Social dumping or healthy regulatory competition? Differences in pay, social contributions and working time between the member states of the European Union have certain consequences for the competitiveness of businesses located in different countries and for the well-being of their employees.
Worries about distortions have led to a separate treaty Article on the equivalence of paid holiday schemes within the European Community (European Union).
Although the specific provision is pale and ineffectual, EC (EU) labour law including working time can give rise to heated passions and protracted procedures.
***
Article 142 TEC
Article 142 (ex Article 119a) of the Treaty establishing the European Community (TEC) lays down a programmatic wish to maintain the existing equivalence between paid holiday schemes in the EU member states.
The current Article 142 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/110:
Article 142 TEC
Member States shall endeavour to maintain the existing equivalence between paid holiday schemes.
***
Original Lisbon Treaty (ToL)
Article 2, point 119 of the original Treaty of Lisbon (ToL) amends Article 140 TEC and point 120 concerns Article 143 TEC, so there are no specific amendments to Article 142 TEC (OJ 17.12.2007 C 306/82).
No horizontal amendments apply. The contents of Article 142 remain unchanged.
***
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 142 TFEU (ToL) was to be renumbered Article 158 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216).
***
Consolidated Lisbon Treaty
Following renumbering, the unchanged Article 158 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 115/118, appears as follows:
(TITLE X
SOCIAL POLICY)
Article 158 TFEU
(ex Article 142 TEC)
Member States shall endeavour to maintain the existing equivalence between paid holiday schemes.
***
Charter of Fundamental Rights
The Charter of Fundamental Rights of the European Union has been politically binding on the EU institutions since it was proclaimed in Nice in December 2000.
The Charter was an integrated part of the Constitutional Treaty (as Part II), but it did not become legally binding because the ratification processes of the Constitution petered out after the negative referendums in France and the Netherlands.
The Treaty of Lisbon does not incorporate the text of the Charter, but the European Union ‘recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties’ (Article 6 TEU).
The Charter does not introduce new rights, but it brings together existing ones in an orderly manner. Thus, it clarifies existing rights and makes them more visible, although a bit less as a separate document than when it was an integral part of the Constitution.
Rights pertaining to work, social protection and health have been collected under the umbrella of Title IV Solidarity. Article 31.2 sets out some generally worded principles (OJ 14.12.2007 C 303/8):
Article 31
Fair and just working conditions
1. Every worker has the right to working conditions which respect his or her health, safety and dignity.
2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.
***
Charter explanations
The Charter of Fundamental Rights was originally drawn up by the first Convention. During the European Convention the praesidium issued updated explanations. They have been technically adjusted but not materially updated since then. The latest version concerning Article 31 was published in OJ 14.12.2007 C 303/24, and the explanations often serve as a useful first reference to the Charter text:
Explanation on Article 31 — Fair and just working conditions
1. Paragraph 1 of this Article is based on Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work. It also draws on Article 3 of the Social Charter and point 19 of the Community Charter on the rights of workers, and, as regards dignity at work, on Article 26 of the revised Social Charter. The expression ‘working conditions’ is to be understood in the sense of Article 156 of the Treaty on the Functioning of the European Union.
2. Paragraph 2 is based on Directive 93/104/EC concerning certain aspects of the organisation of working time, Article 2 of the European Social Charter and point 8 of the Community Charter on the rights of workers.
***
EC (EU) labour law
Article 142 TEC and Article 158 TFEU are vague enough concerning paid holiday schemes, and they contain no specific legal base for legislation.
On the other hand, Article 137 TEC and Article 153 TFEU provide for directives setting minimum requirements concerning various aspects of labour law.
The Commission’s DG Employment, Social Affairs and Equal Opportunities offers a number of web pages on Labour law and work organisation, starting from:
http://ec.europa.eu/employment_social/labour_law/index_en.htm
There are links to pages with News, Labour law directives (with working time under working conditions), Labour law documentation by topic (with information about the later stages of updating the Working Time Directive), Implementation reports on labour law directives, Publications on the (historical) evolution of labour law in the member states, the Commission’s Green Paper on labour law including the Commission’s 24 October 2007 Communication on the "Outcome of the Public Consultation on the Commission’s Green Paper “Modernising labour law to meet the challenges of the 21st century“ (COM/2007/0627), Workers posted temporarily to another EU country, Work organisation etc.
***
Working time
Holidays constitute one element affecting annual working time.
The consolidated Working Time Directive, more precisely Directive 2003/88/EC of the European Parliament and the Council of 4 November 2003 concerning certain aspects of working time includes a minimum provision on annual paid leave (OJ 18.11.2003 L 299/9):
Article 7
Annual leave
1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.
***
Reforming the Working Time Directive
Although outside the primary scope of this blog post, reforming elements of the Working Time Directive has been a contested and drawn-out issue.
Eurofound’s European industrial relations observatory (EIRO) offers an article Political agreement reached on working time and temporary work directives, by Stefan Lücking (last update 15 October 2008):
http://www.eurofound.europa.eu/eiro/2008/07/articles/EU0807049I.htm
The Commission’s 10 June 2008 press release Commission strongly welcomed the political agreement on Working Time and Working conditions for Temporary Agency Workers. It can be read here:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/912
Although the Council has agreed, the European Parliament has not rejoiced. The European Trade Union Confederation (ETUC) presents an opposing view to the member states’ agreement ahead of the following vote by the EP plenary session. At the same time it offers a background view and highlights controversial points:
http://www.etuc.org/a/5548?var_recherche=Working%20Time%20Directive
Ralf Grahn
Monday, 8 December 2008
Sunday, 7 December 2008
European Union: Equal pay for equal work
Eliminating inequalities and promoting equality between men and women is one of the general aims of the European Community.
Equal pay for men and women for equal work or work of equal value applies in the context of working life.
We present the relevant treaty provisions on gender equality and point to further reading containing practical information and access to secondary European Community (European Union) legislation on equal opportunities and equal treatment.
***
Gender equality
Article 3(2) TEC Equality
Article 3(1) of the Treaty establishing the European Community (TEC) lists the activities of the Community.
Article 3(2) TEC is a horizontal clause with the aim to eliminate inequalities and to promote equality between men and women (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/45):
2. In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.
Article 13 TEC Non-discrimination
Article 13 TEC sets out the general European Community powers to combat discrimination and to adopt incentive measures (OJ 29.12.2006 C 321 E/48):
Article 13 TEC
1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
2. By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251.
***
Article 141 TEC
Article 141 (ex Article 119) of the Treaty establishing the European Community (TEC) sets out the principle of gender equality in working life in some detail.
Equal pay for men and women for equal work or work of equal value is laid down as the norm. Although the principle is addressed to the member states, the ECJ has declared that it has direct effect, meaning that it binds parties to collective agreements as well as individual employers and imployees.
Pay is defined to include any consideration, and the criteria for calculating pay need to be objective.
Legislative acts concerning equal opportunities and equal treatment of men and women can be adopted according to the co-decision procedure.
So called positive discrimination is allowed in order to compensate for disadvantages.
The current Article 141 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/110:
Article 141 TEC
1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
2. For the purpose of this article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.
3. The Council, acting in accordance with the procedure referred to in Article 251, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.
4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
***
Original Lisbon Treaty (ToL)
Article 2, point 119 of the original Treaty of Lisbon (ToL) amends Article 140 TEC and point 120 concerns Article 143 TEC, so there are no specific amendments to Article 141 TEC (OJ 17.12.2007 C 306/82).
The unwieldy procedure referred to in Article 251 is replaced by the ordinary legislative procedure, in accordance with the horizontal amendment mentioned in Article 2, point 2(c) of the original Lisbon Treaty (OJ 17.12.2007 C 306/42).
***
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 141 TFEU (ToL) was to be renumbered Article 157 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216).
***
Consolidated Lisbon Treaty
After the horizontal amendment Article 157 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 115/117–118, appears as follows:
(TITLE X
SOCIAL POLICY)
Article 157 TFEU
(ex Article 141 TEC)
1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
2. For the purpose of this Article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.
3. The European Parliament and the Council, acting in accordance with the ordinary legislative
procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.
4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
***
Protocol No 33
Rolled over and annexed to the Lisbon Treaty is Protocol (No 33) concerning Article 157 of the Treaty on the Functioning of the European Union (OJ 9.5.2008 C 115/319):
PROTOCOL (No 33)
CONCERNING ARTICLE 157 OF THE TREATY ON THE
FUNCTIONING OF THE EUROPEAN UNION
THE HIGH CONTRACTING PARTIES,
HAVE AGREED upon the following provision, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
For the purposes of Article 157 of the Treaty on the Functioning of the European Union, benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law.
***
Charter of Fundamental Rights
The Charter of Fundamental Rights of the European Union has been politically binding on the EU institutions since it was proclaimed in Nice in December 2000.
The Charter was an integrated part of the Constitutional Treaty (as Part II), but it did not become legally binding since the ratification processes of the Constitution petered out after the negative referendums in France and the Netherlands.
The Treaty of Lisbon does not incorporate the text of the Charter, but the European Union ‘recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties’ (Article 6 TEU).
For the purposes of this blog post, we recall the general non-discrimination Article 21 of the Charter of Fundamental Rights, which includes the prohibition of discrimination on the grounds of sex (OJ 14.12.2007 C 303/7):
Article 21
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.
The equality between men and women is evoked by Article 23 of the Charter of Fundamental Rights:
Article 23
Equality between women and men
Equality between women and men must be ensured in all areas, including employment, work and pay.
The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.
***
Charter explanations
The Explanations relating to the Charter of Fundamental Rights were originally drawn up during the European Convention. They have been technically adjusted but not materially updated since then. The latest version concerning Article 21 was published in OJ 14.12.2007 C 303/24:
Explanation on Article 21 — Non-discrimination
Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article 19 of the Treaty on the Functioning of the European Union, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. In so far as this corresponds to Article 14 of the ECHR, it applies in compliance with it.
There is no contradiction or incompatibility between paragraph 1 and Article 19 of the Treaty on the Functioning of the European Union which has a different scope and purpose: Article 19 confers power on the Union to adopt legislative acts, including harmonisation of the Member States' laws and regulations, to combat certain forms of discrimination, listed exhaustively in that Article. Such legislation may cover action of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union's powers. In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article.
Paragraph 2 corresponds to the first paragraph of Article 18 of the Treaty on the Functioning of the European Union and must be applied in compliance with that Article.
