Tag Archives: Labour law

European Works Council

European Works Council

Outline of the Community (European Union) legislation about European Works Council

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Employment and social policy > Social dialogue and employee participation

European Works Council

The Directive imposes a works council or an information and consultation procedure in Community-scale undertakings and Community-scale groups of undertakings on the basis of an agreement negotiated between employees’ representatives forming a special negotiating body and the central management of the undertaking. It also defines the procedures for the operation of this body. In the cases identified by the Directive in which an agreement cannot be reached, it stipulates the provisions which subsidiary requirements to be established by the Member States must satisfy.

Document or Iniciative

Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Communityscale undertakings and Communityscale groups of undertakings for the purposes of informing and consulting employees [See amending acts].

Summary

The main provisions of the Directives are as follows:

  • Establishment of a European Works Council or a procedure for informing and consulting employees * in every Community-scale undertaking * and every Community-scale group of undertakings *, on the basis of an agreement between the central management and a special negotiating body.

The central management:

  • will be responsible for creating the conditions and means necessary for the setting up of a European Works Council or an information and consultation procedure;
  • will initiate negotiations on its own initiative or at the written request of at least 100 employees or their representatives in at least two undertakings or establishments in at least two Member States.

Special negotiating body

This body, comprising a minimum of three and a maximum of the number of Member States:

  • will have the task of determining, with the central management, by written agreement, the scope, composition, competence and term of office of the European Works Council(s) or the arrangements for implementing a procedure for the information and consultation of employees;
  • may decide, by at least two-thirds of the votes, not to open negotiations or to terminate the negotiations already opened; such a decision would stop the procedure to conclude the agreement and would nullify the provisions of the Annex.

The members of the special negotiating body and of the European Works Council, and any experts who assist them, will not be authorised to reveal any information which has expressly been provided to them in confidence.

Exemptions from the Directive

Community-scale undertakings and Community-scale groups of undertakings in which there is already an agreement covering the entire workforce, providing for the transnational information and consultation of employees, will not be subject to the obligations arising from the Directives. When these agreements expire, the parties involved may decide jointly to renew them. Where this is not the case, the provisions of the Directives will apply.

Subsidiary requirements

Subsidiary requirements laid down by the legislation of the Member State in which the central management is situated will apply:

  • where the central management and the special negotiating body so decide, or;
  • where the central management refuses to commence negotiations within six months of the initial request to convene the special negotiating body, or;
  • where, after three years from the date of this request, they are unable to conclude an agreement to establish a European Works Council or an information and consultation procedure, and the special negotiating body has not taken the decision not to open negotiations or to terminate the negotiations.

These subsidiary requirements must satisfy the provisions set out in the Annex, whereby:

  • the competence of the European Works Council will be limited to information and consultation on matters which concern the Community-scale undertaking as a whole or at least two establishments or group undertakings situated in different Member States;
  • the European Works Council is to have a minimum of three and a maximum of 30 members and, where its size so warrants, is to elect a select committee from among its members, comprising at most three members;
  • four years after the European Works Council is established, it is to consider whether to open negotiations for the conclusion of the agreement on the arrangements for implementing the information and consultation of employees, or to continue to apply the subsidiary requirements adopted in accordance with the Annex;
  • the European Works Council will have the right to meet with the central management once a year in order to be informed and consulted, on the basis of a report drawn up by the central management, on the progress of the business of the Community-scale undertaking or Community-scale group of undertakings and its prospects;
  • where there are exceptional circumstances affecting the employees’ interests to a considerable extent, particularly in the event of relocation, closure or collective redundancy, the select committee or, where no such committee exists, the European Works Council will have the right to be informed;
  • the members of the European Works Council are to inform the employees’ representatives of the content and outcome of the information and consultation procedure;
  • the operating expenses of the European Works Council are to be borne by the central management; in compliance with this principle, the Member States may lay down budgetary rules regarding the operation of the European Works Council.

