EU: Social policy state of play, July 2010

The first half of 2010 saw the approval of EU Directives on parental leave, equal treatment for self-employed women and men, and preventing sharps injuries in hospitals and healthcare, while renewed consultations began on review of the Working Time Directive. We review the main developments.

On this page:
Adoption
New proposals
Discussions and amended proposals
Consultations
No progress
Prospects
Table 1: 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 the Council of the European Union, 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 30 June 2010:

• 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; 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.

The Treaty of Lisbon entered into force on 1 December 2009. One effect was 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 new TFEU numbering of articles is used.

Adoption

In March 2010, a Directive (2010/18/EU) was adopted that implemented the EU-level social partners' June 2009 agreement on parental leave. This agreement amended the 1995 European framework agreement on the same issue, which was implemented by EU Directive 96/34/EC. The Directive gives legal force to the amended agreement and will repeal and replace the current Parental Leave Directive from 8 March 2012, the date by which member states must implement the new Directive. The main changes are:

• 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.

During May-June 2010, the Employment, Social Policy, Health and Consumer Affairs (known as EPSCO) Council and the Parliament reached an agreement at second-reading stage 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 will repeal Directive 86/613/EEC on the same issue). Formal adoption should now follow rapidly. The Directive will: 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 schemes as self-employed workers, under the same conditions.

Not included in our state-of-play table because of its sector-specific scope is a Directive (2010/32/EU) adopted on 10 May 2010 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 from sharps injuries" in the hospitals and healthcare sector. The Directive provides for an integrated approach to risk assessment, risk prevention, training, information, awareness-raising and monitoring, and for response and follow-up procedures. Member states must implement the Directive by 11 May 2013.

As part of a legislative simplification initiative, the Commission has been codifying and consolidating in single instruments a number of Directives and their subsequent amendments, though with no changes of substance. As they lack substantive content, these draft Directives are not included in our state-of-play table. One of them, 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 on 30 November 2009 as Directive 2009/148/EC.

On 25 March 2010, the EU-level cross-industry social partners signed a European framework agreement on inclusive labour markets, following earlier consultations by the Commission. The agreement provides a general framework for measures to help people facing difficulties in entering, returning to or integrating into the labour market, or those who are at risk of losing their job. It identifies obstacles to inclusive labour markets and solutions to overcome them, providing for measures in areas such as education and training, recruitment and induction policies, individual competence development, geographical and occupational mobility, and the promotion of workforce diversity. There is also a focus on awareness-raising, information dissemination, action plans and cooperation. The agreement is an "autonomous" one, in that it will be implemented by the signatories' national member organisations across Europe, rather than by being given legal force by a Directive. Implementation must occur by March 2013.

New proposals

No significant new legislation in the employment field was proposed in the first half of 2010.

Discussions and amended proposals

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 were 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 indicated a degree of consensus. However, formal talks among national Governments cannot start until the Parliament has given its first reading. This had been due in May 2009, but the report from the Parliamentary Committee on Women's Rights and Gender Equality was referred back to the Committee, as it was opposed by a majority of MEPs. The Committee eventually adopted a new report in February 2010, and the Parliament is now due to vote on it in October 2010. The Committee has recommended amendments including:

• a minimum period of maternity leave of 20 weeks;
• a right to full pay during maternity leave;
• additional fully paid leave in situations such as premature childbirth, the birth of a child with disabilities, births involving mothers with disabilities or teenage mothers, multiple births and births occurring within 18 months of previous births;
• a right for fathers to two weeks of paternity leave on full pay;
• entitlement to maternity and paternity leave in the event of adoption of a child; and
• a ban on the dismissal of pregnant workers from the beginning of a pregnancy to at least six months following the end of maternity leave.