More specifically in the context of Article 157 TFEU, the explanation concerning Charter Article 23 facilitates understanding and guides interpretation in the following way:
Explanation on Article 23 — Equality between women and men
The first paragraph has been based on Articles 2 and 3(2) of the EC Treaty, now replaced by Article 3 of the Treaty on European Union and Article 8 of the Treaty on the Functioning of the European Union which impose the objective of promoting equality between men and women on the Union, and on Article 157(1) of the Treaty on the Functioning of the European Union. It draws on Article 20 of the revised European Social Charter of 3 May 1996 and on point 16 of the Community Charter on the rights of workers.
It is also based on Article 157(3) of the Treaty on the Functioning of the European Union and Article 2(4) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.
The second paragraph takes over in shorter form Article 157(4) of the Treaty on the Functioning of the European Union which provides that the principle of equal treatment does not prevent the maintenance or adoption of measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. In accordance with Article 52(2), the present paragraph does not amend Article 157(4).
***
Equal opportunities
Citizens
In a series of European General Guides addressed to EU citizens, the European Commission offers a brochure called Equal rights and opportunities for men and women in the European Union (last update 2005; 12 pages):
http://ec.europa.eu/youreurope/nav/fi/citizens/services/eu-guide/opportunities/opportunities_en.pdf
Commission activities
The Commission’s DG Employment, Social Affairs and Equal Opportunities web page offers links to information about i.a. Living an working abroad, Tackling discrimination, Equal opportunities for all, Rights at work and Employment:
http://ec.europa.eu/social/home.jsp?langId=en
There are a number of useful links, covering most aspects of Gender equality, starting from page:
http://ec.europa.eu/employment_social/gender_equality/index_en.html
Legal
For the legally minded gender equality legislation opens up with a General Overview:
http://ec.europa.eu/employment_social/gender_equality/legislation/index_en.html
This is a gateway to the following pages: Equal treatment in the EC Treaty, Legal acts on equal treatment (secondary legislation), Case law of the European Court of Justice, Bulletin on Legal Issues in Equality, and Reports.
***
Community agencies
Community agencies relevant to sex discrimination and gender equality are at least:
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 Foundation for the Improvement of Living and Working Conditions (Eurofound), in Dublin, Ireland:
http://europa.eu/agencies/community_agencies/eurofound/index_en.htm
Ralf Grahn
Equal pay for men and women for equal work or work of equal value applies in the context of working life.
We present the relevant treaty provisions on gender equality and point to further reading containing practical information and access to secondary European Community (European Union) legislation on equal opportunities and equal treatment.
***
Gender equality
Article 3(2) TEC Equality
Article 3(1) of the Treaty establishing the European Community (TEC) lists the activities of the Community.
Article 3(2) TEC is a horizontal clause with the aim to eliminate inequalities and to promote equality between men and women (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/45):
2. In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.
Article 13 TEC Non-discrimination
Article 13 TEC sets out the general European Community powers to combat discrimination and to adopt incentive measures (OJ 29.12.2006 C 321 E/48):
Article 13 TEC
1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
2. By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251.
***
Article 141 TEC
Article 141 (ex Article 119) of the Treaty establishing the European Community (TEC) sets out the principle of gender equality in working life in some detail.
Equal pay for men and women for equal work or work of equal value is laid down as the norm. Although the principle is addressed to the member states, the ECJ has declared that it has direct effect, meaning that it binds parties to collective agreements as well as individual employers and imployees.
Pay is defined to include any consideration, and the criteria for calculating pay need to be objective.
Legislative acts concerning equal opportunities and equal treatment of men and women can be adopted according to the co-decision procedure.
So called positive discrimination is allowed in order to compensate for disadvantages.
The current Article 141 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/110:
Article 141 TEC
1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
2. For the purpose of this article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.
3. The Council, acting in accordance with the procedure referred to in Article 251, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.
4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
***
Original Lisbon Treaty (ToL)
Article 2, point 119 of the original Treaty of Lisbon (ToL) amends Article 140 TEC and point 120 concerns Article 143 TEC, so there are no specific amendments to Article 141 TEC (OJ 17.12.2007 C 306/82).
The unwieldy procedure referred to in Article 251 is replaced by the ordinary legislative procedure, in accordance with the horizontal amendment mentioned in Article 2, point 2(c) of the original Lisbon Treaty (OJ 17.12.2007 C 306/42).
***
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 141 TFEU (ToL) was to be renumbered Article 157 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216).
***
Consolidated Lisbon Treaty
After the horizontal amendment Article 157 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 115/117–118, appears as follows:
(TITLE X
SOCIAL POLICY)
Article 157 TFEU
(ex Article 141 TEC)
1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
2. For the purpose of this Article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.
3. The European Parliament and the Council, acting in accordance with the ordinary legislative
procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.
4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
***
Protocol No 33
Rolled over and annexed to the Lisbon Treaty is Protocol (No 33) concerning Article 157 of the Treaty on the Functioning of the European Union (OJ 9.5.2008 C 115/319):
PROTOCOL (No 33)
CONCERNING ARTICLE 157 OF THE TREATY ON THE
FUNCTIONING OF THE EUROPEAN UNION
THE HIGH CONTRACTING PARTIES,
HAVE AGREED upon the following provision, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
For the purposes of Article 157 of the Treaty on the Functioning of the European Union, benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law.
***
Charter of Fundamental Rights
The Charter of Fundamental Rights of the European Union has been politically binding on the EU institutions since it was proclaimed in Nice in December 2000.
The Charter was an integrated part of the Constitutional Treaty (as Part II), but it did not become legally binding since the ratification processes of the Constitution petered out after the negative referendums in France and the Netherlands.
The Treaty of Lisbon does not incorporate the text of the Charter, but the European Union ‘recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties’ (Article 6 TEU).
For the purposes of this blog post, we recall the general non-discrimination Article 21 of the Charter of Fundamental Rights, which includes the prohibition of discrimination on the grounds of sex (OJ 14.12.2007 C 303/7):
Article 21
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.
The equality between men and women is evoked by Article 23 of the Charter of Fundamental Rights:
Article 23
Equality between women and men
Equality between women and men must be ensured in all areas, including employment, work and pay.
The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.
***
Charter explanations
The Explanations relating to the Charter of Fundamental Rights were originally drawn up during the European Convention. They have been technically adjusted but not materially updated since then. The latest version concerning Article 21 was published in OJ 14.12.2007 C 303/24:
Explanation on Article 21 — Non-discrimination
Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article 19 of the Treaty on the Functioning of the European Union, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. In so far as this corresponds to Article 14 of the ECHR, it applies in compliance with it.
There is no contradiction or incompatibility between paragraph 1 and Article 19 of the Treaty on the Functioning of the European Union which has a different scope and purpose: Article 19 confers power on the Union to adopt legislative acts, including harmonisation of the Member States' laws and regulations, to combat certain forms of discrimination, listed exhaustively in that Article. Such legislation may cover action of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union's powers. In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article.
Paragraph 2 corresponds to the first paragraph of Article 18 of the Treaty on the Functioning of the European Union and must be applied in compliance with that Article.
More specifically in the context of Article 157 TFEU, the explanation concerning Charter Article 23 facilitates understanding and guides interpretation in the following way:
Explanation on Article 23 — Equality between women and men
The first paragraph has been based on Articles 2 and 3(2) of the EC Treaty, now replaced by Article 3 of the Treaty on European Union and Article 8 of the Treaty on the Functioning of the European Union which impose the objective of promoting equality between men and women on the Union, and on Article 157(1) of the Treaty on the Functioning of the European Union. It draws on Article 20 of the revised European Social Charter of 3 May 1996 and on point 16 of the Community Charter on the rights of workers.
It is also based on Article 157(3) of the Treaty on the Functioning of the European Union and Article 2(4) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.
The second paragraph takes over in shorter form Article 157(4) of the Treaty on the Functioning of the European Union which provides that the principle of equal treatment does not prevent the maintenance or adoption of measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. In accordance with Article 52(2), the present paragraph does not amend Article 157(4).
***
Equal opportunities
Citizens
In a series of European General Guides addressed to EU citizens, the European Commission offers a brochure called Equal rights and opportunities for men and women in the European Union (last update 2005; 12 pages):
http://ec.europa.eu/youreurope/nav/fi/citizens/services/eu-guide/opportunities/opportunities_en.pdf
Commission activities
The Commission’s DG Employment, Social Affairs and Equal Opportunities web page offers links to information about i.a. Living an working abroad, Tackling discrimination, Equal opportunities for all, Rights at work and Employment:
http://ec.europa.eu/social/home.jsp?langId=en
There are a number of useful links, covering most aspects of Gender equality, starting from page:
http://ec.europa.eu/employment_social/gender_equality/index_en.html
Legal
For the legally minded gender equality legislation opens up with a General Overview:
http://ec.europa.eu/employment_social/gender_equality/legislation/index_en.html
This is a gateway to the following pages: Equal treatment in the EC Treaty, Legal acts on equal treatment (secondary legislation), Case law of the European Court of Justice, Bulletin on Legal Issues in Equality, and Reports.
***
Community agencies
Community agencies relevant to sex discrimination and gender equality are at least:
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 Foundation for the Improvement of Living and Working Conditions (Eurofound), in Dublin, Ireland:
http://europa.eu/agencies/community_agencies/eurofound/index_en.htm
Ralf Grahn
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.
***
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.
***
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.
***
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.’.
***
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).
***
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.
***
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.
***
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.
***
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.
*
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/
***
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.
***
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
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.
***
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.
***
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.
***
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.’.
***
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).
***
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.
***
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.
***
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.
***
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.
*
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/
***
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.
***
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
Friday, 5 December 2008
EU level social partners: Contractual relations and agreements
The social dialogue at European Community (European Union) level can lead to contractual relations, including agreements, between management and labour.
The EU level social partners are confederations of national business organisations and trade unions, so how can these agreements between be put into effect?
Are there any practical examples of implemented European level agreements by European level social partners?
***
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, are important for management (employers, businesses) and labour (trade unions):
– promotion of employment
– improved and harmonised living and working conditions
– social protection
– dialogue between management and labour
– development of human resources
– combating exclusion.
***
Article 139 TEC
Article 139 (ex Article 118b) of the Treaty establishing the European Community (TEC) invites management and labour to establish contractual relations, including agreements at European level.
The European level organisations are free to agree how they cooperate.
Basically they cannot conclude agreements binding on third parties (labour markets in the member states).
Binding effects can be achieved in two ways:
1) Community level agreements can be transformed in accordance with the procedures and practices in each member state.
