Council Directive 98/50/EC of 29 June 1998 amending Directive 77/187/EEC on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses

COUNCIL DIRECTIVE 98/50/EC of 29 June 1998 amending Directive 77/187/EEC on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses
THE COUNCIL OF THE EUROPEAN UNION
,
Having regard to the Treaty establishing the European Community, and in particular Article 100 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Having regard to the opinion of the Committee of the Regions (4),
(1) Whereas the Community Charter of the fundamental social rights of workers adopted on 9 December 1989 ('Social Charter`) states, in points 7, 17 and 18 in particular 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 and those regarding bankruptcies. 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 connection with restructuring operations in undertakings or in cases of mergers having an impact on the employment of workers`;
(2) Whereas Directive 77/187/EEC (5) promotes the harmonisation of the relevant national laws ensuring the safeguarding of the rights of employees and requiring transferors and transferees to inform and consult employees' representatives in good time;
(3) Whereas the purpose of this Directive is to amend Directive 77/187/EEC in the light of the impact of the internal market, the legislative tendencies of the Member States with regard to the rescue of undertakings in economic difficulties, the case-law of the Court of Justice of the European Communities. Council Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies (6) and the legislation already in force in most Member States;
(4) Whereas considerations of legal security and transparency require that the legal concept of transfer be clarified in the light of the case-law of the Court of Justice; whereas such clarification does not alter the scope of Directive 77/187/EEC as interpreted by the Court of Justice;
(5) Whereas those considerations also require an express provision, in the light of the case-law of the Court of Justice, that Directive 77/187/EEC should apply to private and public undertakings carrying out economic activities, whether or not they operate for gain;
(6) Whereas it is necessary to clarify the concept of 'employee` in the light of the case-law of the Court of Justice;
(7) Whereas, with a view to ensuring the survival of insolvent undertakings, Member States should be expressly allowed not to apply Articles 3 and 4 of Directive 77/187/EEC to transfers effected in the framework of liquidation proceedings, and certain derogations from that Directive's general provisions should be permitted in the case of transfers effected in the context of insolvency proceedings;
(8) Whereas such derogations should also be allowed for one Member State which has special procedures to promote the survival of companies declared to be in a state of economic crisis;
(9) Whereas the circumstances in which the function and status of employee representatives are to be preserved should be clarified;
(10) Whereas, in order to ensure equal treatment for similar situations, it is necessary to ensure that the information and consultation requirements laid down in Directive 77/187/EEC are complied with irrespective of whether the decision leading to the transfer is taken by the employer or by an undertaking controlling the employer;
(11) Whereas it is appropriate to clarify that, when Member States adopt measures to ensure that the transferee is informed of all the rights and obligations to be transferred, failure to provide that information is not to affect the transfer of the rights and obligations concerned;
(12) Whereas it is necessary to clarify the circumstances in which employees must be informed where there are no employee representatives;
(13) Whereas the Social Charter recognises the importance of the fight against all forms of discrimination, especially based on sex, colour, race, opinion and creed,