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 Parliament gave the proposal a first reading in April 2009 and the EPSCO Council has since been seeking a common position. In the first half of 2010, the Spanish EU Presidency proposed compromise amendments aimed at: bringing the proposal into line with the TFEU; defining the concept of discrimination more clearly; clarifying the scope of the Directive; and spelling out the disability provisions more precisely. The Presidency reported to the EPSCO Council in June that, despite some progress, further discussions are needed on numerous issues. These include the division of competences between the member states and the EU, the disability provisions and the implementation timetable.

With regard to a sector-specific proposal not included in the table, in June 2010, the Parliament rejected a European Commission proposal to amend Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities. The 2002 Directive, which places limits on lorry and bus drivers' working hours, applied to employees only and not to self-employed drivers. However, it provided that, in principle, its provisions should apply to self-employed drivers from March 2009, unless the Commission proposed legislation to the contrary. In October 2008, the Commission issued a draft amending Directive that would have maintained the exclusion of the self-employed. The Parliament voted in June to reject the proposed amending Directive, which implies that self-employed drivers should now be covered by the original Directive's rules. The Commission has not yet indicated its next step.

Consultations

Under art.154 of the TFEU, before submitting proposals in the social policy field, the 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, 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 first half of 2010 was on a review of the Working Time Directive (2003/88/EC). A previous attempt to revise the Directive failed in April 2009, with the Council and the Parliament unable to agree on a number of issues, notably the future of the "opt-out" - the option for member states not to apply the Directive's maximum average weekly working time of 48 hours if a worker agrees to this individually. In March 2010, the Commission relaunched the process by consulting the social partners.

The Commission proposed a comprehensive review of the Directive, aimed at identifying which of its provisions need to be adapted, simplified or clarified to take account of developments in the length and distribution of working time that have occurred since the Directive was originally adopted in 1994. The Commission identified four key issues: maximum weekly working hours; on-call time; flexibility in the averaging of weekly hours; and flexibility in the timing of minimum daily and weekly rest periods.

The social partners gave their responses in early June. The ETUC argued that the Directive should be strengthened and called for the abolition of the opt-out, and for on-call time at the workplace (when a worker is obliged to be present and ready to work if called upon) to be considered as working time, in line with European Court of Justice rulings on the topic. It also opposed any further flexibility in averaging weekly working hours or in the timing of minimum daily and weekly rest periods. The ETUC stated that it was not considering initiating a dialogue with EU-level employers' organisations on review or revision of the Directive, given their differing positions.

BusinessEurope said that it shared the Commission's view that the world of work has changed considerably and that this has had an impact on the organisation of working time. It argued that the revision of the Directive must address the on-call work issue and continue to ensure the possibility of the opt-out. The social partners at national, sectoral and company level must be able to devise suitable arrangements for the organisation of working time.

The sole second-stage consultation launched in the first six months of 2010 (not included in our table) related to 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 hinder the effective medical use of magnetic resonance imaging (MRI). 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, the Commission launched a first consultation of the social partners in July 2009 and a second in May 2010. The consultation process is unlikely to lead to social partner negotiations, and the Commission is planning to issue a draft amending Directive in the fourth quarter of 2010.

Second-stage consultations are 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).

Draft Directives on musculoskeletal disorders and maritime workers are planned by the European Commission for 2010 or 2011.

No progress

The EPSCO Council has not 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 halted 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). The future prospects of the proposal are expected to be considered in a green paper on pensions that the European Commission was due to publish in July 2010.

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 have played an important part in preventing agreement in the Competitiveness Council, which has not discussed the Regulation publicly since December 2009.

In the field of immigration policy, a draft Directive on a uniform application procedure for migrants wanting to work and live in the EU was given a first reading by the Parliament in November 2008. The Justice and Home Affairs Council reached a degree of consensus on the proposal in 2009. However, when the Lisbon Treaty came into force in December 2009, the legal basis of the draft Directive changed, which means that it is now subject to co-decision rather than consultation between the Parliament and Council. The Parliament must therefore give a renewed first reading, which was due in July 2010.

Prospects

In employment legislation terms, the most significant developments of the first half of 2010, under the Spanish EU Presidency, were the adoption of the revised Parental Leave Directive and approval of the Directive on equal treatment between self-employed women and men, along with the adoption of the Directive on preventing sharps injuries in the hospitals and healthcare sector. There was some movement on the draft Directive amending the Pregnant Workers Directive, following a lengthy hiatus. The three other main legislative proposals awaiting adoption - those on supplementary pension rights, a single application procedure for migrant workers and the European Private Company - made no progress. The draft amending Directive on drivers' working hours was rejected.

Following a relatively quiet period for new EU employment legislation, the Commission is planning to take a number of significant initiatives during the remainder of 2010 and in 2011. It has returned to the thorny issue of revision of the Working Time Directive by holding a first-stage consultation of the social partners. Following a second-stage consultation, and a legal, social and economic impact assessment, the Commission plans to issue new proposals to "adapt the legislation to the needs of workers, businesses, public services and consumers of the 21st century" in the fourth quarter of 2010. There are no signs so far that the issue will be any less contentious than it was during the last attempt to revise the Directive over 2004-2009.

The Commission is also planning action on another controversial issue, the interpretation and application of the Posted Workers Directive (96/71/EC). In its 2010 work programme, the Commission announced an unspecified initiative to improve the Directive's implementation, clarifying the legal obligations for national authorities, businesses and workers, and ensuring that the same rules are applicable across the EU. In March, László Andor, the commissioner for employment, social affairs and inclusion, said that he would submit a legislative proposal within a year to improve legal certainty and ensure that the Directive is applied and enforced more uniformly across the member states, following a consultation of all stakeholders, including the social partners.

The 2010 work programme also states that the Commission will propose:

• amendments to a number of employment law Directives to end the exclusion of maritime workers;
• a revision of the 2004 Directive on health and safety relating to electromagnetic fields (scheduled for the fourth quarter of 2010);
• the consolidation into a single legislative instrument of the provisions found in various Directives on the protection of workers from the risks of musculoskeletal disorders (due in 2011);
• a Directive on the conditions of admission of non-EU ("third-country") nationals who are transferred internally by a multinational company to work in a member state, setting out common procedures to regulate the entry into, temporary stay and residence in the EU of these "intra-corporate transferees" (due in July 2010);
• a Directive on the conditions of entry and residence of non-EU nationals for the purposes of seasonal employment, including measures providing a secure legal status and reinforced protection against exploitation for this group (scheduled for July 2010);
• a comprehensive legal framework for data protection, adapting the 1995 Directive on the subject (95/46/EC) to new technological developments and reflecting the provision of the Lisbon Treaty.

The Commission will conduct during 2010 a cost-benefit study over a possible initiative on paternity leave, taking into account the outcome of the current deliberations in the EU institutions on the proposed Directive amending the Pregnant Workers Directive. It will also examine possible simplification of the provisions on information and consultation in the Directives on employee involvement in two forms of company based in EU law - the European Company and European Cooperative Society.

As part of a new EU gender equality strategy for 2010-2015, which is due to be launched in September 2010, the Commission plans to consult the social partners on possible legislative initiatives to narrow the gender pay gap. These include measures to reveal the gender pay gap and ensure transparency on pay at company and individual levels, and reinforced obligations to ensure gender-neutral job classifications and pay scales.

Belgium took over the EU Presidency for six months on 1 July 2010. In the employment law area, it has announced that it will prioritise work on the draft Directive amending the Pregnant Workers Directive and hold an initial policy debate on revision of the Working Time Directive, following the outcome of the consultation of the social partners. The Belgian Presidency will also address the forthcoming draft Directives on electromagnetic fields, the application of employment law to maritime workers, intra-corporate transferees and seasonal workers.

This article was written by Mark Carley, European editor.

European employment policy, practice and law, July 2010