2) The Council can issue norms in matters covered by Article 137 TEC.
In the latter case, the organisations agree and request, the Commission proposes and the Council decides.
Unanimity in the Council is required concerning the fields covered in Article 137(1)(c), (d), (f) and (g) TEC. In other cases qualified majority voting applies.
Agreements concerning pay, the right of association, the right to strike or the right to impose lock-outs are excluded. Cf. Article 137(5) TEC.
The current Article 139 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/109:
Article 139 TEC
1. Should management and labour so desire, the dialogue between them at Community level may lead to contractual relations, including agreements.
2. Agreements concluded at Community level shall be implemented either in accordance with the procedures and practices specific to management and labour and the Member States or, in matters covered by Article 137, at the joint request of the signatory parties, by a Council decision on a proposal from the Commission.
The Council shall act by qualified majority, except where the agreement in question contains one or more provisions relating to one of the areas for which unanimity is required pursuant to Article 137(2). In that case, it shall act unanimously.
***
Original Lisbon Treaty (ToL)
Article 2, point 118 of the original Treaty of Lisbon (ToL) amends Article 139 TEC in the following way (OJ 17.12.2007 C 306/81):
118) Article 139(2) shall be amended as follows:
(a) at the end of the first subparagraph, the following sentence shall be added: ‘The European Parliament shall be informed.’;
(b) in the second subparagraph, at the beginning of the first sentence, ‘The Council shall act by qualified majority, except where the agreement’ shall be replaced by ‘The Council shall act unanimously where the agreement’ and the second sentence shall be deleted.
***
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 139 TFEU (ToL) was to be renumbered Article 155 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/214).
***
Consolidated Lisbon Treaty
The exclusion of the European Parliament was mitigated by adopting the obligation to inform the EP from Article III-212(2) of the Constitutional Treaty, as proposed by the European Convention in Article 106(2) of the draft Constitution.
After the horizontal amendments and the editorial change to the second subparagraph of paragraph 2, Article 155 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 155 TFEU
(ex Article 139 TEC)
1. Should management and labour so desire, the dialogue between them at Union level may lead to contractual relations, including agreements.
2. Agreements concluded at Union level shall be implemented either in accordance with the procedures and practices specific to management and labour and the Member States or, in matters covered by Article 153, at the joint request of the signatory parties, by a Council decision on a proposal from the Commission. The European Parliament shall be informed.
The Council shall act unanimously where the agreement in question contains one or more provisions relating to one of the areas for which unanimity is required pursuant to Article 153(2).
***
Social partners
Again, Article 139 TEC and Article 155 TFEU employ the vague concept ‘management and labour’ in the English language version, but the reference to the Community (Union) level gives some guidance.
More distinctly, when I compared five other language versions of Article 155 TFEU they employ the term ‘social partners’ or something close to that, clearly evoking representative organisations of employers (businesses) and labour (trade unions) at European level.
German: Sozialpartner
French: partenaires sociaux
Spanish: interlocutores sociales
Finnish: työmarkkinaosapuolet
Swedish: arbetsmarknadens parter
For management and labour in the English language version of the current and future treaties, read social partners, because other language versions are explicit.
***
Main European level social partners: Who are they?
The membership of the main Social dialogue committee (SDC) includes the main cross-sectoral players: the European Trade Union Confederation (ETUC), the Confederation of European Business (Businesseurope), the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP), the European Associaiton of Craft, Small and Medium Sized Enterprises (UEAPME), Eurocadres and the European Confederation of Executives and Managerial Staff (CEC):
http://ec.europa.eu/employment_social/social_dialogue/interprof_en.htm
***
Social dialogue
The Commission’s DG Employment, Social Affairs and Equal Opportunities offers web pages with information about the European social dialogue. A distinction is made between bipartite dialogue involving employers and trade unions (the subject of Article 139 TEC and Article 155 TFEU) and a tripartite dialogue with the participation of public authorities (the subject of Article 138 TEC and Article 154 TFEU). Consultation takes place both generally (cross-industry social dialogue) and on a sectoral basis:
http://ec.europa.eu/employment_social/social_dialogue/index_en.htm
***
Bipartite social dialogue
The Commission’s DG Employment, Social Affairs and Equal Opportunities offers a web page Bipartite Social Dialogue at European level:
http://ec.europa.eu/employment_social/social_dialogue/bipartite_en.htm
In addition to the main social dialogue committee (SDC), there are 33 sectoral committees.
***
Social dialogue results
A web page called Typology of European social dialogue results presents practical examples:
http://ec.europa.eu/employment_social/social_dialogue/typology_en.htm
***
Eurofound
Additional information on various aspects of employment issues from a research and communication viewpoint is offered by Eurofound, the European Foundation for the Improvement of Living and Working Conditions:
http://www.eurofound.europa.eu/about/index.htm
Ralf Grahn
The EU level social partners are confederations of national business organisations and trade unions, so how can these agreements between be put into effect?
Are there any practical examples of implemented European level agreements by European level social partners?
***
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, are important for management (employers, businesses) and labour (trade unions):
– promotion of employment
– improved and harmonised living and working conditions
– social protection
– dialogue between management and labour
– development of human resources
– combating exclusion.
***
Article 139 TEC
Article 139 (ex Article 118b) of the Treaty establishing the European Community (TEC) invites management and labour to establish contractual relations, including agreements at European level.
The European level organisations are free to agree how they cooperate.
Basically they cannot conclude agreements binding on third parties (labour markets in the member states).
Binding effects can be achieved in two ways:
1) Community level agreements can be transformed in accordance with the procedures and practices in each member state.
2) The Council can issue norms in matters covered by Article 137 TEC.
In the latter case, the organisations agree and request, the Commission proposes and the Council decides.
Unanimity in the Council is required concerning the fields covered in Article 137(1)(c), (d), (f) and (g) TEC. In other cases qualified majority voting applies.
Agreements concerning pay, the right of association, the right to strike or the right to impose lock-outs are excluded. Cf. Article 137(5) TEC.
The current Article 139 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/109:
Article 139 TEC
1. Should management and labour so desire, the dialogue between them at Community level may lead to contractual relations, including agreements.
2. Agreements concluded at Community level shall be implemented either in accordance with the procedures and practices specific to management and labour and the Member States or, in matters covered by Article 137, at the joint request of the signatory parties, by a Council decision on a proposal from the Commission.
The Council shall act by qualified majority, except where the agreement in question contains one or more provisions relating to one of the areas for which unanimity is required pursuant to Article 137(2). In that case, it shall act unanimously.
***
Original Lisbon Treaty (ToL)
Article 2, point 118 of the original Treaty of Lisbon (ToL) amends Article 139 TEC in the following way (OJ 17.12.2007 C 306/81):
118) Article 139(2) shall be amended as follows:
(a) at the end of the first subparagraph, the following sentence shall be added: ‘The European Parliament shall be informed.’;
(b) in the second subparagraph, at the beginning of the first sentence, ‘The Council shall act by qualified majority, except where the agreement’ shall be replaced by ‘The Council shall act unanimously where the agreement’ and the second sentence shall be deleted.
***
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 139 TFEU (ToL) was to be renumbered Article 155 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/214).
***
Consolidated Lisbon Treaty
The exclusion of the European Parliament was mitigated by adopting the obligation to inform the EP from Article III-212(2) of the Constitutional Treaty, as proposed by the European Convention in Article 106(2) of the draft Constitution.
After the horizontal amendments and the editorial change to the second subparagraph of paragraph 2, Article 155 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 155 TFEU
(ex Article 139 TEC)
1. Should management and labour so desire, the dialogue between them at Union level may lead to contractual relations, including agreements.
2. Agreements concluded at Union level shall be implemented either in accordance with the procedures and practices specific to management and labour and the Member States or, in matters covered by Article 153, at the joint request of the signatory parties, by a Council decision on a proposal from the Commission. The European Parliament shall be informed.
The Council shall act unanimously where the agreement in question contains one or more provisions relating to one of the areas for which unanimity is required pursuant to Article 153(2).
***
Social partners
Again, Article 139 TEC and Article 155 TFEU employ the vague concept ‘management and labour’ in the English language version, but the reference to the Community (Union) level gives some guidance.
More distinctly, when I compared five other language versions of Article 155 TFEU they employ the term ‘social partners’ or something close to that, clearly evoking representative organisations of employers (businesses) and labour (trade unions) at European level.
German: Sozialpartner
French: partenaires sociaux
Spanish: interlocutores sociales
Finnish: työmarkkinaosapuolet
Swedish: arbetsmarknadens parter
For management and labour in the English language version of the current and future treaties, read social partners, because other language versions are explicit.
***
Main European level social partners: Who are they?
The membership of the main Social dialogue committee (SDC) includes the main cross-sectoral players: the European Trade Union Confederation (ETUC), the Confederation of European Business (Businesseurope), the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP), the European Associaiton of Craft, Small and Medium Sized Enterprises (UEAPME), Eurocadres and the European Confederation of Executives and Managerial Staff (CEC):
http://ec.europa.eu/employment_social/social_dialogue/interprof_en.htm
***
Social dialogue
The Commission’s DG Employment, Social Affairs and Equal Opportunities offers web pages with information about the European social dialogue. A distinction is made between bipartite dialogue involving employers and trade unions (the subject of Article 139 TEC and Article 155 TFEU) and a tripartite dialogue with the participation of public authorities (the subject of Article 138 TEC and Article 154 TFEU). Consultation takes place both generally (cross-industry social dialogue) and on a sectoral basis:
http://ec.europa.eu/employment_social/social_dialogue/index_en.htm
***
Bipartite social dialogue
The Commission’s DG Employment, Social Affairs and Equal Opportunities offers a web page Bipartite Social Dialogue at European level:
http://ec.europa.eu/employment_social/social_dialogue/bipartite_en.htm
In addition to the main social dialogue committee (SDC), there are 33 sectoral committees.
***
Social dialogue results
A web page called Typology of European social dialogue results presents practical examples:
http://ec.europa.eu/employment_social/social_dialogue/typology_en.htm
***
Eurofound
Additional information on various aspects of employment issues from a research and communication viewpoint is offered by Eurofound, the European Foundation for the Improvement of Living and Working Conditions:
http://www.eurofound.europa.eu/about/index.htm
Ralf Grahn
Thursday, 4 December 2008
European Union: Consulting management and labour
The Commission supports dialogue between management and labour at Community level and consults them before and after issuing proposals.
For management and labour in the English language version of the current and future treaties, read social partners, because other language versions are explicit.
