Transcript Diapositiva 1

With EU contribution
“CONCILIATION AND ARBITRATION: two ways to manage the effects
of disputes on information and consultation rights in the context of
Banking mergers, acquisition and restructuring” (VS/2010/0668)
EWC Directive 2009/38/CE:
transposed or postponed ?
A “minimum wage" … with some exceptions
Domenico Iodice – APF Research Department
1
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
With EU contribution
Objectives of the Directive and of the Project
The new EWC Directive 2009/38/EC aims to
strengthen the constitution and making it
viable due rights to information and
consultation, including through a system of
sanctions appropriate.
The project operates on a preliminary and
complementary means due to the rights of
EWCs through the establishment of garrisons,
physical places of conflict prevention and
resolution (conciliation and arbitration rooms
at supranational and national).
The new Directive: Macro-goals
2
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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Political timing and trade union strategies
The implementation process had been scheduled
between June 6, 2009 and June 5, 2011: wondrous
opportunities for Member States to clarify the
interpretation of the Directive and to determine the
format of national laws.
From a strictly legal point of view, the surest way to
ensure that an EWC agreement exploit the
improvements in the new Directive is to sign it after
June 6, 2011.
The new Directive: Macro-goals
3
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Problems to be solved: the "necessary means"
DIRECTIVE 94/45/EC
NO
DISPOSITION!
RECAST DIRECTIVE
Article 10 (1).
The EWC members have the means
necessary for the application of rights
under this Directive, to represent
collectively the interests of workers.
The issue will be discussed by Member
States during the transposition process
Risk of inhomogeneity
Criticality - Demand for national legislation
4
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Problems to be solved: the "necessary means"(2)
RECAST DIRECTIVE
DIRECTIVE 94/45/EC
NO DISPOSITION!
It is the most confusing, because
too much discretion in
means for binding (effectiveness)
Article 10 (1). - Continued National legislation could possibly have a duty
to intervene to ensure, for example., that
EWCs have the means proceedings (such as
the right to appeal to the courts to defend
themselves), in addition to the substantial
resources required for this purpose (legal
personality, finance, communication tools, the
law guarantees the effectiveness of
employees, all "necessary means" for this
purpose).
The arrangement is not only about the EWC,
but also each of its members
Criticality - Demand for national legislation
5
Domenico Iodice – APF
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Problems to solve: the transnational
Recital 16): "It is appropriate that the transnational character of a matter is
determined by taking into account the extent of the potential effects of the matter,
and the level of management and representation involved (...) It includes the issues,
regardless of the number Member States involved, are important for the European
workforce in terms of extent of their potential effects or involve the transfer of
activities between Member States.
(Article 1.4): "There shall be regarded as transnational issues concerning the
Community-scale undertaking or at least two plants of 'enterprise or group situated
in two different Member States.
Criticality - Demand for national legislation
6
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Problems to solve: the source of regulatory
(Recital 19): "In accordance with the principle of party autonomy, it is up to
representatives of employees and the management of the parent company or jointly
determine the nature, composition, functions, operating modes, procedures and
financial resources of European Works Councils or other procedures for informing and
consulting, to ensure that they are appropriate to their particular situation.
Article 6: Content of the Agreement
Established the autonomy of the parties, the written agreement between the DC and the
SNB determines: a) companies that are part of the Community-scale group of
undertakings or the establishments of a Community dimension, b) the composition of
the EWC, the number of members, the distribution of seats in view of a balanced
representation, the term of office; c) the functions and the provision of information and
consultation of the EWC and the manner in coordination with national.
DOES
THE- AGREEMENT
DEFINE legislation
THE SCOPE? NOT THE LAW?
Criticality
Demand for national
Domenico Iodice – APF
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Problems to solve: the sanctions
Article 7 - Subsidiary requirements.
In order to achieve the objective stated in Article 1, we apply the requirements
laid down by the legislation of the Member State in which the central
management is:
- if the DC and the SNB so decide,
- where the central management refuses to commence negotiations within six
months from the request, or if after 3 years, the parties are unable to conclude
an agreement
WILL MEMBER ACCESSORY ENACT ANCILLARY LAWS ? WHAT KIND OF? WILL BE
ALSO SANCTIONS LAWS? WITH WHICH DISSUASIVENESS AND COMPULSIVE
STRENGTH?
