European Union: Social policy state of play

The second half of 2005, under the UK presidency of the council of ministers, has seen the adoption of the proposal on cross-border mergers and of the Directive giving legal force to the social partners' agreement covering workers employed on cross-border rail services. The European Commission has also issued a new proposal designed to protect workers' supplementary pension rights, in an attempt to increase labour mobility. We review the main developments.

The table below contains all important "live" items of draft social policy legislation of general interest to our readers that are still in the legislative pipeline. It does not contain those measures that were adopted prior to the 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 for more than two years) are not included.

For each proposal, the table provides the following information, as at 24 June 2005:

  • the full title of the proposal;

  • a reference to the issue of the Official Journal of the European Union* - the OJ - in which the proposal (and any subsequent revised versions) was published. Laws appear in the Legislative ("L") series, while other instruments and proposals appear in the Communications ("C") series;

  • 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, 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.

    Adoption

    Cross-border mergers

    The proposal for a Directive on cross-border mergers of companies with share capital, issued by the commission on 18 November 2003, was formally adopted on 19-20 September 2005.

    Overall, the text provides that a cross-border merger remains subject to - with regard to rights other than those of participation in the acquiring company or in the new company created by the cross-border merger - the relevant provisions applicable in member states. The change of employer resulting from the merger operation must have no effect on the contract of employment or employment relationship in force at the time of the merger, which is automatically transferred to the new owner. Also protected after the merger are all acquired rights of employees agreed under a collective agreement, and their rights to old-age, invalidity or survivor's benefits under statutory social security schemes.

    In terms of employee participation, the proposal contains specific provisions that seek to address fears that in the case of cross-border mergers the process might be hijacked by companies which, faced with having to live with employee participation, might try to circumvent it by means of such a merger. In particular, it deals with situations where the protection of acquired rights of participation is put at risk by the merger. This is relevant only in a situation where one of the merging companies has a compulsory or voluntary participation regime and the law of the member state where the company created by merger is to be incorporated does not impose compulsory employee participation. The text provides for a negotiated solution to be reached. However, if the merging companies fail to reach a negotiated solution, the participation system which best protects the acquired rights of the workers, and which already exists in one of the merging companies, is extended to the company created by merger.

    Discussion of the proposal took place at the 25-26 November 2004 competitiveness council, pending a first reading in the EP. At this council, ministers agreed by a large majority on a general approach to the text. In the area of employee participation rights, ministers agreed that the general principle contained in the draft Directive is that the national law governing the company resulting from the cross-border merger will apply.

    The EP gave the text a first reading on 10 May 2005 (European parliament: First reading of cross-border mergers Directive), at which it made some amendments to the worker involvement provisions, formalising the competitiveness council discussions. The Directive was adopted by the council in September 2005 and formally signed by the council and the EP on 26 October 2005.

    The Directive aims to facilitate mergers of limited liability companies on a cross-border basis. It sets out a simple framework, drawing largely on national rules applicable to domestic mergers and avoids the winding up of the acquired company. It covers all limited-liability companies, with the exception of undertakings for collective investment in transferable securities; and there are special provisions for cooperative societies - given the diversity of cooperatives in the EU, member states can, with the commission's agreement, prevent a cooperative from taking part in a cross-border merger for a limited period of five years.

    One of the main issues of debate during the adoption process concerned the provisions on employee participation, given the widely diverging systems in force in member states, and the related question of how to deal with cross-border mergers that could result in a loss or a reduction of employee participation. The final text of the Directive states that employee participation schemes should apply to cross-border mergers where at least one of the merging companies already operates under such a scheme. Employee participation in the newly created company will be subject to negotiations based on the model of the European Company Statute.

    Working time for workers on interoperable rail services

    An agreement on working time for rail workers who operate on the rail network of at least two member states and who cross borders during their working day was concluded between the EU-level social partners in the rail sector, the Community of European Railways (CER) and the European Transport Workers' Federation (ETF) on 27 January 2004. The agreement regulates rest periods, driving time and driving periods for these types of mobile workers, which are excluded from the 1993 working time Directive.

    The main provisions are as follows:

  • A daily rest period of 12 consecutive hours (instead of the 11 stipulated by the working time Directive). However, this rest period may be reduced to nine hours once in every seven-day period, in which case the hours corresponding to the difference between the reduced rest and 12 hours will be added to the next daily rest period at home. Further, a reduced rest period should not be scheduled between two daily rests away from home.

  • The minimum daily rest period away from home is eight hours and must be followed by a daily rest at home.

  • Breaks of 30 minutes must be given for working time of between six and eight hours, and 45 minutes for working time of eight hours or more.