German: Sozialpartner
French: partenaires sociaux
Spanish: interlocutores sociales
Finnish: työmarkkinaosapuolet
Swedish: arbetsmarknadens parter
Suggestions for further reading are presented with regard to various aspects of the social dialogue between representative European organisations for business and trade union interests and consultations concerning planned or issued proposals.
***
Social policy objectives
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, are important for management (employers, businesses) and labour (trade unions):
– promotion of employment
– improved and harmonised living and working conditions
– social protection
– dialogue between management and labour
– development of human resources
– combating exclusion.
***
Article 138 TEC
Article 138 (ex Article 118a) of the Treaty establishing the European Community (TEC) sets out mandatory consultation of management and labour by the Commission.
The Commission promotes consultation at Community level and facilitates dialogue between management and labour with regard to social policy.
The Commission consults management and labour before issuing proposals.
The Commission consults management and labour on proposals.
Article 138 TEC refers to possible European Community level agreements between management and labour.
The current Article 138 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/108–109:
Article 138 TEC
1. The Commission shall have the task of promoting the consultation of management and labour at Community level and shall take any relevant measure to facilitate their dialogue by ensuring balanced support for the parties.
2. To this end, before submitting proposals in the social policy field, the Commission shall consult management and labour on the possible direction of Community action.
3. If, after such consultation, the Commission considers Community action advisable, it shall consult management and labour on the content of the envisaged proposal. Management and labour shall forward to the Commission an opinion or, where appropriate, a recommendation.
4. On the occasion of such consultation, management and labour may inform the Commission of their wish to initiate the process provided for in Article 139. The duration of the procedure shall not exceed nine months, unless the management and labour concerned and the Commission decide jointly to extend it.
***
Original Lisbon Treaty (ToL)
Article 2, point 117 of the original Treaty of Lisbon (ToL) amends Article 138 TEC in the following way (OJ 17.12.2007 C 306/81):
117) In Article 138(4), first sentence, the words ‘On the occasion of such consultation,’ shall be replaced by ‘On the occasion of the consultation referred to in paragraphs 2 and 3,’ and, in the second sentence, the words ‘the procedure’ shall be replaced by ‘this process’.
***
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 138 TFEU (ToL) was to be renumbered Article 154 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/214).
***
Consolidated Lisbon Treaty
After the modest specific amendments and after inserting the horizontal amendments, Article 154 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, looks like this:
(TITLE X
SOCIAL POLICY)
Article 154 TFEU
(ex Article 138 TEC)
1. The Commission shall have the task of promoting the consultation of management and labour at Union level and shall take any relevant measure to facilitate their dialogue by ensuring balanced support for the parties.
2. To this end, before submitting proposals in the social policy field, the Commission shall consult management and labour on the possible direction of Union action.
3. If, after such consultation, the Commission considers Union action advisable, it shall consult management and labour on the content of the envisaged proposal. Management and labour shall forward to the Commission an opinion or, where appropriate, a recommendation.
4. On the occasion of the consultation referred to in paragraphs 2 and 3, management and labour may inform the Commission of their wish to initiate the process provided for in Article 155. The duration of this process shall not exceed nine months, unless the management and labour concerned and the Commission decide jointly to extend it.
***
Social partners
The vague concept ‘management and labour’ becomes more distinct by the reference to the Community (Union) level.
In addition, the five other language versions I compared with employ the term ‘social partners’ or something close to that, clearly evoking representative organisations of employers and labour.
***
Social dialogue
The Commission’s DG Employment, Social Affairs and Equal Opportunities offers web pages with information about the European social dialogue. A distinction is made between bipartite dialogue involving employers and trade unions and a tripartite dialogue with the participation of public authorities. Consultation takes place both generally (cross-industry social dialogue) and on a sectoral basis:
http://ec.europa.eu/employment_social/social_dialogue/index_en.htm
***
Cross-industry social dialogue
Added information on cross-industry social dialogue, within the Social dialogue committee (SDC), involving the European Trade Union Confederation (ETUC), the Confederation of European Business (Businesseurope), the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP), the European Associaiton of Craft, Small and Medium Sized Enterprises (UEAPME), Eurocadres and the European Confederation of Executives and Managerial Staff (CEC):
http://ec.europa.eu/employment_social/social_dialogue/interprof_en.htm
***
Sectoral social dialogue
There is a host of sectoral social dialogue committees:
http://ec.europa.eu/employment_social/social_dialogue/sectoral_en.htm
***
Social dialogue at company level
Social dialogue at company level for multinational companies covered by the European Works Councils Directive are presented here:
http://ec.europa.eu/employment_social/social_dialogue/company_en.htm
***
Article 138 TEC consultations
Consultations based on Article 138 TEC are presented here:
http://ec.europa.eu/employment_social/social_dialogue/consultations_en.htm
Ralf Grahn
For management and labour in the English language version of the current and future treaties, read social partners, because other language versions are explicit.
German: Sozialpartner
French: partenaires sociaux
Spanish: interlocutores sociales
Finnish: työmarkkinaosapuolet
Swedish: arbetsmarknadens parter
Suggestions for further reading are presented with regard to various aspects of the social dialogue between representative European organisations for business and trade union interests and consultations concerning planned or issued proposals.
***
Social policy objectives
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, are important for management (employers, businesses) and labour (trade unions):
– promotion of employment
– improved and harmonised living and working conditions
– social protection
– dialogue between management and labour
– development of human resources
– combating exclusion.
***
Article 138 TEC
Article 138 (ex Article 118a) of the Treaty establishing the European Community (TEC) sets out mandatory consultation of management and labour by the Commission.
The Commission promotes consultation at Community level and facilitates dialogue between management and labour with regard to social policy.
The Commission consults management and labour before issuing proposals.
The Commission consults management and labour on proposals.
Article 138 TEC refers to possible European Community level agreements between management and labour.
The current Article 138 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/108–109:
Article 138 TEC
1. The Commission shall have the task of promoting the consultation of management and labour at Community level and shall take any relevant measure to facilitate their dialogue by ensuring balanced support for the parties.
2. To this end, before submitting proposals in the social policy field, the Commission shall consult management and labour on the possible direction of Community action.
3. If, after such consultation, the Commission considers Community action advisable, it shall consult management and labour on the content of the envisaged proposal. Management and labour shall forward to the Commission an opinion or, where appropriate, a recommendation.
4. On the occasion of such consultation, management and labour may inform the Commission of their wish to initiate the process provided for in Article 139. The duration of the procedure shall not exceed nine months, unless the management and labour concerned and the Commission decide jointly to extend it.
***
Original Lisbon Treaty (ToL)
Article 2, point 117 of the original Treaty of Lisbon (ToL) amends Article 138 TEC in the following way (OJ 17.12.2007 C 306/81):
117) In Article 138(4), first sentence, the words ‘On the occasion of such consultation,’ shall be replaced by ‘On the occasion of the consultation referred to in paragraphs 2 and 3,’ and, in the second sentence, the words ‘the procedure’ shall be replaced by ‘this process’.
***
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 138 TFEU (ToL) was to be renumbered Article 154 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/214).
***
Consolidated Lisbon Treaty
After the modest specific amendments and after inserting the horizontal amendments, Article 154 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, looks like this:
(TITLE X
SOCIAL POLICY)
Article 154 TFEU
(ex Article 138 TEC)
1. The Commission shall have the task of promoting the consultation of management and labour at Union level and shall take any relevant measure to facilitate their dialogue by ensuring balanced support for the parties.
2. To this end, before submitting proposals in the social policy field, the Commission shall consult management and labour on the possible direction of Union action.
3. If, after such consultation, the Commission considers Union action advisable, it shall consult management and labour on the content of the envisaged proposal. Management and labour shall forward to the Commission an opinion or, where appropriate, a recommendation.
4. On the occasion of the consultation referred to in paragraphs 2 and 3, management and labour may inform the Commission of their wish to initiate the process provided for in Article 155. The duration of this process shall not exceed nine months, unless the management and labour concerned and the Commission decide jointly to extend it.
***
Social partners
The vague concept ‘management and labour’ becomes more distinct by the reference to the Community (Union) level.
In addition, the five other language versions I compared with employ the term ‘social partners’ or something close to that, clearly evoking representative organisations of employers and labour.
***
Social dialogue
The Commission’s DG Employment, Social Affairs and Equal Opportunities offers web pages with information about the European social dialogue. A distinction is made between bipartite dialogue involving employers and trade unions and a tripartite dialogue with the participation of public authorities. Consultation takes place both generally (cross-industry social dialogue) and on a sectoral basis:
http://ec.europa.eu/employment_social/social_dialogue/index_en.htm
***
Cross-industry social dialogue
Added information on cross-industry social dialogue, within the Social dialogue committee (SDC), involving the European Trade Union Confederation (ETUC), the Confederation of European Business (Businesseurope), the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP), the European Associaiton of Craft, Small and Medium Sized Enterprises (UEAPME), Eurocadres and the European Confederation of Executives and Managerial Staff (CEC):
http://ec.europa.eu/employment_social/social_dialogue/interprof_en.htm
***
Sectoral social dialogue
There is a host of sectoral social dialogue committees:
http://ec.europa.eu/employment_social/social_dialogue/sectoral_en.htm
***
Social dialogue at company level
Social dialogue at company level for multinational companies covered by the European Works Councils Directive are presented here:
http://ec.europa.eu/employment_social/social_dialogue/company_en.htm
***
Article 138 TEC consultations
Consultations based on Article 138 TEC are presented here:
http://ec.europa.eu/employment_social/social_dialogue/consultations_en.htm
Ralf Grahn
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.
***
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.
***
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.
***
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.
***
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).
***
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.
***
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.
***
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.
***
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;
---
(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
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.
***
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.
***
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.
***
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.
***
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).
***
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.
***
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.
***
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.
***
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;
---
(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
Tuesday, 2 December 2008
European Union: Nobody but Barroso?
Even if José Manuel Barroso happened to be the best Commission President ever, the European political families should be hard at work competing for the next five year stint at the helm of the Commission. If political parties at European level, representing 500 million EU citizens, are unable to find one qualified candidate each, they betray both their calling and the voters.
However, progress has been slow and the preliminary discussions mainly confined to intergovernmental discussions brought to light by snippets of information to the public.
Consequently, blogger friend Jon Worth launched the campaign Anyone But Barroso on his Euroblog, in order to kick-start the democratic impulses among the European parties:
http://www.jonworth.eu/do-you-think-barroso-is-rubbish-if-so-then-help-us/
The aim is commendable, but the results are dismal.
