European social dialogue and implementation of agreements
Article 155 (2) TFEU provides two ways to implement EU social dialogue agreements: either by implementation via Council Directive, or ‘in accordance with the procedures and practices specific to management and labour and the Member States’, the so-called ‘voluntary route’.
This dual process of implementation of European social dialogue agreements signals emphatically the European social dialogue’s industrial relations origins. The first and second mechanisms of Article 155(2) TFEU may be seen as functionally equivalent: the first uses constitutional mechanisms of EU legislation to require Member States to implement agreements and the second uses industrial relations mechanisms to articulate the EU social dialogue with national collective bargaining systems to achieve erga omnes effects. Yet, both are essentially extension mechanisms for EU level social dialogue agreements: that is their function. The genius of ‘European’ labour law was creatively to develop a synthesis of the different conceptual apparatuses of industrial relations and constitutional law appropriate to achieve this function in the evolving European social dialogue.
By Council Directive
The implementation of agreements resulting from European social dialogue is laid down in Article 155(2) TFEU: ‘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 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 very last sentence regarding the involvement of the European Parliament was introduced by the Treaty of Lisbon.
The second option leads in practice to implementation of the European collective agreement by Council Directive. This option is only open ‘in matters covered by Article 153’, i.e. in social matters for which the EU has regulatory competence.
The European social partners who signed the agreement will ask the Commission to propose to the Council the implementation of the agreement. The Commission provides an explanatory memorandum on any proposal presented to the Council, giving its comments and assessment of the agreement concluded by the social partners. On this basis, the Council – by qualified majority voting, or by unanimity, according to its legislative competence provided in Article 153 TFEU – will decide to incorporate the collective agreement into a Council Directive. The Council can still decide not to implement the agreement by directive. Yet, it is unable to change the content of the agreement. In order to respect the autonomy of the social partners, the Commission has stated that it would withdraw the proposal for implementation in case the Council intended to change the content.
If the collective agreement is implemented by Council Directive, its effects will be extended erga omnes and the Member States will have to ensure the implementation of the directive. As for all directives, including those implementing European collective agreements, a Member State may opt to ensure implementation by recourse to collective agreement(s) at national level, taking into account that the Member State ultimately retains responsibility for guaranteeing the objectives established by the directive (Article 153 paragraph 3 TFEU).
The Court of First Instance (CFI) has formulated a specific view of the legal nature of the EU social dialogue, in the case Union Européenne de l’Artisanat et des Petites et Moyennes Entreprises (UEAPME) v. Council of the European Union, Case T-135/96 [1998] ECR II-2335. The case concerned a challenge to the Parental Leave Directive 96/34/EC of 3 June 1996 on the Framework Agreement on parental leave concluded by UNICE (now BusinessEurope), CEEP and ETUC and revised in 2009.
The CFI equates the implementation of framework agreements by Council Directive with the normal legislative process. This vision has important constitutional implications. According to the CFI, ‘the principle of democracy on which the Union is founded requires – in the absence of the participation of the European Parliament in the legislative process [as is the case when implementing collective agreements by Council Directive on the basis of Article 155 (2) TFEU] – that the participation of the people be otherwise assured, in this instance through the parties representative of management and labour who concluded the agreement’. In order to make sure that that requirement is complied with, the Commission and the Council are ‘under a duty to verify that the signatories to the agreement are truly representative.’ While the CFI identifies the social partners as bearing the representative value ensuring respect of the democratic principle, it also stresses the importance of the EU institutions in scrutinising the European social partners and the legitimacy of agreements in order to be implemented by Council Directive.
This view on the social dialogue has been criticised as not respecting the autonomy of the social partners and ignoring the fact that Article 155 TFEU has its conceptual roots not exclusively in the political legal traditions of constitutional arrangements but also in those of industrial relations.
Thus, it has been argued that, rather than equating implementation of collective agreements by Council Directive with the normal legislative process, the social dialogue procedure of Article 155 TFEU (with both its ‘voluntary route’ and ‘implementation by Council decision’) should be considered as distinctive from the normal legislative procedure (Article 153 TFEU) due to its particular conceptual roots in industrial relations.
By the ‘voluntary route’
The Commission has set out its view on this voluntary route in its first Communication on the European social dialogue (COM (93) 600 final, Brussels, 14 December 1993). The Commission appeared to regard the obligatory implementation of social dialogue agreements required by Article 155(2) TFEU as consisting of the fact only that, ‘the terms of this agreement will bind their members and will affect only them and only in accordance with the practices and procedures specific to them in their respective Member States’.
This recognition by the Commission of the legally binding articulation of ‘agreements concluded at Community level’ with ‘procedures and practices specific to management and labour’ is important. However, it appears to limit coverage to those who are party to the collective agreements, a view articulated by the Member States in a Declaration they attached to Article 139 (2) EC) (now 155(2) TFEU):
The [Member States declare] that the first of the arrangements for application of the agreements between management and labour at Community level – referred to in Article [139(2) EC] – will consist in developing, by collective bargaining according to the rules of each Member State, the content of the agreements, and that consequently this arrangement implies no obligation on the Member States to apply the agreements directly or to work out rules for their transposition, nor any obligation to amend national legislation in force to facilitate their implementation.
See also: European collective agreements; European sectoral social dialogue; European social dialogue; European social dialogue and implementation of agreements; European social partners; EU system of industrial relations; framework agreements; joint opinions; open method of coordination.