Proposal for a COUNCIL DIRECTIVE on the approximation of the laws of the Member States relating to collective redundancies (codified version)
COMMISSION OF THE EUROPEAN COMMUNITIES Brussels, 29. 11. 1996 COM(96) 620 final 96/ 0290 (CNS) Proposal for a COUNCIL DIRECTIVE on the approximation of the laws of the Member States relating to collective redundancies Modified version^ (presented by the Commission) EXPIANATORV MEMORANDUM 1. In the context of a people's Europe, the Commission, attaches great importance to simplifying and clarifying Community law so as to make it clearer and more accessible to the ordinary citizen» thus giving him new opportunities and the chance to make use of the specific rights it gives him. This aim cannot be achieved so long as numerous provisions that have been amended several times, often quite substantially, remain scattered, so that they must be sought partly in the original instrument and partly in later amending ones. Considerable re search work, comparing many different instruments, is thus needed to identify the current rules. For this reason a consolidation of rules that have frequently been amended is also essential if Community law is to be clear and transparent 2. On 1 April 1987 the Commission therefore decided to instruct its staff that all legis lative measures should be consolidated after no more than ten amendments, stressing that this was a minimum requirement and that departments should endeavour to con solidate at even shorter intervals the texts for which they were responsible, to ensure that the Community rules were clear and readily understandable. 3. The Conclusions of the Presidency of the Edinburgh European Council (December 1992) confirmed this, stressing the importance of legislative consolidation as it offers certainty as to the law applicable to a given matter at a given time. It must be undertaken in full compliance with the normal Community legislative pro cedure. Given that no changes of substance may be made to the instruments affected by legis lative consolidation, Parliament, the Council and the Commission have agreed, by an interinstitutional agreement dated 20 December 1994, that an accelerated procedure may be used for the fast-track adoption of codification instruments. 4. The purpose of this proposal (l) for consolidation of Council Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies is to undertake official codification of this type. The new di rective will supersede the various directives incorporated in it (?); their content is fully preserved, and they are brought together with only such formal amendments as are required by the codification exercise itself. 5. This consolidation proposal was drawn up on the basis of a prdiminary consolidation. in all the official languages, of Directive 75/129/EEC and the instruments amending it, carried out by the Office for Official Publications of the European Communities, by means of a data-processing system referred to in the conclusions of the European Council meeting in Edinburgh. Although the articles have been given new numbers, the former number is printed alongside in each case for the reader's convenience; the correlation between the old and new numbers is shown in a table contained in Annex II to the consolidated Directive. (1) Entered in the legislative programme for 1996. (2) See Part A of Annex I. Proposal for a COUNCIL DIRECTIVE -. /. /EC of. - on the approximation of the laws of the Member States relating to collective redundancies 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, Having regard to the opinion of the European Parlia ment (l), Having regard to the opinion of the Economic and So cial Committee (2), 1) Whereas for reasons of clarity and rationality Council Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies (3) should be consolidated; 2) Whereas it is important that greater protection should be afforded to workers in the event of collective redun dancies while taking into account the need for balanced economic and social development within the Community; 3) Whereas, despite increasing convergence, differences still remain between the provisions in force in the Member States concerning the practical arrangements and pro cedures for such redundancies and the measures de signed to alleviate the consequences of redundancy for workers; 4) Whereas these differences can have a direct effect on the functioning of the internal market; 5) Whereas the Council resolution of 21 January 1974 con cerning a social action programme (4) made provision for a Directive on the approximation of Member States' legislation on collective redundancies; 6) Whereas the Community Charter of the Fundamental Social Rights of Workers, adopted at the Regulation Council meeting held in Strasbourg on 9 December 1989 by the Heads of State or Government of eleven Member States, states inter alia in point 7, first paragraph, first sentence, and second paragraph; in point 17, first para graph; and in point 18, third indent: 1. 75/129/EEC 3. 4. (adapted) (adapted) 1. 92/56/EEC () (2) (3) (4) OJ No L 48,22. 2. 1975, p. 29. Directive amended by Directive 92/56/EEC (OJ No L 245,26. 8. 1992, p. 3). OJ No C 13,12. 2. 1974, p. 1. 92/56/EEC 5. 75/129/EEC 2. 