  • A minimum weekly rest period of 24 consecutive hours must be given, plus the 12-hour daily rest period. Workers are entitled to 104 24-hour rest periods a year. This includes 12 "double rest periods" of 48 hours instead of 24, which must include a Saturday and a Sunday, and a further 12 double rest periods that do not have to include a Saturday and a Sunday.

  • Maximum driving periods of nine hours for a day shift and eight hours for a night shift. The maximum driving time over a two-week period is 80 hours.

    In accordance with art. 139 of the TEC, the signatory parties asked for the agreement to be implemented by council decision, on a proposal from the commission. Accordingly, the commission issued a proposal for a Directive on 8 February 2005. This was discussed at the 2-3 June 2005 social affairs council, at which political agreement was reached by a qualified majority (this is an area in which the council may act by qualified majority). The UK and Slovakia are reported to have abstained from the vote, considering that the agreement was too costly and not flexible enough.

    The EP does not need to be consulted on this proposal, although it gave an opinion on the text in May 2005. The text was formally adopted by the council on 18 July 2005 and appeared in the OJ on 27 July 2005 as Directive 2005/47/EC.

    New proposals

    Portability of supplementary pension rights

    On 20 October 2005, the commission issued a proposal for a Directive on the portability of supplementary pension rights, aiming to increase labour mobility around the EU and improve workers' career and development opportunities. This proposal follows two formal consultations of the EU-level cross-sector social partners. Due to the differing views of employer and trade union representatives, there was no possibility of them negotiating an agreement on this issue, and so the commission has issued a legislative proposal. The main elements of the proposal cover the following:

  • Acquisition rights. It puts into place ceilings on acquisition conditions and limits on the waiting period before an employee can join a pension scheme and on vesting periods, enabling mobile workers to build up sufficient supplementary pension rights throughout their career.

  • Preservation of dormant rights. The commission believes that workers should not suffer a considerable reduction in the acquired rights that they have left in a supplementary pension scheme linked to a former employment relationship. The proposal therefore allows for the transfer of the rights or payment of a capital sum representing the value of the acquired rights, up to a set threshold.

  • Transferability. Workers will have the right either to maintain their rights in a former scheme, or to transfer them to another scheme, although member states will be able to exclude unfunded schemes from the transfer requirement (subject to review after 10 years).

    The proposal covers all supplementary pension schemes that are based on an employment relationship, with the exception of schemes that fall under the EU's social security regulation 1408/71, such as the French AGIRC/ARRCO scheme.

    Consultations

    Revision of the EWCs Directive

    The European Commission issued a first consultation document on the possible review of the European Works Councils (EWCs) Directive on 20 April 2004. In this, it asked the EU-level social partners how they think the EWCs Directive, which dates from 1994, can best respond to the challenges of a changing economic and social environment.

    In general, the ETUC is keen to see legal revision of the text. However, UNICE is more interested in entering into a process of dialogue with the ETUC in which case studies are examined and best practice is discussed.

    In June 2004, the EU social dialogue committee, which brings together the EU-level social partners, agreed to hold two seminars to discuss case studies of how EWCs are responding to EU enlargement, with a view to identifying best practice. These seminars, which took place in September and late October, were organised within the framework of the social partners' commitment to look at EWCs and enlargement as part of their three-year joint work programme and are therefore not formally connected with the commission's consultation on the review of the Directive.

    On the basis of these seminars, CEEP, UNICE/UEAPME and the ETUC concluded a joint text on Lessons learned on European Works Councils, dated 7 April 2005 (European Union: Consultation on restructuring and EWCs). The text is based on the examination of nine case studies from around Europe.

    At around the same time, the European Commission issued a communication dealing with industrial restructuring and EWCs, which constitutes the second formal consultation to the social partners on EWCs. In this, the commission states that the management of industrial restructuring and the operation of EWCs are closely linked and urges the social partners to engage in negotiations on these two issues. In the area of EWCs, it suggests promoting best practice in the way that EWCs operate, with a view to making them more effective, particularly as agents for change.

    The social partners have, over the past few months, issued their responses to the communication. The ETUC states that it would like to see a legislative revision of the EWCs Directive, although it does not exclude the possibility of future meetings with employer representatives to examine more case studies. By contrast, UNICE does not want the commission to prepare further legislation on EWCs, nor to interfere with local-level decisions.

    It is now up to the commission to decide on the next steps - most specifically, whether to go down the legislative or the voluntary route.

