COMMUNICATION concerning the application of the Agreement on social policy presented by the Commisison to the Council and to the European Parliament
Date: 1993-12-14
Institutions: Directorate-General for Employment, Social Affairs and Inclusion, European Commission
Subjects: Social Policy Agreement (EU), application of EU law, approximation of laws, collective agreement, social dialogue (EU), social legislation, social partners

COMMISSION  OF  THE  EUROPEAN  COMMUNITIES 

COM(93)  600 

f  i na I 

Brusse Is, 14  December  1993 

COMMUNICATION 

concerning the application  of 

the Agreement on  social  policy 

presented  by the Commission 

to  the Council 

and  to  the European Parliament 

TABLE  OF  CONTENTS 

SUMMARY 

INTRODUCTION 

The  contribution of the Maastricht  Treaty 

The  scope  of the  Agreement 

Origins of Articles 3 and 4 of the  Agreen1ent 

The .filnctions of the  social dialogue 

CONSl!LTATION (JF  THE SOCIAL  PARTNERS 

PROMOTIN(J  CONSl!LTA770N OF THE SOCIAL  PARTNERS 

THE CONSl!LTATION PROC£/)l!RE.\' 

Current situation 

1Vew  approach 

THE  ORGANISATI(JNS  TO  BE CONSl!LTEIJ 

1Vew  approach  to  consultation:  Summary 

FROM COJVSl!LTATION  TO  NEGOTIATION 

THE IMPLEMENTATION OF THE  AGREEMENTS 

THE COli!IC/L  DECISION 

THE IMPLEMENTAT/(JN OF J)/RECTIVES BY C(JLLECTIVE AGREEMI~NT 

CONCLl/5)/0N 

ANNEXES 

Overview  l?{ the  n1ain  legal base.\· for social policy n1easure.\· 

List of social partners' organisations  currently  con1plying with  the  criteria  set  out 

in paragraph  24 qf the  Con1n1unication 

Main result.\'  l?f the  "study  on  the  representativeness l?{ the  .\·ocial partners" 

Flow  chart setting out  the  practical arrangements .fiJI'  iluplementing the  Agreement 

on  Social Policy 

SUMMARY 

1. 

2. 

3. 

4. 

Entry  into  force  of the  Treaty  on  European  Union  automatically  brings  into  force 
at  the  same time  the  Protocol  on  Social  Policy  and  the  Agreement  on  Social  Pol 
icy  ("the  Agreement"). 

The  Protocol  and  the  Agreement  state  that  eleven  Member  States  "wish  to  con 
tinue  along  the  path  laid  down  in  the  1989  Social  Charter,  but  they  point  out 
that  the  Protocol  and  the  Agreement  "are  without  prejudice  to  the  provisions  of 
the  Treaty,  particularly  those  relating  to  social  policy  which  constitutes  an  inte 
gral  part  of the acquis communautaire". 

At  least  until  1996,  social  policy  wiJI  be governed,  on  the  one  hand,  by  the  pro 
visions  of  the  EC  Treaty,  while  on  the  other,  the  provisions  introduced  by  the 
Agreement  will  form  a  new  basis  for  Community  action,  including  the  possi 
bility  for  the  eleven  Member  States  which  signed  the  Agreement  to  adopt  legis 
lative  measures.  This  situation  has  never  occurred  in  the  Community  before. 

Articles  3  and  4  of the  Agreement  constitute  a  significant  development  of Article 
ll8b  of  the  Treaty.  They  redefine  the  Commission's  task  of  promoting  the 
social  dialogue  by  placing  an  obligation  on  the  Commission,  on  the ·one  hand  to 
promote  the  consultation  of management  and  labour  (the  social  partners)  and  on 
the  other  hand  to  consult  them  before  presenting  proposals  in  the  social  policy 
field.  These  Articles  also  open  up  new  possibilities  as  regards  the  dialogue 
between  the  social  partners  at  Community  level,  which  may  be  implemented  in 
certain  closely  defined  cases,  by  a  Council  decision  on  the  basis  of a  proposal 
from  the  Commission. 

5. 

Articles  3  and  4  of  the  Agreement  reproduce  in  almost  identical  terms,  the 
agreement  concluded  on  31  October  1991  between  UNICE,  ETUC  and  CEEP 
within  the  ad  hoc  group  set  up  for  the  purpose  of defining  the  role  and  place  of 
the  social  dialogue  in  the  new  Community  framework. 

