EC: Social policy state of play

There are two pieces of unfinished business from our last social policy update. First, Council Directive 2000/79/EC concerning the European agreement on the organisation of working time of mobile staff in civil aviation, which was adopted on 27 November 2000, appeared in OJ L 302/57 on 1 December 2000. Second, Council Decision on a Community framework strategy on gender equality for 2001-2005, adopted on 20 December 2000, was published in OJ L17/22 on 19 January 2001. This programme takes over from the fourth action programme on gender equality, which expired on 31 December 2000.

Adoption

The proposal to consolidate the transfers of undertakings Directive was adopted on 12 March, and the completed text appeared in the OJ on 22 March. This does not entail any substantive amendments to the 1977 Directive, which was amended in 1998.

There was no formal adoption of any other legislative proposals during the first half of 2001. However, significant progress was made in a number of areas, including the work at a height proposal, information and consultation of workers and amendments to the 1976 equal treatment Directive, where political agreement on a common position was reached by the Council.

Agreements and new proposals

The most high-profile event of the Swedish Presidency - in social policy terms - was the political agreement on a common position reached in June on the proposal for national-level information and consultation of workers. The text has been amended considerably since it was first issued in 1998. Notably, it provides for a longer implementation timetable in the case of countries where there are no statutory systems of information and consultation, and no statutory systems of employee representation at the workplace. This is as follows:

Thus, when added to the three-year implementation date, this would give certain member states a total of seven years for transposition, in the case of smaller categories of establishments and undertakings, dating from adoption of the Directive.

Formal adoption of this common position will take place at a forthcoming Council and the text will be forwarded to the EP for a second reading under the co-decision procedure. It is expected that the Directive may be adopted by the end of this year. For a more detailed analysis of this proposal, see this issue, p.13.

Following the agreement on the text governing worker involvement in a future European company, reached on 20 December 2000 (although the proposal is awaiting an EP Opinion before final adoption - see below), the Commission has now revived a text on worker involvement in the European Co-operative Society (SCE). The proposal for an SCE was originally issued in 1992 and is intended to be a parallel text to the European Company Statute. It provides for the creation of a specific legal entity which would be available to cooperatives with operations in two or more member states. This text has received a detailed reading in the preparatory bodies of the Council and the Belgian Presidency is expected to progress this dossier. There is, as yet, no official text available.

The Council reached political agreement on a common position regarding the proposal updating the 1976 equal treatment Directive in line with European Court of Justice judgments in the area of sex discrimination; this was originally issued on 7 June 2000. The text also characterises sexual harassment as a form of sexual discrimination, which entails a risk of liability for employers that fail to provide a workplace which is free of such harassment. Once the common position has been formally adopted, it will be forwarded to the EP for a second reading under the co-decision procedure.

Consultation and amended proposals

The proposal for a 13th Directive on company law concerning takeover bids was given a second reading by the EP under the co-decision procedure on 13 December. The EP made a number of amendments to the text, which were not accepted by the Council. A conciliation committee was subsequently convened to broker a deal and it issued a text on 6 June 2001. This will now be forwarded to the Council and the Parliament.

The aim of the proposal is to give shareholders of companies subject to takeover bids a minimum level of protection, which is equivalent throughout the EU, and to ensure greater transparency in (attempted) takeovers.

The text regulating working time for mobile workers in the road transport sector has been making progress through the decision-making machinery. Political agreement on a common position was reached at the 22 December 2000 transport Council. The text was given a second reading by the EP on 14 June 2001, at which amendments were made. The text will now be forwarded to the Council and the Commission, and a conciliation committee convened if not all the amendments can be accepted.

Social partner talks on the issue of temporary work collapsed irrevocably at the end of May. The social partners had encountered a number of difficult issues during the negotiations, which broke down initially in March but were reconvened following a meeting with employment and social policy Commissioner Anna Diamantopoulou in April. However, the talks finally stalled on the issue of the definition of a comparative worker. The ETUC wanted a user company worker to be defined as the comparator, which was unacceptable to UNICE.

Ms Diamantopoulou has stated that the Commission will shortly publish a proposal for legislation to govern this issue. This is the final topic to be examined within the framework of the Commission's original 1995 consultation of the social partners on the general issue of atypical working. This consultation has already resulted in two social partner agreements - on part-time work and fixed-term contracts - and all concerned are disappointed that, given the success of the treatment of these two subjects, no agreement could be reached on temporary work. However, it is also acknowledged that this is the most difficult of the three issues to regulate, involving as it does a triangular relationship between temporary agency, worker and user company.

On 19 March, the Commission launched the second stage of social partner consultations on the issue of modernising and improving employment relations. This follows the Commission's first consultation, issued in June 2000. Whereas the first consultation focused on teleworking and economically dependent workers, the second deals with teleworking only. There may be some difficult subjects to discuss here, not least the status of any resulting agreement - UNICE issued a statement just before the Commission's launch of the second stage consultations stating that it was prepared to begin European-level negotiations for a voluntary agreement on teleworking. However, a voluntary agreement is unlikely to be acceptable to the ETUC unless specific guarantees and safeguards can be put in place.