Criticality - Demand for national legislation
8
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Problems to solve: the procedures of compulsion
Article 11 - Compliance with this directive.
Each Member State shall ensure that the management of establishments of a
Community-scale and direction of the group companies located within its territory
and their employees comply with their obligations under this Directive, regardless
of whether the central management is in its territory .
Member States shall provide for appropriate measures in case of failure, in
particular, they provide administrative or judicial procedures to enable them to
enforce compliance.
WILL MEMBER STATES ENACT EFFECTIVE ENFORCEMENT AND HOMOGENEOUS
TO AVOID DUMPING OF AUDITORS?
Criticality - Demand for national legislation
9
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Problems to solve: confidential information
Article 8 - Confidential Information.
2. Each Member State shall provide, in specific cases and under conditions and
limitations laid down by national legislation, the central management situated in
its territory is not obliged to disclose information that, according to objective
criteria, to do so would seriously harm the functioning of businesses concerned or
would be prejudicial to them. The Member State concerned may make such
dispensation subject to prior administrative or judicial authorization.
IN THEORY A STATE MAY RELY ON A WIDE RESERVE OF LAW, IN MATTER,
FRUSTRATING THE SCHEME OF DIRECTIVE!
Criticality - Demand for national legislation
10
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“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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Problems to solve: infringement proceedings
Article 16 - Transposition.
Member States shall adopt the laws, regulations and administrative provisions
necessary to comply by June 5, 2011 or shall ensure that the social partners
introduce by that date, the required provisions by the Member States must take
all necessary measure to enable them, in any time, to guarantee the results
WILL THE OBLIGATION OF THE TRASPOSITION REALLY EXPIRES JUNE 5 OR
FROM THAT DATE THE VERIFICATION OF NON-UNION AGREEMENTS ENTERED
INTO TRADE UNION?
HOW TO CODE AN OBLIGATION OF LAW "GUARANTEED RESULTS"?
Criticality - Demand for national legislation
11
Domenico Iodice – APF
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GARRISON UNION: ensure uniform minimum targets
in all member countries
Resolution of ETUC adopted at the
Executive Committee, April 28, 2011:
"Strengthening the involvement of workers:
minimum standards for information,
consultation and participation in Europe"
Transposition – The ”ars maieutica” of Trade Union
12
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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Analysis of the Community context
The EU's corporate governance model is based largely on the AngloAmerican model, which gives emphasis to the "shareholder value". He
has failed the objective of risk control and promotion of sustainable
development long term .
The EU company law, in particular based on "soft law" in the regulation
of corporate governance, the assumption that models other than
Anglo-Americans to be negative, because limiting the internal market.
"Value for shareholders" and "independent management" are the
slogans of our time, while the model of worker representation and
participation in the councils of workers tend to be seen as oddities,
anomalies.
The system of labor law has ceased to act as a counter to limit the
increase in economic inequality and the decline of unions.
Transposition – The ”ars maieutica” of Trade Union
13
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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Social reasons, economic and legal
implications involved
Strengthening democracy
Facilitate the resolution of disputes and social dialogue
in the workplace
Giving authority to the interest of long-term company
Ensure that, through the circulation of information on
results of operations, improve operating results.
Facilitating the provision of information, reporting to the
authorities of unethical behavior or corruption.
Compare and contrast the excessive levels of executive
pay, negotiating the "roof“.
Increase productivity and welfare of workers
Transposition – The ”ars maieutica” of Trade Union
14
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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Tools to implement the minimum
European standards
All legal forms of business entities in the European
Union (SE, SCE and S Private E) should be subject to
binding rules.
The registration of a European legal entity should not
be possible if the issue of worker participation has
not been resolved. The directives of the SE and SCE
provide a good starting point .
The minimum threshold for the application of this
right must be fairly low, for example, all companies
with at least 25 employees and offices in two or more
countries.
