  shall draw up for submission to the general meeting
This Directive is an essential supplement to Regulation
                                                                  called to approve the formation of the EA a report to
(EEC) No . . ./92 [on the Statute for a European asso­            which is attached either :
ciation ].
No EA may be registered until a participation model               — the text of the agreement referred to in paragraph 1 ,
                                                                       or
or, in the absence thereof, an information and consul­
tation system has been chosen in accordance with the
provisions of this Directive .                                    — the statement by the employees' representatives
                                                                       referred to in paragraph 3 .
                         TITLE I
                                                                  5 . The general meeting called to approve the forma­
                       Participation                              tion of the EA shall ratify the information and consul­
                                                                  tation arrangements embodied in the agreement
                         Article 2                                referred to in paragraph 1 , or, where no agreement has
                                                                  been reached, shall decide on the arrangements which
The laws, regulations and administrative provisions of            are to apply to the EA in the light of the report and of
a Member State governing the participation of employ­             the statement referred to in paragraphs 3 and 4.
ees in the supervisory or administrative boards of
national companies may be made applicable to an EA
whose registered office is in its territory .
                                                                  6 . The arrangements chosen may subsequently be
                                                                  replaced by other arrangements agreed between the
Where such provisions are not applied the Member
                                                                  EA's executive committee and the representatives of
State shall take the necessary measures to ensure at
                                                                  the employees of the EA. The agreement must be sub­
least that the employees of the EA are informed and
consulted in accordance with Articles 3 , 4 and 5 .
                                                                  mitted to the general meeting for approval .
                         TITLE II                                 7 . The procedure laid down in this Article shall apply
                                                                  in the event of conversion pursuant to Article 3 (2) of
        Information and consultation arrangements
                                                                  the Regulation ( EEC) .../.. [on the Statute for a Euro­
                                                                  pean association].
                         Article 3
 1.   The executive committees of the founder entities            8.   In the event of the registered office of a EA being
and the representatives of the employees of those enti­           transferred to another Member State, the information
ties provided for by the laws and practices of the Mem­           and consultation arrangements in existence before the
ber States shall agree arrangements for informing and             transfer may be altered only in accordance with the
consulting the employees of the EA. The agreement                 procedure laid down in this Article . The parties to the
must be concluded in writing before the EA is regis­              negotiations shall be the executive committee of the
tered .                                                           EA and the representatives of the employees of the EA.
 ---pagebreak--- No C 99/ 16                          Official Journal of the European Communities                                21.4. 92
                          Article 4                             ties as are necessary to enable them to perform their
                                                                duties properly, in accordance with the laws and prac­
1.   The executive committee of the EA shall inform             tices of the Member States and in compliance with the
and consult in good time the employees of that entity           following principles :
at least in the following areas :                               (a) employees' representatives must be elected in each
                                                                     Member State in which the EA has establishments ;
(a) any proposals which might significantly affect the
     interests of the employees of the EA, without pre­         (b) the number of representatives so elected must as
     judice to the Community provisions concerning                   far as possible be in proportion to the number of
     information and consultation, and in particular                 employees they represent ;
     Directives 75/ 129/ EEC , 77/ 187 / EEC and . . ./
                                                                (c) all employees must be able to participate in the
     EEC [on the establishment of a European Works                   vote irrespective of their length of service or the
     Council];
                                                                     number of hours they work per week ;
(b) any question concerning conditions of employ­               (d) the election must be by secret ballot.
     ment, in particular changes affecting the organ­
     ization of the EA and the introduction of new              2 . The employees' representatives elected in accord­
     working methods or new products and/ or services ;         ance with paragraph 1 may perform their functions
(c) all documents submitted to the EA's general meet­           within the EA irrespective of the rules governing quali­
     ing ;                                                      fication as an employees ' representative in the law of
                                                                the Member State in which the EA has its registered
(d) the operations referred to in Article 30(1 ) of the         office .
     Regulation ( EEC) . . . [on the Statute for a Euro­
     pean association].
                                                                                         TITLE III
2.   The employees of the EA shall be informed and
consulted :                                                                           Final provisions
— within a separate committee representing the                                           Article 6
     employees of the EA, or
                                                                1 . Member States shall bring into force the laws, regu­
— within any other structure agreed between the exec­           lations and administrative provisions necessary to com­
     utive committees of the founder entities and the           ply with this Directive before 1 January 1993 . They
     representatives of the employees of those entities .       shall immediately inform the Commission thereof.
A Member State may restrict this choice in the case of          When Member States adopt these provisions, these
EAs having their registered office in its territory.            shall contain a reference to this Directive or shall be
                                                                accompanied by such reference at the time of their offi­
3.   In an EA with fewer than 50 employees the two              cial publication . The procedure for such reference shall
parties to the negotiations may decide that simplified          be adopted by Member States .
information and consultation arrangements should be
                                                                2.   Member States shall communicate to the Commis­
laid down, subject to compliance with paragraph 1 .
                                                                sion the main provisions of nationl law which they
                                                                adopt in the field covered by this Directive.
                          Article 5
                                                                                          Article 7
 1 . The representatives of the employees of the EA
shall be elected, and shall be provided with such facili­       This Directive is addressed to the Member States .