Social policy provisions of draft EU constitutional Treaty examined

In July 2003, a draft EU Constitutional Treaty was presented by the European Convention. The new Treaty, which will repeal existing Treaties once it comes into force, has a number of implications for the future social and employment policy of the EU. This article examines the main changes proposed.

In the light of the fact that the European Union will admit 10 new Member States in May 2004, thus enlarging its membership from 15 to 25 countries, work has been progressing on a revision of the various EU Treaties. The aim is mainly to streamline the workings of the EU but also to simplify the Treaties and make the EU more accessible to its citizens. The European Convention- chaired by Valéry Giscard d’Estaing, the former French President - was charged with reviewing the Treaties and proposing changes. The Convention began its work in February 2002 (EU0305203N and EU0201231N) and concluded it with the presentation of a complete draft of a new constitutional Treaty in the summer of 2003. A preliminary version of the draft was submitted to the Thessaloniki European Council meeting in June 2003 (EU0307204F), after which a final version was published on 10 July 2003 and submitted to the President of the European Council in Rome on 18 July.

Main provisions of the new draft Treaty

The draft Treaty establishing a Constitution for Europe, is divided into four parts, as follows:

  • Part I, which sets out the definition and objectives of the Union. It also lays down the workings of the EU’s institutions;
  • Part II, which incorporates the Charter of Fundamental Rights of the European Union, which was approved by the Council (EU0011278N),European Parliament (EU0012284N) and European Commission in 2000;
  • Part III, which sets out the policies and functioning of the Union; and
  • Part IV, which contains a number of final provisions.

The new text comprises a single Treaty, replacing the previous grouping of the Union's policy and work under a range of different 'pillars'. Once in force, the new constitutional Treaty will repeal the Treaty on the European Union (TEU), the Treaty establishing the European Community (TEC) and the acts and treaties which have supplemented or amended them.

The draft new Treaty refers throughout to the European Union rather than the Community, giving it a single legal personality which, it is hoped, will enable it to take on a higher international profile. Other changes of terminology include a reference to 'European laws' rather than Regulations, 'European framework laws' rather than Directives and the social partners, rather than 'management and labour'.

Definitions and objectives of the Union

Part I sets out the key definitions and objectives of the Union, including its values. Most of these objectives and values are taken from the existing Treaties, although there is arguably more of an emphasis on non-discrimination in the new text. Thus, the values listed in Article I-2 include 'respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights'. It also makes reference to a society based on a range of values, including non-discrimination.

In Article I-3, the draft Treaty lists full employment as one of the objectives of the Union (the existing TEU refers to a high level of employment), along with combating social exclusion and discrimination, promoting equality between women and men and solidarity between generations.

Article I-4 lists the Union’s fundamental freedoms and states that any discrimination on grounds of nationality shall be prohibited.

Article I-14 deals with the coordination of economic and employment policies, stating that the Union shall 'adopt measures to ensure coordination of the employment policies of the Member States, in particular by adopting guidelines for these policies'. This is a reference to the European employment strategy, which has been in existence since 1997 (EU9711168F).

Role of the social partners

Specific reference is made to the role of the social partners in the European Union. Accordingly, Article I-47 states that: 'The European Union recognises and promotes the role of the social partners at Union level, taking into account the diversity of national systems; it shall facilitate dialogue between the social partners, respecting their autonomy.'

Fundamental rights

Part II of the draft Treaty contains the Charter of Fundamental Rights of the European Union, which was originally drawn up in 2000 but not given legally binding status at that time. The incorporation of the Charter into the Treaty will give it legal status. The preamble notes that it is necessary to strengthen the protection of fundamental rights 'in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter'.

The Charter sets out a range of rights, freedoms and principles for EU citizens. In the employment and industrial relations area, the key points include:

  • freedom of assembly and association;
  • freedom to choose an occupation and the right to engage in work;
  • a right not to be discriminated against;
  • a right to equality between men and women, including in the areas of employment, work and pay;
  • a worker’s right to information and consultation within an undertaking;
  • the right of collective bargaining and action;
  • the right of access to placement services;
  • the right to protection in the event of unjustified dismissal;
  • the right to fair and just working conditions;
  • a ban on child labour; and
  • protection of young people at work.

Title VII of the Charter, which deals with its interpretation and application, allows limitations on the exercise of its rights and freedoms if provided for by law and if they respect the essence of those rights and freedoms. These limitations may be made 'only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others'. Further, it is stated that the fundamental rights in the Charter shall be interpreted in harmony with the constitutional traditions of Member States (for reactions to these interpretation clauses, see below).

EU policies and functioning

Part III of the proposed Treaty governs the policies and functioning of the Union. In its 'clauses of general application' (Title I), it states that in the activities referred to in this part of the Treaty, the Union shall aim to eliminate inequalities and to promote equality between men and women. It also states that the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

Title II of this part of the draft Treaty is devoted to non-discrimination and citizenship, with the non-discrimination provisions currently set out in Article 13 of the TEC now contained in Article III-8.

Employment and social policy chapters

The draft Treaty's 'employment chapter' is contained in title III, chapter III, Articles III-97–102. There are no significant substantive changes to this chapter, compared with the current provisions.

