Wednesday, 3 December 2008

European Union: Social policy tasks and limits

Is a 25 page Constitution for the European Union possible?

The governments of member states of the European Union have negotiated and compromised on the treaty texts during recurring intergovernmental conferences. Both the basic structure of the EU and this mode of operation have led to long and complicated treaties.

The idea of a readable 25 page Constitution for the citizens of Europe has been met with derision from some quarters.

In my view, it is possible to write a short and readable Constitution for Europe, but for a different union. Simpler and clearer.

Laying out the social policy tasks and setting the limits for European Community (European Union) action, the member state governments have fine-tuned fields and modes of action as well as decision-making procedures.

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Social policy objectives

How does the European Community (European Union) go about achieving the social policy objectives? The 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, are:

– 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 137 TEC

Article 137 (ex Article 118) of the Treaty establishing the European Community (TEC) illustrates how the member states governments have wrangled over detailed prescriptions for themselves during intergovernmental conferences. (A readable 25 page EU Constitution is possible, but for a different union.)
In OJ 29.12.2006 C 321 E/107–108:
Article 137 TEC

1. With a view to achieving the objectives of Article 136, the Community shall support and complement the activities of the Member States in the following fields:

(a) improvement in particular of the working environment to protect workers' health and safety;

(b) working conditions;

(c) social security and social protection of workers;

(d) protection of workers where their employment contract is terminated;

(e) the information and consultation of workers;

(f) representation and collective defence of the interests of workers and employers, including codetermination, subject to paragraph 5;

(g) conditions of employment for third-country nationals legally residing in Community territory;

(h) the integration of persons excluded from the labour market, without prejudice to Article 150;

(i) equality between men and women with regard to labour market opportunities and treatment at work;

(j) the combating of social exclusion;

(k) the modernisation of social protection systems without prejudice to point (c).

2. To this end, the Council:

(a) may adopt measures designed to encourage cooperation between Member States through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences, excluding any harmonization of the laws and regulations of the Member States;

(b) may adopt, in the fields referred to in paragraph 1(a) to (i), by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.

The Council shall act in accordance with the procedure referred to in Article 251 after consulting the Economic and Social Committee and the Committee of the Regions, except in the fields referred to in paragraph 1(c), (d), (f) and (g) of this Article, where the Council shall act unanimously on a proposal from the Commission, after consulting the European Parliament and the said Committees. The Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render the procedure referred to in Article 251 applicable to paragraph 1(d), (f) and (g) of this Article.

3. A Member State may entrust management and labour, at their joint request, with the implementation of directives adopted pursuant to paragraph 2.

In this case, it shall ensure that, no later than the date on which a directive must be transposed in accordance with Article 249, management and labour have introduced the necessary measures by agreement, the Member State concerned being required to take any necessary measure enabling it at any time to be in a position to guarantee the results imposed by that directive.

4. The provisions adopted pursuant to this Article:

— shall not affect the right of Member States to define the fundamental principles of their social security systems and must not significantly affect the financial equilibrium thereof,

— shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with this Treaty.

5. The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.


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Original Lisbon Treaty (ToL)

Article 2, point 116 of the original Treaty of Lisbon (ToL) makes a few specific amendments in addition to the horizontal ones (OJ 17.12.2007 C 306/81):

116) Article 137 shall be amended as follows:

(a) in paragraph 2, in the introductory words of the first subparagraph, the words ‘the Council:’ shall be replaced by ‘the European Parliament and the Council:’ and the first sentence of the second subparagraph shall be split into two subparagraphs which shall read as follows:

‘The European Parliament and the Council shall act in accordance with the ordinary legislative procedure after consulting the Economic and Social Committee and the Committee of the Regions.

In the fields referred to in paragraph 1(c), (d), (f) and (g), the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the said Committees.’.

