EC: Social policy state of play

There is one piece of unfinished business from our last table: Directive 2003/10/EC 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 (noise) (Seventeenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) appeared in OJ L42/38 on 15 February 2003.

Adoption

After years of inaction and the slow progress of recent months, the first half of this year finally saw the progression of and political agreement on the Regulation on the statute for a European cooperative society and the accompanying Directive regulating worker involvement.

This dossier has been progressed following the formal adoption on 8 October 2001 of the Regulation for a European Company Statute and the accompanying Directive on worker involvement in a European company. Last year, at the 3 June 2002 employment and social affairs Council, ministers agreed on a general approach to this dossier but, as there have been substantial amendments to the text on worker involvement since the EP's Opinion, given in January 1992, the Council decided to reconsult the EP. The EP finally examined and voted on the texts on 14 May 2003, making a number of amendments. The Council subsequently reached political agreement on the texts at its 2-3 June 2003 social affairs Council, taking on board a number of the EP's amendments. These proposals are subject to the consultation procedure and so do not need joint approval by the Council and the EP. The texts will now be subjected to legal and linguistic checking before being formally adopted at a forthcoming Council. EIRR will look in more detail at the Directive, which provides for the involvement and participation of worker representatives in European cooperative societies, once the proposal is formally adopted.

The first half of 2003 also saw the adoption of a health and safety proposal relating to asbestos. Directive 2003/18/EC amends a Directive dating from 1983 on the protection of workers from the risks related to exposure to asbestos at work. This new Directive updates the 1983 instrument in a range of areas, including ending the exclusion of sea and air transport workers from its scope, defining the various types of fibrous silicates in existence, measuring asbestos content in the air, setting exposure limit values for workers, determining the presence of asbestos in buildings, defining company responsibility and setting out practical recommendations for worker health examinations.

The proposal, which was subject to the co-decision procedure, was given a second reading by the EP on 17 December 2002, at which it made three amendments. On 22 January, the Commission stated that it could accept all the amendments and the final act took place on 27 March 2003. Member states must comply with the Directive by 15 April 2006.

The past six months have also seen the adoption of a Council Recommendation on the improvement of the protection of the health and safety at work of self-employed workers. Subject to the consultation procedure, political agreement on this proposal was reached in the Council on 2-3 December 2002, following an EP Opinion on 23 October 2002. The proposal was formally adopted on 18 February 2003.

Finally, the proposal for a Directive on the activities of institutions for occupational retirement provision has now completed its path through the EU decision-making machinery. This instrument was subject to the co-decision procedure. The EP's second reading was given on 13 March 2003; the Commission indicated on 7 May 2003 that it could accept all of the EP's amendments. The Directive is currently awaiting publication in the OJ.

This proposal was issued by the Commission as part of an action plan to create a single market in financial services by 2005. It hopes that this instrument will pave the way for cross-border pension provision. It deals with institutions for occupational retirement provision only, in line with the fact that the organisation of social protection and pension schemes is a matter for member states to regulate, in line with the principle of subsidiarity.

New proposals

The first six months of 2003 have seen very few noteworthy new proposals in the social policy area. In the field of health and safety, the Commission issued on 20 March a revised proposal to codify Directive 90/394/EEC of 28 June 1990 on the protection of workers from the risks related to exposure to carcinogens at work. This is purely a codifying process and will not entail any changes to the content of the 1990 Directive.

Agreements

A draft joint text was concluded in mid-June between the European social partners on the issue of restructuring. The Commission consulted the social partners on this issue in January 2003, hoping to encourage them to enter into negotiations for a European-level framework agreement. Responses were received during the first part of 2002 and the Commission began to prepare a second consultation paper in the autumn of 2002. However, the social partners asked the Commission to delay this in order to allow them to hold a seminar, which they did in October 2002. Further meetings have since been held and a joint text setting out a number of guidelines to be adhered to in the event of restructuring has been reached. It is expected that the text will be formally approved by the social partners in the autumn of 2003. For more details, see Social partners: Joint text on restructuring.

Consultation and amended proposals

Temporary work proposal

It had been hoped that the Council could have reached political agreement in June 2003 on the Commission's proposal for a Directive on the working conditions of temporary workers. However, this was not the case. At the social affairs Council of 2-3 June 2003, continuing differences of view persisted between the various delegations.

