Draft EU employment legislation state of play, January 2017

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 at 1 January 2017:

  • 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

Consultation of the EU-level social partners on review of Directive 2003/88/EC concerning certain aspects of the organisation of working time. First-stage consultation - COM (2010) 106. Second-stage consultation - COM (2010) 801/3.

Art.154.

Earlier attempt to revise Directive, launched in 2004, failed in April 2009. On 24 March 2010, the Commission launched first-stage consultation of social partners, seeking views on possible comprehensive review of Directive aimed at identifying which provisions need to be adapted, simplified or clarified to take account of developments in the length and distribution of working time. ETUC and BusinessEurope responded in June, with differing views on key issues such as the opt-out from the 48-hour maximum week. Second-stage consultation launched on 21 December 2010, with Commission suggesting either a focused review of the Directive (dealing with on-call time and compensatory rest for missed daily and weekly rest periods) or a comprehensive review (also dealing with matters such as the opt-out from the 48-hour week, greater flexibility, work-life balance, autonomous workers, multiple contracts and paid annual leave). BusinessEurope, ETUC, Ceep and Ueapme stated that they were prepared to negotiate over an agreement on revising the Directive and in June 2011 BusinessEurope formally offered talks to ETUC. ETUC confirmed its willingness to negotiate, but on a wider range of issues than identified by the employers. Social partners finally announced in November that talks would start in December, with a planned deadline of September 2012. In August 2012, in response to a joint request from the social partners, the Commission agreed to extend the deadline until 31 December 2012. However, the negotiations broke down without agreement in mid-December. After lengthy consideration of its next step, the Commission announced in June 2014 that it planned to issue a new proposal to amend the Directive in 2015. The aim would be to clarify and simplify the current rules, and update them to meet challenges arising from new working patterns. The new European Commission that took office on 1 November 2014 stated that a detailed impact assessment should be completed in the first half of 2015. The Commission would then seek a consensus with the EP and Council on "adjusting the EU rules", building on lessons learnt from the previous unsuccessful attempts to revise the Directive. On 1 December 2014, the Commission launched a public consultation as part of the review process, seeking views on the impact of the current Directive and its possible future development, and on specific matters such as on-call and stand-by time, compensatory rest, reference periods, the opt-out, working patterns and sector-specific issues. The consultation closed on 15 March 2015. There were no further developments until October 2016, when the Commission published its 2017 work programme, which states that a non-legislative initiative on implementation of the Working Time Directive will be presented in 2017. This now appears to fall under the Commission's "REFIT" regulatory simplification programme, and will involve the publication of a review of the Directive, an implementation report and "if appropriate, specific follow-up". The aim of any such follow-up would be simpler and clearer rules, which would alleviate administrative burdens by clarifying the flexibility already available in the Directive and ensuring long-term legal certainty.

Proposal for a Council Directive implementing the Agreement concluded between the General Confederation of Agricultural Cooperatives in the European Union (Cogeca), the European Transport Workers' Federation (ETF) and the Association of National Organisations of Fishing Enterprises (Europêche) of 21 May 2012 as amended on 8 May 2013 concerning the implementation of the Work in Fishing Convention, 2007 of the International Labour Organisation.
COM(2016)235 final.

Art. 155 (2).

On 21 May 2012, following talks that began in October 2010, the EU-level social partners in the fishing industry - Europêche, Cogeca and the ETF - signed an agreement on implementing the ILO Convention on working conditions in the sector. The Convention sets minimum standards in areas such as conditions of service, repatriation rights, accommodation, food, health and safety, medical care and social security. The social partners asked the Commission to propose a Directive making the agreement legally binding across the EU. Following discussions with the Commission, the partners signed an amended version of the agreement in May 2013 and renewed their request for an implementing Directive. On 29 April 2016, the Commission proposed a draft implementing Directive to the Council for possible adoption.

The EPSCO Council heard a progress report on 16-17 June and reached a political agreement on the draft Directive on 13 October. The Directive was approved at a meeting of the Environment Council on 19 December and should be formally adopted in the near future.

On 14 September, the EP adopted a resolution regretting the delay in proposing a Directive to implement the 2013 social partners' agreement, and recommending immediate adoption of the proposal.

Revision of 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.

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On 26 January 2016, the Commission launched a public consultation aimed at evaluating the 1991 "written statement" Directive, which requires employers to provide a written statement of key terms and conditions of employment to all paid employees with a contract or employment relationship, when employment starts or shortly afterwards.

In the evaluation exercise, the Commission sought views on the benefits and burdens resulting from the Directive, and on whether the Directive's aims are still relevant. The Commission also floated several ideas for potential amendments, such as: changing the terms and conditions that must be listed in the written statement; extending coverage beyond "paid employees" to groups such as agency workers, teleworkers and individuals on zero-hours contracts; and excluding employers with fewer than 10 employees.

The consultation closed on 20 April.

In September, the Commission announced that, as part of its "REFIT" regulatory simplification programme, it would conduct an evaluation of the Directive's relevance, effectiveness, efficiency and coherence, and its "EU added value". The aim is to examine if, and to what extent, changes in labour markets and EU law since its adoption justify improvements or amendments to the Directive.

In October, the Commission stated that the evaluation should be completed by the end of 2016. Preliminary results indicate that the Directive has been effective in achieving its objectives to some extent. However, it appears that many workers do not receive a written confirmation of their working conditions or do not receive all the information they need in a timely manner. The Directive's effectiveness is hampered by factors such as gaps in its scope and in the information to be included in the statement, and by enforcement problems (notably the means of redress in case of non-compliance).

On the basis of the evaluation, the Commission plans to issue a proposal for a revision of the Directive in 2017, following social partner consultations.

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.

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.

