Harmonisation appears in the context of EU employment and industrial relations as an EU objective, originally stipulated in Article 117 of the EEC Treaty of 1957, now in Article 151TFEU:
‘The Union and the Member States, (…) 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 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 tomaintain 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.’
This provision reflects the ambivalence of harmonisation in EU social policy. Harmonisation is put forward as an objective to be made possible. However, it appears that harmonisation is to ensue as the passive result of the functioning of the common market, which favours harmonisation. The active use of procedures in the Treaty and approximation of laws is less clearly to be the instrument of harmonisation. In other words, as originally envisaged, harmonisation is a market process, not a legal process.
This reflects another ambivalence inherent in the concept of harmonisation: whether harmonisation of laws or harmonisation of substantive conditions is at issue. The harmonisation of laws does not necessarily imply the harmonisation of substantive conditions. Put differently, if harmonisation of conditions is aimed at, then different laws may be required. This is the result of a combination of two factors.
First, where similar labour laws are invoked, their effects on different industrial relations systems give rise to variable results. This is mirrored in the formal successes of harmonisation policy (e.g. the same directives applied in all Member States), but in the variable consequences in practice of this formal success.
Secondly, different industrial relations systems mean that the national labour laws invoked to deal with the problem are different. National labour laws are different precisely because of the differences in national industrial relations systems, and indeed, in different commercial and other environments.
The problems for harmonisation policy arise from differing industrial relations contexts, and differing formal labour laws. Formal harmonisation of laws may lead to differences in practice in different national environments; substantive harmonisation in the practice of Member States may require different laws to be adopted, which can accommodate the different national environments. This has been the major obstacle at which progress towards harmonisation as a legal policy of the Unionhas been halted.
Harmonisation was the social policy strategy adopted by the EU in the first Social Action Programme (SAP) of 1974; more than 30 measures were adopted over an initial period of three to four years. However, as the EEC Treaty of 1957 did not provide the necessary legal competences to intervene in the social field, social policy had to be justified as necessary to promote the common market. ‘Harmonisation’ of social policy was based on Article 94 EC (now Article 115 TFEU), which provided for approximation of laws that directly affect the establishment or functioning of the common market. Social policy harmonisation was deemed necessary to ensure a level playing field of fair competition in the common market.
Only when the EU gained competences in the field of employment and industrial relations, first in the Single European Act 1986 and then the Treaty of Maastricht 1992, could Community social initiatives be adopted without the need to justify them in terms of harmonisation of laws directly affecting the common market. Article 118a EEC, introduced by the SEA, allowed for EU directives aiming at the harmonisation of conditions in the area of health and safety of workers.