PROMOTING  CONSULTATION  OF  THE  SOCIAL  PARTNERS 

6. 

Under  the  terms  of Article  3(1)  of the  Agreement,  the  social  partners  now  have 
a  right  to  be  consulted  by  the  Commission  both  on  the  direction  of Community 
social  policy  and  on  the  content  of Community  action  in  this  area. 

In  facilitating  the  social  dialogue,  the  Commission  must  ensure  "balanced  sup 
port  for  the  pa11ies".  Among  the  different  measures  which  may  facilitate  the 
dialogue,  lnention  can  be  made  of working  groups  and  the  provision  of technical 
assistance  deemed  necessary  to  underpin  the  dialogue. 

1 

Lr 

THE ORGANISATIONS  TO  BE CONSULTED 

7. 

Based  on  some  criteria  set  out  below,  a  number  of organisations  are  potentially 
eligible  to  be  consulted.  At  the  same time,  the  Commission  recognises  fully  that 
there  is  a  substantial  body  of experience  behind  the  social  dialogue  established 
between  the  UNICE,  CEEP  and  ETUC. 

The  Commission  believes,  as  a  matter  of general  principle,  that  the  extent  to 
which  organisations  should  be  consulted  within  the  terms  of  Article  3  of  the 
Agreement should  depend  on  the following  factors. 

The organisations  should  : 

be  cross .. industry  or  relate  to  specific  sectors  or  categories  and  be 
organised  at  European  level: 

consist  of organisations  which  are  themselves  an  integral  and 

recognised  as  part  of Member State  social  partner  structures,  have 
the  capacity  to  negotiate  agreements  and  are  representative  of all 
Member  States,  as  far  as  possible: 

have  adequate  structures  to  ensure  their  effective  participation  tn 
the  consultation  process. 

THE  CONSULTATION  PROCEDURES 

8. 

Article  3(2)  and  (3)  of the  Agreement  on  Social  Policy  states  that:  "To  this  end, 
before  submitting  proposals  in  the  social  policy  field,  the  Commission  shall  con 
sult  management  and  labour  on  the  possible  direction  of Community  action. 
If, 
after  such  consultation,  the  Commission  considers  Community  action  advisable, 
it  shall  consult  management  and  labour  on  the  content  of the  envisaged  proposal. 
Management  and  labour  shall  forward  to  the  Commission  an  opinion  or,  where 
appropriate,  a  recommendation". 

9. 

In  the  light  of experience,  the  Commission  suggests  that  : 

The  first  consultation  of  the  social  partners  will  be  initiated  on  receipt  of  the 
Commission's  letter  The  requested  consultation  may  be  by  letter  or,  if the  social 
partners  so  desire,  by  the  convening  of  an  ad  hoc  meeting.  The  period  of con 
sultation  should  not  exceed  6  weeks. 

The  Commission  will  determine  its  position  in  the  light  of  comments  received 
during  this  first  consultation  and  will  decide  whether  to  proceed  to  the  second 
phase. 

2 

The  second  phase  consultation  of the  social  partners  will  be  initiated  with  the 
receipt  of the  second  letter  from  the  Commission,  incorporating  the  content  of 
the  planned  proposal  initiative, 
together  with  an  indication  of the  possible  legal 
base. 

On  the  occasion  of this  second  consultation,  the  social  partners  should  deliver  to 
the  Commission  in  writing  and,  where  the  social  partners  so  wish  through  an  ad 
hoc  meeting,  an  opinion  setting  out  the  points  of agreement  and  disagreement  in 
their  respective  positions  on  the  draft  text.  Where  appropriate,  they  should 
deliver  a  recommendation  setting  out  their joint  positions  on  the  draft  text.  The 
duration  of this  second  phase  shall  also  not  exceed  6  weeks. 

FROM  CONSULTATION  TO  NEGOTIATION 

10.  The  social  partners  who  are  consulted  on  the  content  of a  proposal  for  Commun 
ity  action  may  deliver  an  opinion  or,  where  appropriate,  a  recommendation  to 
the  Commission.  Otherwise  they  can  inform  the  Commission  of their  desire  to 
embark,  in  the  context  of their  bargaining independence,  upon  a  process  of nego 
tiation  which  could  lead  to  a  direct  agreement  between  the  parties.  This  negoti 
ation  process  may  take  up  to  nine  months  and  may  be  extended  with  the  agree 
ment of the  Commission. 