***
European People’s Party
One of the few things we EU citizens have seen, is that José Manuel Barroso seems keen to take on another five years as Commission President.
But the latest news item from the European People’s Party is EPP President Wilfried Martens commending the Commission’s economic stimulus package under Barroso’s leadership (26 November 2008). But this still falls short of a public nomination or even an endorsement of Barroso’s candidacy:
http://www.epp.eu
In other words, even Barroso has not been nominated as yet, although a number of members of the nominating European Council from different political families have spoken out in favour of him.
***
Party of European Socialists
Yesterday the Party of European Socialists (PES) published its manifesto for the June 2009 European elections ‘People first. A new direction for Europe’. The election manifesto was adopted by the PES Council in Madrid (1 December 2008):
http://www.pes.org/content/view/1457/72
Martin Schulz, the leader of the Socialist group in the European Parliament, is positively brimming with confidence in an EurActiv interview today:
http://www.euractiv.com/en/eu-elections/interview-socialists-confident-leading-parliament/article-177676
Schulz argues that the socialists are going to become bigger than the conservatives and the liberals combined after the June 2009 elections. He seems oblivious of the current predilection for centre-right parties in EU member states and of internecine warfare among French socialists, split three ways. But most of all, he fails to address how his boundless optimism is going to be transmitted to European electors by a faceless campaign without a top-drawer candidate for the Commission Presidency.
***
European Liberal Democrats Party
The great annual event for the European Liberal Democrats Party (ELDR) was the party congress on 30 and 31 October 2008 in Stockholm. The congress adopted resolutions with a view to the European elections, but not a word was communicated on the party’s candidate to take over the post as President of the European Commission:
http://www.eldr.eu/index.php?newlang=english
***
European Green Party
I tried to find a press release on the leading Green candidate on the web site of the European Green Party:
http://www.europeangreens.org/cms/default/rubrik/9/9034.htm
Hardly surprising by now, but I found nothing (nobody).
***
Election results
The Treaty of Lisbon is not going to be in force in time for the European Parliament elections in June, but Article 214(2) of the Treaty establishing the European Community requires the approval of the European Parliament for the President of the Commission:
Article 214(2) TEC
2. The Council, meeting in the composition of Heads of State or Government and acting by a qualified majority, shall nominate the person it intends to appoint as President of the Commission; the nomination shall be approved by the European Parliament.
***
Even under the current rules, a European Parliament with backbone could ensure open nominations in advance, public campaigns interacting with the citizens of the EU and respect for the outcome of the EP elections.
Nothing prevents the heads of state or government (European Council) to proclaim that they are going to take into account the elections to the European Parliament, because they already committed themselves politically when they signed the Constitutional Treaty in 2004.
***
Political parties
Still under the existing rules, Article 191 TEC sets out the important task for the European political parties, the one for which they and their foundations can draw funds from EU taxpayers:
Article 191 TEC
Political parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union.
-----
How can the political parties at European level even pretend to fulfil their basic tasks, if they fail to field candidates for the Commission Presidency?
***
Libertas
After this depressing perusal of the state of the union, I have to return to the Anyone But Barroso slogan.
Instead of ruminating about my preferred candidate, I don the cap of an independent political tactician.
If I happened to be in Declan Ganley’s shoes, I wouldn’t hesitate a moment before becoming or launching the Libertas candidate for President of the Commission.
The European level parties have, as it seems, rejected the voters and created a vacuum waiting to be filled. In the case of Libertas this gift from heaven would give them at least three aces on a silver tray: one positive campaign message instead of only negative ones, a face to project to millions of television and PC screens all over Europe and the potential for a real break-through in the EP elections.
If this happens, the established European political parties have brought it upon themselves.
Ralf Grahn
However, progress has been slow and the preliminary discussions mainly confined to intergovernmental discussions brought to light by snippets of information to the public.
Consequently, blogger friend Jon Worth launched the campaign Anyone But Barroso on his Euroblog, in order to kick-start the democratic impulses among the European parties:
http://www.jonworth.eu/do-you-think-barroso-is-rubbish-if-so-then-help-us/
The aim is commendable, but the results are dismal.
***
European People’s Party
One of the few things we EU citizens have seen, is that José Manuel Barroso seems keen to take on another five years as Commission President.
But the latest news item from the European People’s Party is EPP President Wilfried Martens commending the Commission’s economic stimulus package under Barroso’s leadership (26 November 2008). But this still falls short of a public nomination or even an endorsement of Barroso’s candidacy:
http://www.epp.eu
In other words, even Barroso has not been nominated as yet, although a number of members of the nominating European Council from different political families have spoken out in favour of him.
***
Party of European Socialists
Yesterday the Party of European Socialists (PES) published its manifesto for the June 2009 European elections ‘People first. A new direction for Europe’. The election manifesto was adopted by the PES Council in Madrid (1 December 2008):
http://www.pes.org/content/view/1457/72
Martin Schulz, the leader of the Socialist group in the European Parliament, is positively brimming with confidence in an EurActiv interview today:
http://www.euractiv.com/en/eu-elections/interview-socialists-confident-leading-parliament/article-177676
Schulz argues that the socialists are going to become bigger than the conservatives and the liberals combined after the June 2009 elections. He seems oblivious of the current predilection for centre-right parties in EU member states and of internecine warfare among French socialists, split three ways. But most of all, he fails to address how his boundless optimism is going to be transmitted to European electors by a faceless campaign without a top-drawer candidate for the Commission Presidency.
***
European Liberal Democrats Party
The great annual event for the European Liberal Democrats Party (ELDR) was the party congress on 30 and 31 October 2008 in Stockholm. The congress adopted resolutions with a view to the European elections, but not a word was communicated on the party’s candidate to take over the post as President of the European Commission:
http://www.eldr.eu/index.php?newlang=english
***
European Green Party
I tried to find a press release on the leading Green candidate on the web site of the European Green Party:
http://www.europeangreens.org/cms/default/rubrik/9/9034.htm
Hardly surprising by now, but I found nothing (nobody).
***
Election results
The Treaty of Lisbon is not going to be in force in time for the European Parliament elections in June, but Article 214(2) of the Treaty establishing the European Community requires the approval of the European Parliament for the President of the Commission:
Article 214(2) TEC
2. The Council, meeting in the composition of Heads of State or Government and acting by a qualified majority, shall nominate the person it intends to appoint as President of the Commission; the nomination shall be approved by the European Parliament.
***
Even under the current rules, a European Parliament with backbone could ensure open nominations in advance, public campaigns interacting with the citizens of the EU and respect for the outcome of the EP elections.
Nothing prevents the heads of state or government (European Council) to proclaim that they are going to take into account the elections to the European Parliament, because they already committed themselves politically when they signed the Constitutional Treaty in 2004.
***
Political parties
Still under the existing rules, Article 191 TEC sets out the important task for the European political parties, the one for which they and their foundations can draw funds from EU taxpayers:
Article 191 TEC
Political parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union.
-----
How can the political parties at European level even pretend to fulfil their basic tasks, if they fail to field candidates for the Commission Presidency?
***
Libertas
After this depressing perusal of the state of the union, I have to return to the Anyone But Barroso slogan.
Instead of ruminating about my preferred candidate, I don the cap of an independent political tactician.
If I happened to be in Declan Ganley’s shoes, I wouldn’t hesitate a moment before becoming or launching the Libertas candidate for President of the Commission.
The European level parties have, as it seems, rejected the voters and created a vacuum waiting to be filled. In the case of Libertas this gift from heaven would give them at least three aces on a silver tray: one positive campaign message instead of only negative ones, a face to project to millions of television and PC screens all over Europe and the potential for a real break-through in the EP elections.
If this happens, the established European political parties have brought it upon themselves.
Ralf Grahn
European Union: Social partners and Tripartite Social Summit
Sometimes the EU Treaty of Lisbon introduces new elements to ordinary ‘Community’ policy areas. The social partners are recognised and the Tripartite Social Summit for Growth and Employment is consecrated at treaty level.
We ask our readers to reflect upon a translation issue: The English treaty uses different terms in two places where five other language versions stay on track.
Some policy oriented materials are indicated for further reading.
***
Current TEC
Yesterday’s post looked at the social policy objectives of the European Community (European Union), mentioned in Article 136 TEC (ex Article 117), in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/103:
– promotion of employment
– improved and harmonised living and working conditions
– social protection
– dialogue between management and labour
– development of human resources
– combating exclusion.
***
Management and labour or social partners?
In the blog post ‘European Union: Employment Committee’ we discussed the differences between the English terminology and five other language versions in the context of Article 130 TEC and Article 150 TFEU:
Management and labour
The English version of the treaties refers to consulting ‘management and labour’. We look at the wording of the sentence, first in English:
In fulfilling its mandate, the Committee shall consult management and labour.
Management and labour seem to be given more exact contours, when we turn to the German version:
Bei der Erfüllung seines Auftrags hört der Ausschuss die Sozialpartner.
The French words, likewise, gives management and labour a more precise meaning than the English treaty text:
Dans l'accomplissement de son mandat, le comité consulte les partenaires sociaux.
The Spanish treaty text catches another nuance of the parties or partners to be consulted:
Para llevar a cabo su mandato, el Comité deberá consultar a los interlocutores sociales.
The Finnish treaty text uses (almost) the same terminology as the German and the French, although the customary term evokes contracting parties (collective agreements) as much as partners in a dialogue:
Tehtäväänsä toteuttaessaan komitea kuulee työmarkkinaosapuolia.
The Swedish text uses the term ’arbetsmarknadens parter’ identical with the Finnish concept:
Kommittén ska när den utför sitt uppdrag höra arbetsmarknadens parter.
We can conclude that the drafters of the treaties have had organised employers and organised labour in mind and that national systems of collective bargaining and traditions of dialogue between management and employee interests are reflected in the various terms used. Anyway, the English version seems to be less exact than the other language versions. (The Title Social policy is imbued with references to the social partners.)
***
Social partners
Even if Article 130 TEC and Article 150 TFEU used ‘management and labour’ in the English treaty versions, ‘social partners’ is a recurring term in eurospeak or euro jargon.
The Europa Glossary outlines the meaning of ‘social partners’ in the following way (although it leans heavily on Article 138 TEC, in the current Title XI Social policy, education, vocational training and youth):
Social partners
The glossary is being updated given the recent signing of the Treaty of Lisbon.
