EU: Social policy state of play, January 2009

The second half of 2008, under the French EU presidency, saw the adoption of Directives on temporary agency work and European Works Councils, but there was an impasse on the revision of the Directive on working time.

On this page:
Adoption
New proposals
Discussions and amended proposals
Consultations
No progress
Prospects
Table: Social policy state of play

The state-of-play table lists all important “live” items of draft EU social policy legislation of general interest to our readers that are currently in the legislative pipeline. It does not include those measures that were adopted prior to our most recent table. It shows only those proposals that have yet to be adopted, or that have been adopted since the previous table. Proposals that have become dormant (defined here as not having been discussed in council, or subject to any other significant movement, for more than two years) are not included.

For each proposal, the table provides the following information, as at 18 December 2008:

• the full title of the proposal;
• a reference to the issue of the Official Journal (OJ) of the European Union (available on the Europa 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 establishing the European Community (TEC) on which the proposal is based; and
• where relevant, the dates of the proposal’s submission to the Council of the European Union, the opinions issued on the proposal by the European parliament, the Committee of the Regions (CoR) and the European Economic and Social Committee (EESC), the submission of an amended proposal to the council, and any council decisions or debates, as well as the dates of the formal consultation of the social partners, where relevant. Adopted proposals and formally signed agreements are identified with an asterisk.

Adoption

Two important items of employment-related legislation were adopted (informally in one case) in the second half of 2008. The first was the Directive (2008/104/EC) on temporary agency work, whose adoption represented the culmination of efforts to regulate this issue at EU level going back more than a quarter of a century. There is now finally an EU legislative framework in place governing all of the three main forms of “atypical” employment - part-time, fixed-term and temporary agency work. After so many years of controversy and deadlock, the final stages of debate were rapid and straightforward. The common position agreed by the Employment, Social Policy, Health and Consumer Affairs (known as EPSCO) Council in June was approved without amendments by the European parliament in October, clearing the way for formal adoption.

By contrast, the “recast” Directive on European Works Councils (replacing and repealing Directive 94/45/EC, as amended by Directives 97/74/EC and 2006/109/EC) was agreed by the European parliament and council in December, only five months after it was proposed by the commission. However, the proposal had a lengthy pre-history, with revision of the EWCs Directive having been on the agenda since 1999. The European Commission had made a number of efforts to persuade the central EU-level social partner organisations - the European Trade Union Confederation (ETUC), BusinessEurope (private sector employers), Ueapme (small and medium-sized enterprises) and Ceep (public sector employers) - to negotiate an agreement on this issue. However, when the ETUC turned down an employers’ offer of talks in April 2008, the commission finally issued a draft Directive.

The social partners then took the unprecedented step of agreeing a “joint advice”, setting out their common proposals for amendments to the commission’s proposed Directive. This contrasted with the normal TEC procedure (see  Consultations), whereby the social partners have an opportunity to reach an agreement on an issue before the commission proposes a Directive on the subject. The council, European parliament and commission took on board the social partners’ recommendations on revising the EWCs Directive, enabling the “recast” Directive to be agreed with unusual swiftness (although formal adoption has not yet occurred).

As part of a legislative simplification initiative, the commission is seeking to codify and consolidate in single instruments a number of Directives and their subsequent amendments, although with no changes of substance. As they lack substantive content, these draft Directives are not included in our state-of-play table, but this procedure led to the adoption in October 2008 of a codified Directive (2008/94/EC) on the protection of employees in the event of the insolvency of their employer, which repeals and replaces the 1980 Directive on the issue (80/987/EEC, as amended by Directives 87/164/EEC and 2002/74/EC).

New proposals

The European Commission proposed a number of new Directives in the second half of 2008, notably:

• the draft “recast” EWCs Directive (see Adoption);
• a Directive 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; and
• a Directive on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity (repealing Directive 86/613/EEC on the same issue).

The recast EWCs Directive has been adopted, while the drafts on pregnant workers and on equality for self-employed women and men are awaiting formal debate in the council and European parliament.

Also since our previous state-of-play table, the commission has proposed a Council Regulation on a statute for a European Private Company. This would create a new form of company that gives small and medium-sized firms and privately owned companies the same possibilities to operate on a Europe-wide basis as the European Company Statute gives public limited-liability companies. While this is essentially a company law measure, the draft Regulation also deals with the issue of employee participation. It lays down the general principle that European Private Companies would be subject to the employee participation rules of the member state where they have their registered office, but with special provisions where a European Private Company transfers its registered office to another member state. Debate on the draft Regulation has begun in the competitiveness council of ministers.

