Opinion on the communication concerning the application of the Agreement on Social Policy presented by the Commission to the Council and to the European Parliament (94/C 397/17)

On 21 January 1994 the Commission decided to consult the Economic and Social Committee, under Article 198 of the Treaty establishing the European Economic Community, on the communication concerning the application of the Agreement on Social Policy presented by the Commission to the Council and to the European Parliament.

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 10 November 1994. The Rapporteur was Mr van Dijk.

At its 320th Plenary Session (meeting of 24 November), the Economic and Social Committee adopted the following Opinion by a majority vote in favour and 18 votes against, with 11 abstentions.

1. Scope of the Social Protocol Agreement

1.1.

Relation to Treaty of Rome

1.1.1. The situation of a 'Social Europe' divided into two threatens to undermine the unity of the social law of the Union, leads to different treatment of persons in the UK, and creates the potential for social dumping.

1.1.2. The Committee agrees with the Commission's view in paragraph 8: every effort should be made to incorporate an improved version of the Agreement into the Treaty at the 1996 Intergovernmental Conference, as it is stated by the European Parliament.

1.2.

The Protocol and the 'acquis communautaire'

1.2.1. The Protocol and Agreement comprise a major extension of the Community's powers in the social field as regards the 11 Member States party to the Agreement. This implies the proposal of measures going beyond (hence 'without prejudice to') the present 'acquis communautaire', based on the powers in the EC Treaty to which that acquis was restricted, and henceforth engaging the new legal powers.

1.3.

Dual subsidiarity

1.3.1. In the Maastricht Treaty the principle of subsidiarity is introduced. The European Parliament has distinguished two separate meanings of this principle: vertical and horizontal subsidiarity. With vertical subsidiarity the EP refers to the division of competences between different levels of authorities: European, national or regional level. Horizontal subsidiarity refers to the division of responsibilities between the social partners and the authorities.

1.3.2. The criteria as mentioned in Article 3 B of the Treaty of Maastricht refer only to the vertical subsidiarity and not to the horizontal subsidiarity.

1.3.3. Vertical and horizontal subsidiary need to be distinguished.

1.3.4. Vertical subsidiarity - the choice between action at EC or Member State level - takes account of various factors:

a)

the dangers of subjecting social systems to competition, leading to a downgrading of social protection standards;

b)

the need for legislation to prevent competitive advantage deriving from low standards;

c)

the European dimension of an issue requiring EC level intervention; for example, European works councils;

d)

if EC policy entails negative consequences for a group, compensatory measures at EC level are necessary, for example, the Matthaeus-Tax programme affecting customs officials.

1.3.5. The Commission communication, paragraph 6 (c), specifies Article 3B of the Treaty on European Union as the criterion for application of the subsidiarity principle. However, Article 3B refers only to vertical, not horizontal subsidiarity.

1.3.6. Close examination of the Protocol and Agreement on Social Policy and the attached Declarations reveals possible indications for horizontal subsidiarity.

a)

The Declaration on Article 4 (2) of the Agreement provides an indication of the application of horizontal subsidiarity at national (Member State) level. The Member States expressly delegate to collective bargaining the development of the content of EC level agreements and acknowledge no obligation to undertake legislation.

b)

Article 2 (4) of the Agreement provides another indication of the application of horizontal subsidiarity at national (Member State) level. The implementation of directives at Member State level may be entrusted to management and labour, subject to a guarantee by the Member State of the results imposed by the directive.

c)

The Agreement provides an indication of the application of horizontal subsidiarity at EC level. In Article 2 (6) of the Agreement, 'pay, the right of association, the right to strike or the right to impose lock-outs' are excluded from the power of the Council in Article 2 (2) to adopt directives. The social partners at Community level and at the level of Member States are to exercise the competence on these issues. The power of the social partners to make agreements following the procedures in Articles 3 and 4 is not limited as regards these matters.

In addition, the Committee takes the view that:

d)

The generally recognized constitutional principle of the autonomy of the social partners may influence the division of responsibilities between the social partners and the authorities.

1.3.7. Horizontal subsidiarity at EC level follows its increased recognition in EC law at Member State level. European Court jurisprudence () emphasized that the collective agreements:

(i) must cover all employees, and

(ii) must include all the Directive's requirements.