The second sentence of the second subparagraph shall become the last subparagraph, and the words ‘of this Article’ shall be deleted;

(b) in paragraph 3, at the end of the first subparagraph, the following words shall be added ‘or, where appropriate, with the implementation of a Council decision adopted in accordance with Article 139’; in the second subparagraph, the words ‘a directive must be transposed in accordance with Article 249’ shall be replaced by ‘a directive or a decision must be transposed or implemented,’ and the words ‘or that decision’ shall be added at the end of the subparagraph.


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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 137 TFEU (ToL) was to be renumbered Article 153 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 modest amendments, Article 153 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 115/114, looks like this:

(TITLE X
SOCIAL POLICY)

Article 153 TFEU
(ex Article 137 TEC)

1. With a view to achieving the objectives of Article 151, the Union shall support and complement the activities of the Member States in the following fields:

(a) improvement in particular of the working environment to protect workers' health and safety;

(b) working conditions;

(c) social security and social protection of workers;

(d) protection of workers where their employment contract is terminated;

(e) the information and consultation of workers;
(f) representation and collective defence of the interests of workers and employers, including codetermination, subject to paragraph 5;

(g) conditions of employment for third-country nationals legally residing in Union territory;

(h) the integration of persons excluded from the labour market, without prejudice to Article 166;

(i) equality between men and women with regard to labour market opportunities and treatment at work;

(j) the combating of social exclusion;

(k) the modernisation of social protection systems without prejudice to point (c).

2. To this end, the European Parliament and the Council:

(a) may adopt measures designed to encourage cooperation between Member States through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences, excluding any harmonisation of the laws and regulations of the Member States;

(b) may adopt, in the fields referred to in paragraph 1(a) to (i), by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.

The European Parliament and the Council shall act in accordance with the ordinary legislative procedure after consulting the Economic and Social Committee and the Committee of the Regions.

In the fields referred to in paragraph 1(c), (d), (f) and (g), the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the said Committees.

The Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render the ordinary legislative procedure applicable to paragraph 1(d), (f) and (g).

3. A Member State may entrust management and labour, at their joint request, with the implementation of directives adopted pursuant to paragraph 2, or, where appropriate, with the implementation of a Council decision adopted in accordance with Article 155.

In this case, it shall ensure that, no later than the date on which a directive or a decision must be transposed or implemented, management and labour have introduced the necessary measures by agreement, the Member State concerned being required to take any necessary measure enabling it at any time to be in a position to guarantee the results imposed by that directive or that decision.

4. The provisions adopted pursuant to this Article:

— shall not affect the right of Member States to define the fundamental principles of their social security systems and must not significantly affect the financial equilibrium thereof,

— shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with the Treaties.

5. The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.

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Competence

If you look at the general TFEU categories of competence, you will find ‘social policy, for the aspects defined in this Treaty’, mentioned as a shared competence in Article 4(2)(b) TFEU. But EU initiatives to ensure coordination of member states’ social policies are mentioned among the ‘sui generis’ coordination areas in Article 5 TFEU on economic, employment and social policy coordination.

However, Article 153 TFEU starts by mentioning areas where the EU acts to support or complement member states’ activities, reminiscent of the actions mentioned in Article 6 TFEU.

Article is exceptionally detailed in excluding competence and in grading the procedures.

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Scope

The long list in paragraph 1 has to be read in conjunction with the prohibition on harmonisation of legislation, the policy areas excluded by paragraph 5 and the effects prohibited by paragraph 4.

The fields mentioned in paragraph 1(a) to (i) are subject only to potential minimum standards.

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Unanimity or less?

The Council must be unanimous in the following fields:

(c) social security and social protection of workers;

(d) protection of workers where their employment contract is terminated;

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(f) representation and collective defence of the interests of workers and employers, including codetermination, subject to paragraph 5;

(g) conditions of employment for third-country nationals legally residing in Union territory;

A unanimous Council could use the specific passerelle clause (enabling clause) to start using the ordinary legislative procedure with regard to paragraph 1(d), (f) and (g).

Applying the ordinary legislative procedure to social security and social protection of workers, paragraph 1(c) would require an amendment of the treaty.

In other policy fields mentioned, the ordinary legislative procedure is applied.


Ralf Grahn