Background

The purpose of this Directive is to improve the right of employees in Community-scale undertakings and Community-scale groups of undertakings to be informed and consulted.

Directive 97/74/EC extends the scope of this Directive to the United Kingdom.

This Directive shall be repealed by Directive 2009/38/EC (FR) with effect from 6 June 2011 when the latter enters into force. The modernisation of the legislation carried out by this new Directive has many objectives. It aims to ensure the effectiveness of employees’ transnational information and consultation rights, to increase the number of European Works Councils and to enable the continuing functioning of their constituent agreements. These provisions also aim to strengthen legal certainty for the establishment and functioning of European Works Councils.

Key terms used in the act
  • Community-scale undertaking: any undertaking with at least 1 000 employees within the Member States and at least 150 employees in each of at least two Member States.
  • Group of undertaking: a controlling undertaking and its controlled undertakings.
  • Community-scale group of undertakings: a group of undertakings with the following characteristics:
    • at least 1 000 employees within the Member States,
    • at least two group undertakings in different Member States, and
    • at least one group undertaking with at least 150 employees in one Member State and another group undertaking with at least 150 employees in another Member State.
  • Controlling undertaking: an undertaking which can exercise a dominant influence over another undertaking by virtue, for example, of ownership, financial participation or the rules which govern it.
  • Consultation: the exchange of views and establishment of dialogue between employees’ representatives and central management or any more appropriate level of management.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Directive 94/45/EC

22.9.1996

22.9.1996

OJ L 254 of 30.9.1994

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal

Directive 97/74/EC

15.12.1997

15.12.1999

L 10, 16.1.1998

Directive 2006/109/EC

1.1.2007

1.1.2007

OJ L 363 of 20.12.2006

Related Acts

Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (Recast) (Text with EEA relevance) [Official Journal L 122 of 16.5.2009].

Commission report of 4 April 2000 on the application of the Directive on the establishment of a European works council or a procedure in Communityscale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees [COM(2000) 188 final – not published in the Official Journal].


Another Normative about European Works Council

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic

Employment and social policy > Social dialogue and employee participation

European Works Council (from 2011)

Document or Iniciative

Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (Recast) (Text with EEA relevance).

Summary

This Directive aims at guaranteeing employees’ transnational information * and consultation * rights. It provides for the establishment of a European Works Council or a procedure for informing and consulting employees in Community-scale undertakings * and groups of undertakings.

Matters dealt with by the European Works Council or the information and consultation procedure are of a transnational nature.

The powers of the European Works Council and the scope of the information and consultation procedure concern: all establishments of the undertaking or all establishments in a Community-scale group situated in the Member States.

Member States may provide that this Directive shall not apply to merchant navy crews.

The dominant influence of an undertaking

The Directive defines a “controlling undertaking” – i.e. which exercises a dominant influence over a “controlled undertaking”. This influence is established if an undertaking:

  • holds a majority of another undertaking’s subscribed capital;
  • controls a majority of the votes attached to that undertaking’s issued share capital; or
  • can appoint more than half of the members of that undertaking’s administrative, management or supervisory body (this last criterion is determining).

Creation of a European Works Council

The central management of the undertaking or the group is responsible for establishing a Council or an information and consultation procedure. If a representative is not appointed, where the management is not located in a Member State of the European Economic Area (EEA), it is the responsibility of the establishment or undertaking which employs the largest number of workers in one of the Member States.

The central management shall initiate negotiations to establish the European Works Council or the information and consultation procedure. It shall act:

  • on its own initiative; or
  • at the written request of at least 100 employees (or their representatives) in at least two undertakings (or establishments) in at least two different Member States.

A special negotiating body shall be formed by employees’ representatives. They may be elected or appointed, according to the number of employees in each Member State where the undertaking is present. The special group shall negotiate an agreement with the management in order to define the operation of the European Works Council and the arrangements for implementing a procedure for the information and consultation of employees.

