Changes from report parliamentary committee draft to plenary report

Directive 2009/38/EC

Article 1 – paragraph 1 – point 9 – point a, Article 11 – paragraph 2 – subparagraph 1 – point a: (a) adequate administrative and judicial procedures are available and easily accessible to enable the rights and obligations deriving from this Directive to be enforced in a timely and effective manner, to apply for and terminate including the possibility to request a preliminary injunction for the temporary suspension of decisions of the central management where such decisions are challenged on the basis that there has been an infringement of the information and consultation requirements under this Directive or under agreements concluded pursuant thereto. The effects of the challenged decisions on employment contracts or employment relationships of the affected employees shall be suspended accordingly;

Directive 2009/38/EC

Change 39

ChangedArticle 1 – paragraph 1 – point 9 – point a, Article 11 – paragraph 2 – point b – subparagraph 1 a (new) – introductory part: The penalties referred to in point b) of this paragraph(b) shall include:

Directive 2009/38/EC

Change 40

ChangedArticle 1 – paragraph 1 – point 9 – point a, Article 11 – paragraph 2 – point b – subparagraph 1 a (new) – point i (new):i: (i) financial penalties that are proportionate to the nature, gravity and duration of the undertaking’s infringement and which shall increase in amount according to the number of affected employees;

Directive 2009/38/EC

Change 41

ChangedArticle 1 – paragraph 1 – point 9 – point a, Article 11 – paragraph 2 – point b – subparagraph 1 a (new) – point ii (new):ii: (ii) orders excluding the undertaking from an entitlement to some or all public benefits, aids or subsidies, including Union funds managed by the relevant Member States, for a period of up to three years;

Directive 2009/38/EC

Change 42

ChangedArticle 1 – paragraph 1 – point 9 – point a, Article 11 – paragraph 2 – point b – subparagraph 1 a (new) – point iii (new):iii: (iii) orders excluding the undertaking from participating in a public contract as defined in Directive 2014/24/EU of the European Parliament and of the Council1a. / 1a Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65).

Directive 2009/38/EC

Change 43

ChangedArticle 1 – paragraph 1 – point 9 – point a, Article 11 – paragraph 2 – subparagraph 2: In the case of infringements as referred to in point (b),of(b) of this paragraph, which are not committed intentionally, the financial penalties referred to in point (a) of this paragraph, shall be substantive and equivalent to those provided for in Article 83(4) of Regulation (EU) 2016/6791a. / 1a Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

Directive 2009/38/EC

Change 44

ChangedArticle 1 – paragraph 1 – point 9 – point a, Article 11 – paragraph 2 – subparagraph 3: In the case of infringements as referred to in point (b) of this paragraph which are committed intentionally, the financial penalties referred to in point (a) of this paragraph shall be substantive and equivalent to those provided for in Article 83(5) of Regulation (EU) 2016/679.2016/679.”;

Directive 2009/38/EC

Change 45

ChangedArticle 1 – paragraph 1 – point 9 – point b – indent 1 a new,(new), Article 11 – paragraph 3 – subparagraph 1 a (new): – the following subparagraph is inserted after the first subparagraph: / "The central management shall bear the judicial costs incurred in carrying out the procedures, the costs of legal representation and subsidiary costs such as subsistence and travel expenses for at least one employees' representative;"

Directive 2009/38/EC

Change 46

RemovedArticle 1 – paragraph 1 – point 12, Article 14a – paragraph 1: 1. By … [two years after the deadline for transposition of this amending Directive], the obligations arising from this Directive shall be applicable to European Works Council agreements or agreements 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. All agreements which have been concluded pursuant to Article 13(1) of Directive 94/45/EC and agreements concluded pursuant to Article 6 of Directive 94/45/EC which were signed or revised between 5 June 2009 and 5 June 2011 shall fall within the scope of this Directive without any obligation to renegotiate.

AddedArticle 1 – paragraph 1 – point 9 – point c, 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.”;

Directive 2009/38/EC

Change 47

RemovedArticle 1 – paragraph 1 – point 12, Article 14a – paragraph 3: 3. Where an adaptation procedure does not lead to an agreement within 18 months from the date of the respective request by employees or their representatives, the subsidiary requirements set out in Annex I shall apply.”;

AddedArticle 1 – paragraph 1 – point 9 a (new), Article 12 – paragraph 2: (9a) in Article 12, paragraph 2 is replaced by the following: / 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 in order to ensure 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.

Directive 2009/38/EC

Change 48

RemovedArticle 1 – paragraph 1 – point 12 a (new), Article 15 – paragraph 1 a (new): (12a) in Article 15, the following paragraph is added: / When making such proposals, the Commission shall assess the possibility of including contracts which enable structurally independent undertakings to influence one another's operation and business decisions (such as franchising or management contracts) within the scope of Directive 2009/38/EC, in order to prevent possible gaps.

