Draft EU employment legislation state of play, September 2012

The table contained in 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 September 2012:

  • the full title of the proposal;
  • a reference to the issue of the Official Journal (OJ) of the European Union (external website) 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).

Draft EU employment legislation state of play, 1 September 2012

In this table:
Employment conditions
Equality and work-life balance
Freedom of movement
Health protection and safety
Information, consultation and participation
Migration policy and employment

Subject

Legal base

Current position

EMPLOYMENT CONDITIONS

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, 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, on the grounds that the negotiations were making progress.

Consultation of the EU-level social partners on an EU framework for anticipation and management of change and restructuring.

Art.154.

European Commission consulted social partners in 2002 on "socially intelligent" restructuring. In response, partners negotiated document entitled "orientations for reference in managing change and its social consequences" in 2003. Commission consulted again in 2005, seeking (largely unsuccessfully) further social partner action. Commission revived issue in 2010 and announced new consultation on a code of conduct on anticipation and management of change and restructuring, which would act as an EU-wide framework for those involved in restructuring. The consultation was scheduled for 2011 but did not occur. In January 2012, Commission launched a general public consultation on restructuring and anticipation of change, which it plans will result in an unspecified initiative on the subject in the third quarter of 2012. The specific social partner consultation appears to have been shelved.

European agreement on certain aspects of the organisation of working time in inland waterways.

Arts.154 and 155.

The EU-level social partners in the inland waterways sector - the European Barge Union (EBU), European Skippers Organisation (ESO) and European Transport Workers' Federation (ETF) - signed an agreement on 15 February 2012, adapting the Working Time Directive (2003/88/EC) to the specific circumstances of their industry. The partners have asked the Commission to propose a Directive making the agreement legally binding across the EU, thereby exempting inland waterways from the general Working Time Directive. The Commission is currently assessing the agreement before issuing a draft Directive.

European agreement on implementation of 2007 International Labour Organisation (ILO) Convention on working conditions in fishing.

Arts.154 and 155.

On 21 May 2012, following talks that began in October 2010, the EU-level social partners in the fishing industry - Europêche, Cogeca and the European Transport Workers' Federation - 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 have asked the Commission to propose a Directive making the agreement legally binding across the EU. The Commission is assessing the agreement before issuing a draft Directive.

Proposal for a revision of exclusions concerning seafaring workers contained in six Directives.

-

Commission launched first consultation of social partners on 10 October 2007, seeking views on whether or not current exclusion of seafaring workers from some EU employment law Directives is justified. Second consultation launched on 14 April 2009, with Commission proposing repeal of these exclusions. Commission is planning to propose amendments to exclusions in the Directives on employers' insolvency (2002/74/EC), European Works Councils (94/45/EC), information and consultation (2002/14/EC), collective redundancies (98/59/EC), transfers of undertakings (2001/23/EC) and posted workers (96/71/EC). The proposal is scheduled for the fourth quarter of 2012.

EQUALITY AND WORK-LIFE BALANCE

Subject

Legal base

Current position

Proposal for a Directive of the European Parliament and of the Council amending Council 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. COM (2008) 637 final.

Arts.153(2) and 157(3). Co-decision procedure.

Following social partner consultations on reconciliation of professional, private and family life, Commission issued draft Directive amending Directive 92/85/EEC on 3 October 2008. Proposals included increasing minimum maternity leave from 14 to 18 weeks and giving women on leave entitlement to full pay (although member states could subject this to a ceiling). EPSCO Council informed of progress on 17 December and held preliminary discussions on 9 March 2009. EP first reading scheduled for 6 May 2009 but postponed, with draft report referred back to Parliamentary Committee on Women's Rights and Gender Equality. EESC Opinion on 13 May 2009. EPSCO Council on 8-9 June heard progress report and called for work on proposal to continue. Parliamentary Committee adopted new report in February 2010 and EP gave first reading on 20 October, proposing major amendments such as 20 weeks' maternity leave on full pay, two weeks' paid paternity leave, adoption leave and time off for breastfeeding. At EPSCO Council on 6 December, most member states opposed EP amendments and talks began in an effort to find a common position. A progress report given at EPSCO Council on 17 June 2011 indicated that the debate among national Governments had reached an impasse. Polish Presidency of second half of 2011 made commitment to pursuing work on issue. Presidency asked social partners for their views as a contribution to the Council debate, and employers' organisations submitted their opinion in September. At an informal meeting of gender equality ministers on 21 October, member states confirmed deadlocked positions, and Polish Presidency reported to EP on 25 October that progress was unlikely unless EP changed its position. The Commission has stated that it will not withdraw the proposal and Presidency recommended in November informal Council contacts with EP over possible concessions. EPSCO Council on 1-2 December heard Presidency report confirming member states' opposition to key EP amendments. In January 2012, the incoming Danish Presidency said that it would make unblocking progress on the proposal a priority in the first half of the year, and in May 2012 it discussed with other governments guidance for future work.

