Saturday, 6 December 2008

EU social policy: Community action

Social policies essentially fall under the competence of EU member states, but the Commission encourages cooperation and facilitates coordination in all social policy fields.

Studies, opinions and consultations offer the Commission scope for action. The Treaty of Lisbon adds elements of the open method of coordination at treaty level by adding guidelines, indicators, best practices, monitoring and evaluations as new catchwords.

The Lisbon Treaty promises to fight exclusion of the European Parliament by keeping it ‘fully informed’.

The member states have underlined the complementary nature of EU level action, excluding harmonisation of national systems.

EU-OSHA in Bilbao, Cedefop in Thessaloniki, Eurofound in Dublin and the ETF in Turin assist the European Community (European Union) as Community agencies.




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Social policy objectives

As a reminder, the social policy objectives mentioned in Article 136 TEC (ex Article 117), in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/103, form the background for European Community action in the area of social policy:

– promotion of employment

– improved and harmonised living and working conditions

– social protection

– dialogue between management and labour

– development of human resources

– combating exclusion.

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Article 140 TEC

Article 140 (ex Article 118c) of the Treaty establishing the European Community (TEC) refers to the social policy objectives (above).

The role of the European Community (Commission) supports the intergovernmental level by encouraging cooperation and facilitating coordination of member states’ action.

The listed fields cover practically the whole social policy area, although the fields are mentioned by way of examples.

Studies, opinions and consultations are mentioned as Commission activities.

Besides problems at national level, international organisations are mentioned. These could be the Council of Europe, the OECD and ILO.

The Economic and Social Committee (ESC) is to be consulted on opinions.

The current Article 139 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/109–110:

Article 140 TEC

With a view to achieving the objectives of Article 136 and without prejudice to the other provisions of this Treaty, the Commission shall encourage cooperation between the Member States and facilitate the coordination of their action in all social policy fields under this Chapter, particularly in matters relating to:

— employment,

— labour law and working conditions,

— basic and advanced vocational training,

— social security,

— prevention of occupational accidents and diseases,

— occupational hygiene,

— the right of association and collective bargaining between employers and workers.

To this end, the Commission shall act in close contact with Member States by making studies, delivering opinions and arranging consultations both on problems arising at national level and on those of concern to international organisations.

Before delivering the opinions provided for in this Article, the Commission shall consult the Economic and Social Committee.


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Original Lisbon Treaty (ToL)

Article 2, point 119 of the original Treaty of Lisbon (ToL) amends Article 140 TEC in the following way (OJ 17.12.2007 C 306/82):

119) In Article 140, the following words shall be added at the end of the second subparagraph: ‘, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.’.


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Renumbering ToL

The Table of equivalences of the original Treaty of Lisbon tells us that the social policy title was to be renumbered Title X and that the Article 140 TFEU (ToL) was to be renumbered Article 156 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/216).


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Consolidated Lisbon Treaty

After the horizontal and specific amendments Article 156 of the Treaty on the Functioning of the European Union (TFEU), in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/116, appears as follows:

(TITLE X
SOCIAL POLICY)

Article 156 TFEU
(ex Article 140 TEC)

With a view to achieving the objectives of Article 151 and without prejudice to the other provisions of the Treaties, the Commission shall encourage cooperation between the Member States and facilitate the coordination of their action in all social policy fields under this Chapter, particularly in matters relating to:

— employment,

— labour law and working conditions,

— basic and advanced vocational training,

— social security,

— prevention of occupational accidents and diseases,

— occupational hygiene,

— the right of association and collective bargaining between employers and workers.

To this end, the Commission shall act in close contact with Member States by making studies, delivering opinions and arranging consultations both on problems arising at national level and on those of concern to international organisations, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.

Before delivering the opinions provided for in this Article, the Commission shall consult the Economic and Social Committee.



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Open method of coordination (OMC)

The open method of coordination was introduced in the Lisbon European Council Conclusions in March 2000 as the means to spreading best practice and achieving greater convergence towards the main EU goals.

