Draft EU employment legislation state of play, January 2018

Author: Mark Carley

This article lists all significant items of employment-related draft EU legislation that are currently in the legislative pipeline, or due to be proposed in the near future. It also shows proposals that have been adopted in the past six months.

Proposals that have become dormant (defined here as not having been discussed in the Council of the European Union, or subject to any other significant movement, for more than two years) are not included. The table also covers negotiations and agreements between EU-level trade union and employers' organisations, based on arts.154 and 155 of the treaty on the Functioning of the European Union (these agreements are implemented either by EU Directives or by the national member organisations of the signatories).

For each proposal, the table provides the following information, as of 1 January 2018:

  • the full title of the proposal;
  • a reference to the issue of the Official Journal (OJ) of the European Union in which the proposal (and any subsequent revised versions) or adopted text was published. Laws appear in the Legislative ("L") series, while other instruments and proposals appear in the Communications ("C") series. Where proposals have not appeared in the OJ, the "COM" number of the document is given, where relevant;
  • where appropriate, or available, the article of the treaty on the Functioning of the European Union on which the proposal is based;
  • the proposal's submission to the Council of the EU and European Parliament (EP);
  • any opinions issued on the proposal by the EP, the Committee of the Regions (CoR) and the European Economic and Social Committee (EESC);
  • the submission of any amended proposal to the Council;
  • Council decisions or debates (these usually occur in the Employment, Social Policy, Health and Consumer Affairs, or EPSCO, Council);
  • any Council-Parliament conciliation proceedings;
  • final adoption (or formal signature in the case of social partner agreements); and
  • any formal consultation of the social partners - the EU-level "cross-industry" partners are the European trade Union Confederation (ETUC), BusinessEurope (private-sector employers), Ueapme (small and medium-sized enterprises) and Ceep (public-services employers).

Proposals that have been adopted in the past six months are identified with an asterisk.

Employment conditions

Subject Legal base Current position

Second-stage consultation of the social partners on possible action addressing the challenges of access to social protection for people in all forms of employment. C (2017) 7773 final.

Art. 154.

On 26 April 2017, the Commission launched a first-stage consultation of the EU-level social partners on the issue of access to social protection and related employment services for workers in "non-standard" employment (that is, not full-time, open-ended employment in a subordinate, bilateral employment relationship) and the self-employed (C (2017) 2610 final). Social protection relates to access to social benefits such as unemployment, sickness, occupational accident/illness, old-age, invalidity and maternity benefits, along with healthcare and long-term care. Employment services include guidance, placement, training and rehabilitation measures.

In the first-stage consultation document, the Commission noted a spread of new forms of employment (such as "gig economy" work) characterised by unconventional work patterns and places of work, or by the irregular provision of work, and based on non-standard contractual arrangements or on self-employed status. The people concerned often do not have full access to social protection and employment services. The Commission identified a number of possible ways of addressing this gap, including: ensuring that all employed people have similar social protection rights for similar work, regardless of their type of contract, form of employment or labour law status; and tying social protection rights to individuals and making them transferable.

In its response to the first-stage consultation, the ETUC broadly welcomed the Commission's ideas and stated its willingness to open negotiations with employers' bodies on the issues raised (while calling for EU legislation if such talks do not occur or lead to an agreement). By contrast, in its response, BusinessEurope argued that changes to EU legislation in this field are not needed or appropriate, and said that it would not consider initiating a dialogue on the subject.

On 20 November, the Commission launched a second-stage consultation on the issue. It sets out three proposed objectives for EU action on access to social protection:

  • coverage - ensuring that everyone in employment or self-employment has formal and effective access to social protection;
  • transferability - preserving social protection rights when workers change job, sector of activity or form of employment, or move to or from self-employment ; and
  • transparency - ensuring access to user-friendly information on rights and obligations to social protection, irrespective of employment situation.

The document outlines various policy options for addressing current gaps in coverage, transferability and transparency. For example, it examines whether coverage for people currently excluded should be mandatory or whether they should be able to opt in voluntarily. The Commission also sets out the possible types of EU action that could be used to achieve its objectives. These could include proposals for:

  • a non-binding Council Recommendation inviting member states to adhere to a common set of "building blocks" for the design of their social protection systems; or
  • a binding Directive requiring Member States, where necessary, to undertake reforms to guarantee the achievement of the coverage, transferability and transparency objectives.

