CELEX: 51992PC0127
Language: en
Date: 1992-03-31
Title: Amended proposal for a COUNCIL DIRECTIVE amending Directive 75/129/EEC on the approximation of the laws of the Member States relating to collective redundancies

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                      COM(92) 127 final
                                                       Brussels, 31 March 1992
                                Amended proposal for a
                                    COUNCIL DIRECTIVE
            amending Directive 75/129/EEC on the approximation of the laws
               of the Member States relating to collective redundancies
                (presented by the Commission pursuant to Article 149(3)
                                   of the EEC Treaty)
Jl'liiiJig
 ---pagebreak---                           EXPLANATORY MEMORANDUM
The European Parliament and the Economic and Social Committee have
delivered opinions on the proposal for a Council Directive amending
Directive 75/129/EEC on the approximation of the laws of the Member
States relating to collective redundancies. The amended proposal which
the Commission is now submitting to the Council under Article 149(3) of
the EEC Treaty takes account of Parliament's amendments approved on 10
March 1992 and the Economic and Social Committee's opinion adopted on 30
January 1992. A number of technical improvements have been added in the
interests of legal certainty and consistency.
Article 1
Paragraph 1
New subparagraph (a)
Parliament was concerned at the fact that employment contracts terminated
for reasons other than redundancy were not covered by this Article. This
concern appears to be well founded, especially since the procedure for
informing and consulting workers' representatives is geared specifically
to avoiding or reducing redundancies, with the result that alternative
ways of ending or suspending the employment relationship frequently have
to be negotiated with workers and their representatives (voluntary
resignation, early retirement, etc.).
The Directive covers not only "dismissals" in the legal sense of the term
but also job losses in other circumstances (as indicated by the use of
the term "redundancy" in the English version).
It is proposed that Article 1(1)(a) be amended in order to clarify what
is meant by collective redundancy, in line with the above reasoning.
                                                                          %
 ---pagebreak--- Article 2
In the light of Parliament's opinion, the Commission is in favour of
introducing two amendments to this provision, one aimed at enabling
workers' representatives to call on the assistance of technical experts
during consultations and the other designed to incorporate, as a minimum
requirement in terms of information and consultation, a reference to
social measures to facilitate the rehabilitation, redeployment, and
social and occupational reintegration of workers to be made redundant.
                                                                         2
 ---pagebreak--- Amended proposal for a Council Directive amending Directive 75/129/EEC on
the approximation of the laws of the Member States relating to collective
redundancies(*)(2).
            ORIGINAL TEXT                       PROPOSED AMENDMENTS
Proposal for a Council Directive         Amended proposal for a Council
amending Directive 75/129/EEC on the     Directive amending Directive
approximation of the laws of the         75/129/EEC on the approximation
Member States relating to collective     of the laws of the Member States
redundanc ies                            relating to collective
                                         redundancies
The Council of the European              The Council of the European
Communities,                             Communities,
Having regard to the Treaty              Unchanged
establishing the European Economic
Community, and in particular Article
100 thereof,
Having regard to the proposal from       Unchanged
the Commission^),
Having regard to the opinion of the      Unchanged
European Par1iament( 2 ),
Having regard to the opinion of the      Unchanged
Economic and Social Committee^),
Whereas the Community Charter of the     Unchanged
Fundamental Social Rights of Workers
states in paragraph 7 that "the
completion of the internal market
must lead to an improvement in the
living and working conditions of
workers in the European Community...
The improvement must cover, where
necessary, the development of
certain aspects of employment
regulations such as procedures for
collective redundancies...";
(1) OJ.C - /90,
(2) - The left-hand column contains the text of the existing Directive
    (75/129/EEC) combined with the proposal for a Directive amending it
    (COM(91) 292 final). The proposed amendments are underlined.
    - The right-hand column contains the amendments (underlined) now
    proposed by the Commission.