    Managing restructuring and change

    The above-mentioned communication also dealt with the issue of industrial restructuring. This has been a key focus for the commission for a number of years: seeking to find a way of putting in place a framework for managing this phenomenon, it issued its first phase of EU social partner consultations on restructuring in January 2002 (EU Commission: Commission consults on restructuring). In this, it asked the social partners to pinpoint and develop instances of good practice in managing restructuring exercises. After holding a series of seminars in 2002 and 2003, the cross-sector social partners - ETUC, UNICE and CEEP - concluded in June 2003 a joint text entitled Orientations for reference in managing change and its social consequences. This text was formally signed in October 2003 (International: Socially responsible enterprise restructuring in Europe - part one).

    However, the commission believes that there has been "insufficient" dissemination, development and application of this text, which has prompted it to issue this second stage of consultation to the social partners. In particular, it asks the social partners to:

  • implement mechanisms for applying and monitoring existing guidelines on restructuring, and a discussion on the way forward;

  • encourage adoption of the best practices set out in the existing guidelines on restructuring; and

  • devise a common approach to other points the communication highlights as a concern, such as training, mobility, the sectoral dimension and anticipating change.

    For its part, the commission intends to create a "globalisation adjustment fund" with an annual budget of €1 billion and contingency reserves to deal with unforeseen events. Agreement on the setting up of this fund in principle was reached at the Hampton Court informal summit in October 2005 (EIRR 383 p.35). The commission also created a restructuring forum to keep in touch with change and coordinate various initiatives aimed at managing change. This forum, which has been greeted with some scepticism by European employer representatives, held its first meeting in June 2005 (European Commission: Restructuring forum meets).

    The social partners gave their reactions to the commission's communication during autumn 2005. The ETUC wants the commission to issue its planned proposal on harmonisation of existing information and consultation rights, believing that this will contribute to the better management of change. UNICE also wants to improve Europe's capacity to manage change, but does not support the creation of any new capacity for intervention at EU level in crisis situations. However, both UNICE and ETUC note that discussions on restructuring will continue in the context of a joint study of restructuring in the new EU member states, due to end in June 2006. The commission will decide on the next steps in the coming months.

    Discussions and amended proposals

    Review of the working time Directive

    Debate on the commission's proposal for the revision of the 1993 working time Directive continued throughout the second half of 2005, culminating in attempts to reach political agreement on the text at the December 2005 social affairs council.

    The social partners had declined the commission's invitation to negotiate an agreement on revision of the Directive, after two consultation exercises, asking the commission to issue a proposal instead. The commission's proposal, issued on 22 September 2004, is a five-article document covering the following areas:

  • Two new definitions regardingworking time: on-call working; and the inactive part of on-call working. On-call working is defined as time during which the worker is obliged to be available at the workplace to carry out duties at the employer's request. The inactive part of on-call working is defined as a period during which the worker is on call, but not required to carry out duties. This is a response to European Court of Justice (ECJ) case law on on-call working (the Simap case (C-303/98) and the Jaeger case (C-151/02)), which essentially ruled that all time spent on-call should be classified as working time. Under this proposal, the inactive part of on-call working would not be classified as working time.

  • The normal four-month reference period for averaging out maximum working time is retained. However, member states may extend this period to up to one year by law or regulation, after having consulted the social partners. The 1993 Directive allows member states to extend this period to up to six months only, although it can be extended to up to a year by collective agreement. Thus, the proposal gives national governments more flexibility in setting the reference period for averaging out maximum weekly working time.

  • On the individual opt-out from the maximum working week, the proposal states that opt-outs must be authorised by a collective agreement or an agreement between the two sides of industry, and the consent of the individual concerned should be gained. Where there is no collective agreement and no collective representation of workers, individual consent would suffice. The proposal also tightens up the conditions surrounding the opt-out in the area of record-keeping. Further, consent from an individual may not be sought at the beginning of the employment relationship or during the probationary period and should be renewed each year.

  • Where derogations from daily or weekly rest have been made, compensatory rest should be granted within 72 hours or within a reasonable period as determined by law or agreement.

    The proposal was discussed at the 4 October 2004 and 6-7 November social affairs councils. The EP gave the text a first reading on 11 May 2005, at which it made a considerable number of amendments to the text (European Union: Parliament votes to eliminate working time opt-out). Most controversially, it recommended eliminating the opt-out three years after the Directive has been transposed into national law.

    The commission subsequently issued an amended proposal for discussion at the 2-3 June 2005 social affairs council (European Commission: Restructuring forum meets). In this, the commission proposed a compromise position, under which the opt-out would lapse three years after the Directive's implementation, but member states could apply for its prolongation on the basis of labour market conditions. However, this was not acceptable to all delegations.

    Most recently, the proposal was discussed at the 8-9 December 2005 social affairs council, on the basis of a new compromise text prepared by the UK presidency. The presidency acknowledged the "positive spirit" that had prevailed during the debates and the "significant progress" that had been made. However, it was not possible for overall agreement to be reached at that council.

