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Document 52000PC0382

Proposal for a Council Directive concerning the 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)

/* COM/2000/0382 final - CNS 2000/0164 */

OJ C 337E , 28.11.2000, p. 149–152 (ES, DA, DE, EL, EN, FR, IT, NL, PT, FI, SV)

52000PC0382

Proposal for a Council Directive concerning the 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) /* COM/2000/0382 final - CNS 2000/0164 */

Official Journal C 337 E , 28/11/2000 P. 0149 - 0152


Proposal for a COUNCIL DIRECTIVE concerning the 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)

(presented by the Commission)

EXPLANATORY MEMORANDUM

I. Aim of the proposal

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" [1] 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.

[1] COM(97) 334 final, 15.7.1997.

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(2) of the Treaty.

II. Examination of the agreement

4. In its Communication "adapting and promoting the social dialogue at Community level" [2], 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".

[2] COM(98) 322 final, 20.5.1998; see also COM(93) 600 final, 14.12.1993.

Representativeness of the contracting parties and their respective mandates

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. [3]

[3] Sources:

>TABLE POSITION>

9. The organisations therefore meet the criteria of social partners at European level, as laid down in the 1993 Commission Communication [4] 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" [5]: the AEA, IACA and ERA as sectoral employers' organisations; the ETF as a European Industry Committee with ETUC affiliation.

[4] COM(93) 600 final, 14.12.1993.

[5] COM(98) 322 final.

Provisions regarding small and medium-sized enterprises

10. Article 137(2) 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. [6] The following section contains the Commission's assessment of the content of the agreement.

[6] On 3 April 2000, the conciliation committee agreed on a compromise text with a view to covering the sectors and activities excluded from the scope of Council Directive 93/104/EEC.

Assessment 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, [7] the Commission Common Transport Policy Action Programme [8] and the Commission Communication on "Modernising the organisation of work" [9].

[7] COM(97) 334 final.

[8] COM(95) 302 final.

[9] COM(98) 592 final.

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. [10]

[10] Council Resolution of 13 March 2000 on guidelines for Member States' employment policies for the year 2000.

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.

III. The Commission's proposal

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(2), 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.

Legal basis

26. Article 139(2) 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(1) of the Treaty. This is one of the areas where the Council may act by a qualified majority. As a result, Article 139(2) 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.

The form the instrument is to take

28. The term "decision" in Article 139(2) 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.

Article 1

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(2) of the Treaty.

Articles 2 to 6

31. Article 2(1) 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(2) 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.

IV. Justification for the Directive in respect of subsidiarity

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(2) 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.

V. Conclusion

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).

2000/0164 (CNS)

Proposal for a COUNCIL DIRECTIVE concerning the 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)

(Text with EEA relevance)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 139(2) thereof,

Having regard to the proposal from the Commission [11],

[11] OJ C ..., ..., p. ...

Having regard to the opinion of the European Parliament [12],

[12] OJ C ..., ..., p. ...

Having regard to the opinion of the Economic and Social Committee [13],

[13] OJ C ..., ..., p. ...

Having regard to the opinion of the Committee of the Regions [14],

[14] OJ C ..., ..., p. ...

Whereas:

(1) Management and labour (the social partners) may, in accordance with Article 139(2) of the Treaty, request jointly that agreements at Community level be implemented by a Council decision on a proposal from the Commission.

(2) The Council adopted Directive 93/104/EC on certain aspects of the organization of working time.

(3) Civil Aviation was one of the sectors and activities excluded from the scope of that Directive.

(4) The Commission, in accordance with Article 138(2) of the Treaty, has consulted management and labour on the possible direction of Community action with regard to the sectors and activities excluded from Directive 93/104/EC.

(5) The Commission, considering after such consultation that Community action was desirable, once again consulted management and labour at Community level on the substance of the envisaged proposal in accordance with Article 138(3) of the Treaty.

(6) 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) have informed the Commission of their desire to enter into negotiations in accordance with Article 138(4) of the Treaty.

(7) The said organizations concluded, on 22 March 2000, a European Agreement on the Organisation of Working Time of Mobile Staff in Civil Aviation.

(8) This Agreement contains a joint request to the Commission to implement the Agreement by a Council decision on a proposal from the Commission, in accordance with Article 139(2) of the Treaty.

(9) The Council, in its Decision of 13 March 2000 on guidelines for Member States' employment policies for the year 2000 invited the social partners at all appropriate levels to negotiate agreements to modernise the organisation of work, including flexible working arrangements, with the aim of making undertakings productive and competitive and achieving the required balance between flexibility and security.

(10) This Directive and the annexed Agreement lay down more specific requirements within the meaning of Article 14 of Council Directive 93/104/EC as regards the organisation of working time of mobile staff in civil aviation.