Otherwise, there must be back-up in the form of a State guarantee (usually legislation).

1.3.8. In its exchange of letters of 11 May 1993 with the Danish social partners, the Commission recognized in principle that directives relating to labour market conditions may be implemented on the Danish labour market via collective agreements without any need for further legislation.

A similar undertaking was given by the Commission in its exchange of letters of 29 October 1993 with the Swedish Government.

1.3.9. Recognition of the principle of horizontal subsidiarity in the implementation of Community law at Member State level has attained recognition in both the case law of the European Court and following the Community Charter, in the legislative practice of the Commission and Council.

1.4.

Commission's choice between the Rome Treaty and the Maastricht Agreement

1.4.1. Given the Agreement's much larger field of competences in the social field, most proposals will fall exclusively under its provisions.

1.4.2. In order to prevent the situation arising of the social partners not being consulted on social policy proposals, the Committee wonders whether a two-track procedure might be followed, comparable with the double legal basis of Commission directives on equal treatment. If the Commission would state that it will always consult the social partners, either based on the Treaty or on the Social Protocol, there would be no problem.

1.4.3. Failure to base social action initiatives on the Agreement:

a)

violates the Commission's duty to promote the social dialogue under the Agreement; and

b)

might be challenged by labour and management as:

(i) denying their right to be consulted whenever the Commission makes proposals in the 'social policy field' [Article 3(2)];

(ii) precluding management and labour initiating the process provided for under Article 4.

1.4.4. It seems clear that the Agreement in the future should be the first legal resort and primary legal basis of social action in the Community (where possible, together with the EC Treaty).

1.4.5. The Commission's statement that it: (paragraph 28) 'feels that these specific consultation procedures under the terms of Article 3 of the Agreement should apply to all social policy measures, whatever legal basis is eventually decided on' only partly meets the Commission's obligations.

1.5.

The UK opt-out and the principle of non-discrimination

1.5.1. The other Member States clearly wished the UK to join the new social policy initiatives. The UK retains the right to refuse to take part until it wishes to join. The UK cannot invoke the principle of non-discrimination when its refusal to join is the cause of any discrimination.

2. Who is to be consulted?

2.1.

Management and labour/partenaires sociaux

2.1.1. The relevant section of the Commission's Communication (beginning paragraph 22) is headed 'The organizations to be consulted'. There are two preliminary problems:

a)

the word 'organizations' does not appear in the Agreement; only 'management and labour', 'partenaires sociaux', 'parti sociali';

b)

the social partners are consulted, but are also potentially capable of negotiating EC level agreements.

2.1.2. Bearing these problems in mind, the Committee would question how much discretion the Commission has in deciding which organizations to consult.

2.1.3. Consultation and social dialogue at EC level should not be assumed to be the same as collective bargaining within Member States. The processes and outcomes may be different; those engaged in EC social dialogue may also be identified with specifically different criteria. It is important not simply to extrapolate from national experience to EC level.

2.1.4. Criteria for selection of the social partners in national systems often use the keyword 'representativeness'. This word does not appear in the Agreement.

2.1.5. This indicates a two-fold aspect of representativeness:

a)

the primary aspect is that, to be a representative social dialogue at EC level, representatives of management and labour constituencies must be involved;

b)

a second question, however, is in what sense are these 'representatives' to be representatives of management and labour.

2.1.6. The study summarized in Annex 3 of the Communication concludes that for the purposes of designating the social partners for collective bargaining: (Annex 3, pages 3-4)

a)

'in most countries mutual recognition is the basic mechanism, but additional formal or legal requirements may have to be fulfilled';

b)

the systems for recognition 'make use (sometimes implicitly) of quantitative criteria of various types in about half of the Member States. Generally speaking, qualitative criteria appear to be at least as important. The study confirms the great diversity in approaches used'.

2.1.7. To render the EC social dialogue representative, it is essential that the management and labour be represented. The questions are:

a)

what criteria are to be used to identify these representatives, and

b)

how crucial is 'representativeness' as one of the criteria?

2.1.8. Any quantitative and qualitative criteria selected must reflect:

a)

the different context of the EC level social dialogue, and

b)

the variety of practices at Member State level.

