CELEX: 51994PC0406
Language: en
Date: 1994-09-20
Title: Reexamined proposal for a COUNCIL DIRECTIVE on the establishiment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employess

COMMISSION OF THE EUROPEAN COMVIUNITIES
                                       C0M(94) 406 final
                                      Brussels, 20.09.1994
                                       94/0113 (PRT)
                Reexamined proposal for a
                  COUNCIL DIRECTIVE
    on the establishment of a European Works
    Council or a procedure in Community-scale
   undertakings and Community-scale groups of
  undertakings for the purposes of informing and
                    consulting employees
     (presented by the Commission pursuant to Article 189 C (d)
                          of the EC Treaty)
 ---pagebreak---                             EXPLANATORY MEMORANDUM
On 13 April 1994, the Commission adopted a "Proposal for a Council Directive on the
establishment of European committees or procedures in Community-scale undertakings
and Community-scale groups of undertakings for the purposes of informing and
consulting employees"1.
The Economic and Social Committee delivered its opinion on 1 June 19942.
The European Parliament delivered its opinion at first reading on 4 May 19943.
On 3 June 1994, the Commission adopted an amended proposal under Article 189a (2)
of the EC Treaty, incorporating a number of the amendments proposed by the European
Parliament4.
On 18 July 1994, the Council adopted a common position on the Commission's amended
proposal5.
The European Parliament examined the Council's common position at second reading on
15 September 1994 and approved it subject to 12 proposed amendments.
The Commission has examined the amendments proposed by the European Parliament at
second reading, incorporating a number of them into the present reexamined proposal.
The Commission's position on each of the amendments approved by Parliament at second
reading is as follows.
AMENDMENTS 1 AND 2
These amendments seek to reduce the thresholds indicated in Art. 12(l)(a) and (c) of the
common position, for the number of employees on the payroll of a Community-scale
undertaking or group of undertakings, from 1 000 to 500 and from 150 to 100.
As it pointed out in the course of the first reading in Parliament, the Commission feels
that the scope of the directive must be limited to the largest European undertakings. 1 000
        OJC 135, 18.5.1994, p. 8.
        Not yet published in the Official Journal.
        Not yet published in the Official Journal.
        OJ C 199, 21.7.1994, p. 10
        OJC 244, 31.8.1994, p.37
 ---pagebreak---  employees has always been regarded as the most appropriate yardstick for this new
 approach to the international information and consultation of workers. The Commission
 would, however, point to the terms of Article 15 of the common position, which states
 that the Commission is required to review the application arrangements within a fixed
 period, with special reference to the workforce size thresholds. This will give the
 Commission an opportunity to take a fresh look at this question.
The Commission is willing to accept the European Parliament's amendment regarding the
 second threshold (number of workers employed in at least two different Member States).
AMENDMENT 3 (AND AMENDMENTS 4, l l AND 14)
 Amendment 3 seeks to allow only workers' representatives for the undertakings belonging
to the group to appoint the the workers' representatives on the special negotiating body.
Amendments 4, 11 and 14 are also concerned with the arrangements for setting up the
special negotiating body or the European Works Council, proposing the introduction of
a number of additional rules.
The Commission appreciates the desire of the European Parliament to uphold democratic
principles in setting up these worker-representation bodies. Nonetheless, the Commission
is convinced that the best approach is not to interfere in existing forms and arrangements
for employee representation at national level (which are themselves in conformity with
democratic principles) and to allow them to be used in the procedures imposed by the
directive, if the Member States so wish. This principle, which is the corollary to the
principle of subsidiarity, is reflected in Article 2 (1) (d), according to which "employees'
representatives means the employees' representatives provided for by national law and/or
practice".
Introducing uniform and restrictive rules into the text of the directive would seriously
limit the freedom which it would seem desirable for Member States to enjoy. In addition,
the proposed rule whereby it would be up to each Member State to lay down the criteria
for determining supplementary members is impracticable in that, if adopted, it would lead
to a conflict of laws which would be very difficult to resolve.
The same arguments can be advanced with regard to Parliament's call for account to be
taken of the relative significance of the various employee categories, this constituting a
principle which is completely unknown in much existing national legislation and practice
and which would therefore be difficult to apply in a uniform and across-the-board
manner.