(11) The proper instrument for implementing the Agreement is a Directive within the meaning of Article 249 of the Treaty which binds the Member States as to the result to be achieved, whilst leaving them the choice of form and methods.

(12) In view of the highly integrated nature of the aviation sector and the conditions of competition prevailing in it, the objectives of this Directive to protect workers' health and safety cannot be sufficiently achieved by the Member States and Community action is therefore required; This Directive does not go beyond what is necessary for the attainment of those objectives.

(13) With regard to terms used in the Agreement which are not specifically defined therein, this Directive leaves Member States free to define those terms in accordance with national law and practice, as is the case for other social policy Directives using similar terms, providing that the said definitions are compatible with the Agreement.

(14) The Commission has drafted its proposal for a Directive, in accordance with its Communication of 20 May 1998 on adapting and promoting the social dialogue at Community level, taking into account the representative status of the signatory parties and the legality of each clause of the Agreement.

(15) The Commission has drafted its proposal for a Directive in compliance with Article 137(2) of the Treaty which provides that Directives in the social policy domain "shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings".

(16) The Directive and the annexed Agreement establish minimum standards; Member States and/or the social partners may maintain or introduce more favourable provisions.

(17) Implementation of this Directive may not serve to justify any regression in relation to the situation which already exists in each Member State.

(18) The implementation of the Agreement contributes to achieving the objectives under Article 136 of the Treaty,

HAS ADOPTED THIS DIRECTIVE:

Article 1

The purpose of this Directive is to give legal effect to 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 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).

Article 2

1. Member States may maintain or introduce more favourable provisions than those laid down in this Directive.

2. The implementation of this Directive shall under no circumstances constitute sufficient grounds for justifying a reduction in the general level of protection of workers in the fields covered by this Directive. This shall be without prejudice to the rights of Member States and/or management and labour to lay down, in the light of changing circumstances, different legislative, regulatory or contractual arrangements to those prevailing at the time of the adoption of this Directive, provided always that the minimum requirements laid down in this Directive are adhered to.

Article 3

Member States shall determine the range of sanctions applicable for infringements of national provisions made in implementation of this Directive and shall take all necessary steps to ensure that they are enforced. The sanctions must be effective, commensurate with the infringement, and must constitute a sufficient deterrent. Member States shall notify these provisions to the Commission by the date mentioned in Article 4 at the latest, and any subsequent amendment thereto in good time.

Article 4

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [two years from its adoption], or shall ensure that, by that date at the latest, management and labour have introduced the necessary measures by agreement, the Member States being required to take any necessary measure to enable them at any time to be in a position to guarantee the results imposed by this Directive. They shall forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

Article 5

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.

Article 6

This Directive is addressed to the Member States.

Done at Brussels,

For the Council

The President

ANNEX

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)

Having regard to the Treaty establishing the European Community and in particular Articles 138 and 139(2) thereof;

Whereas Article 139(2) of the Treaty provides that agreements concluded at European level may be implemented at the joint request of the signatory parties by a Council decision on a proposal from the Commission;

Whereas the signatory parties hereby make such a request;

Whereas the signatory parties consider that the provisions of this Agreement are "more specific requirements", within the meaning of Article 14 of Council Directive 93/104/EC, and that the provisions of that Directive should not apply;

The signatory parties have agreed the following:

Clause 1

1. The Agreement applies to the working time of mobile staff in civil aviation.

2. It lays down more specific requirements within the meaning of Article 14 of Council Directive 93/104/EC relating to the organisation of working time of mobile staff in civil aviation.

Clause 2

1. "Working time" means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice.

2. "Mobile staff in civil aviation" means crew members on board a civil aircraft, employed by an undertaking established in a Member State.

3. "Block flying time" means the time between an aircraft first moving from its parking place for the purpose of taking off until it comes to rest on the designated parking position and until all engines are stopped.

Clause 3

1. Mobile staff in civil aviation are entitled to paid annual leave of at least four weeks, in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and or/practice.

2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

Clause 4

1. (a) Mobile staff in civil aviation are entitled to a free health assessment before their assignment and thereafter at regular intervals;

(b) Mobile staff in civil aviation suffering from health problems recognized as being connected with the fact that they also work at night will be transferred whenever possible to mobile or non-mobile day work to which they are suited.

2. The free health assessment referred to in paragraph 1 (a) must comply with medical confidentiality.

3. The free health assessment referred to in paragraph 1 (a) may be conducted within the national health system.

Clause 5

1. Mobile staff in civil aviation will have safety and health protection appropriate to the nature of their work.

2. Adequate protection and prevention services or facilities with regard to the safety and health of mobile staff in civil aviation will be available at all times.

Clause 6

Necessary measures will be taken to ensure that an employer, who intends to organise work according to a certain pattern, takes account of the general principle of adapting work to the worker.