The members of this group shall receive the same protection as employees’ representatives, as laid down by national legislation and/or practice in the country where they are employed.

Context

Directive 94/45/EC is repealed with effect from 6 June 2011, the date on which this Directive enters fully into force.

Key terms
  • Community-scale undertaking: which employs at least 1000 employees within the Member States, and at least 150 employees in two different States.
  • Information: transmission of data by the employer to the employees’ representatives in order to enable them to acquaint themselves with the subject matter and to examine it. Employees’ representatives may in particular undertake an in-depth assessment of the possible impact and, where appropriate, prepare for consultations.
  • Consultation: establishment of dialogue and exchange of views enabling representatives to express an opinion about the proposed measures. This opinion may be taken into account within the undertaking or group of undertakings.

Reference

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2009/38/EC

5.6.2009 
6.6.2011 (Articles 1, 2, 3, 4, 5, 6, 7, 8, 9 and 11)
(Annexes I)

5.6.2011

OJ L 122 of 16.5.2009

Entry and residence of highly qualified workers

Entry and residence of highly qualified workers

Outline of the Community (European Union) legislation about Entry and residence of highly qualified workers

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Living and working in the internal market

Entry and residence of highly qualified workers (EU Blue Card)

Document or Iniciative

Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment.

Summary

The object of this directive is to improve the European Union’s (EU) ability to attract highly qualified workers from third countries. The aim is not only to enhance competitiveness within the context of the Lisbon strategy, but also to limit brain drain. It is designed to:

  • facilitate the admission of these persons by harmonising entry and residence conditions throughout the EU;
  • simplify admission procedures;
  • improve the legal status of those already in the EU.

The directive applies to highly qualified third-country nationals seeking to be admitted to the territory of a Member State for more than three months for the purpose of employment, as well as to their family members.

Entry conditions

To be allowed into the EU, the applicant must produce:

  • a work contract or binding job offer with a salary of at least 1,5 times the average gross annual salary paid in the Member State concerned (Member States may lower the salary threshold to 1,2 for certain professions where there is a particular need for third-country workers);
  • a valid travel document and a valid residence permit or a national long-term visa;
  • proof of sickness insurance;
  • for regulated professions, documents establishing that s/he meets the legal requirements, and for unregulated professions, the documents establishing the relevant higher professional qualifications.

In addition, the applicant must not pose a threat to public policy in the view of the Member State. S/he may also be required to provide his/her address in that Member State.

Member States will determine the number of third-country nationals they admit.

Admission procedure, issuance and withdrawal of the EU Blue Card

Member States are free to decide whether the application for an EU Blue Card has to be made by the third-country national and/or his/her employer. If the candidate fulfils the above conditions and the national authorities decide to admit him/her, s/he is issued an EU Blue Card, which is valid for a standard period of one to four years. The application will be accepted or rejected within 90 days of filing. If the application is accepted, the applicant will be given every facility to obtain the requisite visas.

The application for an EU Blue Card can be rejected if it was drawn up on the basis of false or fraudulently acquired documents or if, given the state of the labour market, the Member State decides to give priority to:

  • EU citizens;
  • third-country nationals with a preferred status under Community law who are legal residents or who are EC long-term residents and wish to move to that Member State.

The application may also be rejected on the grounds of volumes of admission established by the Member State, ethical recruitment or if the employer has been sanctioned due to undeclared work or illegal employment.

The EU Blue Card may be withdrawn if the holder does not have sufficient resources to maintain him-/herself and family members without social assistance or if s/he has been unemployed for more than three consecutive months or more than once during the period of validity of the card.

Rights and residence in other Member States

With this card, third-country nationals and their families can:

  • enter, re-enter and stay in the issuing Member State and pass through other Member States;
  • work in the sector concerned;
  • enjoy equal treatment with nationals as regards, for example, working conditions, social security, pensions, recognition of diplomas, education and vocational training.

