Appendix 4
AMENDED PROPOSAL FOR A COUNCIL DIRECTIVEAMENDING DIRECTIVE
77/187/EECON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATESRELATING
TO THE SAFEGUARDING OF EMPLOYEES' RIGHTSIN THE EVENT OF TRANSFERS
OF UNDERTAKINGS, BUSINESSES OR PARTS OF BUSINESSES
(presented by the Commission)
EXPLANATORY MEMORANDUM
The European Parliament, the Economic and Social Committee
and the Committee of the Regions have adopted their respective
opinions on the proposal for a Council Directive 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.
The present amended proposal for a Directive, submitted in
accordance with Article 189A(2) of the EC Treaty, takes into account
the amendments of the European Parliament approved on 16 January
1997, the opinion of the Economic and Social Committee adopted
on 30 March 1995 and the opinion of the Committee of the Regions
adopted on 21 April 1995. Several technical improvements have
been made in the interests of legal certainty and consistency.
TITLE
In connection with the discussion of Article 1(1), second
subparagraph, of the reference proposal for a Directive[5],
which we shall examine below, the European Parliament had already
requested, in its Resolution of 18 January 1996, that the proposal
for a Directive replacing Directive 77/187/EEC be transformed
into a proposal for a Directive amending Directive 77/187/EEC.
The title of the present proposal takes account of the opinion
of the European Parliament on this point. As soon as the amended
proposal has been adopted by the Council, the Commission will
initiate the codification procedure laid down in the Interinstitutional
agreement of 20 December 1994[6]
designed to ensure that Community legislation is clear and is
understood correctly. In the light of the above, the first recital
has therefore been deleted, as requested by Parliament.
ARTICLE 1
Article 1, paragraph 1, of the Commission proposal was analysed
several times in the Council's Working Party on Social Questions
under both the German Presidency (second half of 1994) and the
French Presidency (first half of 1995). These Meetings revealed
certain problems of Comprehension relating to the definition of
the transfer of undertakings as set out in this Article (clarification
of the transfer of only an activity of the undertaking).
The Economic and Social Committee delivered an opinion on
this proposal on 30 March 1995[7],
as did the Committee of the Regions on 21 April 1995[8].
The scope of the Directive (the transfer of only an activity of
an undertaking) has always been the most controversial point.
In particular, the Economic and Social Committee questioned the
ability of a new Article 1, Paragraph 1, to clarify this issue
and proposed a new text. The employees' group tabled an amendment
designed to exclude subcontracting from the scope of the Directive.
This amendment was rejected.
The European Parliament was highly critical of the concept
of the transfer of undertakings, as defined in Article 1, Paragraph
1, of the proposal. The various political groups in the Parliament
took the view that the proposed amendments to Article 1, Paragraph
1, did not improve legal certainty and, on the contrary, introduced
new sources of uncertainty which might prove detrimental to the
rights of workers and the interests of firms. A resolution was
therefore adopted at the plenary sitting of 18 January 1996 with
the unanimous agreement of all the political groups, calling on
the Commission to propose an amended version of Directive 77/187/EEC,
without replacing it by a new text, and to leave Article 1(1),
second subparagraph, unchanged.
In the light of the opinions adopted by the Economic and
Social Committee and the Committee of the Regions, the progress
of discussions in the Council's Working Party on Social Questions,
and Resolution B4-00033/96 of 18 January 1996 adopted unanimously
by the European Parliament, the Commission decided on 7 February
1996[9] to inform Parliament
that it would be willing to accept amendments designed to transform
its proposal for the revision of Council Directive 77/187/EEC
into a Directive amending Directive 77/187/EEC and to delete the
proposed amendment to Article 1(1), second subparagraph, contained
in the initial proposal.
Given that Parliament proposes in its opinion that Article
1(1), second subparagraph, be deleted, and in the light of the
above analysis, the Commission has amended its proposal accordingly
and has deleted the seventh recital, as requested by Parliament.
ARTICLE 3
Paragraph 1, second subparagraph
Parliament calls for joint and several liability of the transferor
and the transferee in respect of obligations which arise from
a contract of employment. The Commission's proposal had already
taken this aspect into account. Nevertheless, in order to make
the wording clearer and more precise, and to avoid false interpretations,
the Commission now proposes that this liability be limited to
the obligations that fall due prior to the date of the transfer.
Paragraph 5 (new)
The main objective of Directive 77/187/EEC, according to
its recitals, is to protect workers in the event of a change of
employer, in particular to ensure that their rights are safeguarded.