AddedArticle 1 – paragraph 1 – point 10, Article 12 – paragraph 6: deleted / (deleted)

Directive 2009/38/EC

Change 49

RemovedArticle 1 – paragraph 1 – point 12 b (new), Article 16 – paragraph 2 a (new): (12b) in Article 16, the following paragraph is added: / “2a. Member States shall notify the Commission of the measures taken referred in Article 11(2) at the earliest opportunity.”

AddedArticle 1 – paragraph 1 – point 12, Article 14a – paragraph 1: 1. Where 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 does not determine all the elements listed in Article 6(2), as amended by [OP: insert reference to this amending Directive] central management shall initiate negotiations by ... [one year from date of entry into force of this Directive] for the establishment of an addendum, determining the elements not determined by the existing European Works Council agreement or agreement on an information and consultation procedure.

Directive 2009/38/EC

Change 50

AddedArticle 1 – paragraph 1 – point 12, Article 14a – paragraph 2: 2. Where the European Works Council agreement or agreement on an information and consultation procedure contains procedural arrangements for its adaptation, the establishment of the addendum may be negotiated pursuant to those arrangements. Otherwise, the establishment of the addendum shall follow the procedure set out in Article 5 in conjunction with Article 13, second and third paragraphs.

AddedDirective 2009/38/EC

AddedArticle 1 – paragraph 1 – point 12, Article 14a – paragraph 3: 3. Where an adaptation procedure initiated pursuant to paragraph 1 does not lead to an agreement on the addendum within two years following the initiation of the negotiations, the subsidiary requirements set out in Annex I in respect of the elements not determined in the existing European Works Council agreement or agreement on an information and consultation procedure shall apply.”;

AddedDirective 2009/38/EC

AddedArticle 1 – paragraph 1 – point 12 a (new), Article 15 a (new): (12a) The following article is inserted: / ‘Article 15a / Monitoring / 1. To ensure the correct application of the Directive and to address and resolve practical problems arising from its implementation, a monitoring committee shall be established. / 2. The monitoring committee shall be composed by one representative per Member State, three representatives of each of the European social partners, and the Commission. / 3. The monitoring committee shall meet twice per year and shall be chaired by the Commission.’

AddedArticle 2 – paragraph 2 a (new): “2a. Member States shall notify the Commission of the measures taken pursuant to Article 11(2) at the earliest opportunity.”

AddedDirective 2009/38/EC

AddedAnnex 1 – paragraph 1 – point 1 – point a a (new), Annex 1 – point 1 – point a – paragraph 2: (aa) in paragraph 1, the second subparagraph of point (a) is replaced by the following: / The information of the European Works Council on transnational matters shall relate in particular to the structure, economic and financial situation, probable development and production and sales of the Community-scale undertaking or group of undertakings. The information and consultation of the European Works Council shall relate in particular to the situation and probable trend of employment, working conditions, skills and training policies including in franchise networks, and substantial changes concerning organisation, introduction of new working methods or production processes, transfers of production, mergers, cut-backs or closures of undertakings, establishments or important parts thereof, and collective redundancies.

AddedDirective 2009/38/EC

AddedAnnex 1 – paragraph 1 – point 1 – point c, Annex 1 – point 1 – point dd: “(dd) 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.

AddedDirective 2009/38/EC

AddedAnnex 1 – paragraph 1 – point 2, Annex 1 – point 2: “2. The European Works Council shall have the right to meet in person with the central management at least 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. When appropriate and agreed upon and while ensuring meaningful information and consultation, digital means of communication and coordination can be used in exceptional cases without replacing ordinary meetings.”

AddedDirective 2009/38/EC

Annex I – paragraph 1 – point 3, Annex I – point 3 – subparagraph 1: “Where there are exceptional circumstances or decisions which may or are likely to affect the employees’ interests to a considerable extent, and urgency does not allow for information or consultation to take place at the following scheduled European Works Council meeting, particularly in the event of relocations, the closure of establishments or undertakings or collective redundancies, the select committee or, where no such committee exists, the European Works Council, shall have the right to be informed in a timely manner. It shall have the right to meet, at its request, the central management, or any other more appropriate level of management within the Community-scale undertaking or group of undertakings having its own powers of decision, in order to be informed and consulted.

Directive 2009/38/EC

Annex I – paragraph 1 – point 3, Annex I – point 3 – subparagraph 2: Those members of the European Works Council who have been elected or appointed by the establishments and/or undertakings which are directly concerned or can reasonably be expected to be affected by the circumstances or decisions in question shall also have the right to participate where a meeting is organised with the select committee.”;

Change 51

AddedDirective 2009/38/EC

AddedAnnex 1 – paragraph 1 – point 3 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. Where a procedure is already taking place at the national level, the European Works Council and the central management shall ensure that those procedures can complement each other with respect to the content and the timing of the procedures.

AddedDirective 2009/38/EC

AddedAnnex 1 – paragraph 1 – point 5 – point a, Annex 1 – point 6 – paragraph 3a: The operating expenses of the European Works Council shall include reasonable costs of legal assistance, representation and proceedings, and relevant training to members of the European Works Council. Operating expenses shall be notified to central management before they are incurred.