Second-stage consultation of the social partners on possible action addressing the challenges of work-life balance faced by working parents and caregivers. C (2016) 2472 final

Art. 154

In August 2015, the Commission withdrew a draft Directive amending Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding that it had issued in October 2008. The draft had proposed increasing minimum maternity leave from 14 to 18 weeks and giving women on leave entitlement to full pay. At its first reading on 20 October 2010, the EP had proposed major amendments to the draft, such as 20 weeks' maternity leave on full pay, two weeks' paid paternity leave, adoption leave and time off for breastfeeding. Most member states opposed the EP amendments and debate in the EPSCO Council became deadlocked during 2011. Despite attempts to revive discussions in 2014 and early 2015, the impasse could not be broken and the Commission withdrew the proposal. The Commission presented ideas for a "fresh start" in the debate in a "roadmap" issued on 3 August 2015. The roadmap sets out options for legislative and/or non-legislative measures aimed at helping working parents and employees with dependent relatives to better balance caring and work responsibilities.

Based on the road map, the Commission stated in its 2016 work programme that, following consultations, it will issue during 2016 a "New start for working parents" package of legislative and non-legislative measures. The Commission currently plans to issue this initiative in the last quarter of 2016.

Accordingly, on 11 November 2015, the Commission launched a first-stage consultation of the social partners on possible action addressing the challenges of work-life balance faced by working parents and caregivers. The consultation document (C [2015] 7754 final): identified the main challenges arising from work-life balance for parents and people with caring responsibilities; took stock of the relevant existing EU legislation in areas such as maternity leave, parental leave and part-time work; and invited the social partners to identify possible improvements to the current EU legislation. Specific ideas mentioned by the Commission included amendments that would: allow greater flexibility in parental leave; give nursing mothers a right to breastfeeding breaks; give women greater protection against dismissal on returning from maternity leave; introduce entitlement to paternity leave and carers' leave; and allow more flexible working arrangements for parents and carers.

The social partners had until 4 January 2016 to respond to the consultation, and indicate to the Commission whether they would consider initiating a dialogue (possibly leading to negotiations) on any of the issues identified.

In its response to the consultation, BusinessEurope argued that the current EU legislative framework in this area is sufficient and does not need to be revised. It rejected the idea of initiating a formal dialogue on any of the issues raised.

In its response, the ETUC stated that it was in favour of the Commission's ideas for amending current EU legislation, and suggested various additional changes. It expressed its readiness to engage in dialogue and urged the Commission to make legislative proposals if any such dialogue does not produce concrete outcomes.

The Commission launched an accompanying public consultation on how to improve work-life balance and reduce obstacles to women's participation in the labour market on 18 November. The consultation closed on 17 February 2016.

On 12 July 2016, the Commission initiated a second-stage consultation of the social partners. It sought views on a number of possible avenues for EU action, and asked the social partners if they are interested in negotiating over a European-level agreement on any of the issues raised. The possible legislative actions identified include:

  • increasing dismissal protection for women who are pregnant or have recently given birth;
  • introducing rights to breastfeeding breaks and facilities for women returning from maternity leave;
  • introducing a right to paternity leave - possibly two weeks' leave, at least partially paid;
  • allowing greater flexibility in taking parental leave, increasing remuneration during such leave, and extending the period of leave that cannot be transferred between parents;
  • introducing a right to paid or unpaid leave to care for dependent relatives - employees could, for example, be entitled to take a few weeks of carer's leave for each dependent relative, or have access to an "account" of care-related leave credits over their working lives; and
  • extending to more parents and carers existing rights to request flexible working arrangements (that is, changes to working patterns or hours).

The social partners had until 30 September to respond to the second-stage consultation. In its response, the ETUC reiterated its support for further action in the areas suggested by the Commission, and its readiness to negotiate with employers' organisations over potential agreements on parental leave, paternity leave and carer's leave, while preferring legislative action on maternity leave.

In its 2017 work programme, the Commission states that it will present legislative and non-legislative initiatives to address the challenges of work-life balance during 2017.

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. The EP is yet to give the draft a first reading. The Commission has made adoption of the Directive a priority for 2017.

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, and a draft implementing Directive does not, at present, feature in its planning documents. 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. The social partners now seem more hopeful of a positive response from the Commission, which has recently reaffirmed its support for EU-level social dialogue. However, the issue does not feature in the Commission's 2017 work programme.

Evaluation of Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work, and related Directives.

Art.153

As part of its "REFIT" regulatory simplification programme, the Commission has, since 2016, been evaluating the 1989 Framework Health and Safety Directive and 23 related Directives. The aims are to: modernise the scope of application of the EU legislative framework for health and safety; improve the flexibility of the legislation in order to address risks and changes in society, science and technology and at the workplace; improve compliance with health and safety rules by smaller establishments; improve the general implementation of EU health and safety legislation; ensure that the EU legislation can be adapted easily and quickly to future scientific progress and technical developments; and address overlaps and duplications in several EU health and safety Directives. The Commission plans to publish the findings of its evaluation, when completed, along with possible follow-up actions, which may include initiatives to improve the EU regulatory framework for health and safety.

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 (2016) 248 final.

Art.153 (2)

On 13 May 2016, the Commission proposed a Directive amending the 2004 health and safety Directive on carcinogens and mutagens. The draft proposes new or revised occupational exposure limit values for 13 cancer-causing chemical agents, including respirable crystalline silica, hardwood dust and vinyl chloride monomer.

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, which has yet to give its first reading. The EESC gave its Opinion on 21 September.

In September, the Commission stated that it planned to propose the inclusion in the Directive of new or revised limit values for further carcinogenic agents before the end of 2016 (no such proposal has yet been issued).

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).

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 are expected in 2017.