Transposition – The ”ars maieutica” of Trade Union
15
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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Tools for homogeneity law
Big consideration must be given to the different national traditions in
the field of employee involvement. The following criteria must be
applied:
1.
2.
3.
4.
The pre-existing rights should not be compromised.
Anti-regression clause: European standards can not be an excuse to
lower the rights of national or European, or vice versa ("favor" and
"inderogatio in pejus").
A legislative instrument (law​​-framework) should be launched to
ensure greater consistency of rules on employee participation.
Preserve and disseminate "best practices" when existing companies
from different jurisdictions come together or when the restructuring
will lead to the establishment of European legal entity.
Transposition – The ”ars maieutica” of Trade Union
16
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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The options for Member States
The current status of the implementation process varies greatly. The EWC
Directive required Member States to recast to incorporate the content into
national law within a period of two years (until June 5, 2011).
They used various possibilities, including the transposition of the most
common, by a legislative act of Parliament or a collective agreement
between the national social partners (automatically valid “erga omnes”
and / or transposed into having the force of law).
The European Commission has helped national governments in
implementing their activities. For this purpose, established a group of
experts: representatives of national ministries have met several times
during 2010 to discuss the interpretation of the EWC Directive recast.
Transposition – The results
17
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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Synoptic at June 6, 2011
The Directive was transposed by the national Parliament or by a collective
agreement in 12 countries (8 +4) of 27.
Portugal and the UK had already implemented before the end of the
meetings of the group of experts .
Portugal (adopted by Parliament on 3 September 2009), United
Kingdom (implemented before the general elections of 2010,
presented to the April 6, 2010). In Austria, endorsed by Parliament
in December 2010. In Slovakia, incorporated on February 8, 2011,
in Bulgaria, March 15, 2011. Implemented in Denmark March 29,
2011. In Germany, implemented by the German Parliament
(Bundestag) April 7, 2011.
The Directive was transposed directly from collective bargaining in
Belgium: Agreement signed December 21, 2010 (FEDERAL
Overheidsdienst WERKGELEGENHEID, arbeid en Sociaal OVERLEG 24 Maart 2011)
Transposition – The results
18
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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June 6, 2011 at the synoptic (adj. Eur - Lex 6/28/11) (2)
The Directive was transposed by the national authorities with the latest, sudden
acceleration:
In Spain, the bill was sent to Parliament in March 2011, and the transfer took
place May 19, 2011 (Ley 10/2011, de 19 de mayo, "por la que se change the
Ley 10/1997, de 24 de abril, sobre derechos de información y de los
trabajadores en las consult empresas y grupos de empresas de EU dimension ").
In Sweden, the bill was sent to Parliament on 3 February 2011. Transposition:
Lag, number: 2011:427; Official Publication: 03/05/2011, Entry into force:
06/06/2011
an unexpected outsider, not planned: Latvia. The transposition was a swift, May
19, 2011 ("LV", 82 -4480, 05/27/2011) [entry into force June 6, 2011.]
An unusual transposition in SLOVAKIA. SLOVAK PART OF THE JOB CODE, IN
ADDITION TO FUNDAMENTAL RIGHTS OF INDIVIDUAL (PERMITS, ETC.) ALSO
THE COLLECTIVE RIGHTS TO THE NEW DIRECTIVE ON EWC (Law no. Z.
48/2011, amending and completing Law no. 311/2001 Z. z - the Labour Code)
19
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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The results up to June 6, 2011: synoptic
In four countries, national parliaments are still committed to the bill
In four countries, national parliaments are still committed to the draft law.
A bill is approved by the government in Cyprus, where the social partners have
approved the draft document prepared by the Government (January 28, 2011).
In Finland, a bill is prepared by the tripartite board and is currently in
Parliament (since May 3, 2011). In Greece, a bill is prepared by a Ministerial
Committee (from February 18, 2011). Poland has approved the definitive
guidelines for the new bill (April 6, 2011).
three
European
Member
bill
been published:
InIn
three
European
Member
States noStates
draft lawno
has
yethas
beenyet
published:
Ireland,Hungary,Luxembourg.