Nonetheless, the Commission can agree to a new recital in the preamble to the
reexamined proposal stating that Member States may, if they so wish, make provision for
the representation of the various employee categories.
 ---pagebreak--- AMENDMENT 5
This amendment seeks to enable employees' representatives from third countries to be on
the special negotiating body, with undertakings and establishments situated in such
countries being regarded for this purpose as situated in a Member State.
The text of the proposed directive as it stands does little or nothing to prevent the
participation of employees' representatives from third countries, either in the special
negotiating body or in a European Works Council or in an information and consultation
procedure. Nonetheless, the directive adopts a voluntarist approach in this regard. This
is perfectly understandable in that it would not be possible to require the direct
application of the directive's rules outside the directive's territorial scope (i.e. the territory
of the eleven Member States to which the directive is addressed). Here too, the
Commission feels that it is up to Member States, if they think it useful and desirable, to
introduce the appropriate compulsory measures to impose on undertakings and groups
whose central management is situated on their territory a wider framework for the
transnational information and consultation of employees than derives from the directive
itself. (The directive has to be restricted to its natural field of application, i.e. the territory
of the eleven Member States concerned.)
AMENDMENT 7
Amendment 7 seeks to reduce to one and a half years the three-year period provided for
in Article 7 (1) of the common position as the period within which the subsidiary
provisions adopted by the Member States in accordance with the annex do not yet apply.
This deadline has emerged gradually in the course of institutional discussions on the
proposal presented by the Commission last April. The proposal then was for a two-year
period; the Council decided to introduce into its common position a three-year deadline,
with no opposition from the Commission. The Commission's initial texts (dating from
 1991), on the other hand, provided for only one year.
The evident point of extending the deadline was to encourage voluntary agreements
between the special negotiating body and the central management. The Commission is
sympathetic to this standpoint, as is illustrated by its changing position over time.
Nonetheless, the Commission realises that extending the deadline has the disadvantage
of delaying the implementation of the information and consultation mechanisms provided
for in the directive in extreme situations of unwillingness to implement.
The Commission therefore agrees to resubmit this question to the Council (on the basis
of a 2-year period) to enable the Council to reexamine its common position in the light
of the stance adopted by the European Parliament at second reading.
 ---pagebreak---  AMENDMENT 8
 Amendment 8 sets out to restrict the facility available to Member States to make special
 arrangements for the central management of undertakings established on their territory
and which pursue directly and essentially the aim of ideological guidance with respect
to information and the expression of opinions to instances where rules in this field
already exist in national law.
The Commission is able to accept this point of view, which has been incorporated into
the reexamined proposal.
AMENDMENT 9
Amendment 9 seeks to give more substance to the measures for the protection of
employees' representatives set out in general terms in Article 10 of the common position.
Special mention is made of the prohibition of any form of discrimination and protection
against dismissal or other sanctions in respect of activities associated with the exercise
of a mandate as an employees' representative.
Although it feels that this type of measure was already covered by the wording of Article
10 of the common position, the Commission is willing to incorporate the required details
into its reexamined proposal.
AMENDMENT 10
This represents a bid by the European Parliament to reduce the period allowed in Article
15 for review of the directive.
The Commission can go along with the 5-year period proposed by Parliament.