Nevertheless, work on this dossier will continue, looking specifically at three issues:

A majority of delegations stated that they would accept a transitional period of five years following implementation of the Directive, during which an exemption to the principle of equal treatment could be granted "in view of the specific conditions of member states' labour markets". However, four delegations maintained that this exemption should be permanent. The Presidency compromise text stated that the exemption should be in place pending a future decision by the Council and the EP, but this was not acceptable to the majority of delegations (11) and only acceptable to the other four if the qualifying period were to be at least six months.

Work will continue on this dossier under the Italian Presidency of the Council, which runs for six months from 1 July 2003.

Harmonising social legislation in road transport

Some progress has been made over the past six months on the proposal for a Regulation harmonising social legislation in road transport, issued by the Commission in October 2001. This proposal will update a Regulation which dates from 1985 and contains working time provisions that sit alongside those contained in the new Directive on the organisation of working time for mobile workers in road transport. The ESC gave its Opinion on the text on 29 May 2002 and the EP gave the text a first reading on 14 January 2003, at which it made a number of amendments. The text is currently awaiting discussion in the Council, with a view to reaching a common position on the text. It will then be returned to the EP for a second reading, under the co-decision procedure.

Takeover bids Directive

Although no formal progress has been made over the past six months on the Commission's new proposal on takeover bids, there have been intense discussions on its content over the first half of 2003 within the Council, which has instructed the Committee of Permanent Representatives to continue work on this dossier. This proposal is of interest as it contains provisions relating to the information and consultation of workers or their representatives in the event of takeover bids. The previous Commission proposal for the regulation of company takeover bids had lapsed in July 2001 following rejection of a conciliated text by the EP on 4 July 2001.

Deciding to restart the legislative procedure, the Commission convened a high-level group to look into this issue in September 2001. After examining the group's findings, reported in January 2002, the Commission issued a new proposal on 2 October 2002. The text is currently awaiting an EP first reading under the co-decision procedure. This was originally scheduled for April 2003, but is now likely to take place in September 2003.

No progress

Social security

There has been no progress over the past six months on the proposal for a Council Regulation amending Regulation (EEC) No.1408/97 as regards its extension to nationals of third countries. The aim of this proposal is to extend to nationals of non-EU member states, but who are living in the EU, the Community coordination of social security schemes laid down by Regulation 1408/71/EEC. Political agreement on a common position was reached at the December 2002 social affairs Council. However, the common position has not yet been formally adopted. As this proposal is subject to the co-decision procedure, the next step will be to return the text to the EP for a second reading.

Data protection at work

On 31 October 2002, the Commission launched a second consultation of the social partners on the issue of data protection at work. This follows a first consultation exercise begun on 27 August 2001. Although two Directives currently regulate data protection, the Commission believes that a separate Community instrument is necessary to regulate the issue of data protection at work. The social partners are currently considering their response and no formal pronouncements have been made over the past six months.

Portability of supplementary pension rights

Similarly, there has been no progress during the past six months on the issue of the portability of supplementary pension rights. On 12 June 2002, the Commission launched a first consultation of the social partners on this. It invited the social partners to give their views, arguing that some framework is needed at European level, given that there currently is no general framework, which hampers freedom of movement.

The Commission is currently considering the social partners' responses.

Prospects

The second half of 2003 sees the Italian government taking over at the helm of the EU Council of Ministers for a six-month term.

The draft legal instrument that currently still has the highest profile is the proposal for a Directive on working conditions for temporary workers. It was hoped that significant progress on this text, in the form of a common position in the Council, could be made under the Greek Presidency. However, consensus proved to be elusive in the June 2003 social affairs Council, with a number of matters outstanding. It remains to be seen whether the Italian Presidency can broker a deal between the delegations.

There are a number of areas of social partner consultation which are either imminent or likely to progress over the next few months.

For example, the Commission stated in its June 2000 five-year social policy action programme that it intended to consult with the social partners on the establishment of EU-level dispute resolution procedures and mechanisms. Since then, work has been progressing on this issue - a Commission-funded report giving details of existing dispute resolution mechanisms in EU member states was published earlier in 2002 and the Commission is thought to have been working on the detail of its consultation paper to the social partners over the past few months. It is therefore likely that a consultation on this issue will be launched at some point in the future.

