Friday, 28 November 2008

EU employment: Incentive measures and pilot projects

Even if there is no independent European Community (European Union) employment policy, the Treaty establishing the European Community offers the EC (EU) some scope for supporting action, labeled as incentive measures.



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Current TEC

The current Article 129 (ex Article 109r) of the Treaty establishing the European Community (TEC), under the Title VIII Employment, offers the Community some scope of action in the area of employment policy.

Harmonisation of member states’ laws and regulations is excluded out of hand (paragraph 2).

Using the co-decision procedure, the Council may adopt incentive measures.

The incentive measures are ancillary to the employment policies of the member states: designed to encourage cooperation between member states and to support their action.

This supporting role is underlined by the description of allowed actions, such as promoting exchange of information and best practices, offering analysis and advice and through experimental pilot projects.

The existing Article 129 TEC (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/103):

Article 129 TEC

The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, may adopt incentive measures designed to encourage cooperation between Member States and to support their action in the field of employment through initiatives aimed at developing exchanges of information and best practices, providing comparative analysis and advice as well as promoting innovative approaches and evaluating experiences, in particular by recourse to pilot projects.

Those measures shall not include harmonisation of the laws and regulations of the Member States.


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Original Lisbon Treaty


The Treaty of Lisbon (ToL) is still on its rocky road to possible entry into force, but in some instances it is the most up-to-date manifestation of what the member state governments want the treaties to say.

On the other hand, the treaty reform process, at least since the Treaty of Nice, has been focused on so called institutional innovations. With a few notable exceptions, most areas of Community policy have only been updated and adjusted technically to the different reform treaty versions: the draft Constitution, the Constitutional Treaty and the Lisbon Treaty.

The changes to the Title on employment in the Lisbon Treaty are minimal. Article 2, point 111 deleted a few words from Article 125 TEC and the following point (112) concerned the common commercial policy.

Consequently, Article 126 TEC and the following ones underwent only horizontal or technical amendments (OJ 17.12.2007 C 306/79). In Article 129 TEC, as in a number of provisions, ‘the procedure referred to in Article 251’ (without using the customary term ‘co-decision’) is mercifully renamed ‘the ordinary legislative procedure’, which means that the European Parliament is named as co-legislator.


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Renumbering

The Table of equivalences of the original Treaty of Lisbon tells us that Title VIII Employment was to be renumbered Title IX and that Article 129 TEC and TFEU (ToL) was to be renumbered Article 149 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/214).


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Consolidated Lisbon Treaty



Article 149 of the Treaty on the Functioning of the European Union (TFEU) takes over the contents of the existing Article 129 TEC with the minimal change in terminology and the renumbering noted above.

As a consequence, the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/113, looks like this:

TITLE IX
EMPLOYMENT

Article 149 TFEU
(ex Article 129 TEC)

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, may adopt incentive measures designed to encourage cooperation between Member States and to support their action in the field of employment through initiatives aimed at developing exchanges of information and best practices, providing comparative analysis and advice as well as promoting innovative approaches and evaluating experiences, in particular by recourse to pilot projects.

Those measures shall not include harmonisation of the laws and regulations of the Member States.

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Incentive measures and pilot projects

Incentive measures and pilot projects are key terms, but it is not easy to find clear definitions of them. The terms have to be interpreted in the context of each treaty Article where they appear.

The pragmatic solution is to look at what the European Community (European Union) has seen fit to approve through legal acts and budget decisions in each policy area, in this case the employment area.

The European Commission's Directorate-General for Employment, Social Affairs and Equal Opportunities offers information on its activities:

http://ec.europa.eu/social/main.jsp?catId=23&langId=en


Incentive measures (examples)

In addition to Article 149 TFEU presented above, the Treaty on the Functioning of the European Union mentions incentive measures in a few other policy areas where the EU’s powers are weak.
Article 19(1) TFEU (Article 13 TEC) mentions action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation (requiring unanimous Council decision). But adopting the basic principles of Union incentive measures to support
action taken by the Member States in order to contribute to the achievement of these objectives is possible through the ordinary legislative procedure, pursuant to Article 19(2) TFEU.

Article 165 TFEU (Article 149 TEC) concerns education and sporting issues, where the fourth paragraph allows the adoption of incentive measures, as always with the proviso ‘excluding any harmonisation of the laws and regulations of the Member States’.

The European Union’s contribution to the flowering of the cultures of the member states includes the option to use incentive measures, in Article 167 TFEU (Article 151 TEC).

Incentive measures may also be adopted, if they are designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, according to Article 168 TFEU (Article 152 TEC).


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Pilot projects

Article 149 seems to be the only TFEU provision employing the term pilot project.

The Interinstitutional Agreement between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management (OJ 14.6.2006 C 139) mentions pilot projects in a few instances, without adding much to our understanding of the meaning of the term.

The Commission’s annual draft budget takes into account (c) the possibilities for starting up new policies through pilot projects and/or new preparatory actions or continuing multiannual actions which are coming to an end (point 32).

The Commission’s financial programming identifies for annual actions (pilot projects, preparatory actions, Agencies) and actions financed under the prerogatives of the Commission multiannual estimates and (for pilot projects and preparatory actions) the margins left under the authorised ceilings (point 46).

In Annex II (point D) on interinstitutional collaboration both arms of the budgetary authority (the Council and the European Parliament) undertake to inform the Commission by mid-June of their intentions with regard to amendments which create new preparatory actions/pilot projects or prolong existing ones.


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As a last resort, Article 263 TFEU (Article 230 TEC) lets the Court of Justice of the European Union review the legality of legal acts and other acts of the institutions.


Ralf Grahn