11.  At  or  before  the  end  of  this  nine-month  period,  therefore,  the  social  partners 
taking  stock  of negotiations.  This 

have  to  submit  to  the  Commission  a  report 
report  may  inform  the  Commission  that: 

a) 

b) 

c) 

they  have  concluded  an  agreement  and  jointly  request  he  Commission  to 
propose  that  the  Council  adopt  a  decision  on  implementation,  or 

having  concluded  an  agreement  between  themselves,  they  prefer  to  imple 
ment  it  in  accordance  with  the  procedures  and  practices  specific  to  man 
agement  and  labour  and  to  the  Member  States,  or 

they  envisage  pursuing  the  negotiations  beyond  the  nine  months  and 
accordingly  request  the  Commission  to  decide  with  them  upon  a  new 
deadline,  or 

d) 

they  are  unable  to  reach  an  agreement. 

12. 

\\'here  (d)  applies,  the  Commission  will  examine,  in  the  light  of  the  work 
already  undertaken,  whether  a  legislative  instrument  in  the  area  under  consider 
ation  would  be  appropriate.  The  Economic  and  Social  Committee  and  the  Euro 
pean  Parliament  will  also  be  consulted  in  accordance  with  the  procedures  laid 
down  in  the  Treaty. 

3 

THE  1~1PLEMENTATION OF  THE  AGREEMENTS 

13.  Agreements  concluded  at  Community  level  are  to  be  implemented  either  in 
accordance  with  the  procedures  and  practices  specific  to  management  and  labour 
and  the  Member  States  or,  in  matters  covered  by  Article  2,  at  the  joint  request 
of the  signatory  parties,  by  a  Council  decision  on  a  proposal  from  the  Commis 
ston. 

The  Council  is  to  act  by  qualified  majority,  except where  the  agreement  in  ques 
tion  contains  one  or  more  provisions  relating  to  one  of the  areas  referred  to  in 
Article  2(3),  in  which  case  it  shall  act  unanimously. 

14.  Under  the  Agreement,  the  Commission  is  not  legally  required  to  consult  the 
European  Parliament  on  requests  made  to  it  by  the  social  partners  concerning 
implementation  of an  agreement  by  means  of a  Council  decision.  However,  it 
does  intend  to  inform  the  European  Parliament  and  to  send  the  text  of the  agree 
ment,  together  with  its  proposal  for  a  decision  and  the  explanatory  memoran 
dum,  so  that  Parliament  may,  should  it  consider  it  advisable,  deliver  its  opinion 
to  the  Commission  and  the  Council. 

THE COUNCIL  DECISION 

15.  The  Commission  considers  that  the  Council  decision  can  only  relate  to  the  text 
of the  agreement  as  signed  by  the  parties  concerned.  If the  Agreement  were  to 
be  amended,  it  could  no  longer  be  regarded  as  an  agreement  freely  concluded 
between  the  social  partners. 

16. 

If  the  Council  decides  in  accordance  with  the  procedures  set  out  in  the  last 
subparagraphof  Article  4(2),  not  to  implement  the  agreement  as  concluded  by 
the  social  partners,  the  Commission  will  withdraw  its  proposal  for  a  decision  and 
will  examine  whether  a  legislative  instrument  in  the  area  under  consideration 
would  be  appropriate. 

THE  If\1PLEMENTATION  OF  DIRECTIVES  BY  COLLECTIVE  AGREEMENTS 

17.  The  Agreement  establishes  the  general  principle  that  directives  may  be  imple 
mented  by  collective  agreement.  This  principle  has  been  recognised  in  the  case 
It  is  also  in  line  with  the  provisions  of the  Interna 
law  of the  Court  of Justice. 
tional  Labour Organisation  and  the  Council  of Europe. 

4 

INTRODUCTION 

1. 

Entry  into  force  of the  Treaty  on  European  Union  automatically  brings  into 

force  at  the  same  time  the  Protocol  on  Social  Policy  and  the  Agreement  on 

Social  Policy  concluded  between 

the  Member  States  of  the  European 

Community  with  the  exception  of the  United  Kingdom  of Great  Britain  and 

Northern  Ireland  (hereinafter  referred  to  as  the  Agreement). 

2. 

The aim  of this  communication  is  to  set out the  Commission's approach  to  the 

implementation  of  the  Protocol  and  Agreement  taking  into  account  past 

experience  in  this  field.  The  Commission  will  of course  be  prepared  to  review 

and  amend  these procedures in  the light of experience gained  and  of the  debate 

it  expects  to  stimulate  with  the  other  Community  institutions,  the  Member 

States  and  the  organisations  of social  partners  at  Com1nunity  level.  This  will 

be  a  dynamic  process  which  will  grow  and  develop  over  time. 