2.1.9. The definition of 'representativeness' can be shaped in two ways:

a)

designate as representative EC level social partners those organizations recognized by the national social partners deemed representative by national law and practice;

The EC tradition, manifest in various Directives, is that representatives are determined by the law and practice of Member States. However, in cases 382/92 and 283/92, Commission of the EC v. UK, the Commission complained that the UK had not provided rules for the designation of workers' representatives where this did not take place on a voluntary basis. The UK argued that the obligation arises only if national law and practice provide for representatives. In a judgement delivered on 8 June 1994, the European Court held that 'The United Kingdom's point of view cannot be accepted'. The Court subscribed to the views of Advocate-General van Gerven, in an opinion delivered on 2 March 1994 (paragraph 9): '... to make the activity of workers' representatives totally dependent on voluntary recognition by employers is incompatible with the protection of workers as apparent from the directives in the light of their objective, structure and wording'.

b)

the social partners at EC level are to be selected having regard to the nature of the process and of the outcome of EC social dialogue. These would indicate transnational criteria linked to national social partners, and organizational capacity.

2.1.10. Such criteria are proposed in the Commission's Communication: (paragraph 24)

a)

cross industry or sectoral at EC level;

b)

consist of Member State social partners and with capacity to negotiate agreements and representative of all Member States, as far as possible;

c)

adequate to ensure effective consultation.

2.1.11. Annex 2 of the Communication is said to include 'organizations which currently comply broadly with these criteria'. But, apparently, Annex 2 is not definitive. The Commission concludes that: (paragraph 28) 'it will undertake formal consultations with the European social partners' organizations which are listed in Annex 2 and which meet the criteria set out in paragraph 24'.

2.1.12. The criteria proposed by the Commission in paragraph 24 are ambiguous as to the need for a negotiating capacity of the EC social partners. Article 3 (4) of the Agreement links consultation with dialogue and agreements (Article 4). Criteria should also include capacity to negotiate for and bind national structures.

Agreements negotiated by the social partners at EC level should be capable of binding national social partners concerned, and affect directly, or by extension, all workers and employers in the Member States.

2.1.13. The Commission's view is that (paragraph 26): 'Only the organizations themselves are in a position to develop their own dialogue and negotiating structures'. A criterion requiring negotiating competence and ability to make agreements could assist EC level partners to achieve this.

2.1.14. Member State social partners comprising the EC level organizations should be encouraged to grant adequate bargaining mandates to the EC level social partner organizations. Member States should be encouraged to provide the procedures and guarantees securing the general effect of EC level agreements reached. Both these are implicit in the means of implementing agreements provided in Article 4 (2).

2.1.15. The Committee agrees in this respect with the opinion of the European Parliament in which the European organizations are judged to be those which have members in the majority of the EU countries, as far as possible.

2.2.

Consultative committees

2.2.1. The Communication presumes the continued use of 'well established tripartite consultative committees' (paragraph 20). If these are to be integrated into the social dialogue, they should be bipartite instead of tripartite. The present joint sectoral advisory committees might be the basis for sectoral social dialogue.

3. Consultations

3.1.

Timing of first phase

3.1.1. Article 3 (2) of the Agreement provides for a first consultation by the Commission 'before submitting proposals in the social policy field'. The Commission consults many interested persons. The significance of Article 3 is that it implies special rights of access to the policy formation process for the social partners. The result must be greater transparency, at least as regards the social partners.

3.1.2. In this respect, a distinction has to be made between the social partners and the organizations the Commission wishes to consult during the first consultation-period. Not all organizations which the Commission wishes to consult can be considered as a social partner.

3.1.3. Consultation of the social partners is to be built into the social policy formulation process. The integration of the social partners into the Commission's policy planning process will have structural consequences for both sides.

3.1.4. The timing of the consultation will affect the integration of the social partners into the social policy planning process. The alternatives are:

a)

early: Article 3(2) speaks of 'the possible direction of Community action' - i.e. no decision has been taken yet. There are still alternatives to be canvassed;

b)

middle: the social partners become involved in the internal policy formulation process, but only after initial short-listing of possible directions of Community action;

c)

late: changing the 'possible direction' defined by Commission; consultation is limited to the stage just prior to submission of proposals.

