Article 1 
1. This Directive shall apply to employees’ claims arising from contracts of employment or employment relationships and existing against employers who are in a state of insolvency within the meaning of Article 2(1). 2. Member States may, by way of exception, exclude claims by certain categories of employee from the scope of this Directive, by virtue of the existence of other forms of guarantee if it is established that these offer the persons concerned a degree of protection equivalent to that resulting from this Directive. 3. Where such provision already applies in their national legislation, Member States may continue to exclude from the scope of this Directive: (a) domestic servants employed by a natural person; (b) share-fishermen.
Amendment rationale: CONTEXT OF THE PROPOSAL The EU labour law directives are generally applicable to all sectors of activity and all categories of workers. Nevertheless, seafarers are excluded or can be excluded from the scope of six directives, without any express justification. The directives concerned are the following: Directive 2008/94/EC[1] relating to the protection of employees in the event of the insolvency of their employer (hereafter referred to as ‘the Employer Insolvency Directive’); Directive 2009/38/EC[2] on the establishment of European Works Council (hereafter referred to as the ‘European Works Council Directive’); Directive 2002/14/EC[3] establishing a general framework for informing and consulting employees (hereafter referred to as the ‘Information and Consultation Directive’); Directive 98/59/EC[4] on the approximation of the laws of the Member States relating to collective redundancies (hereafter referred to as the ‘Collective Redundancies Directive’); Directive 2001/23/EC[5] relating to the safeguarding of employees’ rights in the event of transfers of undertakings (hereafter referred to as the ‘Transfer of Undertakings Directive’); Directive 96/71/EC[6] concerning the posting of workers in the framework of the provision of services (hereafter referred to as the ‘Posting of Workers Directive’). Depending on the situation at national level, exclusions could have a negative impact on a number of rights recognised under the Charter of Fundamental Rights of the European Union, in particular the right to information and consultation within the undertaking (Article 27), and the right to fair and just working conditions (Article 31). Most of the Member States have made little or no use of the exclusions. Eight Member States[7] have not excluded seafarers from any of the Directives and eight Member States have made use of only one exclusion. This situation gives rise to a potential situation whereby the same categories of workers are treated differently in the different Member States. Furthermore, as underlined by the Commission previously, the number of EU national seafarers is steadily decreasing and this could be problematic for the future, notably because experience off-shore is essential for certain shore-based jobs. Although this could be the consequence of different factors, the lack of interest in maritime careers may be reinforced by the impression that seafarers are less well protected than other employees[8]. Hence, the current situation does not ensure a level playing field in the European market, since certain companies are exempted from certain obligations, notably in terms of information and consultation, which are mandatory for competing companies based in other Member States. As a consequence, the aim of the proposal is to improve the level of protection of the rights protected under the EU Charter of

|52013PC0798Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on seafarers amending Directives 2008/94/EC, 2009/38/EC, 2002/14/EC, 98/59/EC and 2001/23/EC /* COM/2013/0798 final - 2013/0390 (COD) */EXPLANATORY MEMORANDUM1.           CONTEXT OF THE PROPOSALThe EU labour law directives are generally\r applicable to all sectors of activity and all categories of workers.\r Nevertheless, seafarers are excluded or can be excluded from the scope of six directives,\r without any express justification. The directives concerned are the following:•        Directive 2008/94/EC[1] relating to the protection of\r employees in the event of the insolvency of their employer (hereafter referred\r to as ‘the Employer Insolvency Directive’);•        Directive 2009/38/EC[2] on the establishment of\r European Works Council (hereafter referred to as the ‘European Works Council\r Directive’);•        Directive 2002/14/EC[3] establishing a general\r framework for informing and consulting employees (hereafter referred to as the ‘Information\r and Consultation Directive’);•        Directive 98/59/EC[4] on the approximation of the\r laws of the Member States relating to collective redundancies (hereafter\r referred to as the ‘Collective Redundancies Directive’);•        Directive 2001/23/EC[5] relating to the safeguarding of\r employees’ rights in the event of transfers of undertakings (hereafter referred\r to as the ‘Transfer of Undertakings Directive’);•        Directive 96/71/EC[6] concerning the posting of\r workers in the framework of the provision of services (hereafter referred to as\r the ‘Posting of Workers Directive’).Depending on the situation at national level,\r exclusions could have a negative impact on a number of rights recognised under\r the Charter of Fundamental Rights of the European Union, in particular the\r right to information and consultation within the undertaking (Article 27), and\r the right to fair and just working conditions (Article 31).Most of the Member States have made little or\r no use of the exclusions. Eight Member States[7]\r have not excluded seafarers from any of the Directives and eight Member States\r have made use of only one exclusion. This situation gives rise to a potential\r situation whereby the same categories of workers are treated differently in the\r different Member States.Furthermore, as underlined by the Commission\r previously, the number of EU national seafarers is steadily decreasing and this\r could be problematic for the future, notably because experience off-shore is\r essential for certain shore-based jobs. Although this could be the consequence\r of different factors, the lack of interest in maritime careers may be\r reinforced by the impression that seafarers are less well protected than other\r employees[8].Hence, the current situation does not ensure a\r level playing field in the European market, since certain companies are\r exempted from certain obligations, notably in terms of information and\r consultation, which are mandatory for competing companies based in other Member\r States.As a consequence, the aim of the proposal is to\r improve the level of protection of the rights protected under the EU Charter of\r Fundamental Rights in EU labour law and to ensure a level playing field at EU\r level. Furthermore, it contributes to general policy objectives which are\r enshrined in Article 151 TFEU, namely the promotion of employment, improved\r living and working conditions, proper social protection and dialogue between\r management and labour.1.1.        