Six
Sixcountries
countrieshave
havenot
notprovided
providedany
anyinformation
informationtotothe
theESC
ESC,
Estonia, Lithuania, Malta and Norway, Liechtenstein and Iceland. In Norway,
the Directive will be transposed directly from collective bargaining, similar to
Belgium
Transposition - The results achieved
20
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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The "unusual cases": France.
France. No draft law has yet been advanced. The French
Government (April 2011) has obtained the authorization by
Parliament to implement the directive by a decree, in order to
speed up the process.
Article 22 de la loi n°2011-302 du 22 mars 2011 portant
diverses dispositions d'adaptation de la législation au droit de
l'Union européenne en matière de santé, de travail et de
communications électroniques:
“I.accordance
In accordance
with Article
38 Constitution,
of the Constitution,
the is
“I. In
with Article
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the Government
Government
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a decree
within
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authorized
to issueisaauthorized
decree within
from
the publication
of this
from the publication of this Law, the legislation necessary to
Law,transpose
the legislation
necessary
to transpose
Directive
2009/38/EC,
Directive
2009/38/EC,
as well
as the
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as well
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II.
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II.--The
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is presented
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threefrom
months
from the of
publication
Transposition - The limbo of waiting
21
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
With EU contribution
State of the art in France
In November 2010 the government has sent a questionnaire to
the social partners on the Directive. In April 2011 the
government launched a consultation process with unions.
If no union will be implemented instances, it is strategically
planned joint action of all the French trade unions through the
media.
Employers' organizations play a powerful lobbying of the
Government towards the conservative majority. This activity has
already been previously successfully held to limit trade union
rights in July 2010.
The Government will transpose the Directive by decree, without
involving Parliament. The participation of trade unions is
expressed rather in a consultancy (technical? Politics?), But the
approach to their demands is negative.
Transposition - The limbo of waiting
22
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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The "unusual cases": Italy.
The Italian government took no initiative. The social partners have
negotiated an agreement on the transposition then hoping that the
Government intended to be bound by these terms.
The initiative to negotiate an agreement could serve as the basis of a
draft law .
To date, no draft law has been published. The "common warning" was
instead signed April 12, 2011. Minister Sacconi had promised to
translate the agreement before June 6, 2011.
The spirit of collaboration transformed in the spirit of co-operation: a legal
sense, not ideological.
The right to education in co-operation on the key "content"
- The model of the technical commission of conciliation? (11 § 3)
Transposition - The limbo of waiting
23
Domenico Iodice – APF
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State of the art in Italy
The agreement between the social partners' organizations was found on March 25 and signed on April 12,
2011 in the presence of a representative of the Ministry of Labour.
Organizations of social partners (CGIL, CISL and UIL, Confindustria, ABI, Ania and Confcommercio) have
responsibly taken every initiative. From September 2010 have started joint meetings, usually at the
headquarters of Confindustria. The strategy of CGIL, CISL and UIL was to seek a strong consensus among
the social partners for the development of a text feature to send a joint memorandum to the Government
and aim to positively influence their outcomes. To define a common strategy, CGIL, CISL and UIL have
organized meetings and consultations with relevant third party CAE within individual national federations
category .
Business organizations have responded positively to the demands of the unions.
The strategy has been very willing cooperation. The employers' organizations have presented a first draft
and trade unions have actively participated in the negotiations.
On the contrary, the government has been absent. It has been informed about the initiative and strategy
of the social partners on strategy, but did not respond with any input. A representative of the ministry has
only witnessed the signing of the agreement of social partners. The Minister of Labour has promised, the
site of the official presentation of the Notice, the CNEL, the government's commitment to present a
common law transposing the notice "some improvements", and by June 6 (term expired).
The social partners' agreement proposes a transposition of minimum goals, with a specific focus on the
spirit of cooperation between the social partners (by invoking the logic of "social dialogue").
24
Transposition - The limbo of waiting
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
With EU contribution
Innovative Points of the Italian Agreement
The proposed amendments to Legislative Decree no. 74/2002
are:
Article 1.7: self-limitation "in peius" of the concept of
transnational
Art 2.1.h "opinion which may be considered" not appeal to the
subsidiary requirements (reasoned response to any opinion),
but something more than the recital.