3.1.5. Consultation begins with the letter of the Commission initiating the first consultation. If a six weeks' consultation period is proposed, the implication is that the social partners will be consulted only very late in the policy process. Earlier consultation requires a longer period.

3.1.6. The implications of a longer period are that the Commission could and should consult on, and carry out active research exploring, the possibilities of other directions for Community policy proposed by social partners.

3.1.7. Based on these conclusions, the Committee would propose that the consultation for the social partners in the first phase should be eight weeks. The Commission should present their proposal for the second consultation period within for four months. Then the social partners have eight weeks to give their opinion or to say they want to start the procedure mentioned in article 4 of the protocol. This leaves the social partners sufficient time to consult their affiliated organizations and to decide if they wish to start the procedure in article 4 before the Commission produces its proposal. At the same time the Commission is bound to a certain period of time, but leaves them enough time to write a concrete and good proposal.

3.2.

What is a 'proposal'?

3.2.1. Article 3(2) provides for consultation 'before submitting proposals in the social policy field'. A 'proposal' cannot mean only legislative proposals, since some may eventually take the form of EC level agreements.

3.3.

What is 'the social policy field'?

3.3.1. Social policy cannot be limited only to proposals exclusively in the social policy field, but this implies that the Protocol should be applied to every proposal which is linked to social policy.

3.3.2. A concrete example is the Delors White Paper on Growth, Competitiveness and Employment.

3.3.3. Article 3 consultations are to 'apply to all social policy proposals, whatever legal basis is eventually decided on'. The Commission 'reserves the right to engage in specific consultations on any other horizontal or sectoral-type proposal which has social implications' (paragraph 28).

3.3.4. It would seem that the Commission is obliged to consult in such cases.

3.4.

Procedure of consultation/negotiation

3.4.1. Prior to the Maastricht Agreement, an informal consultation procedure for legislative proposals was in operation falling outside existing bodies agreed by the social dialogue steering group. This previous procedure included the following stages: (paragraph 16)

a)

a Commission discussion paper, which was followed by consultation;

b)

within three months there would be a fresh Commission working paper, more detailed and closer to a preliminary draft of an instrument, on which there would be further consultation;

c)

an inventory would be drawn up of points of agreement and disagreement.

3.4.2. In both phases, a purely written procedure is usually too marginal to be satisfactory. Meetings, between the social partners, and between them and the Commission, should be the norm.

3.4.3. Each phase of the consultation procedure should 'not exceed six weeks'. Given the present staffing levels and expertise of the EC social partners, it is hard to imagine them responding adequately to Commission proposals. In the first phase, they should be able to develop proposals for new possible Community initiatives in the social policy field. In the second phase, they should be able to produce effective critiques of the content of, or detailed amendments to, the proposal, or substantive recommendations. It is not likely that these will emerge from the EC level social partners, comprising many federations, when consultation is limited to only six weeks.

3.4.3.1. An eight-week maximum period implies that the possible direction of Community action, and the content of social policy proposals, is effectively pre-determined by the Commission. Only a major upgrading of the social partners' planning capacity to enable them to respond quickly and adequately would allow for such a short time to produce effective consultation including independent proposals. Hence the Committee's idea of an Independent Secretariat, which will be explained more thoroughly in the annex.

3.4.4. The new consultative procedures may be summarized as follows:

New procedure

Old procedure

First phase:

Letter Discussion paper

May be written consultation or meeting Always meeting

Six weeks Three months

Commission decides

whether to proceed

Second phase:

Second letter Fresh working paper

May be ad hoc meeting

Possible joint opinion or recommendation Inventory of points of agreement or disagreement

3.4.5. Conclusion: the first phase of the new procedure seems inferior in many respects to the previous procedure. It should be improved by:

a)

Incorporating the best of the previous procedure: discussion papers and working papers, meetings, longer duration.

b)

The social partners should be given adequate resources to enable them to respond properly to the problems and challenges of the European Union. The Committee wishes to draw attention to the possibility of establishing an independent secretariat for the social dialogue. This secretariat has to be independent both of the Commission and the Economic and Social Committee, so as to avoid any conflict of interests. The social partners should present some proposals for this secretariat. The Opinion's appendix proposes some guidelines.

