25 Amendments of Lucia ĎURIŠ NICHOLSONOVÁ related to 2024/0006(COD)
Amendment 66 #
Proposal for a directive
Recital 5
Recital 5
(5) Evidence shows that legal uncertainty regarding the concept of transnational matters has led to differences in interpretation and disputes. In order to ensure legal certainty and reduce the risk of such disputes, it is necessary to clarify that concept. To this end, it is appropriate to clarify that this Directive should not only cover cases where measures considered by management can reasonably be expected to directly affect employees in more than one Member State, but also cases where such measures can reasonably be expected to affect workers in only one Member State, but the consequences of those measures can reasonably be expected todo also have direct, immediate and substantial consequences affecting workers in at least one other Member State. This is necessary to cover cases where undertakings envisage measures, such as lay-offs and redundancies, which do explicitly target establishments in only one Member State but nevertheless can reasonably be expected to have consequences affecting employees in another Member State, for instance due to changes in the cross-border supply chain or production activities, where such measures could lead to substantial changes in work organisation or in contractual relations. The broadening of the definition should however not lead to more legal uncertainty or any duplication between the information and consultation process of the European Work Council and the one that might be happening at the local or national one. Such duplication might indeed create unnecessary work and possible conflicts, thus weakening one of the two outcomes of the information and consultation process. To determine the transnational character of a matter, it is therefore essential to ensure that there is a direct causal link between the measure undertaken in one Member State and the consequences on workers in another one.
Amendment 68 #
Proposal for a directive
Recital 7
Recital 7
(7) Members of special negotiating bodies may need legal advice or representation to carry out their tasks under Directive 2009/38/EC. It is however not sufficiently clear that they are entitled to the coverage of the associated legal fees. With a view to ensuring such coverage, it should be clarified that central management is to bear reasonable costs incurred by members of special negotiation bodies, which the latter should be required to notify in advance. It is appropriate to limit that obligation to reasonable legal costs to ensure that management is not liable for manifestly disproportionate costs, costs without justifiable link to the provision of relevant legal advice or representation, or costs created by manifestly unfounded, frivolous, or vexatious claims. Moreover, Directive 2009/38/EC gives Member States discretion to lay down budgetary rules regarding the operation of special negotiating body and European Works Councils based on subsidiary requirements, having regard to the principle that expenses relating to the appropriate conduct of the special negotiating boardy’s functions must be borne by the central management. Member States are encouraged to lay down such rules and set certain price ranges for each relevant expense category to prevent situations where undertakings will be notified with disproportionate costs. The same logic should also apply to subsidiary requirements and agreements of European Works Councils, thus reducing the risk of disputes on this matter. Therefore, the provisions referring to the number of experts to be funded by central management are redundant and should be deleted.
Amendment 76 #
Proposal for a directive
Recital 10
Recital 10
(10) The requirement in Directive 2009/38/EC to take into account, where possible, the need for a balanced representation of employees with regard to their gender when determining the composition of European Works Councils has proven insufficient to promote gender balance. Women remain underrepresented in most European Works Councils. Therefore, it is necessary to lay down more effective and specific objectives regarding gender representation, to be implemented by management and employee representatives when negotiating or renegotiating their agreements. To attain those objectives, it may in certain cases be necessary to give priority to the underrepresented sex in composing the special negotiating body, the European Works Council or its select committee. In accordance with the case- law of the Court of Justice of the European Union6, such positive action is possible, in accordance with the principle of equal treatment of men and women, provided that the measures taken to achieve the gender balance objective do not automatically and unconditionally give priority to persons of a certain gender but allow to take into account other criteria, such as merits and qualifications and the procedure for election established by the relevant laws. Parties to European Works Council agreements should therefore be afforded the flexibility necessary to respect the legal and factual limitations to the positive action. For similar considerations, it is appropriate, in addition, to require steps to strive for a gender-balanced composition of the special negotiating body, to promote that objective already during the negotiation phase. _______________________ 6 Judgment of the Court of Justice of 28 March 2000, Badeck and Others, C- 158/97, ECLI:EU:C:2000:163.
