EU: Social policy state of play, January 2010

The second half of 2009 saw agreement on a revised Parental Leave Directive and progress on a draft Directive on equal treatment for self-employed women and men, but few other significant developments in EU employment law.

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 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 the 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 21 December 2009:

• 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 Treaty article on which the proposal is based (see below); and
• where relevant, the dates of the proposal's submission to the Council, 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. Any adopted proposals and formally signed agreements are identified with an asterisk.

The Treaty of Lisbon entered force on 1 December 2009. One effect is to rename the Treaty establishing the European Community (TEC) as the Treaty on the Functioning of the European Union (TFEU) and renumber some of its articles. The main provisions on social and employment policy are now found in arts.151-161 of the TFEU (formerly arts.136-145 of the TEC). In the table, the old TEC numbering of articles is used.

Two items of legislation listed as adopted in our most recent table had not at the time been published in the OJ, but have appeared since:

• Directive 2009/52/EC of the European Parliament and of the Council providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals was adopted on 18 June 2009. It was published in OJ L168 of 30 June 2009 and came into force on 20 July. Member states must implement the Directive by 20 July 2011.
• Council Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment was adopted on 25 May 2009. It was published in OJ L155 of 18 June 2009 and came into force on 19 June. Member states must implement the Directive by 19 June 2011.

The UK has opted out of coverage of both Directives.

Adoption

No significant items of EU employment legislation were adopted in the second half of 2009, while Sweden held the EU Council Presidency. However, political agreement was reached on the draft Directive implementing the EU-level social partners' June 2009 agreement amending their 1995 European framework agreement on parental leave, which was implemented by EU Directive 96/34/EC. The draft Directive, which should be formally adopted soon, gives legal force to the amended agreement and will repeal and replace the current Parental Leave Directive. The main changes are that:

• the minimum parental leave entitlement increases from three to four months per worker, with at least one month of the leave non-transferable between parents;
• workers are protected against less favourable treatment on the grounds of applying for, or taking, parental leave;
• workers returning from parental leave have a right to request changes to their working hours and/or patterns; and
• special provisions will be promoted for adoptive parents and parents of children with a disability.

As part of a legislative simplification initiative, the Commission has been 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. One of the proposals, 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) was adopted as Directive 2009/104/EC on 16 September, repealing the earlier Directives. A second proposal, 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) was adopted as Directive 2009/148/EC on 30 November, repealing the earlier directive.

New proposals

No significant new general legislation in the employment field was proposed in the second half of 2009, apart from the draft Directive implementing the social partners' revised agreement on parental leave (see above under "Adoption").

Not included in our state-of-play table because of its sector-specific scope is a draft Directive issued by the European Commission on 26 October to implement a European framework agreement signed in July 2009 by the European Hospital and Healthcare Employers' Association (Hospeem) and the European Federation of Public Service Unions (EPSU) on prevention of sharp injuries in the hospitals and healthcare sector.

Discussions and amended proposals

In December, the Employment, Social Policy, Health and Consumer Affairs (EPSCO) Council reached political agreement on a common position on the proposed Directive on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity (which would repeal Directive 86/613/EEC on the same issue). Once the common position is formalised, rapid adoption of the Directive seems likely. The Directive would: give female self-employed workers and the "assisting spouses" (including life partners, as recognised by national law) of the self-employed the same maternity leave entitlement as provided for employees under the Pregnant Workers Directive; and entitle assisting spouses (and life partners) to join the same social security scheme as self-employed workers, under the same conditions.

The proposed Council Regulation on a statute for a European Private Company 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. The draft Regulation relates principally to company law but is included in our table because it also deals with employee participation rules to apply to European Private Companies. At first-reading stage in March 2009, the Parliament proposed a strengthening of the employee participation requirements, and disagreements over participation played an important part in preventing agreement on the Regulation at a meeting of the Competitiveness Council in December. A key issue of dispute among Governments is how many workers a European Private Company would have to employ before the Regulation's participation rules apply (the current proposal is 500 employees).