The Commission's proposal to update social security Regulation 1408/71 has been making slow progress over the past six months. The EP gave the text a first reading on 15 February 2001, and the June employment and social policy Council took note of progress to date, noting that a first reading in the Council had almost been completed. The Belgian Presidency is to continue work on this dossier.

No progress

No further progress has been made on the proposed Directive aimed at protecting workers against the risks associated with mechanical vibration, following the political agreement on a draft common position reached at the 27-28 November employment and social policy Council.

This proposal was revived by the German Presidency during the first half of 1999, and based on an original proposal aimed at protecting workers against the risks associated with four physical agents: noise, mechanical vibration, optical radiation and electro-magnetic fields and waves. The text concentrates on mechanical vibration, owing to the fact that there is no existing Community legislation on this issue and the Presidency considered that a one-by-one approach to these four issues was best.

The text was forwarded to the EP with a view to formal adoption of a common position at a later stage.

There has been no further progress on the proposal concerning worker involvement in a future European company following the political agreement reached on 20 December 2000. The text is now before the EP. As there had not been a previous official text of this proposal since 1989, the Council forwarded the new text to the EP for scrutiny. However, the EP does not have any power of binding amendment, and it is therefore hoped that final adoption will take place shortly.

Prospects

After a sluggish start, the Swedish Presidency has succeeded in gaining political agreement on a Council common position on the proposal for national-level information and consultation. This issue is now set to dominate social policy during the second half of this year as, although this is a significant breakthrough, this is by no means the end of the story.

The revision text on which the common position was agreed leaves out the controversial provisions relating to sanctions - specifically that company decisions may not apply if the Directive's provisions were not adhered to. The text must now be forwarded to the EP for a second reading and it is likely that it will insert a number of amendments, particularly in the area of sanctions. Under the co-0decision procedure to which this proposal is subject, if the Council cannot accept the EP's amendments, a conciliation committee must be convened to broker an agreement between the Council and the EP. There is, therefore, a significant way to go before the proposal is formally adopted.

Amendments to the 1994 European Works Councils Directive have been expected for some time now. In its package of measures designed to reduce the social impact of restructuring, issued in May, the Commission makes a commitment to publish a proposal in the near future.

The Swedish Presidency's commitment to focus on equality issues has resulted in political agreement on a common position concerning the proposal for amendments to the 1976 equal treatment Directive. It is likely that this proposal will work its way further through the EU legislative machinery, possibly resulting in adoption during the coming six months.

The second half of the year is also likely to see the issuing of a proposal to regulate temporary work, following the breakdown of the social partner talks. Any proposal is likely to be controversial, as the areas of disagreement between employers and employee representatives at European level may be mirrored in any future discussions between member state delegations on this topic. It would appear, however, that the Commission is committed to regulating this area, for reasons which include that of completeness.

The other topics that are covered by the Commission's original umbrella atypical work consultation (part-time work and fixed-term contracts) were the subject of EU-level social partner agreements which have subsequently been given legal force by means of a Council Directive.

Following the breakdown of the temporary work negotiations, the social partners all stated that they were nevertheless committed to EU-level social partner talks. As the Commission has, in the past six months, launched a social partner consultation on teleworking, it is highly likely that the coming six months will see the opening of negotiations on this issue. It should be remembered, however, that this is also likely to be controversial, given that UNICE would like to negotiate a voluntary accord, something of which the ETUC is wary. If the social partners do decide to formally open talks, they will, under the Treaty, have nine months in which to reach an agreement, although this may be extended if the parties wish.

One other topic which might receive some attention during the next six months is the setting up of voluntary conciliation and arbitration mechanisms at European level. The idea of consulting the social partners was first mooted in the Commission's five-year social policy agenda, issued in June 2000 (EC: New social policy agenda ). In this document, the Commission stated its intention to consult the social partners (although it did not specify a date) on the need to establish, at European level, voluntary mechanisms on mediation, arbitration and conciliation for conflict resolution. This commitment was reiterated in the Commission's more recent package of measures designed to combat the social effects of restructuring, although a date was still not specified.

More generally, the topic of the social effects of industrial restructuring may receive some attention over the coming half year. The EP agreed a resolution on industrial restructuring in February, and this issue has gained prominence in recent months. This follows announcements by the UK-headquartered retailer Marks & Spencer and the French food group Danone that they intend to make significant job reductions as a consequence of restructuring.

¹Copies of the Official Journal may be obtained from: Office for Official Publications of the European Communities, 2 rue Mercier, L-2985 Luxembourg, tel: + 352 499 281, fa{resource_tag} + 352 48 85 73; or in the UK from the Stationery Office, International Sales Agency, 51 Nine Elms Lane, London SW8 5DR, tel: +44 020 7873 90 90, fax: + 44 020 7873 84 63.