The 

Commission  firmly  believes therefore  that  it  will  only  be  possible to  determine 

the  changes  and  adjustments  required  through  practical  experience  in  applying 

the  Agreement.  The  opportunity  for  such  revision  will  be  provided  by  the 

report  on  progress  in  achieving  the  objectives  of Article  l  of the  Agreement 

which  the  Commission  is  required  to  draw up  each  year under  Article  7  of the 

Agreement.  This  latter  report  will,  for  practical  purposes,  be  merged  with  the 

Repo11  on  the application  of the Community  Chcll1er  of the  Fundamental  Social 

Rights  of Workers. 

3. 

ln  concluding  an  Agreement  on  Social  Policy  at  Maastricht  in  the  form  of a 

Protocol  accepted  by 

the  Twelve, 

the  eleven  signatory  Member  States 

demonstrated  their  desire  to  give  the  Community  the  resources  required  to 

ensure  that  the  social  dimension  can  progress  at  the  same  pace  as  the  other 

aspects  of the  construction  of Europe,  more  pa11icularly  the  economic  aspect. 

4. 

The  Agreement  sets  out  the  social  policy  objectives.  following  the  same  path 

adopted  in  the  Social  Charter  of  1989,  and  embracing  the  promotion  of 

employment,  improved living and working conditions,  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. 

5. 

These objectives  supplement the general  and  specific tasks  of the Community 

as  set  out  in  the Treaty  establishing the  European  Community,  as  replaced  by 

Article  2  of  Title  II  of  the  Treaty  on  European  Union.  which  refers  to 

promoting  a  high  level  of employment  and  of social  protection. 

The  contribution  r?f the  Maastricht  Treaty 

6. 

The contribution  of the  Agreement  is  three-fold: 

a) 

It  extends  and  clarifies  the  Community's  powers. 

h) 

The  Agreement  lays  down  special  ntles  for  the  adoption  of measures 

presented  in  this  context. 

Firstly,  it  confirms  the  provision  whereby  decisions  can  be  taken  by 

qualified  majority  in  respect  of health  and  safety  at  the  workplace  and 

extends  this  possibility  to  a  number  of new  areas: 

working  conditions: 

the  information  and  consultation  of workers: 

equal  opportunities  and  equal 

treatment  between  men  and 

women: 

the  integration  of persons  excluded  from  the  labour  market. 

Secondly,  it  provides  for  decisions  in  the  following  areas  to  be  taken 

unanimously  by  the  Eleven  signatory  Member  States: 

financial  contributions  for  promotion  of  employment  and  job 

creation~ 

social  security  and  social  protection  of workers~ 

protection  of  workers  where  their  employment  contract 

ts 

terminated; 

representation  of workers  and  eo-determination~ 

conditions  of  employment  for  third-country  nationals  legally 

residing  in  Community  territory. 

Finally,  it  explicitly  excludes  from  the  Agreement  any  matters  relating 

to  pay,  the  right  of  association,  the  right  to  strike  and  the  right  to 

impose  lock-outs. 

c) 

The  Agreement  confirms  the  fundamental  role  of the  social  partners  -

as  recognised  by  Article  1188 ofthe Single Act- in  the implementation 

of the  social  dimension  at  Community  level.  In  conformity  with  the 

fundamental  principle  of  subsidiarity  enshrined  in  Article  38  of  the 

Treaty  on  European  Union,  there  is  thus  recognition  of a  dual  form  of 

subsidiarity  in  the  social  field:  on  the  one  hand,  subsidiarity  regarding 

regulation  at  national  and  Community  level;  on  the  other,  subsidiarity 

as  regards  the  choice,  at  Community  level,  between  the  legislative 

approach  and  the  agreement-based  approach. 

Undoubtedly, 

this 

third  element 

is 

likely 

to  have 

the  greatest 

consequences.  The Commission  can only  express its  pleasure at  the fact 

that  this  principle of dual  subsidiarity,  which  was  in  fact  introduced  by 

the  Commission  as  part  of  its  contribution  to  the  intergovernmental 

conference  and  subsequently  adopted  by  the  social  partners,  has  now 

been  incorporated  into  the  Agreement. 