Consultation of the EU-level social partners on reconciliation between work, family and private life.

Art.154.

The European Commission consulted social partners on reconciliation between work, family and private life in 2006 and 2007. This led to the partners amending their 1995 parental leave agreement in June 2009 (with revisions implemented by Directive 2010/18/EU), and to the Commission proposing amendments to Pregnant Workers Directive (see previous point). The European Commission plans to consult partners again, on issues "left over" from 2006-07 consultation, notably paternity leave and carers' leave. Depending on outcome of new consultation, Commission may issue legislative proposal on reconciliation, including paternity and carers' leave. The consultation was scheduled for 2012 but does not currently feature in the Commission's planning documents for the remainder of the year.

Consultation of the EU-level social partners on review of EU legislation implementing the principle of equal pay.

Art.154.

European Commission announced in its 2012 work programme first-stage social partner consultations on an "update" of EU legislation implementing principle of equal pay for women and men (principally Directive 2006/54/EC). Consultation will examine how to tackle direct discrimination (eg through greater pay transparency) and indirect discrimination (eg through pay audits and job evaluation). However, the consultation does not currently feature in the Commission's planning documents for the remainder of 2012.

FREEDOM OF MOVEMENT

Subject

Legal base

Current position

Proposal for a Directive of the European Parliament and of the Council on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. COM (2012) 131/3.

Arts.53(1) and 62. Co-decision procedure.

Commission issued proposal on 21 March 2012. The draft Directive seeks to ensure a better and more uniform implementation, application and enforcement in practice of the Posted Workers Directive. It contains provisions in areas such as: preventing abuses and circumvention of the rules on posted workers; improving access to information for workers and companies; enhancing administrative cooperation among member states; monitoring and inspecting compliance with the rules; and enforcing posted workers' rights. Informal meeting of EPSCO Council on 24-25 April held initial debate on proposal, reportedly giving a generally positive response, although with some concerns expressed by several member states on specific aspects. EPSCO Council on 21 June confirmed positive view and heard that substantive discussions have taken place on most points, with considerable progress made on some and further progress expected in near future. A key unresolved issue is the cross-border enforcement of administrative fines and penalties. EP first reading awaited, probably in 2013.

Proposal for a Council Regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services. COM (2012) 130/3.

Art.352. Consent procedure.

Commission issued proposal on 21 March 2012. The draft Regulation establishes that workers' fundamental rights to strike and take other collective action are of equal importance in EU law to businesses' freedoms to provide services across borders or establish themselves in other member states. It seeks to clarify the situation after a series of European Court of Justice rulings that have been widely interpreted as giving business freedoms priority over workers' rights. The proposal also contains provisions on resolving cross-border disputes in this area, and on an "alert mechanism" to provide an early warning when serious disputes arise. Informal meeting of EPSCO Council on 24-25 April held initial debate on proposal, reportedly giving a mixed response, with some member states concerned about interference with national law. EPSCO Council on 21 June heard that many governments have expressed reservations about the proposal's added value or raised concerns about its content. Further, 12 national Parliaments have expressed concern about the proposal's compliance with the EU subsidiarity principle, which means that the Commission must now review the draft and decide whether to maintain, amend or withdraw it.

Legislative initiative to ensure improved enforceability
of Council Regulation 1612/1968 on freedom of movement for workers
within the EU.

Art.45. Co-decision procedure.

Following consultation in 2011, Commission plans in fourth quarter of 2012 to issue an unspecified legislative initiative aimed at improving the enforceability of Council Regulation 1612/1968 (codified by Regulation 492/2011) on freedom of movement for workers within the EU. It will seek to remove barriers to mobility of EU workers by enhancing the enforcement of rights conferred by EU law, and by providing information and legal support to migrants facing discrimination based on nationality.

Proposal for a Directive of the European Parliament and of the Council on improving the portability of supplementary pension rights. COM (2005) 0507; amended proposal COM (2007) 603 final.