Consequently, any amendment which reduces the protection afforded
to certain benefits connected to the transfer rule (as provided
for in Articles 3(4) and 4(3) and (4) of the proposal for undertakings,
businesses or parts of businesses transferred in the context of
certain insolvency proceedings) must be examined with particular
care. Accordingly, it is necessary to bolster the adoption of
measures to prevent the fraudulent use of insolvency proceedings,
as requested by Parliament.
ARTICLE 4
Paragraph 3
The responsibility of the employees' representatives, given
that they may permit changes to the terms and conditions of employment
with the agreement of the employer or his representatives, means
that they must enjoy sufficient independence to be able to carry
out the functions assigned to them (see Article 5 A (new) ).
The Commission proposal now takes account of Parliament's
amendment on this point.
Paragraph 4
The amended proposal takes into account the amendment of
the European Parliament, which adds the terms "referred to
in the agreement" to paragraph 4. By improving the text's
clarity, this will make it easier to understand.
Paragraph 5
The powers given to the judicial authorities to terminate
a contract of employment or an employment relationship may cause
considerable difficulties in the national law of some Member States
which do not provide for such a possibility. The Commission welcomes
Parliament's comment concerning the deletion of this paragraph,
and its proposal removes potential legal obstacles at a non-essential
point in the text.
ARTICLE 6A (NEW)
In view of inter alia, the powers granted in Article
4, paragraph 4, to the employees' representatives, who may, in
certain cases, amend the terms and conditions of employment, it
appears necessary to strengthen their role so that they enjoy
sufficient independence to accomplish their tasks.
This effectively reflects the idea expressed by Parliament
on this point.
ARTICLE 6
Paragraph 1
Technical improvements have been made to the text so that
it is clearer and and more legally precise, and hence easier to
understand: when the transfer of an undertaking, business or part
of a business is planned, the transferor and the transferee are
obliged to inform the representatives of their respective employees
affected by the transfer.
Paragraph 2
This small grammatical change ("when") makes the
wording of the proposal for a Directive more precise.
Paragraph 4
The inclusion of the spirit of the European Parliament amendment
improves the wording of the proposal. Accordingly, any failure
to comply with the Directive's provisions on consultations, which
results from the fact that the undertaking or the natural or legal
person who/which took the transfer desision failed to inform the
employer in due time, cannot be tolerated. Recital No 13 has been
drafted in harmony with this paragraph.
Paragraph 5
Given that the adoptions of minimum rules at European level
on information and consultation in national undertakings could
be planned under the Communication from the Commission on Worker
Information and Consultation[10],
and that such rules could stipulate a minimum threshold concerning
the obligation to provide for employees' representatives, it would
be wise not to make any changes in this area for the time being
and to leave the wording of the existing directive in its current
form, as requested by Parliament.
Article 7A (new)
To ensure that Community law is properly implemented, the
Member States must provide for effective, proportionate and dissuasive
sanctions in the event of failure to comply with the national
provisions adopted under the Directive. Parliament's amendment
adopted in the light of the case-law of the Court of Justice strengthens
the Commission's text. This amendment is in keeping with the Commission's
Medium-Term Social Action Programme 1995-1997[11],
point 11.1.8 of which states that "Member States' authorities
must ensure that Union legislation is fully enforced through inter
alia appropriate systems of control or sanctions, which are
effective in practice and have a deterrent value". In the
same point, the Commission also commits itself to insert in all
future legislation a "standard clause" establishing
an obligation for Member States to impose sanctions which are
effective, proportionate and dissuasive.
Article 7B (new)
A clause has been inserted banning discrimination on the
basis of race, sex, age, handicap, sexual orientation, skin colour,
religion or nationality, which is in line with the Communication
from the Commission on racism, xenophobia and anti-semitism of
13 December 1995[12].
The Commission therefore welcomes the European Parliament's approach
in this area.
Recital No 18 (new) has been drafted in line with this Article.
5
COM(94 300 final, of 8.9.1994, 94/0203(CNS), OJ C 274 of 1.10.1994,
p.10. Back
6
Interinstitutional Agreement of 20.12.1994. Accelerated working
method with a view to the official codification of legislative
texts signed by the Commission of the European Communities, the
European Parliament the Council of the European Union. Back
7
CES 317/95. Back
8
CdR 143/95. Back
9
PV (96) 1279, pages 23 and 24. Back
10
COM (95) 0547. Back
11
COM (95) 134. Back
12
COM (95) 653 final. Back
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