Data protection at work is another area where movement is likely in the near future, given that no progress has been made over the past six months. The Commission launched the second phase of consultation of the social partners on this issue on 31 October 2002, looking at protecting both the use of employees' personal data and the regulation of employees' use of the internet and email facilities at work. The social partners have yet to give a definitive response. They may decide to negotiate an EU-level framework agreement on this subject.

In its 2003 work programme, the Commission made a commitment to issuing in October 2003 a social partner consultation paper on a revision of the 1994 European Works Councils Directive. According to the text of the Directive, "not later than 22 September 1999, the Commission shall, in consultation with the member states and with management and labour at European level, review its operation and, in particular, examine whether the workforce size thresholds are appropriate with a view to proposing suitable amendments to the Council, where necessary." In the meantime, it has asked the ESC to give an exploratory Opinion on the revision of the Directive. This Opinion is expected in September 2003.

This issue has been on the European Trade Union Confederation's agenda for a long time, with the result that it has drawn up a detailed list of amendments it would like to see made to the Directive. It held a conference in Aarhus, jointly with Danish trade unions, in November 2002 to debate the matter.

An examination of the so-called "opt-out" to the maximum 48-hour week provision of the 1993 working time Directive is due by 23 November 2003. This relates to Article 18(b)(i) of the Directive, which allows member states not to apply the Directive's provisions relating to maximum weekly working time. This essentially allows employers not to enforce a 48-hour maximum working week if the consent of the individual employee is given, workers do not suffer any detriment and the employer keeps records which may be examined by competent authorities.

The UK has included this possibility in its implementing legislation and it is thought that the practice of opting out from the 48-hour maximum working week in the UK is widespread. Other countries, notably France and the Netherlands, have made use of the opt-out for certain sectors, such as health.

The Commission is expected to issue a Communication to the Council and the EP some time this autumn, in which it will identify any problems with the operation of the working time Directive, including the issue of the opt-out, and suggest possible solutions. After gathering the responses of the Council and the EP, the Commission is likely to issue a consultation paper to the social partners on possible amendments to the working time Directive early next year.

The coming months might also see some progress on the issue of stress at work. In April 2003, an ETUC Executive Committee meeting gave the go-ahead for the start of negotiations with UNICE and CEEP for a framework agreement on work-related stress. The possibility of negotiations on this issue is provided for in the social partners' work programme for 2003-05 (EC: Social partners set out their three-year work programme).

The process of enlarging the EU made progress during the first half of 2003, with the signing of an accession Treaty on 16 April in Athens. This now clears the way for 10 new member states to join from 1 May 2004. These are: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia. Accession negotiations with Bulgaria and Romania are ongoing and the EU estimates that they will be able to join in 2007. Accession negotiations with Turkey may begin in December 2004 if Turkey by that date fulfils the political criteria set by the 1993 Copenhagen Council.

This will be the most significant enlargement ever of the EU, taking the number of member states from 15 to 25. Although all candidate countries are required to adopt the full body of EU law before joining, this enlargement exercise will have profound consequences for EU employment and social policy, not least due to the diverging character of the labour markets and the industrial relations traditions and practices of the candidate countries.

Finally, one consequence of the enlargement is the necessary streamlining and revision of EU institutions and processes which, left as they are, would be impossibly unwieldy with 25 member states. The European Convention, which is the body charged with drawing up reform proposals, has been working hard on this for some months. It issued draft proposals in April 2003 and finalised proposals for a draft European constitutional Treaty were presented to the Thessaloniki Council in June 2003. Among other things, the draft provides for the integration of the charter of fundamental rights, which includes a number of rights in the employment and social policy field, into the constitutional Treaty. It also extends the process of qualified majority voting to a range of additional policy areas and introduces a range of changes to the operation and composition of EU bodies such as the Commission, the European Parliament and the European Council. This draft will now form the basis of the work programme of an Intergovernmental Conference, which will work towards drafting amendments to the European Treaties.

Social policy state of play

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