Arts.42 and 94. Co-decision procedure.

Commission launched first stage of social partner consultations on 12 June 2002 as part of efforts to reduce obstacles to free movement of workers within EU. Second stage launched on 15 September 2003. Social partners' views diverged on need for negotiations and Commission therefore issued draft Directive on 20 October 2005. EESC Opinion on 20-21 April 2006. Discussed at EPSCO Council on 1-2 June 2006 and 30 November-1 December. At Council on 30-31 May 2007 no agreement on a "general approach" could be reached and it was decided to await the EP first reading and a subsequent amended Commission proposal. EP gave first reading on 20 June. Commission issued amended proposal on 9 October, dropping provisions on transferability of pension rights. Political agreement on common position discussed in EPSCO Council on 5 December, with agreement on all issues except vesting periods. EPSCO Council on 9-10 June 2008 informed that negotiations were continuing. No public Council discussions since. Commission sought views on way forward in consultative Green Paper on pensions, issued in July 2010. It now plans to issue new proposals aimed at breaking the deadlock on the draft, focusing in particular on vesting periods. The proposals were scheduled for 2012 but do not currently feature in the Commission's planning documents for the remainder of the year.

HEALTH PROTECTION AND SAFETY

Subject

Legal base

Current position

Consultation of the EU-level social partners on musculoskeletal disorders at work.

Art.154.

Commission launched first consultation of social partners on 12 November 2004, seeking views on whether or not further initiatives were needed in this area. Social partners in agriculture sector reached agreement on reduction of workers' exposure to risk of musculoskeletal disorders on 21 November 2005, partly in response to consultation. Second consultation launched on 14 March 2007 and ended in late April. Commission is planning to propose a single Directive incorporating existing provisions on musculoskeletal disorders at work (currently found in Directives 90/269/EEC and 90/270/EEC). The proposal, originally due in 2011, is now scheduled for the fourth quarter of 2012.

Consultation of the EU-level social partners on the protection of workers from risks related to exposure to environmental tobacco smoke in the workplace.

Art.154.

Commission launched first consultation of social partners on 19 December 2008, seeking views on whether or not EU action is needed. It set out options for both binding and non-binding initiatives on workplace environmental tobacco smoke, including a possible Directive prohibiting smoking at work. Consultation ended in February 2009. In their responses, BusinessEurope opposed new EU legislation and ETUC supported the idea. Second-stage consultation was planned for 2011 then rescheduled for 2012, but does not currently feature in the Commission's planning documents for the remainder of the year.

Proposal for a Directive of the European Parliament and of the Council on the minimum health and safety requirements regarding the exposure of workers to
the risks arising from physical agents (electromagnetic fields). COM (2011) 348.

Art.153. Co-decision procedure.

Implementation of Directive 2004/40/EC on workers' health and safety in relation to electromagnetic fields, due in 2008, was postponed (by Directive 2008/46/EC) because of concerns that it would hamper effective use of MRI in medicine. European Commission held first consultation of social partners on possible revised Directive in July-August 2009 and second consultation in May-July 2010. Commission proposed Directive repealing and replacing the 2004 Directive on 14 June 2011. EPSCO Council heard progress report on 1-2 December 2011 and 21 June 2012, with discussions among governments focusing on various technical issues. EP is reportedly waiting for Council to agree a position before giving the proposal a first reading. Original 2004 Directive was due to be implemented by 30 April 2012, but Commission proposed on 25 January 2012 a Directive postponing this date to allow time for adoption of the replacement Directive. On 19 April, Council and EP adopted this postponement Directive (2012/11/EU, OJ L110 of 24 April), thereby delaying the implementation of the 2004 Directive until 31 October 2013.

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 have asked the Commission to propose a Directive making the agreement legally binding across the EU. The Commission is currently assessing the agreement before issuing a draft Directive.

INFORMATION, CONSULTATION AND PARTICIPATION

Subject

Legal base

Current position

Consultation of the EU-level social partners on revision of the Directive on employee involvement in European Companies. C (2011) 4707.

Art.154.

EU Regulation no.2157/2001 created the European Company (known as Societas Europaea, or SE), a form of company that operates on a Europe-wide basis and is governed by EU rather than national law. Regulation was accompanied by a Directive (2001/86/EC) setting out the rules on employee involvement to apply to SEs. The European Commission launched a first-stage social partner consultation on possible revision of the Directive on 5 July 2011. The main aim of any revision would be to "simplify" the arrangements for employee representation in SEs. BusinessEurope and Ueapme responded to consultation in October, opposing any amendments to Directive, while ETUC supported some changes. Second-stage consultation due in fourth quarter of 2012.