92/56/EEC (adapted) (adapted) 92/56/EEC 7. (adapted) '7. The completion of the internal market must lead to an improvement in the living and working condi tions of workers in the European Community (. ). The improvement must cover, where necessary, the development of certain aspects of employment re gulations such as procedures for collective redun dancies and those regarding bankruptcies. (. ) 17. Information, consultation and participation for workers must be developed along appropriate lines, taking account of the practices in force in the vari ous Member States. (. ) 18. Such information, consultation and participation must be implemented in due time, particularly in the following cases: — in cases of collective redundancy procedures; (- -)'; 7) Whereas this approximation must therefore be promoted while the improvement is being maintained within the meaning of Article 117 of the Treaty; 8) Whereas, in order to calculate the number of redun dancies provided for in the definition of collective redun dancies within the meaning of this Directive, other forms of termination of employment contracts on the initiative of the employer should be equated to redundancies, pro vided that there are at least five redundancies; 9) Whereas it should be stipulated that this Directive applies in principle also to collective redundancies result ing where the establishment's activities are terminated as a result of a judicial decision; 10) Whereas the Member States should be given the option of stipulating that workers' representatives may call on experts on grounds of the technical complexity of the matters which are likely to be the subject of the inform ing and consulting; 11) Whereas it is necessary to ensure that employers' obliga tions as regards information, consultation and notifica tion apply independendy of whether the decision on col lective redundancies emanates from the employer or from an undertaking which controls that employer; 12) Whereas Member States should ensure that workers' representatives and/or workers have at their disposal ad ministrative and/or judicial procedures in order to ensure that the obligations laid down in this Directive are ful filled; 13) Whereas this Directive must not affect the obligations of the Member States concerning the deadlines for trans position of the Directives set out in Annex I, Part B, HAS ADOPTED THIS DIRECTIVE: SECTION I Definitions and scope ArticU 1 75/129/EEC 1. (a) For the purposes of this Directive: 'collective redundancies' means dismissals effected by an employer for one or more reasons not related to the individual workers concerned where, according to the choice of the Member States, the number of re dundancies is: — either, over a period of 30 days: (\) at least 10 in establishments normally em ploying more than 20 and less than 100 workers; (2) at least 10 % of the number of workers in establishments normally employing at least 100 but less than 300 workers; (3) at least 30 in establishments normally em ploying 300 workers or more; — or, over a period of 90 days, at least 20, what ever the number of workers normally employed in the establishments in question; (b) Vorkers' representatives' means the workers' repre sentatives provided for by the laws or practices of the Member States. For the purpose of calculating the number of redundancies provided for in the first subparagraph of point (a), ter minations of an employment contract which occur on the employer's initiative for one or more reasons pot related to the individual workers concerned shall be assimilated to redundancies, provided that there are at least five redun dancies. 92/56/EEC - Art 1 (1) (a) Corrigendum, OJ No L 311,28. 10. 1992, p. 40 2. This Directive shall not apply to: 75/129/EEC (a) collective redundancies effeaed under contracts of employment concluded for limited periods of time or for specific tasks except where such redundancies take place prior to the date of expiry or the completion of such contracts; (b) workers employed by public administrative bodies or by establishments governed by public law (or, in Member States where this concept is unknown, by equivalent bodies); (c) the crews of sea-going vessels. SECTION n 92/56/EEC - Art 1 (2) Information and consultation Article 2 1. Where an employer is contemplating collective re dundancies, he shall begin consultations with the workers' representatives in good time with a view to reaching an agreement 2. These consultations shall, at least, cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and of mitigating the conse quences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant Member States may provide that the workers' representa tives may call upon the services of experts in accordance with national legislation and/or practice. To enable workers' representatives to make con 3. structive proposals, the employers shall in good time dur ing the course of the consultations: (a) supply them with all relevant information and (b) in any event notify them in writing of: (i) the reasons for the projected redundancies; (ii) the number of categories of workers to be made redundant; Corrigendum, OJ No L 311, 28. 10. 1992, p. 40 (iii) the number and categories of workers normally Corrigendum, OJ No L 311, 28. 10. 