Explanatory Memorandum to COM(2000)382 - European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the Association of European Airlines (AEA), the European Transport Workers' Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2000)382 - European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the Association of ... |
|---|---|
| source | COM(2000)382  |
| date | 23-06-2000 |
1. The purpose of this proposal for a Directive is to put into effect the annexed European Agreement on the organisation of working time of Mobile Staff in Civil Aviation concluded on 22 March 2000 between the organisations representing management and labour in the civil aviation sector.
2. When the 'White Paper on sectors and activities excluded from the Working time Directive' i was sent to the social partners, they were asked to treat it as the first round of formal consultation in respect of working time in the sectors and activities concerned. On 31 March 1998, the Commission launched a second phase consultation process on the content of its envisaged proposal, following the responses to the White Paper.
3. Following the second phase consultation, the organisations representing management and labour at European level, the Association of European Airlines (AEA), the European Transport Workers' Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA) concluded a European Agreement on the organisation of Working Time of Mobile Staff in Civil Aviation on 22 March 2000. They forwarded the agreement to the Commission, asking for it to be implemented by a Council decision on a proposal from the Commission in accordance with Article 139 i of the Treaty.
Contents
- II. Examination of the agreement
- Representativeness of the contracting parties and their respective mandates
- Provisions regarding small and medium-sized enterprises
- Assessment of the agreement
- III. The Commission's proposal
- Legal basis
- The form the instrument is to take
- Article 1
- Articles 2 to 6
- IV. Justification for the Directive in respect of subsidiarity
- V. Conclusion
4. In its Communication 'adapting and promoting the social dialogue at Community level' i, the Commission stressed that 'before any legislative proposal implementing an agreement is presented to the Council, the Commission carries out an assessment involving consideration of the representative status of the contracting parties, their mandate and the legality of each clause in the agreement in relation to Community law, and the provisions regarding small and medium sized enterprises'.
5. The organisations which are signatory to the agreement are the Association of European Airlines (AEA), the European Transport Workers' Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA). The five organisations have been engaged in the Joint Committee on Civil Aviation since its creation in 1987. The activities of the Joint Committee have resulted in several joint opinions concerning transport and social policy issues.
6. According to material submitted by the signatory parties, they relate to a specific sector and are organised at European level. Moreover, they consist of organisations which are themselves an integral and recognised part of Member State social partners structures, which have the capacity to negotiate agreements and are representative of all Member States. Finally, they have appropriate structures to ensure their effective participation in implementing the social provisions of the Treaty.
7. All signatory organisations have transmitted information on their representative status. The evidence shows that they are sufficiently representative for mobile staff in the civil aviation sector. The Association of European Airlines represents mainly the national flag carriers. Its affiliates taken together employ 75% of total employment in the airline business. The rest of the workers are employed by charter airlines, organised at European level by the International Association of Charter Airlines (IACA), and by the European Regions Airlines Association (ERA). The ERA represents European airlines, manufacturers and airports, but has provided employment figures for only its airline activities. From the trade unions' side, the Agreement has been signed by the European Transport Workers' Federation (ETF) which represents the cabin crew (some two thirds of total mobile employment) and by the European Cockpit Association which represents pilots and flight engineers.
8. The table below gives an overview of employment in civil aviation, with estimates of data on mobile staff. It can be estimated that, on the basis of the existing figures, the total mobile staff in civil aviation amounts to approximately 95,000. On the employers' side, the members of the three signatory parties employ nearly 95% of all mobile staff, of which the members of AEA alone employ three-quarters. The ECA represents more than 80% of the European pilots and flight engineers, while the ETF represents some 70% of cabin crew. i
>TABLE POSITION>
9. The organisations therefore meet the criteria of social partners at European level, as laid down in the 1993 Commission Communication i and have, subsequently, been included in the list of recognised social partners organisations in annex I attached to the Commission Communication 'adapting and promoting the social dialogue at Community level' i: the AEA, IACA and ERA as sectoral employers' organisations; the ETF as a European Industry Committee with ETUC affiliation.