3.4.6. There is a flexible dynamic between the social dialogue and the Commission. The Communication refers to the stronger obligation on the Commission under the Agreement to promote the social dialogue and to its (paragraph 12) 'dynamic role in promoting this dialogue ... playing an active part in overcoming any difficulties or reluctance which might occur on the part of one or other of the partners and possibly impede progress'.

3.4.6.1. The Commission can stimulate progress or remove blockages in the social dialogue. At least in its initial stages, the social dialogue may depend for its dynamic on Commission activity. The new procedure should not remove the potentially dynamic element of the Commission, which has a duty under the Treaty to promote the social dialogue and support the social partners.

3.5.

Consultation on legal basis

3.5.1. The Commission states that the second phase is initiated with a letter with the proposal '.... together with an indication of the possible legal base'. The legal base is also to be subject to consultation, implying that no decision has been reached even at this stage.

3.5.2. This is important as the potential content of the proposal often depends on the legal base. If unanimity is required, then there is reduced scope to what all Member States might agree. If qualified majority vote is possible, the content may expand to what a majority will accept.

4. Negotiations

4.1.

Timing of initiation of negotiations

4.1.1. The Commission's Communication states that the social partners consulted 'on the content of a proposal for Community action ... may ... as stated in Article 3 (4)' initiate the Article 4 process (paragraph 29). This implies that only the second consultation allows for the Article 4 procedure to be initiated, i.e. when a Commission proposal is already on the table. This is confirmed in the flow chart at the end of Communication.

4.1.2. It is not clear from Article 3(4) that 'such consultation' refers to the second phase. There are advantages in allowing the social partners to initiate the Article 4 procedure also after the first consultation, before Commission proposal is tendered.

This might have the following advantages for the social partners:

- it allows for initiation more quickly;

- it leaves more space for negotiation, rather than being bound by a proposal which becomes basis for negotiation;

- it does not pre-empt Commission continuing work on its proposal, perhaps in dynamic interaction with negotiations.

4.1.3. Of course, even before the Commission considers a possible direction of Community action in the social policy field, and independent of the consultation of the social partners as prescribed by Article 3 of the Agreement on Social Policy, the social partners may initiate the social dialogue autonomously. In accordance with Article 4 of the Agreement, this autonomous social dialogue may lead to contractual relations, including agreements.

4.2.

Extension of duration of negotiations

4.2.1. Article 3(4) refers for the first time to 'the management and labour concerned', rather than just 'management and labour'. It is not clear what will happen if one of the partners on one side of the negotiating table decides to end negotiations, and others on that side want an extension of the duration of the negotiations.

4.2.2. The Commission emphasizes that 'The social partners concerned will be those who agree to negotiate with each other. Such agreement is entirely in the hands of the different organizations' (paragraph 31).

4.3.

Commission activity during negotiations

4.3.1. The Commission states (paragraph 34) that where the social partners are unable to reach an agreement, 'the Commission will look into the possibility of proposing, in the light of the work already done, a legislative instrument' and that 'the Economic and Social Committee and the European Parliament will also be consulted in accordance with the procedures laid down in the Treaty'. However, paragraph 35 provides that 'without prejudicing the principle of the autonomy of the social partners (a principle which underlies Articles 3 and 4 of the Agreement), the Commission feels that the European Parliament must be fully informed at all stages of any consultation or negotiation procedures involving the social partners'.

4.3.2. The Commission shall keep the Economic and Social Committee informed during the consultation and negotiation process. If there is a failure of the negotiations a waste of time and energy can be prevented if the members of the Committee are aware of the arguments and reasons for this failure. This applies also to the European Parliament.

4.3.3. The Communication states in paragraph 12: 'The signatories to the Agreement thus assigned to the Commission a dynamic role in promoting this dialogue, and entrusted it with the task of playing an active part in overcoming any difficulties or reluctance which might occur on the part of one or other of the partners and possibly impede progress'.