For a presentation, read for example the section ‘ The Lisbon Agenda and the open method of co-ordination’ in Paul Craig and Gráinne de Búrca: EU Law – Text, Cases, and Materials (Fourth edition, 2007; Oxford University Press), page 150 to 154.

The European Convention proposed the embodiment of OMC elements at treaty level in the social policy area in Article III-107 of the draft Constitution.

The proposal was adopted in Article III-213 of the Constitutional Treaty, and from there it found its way to the Lisbon Treaty, Article 156 TFEU.

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European Parliament

Coordination and cooperation essentially concern member states’ social policies, which leaves the European Parliament on the sidelines. The reform treaty versions make a modest effort at combating its exclusion.

The draft Constitution Article III-107 proposed, the Constitutional Treaty Article III-213 adopted and the Lisbon Treaty Article 156 TFEU took over the provision that the European Parliament shall be kept fully informed.



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Economic and Social Committee (ESC or EESC)

In Part six of the Treaty on the Functioning of the European Union (TFEU), under Title 1 Institutional provisions, Chapter 3 The Union’s advisory bodies contains provisions on the Economic and Social Committee (ESC) and the Committee of the Regions (CoR).

Article 300 TFEU is a common basic provision for these advisory bodies (OJ 9.5.2008 C 115/177):

CHAPTER 3
THE UNION'S ADVISORY BODIES

Article 300 TFEU

1. The European Parliament, the Council and the Commission shall be assisted by an Economic and Social Committee and a Committee of the Regions, exercising advisory functions.

2. The Economic and Social Committee shall consist of representatives of organisations of employers, of the employed, and of other parties representative of civil society, notably in socioeconomic, civic, professional and cultural areas.

3. The Committee of the Regions shall consist of representatives of regional and local bodies who either hold a regional or local authority electoral mandate or are politically accountable to an elected assembly.

4. The members of the Economic and Social Committee and of the Committee of the Regions shall not be bound by any mandatory instructions. They shall be completely independent in the performance of their duties, in the Union's general interest.

5. The rules referred to in paragraphs 2 and 3 governing the nature of the composition of the Committees shall be reviewed at regular intervals by the Council to take account of economic, social and demographic developments within the Union. The Council, on a proposal from the Commission, shall adopt decisions to that end.

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Article 300(2) TFEU shows the corporatist structure of the ESC and its advisory capacity.

Section 1 comprising Articles 301 to 304 TFEU concerns the Economic and Social Committee.

Article 156 TFEU makes consultation of the ESC on Commission opinions a mandatory procedural requirement in the same way as under the current Article 140 TEC.

The Committee itself uses the name European Economic and Social Committee (EESC) and it presents itself as the bridge between Europe and organized civil society:

http://www.eesc.europa.eu/

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Declaration No 31

If there was any lingering doubt as to the limited scope for Commission action under Article 156 TFEU, the member states issued a joint Declaration (No 31) annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon (OJ 9.5.2008 C 115/348):

31. Declaration on Article 156 of the Treaty on the Functioning of the European Union

The Conference confirms that the policies described in Article 156 fall essentially within the competence of the Member States. Measures to provide encouragement and promote coordination to be taken at Union level in accordance with this Article shall be of a complementary nature. They shall serve to strengthen cooperation between Member States and not to harmonise national systems. The guarantees and practices existing in each Member State as regards the responsibility of the social partners will not be affected.

This Declaration is without prejudice to the provisions of the Treaties conferring competence on the Union, including in social matters.

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Community agencies

A number of Community agencies relevant to the social policy area have been established.


The European Agency for Safety and Health at Work (EU-OSHA), in Bilbao, Spain:

http://europa.eu/agencies/community_agencies/osha/index_en.htm

The European Agency for the Development of Vocational Training (Cedefop), in Thessaloniki, Greece:

http://europa.eu/agencies/community_agencies/cedefop/index_en.htm

The European Foundation for the Improvement of Living and Working Conditions (Eurofound), in Dublin, Ireland:

http://europa.eu/agencies/community_agencies/eurofound/index_en.htm

The European Training Foundation (ETF), in Turin, Italy:

http://europa.eu/agencies/community_agencies/etf/index_en.htm



Ralf Grahn