10. Article 137 i of the Treaty provides that legislation on social policy shall avoid imposing administrative, financial and legal constraints in a way which hold back the creation and development of small and medium-sized undertakings.
11. The agreement does not make a distinction between workers of small and medium-size enterprises and other workers. However, the minimum health and safety standards of workers should not be subject to the size of the enterprise. Nevertheless, European Regions Airline Association (ERA) represents 59 mainly small and medium sized aircraft operators the size of which varies, based on the number of employees and, according to the latest statistics (January 2000), between 28 and 2200 employees.
12. The fact that the ERA is party to the agreement shows that the interests of small and medium sized aircraft operators have been taken into account. In addition, none of the provisions of the agreement can be considered as affecting the potential entry into the market of new small and medium sized aircraft operators.
13. The Commission therefore concludes that the agreement complies with the provisions concerning small and medium-sized enterprises.
"Legality" of the clauses of the agreement
14. The Commission has carefully examined each of the clauses of the agreement and does not find any provisions contrary to Community law. The obligations imposed on Member States do not derive directly from the agreement between the social partners but from the arrangement for applying the agreement under the Directive. The parties intend that, with respect of mobile staff in the civil aviation sector, the provisions of this Directive and the annexed Agreement substitute the more general provisions contained in Council Directive 93/104/EC as amended by the European Parliament and Council Directive 2000/xxx/EC. i The following section contains the Commission's assessment of the content of the agreement.
15. By laying down minimum requirements on working time, the European Agreement on the Organisation of Working Time of Mobile Staff in Civil Aviation implements points 7, 8 and 19 of the Community Charter of the Fundamental social Rights or workers referred to in Article 136 of the Treaty.
16. The Commission considers that the adaptation, flexibility and organisation of working time are crucial aspects as regards both workers conditions and the dynamism of firms and play a considerable role in determining the situation of the labour market and the creation of employment.
17. Within this context, the Commission wholeheartedly endorses the aim of the working time Agreement concluded by the AEA, ETF, ECA, ERA and IACA and sees it as an important step in three respects.
18. Firstly the introduction of Community minimum working time requirements for mobile staff in civil aviation constitutes a major step forward in creating a minimum set of fundamental rights of workers.
19. Secondly, the Agreement strikes a balance between the need to ensure adequate protection for the health and safety of mobile staff in civil aviation with regard to working time and the requirements to allow adequate operating flexibility to airlines engaged in commercial aviation operations and to maintain appropriate public safety standards. In this respect the Agreement is in line with the Commission Social Action Programme 1998 - 2000, the White Paper on sectors and activities excluded from the Working Time Directive, i the Commission Common Transport Policy Action Programme i and the Commission Communication on 'Modernising the organisation of work' i.
20. Thirdly, the Agreement constitutes a remarkable achievement for the sectoral social dialogue at Community level, confirms the crucial role of the European social partners in supplementing, completing and adapting at Community level national standards on working conditions, and illustrates the role that the social partners can play in the European employment strategy agreed at the 1997 Luxembourg extraordinary summit and the subsequent Council Resolutions, in particular Council Resolution on the 2000 Employment Guidelines. i
21. The Commission believes that all the conditions are fulfilled for forwarding a proposal designed to implement this Agreement by way of a Council decision.
22. In its Communication of 14 December 1993, the Commission stated that 'implementing an agreement concluded at Community level by means of a Council decision on a proposal from the Commission at the joint request of the social partners would give the Council no opportunity to amend the agreement. For this reason, the Commission will merely propose, following examination of the agreement between the social partners, the adoption of a decision on the agreement as concluded'. In the present case, the proposed instrument is a Directive. It therefore contains the standard clauses relating to the implementation of the Directive at national level.
23. The Commission also took the view that 'the Council decision must be limited to making binding provisions of the agreement concluded between the social partners, so the text of the agreement would not form part of the decision but would be annexed thereto'.
