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‘Fitness Checking’ the I&C Directives

The exercise on the ‘Fitness Check’ launched in 2010 by the European Commission looking at three I&C Directives is coming to an end with the final synthesis report delivered by the Deloitte Consulting Agency and presented to representatives of the members states’ labour ministries and EU social partners at two meetings in July and October 2012. Deloitte concludes that the directives are ‘broadly fit for purpose’ in terms of promoting a minimum level of information and consultation (I&C) throughout the EU/EEA. The results gathered during the fitness check exercise are to be presented in a Commission Communication in 2013, outlining the key conclusions and next steps.

Deloitte concludes that the directives are ‘broadly “fit for purpose” in terms of promoting a minimum level of I&C throughout the EU/EEA, consistent with the EU social market model, based on four key evaluation criteria: relevance, effectiveness, efficiency and coherence.’ I&C legislation and practices appear to be an ‘established part of the industrial relations landscape across the whole of the EU/EEA’, albeit very ‘uneven’, in particular with regard to the rules governing general I&C.

However, the legislation’s overall effectiveness is evaluated somewhat less positively than its relevance, efficiency and coherence. In other words, it is delivering below its potential. Furthermore, while the objectives of the EU I&C legislation are widely recognised, they are not as widely enforced in practice. Despite the lower evaluation of the legislation’s effectiveness, a clear conclusion from stakeholders is that the ‘benefits of information and consultation generally exceed its costs’, the latter being acknowledged, but seen as worth paying to promote cooperation rather than conflict.

Individually, each Directive is also seen to perform sufficiently well to be judged ‘fit for purpose’, bearing in mind the diversity of situations across the EU/EEA. The greatest divergences between stakeholders emerge in relation to the contribution of the legislation to reducing redundancies: employee representatives see this as a relevant objective to which the Directive should contribute, while employers tend to see redundancies as being essentially determined by market conditions, rather than by I&C. Interestingly, the report did not reveal formerly ‘hidden problems’ in respect of the implementation of the three Directives. Rather it shed additional light on existing and well-known problems:

 

  1. incorrect implementation;
  2. avoidance of the provisions of the Directives;
  3. uncertainty about key definitions and concepts;
  4. enforcement difficulties.

 

In a Conclusion, the Deloitte’s report stresses that ‘weaknesses appear to call for specific responses at national level, although a more rigorous oversight and encouragement from EU level would also appear to be important and useful’. However, the nature (binding or not) of such responses is still much disputed amongst stakeholders.

The results gathered by DG Employment during the fitness check exercise are to be presented in a Commission Communication in 2013 outlining the key conclusions and next steps. This Communication is to be accompanied by a staff working paper setting out the evidence in detail by Member State, as well as the positions of stakeholders.

Further links & documents:

  • ETUC (2012) ETUC comments on Deloitte’s "Fitness check" in the area of Information and Consultation of Workers
  • EU Commission (2011) Information note 'Fitness check' on EU acts in the area of Information and Consultation of Workers
  • ETUI project: Fitness Checking the Information and Consultation of Workers (ICW) Directives
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Fitness check? 

As part of its 2010 Work Programme, the Commission has started an ex-post evaluation of the operation and effects of three Directives in the area of information and consultation of workers. The three Directives under scrutiny are: 98/59/EC (collective redundancies); 2001/23/EC (transfers of undertakings); and 2002/14/EC (general framework). The aim of the fitness check is to check whether these directives are 'fit for purpose' in the context of the Commission's policy of better / smart regulation.