Keywords
Summary

Keywords

1 Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Directive implementing the framework agreement on parental leave - Legislative measure - Action brought by an association representing and defending at European level the interests of small and medium-sized undertakings - Inadmissible

(EC Treaty, Arts 173, fourth para., and 189; Agreement on social policy, Arts 3 and 4; Council Directive 96/34)

2 Social policy - Agreement on social policy - Agreements between management and labour - Implementation by a Council decision on a proposal from the Commission - Requirement - Observance of the principle of democracy - Representativity of the signatories to the agreement

(Agreement on social policy, Arts 3(4) and 4)

Summary

1 The application for annulment of Directive 96/34 on the framework agreement on parental leave concluded by the Union des Confédérations de l'Industrie et des Employeurs d'Europe, the Centre Européen de l'Entreprise Publique and the Confédération Européenne des Syndicats, which was brought by a European association which represents and defends at European level the interests of small and medium-sized undertakings, is inadmissible.

In the first place, Directive 96/34, adopted by the Council on the basis of Article 4(2) of the Agreement on social policy concluded between the Member States of the European Community with the exception of the United Kingdom of Great Britain and Northern Ireland, is a legislative measure and does not constitute a decision within the meaning of Article 189 of the Treaty.

The framework agreement on parental leave which the Directive is designed to implement lays down minimum requirements designed to facilitate the reconciliation of parental and professional responsibilities for working parents and applies to all workers - men and women - who have an employment contract or employment relationship as defined by the law, collective agreements or practices in force in each Member State. Furthermore, Directive 96/34 satisfies the requirements laid down by Article 189 of the Treaty, since it is addressed to the Member States, which are required to take all necessary measures which will enable them at any time to guarantee the results required by the Directive and the wording of the framework agreement to which it refers leaves to the national authorities the choice of form and methods which will enable those results to be achieved.

Moreover, the applicant association has not been affected by the contested Directive by reason of certain attributes peculiar to it or by reason of circumstances which differentiate it from all other persons, such that it could be considered to be individually concerned by that measure.

First, the applicant association cannot claim to possess either a general right to participate in the negotiation stage of the second procedure provided for by Article 4(2) of the Agreement on social policy or, in the context of this case, an individual right to participate in negotiation of the framework agreement. Article 3(2), (3) and (4) and Article 4 of the Agreement do not confer on any representative of management and labour, whatever the interests purportedly represented, a general right to take part in any negotiations entered into in accordance with Article 3(4) of the Agreement, even though it is open to any representative of management and labour which has been consulted pursuant to Article 3(2) and (3) of the Agreement to initiate such negotiations. The mere fact that the applicant contacted the Commission on several occasions asking to participate in the negotiations between other representatives of management and labour does not affect that position, since it is the representatives of management and labour concerned, and not the Commission, which have charge of the negotiation stage properly so called.

Secondly, since, having regard to its representativity, the applicant is not distinguished from all other organisations of management and labour consulted by the Commission which were not signatories to the framework agreement, it is not entitled to require the Council to prevent the implementation of the framework agreement at Community level. Consequently, the applicant is not individually concerned by Directive 96/34.

Although it is incumbent upon the Commission and the Council to ascertain whether, having regard to the content of the agreement in question, the signatories to an agreement concluded pursuant to Articles 3(4) and 4 of the Agreement on social policy, taken together, are sufficiently representative, and although representatives of management and labour which were consulted by the Commission in accordance with Article 3(2) and (3) of the Agreement, but which were not parties to the agreement, and whose particular representation - again in relation to the content of the agreement - is necessary in order to raise the collective representativity of the signatories to the required level, have the right to prevent the Commission and the Council from implementing the agreement at Community level by means of a legislative instrument, it is apparent in the present case that the Commission and the Council properly took the view that the collective representativity of the signatories to the framework agreement was sufficient in relation to that agreement's content for its implementation at Community level by means of a Council legislative measure.

2 The Commission and the Council are obliged to verify the representativity of the signatories to an agreement concluded pursuant to Articles 3(4) and 4 of the Agreement, which the Council has been asked to implement at Community level. That means that they must verify whether, having regard to the content of the agreement in question, the collective representativity of the signatories representing management and labout was sufficient.

The participation of the two institutions in question has the effect, at that particular point in the procedure governed by those provisions, of endowing an agreement concluded between management and labour with a Community foundation of a legislative character, without recourse to the classic procedures provided for under the Treaty for the preparation of legislation, which entail the participation of the European Parliament.

However, since the procedure referred to in Articles 3(4) and 4 of the Agreement does not provide for the participation of the European Parliament, the principle of democracy on which the Union is founded requires - in the absence of the participation of the European Parliament in the legislative process - that the participation of the people be otherwise assured, in this instance through the parties representative of management and labour who concluded the agreement which is endowed by the Council, acting on a qualified majority, on a proposal from the Commission, with a legislative foundation at Community level.