Consultation of the EU-level social partners on revision of the Directive on employee involvement in European Cooperative Societies.

Art.154.

Regulation no.1435/2003 created the European Cooperative Society, a mechanism that allows cooperatives and some other types of organisation and individuals to operate on a European scale, in a similar way to the SE (see previous point) available to public limited companies. As with SEs, an accompanying Directive (2003/72/EC) lays down employee involvement rules. Commission is planning a first-stage social partner consultation on possible revision of this Directive. The consultation is scheduled for the third quarter of 2012.

Proposal for a Council Regulation on the statute for a European Private Company. COM (2008) 396 final.

Art.352(1). Consultation procedure.

Commission issued draft Directive on 25 June 2008, following social partner consultations. Proposal, which would create a uniform company form that small and medium-sized firms could use to operate across the EU, includes provisions on employee participation arrangements. Discussed in Competitiveness Council on 1 December. EP first reading on 10 March 2009, proposing amendments, including a strengthening of the employee participation requirements. Competitiveness Council heard progress report on 28-29 May and discussed proposal on 4 December, concluding that further work was required (including on participation arrangements) before agreement could be reached. The Hungarian EU Presidency of the first half of 2011 revived discussions and hoped to reach a political agreement on a compromise text at the Competitiveness Council on 30 May, but the required unanimity could not be found, owing partly to opposition from some member states to the employee participation proposals. A new compromise text was put forward for discussion in June but no progress has since been made. The Commission sought views on the future of the proposal in a consultation on EU company law launched in February 2012.

Proposal for a Council Regulation on the Statute for a European Foundation (FE). COM (2012) 35 final.

Art.352. Consultation procedure.

Commission issued in February 2012 a draft Regulation creating a European Foundation (FE), a mechanism that would allow public-benefit foundations to operate on a European scale, in a similar way to the SE (see above). The proposal contains employee involvement provisions, providing for the establishment of European Works Councils in FEs to inform and consult employees and volunteers. Cyprus EU Presidency of second half of 2012 will seek progress on the proposal. 

MIGRATION POLICY AND EMPLOYMENT

Subject

Legal base

Current position

Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer. COM (2010) 378 final.

Art.79(2). Co-decision procedure.

Commission issued draft Directive on 13 July 2010. It aims to make it easier for multinational companies temporarily to transfer skilled workers who are not EU nationals from a firm located outside the EU to branches or subsidiaries in the member states, by introducing a common set of rules for a new fast-track entry procedure. Justice and Home Affairs Council held first exchange of views on proposal on 7 October. EPSCO Council updated on progress on 6 December 2010. CoR opinion on 31 March-April 2011. EESC Opinion on 4-5 May 2011. Justice and Home Affairs Council discussed proposal on 9-10 June and EPSCO Council informed by Presidency on 1-2 December that considerable progress has been made in discussions among member states. Justice and Home Affairs Council heard on 7-8 June 2012 that general agreement has been reached among member states and negotiations are due to start soon between Council and EP, which has yet to give first reading. Negotiations will focus on the level of rights to be given to intra-corporate transferees. Cyprus EU Presidency of second half of 2012 will prioritise the proposal.

UK has opted out of coverage by Directive.

Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment. COM (2010) 379 final.

Art.79(2). Co-decision procedure.

Commission issued draft Directive on 13 July 2010. It aims to create a common EU-wide procedure, based on uniform criteria and definitions, for admitting seasonal workers from outside the EU, and lay down common rules to govern their stay in the EU. Justice and Home Affairs Council held first exchange of views on proposal on 7 October. EPSCO Council updated on progress on 6 December 2010. CoR opinion on 31 March-April 2011. EESC Opinion on 4-5 May 2011. EP first reading awaited in 2012. Justice and Home Affairs Council discussed proposal on 9-10 June and identified contentious issues on which member states want further discussions. EPSCO Council given progress report on 17 June and informed by Presidency on 1-2 December that considerable progress has been made in discussions among member states. Justice and Home Affairs Council heard on 7-8 June 2012 that a number of issues require more work, notably whether stays shorter than three months should be covered by the Directive. Cyprus EU Presidency of second half of 2012 will prioritise the proposal.

UK has opted out of coverage by Directive.

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

International policy, practice and law, September 2012