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European social dialogue via Articles 154-155 TFEU

As part of the policy of promoting the engagement of the European social partners in the formulation of EU social policy, Articles 154-155 TFEU (previously 138-139 of the EC Treaty) provide a procedure that combines the consultation of the social partners by the Commission with the option to leave social regulation to bipartite agreement between management and labour organised at European level. According to Article 154 TFEU, the Commission, before submitting proposals in the social policy field, has to consult management and labour on the possible direction of that Community action. Moreover, if, after such consultation, the Commission considers Community action advisable, it is obliged to consult management and labour on the content of the envisaged proposal.

The Commission, in its Communication concerning the application of the Agreement on Social Policy (COM (93) 600 final, Brussels, 14 December 1993), indicated that ‘management and labour’ are to be understood as the European social partner organisations, organised cross-industry or by sector. It defined criteria of representativeness and drew up a list (subject to regular revision) of organisations to be consulted under Article 154 TFEU, which currently consists of 57 organisations. In the course of the consultation, the social partners also address the question posed by Article 154 (4) TFEU: whether they wish to initiate the process provided for in Article 155 TFEU – the bipartite social dialogue, which may lead to contractual relations, including agreements.

The forms and contents of the responses of the social partners in this consultation phase may be very different. The Commission suggests that, ‘The formal consultation of the social partners provided for in Article [154 (3) TFEU] may lead to the adoption of opinions, recommendations or agreement-based relations (including agreements) within the social partners’ sphere of competence’.

If the social partners ask to deal with the issue by bipartite social dialogue, the Commission will suspend its legislative initiative. The bipartite dialogue may lead to contractual relations, including agreements (Article 155 (1) TFEU). If the social partners do not reach an agreement, the Commission can still decide to tackle the issue via the normal legislative procedure. If the social partners do reach an agreement, Article 155 (2) provides two ways to ensure its implementation: the ‘voluntary route’ relying on national procedures and practices specific to management and labour and the Member States; or the route via ‘implementation by Council decision’, which leads in practice to implementation by Council Directive including all legal consequences specific to the instrument of a directive. The procedures of Article 154-155 TFEU can be used to arrive at both intersectoral and sectoral agreements. For both types of agreements, implementation by Council decision or implementation via the voluntary route is possible.

The European social dialogue has led to both intersectoral and sectoral European collective agreements. Its outcomes are modest if compared to national systems of collective bargaining and social dialogue. Yet, the European social dialogue is a process that stipulates a relationship between collective bargaining and law specific to the EU that cannot simply be equated with such systems at the national level. First, it implies a flexible relationship between social dialogue at all levels and is contingent upon national traditions of social dialogue within the Member States. Second, collective bargaining and social dialogue within Member States is regarded as reflecting a balance of power between labour and capital, exercised traditionally through industrial conflict. The Treaty does not address even the possibility of industrial conflict at EU level. Indeed, Article 153 (5) TFEU seems explicitly to exclude regulatory competences on the right to strike, which would be most relevant.

The present prospect of the EU social dialogue implies rather a tripartite process: involving the social partners and the Commission/Community as a dynamic factor. An important role is played here by the procedure provided in Article 154 (2)–(4) TFEU, which links Commission initiative for potential legislative action to the possibility for adopting regulatory action by European collective agreements. In the absence of industrial conflict at EU level, the consultation of the social partners as part of the legislative process has important consequences for the dynamics of the European social dialogue. It creates a dynamic of ‘bargaining in the shadow of the law.’

The prospects of and incentives for negotiation and agreement depend on the social policy standard espoused by the Commission in its legislative proposals. Given the lack at the European level of the classic industrial weapons of strikes or lockouts to break any deadlock in bargaining, the stimulus provided by the Commission is very important. This imposes a heavy burden of responsibility on the Commission to promote the process of European social dialogue.

Since its creation in the Social Agreement, the social dialogue procedure (Articles 154-155 TFEU) has produced seven agreements at intersectoral level. Three have been transformed into directives relating to Framework agreements:

• Council Directive 96/34/EC of 3 June 1996 on the Framework Agreement on parental leave concluded by UNICE, CEEP and ETUC and revised in 2009
• Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and ETUC
• Council Directive 1999/70/EC of 28 June 1999 concerning the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP.

The European social dialogue via Article 154-155 TFEU may also result in autonomous agreements. An autonomous agreement is an agreement signed by the European social partners. Although not incorporated into a directive, it creates a contractual obligation for the affiliated organisations of the signatory parties to implement the agreement at each appropriate level of the national system of industrial relations:

• The fourth is the European Framework Agreement on Telework signed on 16 July 2002. It was the first time that the signatory parties were implementing an agreement in accordance with the procedures and parties specific to the social partners in the Member States
• The fifth is the European Framework Agreement on work-related stress concluded between ETUC, UNICE, UEAPME and CEEP on 8 October 2004
• The sixth is the European Framework Agreement on harassment and violence at work concluded by ETUC, BusinessEurope, UEAPME and CEEP on 26 April 2007
• the seventh is European Framework Agreement on inclusive labour markets concluded by ETUC, BusinessEurope, UEAPME and CEEP on 25 March 2010.

The intersectoral European social dialogue may also result in a failure to reach agreement. In the case of the social dialogue on European works councils, the failure to reach an agreement among the social partners resulted in a directive at the initiative of the Commission. Similarly, in the case of the failure of social dialogue on temporary agency work, the directive was finally enacted by the normal legislative route on 5 December 2008.

The European social dialogue procedure has also produced results at sectoral level. The most striking development of European sectoral social dialogue agreements emerged in a number of transport sectors as a result of negotiations following their initial exclusion from the Working Time Directive. In Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (as amended by Directive 2000/34/EC of 22 June 2000), Article 1(3) initially excluded most transport sectors from the scope of the directive. The intention was never that this should be a permanent exclusion, but that these sectors should reach social dialogue agreements at EU level adopting working time arrangements tailored to their exigencies. For example, this was accomplished by an agreement in the maritime sector on 30 September 1998, given legal effect by Directive 1999/63/EC and, for the civil aviation sector, by an agreement in March 2000, given legal effect by Directive 2000/79/EC.

In the rail sector, a sectoral social dialogue agreement was reached also on 30 September 1998. However, its translation into a directive was delayed because the EU social partners in the rail sector were unwilling to proceed unless and until a similar arrangement was made in the road transport sector. They feared competition, should lower standards in road transport give that sector an unfair competitive advantage. However, EU social dialogue in the road transport sector remained deadlocked, mainly over the issue of whether it should cover self-employed drivers. The deadlock was broken in the road transport sector only in February 2002 and took the form of Directive 2002/15/EC of 11 March 2002, which had to be implemented by March 2005.

See also: European collective agreements; European sectoral social dialogue; European social model; EU system of industrial relations; freedom of association; joint opinions; right of collective bargaining; right to take collective action; right to strike; strike action at EU level; transnational industrial action; tripartite concertation.