The Commission seeks the social partners' views on the proposed objectives and policy options, and on the type of EU action. It asks the partners whether they are willing to enter into negotiations with a view to concluding a European-level agreement on any of the issues raised. The social partners have until 8 January 2018 to respond.

The Commission says it will take into account the results of this consultation in its further work on the access to social protection initiative, and will suspend this work if the social partners decide to negotiate. Otherwise, the Commission intends to present a proposal in the first half of 2018.

In parallel with the second-stage social partner consultation, the Commission launched a wider public consultation on access to social protection, aimed at collecting the views of other relevant stakeholders, such as public authorities, companies, the self-employed and civil society. This consultation closes on 15 January 2018.

The consultations on access to social protection form part of the Commission's "European Pillar of Social Rights" initiative, aimed at underpinning employment and welfare rights across the EU, which was formally endorsed by the EU institutions on 17 November 2017.

Proposal for a European Parliament and Council Directive on transparent and predictable working conditions in the European Union. COM (2017) 797 final.

Art. 153(1)(b) and (2)(b).

The Written Statement Directive (Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship) requires employers to provide a written statement of certain key terms and conditions of employment to all paid employees with a contract or employment relationship, when employment starts or within two months afterwards. The Commission consulted the social partners on a possible revision of the Directive in April-June 2017 (C (2017) 2611 final) and again in September-November (C (2017) 6121 final). During the second-stage consultation, BusinessEurope offered to negotiate over a European agreement on revision of the Directive but the ETUC declined such talks and called on the Commission to issue a legislative proposal (though the ETUC remained open to reaching a "common position" with employers on the revision, to be communicated to the EU institutions in order to influence debate on the legislative proposal).

On 21 December, the Commission issued a draft Directive on "transparent and predictable working conditions". If adopted, the Directive would repeal and replace the Written Statement Directive. As well as expanding current obligations on employers to provide information on terms and conditions, the proposed Directive would create several substantive new rights for workers. The main provisions of the draft are as follows:

  • The Written Statement Directive applies to paid employees. The new Directive would apply to "workers", defined as persons who for a certain period of time perform services for and under the direction of another person in return for remuneration. This is a broader definition and should encompass more people in non-standard forms of employment (such as domestic, on-demand, intermittent and "platform" workers).
  • Member states may exclude from their national provisions implementing the Written Statement Directive all employees who work less than eight hours a week or whose employment relationship lasts less than one month or is of a casual and/or specific nature. Under the proposed new Directive, they could exclude only workers who have an employment relationship lasting no more than eight hours in a month (and only if a guaranteed amount of paid work is predetermined before the employment starts).
  • Employers currently have two months after the start of employment to provide the required information about key aspects of the employment relationship. The new Directive would oblige them to provide the information on the first day of the relationship at the latest. Employers would be able to provide the information electronically. Employers would also have to notify workers about modifications to relevant employment conditions at the latest on the day they take effect, rather than up to two months afterwards as under the current Directive.
  • Employers would be obliged to provide workers with information about additional aspects of the employment relationship, including probationary periods, training entitlements, overtime arrangements and remuneration, the determination of variable work schedules, and social security.
  • The proposed Directive would apply a general EU-wide maximum duration of six months to probationary periods, though member states could provide for longer probationary periods in cases where this is justified by the nature of the employment or is in the worker's interest.
  • Employers would not be able to prohibit workers from taking up employment with other employers (for example, through "exclusivity clauses"), except where this is justified by legitimate reasons such as the protection of business secrets or the avoidance of conflicts of interest.
  • The proposal seeks to ensure a minimum degree of predictability of work. Where a worker's work schedule is variable and determined by the employer, the worker could be required to work by the employer only: within predetermined reference hours and reference days, established in writing at the start of the employment relationship; and if the worker is given reasonable advance notice by the employer.
  • Workers with at least six months' service with the same employer would be able to request a form of employment with more predictable and secure working conditions, where available. Employers would be required to reply to such requests within a deadline of one to three months (depending on the size of the organisation).
  • The draft stipulates that, where employers are required by law or collective agreements to provide training to workers to carry out the work for which they are employed, such training must be provided without cost to the worker.

The draft Directive also deals with matters such as the role of collective agreements, enforcement, means of redress, and protection for workers claiming their rights.