    After the council, the presidency noted that there are two key issues outstanding: the controversial opt-out provision, on which delegations fall into one of two camps - those in favour of individual opt-outs and those against as a means of protecting workers' health and safety; and the question of whether maximum weekly working time is calculated per contract or per worker.

    Work on this proposal will now continue under the Austrian presidency, which runs for the first half of 2006.

    Services in the internal market

    There has been considerable attention over the past six months given to the commission's proposal on services in the internal market, initially issued on 13 January 2004. This text (the so-called Bolkestein Directive, named after the EU internal market commissioner Frits Bolkestein) aims to provide a legal framework that will eliminate the obstacles to the freedom of establishment for service providers and the free movement of services between the member states. In essence, it aims to remove all national regulations that obstruct freedom of establishment and free movement of services. Among other things, it states that service providers will be subject only to the law of the country in which they are established. Member states may not restrict services from a provider established in another member state. However, derogations may be put in place on either a general, temporary or case-by-case basis.

    This proposal has caused uproar among trade unions throughout Europe, which have staged protests against it. They fear it will result in employers locating themselves in countries with the lowest fiscal, social and environmental requirements and, subsequently, extending from this base their activities throughout the EU.

    The text, which is subject to the co-decision procedure, was discussed by the EP's internal market committee on 22 November 2005, after a two-month postponement of the debate, due to the controversial nature of the text. The committee decided to support a provision that states that a service provider should be subject only to the regulations applying in its home country, rather than the country in which it is operating. In terms of scope, the committee voted to include services of general interest in the Directive, which will cover providers of postal services, water, waste management, electricity and gas, although not healthcare provision. Labour law is also excluded from the scope of the Directive.

    This text is being interpreted as a victory for the coalition of centre-right and liberal MEPs, as the amendments that MEP Evelyn Gebhardt had drafted (which provided for a softening of the text in many areas, particularly that of whether country of origin or host country regulation should apply) have been largely rejected.

    The text as it now stands has been welcomed by representatives of UNICE, but criticised by the ETUC as a "step backwards". The EP is expected to vote on this text in plenary session in February 2006.

    Exposure of workers to optical radiation

    Progress continues to be made on the proposal to protect workers against exposure to optical radiation. This proposal is the final part of the commission's original 1992 proposal on exposure of workers to the risks arising from physical agents, and concerns protection against optical radiation. The other three areas contained in the original proposal - vibration, noise and electromagnetic fields - have now all been adopted as separate texts.

    This text sets out minimum health and safety requirements regarding the exposure of workers to the risks arising from optical radiation, aiming to harmonise controls in the different member states. It is based on the guidelines for restrictions on exposure produced by the International Commission for Non-Ionising Radiation Protection, which are designed to prevent acute and long-term effects on the eyes and the skin that can occur at extremely high levels of exposure. The text places duties on employers, including the requirement to assess risk, reduce exposure, undertake health surveillance and provide information and training to workers.

    The Directive will apply to a range of workers, including those working with lasers and electrical welding equipment, those in the steel and glass industries and those working in artificial tanning businesses.

    The 6-7 November 2004 social affairs council reached political agreement on a common position on the text. The common position was formally adopted on 18 April 2005. The EP gave the text a second reading on 7 September 2005, at which it made a number of amendments. The most high profile of these was to remove the obligation on employers to take measures to protect workers against exposure to sunlight, devolving this responsibility to national governments. On 22 November 2005, the council decided not to accept all of the EP's amendments and therefore a conciliation committee will now examine the text to try to broker an agreement between the council and the EP.

    Equal treatment between men and women in employment and occupation

    On 6 July 2005, the EP gave a first reading to the proposal on the implementation of equal treatment of men and women in employment and occupation. This proposal aims to bring together in a single text seven Directives in the equality area. These are:

  • Directive 75/117/EEC on equal pay;

  • Directive 76/207/EEC, as amended by Directive 2002/73/EC, on equal treatment as regards access to employment, vocational training and promotion, and working conditions;

  • Directive 86/378/EEC, as amended by Directive 96/97/EC, on equal treatment in occupational security schemes; and

  • Directive 98/80/EC, as amended by Directive 98/52/EC, on the burden of proof in cases of discrimination based on sex.

    The commission felt that, in the interests of legal clarity and certainty, and to reflect developments in ECJ case law over the past 20 years, it would be a good idea to bring all of these Directives together in a single coherent instrument.

    The council reached political agreement on the text at the 8-9 December 2005 social affairs council. It will now be passed back to the EP for a second reading under the co-decision procedure.