(1)
(2)
(3)
                                                                          U
 ---pagebreak--- Whereas paragraphs 17 and 18 also    Unchanged
state that "information,
consultation and participation for
workers must be developed along
appropriate lines, taking account of
the practices in force in the
various Member States... Such
information, consultation and
participation must be implemented in
due time, particularly ... in cases
of collective redundancy
procedures...";
Whereas Council Directive 75/129/EEC Unchanged
(4) promoted the harmonization of
the relevant national laws by
requiring employers who are
contemplating collective
redundancies to inform and consult
workers' representatives with a
view to reaching an agreement and
to notify the competent public
authorities;
                                     Whereas employers must comply
                                     with the obligations arising
                                     from the Directive when the
                                     stipulated quantitative
                                     thresholds are reached, whether
                                     as a result of redundancy or in
                                     the event of job reductions
                                     requiring the undertaking to
                                     terminate employment contracts
                                     in other ways.
Whereas, as the establishment of     Unchanged
the internal market is resulting in
a growing concentration of
undertakings across national
frontiers, the decisions leading to
collective redundancies may be
taken by an undertaking other than
the employer;
(4)
                                                                     S
 ---pagebreak--- Initial Commission proposal          Amended proposal
Whereas Directive 75/129/EEC should  Unchanged
therefore be revised so as to ensure
that the existing information,
consultation and notification
requirements are complied with
irrespective of whether the decision
leading to collective redundancies
is taken by the employer, by the
controlling undertaking or by the
central administration of an
undertaking of which the employer is
part;
Whereas, with a view to ensuring     Unchanged
that this Directive has the desired
effect, account should not be taken
of any defence on the ground that
the employer was not provided in
time with the relevant information
by the controlling undertaking which
takes the decision leading to
collective redundancies;
Whereas the information and          Unchanged
consultation rights of workers laid
down by Directive 75/129/EEC should
also apply to crews of sea-going
vessels unless they benefit from
equivalent protection, and to
collective redundancies effected
where an establishment's activities
are terminated as a result of a
judicial decision;
                                     Whereas, in view of the
                                     technical complexity of the
                                     matters in respect of which
                                     workers' representatives are to
                                     be informed and consulted, they
                                     should have the right to call on
                                     the assistance of experts.
                                     Whereas it is desirable that
                                     workers' representatives should
                                     also be informed and consulted
                                     on social measures to facilitate
                                     the rehabilitation and
                                     redeployment of workers to be
                                     made redundant.
                                                                      £
 ---pagebreak--- Initial Commission proposal          Amended proposal
Whereas a number of clarifications   Unchanged
and amendments are required in
respect of the timing and objectives
of consultations and the nature of
the information to be supplied to
workers' representatives and to the
public authorities, reflecting,
inter alia, the corresponding
provisions of Council Directive
77/187/EEc(5> and ILO Convention
158 and Recommendation 166;
Whereas, in order to allow for more  Unchanged
flexibility with respect to small
undertakings, Member States need not
provide for workers' representatives
in establishments employing less
than 50 workers;
Whereas it is necessary to provide   Unchanged
for appropriate measures to ensure
the enforcement of obligations laid
down by this Directive and in
particular for judicial procedures
to render null and void collective
redundancies effected without
compliance with the above-mentioned
obligations;
Whereas Directive 75/129/EEC should  Unchanged
be amended accordingly,
HAS ADOPTED THIS DIRECTIVE
(5)
                                                      1-
 ---pagebreak---               SECTION I
        Definitions and scope
              Article 1
1. For the purposes of this          Unchanged
   Directive:
(a), 'collective redundancies' means 'collective redundancies' means
     dismissals effected by an       all instances in which
     employer for one or more        employment contracts are
     reasons not related to the      terminated on the employer's
     individual workers concerned,   initiative for one or more
     where, according to the choice  reasons not related to the
     of the Member States, the       individual workers concerned
     number of redundancies is:      where, according to the choice
                                     of the Member States, the number
                                     of such instances is:
    either, over a period of 30
    days,
    at least 10 in establishments    Unchanged
    normally employing more than 20
    and less than 100 workers,
    at least 10% of the number of
    workers in establishments
    normally employing at least 100
    but less than 300 workers,
    at least 30 in establishments
    normally employing 300 workers
    or more.
   or, over a period of 90 days, at
   least 20, whatever the number of
   workers normally employed in the
   establishments in question.