After two years of legal employment, they may receive equal treatment with nationals as regards access to any highly qualified employment. After 18 months of legal residence, they may move to another Member State to take up highly qualified employment (subject to the limits set by the Member State on the number of non-nationals accepted).

The procedure is the same as that for admission to the first Member State. An EU Blue Card holder and his family can, however, freely enter and stay in a second Member State, but must notify the authorities there within one month of their arrival. The second Member State may decide not to allow the third-country national to work until a positive decision on his/her application has been taken. However, the application may already be presented to the authorities of the second Member State while the EU Blue Card holder is still residing and working in the first Member State.

Implementation and reporting obligations

Starting from 2013, the Commission annually collects statistics from the Member States on the number of third-country nationals to whom an EU Blue Card has been issued, renewed, withdrawn or refused, on their nationalities and occupations, and on their families. Starting from 2014, it reports on the application of the directive to the European Parliament and the Council every three years and proposes any changes it deems necessary.

Background

In its policy plan on legal migration, which was presented on 21 December 2005, the Commission made five legislative proposals concerning different categories of third-country nationals. This directive is the first of these proposals.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2009/50/EC

19.6.2009

19.6.2011

OJ L 155 of 18.6.2009

Green Paper on Modernising Labour Law

Green Paper on Modernising Labour Law

Outline of the Community (European Union) legislation about Green Paper on Modernising Labour Law

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Employment and social policy > European Strategy for Growth > Growth and jobs

Green Paper on Modernising Labour Law

The aim of this Green Paper is to initiate a public debate in the European Union (EU) on the modernisation of labour law in the light of trends in European labour markets. They must become more flexible and guarantee optimum security. Labour law has an essential role to play in this regard. Promoting debate on this issue would allow the implementation of a suitable, proactive regulatory framework. Managing innovation and change well means that labour markets must take on board three main aspects: flexibility, job security and segmentation.

Document or Iniciative

Commission Green Paper of 22 November 2006 entitled “Modernising labour law to meet the challenges of the 21st century” [COM(2006) 708 – not published in the Official Journal].

Summary

In this Green Paper, the Commission identifies the main challenges regarding the gap between the existing legal frameworks and the realities of the labour market.

The aim is to involve the Member States, the social partners and other interested parties in an open debate, in order to look at how labour law can help to promote flexibility in conjunction with security, regardless of the type of employment contract.

The Commission plans to organise a public consultation over a four-month period based on the questions asked in this Green Paper. A follow-up communication at the end of the public consultation will be adopted by the Commission in 2007.

The Commission acts as a catalyst to support the action of the Member States, since protection of working conditions depends mainly on national legislation. At EU level, the social acquis supports and complements the action of the Member States.

Developments in European labour markets

Labour markets in Europe are changing primarily in line with rapid technological progress, more intensive competition in the face of globalisation and the development of consumer demand. This is leading to changes in the organisation of work and working time, pay and the number of workers employed in various stages of the production cycle.

This change has led to a diversification in types of employment contracts, with new categories of workers (such as those hired through temporary agencies) being created. The relationship between the law and collective labour agreements is thus developing in parallel. These collective agreements can be used to adapt the legal principles to the specific economic situations and circumstances of particular sectors.

At Community level, the EU has legislated in order to ensure that the new forms of more flexible working are associated with certain minimum social rights for all workers, in terms of both part-time work and fixed-term work. On the other hand, no common position has been adopted by the Council on a proposal for a directive on working conditions for temporary workers hired through agencies.

Proliferation of atypical forms of contract

These contracts include fixed-term and part-time contracts, on-call contracts, zero-hour contracts, contracts for workers hired through temporary employment agencies, and freelance contracts.

Freelance workers choose to work independently, despite a lower level of social protection, because it offers them more direct control over their conditions of employment and pay. The proportion of total employment represented by workers recruited on atypical contracts has risen from more than 36% in 2001 to almost 40% in EU-25 in 2005. Freelance workers represent 15% of the total workforce. Fixed-term work has risen from 12% of total employment in 1998 to more than 14% of total employment in EU-25 in 2005.