Amendment 81 #
Proposal for a directive
Recital 17
Recital 17
(17) In certain Member States, rightsholders under Directive 2009/38/EC encounter difficulties in bringing legal actions to enforce their rights. It is therefore necessary to strengthen Member States’ obligation toMember States should develop mechanisms to encourage mediation and they shall provide for alternative dispute mechanisms, thus avoiding an unnecessary increase of court cases. At the same time, Member States should ensure effective remedies and access to justice and the supervision byit is necessary for the Commission ofto supervise their compliance with that obligation. For that purpose, Member States should be required to notify the Commission ofabout which alternative dispute mechanisms have been put in place and how and under which circumstances the rightsholders can bring judicial, and where applicable, administrative procedures, in respect of all their rights under this Directive. Moreover, it should be clarified that the relevant procedures have to enable a timely and effective enforcement, and that possible prior out-of-court settlement procedures can neither result in a decision which is binding on the parties concerned, nor prejudice rightsholders’ right to bring legal proceedings.
Amendment 86 #
Proposal for a directive
Recital 21
Recital 21
(21) European Works Councils operating based on the subsidiary requirements set out in Annex 1 to Directive 2009/38/EC have the right to meet with central management once a year, to be informed and consulted on the progress of the business of the relevant Community-scale undertaking or Community-scale group of undertakings and its prospects. In order to strengthen the transnational information and consultation of those European Works Councils, it is appropriate to increase the number of such annual plenary meetings in the subsidiary requirements to two. To allow for meaningful information and consultation at lower environmental and financial costs, at least one of these plenary meetings shall be held virtually, unless agreed otherwise.
Amendment 100 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 2009/38/EC
Article 1 – paragraph 4 – subparagraph 2
Article 1 – paragraph 4 – subparagraph 2
Those conditions shall be deemed to be met where the measures considered by management of the Community-scale undertaking or Community-scale group of undertakings can reasonably be expected:
Amendment 107 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 2009/38/EC
Article 1 – paragraph 4 – subparagraph 2 – point a
Article 1 – paragraph 4 – subparagraph 2 – point a
(a) the measures considered by management of the Community-scale undertaking or Community-scale group of undertakings can reasonably be expected too directly affect workers in undertakings or establishments in more than one Member State;
Amendment 116 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 2009/38/EC
Article 1 – paragraph 4 – subparagraph 2 – point b
Article 1 – paragraph 4 – subparagraph 2 – point b
(b) the measures considered by management of the Community-scale undertaking or Community-scale group of undertakings can reasonably be expected too directly affect workers in an undertaking or establishment in one Member State, and workers in an undertaking or establishment in at least another Member State can reasonably be expected to be affected by thare substantially affected by the direct and immediate consequences of those measures.”;
Amendment 137 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2009/38/EC
Article 2 – paragraph 1 – point i a (new)
Article 2 – paragraph 1 – point i a (new)
(ia) ‘reasonable costs‘ concern expenses that are directly related to the proper functioning and operating of the special negotiating body or the European Works Council, the training of their members or those, which have a justifiable link to the provision of relevant advice or representation to fulfil their mission. When a European Works Council agreement is reached, it shall include a price range for each relevant category of expenses.