Consistency with other EU\r policies and horizontal objectivesThis initiative aims at assessing the scope and\r reasons for the exclusion or faculty to exclude seafarers from labour law directives.\r The Commission is committed to ensuring the compatibility of any new\r legislative proposal with the EU Charter of Fundamental Rights and to assess\r the impact of all such proposals on the rights and principles protected under\r the Charter. In the case at stake, suppressing the exclusions would have a\r positive impact on the rights protected under Articles 27 and 31 of the\r Charter.It is also fully in line with the Integrated\r Maritime Policy for the European Union established in 2007 through the\r so-called ‘Blue Book’[9].\r In the ‘Blue Book’ the Commission insisted on its aim ‘to increase the number\r and quality of maritime jobs for European citizens’, stressing in\r particular that:‘Improved staffing policies and working\r conditions (including health and safety), supported by a concerted effort by\r all maritime stakeholders and an efficient regulatory framework taking into\r account its global context, are necessary if Europeans are to be attracted to\r the sector.’The Commission stated that in order to meet the\r objective it would ‘reassess, in close cooperation with social partners, the\r exclusions affecting maritime sectors in EU labour legislation’.The Commission reaffirmed its objective to\r increase the number and quality of jobs in the maritime sector in its\r Communication on ‘Blue Growth’[10]\r which was endorsed by the European Ministers responsible for the Integrated\r Maritime Policy in the Limassol Declaration [11].This proposal is also in line with the EU 2020\r Strategy and its goals, notably in terms of employment. Improving the quality\r of work and working conditions, and in particular reviewing the existing\r legislation and providing for a smarter EU legal framework for employment and health\r and safety at work, constitute key actions within the context of ‘An Agenda for\r new skills and jobs: A European contribution towards full employment’
Revised version (Article 1 ):
1. This Directive shall apply to employees’ claims arising from contracts of employment or employment relationships and existing against employers who are in a state of insolvency within the meaning of Article 2(1). 2. Member States may, by way of exception, exclude claims by certain categories of employee from the scope of this Directive, by virtue of the existence of other forms of guarantee if it is established that these offer the persons concerned a degree of protection equivalent to that resulting from this Directive. 3. Where such provision already applies in their national legislation, Member States may continue to exclude domestic servants employed by a natural person from the scope of this Directive.
Article 2 
1. For the purposes of this Directive, an employer shall be deemed to be in a state of insolvency where a request has been made for the opening of collective proceedings based on insolvency of the employer, as provided for under the laws, regulations and administrative provisions of a Member State, and involving the partial or total divestment of the employer’s assets and the appointment of a liquidator or a person performing a similar task, and the authority which is competent pursuant to the said provisions has: (a) either decided to open the proceedings; or (b) established that the employer’s undertaking or business has been definitively closed down and that the available assets are insufficient to warrant the opening of the proceedings. 2. This Directive is without prejudice to national law as regards the definition of the terms ‘employee’, ‘employer’, ‘pay’, ‘right conferring immediate entitlement’ and ‘right conferring prospective entitlement’. However, the Member States may not exclude from the scope of this Directive: (a) part-time employees within the meaning of Directive 97/81/EC; (b) employees with a fixed-term contract within the meaning of Directive 1999/70/EC; (c) employees with a temporary employment relationship within the meaning of Article 1(2) of Directive 91/383/EEC. 3. Member States may not set a minimum duration for the contract of employment or the employment relationship in order for employees to qualify for claims under this Directive. 4. This Directive does not prevent Member States from extending employee protection to other situations of insolvency, for example where payments have been de facto stopped on a permanent basis, established by proceedings different from those mentioned in paragraph 1 as provided for under national law. Such procedures shall not however create a guarantee obligation for the institutions of the other Member States in the cases referred to in Chapter IV.
Article 3 
Member States shall take the measures necessary to ensure that guarantee institutions guarantee, subject to Article 4, payment of employees’ outstanding claims resulting from contracts of employment or employment relationships, including, where provided for by national law, severance pay on termination of employment relationships. The claims taken over by the guarantee institution shall be the outstanding pay claims relating to a period prior to and/or, as applicable, after a given date determined by the Member States.