Article 13.1.1: minimum paid leave for 8 hours per quarter
(waived in melius).
Article 16.2: legal right to obtain a reasoned response.
Guarantee of effectiveness valid in court.
DETERIORATION AND IMPROVEMENT ARE NOT IMMEDIATELY OPERATIONAL,
BUT “SUB CONDICIONE” OF TRANSPOSITION . WHICH VALUE?
25
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State of the art in Greece
A draft law (Presidential Decree) was prepared by a ministerial
committee on February 18.
Representatives of the social partners have participated in the
meetings of the Committee of the Ministry. No union involvement
through consultation has taken place, however.
Absence of any active communication strategy. Practically the
unions have formally submitted their position at the ministry.
Similarly, representatives of employers have participated at
sessions of the ministerial commission.
The Government has provided no timetable for the transposition of
the Directive. The issue has, understandably, low priority.
Transposition - The limbo of waiting
26
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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State of the art in Hungary
No information is available about the state of
the art.
The responsible ministry has consulted the
social partners in an informal way.
The implementation of the recast directive
does not have a defined priority and the
attention to the issue is low.
Transposition - The limbo of waiting
27
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State of the art in Romania
A draft law has been sent to the Romanian Parliament in April 2011. On 19 April
2011 and May 3, 2011 has seen some positive steps of Parliament.
A consultation on the Bill took place in the tripartite, involving employers and trade
union representatives.
The Romanian Trade Unions (ALFA), taking advantage of the strong international
support (CES CIS) have asked the Government a faithful transposition of the
Directive.
The current relationship between unions and government is, however, very bad.
The Romanian government is ignoring the requests made by the unions. The
Government has begun the process of transposition of the Directive only as a result
of Romania's obligations as a member.
The recent reform of the labor code and the system of industrial relations has led to
serious friction between the unions and the Romanian government: trade union
rights have been reduced, in strong contradiction to the EU goals.
Transposition - The limbo of waiting
28
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State of the art in Czech Republic
In parliament is in progress a second reading of the draft law
that has been presented in January by the government .
Changes, in April 2011, the Labor Code.
No consultation of trade unions has taken place . No
negotiation, no type of social involvement.
The CMKOS Union presented proposals to the government,
stressing the urgency of the social dialogue to improve the
effectiveness of implementation. The requests were not taken
into account by the government.
Organizations of employers have not provided any comment on
proposals for transposition. They have a formal approach to
strategy implementation, accepting only "legal minimum".
Government's approach is identical, available to a mere formal
transposition of minimum targets.
Transposition - The limbo of waiting
29
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State of the art in Slovenia
In mid-March a bill was issued by the government. It should have been passed
by Parliament in mid-April 2011
The consultation on the draft law is held in the Economic and Social Council,
with the involvement of employers and union representatives. Outside of the
Economic and Social Council there has been no communication or consultation
between the social partners and government and, in short, the draft law has not
been prepared in cooperation with the social partners.
The ZSSS Union aims to reach more than the minimum legal transposition
targets. The discussion on the common position of trade unions has been
discussed during the Council do not have time to conduct an internal inquiry. No
coordination with other unions took place.
The employers' organizations support the position of the transposition limited to
the necessary, lamenting the failure to involve themselves in preparing the draft
budget the government.
The Government has involved social partners only in the tripartite formula,
through the call, at short notice, at the Economic and Social Council. In the
past, government attention to the union position is always found to be weak.
Transposition - The limbo of waiting
30
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“CONCILIATION AND ARBITRATION” (VS/2010/06668)
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Who is able to overcome the "minimum wage"?
AUSTRIA
The The
dratf
law goes far beyond the Austrian minimum requirements of the recast
dratf law goes far beyond the Austrian minimum requirements of the recast
directive.
The definition
of "transnational
Austriandraft
draftlaw
law
directive.