It is  also  important to  note that this  recognition  of the  role of the  social 

partners  operates  at  two  levels: 

at  national 

level, 

in 

that  "a  Member  State  may  entrust 

management  and 

labour,  at 

their  joint  request,  with 

the 

implementation of directives" adopted pursuant to the Agreement 

(Article  2  (4))~ 

at  Community  level,  in  that  the  Agreement  introduces  a  new 

procedure for consulting the social  pariners,  which  may,  "should 

management  and 

labour  so  desire, 

... 

lead 

to  contractual 

relations,  including  agreements"  (Article  4). 

The  scope  (~fthe AKreement 

7. 

The  Agreement  is  soundly  based  in  law  gtven  that  the  Protocol  on  Social 

Policy,  which  was adopted  by  the Twelve and  thus  ranks as a  treaty,  allows for 

measures  to  be  taken  by  eleven  Member  States. 

Thus,  the Community  nature  of measures  taken  under  the  Agreement  is 

beyond doubt,  which  means that the Court of Justice will  be empowered 

to  rule  on  the  legality  of  directives  adopted  by  the  Eleven  and  to 

interpret  them.  The  scope  of  these  directives  will  comply  with  the 

territoriality  principle~ in  other words,  such  directives will  not  apply  on 

the  territory  of  the  United  Kingdom,  but  a  UK  national  - or  the 

subsidiary  of a  UK-registered  group  - resident  on  the  territory  of each 

of the  other eleven  Member  States  will  be  subject  to  the  (harmonised) 

legislation of the Member State in  question.  Finally, the Protocol  forms 

part  of the acqui.\'  communautaire  like  any  other  provision  of the  EEC 

Treaty. 

8. 

lt  is  important  to  stress,  though,  that  the  Treaty  on  European  Union  does  not 

preclude  institutions  having  recourse in  the social  field  to the  provisions of the 

EEC  Treaty  pursuant  to  procedures  governing  the  twelve  Member  States. 

Social  policy  is  therefore  governed: 

by  the  provtstons  of  the  EC  Treaty  as  amended  by  the  Treaty  on 

European  Union~ and 

by  the provisions introduced  by the  Agreement,  which  will  form  a  new 

basis  for  Community  action, 

including  the  possible  adoption  of 

legislative  measures  by  the  eleven  Member  States  which  signed  the 

Agreement. 

Social  policy  is  thus  subject  to  two  free  standing  but  complementary  legal 

fratnes  of reference  (see  Annex  l ). 

The  Commission's  principal  objective  is  to  promote  the  development  of  a 

European  social  policy  which  will  benefit all  the citizens of the  Union  and  will 

therefore  enjoy,  as  far  as  is  possible,  the  support  of all  the  Member  States. 

The  Commission  hopes,  therefore,  that  Community  social  policy  action  will 

once again  be  founded  on  a  single  legal  basis.  A  major opportunity  to  achieve 

this will  be the  conference of representatives of Member State governments  in 

l996. 

The  matn  considerations  to  be  taken  into  account  when  deciding  which 

procedure  to  opt  for  i.e.  EC  Treaty  or Agreement  of the  Eleven  - are: 

the  nature  of the  proposal; 

the  attitude  of the  social  partners  to  it: 

the  need  to  ensure  that  the  social  dimension  progresses  at  the 

same  pace  as  other  Community  policies,  and  hence 

the 

possibility  for  the  Council 

to  reach  decisions  by  qualified 

majority: 

the  desire  to ensure that  all  workers  throughout  the  Community 

benefit  from  the  proposed  measure: 

the  possibility  for  all 

twelve  Member  States  to  move  forward 

together. 

. 

As far as future  proposals are concerned, the Commission will  decide on  a  case 

by case  basis,  in  the  light  of the  above criteria,  whether or  not  to  make  use  of 

the Protocol.  However,  for  proposals concerning health  and  safety  at work,  the 

Commission  will  give  priority  to  instnnnents  which  enable  a  decision  to  be 

taken  by  all  twelve  Member  States. 

As  regards  the  proposals presented  under the  social  action  programme and  still 

pending  at  the  Council,  the  Commission  will  decide  on  a  case  by  case  basis 

whether or not to make use of the Agreement in  order to  progress the proposals, 

should  there  be  an  impasse at the  Council.  In  cases  where  it  opts for  using  the 

Agreement, the Commission will  do everything possible- in  agreement with the 

social  partners  concerned,  where  appropriate  - to  ensure  that  work  which  has 

already  been  done  is  taken  into  account  and  thus  _to  speed  up  the  consultative 

process. 