This greater diversity of contracts has certain negative effects. A succession of short-term, low-quality jobs with insufficient social protection can lead some people into a vulnerable position. The Commission would like to point out that the risk of vulnerability on the labour market affects primarily women, older people and young people recruited on the basis of atypical contracts.

Modernisation of labour law: questions for discussion

This Green Paper is intended to promote discussion on various issues associated with the modernisation of labour law, such as:

  • employment transition involving the move from one status to another. The chances of entering the labour market, staying there and making progress vary considerably. Employment protection legislation and the rules on contracts at national level both have a significant impact on transitions between employment statuses, in particular as regards the long-term unemployed or those working in insecure jobs;
  • legal uncertainty associated mainly with these forms of atypical employment. The phenomenon of disguised employment, when an employee is not considered as such in order to hide his real legal situation and avoid certain social costs, is widespread. The lack of legal clarity regarding the definition of freelance workers, for example, may lead to gaps in the application of the law. The idea of “economically dependent work” covers situations coming under neither the concept of regular employment, nor that of freelance work. There is no employment contract drawn up in such a case. Even if these workers are not in a situation of vulnerability, they remain economically dependent on a single customer, employer or principal for their income and may not fall within the scope of labour legislation;
  • temporary agency work is a three-way relationship between a company, a worker and an agency. The complexity of these relationships is compounded when these workers are involved in long subcontracting chains;
  • working time, subject to Community harmonisation, is also influenced by developments on the labour markets. The Directive on certain aspects of the organisation of working time had still not been adopted by the Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) by the end of 2006;
  • the mobility of workers in the light of the different definitions of a “worker”. The mobility of workers is being jeopardised because the EU leaves it to the Member States to define the term. The Commission takes the view that having to refer constantly to national rather than Community law in this regard could weaken protection for workers;
  • undeclared work is a persistent and worrying aspect of today’s labour markets. As the main factor in social dumping, it is responsible not only for the exploitation of workers but also for distorting competition. In a Resolution adopted in 2003, the Council called on the Member States to resolve this problem by means of preventive measures and penalties, as well as by concluding partnerships between the social partners and the public authorities at national level.

Self-employed workers: equal treatment between men and women

Self-employed workers: equal treatment between men and women

Outline of the Community (European Union) legislation about Self-employed workers: equal treatment between men and women

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Employment and social policy > Equality between men and women

Self-employed workers: equal treatment between men and women

Document or Iniciative

Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC.

Summary

The principle of equal treatment between men and women prohibits all forms of discrimination based on sex, whether direct * or indirect * discrimination. This principle must be complied with when establishing, equipping or extending a business, as well as when launching or extending any other form of self-employed activity.

Harassment * and sexual harassment * are deemed to be discrimination on grounds of sex.

This Directive enables European Union (EU) countries to adopt positive action measures. Such public measures are aimed at ensuring full equality between men and women in working life, for example by promoting business creation by women.

Couples with a joint business

In this area, the principle of equal treatment between men and women means that spouses or life partners who establish a business together, shall be treated under the same conditions as other persons.

In addition, where a national social protection system exists for self-employed workers, the spouses or life partners who participate in the activities of the self-employed worker have the right to social protection in their own name. Member States may decide whether the social protection is implemented on a mandatory or voluntary basis.

Maternity rights

Self-employed women, and female spouses or life partners who contribute to the activity of self-employed workers shall be entitled to a maternity allowance for at least 14 weeks. This allowance shall be sufficient to enable them to interrupt their activities if they wish to do so. This allocation shall therefore be equivalent to:

  • the average loss of income or profit. This amount may however be subject to a ceiling limit; and/or
  • the allowance provided at national level in the event of an interruption in activities on health grounds; and/or
  • any other family-related allowance provided for and determined by the EU country.