4.3.3.1. Proposals for legislative regulation by the Commission during the negotiations is one possible stimulus to agreement by the social partners. The Communication recognizes this when referring to the need for Commission approval to an extension of the nine-month period. The Commission will: (paragraph 32) 'assess the two parties' chances of arriving at an agreement within the period set. This will prevent any prolongation of fruitless negotiations which would ultimately block the Commission's ability to regulate.

4.3.3.2. By being kept fully informed by the Commission, the Economic and Social Committee and the European Parliament may contribute to speedy legislative regulation if the negotiations between the social partners fail.

4.4.

Commission activity after agreement is reached

4.4.1. The Commission intends to propose to the Council 'the adoption of a decision on the agreement as concluded' (paragraph 38). If the Council decides not to implement the agreement as provided in Article 4(2) - e.g. because there is no unanimity, or no qualified majority, 'the Commission will withdraw its proposal for a decision and will examine ... whether a legislative instrument in the area would be appropriate' (paragraph 42).

4.4.2. This latter will still require unanimity or majority. In order to achieve the requisite unanimity or majority, the Commission can proceed with two different ways, although it has to be very restrained in doing so:

- either the Commission takes its own responsibility and presents a new proposal;

- or the Commission explains the problem to the negotiating parties and asks them whether they might be prepared to introduce alterations in their agreement.

It has to be clear that Commission changes to the agreement without the prior approval of the negotiating parties will not be accepted.

4.4.3. If the Council refuses to take a decision, the Economic and Social Committee and the European Parliament should be asked for an opinion.

5. Implementation

5.1.

National practices and procedures

5.1.1. '.... terms of this agreement will bind their members and will affect only them and only in accordance with the practices and procedures specific to them in their respective Member States.' (paragraph 37).

5.1.2. At least three possibilities exist:

a)

Member States are obliged to develop procedures and practices (which may be peculiar to themselves) to implement the agreements reached at Community level. This would seem to require some formal machinery of articulation of national standards with those laid down in the agreements. The experience of implementation of Community instruments, such as Directives, provides a basis for assessing whether Member States have complied with this obligation.

b)

Member States are not obliged to develop new procedures and practices to implement the agreements. But where there exists machinery of articulation of national standards with those laid down in the agreements, this is to be used.

c)

Given the nature of the authors of the standards (Community-level organizations of employers and workers), the procedures and practices peculiar to each Member State may consist of mechanisms of articulation of Community agreements with collective bargaining in the Member State concerned. Member States are not obliged to create such mechanisms, but national law may not interfere with such mechanisms which already exist, or which may be created by the social partners within the Member State to deal with the new development at Community level.

5.1.3. This possibility of a process of articulation of 'agreements concluded at Community level' with 'procedures and practices specific to management and labour' does not detract from the significance of the following words: 'and the Member States ...'. This may be a reflection of the jurisprudence of the European Court of Justice concerned with implementation of Community instruments through collective bargaining, now encapsulated in Article 2(4) of the Agreement. As stated above in paragraph 1.3.7, this jurisprudence emphasized that the collective agreements must therefore be applicable:

(i) to all workers whose unions and managers have given a mandate for negotiations at European level, or

(ii) to all workers in the sector in question following a 'declaration that the agreement is binding on everyone' (erga omnes procedure).

Otherwise, there must be a back-up in the form of a State guarantee (usually legislation). In line with this principle, and contrary to the Commission's view, implementation of sectoral or multi-sectoral agreements may imply extension of their coverage to all employees.

5.2.

The Declaration

5.2.1. The Communication states categorically that Article 4(2) first mode of implementation 'is subject to the .... declaration' (paragraph 37). This declaration, attached to the Agreement, states that this method of implementing EC-level agreements: 'implies no obligation on the Member States to apply the agreements directly or to work out rules for their transposition, nor any obligation to amend national legislation in force to facilitate their implementation'.

5.2.1.1. The Commission states that the declaration to the Protocol is unique and for that reason an integral part of the Treaty.

5.2.1.2. The fragile legal quality of such Declarations may be emphasized. The Commission's view in the Communication might be doubted, because normally a declaration is not a part of the Treaty. Contrary to the communication, the declaration is subject to the clear statement in Article 4(2) that 'Agreements .... shall be implemented'. For that reason the Committee does not agree with the Commission's point of view.