ORIGIN  OF ARTICLES  3  AND  4  OF  THE  AGREEMENT 

9. 

Articles  3  and  4  of  the  Agreement  are  heavily  inspired  by  the  agreement 

concluded  on  31  October  1991  by  UNICE,  ETUC  and  CEEP,  and  may  be 

regarded  as  a  significant  evolution  of  Article  118b  of  the  Treaty  1

.  They 

redefine the Commission's task of promoting the dialogue between management 

and  labour  (the  social  partners)  in  terms  of promotion  of consultation  of them 

and  an  obligation  to  consult  them  before  submitting  proposals  in  the  social 

policy  field.  They  also  open  up  a  new  prospect  for  the  Community  social 

dialogue  in  that  it  may  now  lead  to  the  establishment  of contractual  relations, 

including agreements, which may be implemented, in  defined circumstances, by 

a  Council  decision  based  on  a  proposal  from  the  Commission. 

The function\·  r~f the  social dialo~ue 

l 0. 

The traditional  dialogue between  the  social  partners  at  Community  level  under 

the  terms  of  Article  118b  of  the  EC  Treaty  has  ahvays  taken  the  form  of 

discussions  and  exchanges  of views  on  matters  of common  interest.  Even  if 

these meetings did  not always result in  formal  agreement on  the  pa11  of the  two 

sides,  they  did  generate joint  opinions  on  a  variety  of important  subjects  such 

as  macroeconomic  problems,  the  introduction  of  new  technologies  and  the 

Added by the Single Act~ it  reads:  "the Commission  shall  endeavour to develop 
the  dialogue  between  management  and  labour  at  European  level  which  could, 
if the  two  sides  consider  it  desirable,  lead  to  relations  based  on  agreement". 

adaptability  of the  labour  market. 

ln  terms  of implementing  the  Agreement,  it  is  imp011ant  to  distinguish  clearly 

between  two  different  functions  of the  social  dialogue  : 

consultation  of the  social  partners  for  the  purpose  of obtaining 

the opinions or recommendations of the employers'  and workers' 

European organisations on  the different proposals in  preparation 

within  the  Commission~ 

negotiations  between  the  social  partners  which,  in  the  light  of 

their  bargaining  autonomy  and  the  terms  of Article  3  (4),  may 

lead  to  an  agreement. 

CONSULTATION  OF THE  SOCIAL PARTNERS 

PROMOTING  CONSULTATION  OF  THE  SOCIAL  PARTNERS 

11. 

Under  Article  3( l)  of the  Agreement  "the  Commission  shall  have  the  task  of 

promoting the consultation  of management and  labour at  Community level  and 

shall  take any  relevant measure to facilitate their dialogue by ensuring balanced 

support  for  the  parties".  The  social  partners  now  have  a  right  to  be  consulted 

hy  the  Commission  both  on  the  direction  of Community  social  policy  and  on 

1he  substance  of Community  action.  The  obligation  on  the  Commission  to 

promote the social  dialogue  is  stronger than  the  previous formulation  set  out in 

Article  118b  of  the  EC  Treaty  ("shall  endeavour  to  develop  the  dialogue 

between  management  and  labour  at  European  level"). 

In  the  Agreement,  the 

Commission  "shall  have  the  task  of promoting  the  consultation"  taking  "any 

relevant  measure  to  facilitate  their  dialogue". 

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.  The 

relevant measures to facilitate the dialogue may be grouped under various types 

of  support:  the  organisation  of  meetings;  support  for  joint  studies  or  joint 

working  groups:  and  support  for  technical  assistance  deemed  necessary  to 

underpin  the  dialogue. 

13. 

]n  facilitating  the  social  dialogue,  the  Commission  has  the  responsibility  to 

ensure  "balanced  support  for  the  parties". 

To  that  end,  and  to  ensure  a 

lransparent  and  balanced  approach,  the  Commission  is  currently  reviewing  the 

assistance  granted  recently 

to  the  different  social  partners.  An  annual 

statement  of  the  support  provided  will  be  issued  in  future  .years  by  the 

Commission. 

THE  CONSULTATION  PROCEDURES 

14. 

Article  3(2)  and  (3)  of  the  Agreement  states  that:  "To  this  end,  before 

submitting  proposals  in  the  social  policy  field,  the  Commission  shall  consult 

management  and  labour  on  the  possible  direction  of Community  action. 

