Social policy at European Union level is clearly centred on work. The objectives mentioned in Article 136 of the Treaty establishing the European Community (TEC) are: the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.
The legal base for the European Community’s supporting and complementing action is Article 137 TEC, where one of the fields mentioned is the information and consultation of workers, to which the codecision procedure applies (Article 251 TEC).
***
Recast Works Council Directive
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) has now been published in the Official Journal of the European Union (OJEU) 16.5.2009 L 122/28.
The objective of the recast Directive, with EEA relevance, is:
Article 1
Objective
1. The purpose of this Directive is to improve the right to information and to consultation of employees in Community-scale undertakings and Community-scale groups of undertakings.
2. To that end, a European Works Council or a procedure for informing and consulting employees shall be established in every Community-scale undertaking and every Community-scale group of undertakings, where requested in the manner laid down in Article 5(1), with the purpose of informing and consulting employees. The arrangements for informing and consulting employees shall be defined and implemented in such a way as to ensure their effectiveness and to enable the undertaking or group of undertakings to take decisions effectively.
3. Information and consultation of employees must occur at the relevant level of management and representation, according to the subject under discussion. To achieve that, the competence of the European Works Council and the scope of the information and consultation procedure for employees governed by this Directive shall be limited to transnational issues.
4. Matters shall be considered to be transnational where they concern the Community-scale undertaking or Community-scale group of undertakings as a whole, or at least two undertakings or establishments of the undertaking or group situated in two different Member States.
5. Notwithstanding paragraph 2, where a Community-scale group of undertakings within the meaning of Article 2(1)(c) comprises one or more undertakings or groups of undertakings which are Community-scale undertakings or Community-scale groups of undertakings within the meaning of Article 2(1)(a) or (c), a European Works Council shall be established at the level of the group unless the agreements referred to in Article 6 provide otherwise.
6. Unless a wider scope is provided for in the agreements referred to in Article 6, the powers and competence of European Works Councils and the scope of information and consultation procedures established to achieve the purpose specified in paragraph 1 shall, in the case of a Community-scale undertaking, cover all the establishments located within the Member States and, in the case of a Community-scale group of undertakings, all group undertakings located within the Member States.
7. Member States may provide that this Directive shall not apply to merchant navy crews.
***
Businesses concerned
A European Works Council or a procedure for informing and consulting employees must be established in the enterprises defined.
Community scale undertaking
‘Community-scale undertaking’ means 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; Article 2(a).
Community scale group of undertakings
‘Community-scale group of undertakings’ means 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 at least one other group undertaking with at least 150 employees in another Member State; Article 2(c).
***
Transposition
Directive 2009/38 repeals Directive 94/45/EC, as amended, with effect from 6 June 2011, when the time to transpose the provisions of the new Directive into national law has ended.
Ralf Grahn
Showing posts with label undertaking. Show all posts
Showing posts with label undertaking. Show all posts
Saturday, 16 May 2009
Friday, 4 April 2008
EU TFEU: Right of establishment
Are you interested in working as a self-employed person, setting up shop in another EU country? Do you manage an agency, a branch or a subsidiary in another member state of the European Union?
The right of establishment, also known as the freedom of establishment, is an expression of the principle of free movement within the internal market.
The EU’s Treaty of Lisbon preserves your right of establishment on equal grounds.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) has nothing substantial to say about Article 43 of the Treaty establishing the European Community (TEC). Cf. OJ 17.12.2007 C 306/54.
***
Unchanged does not mean unimportant, so we turn to the latest consolidated version of the existing treaties, in 29.12.2006 C 321 E/59:
CHAPTER 2
RIGHT OF ESTABLISHMENT
Article 43 TEC
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
***
Although there are no specific amendments, there are still details to check before we now for sure how the corresponding Article of the Treaty on the Functioning of the European Union (TFEU) is going to look according to the Lisbon Treaty.
The annexed Tables of equivalences tell us that we have arrived at a new chapter: Chapter 2 ‘Right of establishment’. They also tell us that Article 43 TEC first becomes Article 43 ToL, and later will be known under the new number Article 49 TFEU (17.12.2007 C 306/208).
As always, we have to watch out for possible horizontal amendments, mentioned on OJ 17.12.2007 C 306/41 and the following pages. (Here, there seem to be none.)
We notice a referral to another Article, which means that we have to check the numbering and that the referral remains substantially correct.