The Commission is required to consult various social partners when it wishes to submit proposals in this field (article 138 of the EC Treaty). This social dialogue occurs via the three main cross-industry organisations representing the social partners at European level:
the European Trade Union Confederation (ETUC);
the Union of Industrial and Employers' Confederations of Europe (BUSINESSEUROPE);
the European Centre of Enterprises with Public Participation (CEEP).
In addition to these three European cross-industry organisations, there are many other socio-professional groups representing specific or sectoral interests.
It is the Commission's task to promote consultation of the social partners and take any relevant measures to facilitate their dialogue by ensuring balanced support for the parties.
Before submitting proposals in the field of social policy, the Commission consults the social partners on the possible direction of EU action.
The social partners also play an important role in the European Economic and Social Committee, where they sit alongside other representatives of civil society.
***
Original Lisbon Treaty (ToL)
The Treaty of Lisbon (ToL) is still on its rocky road to possible entry into force. Agreed and signed between 27 member state governments, it has by now been approved by the national parliaments in 25 member states ahead of the original target date for entry into force (1 January 2009). Among the parliamentary ratifiers, only the holder of the next Council Presidency, the Czech Republic, looks certain to miss the agreed target date.
In addition, Ireland is pondering its European future following the negative outcome of the 12 June 2008 referendum. (You can find updated references to materials of general European interest on the debate in the posts ‘Ireland and Lisbon Treaty’ and ‘UCD Dublin European Institute: Irleand’s Future in Europe’.)
Anyway, in some instances the Lisbon Treaty 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.
After moving Title IX Common commercial policy and Title X Customs cooperation, employment, social policy and the European Social Fund (ESF) would follow each other in a more logical order when the Lisbon Treaty is in force.
In addition, Title XI Social policy, education, vocational training and youth is divided into separate Titles, which makes the treaty easier to read.
Although the bulk of the Treaty establishing the European Community undergoes technical adjustments, Article 2, point 115 of the original Treaty of Lisbon (ToL) makes en exception by introducing a new Article (OJ 17.12.2007 C 306/81):
115) The following new Article 136a shall be inserted:
‘Article 136a
The Union recognises and promotes the role of the social partners at its level, taking into account the diversity of national systems. It shall facilitate dialogue between the social partners, respecting their autonomy.
The Tripartite Social Summit for Growth and Employment shall contribute to social dialogue.’.
***
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 new Article 136a TFEU (ToL) was to be renumbered Article 152 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/214).
***
Consolidated Lisbon Treaty
The new Article 152 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 152 TFEU
The Union recognises and promotes the role of the social partners at its level, taking into account the diversity of national systems. It shall facilitate dialogue between the social partners, respecting their autonomy.
The Tripartite Social Summit for Growth and Employment shall contribute to social dialogue.
***
Article 152 TFEU background
The intergovernmental conference (IGC 2007) did very little creative or innovative work. Its objective was to salvage the essential ‘institutional innovations’ of the Constitutional Treaty in the form of an amending treaty. Some reform provisions were watered down, but in the end the bulk of the Lisbon Treaty far exceeded the initial notion of a ‘mini treaty’.
In other words, we have to look at the draft Constitution and the Constitutional Treaty if we want to know how we ended up with Article 152 TFEU.
***
Draft Constitution I-47
The European Convention included a new Article I-47 on the social partners and autonomous social dialogue, under Title VI The democratic life of the Union (OJ 18.7.2003 C 169/20):
Article I-47 Draft Constitution
The social partners and autonomous social dialogue
The European Union recognises and promotes the role of the social partners at Union level, taking into account the diversity of national systems; it shall facilitate dialogue between the social partners, respecting their autonomy.
***
de Poncins
Étienne de Poncins offered the following comment on the new Article I-47 in Vers une Constitution européenne (Éditions 10/18, 2003), on page 215:
« Point à relever : reconnaissance du dialogue social
Le contenu de cet article doit beaucoup aux partenaires sociaux ainsi qu’aux Conventionnels membres du Comité économique et social et bénéfiant du statut d’observateurs au sein de la Convention. La Convention reconnaît le rôle et la place du dialogue social en l’inscrivant dans la Partie I de la Constitution. »
***
Constitutional Treaty I-48
This is one of the instances where the intergovernmental conference (IGC 2003–2004) actually added something to the draft Constitution.
Article I-48 of the Treaty establishing a Constitution for Europe retained the text of Article I-47 proposed by the European Convention and the provision’s location in the ‘constitutional’ first part, but the IGC also added a second paragraph on the Tripartite Social Summit for Growth and Employment (OJ 16.12.2004 C 310/35):
Article I-48 Constitution
The social partners and autonomous social dialogue
The Union recognises and promotes the role of the social partners at its level, taking into account the diversity of national systems. It shall facilitate dialogue between the social partners, respecting their autonomy.
The Tripartite Social Summit for Growth and Employment shall contribute to social dialogue.
***
From the Constitution to the Lisbon Treaty
We notice that Article 152 TFEU takes over the wording of Article I-48 Constitution without change, but the location is shifted from the lofty first part of the Constitution to the more commonplace Title on social policy.
***
Translation again
Above we noted that the English language version of the treaty employed the non-distinct term ‘management and labour’ in Article 130 TEC and Article 150 TFEU, where five other language versions evoked ‘social partners’ or something close to it.
But in Article 152 TFEU the English treaty text adopts the term ‘social partners’ and speaks of ‘social dialogue’.
The five other language versions continue to employ the customary concepts: German (Sozialpartner, soziale Dialog), French (partenaires sociaux, dialogue social), Spanish (interlocutores sociales, diálogo social), Finnish (työmarkkinaosapuolet, työmarkkinaosapuolten välinen vuoropuhelu) and Swedish (arbetsmarknadsparter, dialog mellan arbetsmarknadens parter).
***
Tripartite Social Summit for Growth and Employment
Although the consecration of the Tripartite Social Summit for Growth and Employment at treaty level is a novelty, this institutionalised dialogue exists informally since 2000 and formally pursuant to Council Decision 2003/174/CE of 6 March 2003 establishing a Tripartite Social Summit for Growth and Employment (OJ 14.3.2003 L 70/31:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:070:0031:0033:EN:PDF
The Commission’s SCADPlus web page Tripartite Social Summit for Growth and Employment offers an overview:
http://europa.eu/scadplus/leg/en/cha/c10715.htm
Ahead of the 2008 spring European Council the Slovenian Council Presidency informed about the traditional upcoming Tripartite Social Summit for Growth and Employment:
http://www.eu2008.si/si/News_and_Documents/Fact/March/0313_EC-SOCTripart.pdf
The current French Council Presidency is not known for being averse to summits. The latest tripartite summit was held 15 October 2008:
http://www.eu2008.fr/PFUE/site/PFUE/lang/en/sommet_social_tripartite
Ralf Grahn
We ask our readers to reflect upon a translation issue: The English treaty uses different terms in two places where five other language versions stay on track.
Some policy oriented materials are indicated for further reading.
***
Current TEC
Yesterday’s post looked at the social policy objectives of the European Community (European Union), mentioned in Article 136 TEC (ex Article 117), in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/103:
– promotion of employment
– improved and harmonised living and working conditions
– social protection
– dialogue between management and labour
– development of human resources
– combating exclusion.
***
Management and labour or social partners?
In the blog post ‘European Union: Employment Committee’ we discussed the differences between the English terminology and five other language versions in the context of Article 130 TEC and Article 150 TFEU:
Management and labour
The English version of the treaties refers to consulting ‘management and labour’. We look at the wording of the sentence, first in English:
In fulfilling its mandate, the Committee shall consult management and labour.
Management and labour seem to be given more exact contours, when we turn to the German version:
Bei der Erfüllung seines Auftrags hört der Ausschuss die Sozialpartner.
The French words, likewise, gives management and labour a more precise meaning than the English treaty text:
Dans l'accomplissement de son mandat, le comité consulte les partenaires sociaux.
The Spanish treaty text catches another nuance of the parties or partners to be consulted:
Para llevar a cabo su mandato, el Comité deberá consultar a los interlocutores sociales.
The Finnish treaty text uses (almost) the same terminology as the German and the French, although the customary term evokes contracting parties (collective agreements) as much as partners in a dialogue:
Tehtäväänsä toteuttaessaan komitea kuulee työmarkkinaosapuolia.
The Swedish text uses the term ’arbetsmarknadens parter’ identical with the Finnish concept:
Kommittén ska när den utför sitt uppdrag höra arbetsmarknadens parter.
We can conclude that the drafters of the treaties have had organised employers and organised labour in mind and that national systems of collective bargaining and traditions of dialogue between management and employee interests are reflected in the various terms used. Anyway, the English version seems to be less exact than the other language versions. (The Title Social policy is imbued with references to the social partners.)
***
Social partners
Even if Article 130 TEC and Article 150 TFEU used ‘management and labour’ in the English treaty versions, ‘social partners’ is a recurring term in eurospeak or euro jargon.
The Europa Glossary outlines the meaning of ‘social partners’ in the following way (although it leans heavily on Article 138 TEC, in the current Title XI Social policy, education, vocational training and youth):
Social partners
The glossary is being updated given the recent signing of the Treaty of Lisbon.
The Commission is required to consult various social partners when it wishes to submit proposals in this field (article 138 of the EC Treaty). This social dialogue occurs via the three main cross-industry organisations representing the social partners at European level:
the European Trade Union Confederation (ETUC);
the Union of Industrial and Employers' Confederations of Europe (BUSINESSEUROPE);
the European Centre of Enterprises with Public Participation (CEEP).
In addition to these three European cross-industry organisations, there are many other socio-professional groups representing specific or sectoral interests.
It is the Commission's task to promote consultation of the social partners and take any relevant measures to facilitate their dialogue by ensuring balanced support for the parties.
Before submitting proposals in the field of social policy, the Commission consults the social partners on the possible direction of EU action.
The social partners also play an important role in the European Economic and Social Committee, where they sit alongside other representatives of civil society.
***
Original Lisbon Treaty (ToL)
The Treaty of Lisbon (ToL) is still on its rocky road to possible entry into force. Agreed and signed between 27 member state governments, it has by now been approved by the national parliaments in 25 member states ahead of the original target date for entry into force (1 January 2009). Among the parliamentary ratifiers, only the holder of the next Council Presidency, the Czech Republic, looks certain to miss the agreed target date.
In addition, Ireland is pondering its European future following the negative outcome of the 12 June 2008 referendum. (You can find updated references to materials of general European interest on the debate in the posts ‘Ireland and Lisbon Treaty’ and ‘UCD Dublin European Institute: Irleand’s Future in Europe’.)