    Harmonising social legislation in road transport

    There has been further progress on the proposal for a Regulation harmonising social legislation in road transport. The initial proposal was issued by the commission in October 2001, aiming to update a Regulation dating from 1985 (3820/85) on driving times. The proposal, which forms part of the EU strategy to halve road accidents by 2010, contains working time provisions that sit alongside those contained in the new Directive on the organisation of working time for mobile workers in road transport. The EESC gave its opinion on the text on 29 May 2002 and the EP gave the text a first reading on 14 January 2003, at which it made a number of amendments. A revised text was subsequently issued by the commission in August 2003. At the transport council held on 9 December 2004, ministers reached agreement on a common position. The main points of the text as it currently stands are:

  • minimum uninterrupted daily rest period of nine hours;

  • a maximum weekly driving time of 56 hours (the maximum is currently 74 hours);

  • a weekly rest period of at least 45 hours during two consecutive weeks;

  • the competent authorities will have the power temporarily to immobilise a vehicle and withdraw, suspend or restrict an undertaking's or an individual's driving licence;

  • member states will be able to impose sanctions for infringements detected on their territory even if the infringements have taken place outside their territory; and

  • other actors may, in certain circumstances, be held coliable for infringements.

    The proposal will also update Regulation 3821/85 on technical aspects relating to the digital tachograph, providing that vehicles put into service for the first time after 5 August 2005 will be fitted with such a device.

    On 13 April 2005, the EP gave the text a second reading, making a number of amendments. In the social field, the main changes are as follows:

  • extension of the daily rest period to 12 hours;

  • the EP supports the council's proposal for a mandatory 45-minute break after a driving period of four-and-a-half hours, with scope for dividing this into periods of 15 minutes. However, it also recommends a weekly rest period of at least 45 hours, while providing under certain conditions for the reduction of this period to 36 hours (the council is proposing 24 hours);

  • alterations to the definition of driving time to take account of the time taken by drivers to travel to their place of work, in the event of driving themselves to work (and if their journey is over 100km);

  • scope for drivers to take a reduced weekly rest period if their vehicle is withdrawn;

  • more stringent provisions barring transport enterprises from remunerating drivers on the basis of distance travelled and/or the volume of goods carried, and from allocating bonuses; and

  • more stringent penalties available to member states in the event of violation of the Regulation.

    On 27 June 2005, the commission stated that it could accept only 14 of the 43 amendments made by the EP. A conciliation committee was subsequently convened, as provided for by the co-decision procedure. This committee issued a joint text on 8 December 2005, which will now be examined by the EP and the council.

    REACH proposal

    The commission's proposal on the registration, evaluation and authorisation of chemicals, (known as REACH) has been a focus of debate over the past six months. It has implications for the health and safety of workers, thus igniting the interest of trade union representatives, while employer representatives are concerned to ensure that it does not result in increased costs and a greater administrative burden on companies. The new proposal seeks to ensure that residual gaps in available knowledge about the intrinsic properties of huge numbers of substances in use in industry are filled. It is estimated that the new controls will, when in place, prevent tens of thousands of cases of both asthma and dermatitis annually among workers, and reduce the incidence of other chronic lung diseases to the same extent. It has been estimated that the health benefits will represent a saving to the European economy of as much as €160 billion over 30 years.

    The proposal will also set up a new European Chemicals Agency, to be located in Finland.

    The proposal was originally issued by the commission on 29 October 2003. It was given a first reading by the EP on 17 November 2005. The council reached political agreement on a common position on the text on 13 December 2005. It will now be transferred to the EP for a second reading under the co-decision procedure.

    No progress

    Temporary work proposal

    There was no formal progress over the second half of 2005 on the commission's proposal for a Directive on the working conditions of temporary workers. This Directive aims to regulate temporary working through agencies and govern the employment terms and conditions of temporary workers. The commission hopes that this will complete its original atypical work dossier, which includes the Directives on part-time work and fixed-term work. However, the text is complicated and controversial, due to the triangular nature of the employment relationship - involving the worker, the temporary agency and the user company - and the differing incidence and nature of this kind of work around the EU member states.

    It was most recently discussed at the 4 October 2004 social affairs council, which focused on the issue of equal pay and conditions for temporary workers. No concrete progress was made and it was recognised that "further efforts would be needed to enable the council to reach an acceptable compromise for all delegations". The presidency of the council stated at the time that it would continue work on this dossier. However, it has not been on the agenda of council meetings during 2005.

    It remains to be seen whether any progress can be made under the Austrian presidency, during the first half of 2006.

    Work-related musculoskeletal disorders

    There has been no further progress during the past six months on the commission's consultation of the EU-level social partners on how to prevent work-related musculoskeletal disorders (MSDs). Issued on 12 November 2004, the consultation states that this problem is increasing among European workers - more than 40 million workers are affected by ailments such as back pain and repetitive strain injury, accounting for between 40% and 50% of all work-related ill health.