1992, p. 40 employed; (iv) the period over which the projected redundancies are to be effected; (v) the criteria proposed for the selection of the workers to be made redundant in so far as national legislation and/or practice confers the power therefor upon the employer; (vi) the method for calculating any redundancy pay ments other than those arising' out of national legislation and/or practice. The employer shall forward to the competent public auth ority a copy of, at least, the elements of the written com munication which are provided for in the first subpara graph, point (b), subpoints (i) to (v). The obligations laid down in paragraphs 1, 2 and 3 4. shall apply irrespective of whether the decision regarding collective redundancies is being taken by the employer or by an undertaking controlling the employer. In considering alleged breaches of the information, con sultation and notification requirements laid down by this Directive, account shall not be taken of any defence on the part of the employer on the ground that the necessary in formation has not been provided to the employer by the undertaking which took the decision leading to collective redundancies. SECTION m 75/129/EEC Procedure for collective redundancies 92/56/EEC- Art 1(3) 75/129/EEC Article 3 Employers shall notify the competent public author 1. ity in writing of any projected collective redundancies. However, Member States may provide that in the case of planned collective redundancies arising from termination of the establishment's activities as a result of a judicial deci sion, the employer shall be obliged to notify the competent public authority in writing only if the latter so requests. This notification shall contain all relevant information con cerning the projected collective redundancies and the con sultations with workers' representatives provided for in Ar ticle 2, and particularly the reasons for the redundancies, the number of workers to be made redundant, the number of workers normally employed and the period over which the redundancies are to be effected. 2. Employers shall forward to the workers' representa tives a copy of the notification provided for in paragraph 1. The workers' representatives may send any comments they may have to the competent public authority. Article 4 1. Projected collective redundancies notified to the competent public authority shall take effect not earlier than 30 days after the notification referred to in Article 3 (1) without prejudice to any provisions governing individ ual rights with regard to notice of dismissal. Member States may grant the competent public authority the power to reduce the period provided for in the preced ing subparagraph. 2. The period provided for in paragraph 1 shall be used by the competent public authority to seek solutions to the problems raised by the projected collective redun dancies. 3. Where the initial period provided for in paragraph 1 is shorter than 60 days, Member States may grant the competent public authority the power to extend the initial period to 60 days following notification where the prob lems raised by the projected collective redundancies are not likely to be solved within the initial period. Member States may grant the competent public authority wider powers of extension. The employer must be informed of the extension and the grounds for it before expiry of the initial period provided for in paragraph 1. 4. Member States need not apply this Article to collec tive redundancies arising from termination of the establish ment's activities where this is the result of a judicial deci sion. 92/56/EEC - Art 1 (4) SECTION IV Final provisions Article 5 75/129/EEC This Directive shall not affect the right of Member States to apply or to introduce laws, regulations or administrative provisions which are more favourable to workers or to pro mote or to allow the application of collective agreements more favourable to workers. 92/56/EEC - Art 1 (5) Article 6 92/56/EEC - Art 1 (6) Article 5a ArâskA Article 7 Member States shall ensure that judicial and/or administra tive procedures for the enforcement of obligations under this Directive are available to the workers' representatives and/or workers. Article 7 Member States shall communicate to the Commission the texts of the laws, regulations and administrative provisions which they adopt in the field covered by this Directive. 75/129/EEC (adapted) Article 8 Not later than 19 February 1979, Member States shall for ward all relevant information to the Commission to enable it to draw up a report for submission to the Council on the application of this Directive. (adapted) Article 9 1. The Directives listed in Annex I, Part A, are hereby repealed without prejudice to the obligations of the Mem ber States concerning the deadlines for transposition of the said Directives set out in Annex I, Part B. 2. References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II. Article 10 This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities. This Directive is addressed to the Member States. Article 11 Done at Brussels, For the Council The President ANNEX I Part A Repealed Directives (referred to by Article 9) Council Directive 75/129/EEC and its following amendment: Council Directive 92/56/EEC 10 Part B Deadlines for transposition into national law (referred to by Article 9) Directive Deadline for transposition 75/129/EEC (OJ No L 48, 22. 2. 1975, p. 29) 92/56/EEC (OJ No L 245, 26. 8. 1992, p. 3) 19. 2. 1977 24. 6. 1994 11 ANNEX U CORRELATION TABLE Directive 75/129/EEC This Directive Article 1 Article 2 Article 3 Article 4 Article 5 Article 5a Article 6 (1) Article 6 (2) Article 7 Article 1 Article 2 Article 3 Article 4 Article 5 Article 6 Article 7 Article 8 Article 9 Article 10 Article 11 Annex I Annex II 12 ISSN 0254-1475 COM(96) 620 final DOCUMENTS EN 06 04 05 Catalogue number : CB-CO-96-616-EN-C ISBN 92-78-11925-3 Office for Official Publications of the European Communities L-2985 Luxembourg /2>