EurWORK European Observatory of Working Life

EPSU case

Definition

The case EPSU v European Commission refers to a dispute on information and consultation rights for public sector workers involving the trade union federation EPSU (European Public Service Union). EPSU launched a legal action in May 2018 against the refusal of the European Commission to put forward their Social Partner Agreement for adoption as a European Directive (Judgment T-310/18, EPSU and Goudriaan v Commission). On 24 October 2019, the General Court of the European Union ruled in favour of the Commission, concluding that the Commission’s right of initiative means it can decide on whether or not to make social partner agreements legally binding in all EU Member States.

Background and status

In the context of Articles 154 and 155 of the Treaty on the Functioning of the European Union (TFEU), EPSU’s challenge questioned whether the Commission can refuse to submit a proposal to the Council for a decision. In this case, the proposal would seek legislation to ensure that all employers and employees in the European Union or in a specific sector are covered by a collective agreement concluded by the European social partners.

The case dates back to 2015, when the Commission invited the European social partners to express their views on the possible consolidation of three directives on information and consultation rights, on the basis of Article 154(2) TFEU. As part of the consultation, these directives would potentially be extended to civil servants and public administration employees. The social partners sitting on the social dialogue committee for central government administrations – the Trade Unions’ National and European Administration Delegation (TUNED) and the European Public Administration Employers (EUPAE) – informed the Commission of their wish to negotiate and conclude an agreement on the basis of Article 155(1) TFEU. They reached an agreement in December 2015.

Regulatory aspects

In line with the usual procedure, the signatories to the agreement sent a letter to the Commission asking it to submit a proposal for a decision to the Council with a view to implementing the agreement at union level by a directive adopted on the basis of Article 155(2) TFEU. This article stipulates that:

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 (i.e. in social matters for which the EU has regulatory competence), 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 signatories received a response two years later, when the Commission declined to present the agreement to the Council. The Commission gave three reasons for its decision.

  1. Central government administrations are placed under the authority of the governments of the Member States. They exercise prerogatives of public authority and their structure, organisation and functioning are entirely the responsibility of the Member States.
  2. Provisions ensuring a certain degree of information and consultation of officials and employees of these administrations already exist in many Member States.
  3. The importance of these administrations depends on the degree of centralisation or decentralisation of the Member States. If the agreement were to be implemented by a Council decision, therefore, the level of protection of civil servants and public administration employees would vary considerably between Member States.

This decision was challenged before the EU Court by one of the signatories – EPSU – on behalf of TUNED. EPSU alleged, on the one hand, an error of law as to the scope of the Commission’s powers and, on the other hand, that the reasons for the contested decision were insufficient and incorrect. According to EPSU, it is exactly because central government administrations are diverse that the principle of subsidiarity would not apply, and the EU directive is needed to ensure common minimum standards.

In response to the error of law, the Court proposed literal, contextual and then teleological interpretations of Article 155(2).

In the literal analysis, the Court stated:

It must be observed … that Article 155(2) does not explicitly state whether, when it receives a joint request of the signatory parties seeking the implementation of an agreement at EU level, the Commission is required to submit a proposal for a decision to the Council to that effect or whether, on the contrary, it may refuse to submit such a proposal to the Council.

Furthermore, after examining the preparatory work relating to the creation of Article 155(2), the Court noted that its words do not imply that the Commission is obliged to submit a proposal for a decision to the Council when it receives a joint request to that effect by the signatory parties.

In its contextual analysis, the Court considered that the Commission is free to present or not a proposal for a decision to the Council but is under no obligation to do so. Article 17(3) TEU states that the Commission can carry out its responsibilities ‘independently and without receiving instructions from whomsoever’, which might prevent it from completely fulfilling its role of promoting the general interest of the European Union.

The Court also pointed out that the Commission represents the general interest, whereas the social partners represent ‘only one part of multiple interests that must be taken into account in the development of the social policy of the European Union’It is therefore normal that the Commission must ‘assess whether implementation of the agreement at EU level is appropriate, including by having regard to political, economic and social considerations’.

Finally, according to the teleological interpretation, the institutions, and in particular the Commission, must ‘refrain from any conduct aimed at directly influencing the course of the negotiations or imposing the principle or content of an agreement on the social partners’.

Once the agreement has been reached and the signatories ask the Commission to submit a decision to the Council, ‘the Commission once again has a right to act and resumes control of the procedure’.

In January 2020, EPSU’s executive committee decided to appeal the decision, on the grounds that central government workers are excluded from existing EU Directives setting out minimum standards on fundamental workers’ rights to be informed and consulted on changes that are of direct concern to them, such as job cuts or digitalisation.

Related dictionary terms

European collective agreements European Commission European Court of Justice European industry federation European social dialogue European social model European social partners framework agreements information and consultation representativeness social dialogue Treaty on the Functioning of the European Union

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