Article 4 
1. Member States shall have the option to limit the liability of the guarantee institutions referred to in Article 3. 2. If Member States exercise the option referred to in paragraph 1, they shall specify the length of the period for which outstanding claims are to be met by the guarantee institution. However, this may not be shorter than a period covering the remuneration of the last three months of the employment relationship prior to and/or after the date referred to in the second paragraph of Article 3. Member States may include this minimum period of three months in a reference period with a duration of not less than six months. Member States having a reference period of not less than 18 months may limit the period for which outstanding claims are met by the guarantee institution to eight weeks. In this case, those periods which are most favourable to the employee shall be used for the calculation of the minimum period. 3. Member States may set ceilings on the payments made by the guarantee institution. These ceilings must not fall below a level which is socially compatible with the social objective of this Directive. If Member States exercise this option, they shall inform the Commission of the methods used to set the ceiling.
Article 5 
Member States shall lay down detailed rules for the organisation, financing and operation of the guarantee institutions, complying with the following principles in particular: (a) the assets of the institutions must be independent of the employers’ operating capital and be inaccessible to proceedings for insolvency; (b) employers must contribute to financing, unless it is fully covered by the public authorities; (c) the institutions’ liabilities must not depend on whether or not obligations to contribute to financing have been fulfilled.
Article 6 
Member States may stipulate that Articles 3, 4 and 5 shall not apply to contributions due under national statutory social security schemes or under supplementary occupational or inter-occupational pension schemes outside the national statutory social security schemes.
Article 7 
Member States shall take the measures necessary to ensure that non-payment of compulsory contributions due from the employer, before the onset of his insolvency, to their insurance institutions under national statutory social security schemes does not adversely affect employees’ benefit entitlement in respect of these insurance institutions in so far as the employees’ contributions have been deducted at source from the remuneration paid.
Article 8 
Member States shall ensure that the necessary measures are taken to protect the interests of employees and of persons having already left the employer’s undertaking or business at the date of the onset of the employer’s insolvency in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors’ benefits, under supplementary occupational or inter-occupational pension schemes outside the national statutory social security schemes.
Article 9 
1. If an undertaking with activities in the territories of at least two Member States is in a state of insolvency within the meaning of Article 2(l), the institution responsible for meeting employees’ outstanding claims shall be that in the Member State in whose territory they work or habitually work. 2. The extent of employees’ rights shall be determined by the law governing the competent guarantee institution. 3. Member States shall take the measures necessary to ensure that, in the cases referred to in paragraph 1 of this Article, decisions taken in the context of insolvency proceedings referred to in Article 2(1), which have been requested in another Member State, are taken into account when determining the employer’s state of insolvency within the meaning of this Directive.
Article 10 
1. For the purposes of implementing Article 9, Member States shall make provision for the sharing of relevant information between their competent administrative authorities and/or the guarantee institutions mentioned in the first paragraph of Article 3, making it possible in particular to inform the guarantee institution responsible for meeting the employees’ outstanding claims. 2. Member States shall notify the Commission and the other Member States of the contact details of their competent administrative authorities and/or guarantee institutions. The Commission shall make that information publicly accessible.
Article 11 
This Directive shall not affect the option of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees. Implementation of this Directive shall not under any circumstances be sufficient grounds for a regression in relation to the current situation in the Member States and in relation to the general level of protection of employees in the area covered by it.
Article 12 
This Directive shall not affect the option of Member States: (a) to take the measures necessary to avoid abuses; (b) to refuse or reduce the liability referred to in the first paragraph of Article 3 or the guarantee obligation referred to in Article 7 if it appears that fulfilment of the obligation is unjustifiable because of the existence of special links between the employee and the employer and of common interests resulting in collusion between them; (c) to refuse or reduce the liability referred to in the first paragraph of Article 3 or the guarantee obligation referred to in Article 7 in cases where the employee, on his or her own or together with his or her close relatives, was the owner of an essential part of the employer’s undertaking or business and had a considerable influence on its activities.
Article 13 
Member States shall notify the Commission and the other Member States of the types of national insolvency proceedings falling within the scope of this Directive, and of any amendments relating thereto. The Commission shall publish these communications in the Official Journal of the European Union .
Article 14 
Member States shall communicate to the Commission the text of the laws, regulations and administrative provisions which they adopt in the field covered by this Directive.
Article 15 
By 8 October 2010 at the latest, the Commission shall submit to the European Parliament and to the Council a report on the implementation and application in the Member States of Articles 1 to 4, 9 and 10, Article 11, second paragraph, Article 12, point (c), and Articles 13 and 14.
Article 16 
Directive 80/987/EEC, as amended by the acts listed in Annex I, is repealed, without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the Directives set out in Annex I, Part C. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.
Article 17 
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union .
Article 18 
This Directive is addressed to the Member States.