The definition
of "transnationalissues"
issues"in
in the
the Austrian
provides
for more
precise
wording
recital16
16 of
of the
provides
for more
precise
wording
ofofrecital
the recast
recastdirective
directive
Therefore, a EWC is responsible for matters that - regardless of the number of Member
States affected - are important for Europe's workers because of the magnitude of their
possible implications in terms of transfer of assets .
Moreover, as regards the obligation to inform workers (Article 10.2 of Directive recast), the
bill refers to the Austrian art. 10.1 (means) and makes clear that the tool to meet this
requirement must include the right of EWC members have access to the sites of the
company.
The new definitions of information and consultation will be applied automatically by express
provision of law to all the old EWC agreements .
The right follow-up meeting (with farm costs) is expressly provided for in the subsidiary
requirements and also applies to European Works Councils and not only for the DSN.
Finally, the maximum fines were increased .
To summarize, the EWCs according to Austrian law are far more "workers-friendly."
Transposing Directive –Excellent results
31
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Rare exceeded the minimum
The laws implementing the Danish, German, Swedish, Belgian clarified some issues.
Danish law provides details on the right to education, the law implementing the right to
allow the Swedish EWC meeting at least twice a year .
revised between June 5, 2009 and June 5, 2011. Consequently, new definitions and rights
are applicable to these European works councils, even if their agreement does not mention
it. It provides a clause of the Effectiveness: consulting in all EWC - not just those
based on the subsidiary requirements - must be conducted so that representatives can
meet with the Central and get an answer, and the reasons for that response. The
recital on transnational law has been included in the comments of national implementation,
and can therefore be used for interpretation by national courts.
The German law makes it clear finally that all costs related to training, but also
travel expenses and accommodation for the work of EWC are paid by the
employer (past the silence of European legislation).
The German implementing legislation provides that the select committee may decide the selection and qualification requirements of annual meetings. A (not
exhaustive) list defines the notion of "significant changes" that require renegotiation on the basis of the recast Directive. These include merger, transfer or closure of
companies, as well as transfer and closure of sitThe German implementing legislation provides that the select committee may decide the selection and qualification
requirements of annual meetings. A (not exhaustive) list defines the notion of "significant changes" that require renegotiation on the basis of the recast Directive.
These include merger, transfer or closure of companies, as well as transfer and closure of sites they impact on the composition of the EWC. It is also clear that the
Directive is applicable to existing agreements, which have not been es they impact on the composition of the EWC. It is also clear that the Directive is applicable to
existing agreements, which have not been revised between June 5, 2009 and June 5, 2011. Consequently, new definitions and rights are applicable to these European
works councils, even if their agreement does not mention it. It provides a clause of the Effectiveness: consulting in all EWC - not just those based on the subsidiary
requirements - must be conducted so that representatives can meet with the Central and get an answer, and the reasons for that response. The recital on
transnational law has been included in the comments of national implementation, and can therefore be used for interpretation by national courts.
The German law makes it clear finally that all costs related to training, but also travel expenses and accommodation for the work of EWC are paid by the employer
(past the silence of European legislation).
Transposing Directive –Excellent results
32
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Rare exceeded the minimum (2)
The concept of trans-nationality, not only in Belgium has been covered
in the articles, but also as recital. It 'appears at the end RULE (FOR
TWO OR MORE COUNTRIES) and is usually considered an
interpretative law (“ratio legis”).
In Sweden and Latvia introduced a system of contractual waiver only
“in melius" compared with the standards established by the Directive
(which includes compliance with national tout court).
Sweden has established the principle of effectiveness of information:
they should allow a careful evaluation of the consequences and, if
necessary, prepare consultations. The same must be held in a climate
of dialogue and exchange of views and ensure a reasonable time to
comment on the proposed action so that you can influence decisions.
On training: in Sweden is expressly clarified the cost regime:
everything is paid by the company; in Latvia, the methods and content
definition: necessarily by mutual agreement (as in Italy).
Transposing Directive –Excellent results
33
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
With EU contribution
The transposition technique as a "copy-paste"
In most Member States, however, the implementing legislation is not
going beyond the content of EWC Directive recast, without increasing
workers' rights in national legislation.