During the interruption in their activities due to maternity, women shall have access to replacement services and national social services. The provision of these services may replace all or a part of the maternity allowance.

Context

The former Directive 86/613/EEC shall be repealed on 5 August 2012. The current Directive shall have been transposed in all EU countries by this date.

Other directives protect the equal treatment of self-employed workers, such as Directive 2006/54/EC applicable to working life, Directive 79/7/EEC applicable to social security matters and Directive 2004/113/EC which covers access to private/public goods and services.

Key terms
  • Self-employed workers: all persons pursuing a gainful activity for their own account, under the conditions laid down by national law, including farmers and the professions.
  • Spouses of self-employed workers or, when and in so far as recognised by national law, the life partners of self-employed workers, not being employees or business partners, where they habitually, under the conditions laid down by national law, participate in the activities of the self-employed worker and perform the same tasks or ancillary tasks.
  • Direct discrimination: where one person is treated less favourably on grounds of sex.
  • Indirect discrimination: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage. Unless the difference in treatment is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.
  • Harassment: where unwanted conduct related to the sex of a person occurs with the purpose, or effect, of violating the dignity of that person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment.
  • Sexual harassment: where unwanted verbal, non-verbal, or physical, conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Directive 2010/41/EU

4.8.2010

5.8.2012

OJ L 180 of 15.7.2010

Posting of workers in the framework of the provision of services

Posting of workers in the framework of the provision of services

Outline of the Community (European Union) legislation about Posting of workers in the framework of the provision of services

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Single market for services

Posting of workers in the framework of the provision of services

Document or Iniciative

Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services [See amending acts].

Summary

The Directive applies to undertakings which, in the framework of the transnational provision of services, post workers to the territory of a Member State, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting:

  • on their account and under their direction, under a contract concluded between the undertaking making the posting and the party for whom the services are intended;
  • to an establishment or to an undertaking owned by the group;
  • as a temporary employment undertaking, to a user undertaking.

For the purposes of the Directive, “posted worker” means a worker who, for a limited period, carries out his/her work in the territory of a Member State other than the State in which he/she normally works. The definition of a worker is that which applies in the law of the Member State to whose territory the worker is posted.

Working conditions

Member States must ensure that undertakings guarantee posted workers a central core of mandatory protective legislation laid down in the Member State in which the work is carried out:

  • by law, regulation or administrative provision and/or;
  • by collective agreements or arbitration awards * which have been declared universally applicable, in so far as they concern the activities set out in the Directive’s annex.

Conditions of work and employment to be covered are:

  • maximum work periods and minimum rest periods;
  • minimum paid annual holidays;
  • minimum rates of pay, including overtime rates;
  • the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;
  • health, safety and hygiene at work;
  • protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people;
  • equality of treatment between men and women and other provisions on non-discrimination.

Derogations

Member States may derogate from the immediate implementation of the rules on:

  • minimum rates of pay in the case of work lasting for a maximum of one month provided that this work is not carried out by temporary employment undertakings;
  • minimum rates of pay and holidays in the case of an “insignificant” amount of work to be done, provided that this work is not carried out by temporary employment undertakings;
  • minimum rates of pay and holidays in the case of initial assembly and/or first installation of the goods provided when the maximum duration of the work does not exceed eight days. This derogation does not, however, apply to the building industry.

Calculation of salary

Allowances specific to the posting are considered to be part of the minimum wage, unless they are paid in reimbursement of expenditure actually incurred on account of the posting.

Equal treatment

Member States may provide that undertakings must guarantee temporarily posted workers the same terms and conditions which apply to temporary workers in the Member States where the work is carried out.

Cooperation in the area of information and duty to provide information

Member States must designate one or more liaison offices or one or more competent national bodies and notify the other Member States and the Commission accordingly.

Member States must make provision for cooperation between the public authorities which, in accordance with national legislation, are responsible for monitoring terms and conditions of employment. Mutual administrative assistance is provided free of charge.

