Opinion on relations between the EU and the International Labour Organization (ILO) ()

(95/C 102/03)

On 25 January 1994, the Economic and Social Committee, acting under the third paragraph of Article 23 of its Rules of Procedure, decided to draw up an Opinion on relations between the European Union and the International Labour Organization (ILO).

The Section for Social, Family, Educational and Cultural Affairs, which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 12 January 1995 (Rapporteur: Mrs Engelen-Kefer).

At its 322nd Plenary Session (meeting of 25 January 1995), the Economic and Social Committee adopted the following Opinion by a majority vote, with four abstentions.

There is a need for cooperation between the EU and the ILO with a view to the development of the social dimension in the EU. The Maastricht Treaty gave added weight to this aspect.

1. A dispute has been smouldering for several years between the EC Commission and most Member States about the EU's legislative competence in respect of the establishment of ILO standards. The Committee has drawn attention to this issue in a number of earlier Opinions. This dispute revolves around the Commission's demand that, when exercising their powers within the ILO, the EU Member States be bound by earlier decisions taken by the EU Council of Ministers. In making this demand the Commission, in the Committee's view, fails to recognize that there is a qualitative difference between the ILO's standardization work and the EU's legislative role. Whilst EU Regulations or Directives are legally binding upon the Member States (or become legally binding after a transitional period), the incorporation of ILO Conventions into national law is optional. In its Opinion on the Second Report on the Application of the Community Charter of Fundamental Social Rights of Workers, the Committee examined in detail the Opinion issued by the European Court of Justice on 19 March 1993. The Court's Opinion concerned the competence of the EU and the Member States with regard to the adoption of ILO Convention 170 on safety in the use of chemicals at work. The Court of Justice pointed out that the independent role of the EU Member States and the social partners - trade unions and employers' associations - must not be restricted. The Court of Justice, did, however, also rule, that in the case of Convention 170, competence was shared between the Member States and the European Union and that, as a consequence, they would have to cooperate closely in respect of the adoption of the said Convention. The Court's Opinion did not, however, answer the question whether the joint competence affirmed in the case of Convention 170 also applied in respect of other similar Conventions which overlap with EU legislation which sets out only minimum standards, for example Article 118a of the EU Treaty. Convention 170 also dealt with the packaging and labelling of chemical products for which legislation already exists under Article 100.

2. On the basis of the above provisions the Commission has submitted its proposal for a Council Decision on the exercise of the Community's external competence at International Labour Conferences in cases falling within the joint competence of the Community and its Member States. This proposal has, however, not been adopted by the Council. Nevertheless, the Commission seeks to act, to all intents and purposes, in accordance with this proposal. The Committee would make the following observations:

2.1. The Committee welcomes the clear recognition of the ILO's specific institutional characteristics - in particular the tripartite principle and the value of the ILO's work in the field of standards on a worldwide level. Point 1.3 of the introduction to the proposal for a Council Decision emphasizes the independent role played by both sides of industry in the ILO; the role of the ILO, which is defined in this point as being 'especially the creation of rules underpinning social progress at world level which are capable of being ratified by a very large number of countries'; and the attempt to bolster the ILO's procedures by avoiding an excessive 'bloc effect' brought about by EU action. This observation is particularly important in the light of the debate between the EC Commission and the EU Member States. The Committee stresses the importance of the cooperation between EU and ILO to promote technical assistance and expresses the firm hope that this would also be exercised in respect of social standards.

2.2. Under Article 1 of the ILO Constitution, its members shall comprise States which were members of the organization on 1 November 1945, together with States which at that time were members of the United Nations, or which subsequently joined the UN. States in the latter two categories have to communicate to the Director-General of the International Labour Office their formal acceptance of the obligations of the ILO Constitution. Membership of the ILO is also open to States which are not members of the UN, subject to the following provisions: such States shall apply for ILO membership; and their membership shall be endorsed by an International Labour Conference by a two-thirds majority. In both cases these States shall duly declare that they will comply with the obligations of the ILO Constitution. As the ESC noted in its 1992 Opinion, the EC was only able to join the ILO following a protracted integration process and steps had to be taken to ensure that, in the intermediary period, participation by the social partners at national level in the decision-making process of the ILO was not jeopardized.

2.3. The maintenance of effective consultation procedures involving the social partners at national level, as set out in Convention No 144, could be complemented by supplementary consultation procedures involving the European social partners. The welcome participation of ILO observers in the various European Commission consultative committees involving the social partners should also be strengthened.

