In the EU context, the term ‘voluntary agreement’ usually refers to an agreement which is not the result of a political decision-making process exclusively within the framework of the official EU institutions (European Commission, Council of the European Union, European Parliament – that is, the so-called Community method) but mainly the outcome of negotiations between social partner organisations which are legitimised to produce such agreements by EU legislation. The chief charachetistic of voluntary agreements is that they are not enshrined in EU law.
Since the 1990s, the EU has been developing a new regulatory policy, which increasingly puts emphasis on the use of alternative instruments that are complementary to traditional legislation. These alternative instruments which are of a less compelling or non-governmental nature are often labelled with the general terms of ‘soft law’, ‘self-regulation’ and/or ‘co-regulation’. ‘Voluntary agreements’ are a typical result of these alternative forms of governance. The aim of diversifying the regulatory instruments has been mainly to enhance the effectiveness, legitimacy and transparency of EU action and to follow the principles of conferred powers, subsidiarity and proportionality in the EU legislative process.
The European social dialogue is one of the major examples of this new mode of ‘alternative’ governance; in its 2002 Communication ‘The European Social Dialogue, a force for innovation and change’ (COM(2002) 341 final, 26 June 2002), the Commission states that the social dialogue is a ‘key to better governance’ and asks for an increased level of involvement of the social partners ‘on a voluntary basis’. The 2004 Communication, ‘Partnership for change in an enlarged Europe – enhancing the contribution of European social dialogue’ (COM(2004) 557 final, 12 August 2004), puts special emphasis on voluntary agreements (termed ‘autonomous agreements’ by the Communication).
On 25 January 2006, the EU-level negotiating teams of BusinessEurope (formerly UNICE)/UEAPME, CEEP and ETUC agreed on a proposal for a second work programme for 2006–2008. The aim of this second EU social dialogue work programme was to promote growth, jobs and the modernisation of the European social model. The 2006–2008 work programme also included the conclusion of two ‘autonomous’ framework agreements similar to those on telework and work-related stress. One framework agreement was that on harassment and violence at work (signed on 26 April 2007); the other accord will be on either disadvantaged workers or lifelong learning. As for the terminology, the social partners decided to keep the notion of ‘voluntary agreement’ for the previous accords (telework and stress), but to switch to the term ‘autonomous agreements’ for future European framework agreements.
Those ‘autonomous agreements’ are ‘voluntary’ in that they are concluded, with or without Commission initiative, but are not to be implemented through the method of a Council decision under Article 155(2) TFEU, although, according to that provision, they ‘shall be implemented … in accordance with the practices and procedures specific to management and labour and the Member States’. Examples of cross-industry autonomous agreements relate – as already mentioned – to telework (2002), work-related stress (2004), harassment and violence at work (2007) and inclusive labour markets (2010). There are also autonomous agreements at the sectoral level – e.g. the ‘Agreement on the European licence for drivers carrying out a cross-border interoperability service’ (2004); so far, only one multi-sector agreement – the ‘Agreement on workers health protection through the good handling and use of crystalline silica and products containing it’ (2006) – has been concluded.