(b) 'workers' representatives* means Unchanged
    the workers' representatives
    provided for by the laws or
    practices of the Member States.
(c) 'employer' means any natural or  Unchanged
    legal person who has an
    employment relationship with the
    worker.
                                                                      1
 ---pagebreak--- 2. This Directive shall not apply    Unchanged
to:
(a) collective redundancies effected
under contracts of employment
concluded for limited periods of
time or for specific tasks, except
where such redundancies take place
prior to the date of expiry or the
completion of such contracts;
(b) workers employed by public
administrative bodies or by
establishments governed by public
law (or, in Member States where this
concept is unknown, by equivalent
bodies);
(c) the crews of sea-going vessels,
inasmuch as the special regime
covering them provides protection
equivalent to that resulting from
this Directive.
3. Member States need not apply
Article 4 to collective redundancies
resulting from the termination of an
establishment's activities where
that is the result of a judicial
decision.
             SECTION II
    Information and consultation
              Article 2
1. Where an employer is              Unchanged
contemplating collective
redundancies, he shall begin
consultations with the workers'
representatives in good time with a
view to reaching an agreement.
                                               3
 ---pagebreak--- 2. These consultations shall, at     2. These consultations shall, at
least, cover ways and means of       least, cover ways and means of
avoiding collective redundancies or  avoiding collective redundancies
minimizing the number of workers     or minimizing the number of
affected, and mitigating the         workes affected, and mitigating
consequences.                        the consequences. Workers'
                                     representatives may call on the
                                     assistance of technical experts.
                                               Article 2(3)
3. To enable the workers'            3. To enable the workers'
   representatives to make              representatives to make
   constructive proposals the           constructive proposals the
   employer shall supply them in        employer shall, in good time,
   good time with all relevant          during the consultations:
   information and shall in any
   event give in writing the reasons    a) supply them with all
   for the projected redundancies,      relevant information and
   the number of workers normally       b) in any event give in
   emp1oyed, the employer's             writing:
   proposals with regard to the
   number and categories of workers  - the reasons for the projected
   to be made redundant, the         redundancies,
   criteria proposed for the         - the number and categories of
   selection of the workers to be    workers to be made redundant,
   made redundant and the            - the number and categories of
   calculation of any redundancy     workers normally employed,
   payments, and the period over     -the criteria proposed for the
   which the projected redundancies  selection of the workers to be
   are to be effected.               made redundant
                                      - the period over which the
   The employer shall forward to the projected redundancies are to be
   competent public authority a copy effected,
   of all the written communications - the method of calculating any
   referred to in the preceding      redundancy payments,
   subparaph.                        - accompanying social measures
                                     geared, inter alia, to assisting
                                     the rehabilitation, redeployment
                                     and social and vocational
                                     reintegration of the workers to
                                     be made redundant.
                                     The employer shall forward to
                                     the competent public authority a
                                     copy of all the written
                                     communications referred to in
                                     the preceding subparagraph.
                                                                      j<o
 ---pagebreak---                                      Unchanged
4. The obligations laid down in
   paragraphs 1, 2, 3 and 5 shall
   apply irrespective of whether the
   decision regarding collective
   redundancies is being taken by
   the employer or by an undertaking
   controlling the employer.
   In considering alleged breaches
   of the information, consultation
   and notification requirements
   laid down by this Directive,
   account shall not be taken of any
   defence on the grounds that the
   necessary information has not
   been provided by the undertaking
   which took the decision leading
   to collective redundancies.