Amendment 152 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 – point a
Article 1 – paragraph 1 – point 3 – point a
Directive 2009/38/EC
Article 5 – paragraph 2 – point b
Article 5 – paragraph 2 – point b
“(b) The members of the special negotiating body shall be elected or appointed in proportion to the number of employees employed in each Member State by the Community-scale undertaking or the Community-scale group of undertakings, in a manner that strives to achieve a gender-balanced representation, by allocating in respect of each Member State one seat per portion of employees employed in that Member State, amounting to 10 %, or a fraction thereof, of the number of employees employed in all the Member States taken together. The special negotiating bodies shall strive to represent the diversity of the workforce and a gender-balanced representation, whereby women and men each comprise at least 40% of special negotiating body members. If this objective is not reached, the reasons should be explained in written;”;
Amendment 184 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 – point a – indent 2
Article 1 – paragraph 1 – point 4 – point a – indent 2
Directive 2009/38/EC
Article 6 – paragraph 2 – point f
Article 6 – paragraph 2 – point f
“(f) the reasonable financial and material resources to be allocated to the European Works Council, including at least with respect to the following aspects:
Amendment 205 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 – point a – indent 2
Article 1 – paragraph 1 – point 4 – point a – indent 2
Directive 2009/38/EC
Article 6 – paragraph 2 – subparagraph 2
Article 6 – paragraph 2 – subparagraph 2
The requirement to determine the elements listed in the first subparagraph, as amended by [OP: insert reference to this amending Directive*], shall apply also with respect to European Works Council agreements concluded before [OP: insert date laid down in the second subparagraph of Article 2 of this amending Directive.]. , without necessarily affecting the other provisions of the already existing agreement if both parties decide so. _______________________ * [OP: insert OJ reference to this amending Directive.]”;
Amendment 208 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 – point b
Article 1 – paragraph 1 – point 4 – point b
Directive 2009/38/EC
Article 6 – paragraph 2 a
Article 6 – paragraph 2 a
“2a. The central management and the special negotiating body, when negotiating or renegotiating a European Works Council agreement, shall agree and lay down the necessary arrangements for attaining, as far as possible, and without prejudice to national laws on electing workers representativesrepresenting the diversity of the workforce, and for attaining, as far as possible, the objective of gender balance whereby women and men each comprise at least 40 % of European Works Council members, and where applicable, at least 40 % of select committee members, without prejudice to national laws on electing workers representatives. If this objective is not reached, the reasons should be explained in written.”;
Amendment 246 #
Proposal for a directive
Article 1 – paragraph 1 – point 7
Article 1 – paragraph 1 – point 7
Directive 2009/38/EC
Article 8 a – paragraph 2
Article 8 a – paragraph 2
2. When central management does not transmit information on the grounds referred to in paragraph 1, it shall inform the members of the special negotiating bodies or the European Works Councils, or the employees’ representatives in the framework of an information and consultation procedure of the reasons justifying the non-transmission of information. Based on the objective criteria mentioned in paragraph 1, and defined in national legislation, the Community-scale undertaking or Community-scale group of undertakings may be allowed to not provide any justification.”;
Amendment 254 #
Proposal for a directive
Article 1 – paragraph 1 – point 8
Article 1 – paragraph 1 – point 8
Directive 2009/38/EC
Article 9 – paragraph 3
Article 9 – paragraph 3
3. Consultation shall take place at such time, in such fashion and with such content as it enables employees’ representatives to express an opinion prior to the adoption of the decision and based on the information provided in accordance with paragraph 2, without prejudice to the responsibilities of the management, and within a reasonable time taking into account the urgency of the matter. The employees’ representatives shall be entitled to a reasoned written response from the central management or any more appropriate level of management prior to the adoption of the decision on the measures in question, provided the employee representatives expressed their opinion within a reasonable time in accordance with the first sentence. In general, the use of digital means of communication and coordination shall be encouraged during the exercise of the information and consultation procedure.
Amendment 299 #
Proposal for a directive
Article 1 – paragraph 1 – point 9 – point a
Article 1 – paragraph 1 – point 9 – point a
Directive 2009/38/EC
Article 11 – paragraph 2 – subparagraph 3
Article 11 – paragraph 2 – subparagraph 3
For the purposes of point (b), of the first subparagraph, Member States shall take into consideration, when determining penalties, the gravity, including the number of affected workers, duration, consequences, and the intentional or negligent nature of the offence, and in respect of pecuniary sanctions, also the size and financial situation of the sanctioned undertaking or group, and any other relevant criteria.”;
Amendment 305 #
Proposal for a directive
Article 1 – paragraph 1 – point 9 – point c
Article 1 – paragraph 1 – point 9 – point c
Directive 2009/38/EC
Article 11 – paragraph 4
Article 11 – paragraph 4
“4. Member States are encouraged to develop out-of-court mediation procedures enabling both parties to find acceptable solutions. Where Member States make access to legal proceedings conditional upon the prior implementation of an alternative dispute resolution, that procedure shall neither result in a decision which is binding on the parties concerned, nor otherwise prejudice their right to bring legal proceedings.”;
Amendment 307 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive 2009/38/EC
Article 12 – paragraph 2
Article 12 – paragraph 2
2. The arrangements for the links between the information and consultation of the European Works Council and national employee representation bodies shall be established by the agreement referred to in Article 6 so as to avoid duplication and ensure a good coordination between information and consultation processes within the European Works Council and those established at national level. That agreement shall be without prejudice to the provisions of national law and/or practice on the information and consultation of employees.