The draft Directive forms part of the Commission's "European Pillar of Social Rights" initiative, aimed at underpinning employment and welfare rights across the EU, which was formally endorsed by the EU institutions on 17 November 2017.

Proposal for a Council Directive implementing the agreement concluded by the European Community Shipowners' Associations (ECSA) and the European Transport Workers' Federation (ETF) to amend Council Directive 2009/13/EC in accordance with the 2014 amendments to the Maritime Labour Convention 2006, as approved by the International Labour Conference on 11 June 2014. COM (2017) 406 final. Art. 155 (2). The International Labour Organisation's 2006 Maritime Labour Convention sets minimum requirements for seafarers' conditions of employment. In May 2008, the European Community Shipowners' Associations (ECSA) and the European Transport Workers' Federation (ETF) reached an agreement on incorporating the Convention into EU law. The agreement was subsequently implemented by Council Directive 2009/13/EC. In 2014, the ILO amended the Convention, mainly to provide seafarers with greater protection against abandonment by shipowners, and with enhanced compensation in the event of death or disability due to an occupational injury or illness. On 5 December 2016, the ECSA and ETF agreed changes to their 2008 agreement to take account of the amendments to the Convention, and requested that their revised agreement be implemented across the EU by a Council Directive. The Commission issued a proposal for such a Directive on 27 July 2017. The EPSCO Council on 7 December reached a political agreement on the draft Directive, enabling its formal adoption in the near future.

Equality and work-life balance

Subject Legal base Current position

Proposal for a Directive of the European Parliament and of the Council on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures. COM (2012) 614 final.

Art. 157 (3). Co-decision procedure.

Commission issued draft Directive on 14 November 2012. The proposal seeks to ensure a more balanced representation of men and women among the non-executive directors of listed companies. It sets the objective of a 40% presence of the currently under-represented sex among non-executive directors, to be achieved by 2020 (2018 in the cases of state-controlled undertakings). Companies that have a lower share (less than 40%) of the under-represented sex among their non-executive directors would be required to make appointments to those positions on the basis of a comparative analysis of the qualifications of each candidate, applying clear, gender-neutral and unambiguous criteria. Given equal qualification, priority would have to be given to the under-represented sex.

The UK Parliament has objected that the proposal does not comply with the EU subsidiarity principle, as have several other national parliaments. The Irish EU Presidency of the first half of 2013 sought to take forward Council work on the proposal. It reported to EPSCO Council on 20-21 June that significant progress had been made, with all member states in principle in favour of improving gender balance on company boards. However, some prefer national measures while others support EU-wide legislation. The Lithuanian EU Presidency of the second half of 2013 sought progress on the draft Directive, but the EPSCO Council on 9-10 December was told that further work and political reflection will be required before a compromise can be reached. The Greek EU Presidency of the first half of 2014 gave priority to the proposal, but reported to the EPSCO Council on 19-20 June that no agreement had been reached, with opinions continuing to differ sharply on the best way of achieving the proposal's objectives. The Italian EU Presidency of the second half of 2014 tried to take forward the negotiations, but reported in September that at least eight member states, including the UK, still oppose the draft Directive. Because some governments oppose EU legislation that could interfere with existing national arrangements, the Italian Presidency sought consensus over the inclusion of a "flexibility clause" that would enable member states to maintain these arrangements if they meet certain conditions. The Presidency hoped for Council agreement on a general approach before the end of 2014, but it announced at the EPSCO meeting on 11 December that no deal had been reached. The Latvian EU Presidency of the first half of 2015 continued work on the proposal, but without achieving consensus. The Luxembourg Presidency of the second half of 2015 again attempted to reach a deal, but no agreement could be reached at the EPSCO meeting on 7 December. No progress was reported in 2016. The Maltese EU Presidency of the first half of 2017 made it a priority to achieve progress on the proposal. It redrafted the text but reported to the EPSCO Council on 15-16 June that, although a majority of delegations backed the proposal and were willing to accept the new text, others were still unable to support the draft Directive, notably on the grounds that it did not respect the principles of subsidiarity and proportionality.

EESC Opinion on 13 February 2013. CoR Opinion on 30 May 2013. EP gave draft Directive first reading on 20 November 2013, proposing strengthening amendments.

Proposal for a European Parliament and Council Directive on work-life balance for parents and carers and repealing Council Directive 2010/18/EU. COM (2017) 253 final.