5. For the purposes of               Unchanged
   implementation of this Directive,
   Member States need not provide
   for workers' representatives in
   respect of establishments
   normally employing less than 50
   workers. In such cases, Member
   States shall ensure that
   employers are obliged to supply
   in good time to the workers
   affected by the projected
   collective redundancies the same
   information as is required to be
   given to workers' representatives
   under paragraph 3.
                                               A
 ---pagebreak---               SECTION III
      Procedure for collective
             redundancies
               Article 3
1. Employers shall notify the        Unchanged
   competent public authority in
   writing of any projected
   collective redundancies.
This notification shall contain all
relevant information concerning the
projected collective redundancies
and the consultations with workers'
representatives provided for in
Article 2, and particularly the
reasons for the redundancies, the
number of workers to be made
redundant, the number of workers
normally employed and the period
over which the redundancies are to
be effected.
2. Employers shall forward to the    Unchanged
   workers' representatives a copy
   of the notification provided for
   in paragraph 1.
  The workers' representatives may
  send any comments they may have to
  the competent public authority.
                                               4%
 ---pagebreak---               Article 4
1. Projected collective redundancies Unchanged
   notified to the competent public
   authority shall take effect not
   earlier than 30 days after the
   notification referred to in
   Article 3(1) without prejudice to
   any provisions governing
   individual rights with regard to
   notice of dismissal.
   Member States may grant the
   competent public authority the
   power to reduce the period
   provided for in the preceding
   subparagraph.
2. The period provided for in        Unchanged
   paragraph 1 shall be used by the
   competent public authority to
   seek solutions to the problems
   raised by the projected
   collective redundancies.
3. Where the initial period provided Unchanged
   for in paragraph 1 is shorter
   than 60 days, Member States may
   grant the competent public
   authority the power to extend the
   initial period to 60 days
   following notification where the
   problems raised by the projected
   collective redundancies are not
   likely to be solved within the
   initial period.
   Member States may grant the
   competent public authority wider
   powers of extension.
   The employer must be informed of
   the extension and the grounds for
   it before expiry of the initial
   period provided for in paragraph
   1.
                                               m
 ---pagebreak---              SECTION IV
          Final provisions
              Article 5
This Directive shall not affect the  Unchanged
right of Member States to apply or
introduce laws, regulations or
administrative provisions which are
more favourable to workers or to
promote or allow the application of
collective agreements more
favourable to workers.
             Article 5a
Member States shall ensure that      Unchanged
judicial procedures exist for the
enforcement of obligations under
this Directive at the suit of the
workers' representatives and workers
and in particular procedures
rendering null and void the
collective redundancies concerned,
notwithstanding the availability of
recourse to other procedures.
              Article 6              Unchanged
   Member States shall bring into
   force the laws, regulations and
   administrative provisions
   necessary to comply with this
   Directive by 31 December 1992, or
   shall ensure that the social
   partners establish the necessary
   provisions through agreement,
   subject to the obligation on
   Member States to take all the
   necessary measures to guarantee
   compliance at all times with the
   requirements of this Directive.
                                               W
 ---pagebreak--- 2. Member States shall communicate   Unchanged
   to the Commission the texts of
   the laws, regulations and
   administrative provisions which
   they adopt in the field covered
   by this Directive.
  When Member States adopt the       Unchanged
  provisions referred to in
  paragraph 1, 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.
3. Member States shall immediately   Unchanged
   inform the Commission of the
   measures adopted to comply with
   this Directive.
              Article 7
Within two years following expiry of Unchanged
the two-year period laid down in
Article 6, Member States shall
forward all relevant information to
the Commission to enable it to draw
up a report for submission to the
Council on the application of this
Directive.
              Article 8
This Directive is addressed to the   Unchanged
Member States.
                                               tf
 ---pagebreak---  ---pagebreak---                                                                      ISSN 0254-1475
                                                              COM(92) 127 final
                                                      DOCUMENTS
EN                                                                         04 06
                                 Catalogue number: CB-CO-92-139-EN-C
                                                             ISBN 92-77-42450-8
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