Select Committee on European Communities Eleventh Report


C. LEGAL AND PROCEDURAL ISSUES

57. PROPOSED DIRECTIVE CONCERNING THE FRAMEWORK AGREEMENT ON PART-TIME WORK CONCLUDED BY UNICE, CEEP AND THE ETUC (10230/97)

Letter from Lord Tordoff, Chairman of the Committee, to Ian McCartney MP, Minister of State, Department of Trade and Industry

  At its meeting on Thursday 6 November Sub-Committee F (Social Affairs, Education and Home Affairs) considered your Department's Explanatory Memorandum on the proposed Council Directive to implement the framework agreement on part-time work concluded by the social partners.

  The Sub-Committee noted that this was the first proposal under the Protocol on Social Policy to be deposited since the signing of the Amsterdam Treaty on 2 October and since the Government gave its commitment to take part in measures adopted under the Social Protocol. The Sub-Committee considered that the proposal raised a number of complex legal questions and would welcome your comments on the following matters:

  1. It is suggested that, pending the entry into force of the Amsterdam Treaty, measures adopted under the Agreement on Social Policy are likely to be applied to the United Kingdom by means of directives adopted under Article 100 EC Treaty. How will this work in practice?

  2. What alternative approaches to the Article 100 EC Treaty mechanism have been considered by the Council/Government and why have they been rejected ?

  3. The Directive is unusual in that it seeks to give effect to an appended agreement between the social partners. Does this present any particular difficulties for the United Kingdom in implementing the Directive ?

  4. Paragraph 17 of your Explanatory Memorandum indicates that the Government and other Member States are concerned about the provisions of Articles 2-4 of the Directive. Please indicate the nature of the Government's concerns and what progress has been made within the Council's Social Questions Working Group on resolving these difficulties and in clarifying the terms used in the agreement annexed to the draft Directive ?

  The Sub-Committee has decided to retain this document under scrutiny pending your response to the matters raised above.

12 November 1997

Letter from Ian McCartney MP, Minister of State, Department of Trade and Industry, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 12 November setting out the questions raised by your Committee at its meeting on 6 November on this draft Directive. I set out below the answers to your questions.

  1. It is suggested that, pending the entry into force of the Amsterdam Treaty, measures adopted under the Agreement on social Policy are likely to be applied to the United Kingdom by means of directives adopted under Article 100 EC Treaty. How will this work in practice?

  The intention is that, following adoption of the current Directive by the other 14 Member States, the Commission will propose a short Directive under Article 100 which will do no more than apply the provisions of the current Directive to the UK. As is usual, the Article 100 Directive will be addressed to all Member States and will require unanimity. Once adopted, the UK will have the same time as other Member States in which to implement the provisions.

  This procedure was agreed by the Council of Ministers on 24 July 1997, following the Amsterdam European Council in June, which noted that a means had to be found to give legal effect to the UK's wish to accept directives made under the Agreement on Social Policy before the signature of the new Treaty. The same procedure is being used in relation to the European Works Councils and Parental Leave Directives. Explanatory memoranda on draft Article 100 Directives applying these two directives to the UK (document number 10975/97) have also been lodged with the Committee.

  2. What alternative approaches to the Article 100 EC Treaty mechanism have been considered by the Council/Government and why have they been rejected?

  Two main alternatives to the agreed mechanism for applying Social Agreement measures to the UK were considered: a separate protocol attached to the Treaty or re-adoption" of each measure in full under Article 100. The idea of a protocol was rejected because, as an amendment to the Treaty, it would have required ratification by each of the fifteen Member States. This could have taken two years or more and would have caused considerable uncertainty as to the timescale for extension. The second alternative was rejected principally on grounds of complexity and because of concerns that it would risk reopening discussions on the substance of the measures in question. The mechanism finally agreed was considered to be the most straightforward and legally certain available.

  3. The Directive is unusual in that it seeks to give effect to an appended agreement between the social partners. Does this present any particular difficulties for the United Kingdom in implementing the Directive?

  The fact that the operative" provisions of this directive are contained in an agreement appended to it does not in itself give rise to any implementation problems.

  However, the appended agreement is the result of discussions between the social partners and is not drafted in legal language. In particular, a number of terms in the agreement are not defined (for example, there is no definition of full time worker", on which the all-important definition of part time worker" depends). It is therefore unclear or ambiguous in some respects. These factors could give rise to some difficulties in transposing the provisions into UK legislation.

  Two factors mitigate these potential problems. First, the Social Questions Working Group discussions on the draft Directive led to further discussions between the Commission and the social partners, and on many issues this produced clarification as to what legal effects the social partners intended the appended agreement to have. furthermore, it has been agreed that a recital should be added to the draft Directive making it clear that the Directive leaves Member States to define in accordance with national law and practice terms which are not specifically defined in the agreement, provided the definitions respect the content of the agreement. Member states will therefore have the flexibility to define terms in ways consistent with their labour market policies and practice.

  Secondly, more generally, the agreement is a Framework Agreement and provides much flexibility in how its objectives should be realised. Again, therefore, it leaves Member States to implement it in ways most appropriate to the particular circumstances of the member state.

  4. Paragraph 17 of your Explanatory Memorandum indicates that the Government and other Member States are concerned about the provisions of Articles 2-4 of the Directive. Please indicate the nature of the Government's concerns and what progress has been made within the council's Social Questions Working Group on resolving these difficulties and in clarifying the terms used in the agreement annexed to the draft Directive?

  The Government's and other Member States' concerns included:

   -   Articles 2 and 4 largely repeated material already in the annexed agreement, but with some changes in drafting. It had been agreed that the Directive should not alter the effect of the agreement, so the different drafting may have been unintentional and/or may have been intended to have no legal significance, but it would have caused confusion. However, there was no point in amending the wording so as simply to reiterate what was already contained in the agreement.

   -   Article 3 probably went beyond community competence in that it purported to prohibit forms of discrimination which will not be covered by the EC Treaty until the Treaty of Amsterdam is ratified. It also went significantly beyond the scope of the Framework agreement in requiring Member States to prohibit such discrimination in implementing the directive. Member states did not, however, have any difficulties with the important principle that implementing measures should not discriminate in this way.

   -   Article 4, in addition to being unnecessary, only partially reflected the relevant decisions of the European Court of Justice, and used terms (in particular the word penalties") which could restrict Member States' ability to provide civil remedies in accordance with usual practice in many states.

  There was wide consensus among the Member States on these conclusions. Appropriate references to these issues are in any case included in the recitals and the latest Presidency draft of the Directive does not contain these Articles. Their omission is likely to be agreed in the Council.

  As the answer to question 3 above indicates, a measure of clarification has been obtained as to the social partners' intentions with respect to many of the terms in the agreement, and it has been established that Member States have scope to interpret in appropriate ways terms not otherwise defined.

  I am copying this letter to the Chairman and Clerk of the House of Commons Select Committee on European Legislation.

24 November 1997




 
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