On Wednesday 27 November, the representatives of the Member States will discuss a new proposal from the Hungarian Presidency of the EU Council on quality traineeships.
The Presidency hopes to reach political agreement on a general approach at this meeting, which will then be adopted by the ‘Employment and Social Affairs’ Council on 2 December.
However, it is said to be focusing on the ministerial meeting on 2 December to reach an agreement, regardless of the outcome of the discussions on 27 November.
In any case, in recent days, several sources have considered that an agreement was premature as the text still raised a number of issues (see EUROPE 13527/23) and since a possible blocking minority has been noted at this stage.
In this fifth compromise text since July, seen by Agence Europe, which will be submitted to the permanent representatives, and the accompanying note, the Presidency mainly summarises the amendments made to the Commission text since July.
It further clarifies its scope with a new article stating that the proposed directive applies only to trainees who have an employment contract or employment relationship as defined by national law, collective agreements or practice, with consideration to the case law of the Court of Justice.
It also points out that the proposed directive does not require Member States to introduce a specific employment relationship for trainees into their national law.
The compromise text also explains once again that the proposed directive does not cover vocational education and training, apprenticeships, formal education, traineeships that are obligatory to achieve a specific degree or qualification, professional traineeships as defined in Directive 2005/36/EC (on the recognition of professional qualifications) or traineeships carried out as part of active labour market policies.
In response to the concerns of certain countries, it also explains that people on probation should not be considered to be trainees within the meaning of this directive.
The Presidency argues that the compromise “attempts to ensure that the specificities of the diverse labour market models in the Union are properly respected” with “the option for Member States to empower social partners, if they jointly agree, to uphold or conclude collective agreements to establish the objective grounds under which different treatment for trainees are considered to be justifiable”.
With regard to “pay”, the compromise text specifies that the concept of “pay” should be understood in accordance with national law, collective agreements or practice in each Member State and that it may include compensation whether pecuniary or in kind.
On employment relationships disguised as traineeships, the text again states that the aim is to combat practices where “an employment relationship is disguised as a traineeship, whereby trainees are not considered employees by the traineeship provider, but should be considered employees in accordance with the law, collective agreements or practice in force in the Member State, with consideration to the case-law of the Court of Justice”.
The text leaves it up to the Member States to decide on the effective measures they need to take to combat these practices, including, where appropriate, controls and inspections.
And in order to combat practices in which an employment relationship is disguised as a traineeship, an assessment of all relevant factual elements of the traineeship must be performed.
The following elements may be taken into account: “the absence of a significant learning or training component, the excessive duration of the relationship, the level of tasks, responsibilities and intensity of work, the requirement of previous work experience for candidates for traineeships in the same or a similar field of activity without appropriate justification”. (Original version in French by Solenn Paulic)