Amendment 308 #
Proposal for a directive
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Directive 2009/38/EC
Article 12 – paragraph 6
Article 12 – paragraph 6
Amendment 318 #
Proposal for a directive
Article 1 – paragraph 1 – point 12
Article 1 – paragraph 1 – point 12
Directive 2009/38/EC
Article 14 a – paragraph 1
Article 14 a – paragraph 1
1. Where, following the transposition of [OP: insert reference to this amending Directive], a European Works Council agreement or agreement on an information and consultation procedure concluded before [OP: insert date from which the transposing provisions are to apply, set out in the Article 2(1), 2nd subpar. of this amending Directive] in accordance with Articles 5 and 6 of Directive 94/45/EC or Articles 5 and 6 of this Directive is not in conformity with any of the requirements applicable to that agreement as a consequence of the amendments provided for in [OP: insert reference to this amending Directive], central management shall initiate negotiations to adapt that agreement 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. Central management may also initiate such negotiations on its own initiative.
Amendment 321 #
Proposal for a directive
Article 1 – paragraph 1 – point 12
Article 1 – paragraph 1 – point 12
Directive 2009/38/EC
Article 14 a – paragraph 2
Article 14 a – paragraph 2
2. Where the European Works Council agreement or agreement on an information and consultation procedure contains procedural arrangements for its adaptation or renegotiation, the adaptation may be negotiated pursuant to those arrangements. Otherwise, the adaptation shall follow the procedure set out in Article 5 in conjunction with Article 13, second and third paragraphs.
Amendment 339 #
Proposal for a directive
Annex I – paragraph 1 – point 1 – point c
Annex I – paragraph 1 – point 1 – point c
Directive 2009/38/EC
Annex 1 – point 1– point d d
Annex 1 – point 1– point d d
“(dd) as far as possible, the European Works Council members and those of select committee shall represent the diversity of the workforce and women and men shall each comprise at least 40% of European Works Council members and of select committee members. If this objective is not reached, the reasons should be explained in written;”;
Amendment 340 #
Proposal for a directive
Annex I – paragraph 1 – point 2
Annex I – paragraph 1 – point 2
Directive 2009/38/EC
Annex 1 – point 2
Annex 1 – point 2
“2. The European Works Council shall have the right to meet with the central management twice a year, 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. The local managements shall be informed accordingly. To avoid the increase of the environmental footprint of meetings in line with Union, national and companies’ emission reduction targets, while ensuring meaningful information and consultation at lower environmental and financial costs, one of these meetings shall be held in the virtual setting.”
Amendment 344 #
Proposal for a directive
Annex I – paragraph 1 – point 3
Annex I – paragraph 1 – point 3
Directive 2009/38/EC
Annex 1 – point 4 a (new)
Annex 1 – point 4 a (new)
4a. Information and consultation procedures within the European Works Council shall be carried out without prejudice to those taking place at the national level. When a procedure is already taking place at the national level, European Works Council shall ensure that the two procedures can complement each other with respect to the content and the timing of the procedures.
Amendment 349 #
Proposal for a directive
Annex I – paragraph 1 – point 5 – point a
Annex I – paragraph 1 – point 5 – point a
Directive 2009/38/EC
Annex 1 – point 6 – subparagraph 3 a (new)
Annex 1 – point 6 – subparagraph 3 a (new)
(a) the following subparagraph is inserted between the third and fourth subparagraphs: “The operating expenses of the European Works Council shall include reasonable costs of legal assistance, representation and proceedings, which shall, when applicable, fall within the price ranges provided for in national legislation. Operating expenses shall be notified to central management before they are incurred.”;