CELEX: 51991PC0273(06)
Language: en
Date: 1992-03-05
Title: Proposal for a COUNCIL DIRECTIVE supplementing the Statute for a European mutual society with regard to the involvement of employees

21.4. 92                                  Official Journal of the European Communities                               No C 99 / 57
             Proposal for a Council Directive supplementing the Statute for a European mutual society with
                                               regard to the involvement of employees
                                                            (92/C 99/06)
                                                   COM(91) 2 73final — SYN 391
                                          (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 transfer of undertakings,
thereof,                                                                   businesses or parts of businesses (4), and
Having regard to the proposal from the Commission,                    — Council Directive .../... / EEC of ... on the
                                                                           establishment of a European works council in
In cooperation with the European Parliament,
                                                                           Community-scale undertakings or groups of under­
                                                                           takings for the purposes of informing and consult­
                                                                           ing employees (5) ;
Having regard to the opinion of the Economic and
Social Committee,
                                                                      Whereas appropriate provisions must be adopted to
Whereas in order to attain the objectives set out in                  ensure that the employees of MEs are properly
Article 8a of the Treaty, Regulation (EEC) No .../... (')             informed and consulted where decisions likely to affect
establishes a statute for a European mutual society                   their interests are taken in a Member State other than
( ME);                                                                that in which they are employed ;
Whereas there are in the Member States laws, regula­
tions and administrative provisions concerning the
provision of information to and the consultation of the
                                                                      Whereas the laws, regulations and administrative provi­
                                                                      sions of the Member States governing the participation
employees of undertakings, whatever their legal form ;
whereas in some Member States, there are provisions
                                                                      of employees in national mutuals may be made appli­
                                                                      cable to MEs ;
concerning the participation of employees in mutuals ;
Whereas it is desirable to coordinate information and
consultation arrangements at Community level in order                 Whereas an ME may not be registered until a participa­
to develop dialogue between the management boards                     tion model or, in the absence thereof, an employee
and administrative boards of MEs and employees ;                      information and consultation system and in particular
                                                                      a separate committee has been chosen ;
Whereas the realization of the internal market is giving
rise to a process of concentration and conversion of
mutuals ; whereas in order to ensure a harmonious                     Whereas, however, where no agreement is reached prior
development of economic activities, MEs carrying on                   to registration of the ME, the founder entities should
cross-border activities must adopt, if appropriate, a par­            propose to the general meeting called to approve the
ticipation model, or, failing this, inform and consult                formation of the ME certain requirements with respect
employees on decisions which concern them ;                           to informing and consulting employees ;
Whereas this Directive determines the minimum areas
where there must be information and consultation,                     Whereas the information and consultation committee
without prejudice to the application of the following                 or any other alternative body must be informed and
Directives :                                                          consulted about activities and strategies of the ME cap­
                                                                      able of affecting the employees ' interests ;
— Council Directive 75 / 129/ EEC of 17 February
     1975 on the approximation of the laws of the Mem­
     ber States relating to collective redundancies (2), as
     amended by Directive .../... / EEC (3),                          Whereas in order to ensure the proper functioning of
                                                                      the internal market and avoid any inequality in the
(')  See page 40 of this Official Journal — Proposal.
(2)  OJ No L 48, 22. 2 . 1975, p. 29 .                                (4)  OJ No L 61 , 5 . 3 . 1977, p. 26.
O    COM(91 ) 292 final , 15 . 7 . 1991 .                             (5)  COM(9Q) 581 final .
 ---pagebreak--- No C 99/ 58                           Official Journal of the European Communities                                  21.4. 92
terms of competition, the employees of the ME should             and practices of the Member States shall agree arrange­
be guaranteed equivalent levels of information and               ments for informing and consulting the employees of
consultation ;                                                   the ME. The agreement must be concluded in writing
                                                                 before the ME is registered.
Whereas in order to allow for more flexibility with res­
pect to small MEs, Member States need not provide for
employee representation in MEs employing fewer than              2. Where no such agreement can be reached, the
50 workers ;                                                     representatives of the employees of the founder entities
                                                                 may make a written statement setting out why, in their
                                                                 opinion, the formation of the ME is contrary to the
Whereas the provisions of this Directive form an indis­          employees ' interests and what measures should be
sociable supplement to those of Regulation (EEC) No              taken with respect to the employees .
           / EEC [on the statute for a European mutual
society] ; whereas it is therefore necessary to ensure that
the two sets of provisions are applied concomitantly,            3 . The management boards or administrative boards
                                                                 of the founder entities shall draw up for submission to
HAS ADOPTED THIS DIRECTIVE :
                                                                 the general meeting called to approve the formation of
                                                                 the ME a report to which is attached either
                           Article 1                             — the text of the agreement referred to in paragraph 1 ,
                                                                      or
This Directive coordinates the laws, regulations and             — the statement by the employees ' representatives
administrative provisions of the Member States con­                   referred to in paragraph 2.
cerning the involvement of employees in the ME.