Art. 153 (1)(i) and (2)(b).

In 2008, the Commission issued a draft Directive amending the Pregnant Workers Directive (92/85/EEC). The draft proposed increasing minimum maternity leave from 14 to 18 weeks and giving women on leave entitlement to full pay. During the legislative process, the EP proposed further strengthening of the 1992 Directive's maternity provisions and the addition of new rights in areas such as paternity leave. The EP and Council proved unable to agree on the proposed amendments and, faced with this impasse, the Commission finally withdrew the draft Directive in 2015. Concluding that an increase in maternity leave rights had little chance of being approved, the Commission started looking at a broader range of measures aimed at helping employees who are parents or have dependent relatives to better balance caring and work responsibilities. In 2015 and 2016, the Commission therefore held two rounds of consultations with the social partners on possible EU action addressing the challenges of work-life balance faced by working parents and caregivers. The Commission also held a public consultation on the issue. With no indication that the social partners would be in a position to negotiate over a possible EU-level agreement on work-life balance, the Commission decided to initiate legislative action. On 26 April 2017, it issued a draft Directive on work-life balance for parents and carers. The draft Directive forms part of the Commission's new "European Pillar of Social Rights" initiative, aimed at underpinning employment and welfare rights across the EU, which was formally endorsed by the EU institutions on 17 November 2017.

The draft Directive would introduce for the first time EU-wide rights to paternity and carers' leave, and provide various other new entitlements for working parents and carers. It would also strengthen existing EU legislation on parental leave, replacing and repealing the Parental Leave Directive (2010/18/EU), which was based on a social partner agreement. The draft's key provisions are as follows:

  • Workers' individual entitlement under the current Parental Leave Directive to at least four months' parental leave would be maintained. However, workers taking leave would be paid at least at the level of sick pay (parental leave is currently unpaid), and the leave could be taken up until the child is aged 12 years (currently eight years). Parents would have a new right to request taking leave in a flexible way. Where member states allow one parent to transfer their entitlement to the other parent, at least four months of parental leave would not be transferable.
  • The Parental Leave Directive provides that workers returning from parental leave are entitled to ask for flexible working arrangements, in the form of changes to working hours and/or patterns. This right would be extended to all workers who have children aged up to 12 years or who are carers for seriously ill or dependent relatives, and would also be broadened to include a right to request remote working.
  • Fathers would be entitled to at least 10 days of paternity leave around the time of their child's birth, paid at least at the level of sick pay.
  • Workers caring for seriously ill or dependent relatives would be entitled to at least five days of carers' leave per year, paid at least at the level of sick pay.

The Estonian EU Presidency of the second half of 2017 initiated Council discussions on the draft Directive. In late November, the Presidency reported that the basis for a compromise has been established on a number of provisions of the draft, but that further work is required on issues such as: the level of compensation for those taking paternity, carers' and parental leave; the scope of carers' leave; and the age of children in respect of whom parental leave can be granted. The EPSCO Council on 7 December took note of progress on the draft and the Bulgarian EU Presidency of the first half of 2018 has prioritised work on the proposal. The EP has not yet given the proposal a first reading. The Commission has made adoption of the Directive a priority for 2018.

Possible amendment of EU Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast).

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On 20 November 2017, the Commission issued a 2017-2019 action plan on "tackling the gender pay gap" (COM (2017) 678 final). The plan includes a commitment to assess the need for further legal measures to improve enforcement of the principle of equal pay for women and men, as set out in the 2006 recast Equal Opportunities and Equal Treatment Directive (2006/54/EC). During 2018, the Commission will "assess the possibility of targeted amendments" to the Directive. Notably, it will examine:

  • the need for and possibility of making binding some or all of the measures promoted by a 2014 Commission Recommendation on pay transparency - these include an entitlement for employees to request information on pay levels, regular reporting by employers on wages by category of employee or position, and clarification of the notion of work of equal value;
  • improving sanctions and compensation for victims by evaluating the need to introduce measures such as minimum sanctions for breaches of the principle of equal pay, and minimum standards for compensation that would put victims in the position they would have been in if the equal principle had been respected;
  • ensuring gender equality in occupational pension schemes; and
  • strengthening the enforcement role of equality bodies.