Each Member State must take the appropriate measures to make the information on terms and conditions of employment generally available and to ensure that adequate procedures are available to workers and/or their representatives for the enforcement of obligations under the Directive.

In the event of non-compliance with these terms and conditions of employment, Member States shall, if necessary, also take the appropriate measures.

Redress

In order to enforce the right to the terms and conditions of employment guaranteed by the Directive, judicial proceedings may be instituted in the Member State in whose territory the worker is or was posted.

Background

The European Union wishes to remove the uncertainties and obstacles impeding the free provision of services, as provided for in Article 49 of the EC Treaty, by increasing the protection of posted workers.

However, during the last two waves of EU enlargement in 2004 and 2007, the Acts of Accession introduced transitional arrangements for Germany and Austria. They enable the countries to cope with the risk of disruption in certain vulnerable sectors, and to limit the posting of workers in relation to the provision of services and for as long as they apply restrictions on the free movement of workers and have informed the Commission. The new Member States may take reciprocal measures where Germany and Austria depart from Article 49 of the EC Treaty.

The transitional arrangements which enable Member States to restrict access to the labour market to workers coming from the new Member States, with the exception of Cyprus and Malta, do not allow Member States to derogate from Article 49 of the EC Treaty and therefore restrict the posting of workers.

Key terms used in the act
  • Collective agreements or arbitration awards which have been declared universally applicable: These must be observed by all undertakings in the geographical area and in the profession or industry concerned.

References

Act Entry into force – Date of expiry Deadline for transposition in the Member States Official Journal
Directive 96/71/EC [adoption codecision COD/1991/346]

10.2.1997

16.12.1999

OJ L 18 of 21.1.1997


Amending act(s)
Entry into force Deadline for transposition in the Member States Official Journal
Annexes V , VI , VIII , IX , X , XII , XIII , and XIV : Lists referred to in Article 24 of the Acts of Accession to the European Union of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia and Slovakia.

1.5.2004

OJ L 236 of 23.9.2003

Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded (Official Journal L 157 of 21.06.2005).

1.1.2007

OJ L 157 of 21.6.2005

Subsequent amendments and corrections to Directive 96/71/EC have been incorporated in the basic text. This consolidated version (FR ) has a purely documentary value”.

Related Acts

EFFECTIVE IMPLEMENTATION OF THE DIRECTIVE / MONITORING

Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions – Posting of workers in the framework of the provision of services: maximising its benefits and potential while guaranteeing the protection of workers [COM(2007) 304 final – Not published in the Official Journal].
Directive 96/71/CE ensures a high level of security for service providers, posted workers and service users. This Communication refers to the application of the Directive in the Member States.

The Commission highlights the importance of access to information and administrative cooperation between the State of origin and the host State. The progress achieved in these areas should enable the obstacles to the freedom to provide services to be removed. However, the advancements are insufficient and workers are not sufficiently informed of their rights.

Impediments for posted workers who are nationals of third countries also still exist, as they can be subject to visa requirements or residence permits. However, in cases where the service provider is established in a Member State, no administrative formality or additional conditions should be imposed.

However, certain measures may be required in order to ensure the protection of posted workers and compliance with the rules of general interest on the condition that they are proportionate and justified. In particular, this relates to certain control measures implemented at national level and in compliance with Article 49 of the EC Treaty on the freedom to provide services.

Communication from the Commission of 4 April 2006 – Guidance on the posting of workers in the framework of the provision of services [COM(2006) 159 final – Not published in the Official Journal].

Communication from the Commission of 25 July 2003 on the implementation of Directive 96/71/EC in the Member States [COM(2003) 458 final – Not published in the Official Journal].