Outside the strictly defined field of employment law, the Council has been continuing discussions on the 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, which established a general framework for equal treatment in employment and occupation, beyond the workplace. It would provide for equal treatment in areas such as 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 European Parliament gave the measure a first reading in April 2009 and the EPSCO Council has since been seeking a common position. In December, the Swedish Presidency reported to the Council that progress had been made on several points but that further extensive work is still required on many issues.

Consultations

Under art.154 of the TFEU (formerly 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 EU action. Then, if the Commission considers EU action advisable, it consults a second time on the content of the envisaged proposal. At that stage, the social partners may, under art.155 (formerly art.139), seek to negotiate a European-level agreement on the issue in question, which may substitute for EU legislation. Agreements reached may be implemented either by a Council Directive or "autonomously" by the signatories' national member organisations.

At central, "cross-industry" level, the social partners are: the European Trade Union Confederation (ETUC), plus the Eurocadres/CEC liaison committee, which represents managerial and professional staff unions; BusinessEurope (private sector employers); Ueapme (small and medium-sized enterprises); and Ceep (public sector employers).

The only first-stage consultation launched in the second half of 2009 (not included in our table) was on revision of a 2004 Directive (2004/40/EC) on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields). The Directive was due to come into effect in April 2008. However, concerns arose that its implementation would have adverse effects on the effective use of magnetic resonance imaging (MRI), an important medical technique. The Commission therefore decided to postpone the Directive's implementation deadline until April 2012, while it draws up a new proposal that will enable effective use of MRI, while ensuring appropriate protection for the workers involved. This postponement was effected by a further Directive (2008/46/EC), adopted in April 2008. In preparation for proposing a new Directive (probably in the first quarter of 2010), in summer 2009 the Commission launched a consultation of the social partners, which is unlikely to lead to negotiations.

No second-stage consultations were initiated in the second half of 2009, and are still awaited over: the protection of workers from exposure to environmental tobacco smoke at the workplace (first round of consultations in early 2009); and cross-border transfers of undertakings (first round of consultations in 2007).

A number of two-round consultation exercises have been completed over recent years without resulting in cross-industry social partner negotiations or, so far, any proposals for EU legislation. These include consultations on:

• "socially intelligent" corporate restructuring (2004 and 2005);
• improving workers' protection against musculoskeletal disorders (2004 and 2007);
• protecting workers from the risks related to exposure to carcinogens, mutagens and "substances toxic for reproduction" at work (2004 and 2007); and
• the current exclusion of maritime workers from some areas of EU employment law (2007 and 2009).

A draft Directive on musculoskeletal disorders was included in the Commission's 2009 work programme, but has yet to appear.

Following consultations in 2006-07, the cross-industry social partners are continuing negotiations over a European agreement on "inclusive labour markets", 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 implemented autonomously.

No progress

In October 2008, the Commission proposed a draft Directive amending the Pregnant Workers Directive (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). The main changes proposed by the Commission are an increase in the minimum period of maternity leave from 14 weeks to 18 weeks, with the compulsory period of leave rising from two to six weeks, to be taken after childbirth. Women on maternity leave would receive full pay, although member states could subject this to a ceiling, no lower than the rate of sick pay. Women on maternity leave would have a right to return to their jobs or to equivalent posts on terms and conditions that are no less favourable to them, and to request changes to their working hours and patterns.

Preliminary discussions on the draft in the EPSCO Council have indicated a degree of consensus. However, there is little unity on the proposal in the Parliament. Its Committee on Women's Rights and Gender Equality proposed that the Parliament should call, at first reading, for a strengthening of the Commission's proposal, notably to extend the minimum maternity leave to 20 weeks, with at least six weeks on full pay and the remainder on 85% of normal pay. The Committee's report was due to be voted on by Parliament in May but was referred back to the Committee, as it was opposed by a majority of MEPs. The Committee is drafting a new report. Following the Parliament elections in June - in which, broadly speaking, the centre-right gained ground and the Socialists lost support - the Committee is now sharply divided on the draft Directive. Parliament's first reading of the draft Directive is now scheduled for March 2010.