If, 

after such consultation, the Commission considers Community action  advisable, 

it  shall  consult  management  and  labour  on  the  content  of  the  envisaged 

proposal.  Management and  labour shall  forward  to the Commission an  opinion 

or,  where  appropriate,  a  recommendation". 

Current situation 

15. 

1t  is  essential  to  recall  that,  in  drawing  up  its  proposals,  the  Commission  has 

always  arranged  for  wide-ranging  consultation.  In 

the  social  field, 

this 

consultation  has  often  taken  place  through  a  number  of advisory  committees, 

each  one having a  specific area of responsibility~ they are tripartite committees 

{governments,  employers  and  workers)  and  the  members  are appointed  by  the 

Council  on a proposal  from  the governments of the Member States.  The various 

joint  committees  perform  a  similar  advisory  role.  They  are  set  up  by  the 

Commission  in  sectors  where  common  policies  are  in  operation  or  are  being 

prepared. 

In  other  cases,  informal  meetings  provide  for  social  dial~gue and 

consultation  of  the  social  partners  in  the  sector  concerned  on  the  different 

Commission  proposals  which  may  have  consequences  in  the  social  field. 

16. 

Ad  hoc  consultation  procedures  have  also  been  established  alongside  these 

formal  and  informal  advisory bodies.  It is useful  to recall  that the Commission 

agreed with the social  dialogue steering group2  upon  the following consultation 

procedure  for  certain  proposals  for  legislation  to  which  the  social  partners 

attached great importance,  but which  did  not fall  within  the scope of any  of the 

existing  advisory  bodies.  The  social  partners  are  consulted  jointly  on  each 

proposal  in  two  stages  - a  first  consultation  taking  place  on  the  basis  of a 

Commission  discussion  paper,  followed  by  a  second  one  held  within  the 

following  three  months  on  the  basis  of a  fresh  Commission  working  paper, 

more  detailed  and  closer  to  the  preliminary  draft  which  the  responsible 

departments envisage presenting to the Commission.  After these consultations, 

2 

Set up at political  level  by  representatives of UN ICE,  CEEP and  ETUC and  the 
Commission. 

the  departments  of  the  Commission  draw  up  an  inventory  of  the  points  of 

agreement and  disagreement,  as expressed by the social  partners,  and  pass it on 

to  the  Commission  for  its  final  deliberations  on  the  proposal. 

17. 

Alongside  this  two-stage joint consultation,  the  Commission  departments  have 

conducted  additional  consultations  with  representatives  of  management  and 

labour  in  some  industrial  and  service  sectors  more  concerned  by  particular 

proposals under consideration and also with other major organisations which do 

not  participate  in  the  Community  social  dialogue. 

Jn  the  context  of  this  two-stage  joint  consultation  process  the  Commission 

departments  have extended  their consultations to other organisations which  are 

representative  in  both  the  economic  and  social  fields. 

18. 

These  prior  consultations  have  undoubtedly  helped  to  bring  viewpoints  closer 

together  and  improve  mutual  understanding,  even  if differences  of view  have 

persisted  in  certain  cases  between  those  who  want  legislation  at  Community 

level  and  those  who  oppose  it. 

New approach 

19. 

The  Agreement  describes  these  two  stages  : 

Stage  I 

Article  3(2)  specifies  that  "before  submitting  proposals  in  the 

social  policy  field,  the  Commission  shall  consult  management 

and  labour  on  the  possible  direction  of Community  action". 

Stage  2 

"If, 

after 

such  consultation, 

the  Commission  considers 

Community  action  advisable,  it  shall  consult  management  and 

labour  on  the  content  of the  envisaged  proposal.  Management 

and  labour  shall  forward  to  the  Commission  an  opinion  or, 

where  appropriate,  a  recommendation"  (Article  3(3)  of  the 

Agreement). 

Jn  the  light  of the  experience  already  acquired,  the  Commission  proposes  to 

proceed  as  follows: 

the  first  consultation  of the  social  partners  would  take  place  on 

receipt  of  the  letter  from 

the  Commission.  The  requested 

consultation  may  be by  letter or.  if the  social  partners  so desire, 

by  the convening of an  ad  hoc  meeting.  The consultation  period 

should  not  exceed  six  weeks~ 

the Commission will  decide its  position  in  the light of comments 

received  during the first  round  of consultations,  and  will  decide 

whether  to  proceed  to  the  second  phase~ 

the second conultation  phase will  be initiated  with  the  receipt  of 

the second  letter sent by  the Commission,  setting out the content 

of the  planned  proposal  together  with  indication  of the  possible 

I egal  basis: 

t1' 

On  the  occasion  of this  second  consultation,  the  social  partners 

should  deliver  to  the  Commission  in  writing  and,  where  the 

social  partners  so  wish  through  an  ad  hoc  meeting,  an  opinion 

setting  out  the  points  of agreement  and  disagreement  in  their 

respective  positions  on  the  draft  text.  Where  appropriate,  they 

should deliver a  recommendation setting out their joint positions 

on  the  draft  text.  The duration  of this  second  phase  shall  also 

not  exceed  6  weeks. 