Clause 7

Information concerning specific working patterns of mobile staff in civil aviation should be provided to the competent authorities, if they so request.

Clause 8

1. Working time should be looked at without prejudice to any future Community legislation on flight and duty time limitations and rest requirements and in conjunction with national legislation on this subject which should be taken into consideration in all related matters.

2. The maximum annual working time, including some elements of standby for duty assignment as determined by the applicable law, will be 2000 hours in which the block flying time will be limited to 900 hours.

3. The maximum annual working time should be spread as evenly as practicable throughout the year.

Clause 9

Without prejudice to Clause 3, mobile staff in civil aviation will be given days free of all duty and standby, which are notified in advance, as follows:

(a) at least 7 local days in each calendar month, which may include any rest periods required by law; and

(b) at least 96 local days in each calendar year, which may include any rest periods required by law.

Clause 10

The parties will review the above provisions two years after the end of the implementation period laid down in the Council decision putting this Agreement into effect.

Brussels, 22 March 2000

Association of European Airlines (AEA)

Karl-Heinz Neumeister, Secretary General

Manfred Merz, Vice Chairman of AEA Social Affairs Committee, Chairman of the Negotiating Team

European Transport Workers' Federation (ETF)

Brenda O'Brien, Assistant General Secretary

Betty Lecouturier, President, Cabin Crew Committee

Bent Gehlsen, Negotiating Group Member, Cabin Crew Committee

European Cockpit Association (ECA)

Captain Francesco Gentile, Chairman

Captain Bill Archer, Vice Chairman

Giancarlo Crivellaro, General Secretary

European Regions Airline Association (ERA)

Mike Ambrose, Director General

The International Air Carrier Association (IACA)

Marc Frisque, Director General

Allan Brown, Director, Aeropolitical and Industry Affairs

IMPACT ASSESSMENT FORM THE IMPACT OF THE PROPOSAL ON BUSINESS WITH SPECIAL REFERENCE TO SMALL AND MEDIUM-SIZED ENTERPRISES( SMEs)

Title of proposal

Council Directive concerning the 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)

Document reference number

xxxx

The proposal

1. Taking account of the principle of subsidiarity, why is Community legislation necessary in this area and what are its main aims-

The need to undertake Community action is justified 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(2) of the Treaty. Furthermore, as stated in the preamble to Council Directive 93/104/EEC, "given the specific nature of the work concerned, it may be necessary to adopt separate measures with regard to the organisation of working time in certain sectors or activities which are excluded from the scope of the Directive". Finally, in a case concerning Directive 93/104/EEC, the Court of Justice has stated that "once the Council has found that it is necessary to improve the existing level of protection as regards the health and safety of workers and to harmonize the conditions in this area while maintaining the improvements made, achievement of that objective through the imposition of minimum requirements necessarily presupposes Community-wide action, which otherwise leaves the enactment of the detailed implementing provisions to the Member States." [15]

[15] Case C-84/94 United Kingdom of Great Britain and Northern Ireland v Council of the European Union, European Court Reports 1996 page I-5755.

The impact on business

2. Who will be affected by the proposal-

The civil aviation sector in respect of their mobile staff will be affected.

The size of aircraft operators in respect of the number of workers employed varies between 28 and several thousands. Due to the nature of the sector, very large companies dominate the market with approximately 80 to 90 % of the market share. However, there are approximately 30 aircraft operators which employ less than 500 employees and a greater number of operators between 500 and 1000 employees. In all Member States there is at least one small or medium sized operator.

3. What will business have to do to comply with the proposal-

Business will have to organise the work in a way which ensures that the provisions of the Directive and the national legislations implementing it are respected.

4. What economic effects is the proposal likely to have-

The proposal lays down minimum standards on the organisation of working time for mobile staff in the civil aviation sector. However, Member State legislation and/or contractual arrangements at national level often provide for at least the same general level of protection for mobile staff. From the point of view of businesses, the proposal lays down a level playing field for European airline operators without containing any provisions which could be seen as restricting the entry into the market of new airline operators. Furthermore, the fact that the material provisions of the directive are contained in the annexed agreement concluded between the sectoral social partners, the particularities of the sector concerned have been carefully taken into account. As the Directive and the annexed agreement must be implemented at national level, and as the proposal allows Member States to provide for better protection, the precise effects will depend on the form and content of the national implementation measures.

5. Does the proposal contain measures to take account of the specific situation of small and medium-sized firms (reduced or different requirements etc)-

The agreement and the proposal for a directive do not make a distinction between workers of small or 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. 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 entry into the market of new small and medium sized aircraft operators.

Consultation

6. List the organisations which have been consulted about the proposal and outline their main views.

A wide range of organisations have been consulted. The Agreement annexed to the proposal for a Directive has been negotiated between the organisations representing management and labour in the civil aviation sector.

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