    It states that contributory factors to the development of MSDs include poor ergonomic conditions and work requiring awkward postures, monotonous and repetitive tasks, inappropriate work methods and organisation, and heavy lifting. Preventive actions focus on improving the lifting and moving of heavy loads, reducing repetitive movements and eliminating strenuous working postures, which are the three major risk factors in the development of work-related MSDs.

    Given that there is no general Community-level legal instrument specifically targeting work-related MSDs and their prevention, the commission feels there is a need for a more focused approach to tackling this problem. It states that action at Community level is necessary to ensure a minimum level of protection for workers and has issued this document as a first consultation to the EU-level social partners, inviting them to answer the following questions:

  • Do they consider that the existing health and safety legislative framework is appropriate and sufficient to prevent MSDs or do they think that further initiatives are needed? If so, should this focus on upper-limb MSDs or should it also address other MSDs?

  • Should this initiative be taken at Community level?

  • If so, what should be the main preventive focus: ergonomics; work organisation; psychosocial aspects; or other issues?

  • Is a binding instrument called for from the outset, either by amending existing legislation or adopting new legislation? Would a non-binding initiative be preferable, such as voluntary standards or guidelines? Alternatively, would a combination of the two be preferable, using a binding legal act to set out the goals to be achieved and the technical means of achieving them described in standards or other guidelines? Would a joint initiative of the EU social partners, using the process provided for in art. 139 of the Treaty (negotiations leading to an EU-level agreement), be appropriate?

    Data protection in the employment context

    There has been no progress during the second half of 2005 on data protection in the employment context. The commission issued a first consultation to the EU-level social partners on 27 August 2001 and launched the second stage on 31 October 2002. UNICE stated in January 2003 that it does not want to negotiate an EU-level social partner agreement. The commission is still considering this dossier and has commissioned research on data protection in the employment context. It is expected to act on this issue shortly.

    Prospects

    The first half of 2006 sees the Austrian government take over at the helm of the EU Council of Ministers for a six-month term. The most high-profile issue remains the proposal for a revision of the working time Directive. As ministers failed to reach political agreement on a common position at the December 2005 social affairs council, the attention will now turn to whether the Austrian presidency will be successful in brokering a consensus.

    In addition, the controversial proposal on services in the internal market, which has been the focus of much debate in recent months, will continue to be under the spotlight in 2006, as the EP gives the text a first reading in plenary session. There is also likely to be debate on the commission's new proposal on the portability of supplementary pensions.

    It is expected that the commission will make a decision on the issue of data protection at work in the coming months, following consultation of the social partners on this issue.

    The future of the proposed temporary work Directive remains in the balance - it was not discussed formally during the whole of 2005 and its fate in 2006 will depend in the first instance on the Austrian presidency, but also on debates following the announcement by José Manuel Barroso, president of the European commission, that many pending legislative proposals will either be codified or abolished. The temporary work proposal was mentioned, with Barroso stating that the commission will reconsider it in the light of future discussions on other proposals. While this is far from clear, the longer-term implications could be that the proposal may not be progressed any further.

    * 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; or in the UK from The Stationery Office, International Sales Agency, 51 Nine Elms Lane, London SW8 5DR, tel: +44 (0)870 600 5522, fax: + 44 (0)20 870 600 5533, web: www.tso.co.uk.

    Social policy state of play

    Subject

    Legal base

    Current position

    Employment and remuneration

    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.

    Article 137(2). Co-decision procedure.

    First commission consultation on the implementation and possible review of the 1993 working time Directive ran from 5 January 2004 to 31 March 2004 (Consultation on working time). Particular areas of focus were the opt-out from the maximum 48-hour week, reference periods for calculating working time and on-call working. Second consultation was launched on 19 May 2004 (European Commission urges negotiations on working time Directive). The social partners decided not to negotiate an agreement and the commission issued a proposal on 22 September 2004 (Commission proposes to amend working time Directive). First discussion at 4 October social affairs council (EIRR 370 p.2). Also discussed at 6-7 November 2004 social affairs council (EIRR 372 p.2). EP first reading on 11 May 2005 (European Union: Parliament votes to eliminate working time opt-out), at which it recommended revision of the opt-out. Compromise text prepared by the commission and discussed at 2-3 June 2005 social council (Social council debates working time Directive) and at the 8-9 December 2005 social council (EIRR 384 p.2). Political agreement in council not yet reached.

    Proposal for a Directive of the European Parliament and of the Council on working conditions for temporary workers. COM(2002)0701 (modified proposal)

    Article 137(2). Co-decision procedure.