 ---pagebreak---                               REEXAMINED PROPOSAL FOR A
                                 COUNCIL DIRECTIVE
                 on the establishment of a European Works Council or
                     a procedure in Community-scale undertakings
            and Community-scale groups of undertakings for the purposes
                         of informing and consulting employees
COMMON POSITION                                AMENDED TEXT
Citations                                      Unchanged
Recitals 1-15                                  Unchanged
Recital 15 a (new)                             Whereas, in accordance with the
                                               principle of subsidiarity, it is for the
                                               Member States to determine who are the
                                               employees' representatives and to make
                                               provision, should they think fit, for
                                               balanced representation of the various
                                               categories of employees
Recitals 16-22                                 Unchanged
Article 1                                      Unchanged
Article 2
1. For the purposes of this Directive:
a)      "Community-scale undertaking"          a)      "Community-scale undertaking"
        means any undertaking with at                  means any undertaking with at
        least 1 000 employees within the               least 1 000 employees within the
        Member States and at least 150                Member States and at least 100
        employees in each of at least two             employees in each of at least two
        Member States;                                Member States;
Point (b)                                      Unchanged
 ---pagebreak---  c)      "Community-scale group          of  c)     "Community-scale       group     of
         undertakings" means a group of             undertakings" means a group of
        undertakings with the following             undertakings with the following
        characteristics:                            characteristics:
-        at least 1 000 employees within    -       at least 1 000 employees within
        the Member States;                          the Member States;
-       at least two group undertakings     -       at least two group undertakings
        in different Member States; and             in different Member States; and
-       at least one group undertaking      -       at least one group undertaking
        with at least 150 employees in              with at least 100 employees in
        one Member State and at least               one Member State and at least
        one other group undertaking with            one other group undertaking with
        at least 159 employees in another           at least 100 employees in another
        Member State;                               Member State;
Points (d) to ûù                            Unchanged
Paragraph 2                                 Unchanged
Articles 3 - 6                              Unchanged
Article 7
1. In order to achieve the objective in      1. In order to achieve the objective in
Article 1 (1), the subsidiary requirements  Article 1(1), the subsidiary requirements
laid down by the legislation of the         laid down by the legislation of the
Member State in which the central           Member State in which the central
management is situated shall apply:         management is situated shall apply:
-       where the central management        -       where the central management
        and the special negotiating body            and the special negotiating body
        so decide, or                               so decide, or
-       where the central management        -       where the central management
        refuses to commence negotiations            refuses to commence negotiations
        within six months of the request            within six months of the request
        referred to in Article 5 (1), or            referred to in Article 5 (1), or
-       where, after three years from the   -       where, after two years from the
        date of this request, they are              date of this request, they are
        unable to conclude an agreement             unable to conclude an agreement
        as laid down in Article 6 and the           as laid down in Article 6 and the
        special negotiating body has not            special negotiating body has not
 ---pagebreak---          taken the decision provided for in          taken the decision provided for in
         Article 5 (5).                              Article 5 (5).
 Paragraph 2                                Unchanged
 Article 8
 Paragraphs 1 and 2                         Unchanged
 3. Each Member State may lay down          3. Each Member State may lay down
 particular provisions for the central      particular provisions for the central
 management of undertakings in its          management of undertakings in its
territory which pursue directly and         territory which pursue directly and
essentially the aim of ideological          essentially the aim of ideological
guidance with respect to information and    guidance with respect to information and
the expression of opinions.                 the expression of opinions, provided that
                                            such provisions already exist in national
                                            law.
Article 9                                   Unchanged
Article 10
Members of special negotiating bodies,      Unchanged
members of European Works Councils
and employees' representatives exercising
their functions under the procedure
referred to in Article 6 (3) shall, in the
exercise of their functions, enjoy the
same protection and guarantees provided
for employees' representatives by the
national legislation and/practice in force
in their country of employment.
No provision made                           Thev      may     be    subject    to no
                                            discrimination bv virtue of their activity
                                            and shall enjoy protection            from
                                            dismissal, apart from in exceptional
                                            circumstances which justify the said
                                            dismissal, and protection from other
                                            sanctions imposed by reason of oral or
                                            written     action    and    interventions
                                            connected with the exercise of their
                                            mandate.
 ---pagebreak--- This shall apply in particular to                   Unchanged
attendance at meetings of special
negotiating bodies or European Works
Councils or any other meetings within
the framework of the agreement referred
to in Article 6 (3), and the payment of
wages for members who are on the staff
of the Community-scale undertaking or
the     Community-scale              group       of
undertakings for the period of absence
necessary for the performance of their
duties.
Articles 1 1 - 1 4                                  Unchanged
Article 15
Not later than           *, the Commission          Not later than            *, the Commission
shall, in consultation with the Member              shall, in consultation with the Member
States and with management and labour               States and with management and labour
at European level, review its operation             at European level, review its operation
and, in particular, examine whether the             and, in particular, examine whether the
workforce size thresholds are appropriate           workforce size thresholds are appropriate
with a view to proposing suitable                   with a view to submitting suitable
amendments to the Council, where                    amendments to Parliament and the
necessary.                                          Council, where necessary.
Article 16                                          Unchanged
Annex                                               Unchanged
* six years after the adoption of this Directive    * five years after the adoption of this Directive
 ---pagebreak---                                                                     BSN 0254-1475
                                                              COM(94) 406 final
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