Two other new proposals are not included in our table because of their purely sector-specific scope:

• In July, the commission proposed a Directive to implement an agreement on incorporating the 2006 International Labour Organisation (ILO) maritime labour convention into EU law, signed in May by the European-level social partner organisations in the maritime shipping industry. On 17 December, the EPSCO council reached a political agreement on the proposal, pending the European parliament's first reading.
• In October, the commission proposed a Directive amending Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities. The main aim is to enhance the clarity and enforceability of the current Directive by providing a more precise definition of mobile workers, notably ensuring that it covers “false” self-employed drivers - those who are officially self-employed but in fact are not free to organise their work activities (self-employed drivers are not covered by the Directive). The draft has not yet been debated in the council or European parliament.

Outside the strictly defined field of employment law, in July the commission issued a draft Directive on “implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation”. The Directive would extend the scope of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation beyond the workplace. It would provide for equal treatment in the areas of social protection (including social security and healthcare), education, and access to, and supply of, goods and services that are commercially available to the public, including housing. The EPSCO council discussed the proposal in October and December and the European parliament is due to give it a first reading in March 2009.

Discussions and amended proposals

The draft Directive revising the Directive concerning certain aspects of the organisation of working time (originally adopted in 1993 and now consolidated in Directive 2003/88/EC) reached an impasse in December. In June, the EPSCO council had agreed a common position on the proposal, following lengthy and difficult debate, as part of a delicate compromise that also involved the agreement on the Directive on temporary agency work. Notably, with regard to the “opt-out” - the option for member states not to apply the 1993 Directive’s maximum average weekly working time of 48 hours if a worker agrees to this individually - ministers agreed (with reservations in some cases) that the opt-out should be retained, although subject to stronger safeguards, closer monitoring and reinforced protective conditions for the workers involved. Further, the council agreed with regard to on-call work that the “inactive” part of on-call time should not compulsorily be treated as working time.

Under the co-decision legislative procedure, the council’s common position returned to the European parliament for a second reading. If the European parliament had approved the common position without amendments, the Directive would have been adopted in this form. However, despite pressure from the other EU institutions, the European parliament proposed amendments when it gave it a second reading on 17 December. Most controversially, it called for the abolition of the opt-out within three years and for the entire period of on-call time, including any “inactive” part, to be considered as working time.

The EPSCO council on 17 December noted the points of disagreement between its common position and the European parliament’s proposals. There does not seem to be any prospect of the council accepting the European parliament amendments, given the enormous difficulty with which ministers agreed their common position in June. It is probable that the proposal will now be referred to the European parliament-council conciliation committee.

Three draft Directives on labour migration to the EU from other countries were proposed in 2007, dealing with: a uniform application procedure for migrants wanting to work and live in the EU, and a common set of rights for legally resident immigrant workers; the admission and residence of highly qualified immigrant workers; and sanctions against employers of “illegally staying third-country nationals”. The first two proposals mentioned made progress in the second half of 2008, with the European parliament giving them first readings and the council reaching broad agreement on the drafts. The council also advanced its work on the third of the proposals.

One of the commission’s proposals for a codified Directive, on minimum safety and health requirements for the use of work equipment by workers at work (codifying Directive 89/655/EEC, as amended by Directives 95/63/EC and 2001/45/EC), progressed through the decision-making machinery in the second half of the year and is now before the European parliament-council conciliation committee.

Consultations

Under art. 138 of the TEC, before submitting proposals in the social policy field, the European Commission consults the EU-level social partners on the possible direction of Community action. Then, if the commission considers Community action advisable, it consults a second time, on the content of the envisaged proposal. At that stage, the social partners may (under art. 139) seek to negotiate a European-level agreement on the issue in question, which may substitute for EU legislation.

No consultations were launched in the second half of 2008. Following earlier consultation exercises, two sets of central social partner negotiations are currently under way, involving the ETUC, BusinessEurope, Ueapme and Ceep:

• Talks were launched in March 2008 over a European agreement aimed at “facilitating access to and progression in the labour market for disadvantaged groups through a series of preventive and curative measures, including lifelong learning”. If an agreement is reached, it will be “autonomous” - that is, it will be implemented by the signatories themselves rather than by an EU Directive. The negotiations will continue in 2009.
• In response to consultations on improving the reconciliation of work, private and family life, in March 2008 the social partners announced that they would “undertake joint action to better achieve the aims” of their 1995 European framework agreement on parental leave (implemented by Directive 96/34/EC). In July 2008, they confirmed that this joint action would take the form of formal negotiations on revising the agreement under art. 138, starting in September 2008. The European Commission has not ruled out the possibility that these negotiations might also address other forms of family-related leave it mentioned in its consultation documents, such as paternity leave, adoption leave and leave to care for family members. The social partners’ work on reconciliation also led in July to a joint letter to the European Commission, calling for renewed efforts to provide more and better childcare in order to promote work-life balance and increase labour market participation.