3. Since the establishment of the ILO, its most important task has been to lay down internationally valid labour standards and social standards which its member countries would be recommended to accept and apply. The most important means for promoting the ratification of Conventions and the acceptance of recommendations is the obligation for ILO member countries, set out in the ILO Constitution, to bring the instruments in question before their legislative bodies and to inform the ILO of the measures which have been taken (Article 19 of the ILO Constitution). Under this Article, the Governments of the member countries are obliged to bring the standards adopted at the respective International Labour Conferences before their national legislature within a period of one year, or in exceptional circumstances, 18 months, after the closure of the Conference. The member countries are required to indicate the measures which may be taken and which are to be taken to incorporate these standards into their national legislation. Should the Conventions not be ratified, or the recommendations not followed, the Governments of the member countries are obliged to inform the Director-General of the International Labour Office, at intervals exceeding one year, of the obstacles to application of the instruments at national level, or of the measures which have been carried out, or are to be carried out with a view to attaining the objective. The Governments of the Member States are required to submit an Annual Report to the International Labour Office on the measures which they have taken to implement the provisions of Conventions to which they are a party. These reports are considered by a committee of experts set up, in part, for this purpose and they are also considered on a selective basis by the International Labour Conferences' committee on the implementation of Conventions and agreements. The latter committee meets on a yearly basis. Under the tripartite system adopted by the ILO - a principle which is virtually unknown in other international organizations - representatives of employers and workers have half the total number of votes in all the deliberations and decisions of each of the decision-making bodies. Convention 144 on tripartite consultation, which has been ratified by 11 of the 12 EU Member States, expressly stipulates, inter alia, that the 'most representative' associations representing employers and employees are to play an effective part in the deliberations on the abovementioned reports. The views expressed by the representatives of employers and employees may be included in the reports, attached to the reports or sent separately to the International Labour Office. The abovementioned views are at all events submitted by the Office together with the reports forwarded by the Governments. The Economic and Social Committee, on which employers and workers, together with Group III representatives are represented, wishes to express its considerable interest in the maintenance of the principle of tripartite organization at the ILO.

4. Although the EU is at present not in a position to become a member of the ILO, or to assume the attendant responsibilities, either independently or on behalf of the Member States, the Commission has, in its endeavours to achieve a coordinated approach, attempted on a number of occasions to limit the competence of the Member States and both sides of industry for drawing up, adoption, ratification, and implementation of the ILO's international labour standards.

- When the International Labour Conference was discussing Convention 153 (1979) concerning hours of work and rest periods in road transport, the European Community claimed the exclusive right to represent the EC Member States.

- The same thing happened in regard to Conventions covering the protection of workers and health protection at subsequent International Labour Conferences, even though EC provisions only partly covered the issues in question or were only at the project stage.

- In 1986 the EC Commission even initiated legal proceedings against the Council of Ministers for this reason before the Court of Justice. The action was withdrawn after a compromise was reached with the Council of Ministers. Under that decision the Commission was to be the competent body when subjects were discussed falling within the exclusive competence of the Community. A further issue in the dispute between the Commission and the Member States was of course the issue of how to define 'exclusive competence'. In the view of the Governments of the Member States, which the Court of Justice had endorsed in principle, subjects covered by Article 118a of the EU Treaty can never fall within the exclusive competence of the Community, as the Member States are expressly invited to adopt more far-reaching measures to protect workers going beyond the legal standards adopted under, for example, Article 118a.

5. The Committee finds it particularly disturbing that, first of all, the Commission has attempted to call into question the independent role exercised by the representatives of employers and workers in the various ILO procedures and decisions in accordance with the tripartite principle. In its written statement of request to the Court of Justice in respect of ILO Convention 170, the Commission went so far as to express the view that, under Article 228 and 5 of the EEC Treaty, representatives of employers and workers were obliged to provide the Commission with assistance, as under the ILO constitution, they acted not as representatives of both sides of industry but as representatives of the ILO member countries. The Commission held the view that since they were participants in negotiations on international agreements, representatives of employers' and workers' representatives were parties to the exercise of public authority.

6. In a memorandum dated 23 May 1987 the members of the Governing Body of the International Labour Office representing western European employers and workers provided a detailed explanation of their ongoing role in the ILO and their concerns regarding the EC Commission attempts to jeopardize this role; the representatives called upon the competent authorities of the EU to distance themselves from any attempt to jeopardize application of the tripartite principle in the ILO, or to form regional blocs, thereby destroying the organization's worldwide character.

6.1. The Committee wishes to strongly reaffirm the abovementioned concerns expressed by western European employers' and trade union delegates.