In order to make it easier to read this post on a stand-alone basis, we start by indicating the location of the Article (using the Tables of equivalences, OJ 17.12.2007 C 306/207-208).
***
Here is what the Article should look like, according to the Treaty of Lisbon:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 43 TFEU (ToL), renumbered Article 49 TFEU
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48 [ToL, renumbered Article 54 TFEU], under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
***
In Article III-22 of the draft Treaty establishing a Constitution for Europe, the European spoke more directly to the potential entrepreneurs in the second subparagraph, without altering the substance of the provision (OJ 18.7.2003 C 169/32):
Subsection 2
Freedom of establishment
Article III-22 Draft Constitution
Within the framework of this Subsection, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Nationals of a Member State shall have the right, in the territory of another Member State, to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article III-27, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, subject to the provisions of the Section relating to capital.
***
The IGC 2004 took over the draft text in Article III-137 of the Treaty establishing a Constitution for Europe, with only technical adjustments (OJ 16.12.2004 C 310/61).
***
Even more focused on institutional questions and economical concerning amendments without substantial impact, the IGC 2007 reverted to the current TEC text.
From a reader’s point of view it was not a ‘failed Constitution’. Only ratification failed, and as a result we lost a host of small improvements, too, ending up with two slightly less well adapted treaties than the whole one on offer a few years ago.
***
This time, instead of suggesting further reading from the web, I would like to recommend turning to a textbook on the subject of freedom of establishment. An alternative in English is:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law (Oxford University Press, Ninth Edition, 2006), pages 446 to 467.
Ralf Grahn
The right of establishment, also known as the freedom of establishment, is an expression of the principle of free movement within the internal market.
The EU’s Treaty of Lisbon preserves your right of establishment on equal grounds.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) has nothing substantial to say about Article 43 of the Treaty establishing the European Community (TEC). Cf. OJ 17.12.2007 C 306/54.
***
Unchanged does not mean unimportant, so we turn to the latest consolidated version of the existing treaties, in 29.12.2006 C 321 E/59:
CHAPTER 2
RIGHT OF ESTABLISHMENT
Article 43 TEC
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
***
Although there are no specific amendments, there are still details to check before we now for sure how the corresponding Article of the Treaty on the Functioning of the European Union (TFEU) is going to look according to the Lisbon Treaty.
The annexed Tables of equivalences tell us that we have arrived at a new chapter: Chapter 2 ‘Right of establishment’. They also tell us that Article 43 TEC first becomes Article 43 ToL, and later will be known under the new number Article 49 TFEU (17.12.2007 C 306/208).
As always, we have to watch out for possible horizontal amendments, mentioned on OJ 17.12.2007 C 306/41 and the following pages. (Here, there seem to be none.)
We notice a referral to another Article, which means that we have to check the numbering and that the referral remains substantially correct.
In order to make it easier to read this post on a stand-alone basis, we start by indicating the location of the Article (using the Tables of equivalences, OJ 17.12.2007 C 306/207-208).
***
Here is what the Article should look like, according to the Treaty of Lisbon:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 43 TFEU (ToL), renumbered Article 49 TFEU
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48 [ToL, renumbered Article 54 TFEU], under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
***
In Article III-22 of the draft Treaty establishing a Constitution for Europe, the European spoke more directly to the potential entrepreneurs in the second subparagraph, without altering the substance of the provision (OJ 18.7.2003 C 169/32):
Subsection 2
Freedom of establishment
Article III-22 Draft Constitution
Within the framework of this Subsection, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Nationals of a Member State shall have the right, in the territory of another Member State, to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article III-27, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, subject to the provisions of the Section relating to capital.
***
The IGC 2004 took over the draft text in Article III-137 of the Treaty establishing a Constitution for Europe, with only technical adjustments (OJ 16.12.2004 C 310/61).
***
Even more focused on institutional questions and economical concerning amendments without substantial impact, the IGC 2007 reverted to the current TEC text.
From a reader’s point of view it was not a ‘failed Constitution’. Only ratification failed, and as a result we lost a host of small improvements, too, ending up with two slightly less well adapted treaties than the whole one on offer a few years ago.
***
This time, instead of suggesting further reading from the web, I would like to recommend turning to a textbook on the subject of freedom of establishment. An alternative in English is:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law (Oxford University Press, Ninth Edition, 2006), pages 446 to 467.
Ralf Grahn
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