The social policy provisions of the draft Treaty are contained in Articles III-103–112. It lists the social policy areas in which the Union is committed to supporting the actions of Member States as follows:

(a) improvement in particular of the working environment to protect workers’ health and safety;

(b) working conditions

(c) social security and social protection of workers;

(d) protection of workers where their employment contract is terminated;

(e) the information and consultation of workers;

(f) representation and collective defence of the interests of workers and employers, including co-determination (although not in the areas of pay, the right of association, the right to strike or the right to impose lock-outs);

(g) conditions of employment for third-country nationals legally residing in Union territory;

(h) the integration of persons excluded from the labour market;

(i) equality between men and women with regard to labour market opportunities and treatment at work;

(j) the combating of social exclusion; and

(k) the modernisation of social protection systems.

Under the provisions of the draft Treaty, legal instruments drawn up in these fields are subject to qualified majority voting (QMV) in Council and co-decision with the European Parliament (EP), with the exception of laws in the areas covered by paragraphs (c), (d), (f) and (g), which are subject to unanimity in the Council and consultation with the EP. However, the draft states that the Council may unanimously adopt a European decision (based on a proposal from the Commission) to apply what the Treaty terms the 'ordinary legislative procedure' (set out in Article III-302) – ie the co-decision procedure, subject to QMV in Council – in the case of the areas outlined in (d), (f) and (g) above.

One area where there is a straight switch from Council unanimity to QMV is the field of social security for migrant workers. The proposed new provisions are contained in Article III-21.

All of this effectively means that QMV is extended to one extra area – the field of social security for migrant workers. Further, if a unanimous Council decision is made allowing this, QMV may be extended to the areas of: protection of workers where their employment contract is terminated; the representation and collective defence of the interests of workers and employers, including co-determination; and conditions of employment for third-country nationals legally residing in Union territory.

Vocational training

Articles III-182–183 deal with the issue of vocational training, containing no major substantive differences from the wording of these Articles as set out in the TEC, with the exception of a specific reference to sport in the context of education, vocational training and youth.

Enhanced cooperation

The draft Treaty allows a smaller group of Member States (at least a third of the Member States) to get together to progress a particular issue in any area among themselves, although the process in the case of common foreign and security policy is more complicated. The draft Treaty states that authorisation to proceed with this will be granted by the Council of Ministers as a last resort where 'the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole'. This means that a smaller group of Member States can decide to use the QMV process in areas subject to unanimity, in order to progress particular legal instruments, which would then apply to those Member States only.

This is not a new process, as it was provided for by the Amsterdam and Nice Treaties, although the TEU as amended in Nice states that a minimum of eight Member States must participate in enhanced cooperation, which is more than one third, in the context of an EU made up of 15 Member States. However, this mechanism has not as yet been used. It remains to be seen whether this process – which has clear implications for social policy in that a smaller group of countries could theoretically adopt proposals by QMV which would then apply to them and not to the other countries – will be made use of.

Reactions

The European Trade Union Confederation (ETUC) has given the draft constitutional Treaty a guarded welcome, stating that 'clear progress has been made in areas on the trade union agenda ... the benchmark values of social justice, equality and solidarity, and the Union’s objectives of full employment, a social market economy and sustainable development are in line with our demands'. It also praises the incorporation of the Charter of Fundamental Rights of the EU and the enhanced recognition given to the role of the social partners and social dialogue process. However, ETUC criticises what it perceives as a failure to make progress on a number of issues, including the wider extension of qualified majority voting.

The Union of Industrial and Employers’ Confederations of Europe (UNICE) has also welcomed the draft, stating that it 'represents a satisfactory balance between economic and social aspects.' It is particularly pleased with the official recognition of the nature and role of the social partners and the social dialogue process.

The future

This draft Treaty will now form the basis of work to be carried out by an Intergovernmental Conference (IGC), which will be launched in October 2003. It is hoped that the IGC will complete its work on the final version of the Treaty by December 2003, in order to allow a new Treaty to be signed as soon as possible after 1 May 2004, the date from which the 10 new Member States will join the Union. In any case, it is hoped that the new Treaty will be signed before the next elections to the European Parliament, due to take place in June 2004.

Once the new Treaty is in force, the existing TEU and the TEC will be repealed, alongside all their amending treaties and acts.

Commentary

The drawing up of this new draft Treaty represents without doubt a major step forward in the development of the European Union. It will also have some limited influence on social and employment policy in the future. The main areas of innovation here centre on the extension of QMV to the area of social security for migrant workers and the possibility of extending it, by unanimous Council decision, to: the protection of workers where their employment contract is terminated; the representation and collective defence of the interests of workers and employers, including co-determination; and conditions of employment for third-country nationals legally residing in Union territory. One other way in which qualified majority voting may be extended to a range of social policy areas in the future is if a group of Member States decided to use the 'enhanced cooperation' provisions set out above.

One other area of debate is the inclusion of the Charter of Fundamental Rights of the EU into the text of the Treaty, giving it legal status. The rights, freedoms and principles set out in the Charter largely bring together the rights already enshrined in existing Community Treaties and legal instruments such as Directives and many clauses have a proviso attached to them that they should be interpreted in accordance with national laws and practices. Further, interpretation clauses at the end of the Charter allow limitations on the exercise of its rights and freedoms if provided for by law and if they respect the essence of those rights and freedoms. These interpretation clauses have been viewed with some suspicion by trade unions, with ETUC stating that 'they will limit [the Charter’s] practical benefits to workers and citizens in general'. Commentators note that the situation regarding the interpretation of the Charter will become clearer only once the European Court of Justice (ECJ) has begun to interpret it. (Andrea Broughton, IRS)

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