Poland has maintained the right to appoint the members of the EWC
representative from the unions, even if it does not follow either the old or
the new directive. The same in Sweden and Latvia
The Italian social partners' agreement emphasizes the spirit of
collaboration. For the rest, Bulgaria, Cyprus, Finland, Greece, Ireland,
Latvia, Netherlands, Slovenia, Spain and Romania do not provide in any
field overcome the minimum targets .
Transposition of the Directive -“aurea mediocritas”.
34
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
With EU contribution
Reasons for excess of prudence and for delays
1.
2.
The impact of work imposed by the undertaking and its bargaining power (lobbies).
The government is not interested in the transposition of the EWC directive and the social partners are not
able to negotiate independently. This is the case of France, Luxembourg and Hungary.
3.
Countries ideologically opposed to any increase in trade union rights, such as the United Kingdom,
Romania and Czech Republic. In the Romanian case there are strong contrasts between the government
and the unions, since the current legislation aims to reduce the impact of trade unions.
More reasons :
First of all, the parallel reform of the national labor legislation. The Austrian case (isolated) shows that
the unions were able to negotiate very useful in the rules implementing the law, thanks to the ongoing
negotiations on the national code of work and despite the low priority given by employers to the problems
EWC. In Luxembourg, unions and government are somewhat neglecting the transposition of the EWC
directive and giving priority to national reform. In Romania, serious conflicts between the government
and trade unions as part of the ongoing reform of the transposition of the EWC directive makes it difficult
or even impossible. The recent reform of the national code of the work had a different effect in Portugal.
It can be assumed that the rapid adoption of the EWC Directive has been recast in 2009 due to '"drag
effect" operated by the reform in place just prior to the Directive. The current economic and financial
crisis could be a reason for the delay in the implementation in Greece and Ireland.
4.
Transposition of the Directive -“aurea mediocritas”.
35
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
With EU contribution
Reasons for excess of prudence and for delays
It’s also interesting to observe the effect of elections on the national
implementation process. In England, the transposition was probably
driven by parliamentary elections of 2010: The government wanted the
transposition before the election. In Ireland and Finland the national
elections have produced the opposite effect. In Belgium, no new
government was formed so far, but the social partners implemented
the EWC Directive recast by an agreement.
Finally, one might think the catalyst effect of the EU Presidency (which
is in rotation between the Member States every 6 months) and could
influence the implementation process in a positive way. However, even
if the EWC directive was voted on during the French EU Presidency in
2008, France has not yet transposed the directive. The Hungarian
Presidency (first half of 2011) has not yet had an impact on the
transposition of the Directive. The Polish unions hope that the next
president of Poland (July 2011), results in an acceleration in the
implementation process on site.
Transposition of the Directive -“aurea mediocritas”.
36
Domenico Iodice – APF
“CONCILIATION AND ARBITRATION” (VS/2010/06668)
With EU contribution
How to ensure the transposition ?
The infringement procedure and stages of development
There are two phases that comprise the steps: a pre-litigation (Article 226) and a litigation itself (Article 228). The
pre-litigation arises after the detection of the infringements of Community law. The European Commission is
sending a "letter of formal notice", giving the State a period of two months within which to submit their
comments.
When you open an infringement procedure.
The inertia of the state (non-response or unsatisfactory to the letter of formal notice within the period) determines
the immediate notification of the accusation by the Commission that, in parallel, the State formal notice to
terminate within a specified period. The non-compliance by the State to the reasoned opinion gives the right to
bring infringement proceedings at the Court of Justice (Article 226, paragraph 2 of the Treaty). Start the
proceedings (Article 228 of the Treaty), which aim is to obtain a formal investigation by the Court, by ruling.
If the Court of Justice finds that the Member State has breached its obligations Community, requires the
immediate execution of the decision process. If the Commission finds that the State has not complied with the
Court, it starts a procedure (Article 228 of the Treaty) alleging a breach additional to the State, namely the failure
to adopt the measures necessary for the execution of the sentence that has found a violation of Community law
(eg, amend, repeal or introduction of a statutory provision; transposition of a directive, a change in administrative
practice).
Transposition of the Directive -“Est modus in rebus”.
37
Domenico Iodice – APF