5.2.2. At a minimum, the denial of obligations to take legislative action in support of implementation does not exclude the obligation to avoid legislation having a negative impact on the implementation of EC-level agreements.

5.3.

Council decision and agreement

5.3.1. The Commission claims that, 'by virtue of its role as guardian of the Treaties', it will consider various criteria in preparing proposals for decision to the Council, and may decide not to present a proposal for a decision to implement an agreement to the Council (paragraph 39). The Agreement does not refer to any of the criteria mentioned in the Communication.

5.3.2. Article 4(2) provides alternative, but mandatory, implementation mechanisms for agreements concluded at Community level. It is not clear that the Commission can refuse the second path if social partners request it. The Council can refuse - implicit since it may reject the proposal, as recognized in the Communication (paragraph 42). This does not apply for the Commission. The Committee would recommend the same procedure as is mentioned in paragraph 4.4 of this Opinion.

5.3.3. The Council decision is 'limited to making binding the provisions of the agreement concluded between the social partners, so the text of the agreement would not form part of the decision, but would be annexed thereto' (paragraph 41). This raises the question as to what form of binding Community instrument: decision, directive, or regulation? The difficulty arises from the translation of 'decision' in Article 4(2) in Danish, Dutch, and German, where a different word is used than that of a Community legal instrument.

5.3.4. The Committee would stress that the decision mentioned in Article 4(2) refers to a legally binding instrument, as provided in Article 189 of the Treaty. This implies that either a regulation, a directive or a decision are the only possible legal instruments.

5.3.5. The Committee is of the opinion that the social partners have to choose which binding legal instrument they prefer.

5.3.6. The Communication states that: 'In their independent negotiations, the social partners are in no way required to restrict themselves to the content of the proposal in preparation within the Commission or merely to making amendments to it, bearing in mind, however that Community action can clearly not go beyond the areas covered by the Commission's proposal' (paragraph 31). However, the social partners may, independently of the Commission, autonomously initiate and develop the social dialogue at Community level. They may reach agreements independently of any Commission proposal or consultation procedure (above, paragraph 4.1.3).

5.3.7. According to Article 4(2), 'Agreements concluded at Community level', including those reached through autonomous social dialogue, 'shall be implemented' in one of the two ways indicated. As far as Council decisions are concerned, the scope of these agreements may only extend to 'matters covered by Article 2'. However, as regards the first of the two alternative but mandatory methods of implementation ('procedures and practices specific to management and labour and the Member States') the scope of the agreement is not so limited.

5.3.8. Community social policy may be embodied in legislative measures emerging from Community organs (such as Council decisions), but may now also result from the social dialogue in the form of agreements concluded at Community level. The potential scope of each of these agreements is not identical to that of legislative measures, confined by Article 2.

5.3.8.1. There seems no reason why the social partners should be confined to the scope of proposals appropriate for the legislative process. They may autonomously reach agreements on 'pay, the right of association, the right to strike or the right to impose lock-outs', matters excluded from the competence of the Community's legislative organs by Article 2(6). Article 2(6) explicitly excludes such matters from 'The provisions of this Article', and does not exclude them from 'agreements concluded at Community level', which 'shall be implemented' [Article 4(2)].

5.3.9. Agreements may be reached without the direct involvement of Community institutions, and are not subject to any explicit restriction either as to content or to majority or unanimous voting. A double set of Community competences emerges: first, the new competences envisaged by the Agreement applicable to the measures adopted by Community institutions; but also a second different set of competences allotted to the social partners, and carrying with it the obligation to implement 'agreements concluded at Community level'. The latter would thus fall within the scope of Community law.

Done at Brussels, 24 November 1994.

The President

of the Economic and Social Committee

Carlos FERRER

() In Commission of the European Communities v. the Kingdom of Denmark [Case 143/83, (1985) ECR 427], the European Court of Justice held: 'that Member States may leave the implementation of the principle of equal pay in the first instance to representatives of management and labour' (paragraph 8). The Court reaffirmed this principle in a second case involving Italy, Commission of the European Communities v. the Italian Republic [Case 235/84, (1986) ECR 2291] when implementation of Council Directive 77/187 was at issue.