Freedom of movement

Subject Legal base Current position

Proposal for a European Parliament and Council Directive amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (COM [2016] 128 final)

Arts. 53(1) and 62

On 8 March 2016, as part of a "labour mobility package", the Commission proposed a Directive amending the 1996 Posted Workers Directive. The aim is to facilitate the provision of services across borders within the EU while ensuring fair competition and respect for the rights of posted workers (those employed in one member state and sent temporarily to work in another by their employer). Specifically, the proposal seeks to ensure fair wage conditions and a "level playing-field" between posting companies and local companies in the host country. The main points of the proposal include the following:

  • The host country's rules on remuneration as a whole (including elements such as bonuses and allowances) would apply to posted workers, and not just the rules on minimum wages, as is presently the case.
  • When a posting exceeds 24 months, the member state to which a worker is posted would be deemed to be the country in which he or she habitually works - the employment law of the host country would therefore apply fully to the worker.

The draft Directive also proposes amendments in areas such as subcontracting, cross-border temporary agency work, and the role of collective agreements in setting terms and conditions for posted workers.

The national parliaments of 14 member states expressed concerns that the draft Directive does not comply with the EU principle of subsidiarity. As a result (under what is known as the "yellow card" procedure), the Commission was required to review the proposal, and then to maintain, amend or withdraw it. It conducted this review and announced in a Communication (COM [2016] 505 final) issued on 20 July that it believes that the proposal complies with the subsidiarity principle. The Commission has thus maintained the proposal, without amendments.

The EPSCO Council on 16-17 June heard a progress report on the draft Directive, and some Governments raised concerns that the proposals would undermine the internal market and reduce the competitiveness of companies that post workers. The Competitiveness Council on 26-27 May also discussed the issue. The Slovak Presidency of the second half of 2016 sought to progress Council discussions on the proposal, reporting in November that further technical work and political discussions were required on issues such as long-term posting, remuneration and subcontracting. At the EPSCO Council on 3 March 2017, the Maltese Presidency of the first half of 2017 reported on the state of play of discussions. It gave a further progress report at the EPSCO Council on 15-16 June, stating that considerable progress had been made towards bridging member states' positions, with discussions again focusing on issues such as the concept of remuneration, long-term posting, subcontracting (which the presidency suggested omitting from the draft) and allowing extra time for transposition. While further technical work and political discussions were required, the Maltese Presidency stated that agreement on a general approach was within reach. The Estonian Presidency of the second half of 2017 made it a priority to progress negotiations on the proposal and at the EPSCO meeting on 23 October ministers agreed a general approach, on the basis of which the Council will open negotiations with the EP, which has yet to give the draft a first reading.

Key points of the Council's general approach include:

  • remuneration of posted workers in accordance with all of the host country's relevant rules, covering not just minimum pay rates but also elements such as bonuses and allowances;
  • full application of the host country's employment law when a posting exceeds 12 months (this could be extended to 18 months in some circumstances);
  • equal treatment of posted temporary agency workers and local workers; and
  • a four-year period after adoption for member states to comply with the Directive.

The Bulgarian EU Presidency of the first half of 2018 has stated that it will prioritise the negotiations with the EP over the draft Directive.

The EESC and CoR gave their Opinions on 14 and 7 December 2016. The Commission has made adoption of the Directive a priority for 2018.

Health protection and safety

Subject Legal base Current position

European framework agreement on the protection of occupational health and safety in the hairdressing sector.

Arts.154 and 155.

The EU-level social partners in the hairdressing sector - Coiffure EU and UNI Europa Hair & Beauty - signed an agreement on 26 April 2012, on their own initiative. It sets out an integrated approach for the prevention of risks and protection of health and safety in hairdressing, in areas such as: use of materials, products and tools; protection of the skin and respiratory tract; musculoskeletal disorders; working environment and work organisation; maternity protection; and mental health and wellbeing. The partners asked the Commission to propose a Directive making the agreement legally binding across the EU. The Commission was scheduled to issue a proposal in 2013 but in October announced that it would not do so during its term of office (which expired in October 2014). The current Commission has taken no action since then. This failure to issue a draft Directive to implement a social partner agreement is highly unusual. On 23 June 2016, Coiffure EU and UNI Europa Hair & Beauty signed another version of their 2012 agreement, making renewed and explicit calls for the Commission to propose to the Council a Directive to implement the agreement across the EU. However, the Commission has not yet responded and the issue does not feature in the Commission's 2018 work programme.