Anyway, in some instances the Lisbon Treaty 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.
After moving Title IX Common commercial policy and Title X Customs cooperation, employment, social policy and the European Social Fund (ESF) would follow each other in a more logical order when the Lisbon Treaty is in force.
In addition, Title XI Social policy, education, vocational training and youth is divided into separate Titles, which makes the treaty easier to read.
Although the bulk of the Treaty establishing the European Community undergoes technical adjustments, Article 2, point 115 of the original Treaty of Lisbon (ToL) makes en exception by introducing a new Article (OJ 17.12.2007 C 306/81):
115) The following new Article 136a shall be inserted:
‘Article 136a
The Union recognises and promotes the role of the social partners at its level, taking into account the diversity of national systems. It shall facilitate dialogue between the social partners, respecting their autonomy.
The Tripartite Social Summit for Growth and Employment shall contribute to social dialogue.’.
***
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 new Article 136a TFEU (ToL) was to be renumbered Article 152 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/214).
***
Consolidated Lisbon Treaty
The new Article 152 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 152 TFEU
The Union recognises and promotes the role of the social partners at its level, taking into account the diversity of national systems. It shall facilitate dialogue between the social partners, respecting their autonomy.
The Tripartite Social Summit for Growth and Employment shall contribute to social dialogue.
***
Article 152 TFEU background
The intergovernmental conference (IGC 2007) did very little creative or innovative work. Its objective was to salvage the essential ‘institutional innovations’ of the Constitutional Treaty in the form of an amending treaty. Some reform provisions were watered down, but in the end the bulk of the Lisbon Treaty far exceeded the initial notion of a ‘mini treaty’.
In other words, we have to look at the draft Constitution and the Constitutional Treaty if we want to know how we ended up with Article 152 TFEU.
***
Draft Constitution I-47
The European Convention included a new Article I-47 on the social partners and autonomous social dialogue, under Title VI The democratic life of the Union (OJ 18.7.2003 C 169/20):
Article I-47 Draft Constitution
The social partners and autonomous social dialogue
The European Union recognises and promotes the role of the social partners at Union level, taking into account the diversity of national systems; it shall facilitate dialogue between the social partners, respecting their autonomy.
***
de Poncins
Étienne de Poncins offered the following comment on the new Article I-47 in Vers une Constitution européenne (Éditions 10/18, 2003), on page 215:
« Point à relever : reconnaissance du dialogue social
Le contenu de cet article doit beaucoup aux partenaires sociaux ainsi qu’aux Conventionnels membres du Comité économique et social et bénéfiant du statut d’observateurs au sein de la Convention. La Convention reconnaît le rôle et la place du dialogue social en l’inscrivant dans la Partie I de la Constitution. »
***
Constitutional Treaty I-48
This is one of the instances where the intergovernmental conference (IGC 2003–2004) actually added something to the draft Constitution.
Article I-48 of the Treaty establishing a Constitution for Europe retained the text of Article I-47 proposed by the European Convention and the provision’s location in the ‘constitutional’ first part, but the IGC also added a second paragraph on the Tripartite Social Summit for Growth and Employment (OJ 16.12.2004 C 310/35):
Article I-48 Constitution
The social partners and autonomous social dialogue
The Union recognises and promotes the role of the social partners at its level, taking into account the diversity of national systems. It shall facilitate dialogue between the social partners, respecting their autonomy.
The Tripartite Social Summit for Growth and Employment shall contribute to social dialogue.
***
From the Constitution to the Lisbon Treaty
We notice that Article 152 TFEU takes over the wording of Article I-48 Constitution without change, but the location is shifted from the lofty first part of the Constitution to the more commonplace Title on social policy.
***
Translation again
Above we noted that the English language version of the treaty employed the non-distinct term ‘management and labour’ in Article 130 TEC and Article 150 TFEU, where five other language versions evoked ‘social partners’ or something close to it.
But in Article 152 TFEU the English treaty text adopts the term ‘social partners’ and speaks of ‘social dialogue’.
The five other language versions continue to employ the customary concepts: German (Sozialpartner, soziale Dialog), French (partenaires sociaux, dialogue social), Spanish (interlocutores sociales, diálogo social), Finnish (työmarkkinaosapuolet, työmarkkinaosapuolten välinen vuoropuhelu) and Swedish (arbetsmarknadsparter, dialog mellan arbetsmarknadens parter).
***
Tripartite Social Summit for Growth and Employment
Although the consecration of the Tripartite Social Summit for Growth and Employment at treaty level is a novelty, this institutionalised dialogue exists informally since 2000 and formally pursuant to Council Decision 2003/174/CE of 6 March 2003 establishing a Tripartite Social Summit for Growth and Employment (OJ 14.3.2003 L 70/31:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:070:0031:0033:EN:PDF
The Commission’s SCADPlus web page Tripartite Social Summit for Growth and Employment offers an overview:
http://europa.eu/scadplus/leg/en/cha/c10715.htm
Ahead of the 2008 spring European Council the Slovenian Council Presidency informed about the traditional upcoming Tripartite Social Summit for Growth and Employment:
http://www.eu2008.si/si/News_and_Documents/Fact/March/0313_EC-SOCTripart.pdf
The current French Council Presidency is not known for being averse to summits. The latest tripartite summit was held 15 October 2008:
http://www.eu2008.fr/PFUE/site/PFUE/lang/en/sommet_social_tripartite
Ralf Grahn
Monday, 1 December 2008
Eurozone: UK and Sweden
The United Kingdom seems to be moving so far off from qualifiying for euro adoption that I wonder how Commission President José Manuel Barroso even bothered to discuss the matter in public. The convergence criteria (analysed earlier on this blog) spell out decent government deficits and participation in the exchange rate mechanism without devaluation. If the rule of law continues to be upheld, Britain is beyond the pale for many years to come, even if the political leadership had a change of heart. Having promised a referendum, Labour is in no position to join the eurozone for internal reasons either, even if the political class wanted to jettison the Pound Sterling.
Britain has opted out of options.
***
Sweden is also outside the euro area, but without an opt-out. The Swedish Government did not bother to use the Lisbon Treaty negotiations to get one, but Sweden’s Government acts as if it had no obligation to adopt the euro currency.
Sweden’s updated convergence programme (Uppdatering av Sveriges konvergensprogram, November 2008) was published today:
http://www.regeringen.se/content/1/c6/11/66/99/b55c41d6.pdf
Despite the slide of the Swedish Crown, the tone of the Government is almost defiant (page 9):
“I september 2003 genomfördes en folkomröstning om Sverige skulle införa euron som valuta. Resultatet av folkomröstningen föranledde inga förändringar i penning- och valutapolitiken. Regeringen har ansvaret för övergripande valutapolitiska frågor och beslutar om växelkurssystemet medan Riksbanken ansvarar för tillämpningen av växelkurssystemet. Den nuvarande penning- och valutapolitiska regimen ligger fast. Sveriges erfarenheter av inflationsmål och rörlig växelkurs är mycket goda. En knytning av kronan till ERM2 är inte aktuell.”
In short, no change is in sight. Sweden does not contemplate joining the exchange rate mechanism (ERM II).
As long as the Commission continues to turn a blind eye, Sweden can flout the common rules.
***
There have been some reports that Iceland contemplates adopting the euro, but without EU membership. Iceland would also have to fulfil the Maastricht criteria, in itself a hard task given the present meltdown. But how would Iceland participate in the rudimentary economic governance within the euro group, to say nothing about other policy areas outside the current EEA deal?
Ralf Grahn
Britain has opted out of options.
***
Sweden is also outside the euro area, but without an opt-out. The Swedish Government did not bother to use the Lisbon Treaty negotiations to get one, but Sweden’s Government acts as if it had no obligation to adopt the euro currency.
Sweden’s updated convergence programme (Uppdatering av Sveriges konvergensprogram, November 2008) was published today:
http://www.regeringen.se/content/1/c6/11/66/99/b55c41d6.pdf
Despite the slide of the Swedish Crown, the tone of the Government is almost defiant (page 9):
“I september 2003 genomfördes en folkomröstning om Sverige skulle införa euron som valuta. Resultatet av folkomröstningen föranledde inga förändringar i penning- och valutapolitiken. Regeringen har ansvaret för övergripande valutapolitiska frågor och beslutar om växelkurssystemet medan Riksbanken ansvarar för tillämpningen av växelkurssystemet. Den nuvarande penning- och valutapolitiska regimen ligger fast. Sveriges erfarenheter av inflationsmål och rörlig växelkurs är mycket goda. En knytning av kronan till ERM2 är inte aktuell.”
In short, no change is in sight. Sweden does not contemplate joining the exchange rate mechanism (ERM II).
As long as the Commission continues to turn a blind eye, Sweden can flout the common rules.
***
There have been some reports that Iceland contemplates adopting the euro, but without EU membership. Iceland would also have to fulfil the Maastricht criteria, in itself a hard task given the present meltdown. But how would Iceland participate in the rudimentary economic governance within the euro group, to say nothing about other policy areas outside the current EEA deal?
Ralf Grahn
European Union: Social policy objectives
Social policy has been a contested area of European Community (European Union) policy at times. We look at social objectives among the general EU and EC aims before we present the objectives in the Title on social policy.
***
European Union objectives
Article 2 of the Treaty on European Union (TEU) first mentions the objectives to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of the treaty (in the latest consolidated version of the treaties OJ 29.12.2006 C 321 E).
.
***
European Community objectives
The European Community promotes a high level of employment and of social protection as well as equality between men and women.
According to Article 2 of the Treaty establishing the European Community (TEC) establishing a common market and an economic and monetary union as well as other Community policies and activities are means to those ends:
Article 2 TEC
The Community shall have as its task, by establishing a common market and an economic and
monetary union and by implementing common policies or activities referred to in Articles 3 and 4,
to promote throughout the Community a harmonious, balanced and sustainable development of
economic activities, a high level of employment and of social protection, equality between men and
women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence
of economic performance, a high level of protection and improvement of the quality of the
environment, the raising of the standard of living and quality of life, and economic and social
cohesion and solidarity among Member States.
***
Pursuant to Article 3(1)(j) the European Community includes a policy in the social sphere comprising a European Social Fund. According to the second paragraph, the Community aims to eliminate inequalities, and to promote equality, between men and women.
In the social policy area, too, the European Community acts within the limits of its conferred (attributed) powers and in accordance with the principles of subsidiarity and proportionality.