Divisions in the Parliament have also delayed progress on a sector-specific proposal not included in the table. Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities, which was adopted in March 2002, places limits on lorry drivers' working hours. It applies to employees only and not to self-employed drivers. In October 2008, the European Commission issued a draft amending Directive that would maintain the exclusion of the self-employed but clarify that the Directive covers "false" self-employed drivers - those who are officially self-employed but in fact are not free to organise their work activities. The Parliament's first reading was due in May 2009, but political disagreements over whether or not to seek the full inclusion of self-employed drivers have delayed the first reading considerably, and it is unlikely to occur until May 2010.

In the field of immigration policy, a draft Directive on a uniform application procedure for migrants wanting to work and live in the EU is awaiting adoption by the Council, but was not discussed publicly in the second half of 2009.

The EPSCO Council has not publicly discussed the draft Directive on the portability of supplementary pension rights since July 2008. The draft deals with the acquisition and preservation of pension rights, and enhanced information for workers. The main point of disagreement that appears to have stalled Council discussions 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).

Prospects

The second half of 2009 was a very quiet period for EU employment legislation. No significant new instruments were adopted, although agreements were reached on the revised Parental Leave Directive and the Directive on equal treatment for self-employed women and men, which should enable adoption in early 2010. No new measures of general scope were proposed (except the draft revised Parental Leave Directive, which implements a social partner agreement reached in June 2009) and there was no movement on the other main items still in the pipeline, including the draft Directives: amending the Pregnant Workers Directive; a single application procedure for migrant workers; and supplementary pension rights.

Spain has taken over the EU Presidency for the first six months of 2010. It intends to seek progress on the draft Directives on: revision of the Pregnant Workers Directive; preventing sharps injuries in hospitals and healthcare; and equal treatment for self-employed women and men.

The recent lack of new employment proposals has largely been due to the fact that the European Commission which came to office in 2004 ended its term on 31 October 2009. As a new Commission has not yet been approved, the current Commission will remain in office in a caretaker capacity until 1 February 2010. José Manuel Barroso has been appointed for a second five-year term as President of the European Commission and in November he presented his proposed new team of commissioners, which must now be approved by the Parliament. The proposed commissioner for employment, social affairs and inclusion (formerly equal opportunities), taking over from Vladimír Špidla, is László Andor, a Hungarian economist.

Only after the new Commission is approved will its detailed legislative plans be known. All that is known so far is that Barroso wants to propose an EU Regulation to resolve problems that have arisen in the interpretation and implementation of the Posted Workers Directive (96/71/EC). Further, the President has made a commitment to consult the social partners and come up with a "comprehensive" legislative proposal on working time. This follows the collapse in April 2009 of long-running attempts to revise the Working Time Directive (2003/88/EC) in areas such as the opt-out from the maximum average weekly working time of 48 hours, and the treatment of on-call work.

Another factor affecting the prospects for future employment legislation is the changed political composition of the Parliament since the election in June 2009. There are already signs - for example, in discussions on the revision of the Parental Leave Directive and the Directive on lorry drivers' hours - that the Parliament may no longer be such a strong supporter of more and stronger employment rights legislation.

The Lisbon Treaty entered into force on 1 December. In terms of the legislative process for employment legislation, this brings little immediate change, other than that qualified-majority voting in Council replaces unanimity in several fairly minor areas, notably social security for migrant workers and measures relating to the free movement within the EU of self-employed people. However, it should be noted that the qualified-majority voting system will change from 2014, giving somewhat less weight in the process to the larger member states. Further, the Treaty allows the member states to decide unanimously in future to change the Council decision-making process in a particular area from qualified-majority voting to unanimity. This could potentially be applied to those areas of employment law currently requiring unanimous Council approval, such as the protection of workers where their employment contract is terminated, and the representation and collective defence of workers' and employers' interests.

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

European Employment Review January 2010 contents