Removal or updating of outdated provisions in six health and safety Directives. COM(2017) 12 final.

Art.153

As part of its "REFIT" regulatory simplification programme, in 2015-2016 the Commission conducted an evaluation of the 1989 Framework Health and Safety Directive and 23 related Directives.The results of the evaluation, published in January 2017, concluded that the legislation concerned is generally effective and fit for purpose, and meets its ambition of protecting workers adequately. However, the evaluation also identified scope for removing or updating a number of outdated provisions. In 2017 the Commission launched a programme to address this issue, which it aims to conclude before the end of 2018. The aim is to achieve clearer, more coherent and more relevant rules, simplifying and reducing the administrative burden, where possible, for businesses and enforcement agencies, but only where workers' protection can be maintained or improved. The Commission has identified as priorities for this updating process the Directives on health and safety at work in relation to:

  • workplaces (89/654/EEC);
  • personal protective equipment (89/656/EEC);
  • display screen equipment (90/270/EEC);
  • medical treatment on board vessels (92/29/EEC);
  • safety and/or health signs (92/58/EEC); and
  • biological agents (2000/54/EC).

* European Parliament and Council Directive (EU) 2017/2398 of 12 December 2017 amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work. OJ L345 of 27 December 2017.

Art. 153 (1)(a) and (2)(b).

On 13 May 2016, the Commission proposed a Directive amending the 2004 health and safety Directive on carcinogens and mutagens. The EPSCO Council heard a progress report on the draft Directive on 16-17 June and agreed a general approach on 13 October, enabling it to open discussions with the EP. The Council and EP reached a provisional agreement at first-reading stage in August 2017, which was approved by the EP on 25 October and by the EPSCO Council on 7 December, enabling the adoption of the Directive on 12 December 2017. The EESC gave its Opinion on 21 September 2016.

The Directive establishes occupational exposure limit values for 11 additional carcinogens (respirable crystalline silica dust, 1,2-epoxypropane, 1,3-butadiene, 2-nitropropane, acrylamide, certain chromium (VI) compounds, ethylene oxide, o-toluidine, refractory ceramic fibres, bromoethylene and hydrazine) and revises existing values for two others (hardwood dusts and vinyl chloride monomer). It also contains provisions on: the provision of information on the results of risk assessments by employers to competent authorities; health surveillance for at-risk workers; and data collection.

Member states must bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 17 January 2020.

Proposal for a European Parliament and Council Directive amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work. COM (2017) 11 final.

Art. 153.

On 10 January 2017, the Commission proposed a Directive amending the 2004 health and safety Directive on carcinogens and mutagens (this was in addition to a previous amending Directive, proposed in May 2016 and adopted in December 2017 - see previous item in table). The proposal would add to the 2004 Directive occupational exposure limit values and/or skin notations for seven new carcinogens, including used engine oils.

The EPSCO Council agreed a general approach on this draft Directive on 15-16 June, enabling it to open discussions with the EP, which has yet to give its first reading. The Bulgarian EU Presidency of the first half of 2018 has made these discussions a priority. The EESC gave its Opinion on 31 May 2017.

Information, consultation and participation

Subject Legal base Current position

Proposal for a European Parliament and Council Directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU. COM (2016) 723 final.

Arts.53 and 114.

On 22 November 2016, the Commission proposed a Directive aimed at harmonising certain aspects of national rules on insolvency, preventive restructuring procedures for companies in financial difficulty, and procedures for the discharge of entrepreneurs' debts. It includes a number of provisions on workers' rights in such situations, notably where an indebted employer undertakes preventive restructuring with the aim of enabling the company to continue its operations. The main relevant provisions are as follows:

  • Debtor companies that are negotiating a restructuring plan with their creditors could be given a "stay of individual enforcement actions" (a temporary suspension of a creditor's right to enforce a claim) where necessary to support the negotiations. This stay would not apply to workers' outstanding pay-related claims, except to the extent that member states guarantee by other means the payment of such claims at a level at least equivalent to that provided for under the national law transposing the Directive on the protection of employees in the event of their employer's insolvency (2008/94/EC).
  • When an indebted company proposes a restructuring plan, creditors affected by the plan would have a right to vote on it. Member states would have to ensure that affected parties are treated in separate classes for voting purposes, and could treat workers as such a separate class. Affected workers would therefore have a right to vote on the plan.
  • When negotiating a restructuring plan, where there is a likelihood of insolvency, company directors would have an obligation to take immediate steps to minimise the loss for creditors, workers, shareholders and other stakeholders, and to have due regard to stakeholders' interests.
  • If adopted, the Directive would be without prejudice to workers' rights guaranteed by the insolvency protection Directive, the framework Directive on employee information and consultation (2002/14/EC), the European Works Councils Directive (2009/38/EC) and the Directives on information and consultation over collective redundancies (98/59/EC) and transfers of undertakings (2001/23/EC).