This Directive is an essential supplement to Regulation          4. The general meeting called to approve the forma­
( EEC) No .../... [on the statute for a European                 tion of the ME shall ratify the information and consul­
mutual society].                                                 tation arrangements embodied in the agreement
                                                                 referred to in paragraph 1 , or where no agreement has
 No ME may be registered until a participation model             been reached, shall decide on the arrangements which
 or, in the absence thereof, an information and consul­          are to apply to the ME in the light of the report and of
 tation system has been chosen in accordance with the            the statement referred to in paragraphs 2 and 3 .
 provisions of this Directive .
                                                                 5 . The arrangements chosen may subsequently be
                                                                 replaced by other arrangements agreed between the
                           TITLE I
                                                                 ME's management board or administrative board and
                                                                 the representatives of the employees of the ME. The
                        Participation                            agreement must be submitted to the general meeting for
                                                                 approval .
                           Article 2
                                                                 6. The procedure laid down in this Article shall apply
 The laws, regulations and administrative provisions of
                                                                 in the event of conversion pursuant to Article 2 (2) of
 a Member State governing the participation of employ­
                                                                 the Regulation (EEC) .../... [on the statute for a
 ees in the supervisory or administrative boards of
 national mutual societies may be made applicable to a            European mutual society].
 ME whose registered office is in its territory.
                                                                 7.    In the event of the registered office of an ME being
 Where such provisions are not applied the Member                transferred to another Member State, the information
 State shall take the necessary measures to ensure at            and consultation arrangements in existence before the
 least that the employees of the ME are informed and             transfer may be altered only in accordance with the
 consulted in accordance with Articles 3 , 4 and 5 .             procedure laid down in this Article. The parties to the
                                                                  negotiations shall be the management board or the
                                                                  administrative board of the ME and the representatives
                           TITLE II                               of the employees of the ME.
         Information and consultation arrangements
                                                                                            Article 4
                           Article 3
  1 . The management boards or administrative boards              1 . The management board or the administrative board
 of the founder entities and the representatives of the           of the ME shall inform and consult in good time the
 employees of those entities provided for by the laws             employees of that entity at least in the following areas :
 ---pagebreak--- 21.4. 92                               Official Journal of the European Communities                              No C 99/ 59
(a) any proposals which might significantly affect the            tices of the Member States and in compliance with the
     interests of the employees of the ME, without pre­           following principles :
    judice to the Community provisions concerning                 (a) employees' representatives must be elected in each
     information and consultation, and in particular                   Member State in which the ME has establishments
     Directives     75 / 129/ EEC,     77/ 187/ EEC     and            or subsidiaries ;
               / EEC [on the establishment of a Euro­
     pean works council] ;                                        (b) the number of representatives so elected must as
                                                                       far as possible be in proportion to the number of
(b) any question concerning conditions of employ­                      employees they represent ;
     ment, in particular changes affecting the organ­
     ization of the ME and the introduction of new                (c) all employees must be able to participate in the
     working methods or new products and/or services ;                 vote irrespective of their length of service or the
                                                                       number of hours they work per week ;
(c) all documents submitted to the ME's general meet­             (d) the election must be by secret ballot.
     ing ;
                                                                  2. The employees' representatives elected in accord­
(d) the operations referred to in Article 38 ( 1 ) of the         ance with paragraph 1 may perform their functions
     Regulation (EEC)                [on the statute for a        within the ME irrespective of the rules governing quali­
     European mutual society].                                    fication as an employees ' representative in the law of
                                                                  the Member State in which the ME has its registered
2 . The employees of the ME shall be informed and                 office .
consulted :
— within a separate committee representing the                                              TITLE III
     employees of the ME, or
                                                                                         Final provisions
— within any other structure agreed between the man­
     agement boards or administrative boards of the                                          Article 6
     founder entities and the representatives of the
     employees of those entities .                                1 . Member States shall bring into force the laws, regu­
                                                                  lations and administrative provisions necessary to com­
A Member State may restrict this choice in the case of            ply with this Directive before 1 January 1993 . They
MEs having their registered office in its territory.              shall immediately inform the Commission thereof.
                                                                  When Member States adopt these provisions, these
3 . In a ME with fewer than 50 employees the two par­             shall contain a reference to this Directive or shall be
ties to the negotiations may decide that simplified               accompanied by such reference at the time of their offi­
information and consultation arrangements should be               cial publication . The procedure for such reference shall
laid down, subject to compliance with paragraph 1 .               be adopted by Member States.
                                                                  2.   Member States shall communicate to the Commis­
                           Article 5                              sion the main provisions of national law which they
                                                                  adopt in the field covered by this Directive .
1 . The representatives of the employees of the ME
shall be elected, and shall be provided with such facili­                                    Article 7
ties as are necessary to enable them to perform their
duties properly, in accordance with the laws and prac­            This Directive is addressed to the Member States .