***
Social policy objectives
Current TEC
The headline of this post refers to the ‘European Union’, which can be defended if you look at the EU as a Greek Temple, with three pillars. More exactly, the subject matter belongs to the Community pillar (first pillar), but few readers seem to be that exact in their web searches. The term ‘European Community’ seems to have fallen into disuse, save for official documents and a few brave lawyers. I try to use the EU and the EC terms in a pragmatic manner, depending on the context.
In the current Treaty establishing the European Community (TEC), Title VIII on employment is followed by Title IX Common commercial policy and Title X Customs cooperation, before the start of the motley Title XI Social policy, education, vocational training and youth.
The existing Article 136 TEC (ex Article 117), in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/103, mentions the social policy objectives of the European Community:
.
TITLE XI
SOCIAL POLICY, EDUCATION, VOCATIONAL TRAINING AND YOUTH
CHAPTER 1
SOCIAL PROVISIONS
Article 136 TEC
The Community and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.
To this end the Community and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Community economy.
They believe that such a development will ensue not only from the functioning of the common market, which will favour the harmonisation of social systems, but also from the procedures provided for in this Treaty and from the approximation of provisions laid down by law, regulation or administrative action.
***
Original Lisbon Treaty (ToL)
The Treaty of Lisbon (ToL) is still on its rocky road to possible entry into force. Agreed and signed between 27 member state governments, it has by now been approved by the national parliaments in 25 member states ahead of the original target date for entry into force (1 January 2009). Among the parliamentary ratifiers, only the holder of the next Council Presidency, the Czech Republic, looks certain to miss the agreed target date.
In addition, Ireland is pondering its European future following the negative outcome of the 12 June 2008 referendum. (You can find updated references to materials of general European interest on the debate in the posts ‘Ireland and Lisbon Treaty’ and ‘UCD Dublin European Institute: Irleand’s Future in Europe’.)
Anyway, in some instances the Lisbon Treaty 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.
After moving Title IX Common commercial policy and Title X Customs cooperation, employment, social policy and the European Social Fund (ESF) would follow each other in a more logical order when the Lisbon Treaty is in force.
In addition, Title XI Social policy, education, vocational training and youth is divided into separate Titles, which makes the treaty easier to read.
Article 2, point 112 concerns the common commercial policy and point 113 customs cooperation.
SOCIAL POLICY
114) The heading of Title XI ‘SOCIAL POLICY, EDUCATION, VOCATIONAL TRAINING AND YOUTH’ shall be replaced by the heading ‘SOCIAL POLICY’, renumbered IX; the heading ‘Chapter 1 — Social provisions’ shall be deleted (OJ 17.12.2007 C 306/80).
Point 115 already inserted a new Article 136a, so there were no express or specific amendments to Article 136. Consequently, the main change was the new Social policy heading. Article 136 TEC underwent only horizontal amendments. The word ‘Community’ is replaced by ‘Union’, ‘common market’ is replaced by ‘internal market’ and ‘this Treaty’ is replaced by ‘the Treaties’, as elsewhere in the Treaty of Lisbon.
***
Renumbering
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 Article 136 TEC and TFEU (ToL) was to be renumbered Article 151 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/216).
***
Consolidated Lisbon Treaty
Article 151 of the Treaty on the Functioning of the European Union (TFEU) takes over the contents of the existing Article 136 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 115/114, looks like this:
TITLE X
SOCIAL POLICY
Article 151 TFEU
(ex Article 136 TEC)
The Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonization while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.
To this end the Union and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy.
They believe that such a development will ensue not only from the functioning of the internal market, which will favour the harmonisation of social systems, but also from the procedures provided for in the Treaties and from the approximation of provisions laid down by law, regulation or administrative action.
***
Practical information about social policy issues
European Parliament Fact Sheet 4.8.1. Social and employment policy presents the historical development and the main features of EC social policy:
http://www.europarl.europa.eu/facts/4_8_1_en.htm
***
The Commissions web page The Social Policy Agenda (2006–2010) gives a description of the social policy objectives and priority areas (last update 25.04.2005):
http://europa.eu/scadplus/leg/en/cha/c10127.htm
***
An updated view of the social agenda is presented by the joint opinion by the Social Protection Committee (SPC) and the Employment Committee (EMCO) on the Renewed Social Agenda, as adopted by the two committees on 14 and 27 November 2008, respectively:
http://register.consilium.europa.eu/pdf/en/08/st16/st16495.en08.pdf
***
The relevant Council formation is Employment, Social Policy, Health and Consumer Affairs, known by the acronym EPSCO. Until the next meeting, on 15 and 16 December, the latest Conclusions are from the meeting held on 2 October 2008 (document 13405/08):
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/lsa/103181.pdf
Ralf Grahn
***
European Union objectives
Article 2 of the Treaty on European Union (TEU) first mentions the objectives to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of the treaty (in the latest consolidated version of the treaties OJ 29.12.2006 C 321 E).
.
***
European Community objectives
The European Community promotes a high level of employment and of social protection as well as equality between men and women.
According to Article 2 of the Treaty establishing the European Community (TEC) establishing a common market and an economic and monetary union as well as other Community policies and activities are means to those ends:
Article 2 TEC
The Community shall have as its task, by establishing a common market and an economic and
monetary union and by implementing common policies or activities referred to in Articles 3 and 4,
to promote throughout the Community a harmonious, balanced and sustainable development of
economic activities, a high level of employment and of social protection, equality between men and
women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence
of economic performance, a high level of protection and improvement of the quality of the
environment, the raising of the standard of living and quality of life, and economic and social
cohesion and solidarity among Member States.
***
Pursuant to Article 3(1)(j) the European Community includes a policy in the social sphere comprising a European Social Fund. According to the second paragraph, the Community aims to eliminate inequalities, and to promote equality, between men and women.
In the social policy area, too, the European Community acts within the limits of its conferred (attributed) powers and in accordance with the principles of subsidiarity and proportionality.
***
Social policy objectives
Current TEC
The headline of this post refers to the ‘European Union’, which can be defended if you look at the EU as a Greek Temple, with three pillars. More exactly, the subject matter belongs to the Community pillar (first pillar), but few readers seem to be that exact in their web searches. The term ‘European Community’ seems to have fallen into disuse, save for official documents and a few brave lawyers. I try to use the EU and the EC terms in a pragmatic manner, depending on the context.
In the current Treaty establishing the European Community (TEC), Title VIII on employment is followed by Title IX Common commercial policy and Title X Customs cooperation, before the start of the motley Title XI Social policy, education, vocational training and youth.
The existing Article 136 TEC (ex Article 117), in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/103, mentions the social policy objectives of the European Community:
.
TITLE XI
SOCIAL POLICY, EDUCATION, VOCATIONAL TRAINING AND YOUTH
CHAPTER 1
SOCIAL PROVISIONS
Article 136 TEC
The Community and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.
To this end the Community and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Community economy.
They believe that such a development will ensue not only from the functioning of the common market, which will favour the harmonisation of social systems, but also from the procedures provided for in this Treaty and from the approximation of provisions laid down by law, regulation or administrative action.
***
Original Lisbon Treaty (ToL)
The Treaty of Lisbon (ToL) is still on its rocky road to possible entry into force. Agreed and signed between 27 member state governments, it has by now been approved by the national parliaments in 25 member states ahead of the original target date for entry into force (1 January 2009). Among the parliamentary ratifiers, only the holder of the next Council Presidency, the Czech Republic, looks certain to miss the agreed target date.
In addition, Ireland is pondering its European future following the negative outcome of the 12 June 2008 referendum. (You can find updated references to materials of general European interest on the debate in the posts ‘Ireland and Lisbon Treaty’ and ‘UCD Dublin European Institute: Irleand’s Future in Europe’.)
Anyway, in some instances the Lisbon Treaty 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.
After moving Title IX Common commercial policy and Title X Customs cooperation, employment, social policy and the European Social Fund (ESF) would follow each other in a more logical order when the Lisbon Treaty is in force.
In addition, Title XI Social policy, education, vocational training and youth is divided into separate Titles, which makes the treaty easier to read.
Article 2, point 112 concerns the common commercial policy and point 113 customs cooperation.
SOCIAL POLICY
114) The heading of Title XI ‘SOCIAL POLICY, EDUCATION, VOCATIONAL TRAINING AND YOUTH’ shall be replaced by the heading ‘SOCIAL POLICY’, renumbered IX; the heading ‘Chapter 1 — Social provisions’ shall be deleted (OJ 17.12.2007 C 306/80).
Point 115 already inserted a new Article 136a, so there were no express or specific amendments to Article 136. Consequently, the main change was the new Social policy heading. Article 136 TEC underwent only horizontal amendments. The word ‘Community’ is replaced by ‘Union’, ‘common market’ is replaced by ‘internal market’ and ‘this Treaty’ is replaced by ‘the Treaties’, as elsewhere in the Treaty of Lisbon.
***
Renumbering
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 Article 136 TEC and TFEU (ToL) was to be renumbered Article 151 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/216).
***
Consolidated Lisbon Treaty
Article 151 of the Treaty on the Functioning of the European Union (TFEU) takes over the contents of the existing Article 136 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 115/114, looks like this:
TITLE X
SOCIAL POLICY
Article 151 TFEU
(ex Article 136 TEC)
The Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonization while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.
To this end the Union and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy.
They believe that such a development will ensue not only from the functioning of the internal market, which will favour the harmonisation of social systems, but also from the procedures provided for in the Treaties and from the approximation of provisions laid down by law, regulation or administrative action.
***
Practical information about social policy issues
European Parliament Fact Sheet 4.8.1. Social and employment policy presents the historical development and the main features of EC social policy:
http://www.europarl.europa.eu/facts/4_8_1_en.htm
***
The Commissions web page The Social Policy Agenda (2006–2010) gives a description of the social policy objectives and priority areas (last update 25.04.2005):
http://europa.eu/scadplus/leg/en/cha/c10127.htm
***
An updated view of the social agenda is presented by the joint opinion by the Social Protection Committee (SPC) and the Employment Committee (EMCO) on the Renewed Social Agenda, as adopted by the two committees on 14 and 27 November 2008, respectively:
http://register.consilium.europa.eu/pdf/en/08/st16/st16495.en08.pdf
***
The relevant Council formation is Employment, Social Policy, Health and Consumer Affairs, known by the acronym EPSCO. Until the next meeting, on 15 and 16 December, the latest Conclusions are from the meeting held on 2 October 2008 (document 13405/08):
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/lsa/103181.pdf
Ralf Grahn
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