7. The observation made in point 4.5 of the introduction to the proposal for a Council Decision that 'ILO standards apply throughout the world and must be capable of being ratified and applied by the largest number of its member countries' is clearly acceptable. The Committee supports the endeavours which are clearly being made in this respect to enable both EU States and all other Member States of the ILO to ratify ILO Conventions. There may, however, be a danger here that the endeavour to achieve compatibility could become an unswerving desire to achieve compatibility, as described in the International Labour Office submission on the Commission's decision, which was noted by its Governing Body on 31 March 1994. We also welcome the expectation voiced in the submission with regard to the procedure for drawing up international labour standards that the effectiveness of the procedure for consulting both sides of industry at national level will not be restricted and that the deadlines set out in the Standing Orders will not be exceeded.

8. The Committee follows the example of the Governing Body in drawing attention to the thorny problem of ratification of Conventions. In point 4.1 of the introduction to the draft Council Decision, the Commission expresses the view, which is contrary to that held by the Member States' Governments, that in future most ILO Conventions will probably fall within the joint sphere of competence shared between the Community and its Member States. The conclusions of the Court of Justice are consequently to apply without distinction both to 'horizontally-shared competence' (i.e. in cases where the Convention involves an overlapping of exclusive and non-exclusive competence, as was the case with Convention 170) and 'vertically-shared competence' (i.e. where provisions of the Convention involve only areas of non-exclusive competence of both the Community and the Member States). The proposed provisions with regard to joint competence - considered in a very broad sense - define the necessary cooperation between the Member States and the Community; this is a particularly thorny problem. Point 5.5.2 of the introduction to the proposal for a Council Decision states that 'it is the responsibility of the Council, on a proposal from the Commission... to decide whether the Convention concerned should be concluded by the Community and its Member States and subsequently, as the case may be, to invite the Member States to conclude the Convention on behalf of the Community as well.' As was pointed out to the International Labour Office in Brussels on 9 March 1994, this very general wording actually means that in future the Member States of the EU will only be able to ratify ILO Conventions falling within joint competence as defined above, if they have obtained the approval of the competent authorities, i.e. the Commission and the Council of Ministers, on the basis of the appropriate majority. Ratification by individual Member States would therefore be practically out of the question even where the national legislation of that State met the conditions of the relevant Convention.

9. The Committee shares the considerable concern expressed by the ILO which has stated that this standpoint would significantly curtail the scope for ratifying Conventions. The Committee is therefore unable to accept the Commission proposal.

9.1. It would not be advisable to endeavour to solve this dispute by legal proceedings. Disputes over the interpretation of Treaty provisions in the EU can only be resolved by bringing them before the European Court of Justice whose decisions are, however, in no way binding upon ILO bodies. The issue at stake for the ILO is that the provisions of its Constitution should be observed and only the International Court of Justice is competent to give a ruling on this matter. Furthermore when the European Court of Justice gives its Opinion on disputes in this field, it is clearly not prepared to take account of obstacles in the ILO Constitution to the issuing of the Court's legal Opinions. The image of the EC Commission and the Council of Ministers engaging in litigation over their competence in matters relating to the ILO before the eyes of the world public represented at the ILO is extremely unsavoury.

10. A satisfactory solution can therefore only be secured by negotiations between all the parties concerned. The Committee recognizes in this respect that the representatives of employers and employees in the ILO, together with the ETUC and UNICE, have an obvious, legitimate interest in taking part in these negotiations.

11. It is moreover abundantly clear that there is a considerable discrepancy between, on the one hand, the Commission's attempt to increase its influence in the ILO and, on the other hand, the repeated calls to the Commission by the European Parliament and the Economic and Social Committee to draw on existing ILO standards when formulating its social policy. The Commission has repeatedly endeavoured to prevent the Member States from ratifying Conventions adopted by the International Labour Conferences, it has also played a major role in the denunciation by a number of Member States of Convention 89 on night working by women and Convention 96 on fee-charging employment agencies. The Commission has also so far failed to take any clear initiative to adjust the regulations concerning EU social provisions in the field of road transport. The ESC's Opinion of 22 February 1989, which was adopted with only a handful of votes against, lists a large number of ILO Conventions which have yet to be incorporated in EU provisions. The Committee calls upon the Commission and the Council of Ministers to follow these proposals and the decisions in similar vein adopted by the Heads of State and Government and the European Parliament. This would be far more useful than pursuing fruitless arguments over competence. The Committee suggests that it draw up an Own-initiative Opinion on the issue of which ILO Conventions should be proposed for ratification by the EU ()().

Done at Brussels, 25 January 1995.

The Chairman

of the Economic and Social Committee

Carlos FERRER

() OJ No C 126, 26. 5. 1989.