Strengthening of maritime labour standards

Strengthening of maritime labour standards

Outline of the Community (European Union) legislation about Strengthening of maritime labour standards

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Transport > Waterborne transport

Strengthening of maritime labour standards

Document or Iniciative

Communication from the Commission of 15 June 2006 under Article 138(2) of the EC Treaty on the strengthening of maritime labour standards [COM(2006) 287 final ? Not published in the Official Journal].

Summary

The European Commission has actively supported the work of preparing the ILO Convention on Maritime Labour Standards. It considers implementation of that Convention to be essential not only at Community but also at national level.

Article 138(2) of the Treaty stipulates that before submitting social policy proposals the Commission should consult the social partners regarding the possible direction of Community action.

Field of application of the Convention

The Convention draws together a set of provisions aimed at guaranteeing decent living and working conditions on board vessels with a gross tonnage of 500 tonnes or more engaged in international voyages or sailing between foreign ports. The standards it contains address the following points:

  • minimum conditions required for recruitment;
  • employment conditions and workers’ rights;
  • accommodation on board;
  • social protection;
  • a definition of responsibilities regarding application of the Convention.

Benefits of the Convention

The primary objective of the ILO Convention is to consolidate the conventions and recommendations on maritime labour adopted by the ILO since 1919 into a single text of high legal and political standing. Furthermore, it makes use of innovative mechanisms to ensure that the instrument is fully effective.

The second objective of this Convention is to manage globalisation and guarantee fairer conditions of competition. This will help to stabilise the maritime transport sector in the face of global competition and normalise the status of seafarer in the context of globalisation. In fact, certain harmful effects, such as social dumping, penalise seamen and ship owners who comply with the rules in force.

The third objective is to improve maritime safety and the attractiveness of the profession. It is worth remembering that 80 % of maritime accidents are linked to human error. There should therefore be minimum social standards in a coherent framework. A review of training should also be carried out, since qualifications and working conditions are complementary.

Role of the EU

The Commission gave its full support to the preparatory work for the Convention from the outset, convinced of the importance of eliminating unfair competition and improving social standards at world level. It has played a dynamic role, providing added value during negotiations and guaranteeing compatibility between the text of the Convention and Community law. It has also coordinated the positions of the Member States and offered financial support.

The Commission is now endeavouring to encourage and to expedite ratification to ensure that the Convention enters into force as early as possible. The weight of the Union, with its 27 Member States, enables the process to be speeded up since the conditions laid down for the entry into force of the Convention call for 30 States accounting for at least 33 % of world tonnage.

In addition, the Commission is striving to develop and enhance Community standards by seeking to incorporate the most relevant provisions of the Convention into Community law.

For this first phase of consultation, the social partners are thus invited to make known their position on a number of issues connected with implementation of the Convention. Those issues, which will also be the subject of an impact assessment, are as follows:

  • the advisability of developing the existing Community acquis by adapting, consolidating or complementing it in accordance with certain guidelines;
  • the usefulness of going beyond the provisions of the Convention in Community law;
  • the relevance of making the non-compulsory part of the Convention binding;
  • the possible commitment of the social partners to negotiations aimed at reaching an agreement to be implemented by means of Council decision, in accordance with Article 139 of the Treaty.

Furthermore, the Commission is asking the social partners whether it is relevant for the Community’s tripartite structure to be reflected in the monitoring commission provided for by the Convention.

Background

Now that the Convention has been adopted, the European Commission considers it essential to mobilise the necessary resources to implement it at both Community and national level. The Commission is seeking to assert EU values and interests and to promote high standards throughout the world.

Related Acts

Council Decision 2007/431/EC of 7 June 2007 authorising Member States to ratify, in the interests of the European Community, the Maritime Labour Convention, 2006, of the International Labour Organization [Official Journal L 161 of 22.6.2007].
The Commission has exclusive competence as regards the coordination of social security schemes, but the Community cannot stand in place of the Member States when a convention is ratified. The Council Decision of 7 June 2007 allows the Member States to ratify the Convention, which comprises aspects connected with coordination of social security schemes.