    Commission launched the first stage of social partner consultation on atypical work on 27 September 1995 (EIRR 262 p.3) and second stage from 18 April 1996 to 14 June 1996. Social partner talks resulted in two agreements: on part-time work and fixed-term contracts. UNICE announced on 3 May 2000 that it was willing to enter into talks on temporary work (EIRR 317 p.3). Talks stalled in March 2001 (EIRR 327 p.3), were re-animated in April 2001 (EIRR 328 p.2), but failed definitively in May 2001 (EIRR 329 p.3). Commission issued a proposal for legislation on 20 March 2002 (Commission issues temporary work proposal, Temporary agency work proposal for text). ESC opinion on 19 September 2002 (Opinion on temporary work proposal), EP first reading on 20-21 November 2002 (Parliament opinion on temporary work proposal). Commission issued revised text on 28 November 2002. Discussed at 2-3 December 2002 (Social Council debates temporary work), 3 June 2003 (No agreement on temporary work Directive) and 4 October 2004 social councils (European Council: October social affairs). No agreement in council. Work to continue on this dossier.

    * Council Directive 2005/47/EC of 18 July 2005 on the Agreement between the Community of European Railways (CER) and the European Transport Workers' Federation (ETF) on certain aspects of the working conditions of mobile workers assigned to interoperable cross-border services. In OJ 195/15 on 27 July 2005.

    Article 139(2).

    An agreement on working time for rail workers who operate on the rail network of at least two member states and cross borders during their working day was concluded between CER and ETF on 27 January 2004. In accordance with art. 139 of the TEC, the signatory parties asked for the agreement to be implemented by council decision, on a proposal from the commission. Accordingly, the commission issued a proposal for a Directive on 8 February 2005 (EIRR 374 p.2). Text discussed at 2-3 June 2005 social affairs council (EIRR 384 p.2), at which political agreement was reached (the council may act by qualified majority). The EP does not need to be consulted on this proposal, although it has been forwarded to the EP, which gave an opinion on 26 May 2005. Formal adoption by the council on 18 July 2005.

    Equal treatment

    Proposal for a Directive of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. COM(2004)0279.

    Article 141(3). Co-decision procedure.

    Proposal on a recast version of seven existing Directives in the equality field, issued on 21 April 2004. Discussed at 6-7 November 2004 social affairs council (EIRR 372 p.2), at which a general approach was agreed. ESC opinion on 15 December 2004. EP first reading given on 6 July 2005. Political agreement reached in council on 8-9 December 2005 (EIRR 384 p.2).

    Improvement of living and working conditions

    Proposal for a Directive of the European Parliament and of the Council on minimum conditions for the implementation of Directive 2002/15/EC and Council Regulations (EEC) nos. 3820/85 and 3821/85 concerning social legislation relating to road transport activities. (COM(2003)0490 amended proposal).

    Article 71. Co-decision procedure.

    Proposal issued by the commission on 12 October 2001 (EIRR 334 p.2). Text will update existing Regulations, dating from 1985, and sit alongside the Directive on the organisation of working time for mobile workers in road transport. ESC opinion given on 29 May 2002. EP first reading on 14 January 2003 (Parliament: EP considers road transport text). Modified proposal issued by the commission on 11 August 2003. Common position reached at transport council on 9 December 2004. EP second reading took place on 13 April 2005, at which 43 amendments to the council's common position were made. On 27 June 2005, the commission stated that it could accept only 14 of these amendments. A conciliation committee was subsequently convened, which issued a joint text on 8 December 2005. Approval from the EP and the council pending.

    Consultation of the EU-level social partners on restructuring and employment. COM(2005)120 final (second consultation).

    Article 138.

    First stage of consultation on "socially intelligent restructuring" issued on 15 January 2002 (EIRR 337 p.2), in which the social partners were asked for their views on managing change and restructuring and to pinpoint and develop instances of good practice in managing restructuring. Social partners held a series of seminars in 2002 and 2003 and a joint text was concluded in June 2003 and formally signed in October 2003 (International: Socially responsible enterprise restructuring in Europe - part one). Second stage of consultation issued on 5 April 2005, in which the commission asks the social partners to engage in further work on this issue. Responses given in autumn 2005 (Social partner response to restructuring and EWCs), with differences of opinion between the social partners. The commission is linking this issue to that of improving the operation of EWCs.

    Information, consultation and participation

    Consultation of the EU-level social partners on the review of the European Works Councils Directive. COM(2005)120 final (second consultation).

    Article 138.