At an informal meeting of the Justice and Home Affairs Council on 27 January 2017, ministers gave the proposal's objectives broad support in principle, and the same Council held a policy debate on the draft on 8 June. Work continued under the Estonian EU Presidency of the second half of 2017 and a further debate was held at the Justice and Home Affairs Council on 7-8 December, identifying some areas where there was common ground but others where further technical work was required. The EESC gave its Opinion on 29 March 2017. The Commission has made adoption of the Directive a priority for 2018.

First-stage consultation of the social partners on consolidation of the EU Directives on information and consultation of workers. C (2015) 2303 final.

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In July 2013, the Commission published the generally positive findings of a "fitness check" of the framework Directive on employee information and consultation (2002/14/EC), and the Directives on information and consultation over collective redundancies (98/59/EC) and transfers of undertakings (2001/23/EC). Based on these findings, the Commission concluded that a consolidation and "recast" of the Directives might strengthen the coherence and effectiveness of the EU legislative framework in this area. On 10 April 2015, the Commission launched a first-stage consultation of the EU-level social partners on the issue. The consultation document suggested recasting and consolidating the three Directives in a single information and consultation Directive. This could: make the existing body of EU law in this area simpler, more accessible and more readable; enhance coherence and consistency; raise awareness among the stakeholders concerned; and promote better effectiveness and compliance. At the same time, the recast could better align the Directives' current definitions of key concepts (notably "information" and "consultation") and make the wording of certain provisions clearer and more coherent, in particular those regarding the exclusion of the public administration from the scope of the Directives. The consultation document sought the social partners' views on these ideas, and asked if they might consider initiating a dialogue on any of the issues raised. The social partners were due to respond by 30 June. In its response, BusinessEurope opposed any recast or revision of the three Directives and ruled out any negotiations on the issue with the ETUC. The ETUC opposed consolidation of the Directives, calling instead for each of them to be strengthened separately. It was generally positive about possible negotiations with employers, as long as there is no question of watering down the current provisions of the three Directives.

In October 2016, the Commission stated that it is still considering a possible initiative to consolidate/recast the three Directives in order to make EU law in this area simpler, more accessible and more readable, thereby improving awareness and compliance. This might involve standardised definitions and a modified scope of application (specifically in relation to the current exclusion of public administration employees), but not a revision of the Directives' various workforce-size thresholds for setting up information and consultation bodies.

General framework agreement on information and consultation rights of civil servants and employees of central government administrations in Europe.

Arts.154 and 155.

On 21 December 2015, the EU-level social partners in the central government sector - European Public Administration Employers (EUPAE) and the trade Unions' National and European Administration Delegation (TUNED) - signed a European framework agreement setting out common minimum requirements for the information and consultation of public employees working in central government administrations, through their representatives (including trade unions). The context is that employees in central government administrations are generally not covered by the various existing EU Directives on information and consultation. The agreement deals with matters such as definitions of "information" and "consultation", the issues concerned (such as working time, health and safety, and threats to employment), practical arrangements and confidentiality.

The framework agreement currently covers only the member organisations of EUPAE (including the UK civil service) and TUNED (including the UK's Public and Commercial Services Union). However, EUPAE and TUNED have asked the Commission to propose a Directive making the framework agreement legally binding across the EU (under Art.155 of the TFEU). The social partners justify this request on the grounds that they negotiated the agreement in response to the Commission's 2013 EU Quality Framework for anticipation of change and restructuring, which invited the social partners to negotiate at the relevant level "frameworks of action on anticipation of change and restructuring and internal flexibility".

The Commission stated in October 2016 that, prior to deciding whether or not to submit a proposal for a Council Directive implementing the agreement, it will carry out an impact assessment, examining issues such as the representativeness of the agreement's signatories and the legality of its provisions under EU law. The results of the assessment were expected in 2017 but had not been published by the end of the year.