Consultations on protecting healthcare workers from blood-borne infections due to needlestick injuries were launched in 2006 (not included in our table because of the sector-specific nature of the issue). The central social partner organisations showed no interest in negotiating on the issue but - somewhat belatedly - in November 2008, the EU-level social partners in the hospitals and healthcare sector announced that they would do so. The European Hospital and Healthcare Employers’ Association (Hospeem) and the European Federation of Public Service Unions (EPSU) are starting talks in January 2009 over an art. 139 agreement on the prevention of “sharp injuries” in their sector.

Two rounds of consultations have been completed on “socially intelligent” corporate restructuring (2004 and 2005), without any further specific action since apart from a working document issued by the commission in July 2008 (the issue has now been dropped from our table). Following the completion of two stages of consultation (in 2004 and 2007) on improving workers’ protection against musculoskeletal disorders, with no indication from the social partners that they were willing to negotiate, the commission is planning to legislate in 2009 (having originally stated that it would do so in 2008). Two stages of consultations were held (in 2004 and 2007) on EU action to protect workers from the risks related to exposure to carcinogens, mutagens and “substances toxic for reproduction” at work, and the commission is yet to announce its intentions.

Following a first stage in 2007, consultations have not yet moved onto the second stage with regard to cross-border transfers of undertakings. This is also true of a first-stage consultation in 2007 on whether or not the current exclusion of maritime workers from some areas of EU employment law is justified.

No progress

Following movement towards political agreement on a common position in the second half of 2007, little progress has since been made on the draft Directive on the portability of supplementary pension rights. The proposal deals with the acquisition and preservation of rights and enhanced information for workers, and the main sticking point in council is the maximum permissible duration of the “vesting period” (the period of active membership of an employment-related pension scheme required in order to trigger entitlement to a supplementary pension). The draft was not discussed at the EPSCO council during the second half of 2008.

A commission proposal for a codified Directive on the protection of workers from the risks related to exposure to asbestos at work (codifying Directive 83/477/EEC, as amended by Directives 91/382/EEC, 98/24/EC and 2003/18/EC) has made no progress since the European parliament gave it a first reading in June 2007.

Prospects

The French presidency of the second half of 2008 experienced considerable success in its objective of moving forward with all the main pending draft employment law Directives. The adoption of the Directives on temporary agency work and revising the EWCs Directive brought to a close two long-running sagas, while progress was made on the three draft Directives on non-EU labour migration. However, the revision of the working time Directive remained as contentious and intractable as ever. It is unclear whether some kind of consensus might be reached through conciliation between the European parliament and council in 2009. The draft Directive on supplementary pension rights also proved resistant to efforts to find a deal.

The draft Directives amending the Directives on pregnant workers and on equal treatment for self-employed women and men, along with the draft Regulation on the European Private Company, are expected to move to the first stages of serious council and European parliament debate during the first half of 2009. The draft Directive on implementing the ILO maritime labour convention seems likely to be adopted fairly rapidly.

The Czech government holds the EU presidency in the first half of 2009. It is not yet clear which pending draft legislation it will give priority to, other than seeking a compromise with the European parliament on revision of the working time Directive.

Following the small flurry of drafts issued in the second half of 2008 (see New proposals) as part of the European Commission’s “renewed social agenda”, few new proposals for employment law Directives are expected in 2009. The commission’s work programme for the year (its last before a new commission takes office in November 2009) mentions only a draft Directive consolidating in a single instrument existing provisions on the protection of workers from the risks of musculoskeletal disorders at work, and a possible proposal on executive remuneration.

The commission had announced that it would propose during 2008: a Directive amending the 2001 Directive on transfers of undertakings (following a second round of social partner consultations); and two further Directives on labour migration from outside the EU, covering seasonal workers and “intra-corporate transferees”/remunerated trainees. These proposals have not so far been issued and they are not mentioned in the commission’s 2009 work programme.

The central EU-level social partner organisations will continue their negotiations on parental leave and the labour market access and progression of people from disadvantaged groups in 2009. Their draft work programme for 2009-2010 does not contain plans for the negotiation of any further “autonomous” agreements, mentioning only talks over a “framework of actions” on employment, alongside joint work in areas such as the EU’s post-2010 Lisbon jobs and growth agenda, climate change, flexicurity and mobility and economic migration issues.

This article was written by Mark Carley, editor, European Employment Review.

European Employment Review 420 (EER 420) contents