    The commission issued the first stage of consultation on revision of the EWCs Directive on 20 April 2004 (Consultation on possible revision of EWCs Directive), asking the social partners for their views on the possible direction of Community action. Series of seminars looking at best practice organised by social dialogue committee during September and October 2004. A second consultation, within a communication on restructuring, was issued on 5 April 2005 (Consultation on restructuring and EWCs), in which the EU-level social partners were urged to negotiate an agreement on managing change and promoting best practice in the way that EWCs operate. The commission is linking EWCs to the topic of change and industrial restructuring. Social partners' response given in autumn 2005 (Social partner response to restructuring and EWCs). Commission must now decide on the way forward.

    * Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies. OJ 310/1 on 25 November 2005.

    Article 44(1). Co-decision procedure.

    Following the agreement reached in October 2001 on the worker involvement provisions of the European Company Statute, the commission issued a new proposal on cross-border mergers, containing provisions relating to worker participation, on 18 November 2003. ESC opinion on 28 April 2004. Political agreement reached at the 25-26 November 2004 competitiveness council (Discussion of services and cross-border mergers Directives). First reading in the EP on 10 May 2005 (European parliament: First reading of cross-border mergers Directive), at which some amendments were made. Adoption by the council on 19--20 September 2005 at first reading and formal signature from the council and the EP on 26 October 2005.

    Health protection and safety at the workplace

    Proposal for a Directive of the Council and the European Parliament on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (optical radiations) (18th Directive within the meaning of art. 16(1) of Directive 89/391/EEC).

    Article 137(2). Co-decision procedure.

    Commission's original proposal issued in December 1992, dealing with four types of physical agents: noise; mechanical vibration; optical radiation; and electromagnetic fields and waves. ESC opinion on 30 June 1993, EP opinion on 20 April 1994. Text was split in 1999, with separate proposals issued on vibration, noise and electromagnetic fields. These three proposals have been adopted. The social affairs council of 6-7 November 2004 reached political agreement on a common position on optical radiation (December social affairs Council). Common position formally adopted on 18 April 2005. EP second reading given on 7 September 2005 (European parliament amends optical radiation Directive). On 22 November 2005, the council decided not to approve all of the EP's amendments and the text will therefore now be examined by a conciliation committee.

    Proposal for a Regulation of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restrictions of Chemicals (REACH), establishing a European Chemicals Agency and amending Directive 1999/45/EC and Regulation (EC) on Persistent Organic Pollutants ("REACH" proposal).

    Article 95. Co-decision procedure.

    Proposal issued by the commission on 29 October 2003, with the aim of providing a framework for the registration, evaluation and authorisation of chemicals. EP first reading on 17 November 2005 (EIRR 383 p.2). Council reached political agreement on a common position on 13 December 2005. The text will now be transferred to the EP for a second reading.

    Commission consultation of the EU-level social partners on how to prevent work-related musculoskeletal disorders.

    Article 138.

    First consultation of the EU-level social partners launched on 12 November 2004 (Consultation on work-related musculoskeletal disorders). It asks whether the social partners believe the existing health and safety framework to be appropriate or whether further initiatives are needed. If it believes that action is advisable, it will consult once more on the content of the envisaged proposal.

    Freedom of movement

    Proposal for a Directive of the European Parliament and of the Council on services in the internal market COM(2004)0002.

    Articles 47(2), 55, 71 and 80(2). Co-decision procedure.

    Commission issued proposal on 13 January 2004 aimed at providing a legal framework that will eliminate the obstacles to the freedom of establishment for service providers and the free movement of services between the member states. EP public hearing on 11 November 2004. Discussed at 25-26 November 2004 competitiveness council (European Parliament: Controversy over services Directive continues). Internal market committee of the EP voted on a text on 22 November 2005 (EIRR 383 p.2). Now awaiting EP first reading, due in February 2006.

    Proposal for a Directive of the European Parliament and of the Council on improving the portability of supplementary pension rights. COM(2005)0507

    Articles 42 and 94. Co-decision procedure.

    First stage of social partner consultations on the portability of supplementary pensions on 12 June 2002 (Commission: Pensions consultation) as part of efforts to reduce obstacles to the freedom of movement of workers within the EU. Second stage launched on 15 September 2003 (Second social partner consultation on transferability of pensions). However, the social partners had "diverging views" on the need for negotiations. The commission issued a proposal for a Directive on the portability of supplementary rights on 20 October 2005 (European Commission: Directive on supplementary pension rights).

    Protection of employees

    Consultation of the EU-level social partners on data protection at the workplace.

    Article 138.

    First consultation of the social partners by the commission on 27 August 2001. After receiving a range of replies, second stage launched on 31 October 2002 (Commission's second consultation on data protection). UNICE stated in January 2003 that it does not want to negotiate an EU-level social partner agreement. Commission currently considering next steps.