24. Finally, the Commission announced that 'if the Council decides, in accordance with the procedure set out in the last subparagraph of Article 139 i, not to implement the agreement as concluded by the social partners, the Commission will withdraw its proposal for a decision and will examine, in the light of the work done, whether a legislation instrument in the area in question would be appropriate'.
25. Hence, the Commission has not incorporated the text of the agreement in its proposal but simply annexed it thereto. Moreover, it reiterates that, if the Council amends the agreement concluded between the social partners, it will withdraw its proposal.
26. Article 139 i of the Treaty provides that 'agreements concluded at Community level shall be implemented, in matters covered by Article 137, at the joint request of the signatory parties, by a Council decision on a proposal from the Commission'. The agreement on the organisation of working time of mobile staff in civil aviation relates to the health and safety environment of workers, which comes under Article 137 i of the Treaty. This is one of the areas where the Council may act by a qualified majority. As a result, Article 139 i is the proper legal basis for the Commission's proposal.
27. That Article does not provide for consultation of the European Parliament on requests addressed to the Commission by the social partners. However, in accordance with the undertaking in its Communication, the Commission has kept Parliament informed about the various phases of consultation of the social partners. It is also forwarding this proposal to Parliament so that it can deliver its opinion to the Commission and the Council if it so wishes. The same applies to the Economic and Social Committee and the Committee of the Regions.
28. The term 'decision' in Article 139 i is meant to be of general nature in order to allow the choice of the legislative instrument under Article 249 of the Treaty. It is up to the Commission to propose to the Council the most appropriate of the three binding instruments under the said Article (regulation, directive or decision). In this case, given the nature and the content of the social partners' document, it is clear that the agreement is intended to be applied indirectly by means of provisions to be transposed into national law by the Member States and/or the social partners. Hence, in that case, the most suitable instrument for its application is a Council Directive. Moreover, in accordance with the undertakings it has given, the Commission considers that the text of the agreement should not be part of the directive but should be annexed thereto.
29. The Commission's comments on the Articles in its proposal are given below.
30. This article confines itself to making the agreement between the social partners obligatory which is the purpose of a Council decision under Article 139 i of the Treaty.
31. Article 2 i says that the provisions of the Directive prescribe only minimum requirements, giving Member States the option to adopt stricter measures in the relevant field.
32. Article 2 i is a 'non-regression' standard clause that affects Member States which have, at the time of the adoption of the Directive, a higher level of protection than that guaranteed by the agreement. What this clause means is that there should be no lowering of the general level of protection for workers when the Community Directive is adopted. However, it offers Member States the possibility of adopting different measures as required by their economic and social policies, subject to observance of the minimum requirements prescribed by the agreement. It is at any rate clear that the Member States' room for manoeuvre covers only a level of protection exceeding that guaranteed by the Directive.
33. Article 3 obliges Member States to provide sanctions, which are effective, commensurate with the infringement and constitute a sufficient deterrent. In applying Community law, it is necessary, as in every legal system, on the one hand that those bearing obligations resulting from this law are dissuaded from infringing it and, on the other, that those who do not respect Community law are duly penalised.
34. Articles 4 to 6 contain the usual provisions for transposition into the national law of the Member States.
35. The proposal for a Council Directive concerning the European Agreement on the organisation of working time of mobile staff in civil aviation concluded by the Association of European Airlines (AEA), the European Transport Workers' Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA) complies with the principle of subsidiarity as regards its two components necessity and proportionality, as laid down in Article 5 of the Treaty.
36. The need to take Community action is not only shown by the fact that the social partners, under the procedure provided for in Article 138 of the Treaty, have agreed that it is necessary to undertake action at Community level and have requested the implementation of their Community-level agreement through a Council decision based on a proposal from the Commission, pursuant to Article 139 i of the Treaty, but also by the fact that air transport is a highly integrated and competitive sector.
37. The Council Directive corresponds to the requirement of proportionality in so far as it only defines the major objectives to be attained.
38. The Council is requested to adopt the proposal for a Council Directive concerning the European Agreement on the Organisation of Working Time of Mobile Staff in Civil Aviation concluded by the Association of European Airlines (AEA), the European Transport Workers' Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA).