EU: Social policy state of play, July 2007
The first half of 2007, under the German EU presidency, saw little progress on the employment legislation front, though the social partners reached an important agreement on harassment and violence at work and the European Commission launched consultations on possible new work-life balance rules. We review the main developments.
On this page:
Adoption
New proposals
Discussions and amended proposals
Consultations
No progress
Prospects
Table: Social policy state of play
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Key points
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The state-of-play table below lists all important "live" items of draft 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 20 June 2007:
- the full title of the proposal;
- a reference to the issue of the Official Journal of the European Union1 - the OJ - 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 (EP), 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.
Three 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 006/123/EC (on the EUR-Lex website) of the European Parliament and of the Council of 12 December 2006 on services in the internal market was published in OJ L376 of 27 December 2006 and must be implemented by 28 December 2009;
- Regulation (EC) No 1907/2006 (PDF format, 1.8Mb) (on the EUR-Lex website) of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC was published in OJ L396 of 30 December 2006 and entered into force on 1 June 2007; and
- Directive 2006/121/EC (PDF format, 112K) (on the EUR-Lex website) of the European Parliament and of the Council of 18 December 2006 amending Council Directive 67/548/EEC on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances in order to adapt it to Regulation (EC) No 1907/2006 was also published in OJ L396 of 30 December 2006 and must be implemented by 1 June 2008.
On 26 April 2007, the central EU-level social partner organisations - ETUC (and the CEC/Eurocadres liaison committee) for trade unions and BusinessEurope, Ueapme and Ceep for employers - signed a framework agreement on harassment and violence at work. The idea of such an accord was first mooted in the social partners' 2003-05 joint work programme, and the European Commission contributed to the debate in January 2005 by consulting the partners on a possible EU-level initiative on protecting workers from violence at the workplace. The social partners then included negotiation of an agreement on violence at work in their 2006-08 joint work programme and talks started in June 2006.
The agreement aims to raise awareness of workplace harassment and violence and provide a framework for dealing with it. It promotes awareness-raising and training on the issue and requires enterprises to have a clear statement, warning that workplace harassment and violence will not be tolerated and specifying the procedure to be followed when problems arise. The accord lays down the principles to underpin these procedures, and provides that appropriate action should be taken against perpetrators and support provided to victims. Responsibility for determining, reviewing and monitoring procedures rests with the employer, in consultation with workers and/or their representatives.
The agreement is "autonomous", in that it will be implemented (by April 2010) by the signatories' national member organisations, rather than forwarded to the European Commission with a request for implementation via an EU Directive (as provided for in art. 139 of the TEC). The accord will thus be put into effect by trade union and employers' organisations in the EU member states (and in the three other countries of the European Economic Area, or EEA - Iceland, Liechtenstein and Norway). The signatories have also invited their member organisations in candidate countries for EU membership (Croatia, Turkey and the Former Yugoslav Republic of Macedonia) to implement the accord.
The harassment and violence accord is the sixth cross-industry European agreement and the third - following those on telework in 2002 and work-related stress in 2004 - to be implemented by the signatories' national member organisations, rather than being given the force of law.
Outside the field of social partner negotiations, the first half of 2007 saw the adoption of no relevant EU legislation. However, one development in late 2006 that has come to light since our previous round-up should be mentioned here. On 20 November 2006, with little fanfare, the council adopted Directive 2006/109/EC (on the EUR-Lex website), adapting Directive 94/45/EC on European Works Councils in the light of the accession of Bulgaria and Romania to the EU from 1 January 2007.
When the EWCs Directive was adopted in 1994, it covered 17 countries - the 15 EU member states at the time, minus the UK (at the time exempted by its "social chapter opt-out"), plus the three other EEA countries. Under the Directive, the special negotiating body (SNB) of employee representatives that holds talks with management over the establishment of an EWC must include representatives from all EU/EEA countries in which the multinational concerned operates. The 1994 Directive thus provided that an SNB could have a maximum of 17 members. This upper limit was increased to 18 in 1997 (by means of Directive 97/74/EC) in light of the fact that the UK had "opted in".
However, when 10 new member states joined the EU in 2004, bringing the number of countries covered by the Directive to 28, the EWCs Directive was not amended to reflect this fact, and the maximum size of the SNB remained at 18. Rectifying this anomaly has been one of the issues in the long-running debate over the revision of the EWCs Directive. With Bulgaria and Romania joining the EU this year, the new amending Directive (2006/109/EC) finally addresses the problem. It provides that the maximum number of SNB members shall be "equal to the number of member states" (ie all EU/EEA countries), which is currently 30. Member states were required to implement the Directive by 1 January 2007.
The only new legislative proposal issued in the first half of 2007 with a direct impact on employment relations was a draft Directive on sanctions against employers of "illegally staying third-country nationals".
As part of the EU's migration policy, this proposal would impose sanctions such as fines, loss of public subsidies and criminal penalties on employers that employ illegal immigrants from outside the EU. It would require employers to carry out pre-recruitment checks on the residence status of prospective employees from non-EU countries, and would also strengthen enforcement and monitoring in this area. The commission argues that the possibility of finding work encourages illegal immigration into the EU and wants to reduce this "pull factor".
The draft Directive is now awaiting debate in the EP and council.
Discussions and amended proposals
The draft item of social legislation given greatest priority by the German presidency has been the proposed Directive on the portability of supplementary pension rights, issued by the commission in October 2005. The commission's proposal seeks to remove obstacles to labour mobility within the EU and to workers' career development opportunities stemming from provisions in employment-based supplementary pension schemes. These obstacles relate to: the conditions of acquisition of pension rights; the conditions of preservation of dormant pension rights; and the transferability of acquired rights.
During council debate over the proposal under the Finnish EU presidency in the second half of 2006, progress was made on a number of points. Notably, member states broadly agreed that pension schemes across the EU are so diverse that the obligatory transferability of pension rights cannot realistically be achieved, at least for the foreseeable future, and that the draft Directive should therefore concentrate on the preservation of previously accrued rights.
Further intensive debate took place under the German presidency, with agreement that the Directive should have a single implementation date and no transitional period. However, a number of substantial questions remain unresolved, in particular that of the extent of possible exemptions from the scope of the Directive. Furthermore, the Dutch government has a general reservation about the entire proposal, doubting whether the text as it stands can achieve the stated aim of enhancing labour mobility. It believes that the original draft has been significantly watered down, with a long list of exemptions that has further narrowed the Directive's already limited scope.
The council debated the supplementary pensions proposal on 30-31 May, seeking agreement on a "general approach". However, the presidency concluded that "given the impossibility of reaching a compromise that would satisfy all the delegations … at this stage, the council was not yet in a position to agree on a text, as the required unanimity was not achieved". The council agreed that it would explore "the possibility of resuming work" after the EP had given the draft Directive a first reading (this occurred on 20 June) and the commission has issued an amended proposal.
As part of a legislative simplification initiative, the commission is currently seeking to codify and consolidate in single instruments a number of Directives and their subsequent amendments. As this codification may involve "no changes of substance" to the instruments concerned, the EU institutions have agreed that an accelerated procedure may be used for the fast-track adoption of codification instruments. In November 2006, the commission issued proposals for the codification of the Directives on:
- the protection of employees in the event of the insolvency of their employer (80/987/EEC);
- the protection of workers from the risks related to exposure to asbestos at work (83/477/EEC); and
- the minimum safety and health requirements for the use of work equipment by workers at work (89/655/EEC).
Given the absence of substantive content, these draft Directives are not included in our state-of-play table, but it is worth noting that the EP gave all three a first reading on 19 June 2007, which should open the way for their rapid adoption.
Also not included in our table, given its essentially technical content, is a draft Directive issued by the commission in July 2006 on the reporting mechanisms related to a number of health and safety at work Directives. These require the member states to report regularly on their practical implementation, and the commission wants to rationalise the various reports. The EP gave the proposal a first reading on 26 April 2007. It proposed a number of amendments that were the result of a compromise agreed with the council, with the aim of reaching an agreement at first reading stage. The council gave its first reading on 30-31 May.
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 seek to negotiate a European-level agreement on the issue in question, which may substitute for EU legislation.
The commission initiated no first-stage consultations during the first half of 2007, but it did move to the second stage on several issues.
On 14 March, having concluded that there is a need for further EU action to improve workers' protection against musculoskeletal disorders (MSDs), the commission consulted the social partners again on the issue, asking for input on the content of an EU initiative. The commission mooted the idea of a new Directive addressing all significant risk factors of work-related MSDs and laying down minimum health and safety requirements for protecting workers from exposure to these risk factors in all workplaces. The social partners had until the end of April 2007 to give their responses, and could have signalled their intention to negotiate a European-level agreement on the issue. However, BusinessEurope has ruled out such negotiations.
On 4 June, the commission announced its support for a campaign to tackle workplace MSDs launched by the European Agency for Safety and Health at Work. Under the slogan "Lighten the load", the campaign involves information provision, good-practice awards and various events. In backing the campaign, the commission referred to the social partner consultations and its wish for an EU initiative in this area. However, it has not given up the idea of a Directive, stating that "a legislative initiative, setting out a revised, integrated and more legible EU regulatory framework on musculoskeletal disorders, might be appropriate".
On 30 May, the commission launched a second stage of consultations on improving the reconciliation of work, private and family life - examined in detail here.
Consultations have reached the second stage in relation to possible action on workplace data protection, restructuring and employment, and review of the European Works Councils (EWCs) Directive. However, in all three cases, nothing notable has happened since the close of the second round of consultations. That was over four years ago in the case of data protection (which has been dropped from our table) and two years in the cases of restructuring and EWCs.
A number of recent social partner consultations are not listed in the table, due to their technical or narrow scope, but several are worth mentioning:
- in December 2006, the commission launched first-stage consultations on protecting healthcare workers from blood-borne infections due to needlestick injuries. The process has not yet moved to the second stage;
- in April 2007, the commission launched second-stage consultations on EU action to protect workers from the risks related to exposure to carcinogens, mutagens and "substances toxic for reproduction" at work (a first stage of consultations had been held in April-May 2004). BusinessEurope has indicated that it is not interested in negotiating an EU-level agreement on the subject; and
- in September 2006, following first-stage consultations by the commission, the maritime sector social partners agreed to enter into negotiations with a view to reaching an agreement on the implementation across the EU of the new International Labour Organization (ILO) maritime labour Convention (on the ILO website) adopted in February 2006. These talks still appear to be in progress.
Finally, the central social partners included in their 2006-08 work programme the possible negotiation of a voluntary framework agreement on the integration of disadvantaged groups on the labour market, partly prompted by a first-stage consultation launched by the commission in February 2006 on promoting the "active inclusion of the people furthest from the labour market". Formal talks on such an agreement have not yet been reported.
The two most controversial proposed employment Directives are now, it seems, irrevocably deadlocked. The draft Directive on working conditions for temporary agency workers has not been publicly discussed in council since October 2004 (and has thus been dropped from our table), following the failure to find a compromise that is acceptable to all member states. Similarly, 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) has reached an impasse following the failure of the Finnish presidency's efforts to broker a deal in the second half of 2006. The main stumbling block was the individual "opt-out" from the Directive's maximum average weekly working time of 48 hours.
In both cases, the commission is reviewing its options and has been seeking views on the way forward in the consultations over its green paper on the modernisation of labour law (see below). The green paper asks for input on the possibility of:
- clarifying the responsibilities of the various parties within "multiple employment relationships" - subcontracting and temporary agency work - to determine who is accountable for compliance with employment rights;
- clarifying the employment status of temporary agency workers; and
- modifying minimum requirements concerning the organisation of working time to provide greater flexibility for both employers and employees, while ensuring a high standard of protection of workers' health and safety.
EU social policy is currently in a state of hiatus. The number of "live" pending legislative proposals in our state-of-play table is at its lowest for many years. In the employment law field proper, only the draft Directive on supplementary pension rights is currently under active discussion, and progress is slow. In the field of employment-relevant migration policy, the new draft Directive on sanctions against employers of illegally staying third-country nationals will now be debated by the EP and council, and will be followed later this year by further drafts on the conditions of admission to the EU for high-skilled workers and on the rights of legal immigrants in employment.
With regard to initiatives still at the social partner consultation stage, or awaiting action following consultation, a draft Directive on MSDs may be issued at some stage, but no timetable has yet been set. The most fertile source of possible legislative proposals and/or EU-level social partner agreements is undoubtedly the current second-stage consultation on reconciliation of work, private and family life.
The commission has in mind action to introduce wide-ranging new rights to paternity, adoption and dependant-care leave, and strengthened maternity protection and parental leave entitlements. The concrete form this action will take will become clearer after the consultation ends in mid-July. The social partners themselves may also start talks this year on a possible framework agreement on either the integration of disadvantaged groups on the labour market or lifelong learning.
Still awaited from the commission are draft Directives, previously reported to be under consideration, on: amending Directive 2001/23/EC on transfers of undertakings to "clarify and simplify" its application to cross-border operations and possibly introduce other amendments; "simplifying" the various Directives on information and consultation of workers; and enabling the transfer by limited companies of their registered office from one EU member state to another, including provisions on what should happen to employee participation rights in the company concerned.
Apart from these initiatives, the legislative pipeline is essentially empty. The future course of EU employment legislation seems to be awaiting the outcome of the consultation process over the commission's green paper, entitled Modernising labour law to meet the challenges of the 21st century. This aims to launch a debate among the member states, the social partners and other "stakeholders" on how (mainly individual) labour law at EU and national level can help the labour market become more flexible while maximising security for workers. This is part of a wider "flexicurity" debate, with the commission due to publish a communication on the issue at the end of June (just after this article was completed), which should form the basis for a set of EU-wide flexicurity principles.
Depending on the commission's approach following the consultation process, the green paper contains ideas that could potentially be translated into legislation in many areas, such as: access to training; clarifying legal definitions of employment and self-employment; providing a "floor of rights" for all workers, regardless of the form of their employment contract; subcontracting and temporary agency work; making the organisation of working time more flexible; guaranteeing the employment rights of workers moving within the EU; and combating undeclared work.
This article was written by Mark Carley, editor, European Employment Review.
1. Copies 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, fax: + 352 488573; in the UK from the Stationery Office, International Sales Agency, 51 Nine Elms Lane, London SW8 5DR, tel: +44 (0)20 787 9090, fax: + 44 (0)20 787 38463; or online at http://europa.eu.int/eur-lex/
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Social policy state of play |
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EMPLOYMENT AND REMUNERATION |
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Subject |
Legal base |
Current position |
Proposal for a Directive of the European parliament and of the council amending Directive 2003/88/EC concerning certain aspects of the organisation of working time. COM (2004) 0607; amended proposal COM (2005) 0246. |
Art. 137(2). Co-decision procedure. |
First commission
consultation on implementation and possible review of 1993 working time Directive ran from 5 January to 31 March 2004. Second consultation launched on 19 May. Social partners decided not to negotiate an agreement and commission issued draft Directive on 22 September, focusing on opt-out from maximum 48-hour week, reference periods for calculating working time, compensatory rest and on-call working. Discussed in social affairs council on 4 October and |
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EQUAL TREATMENT |
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Subject |
Legal base |
Current position |
Consultation of the EU-level social partners on reconciliation of professional, private and family life. SEC (2006) 1245 (first consultation). |
Art. 138. |
Commission launched first stage of consultation on 12 October 2006, seeking social partners' views on possible direction of future Community action (EER 394 p.16). Consultation ended in early December. Commission launched second social partner consultation on content of action on 30 May 2007. |
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IMPROVEMENT OF LIVING AND WORKING CONDITIONS |
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Subject |
Legal base |
Current position |
Consultation of the EU-level social partners on restructuring and employment. COM (2005)120 final (second consultation). |
Art. 138. |
Commission launched first stage of consultation on "socially intelligent restructuring" on 15 January 2002, asking social partners for their views on managing change and restructuring and to identify and develop good practice. Social partners held seminars in 2002 and 2003 and concluded joint text in October 2003. Second stage of consultation launched on 5 April 2005 - combined with that on EWCs (see below) - asking social partners to engage in further work on this issue and agree on best-practice guidelines. Responses given in autumn 2005, with differences of opinion between social partners, but they have agreed to promote and assess their 2003 joint text. |
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INFORMATION, CONSULTATION AND PARTICIPATION |
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Subject |
Legal base |
Current position |
Consultation of the EU-level social partners on the review of the European Works Councils Directive. COM(2005)120 final (second consultation). |
Art. 138. |
Commission launched first stage of consultation on 20 April 2004, asking social partners for their views on measures to enhance effectiveness of EWCs, including possible revision of Directive. Social partners organised seminars looking at best practice in September-October and concluded joint text on "lessons learned" in March 2005. Second stage of consultation launched on 5 April - combined with that on restructuring (see above) - asking the social partners to engage in further work on this issue and agree on best-practice guidelines (with only passing reference to revising Directive). Responses given in autumn 2005, with differences of opinion between social partners, but they have agreed to promote and assess their 2005 joint text. |
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HEALTH PROTECTION AND SAFETY AT THE WORKPLACE |
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Subject |
Legal base |
Current position |
Consultation of the EU-level social partners on musculoskeletal disorders at work. |
Art. 138. |
Commission launched first consultation of social partners on 12 November 2004, seeking views on whether further initiatives are needed. 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. |
* Framework agreement on harassment and violence at work. |
Art. 139. |
Commission launched first consultation of social partners on 17 January 2005 seeking views on usefulness of an initiative on violence at the workplace, including bullying. Social partners were already examining issue and began formal negotiations in June 2006. Agreement signed by ETUC (and the CEC/Eurocadres liaison committee), BusinessEurope, Ueapme and Ceep on 26 April 2007. Agreement to be implemented by social partners themselves. |
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FREEDOM OF MOVEMENT |
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Subject |
Legal base |
Current position |
Proposal for a Directive of the European parliament and of the council on improving the portability of supplementary pension rights. COM (2005) 0507. |
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 social affairs 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. |
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MIGRATION POLICY AND EMPLOYMENT |
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Subject |
Legal base |
Current position |
Proposal for a Directive of the European parliament and of the council providing for sanctions against employers of illegally-staying third-country nationals. COM (2007) 249 final. |
Art. 63(3)(b). Co-decision procedure. |
Commission issued draft Directive on 16 May 2007. It aims to ensure that all member states introduce similar penalties for employers of illegal immigrants and enforce them effectively, with the goal of preventing the employment of such workers and discouraging illegal immigration into the EU. |
European Employment Review 402 (EER 402) contents