20. 

The new  consultative  procedures  will  not be  a  complete  substitute for  the  old, 

especia11y  where these involve the use of well  established  tripartite consultative 

committees.  In  particular,  the  following  committees  would  be  the  mechanism 

for consultation of the social  partners,  including where appropriate consultation 

under the  terms  of Article 3:  the  Advisory  Committee on  Safety,  Hygiene  and 

1-lealth  Protection at Work and the Advisory Committee on  the Free Movement 

of  Workers.  The  two  procedures  may,  on  occasion,  therefore  operate  In  a 

parallel  way  depending  on  the  subject  matters  of the  specific  proposal.  The 

Commission  will  ensure,  however,  that  duplication  is  avoided  and  that there  is 

the  maximum  of transparency  at  all  stages  of the  different  procedures. 

21. 

The Commission  thinks  it  expedient to  re-examine  the way  the  social  dialogue 

works  at  present  with  a  view  to  promoting  dialogue  under  the  Agreement.  To 

this  end,  it  intends  to  take  the  appropriate  steps  to  rationalise  the  various 

consultation  processes,  including  such  processes  at  sectoral  level. 

THE ORGANISATIONS  TO  BE  CONSULTED 

22. 

When  drawing  up  the  vanous  measures  it  proposed  further  to  the  action 

programme  relating  to  the  implementation  of the  Community  Charter  of the 

Fundamental  Social  Rights  of Workers,  the  Commission  took  the  view  that  it 

would  be  advisable for  many  initiatives  of prime  political  importance to  form 

the subject of in-depth consultation  in  the context of the social  dialogue.  These 

initiatives  did  not  fall  within  the  scope  of  any  of  the  existing  advisory 

committees.  Moreover,  the  conclusions  of  the  meeting  held  at  the  Palais 

d'Egmont  on  12  January  1989,  adopted  unanimously,  authorised  the  steering 

group  to  request  the  Commission  "to  consult the two sides  of industry  on  any 

project or proposal  for  a  decision  during  its  preparatory  phase". 

In  the  context  of the  two-stage  joint  consultation  process  which  the 

Commission agreed upon with the representatives of ETUC.  UNICE and 

CEEP,  the  Commission  departments  have  extended  their  consultations 

to other organisations which  are representative in  both the economic and 

social  fields. 

23. 

Since the adoption  of the  Maastricht Treaty,  the  Protocol  on  Social  Policy  and 

the  Agreement,  a  number  of the organisations  which  do  not  participate  in  the 

existing  social  dialogue  have  submitted  formal  requests  to  the  Commission  to 

take part directly  in  the  social  dialogue.  To take a  position  on  this  question  in 

full  knowledge  of the  facts,  the  Commission  carried  out  a  study  of European 

employers'  and  workers'  organisations  so  as  to  enable  the  Commission  to 

understand more clearly the different mechanisms by which representative social 

dialogues  are  established  at  national  level.  and  to  assist  in  assessing  how  this 

process  might  best  operate  at  Community  level. 

This study on  the social  partners, the main  results of which  are set out in  Annex 

:l,  is  available  to  the  public  on  request.  The  Commission  draws  two  main 

messages  from  this  study: 

<~  r 

L-

fa) 

the diversity of practice in  the different Member States is such that there 

is  no  single  model  which  could  be  replicated  at  European  level,  and 

fb) 

the  different  Member  States'  systems  having  all  taken  many  years  to 

grow and  develop,  it  is  difficult  to  see  how a  European  system  can  be 

created  by  administrative  decision  in  the  short  term. 

24. 

As  a  matter  of general  principle  the  Commission  believes  that  organisations 

should  be  consulted  within  the  terms  of Article  3  of the  Agreement  in  so  far 

as  they  meet  the  following  criteria. 

The  organisations  should: 

be  cross  industry  or  relate  to  specific  sectors  or  categories  and  be 

organised  at  European  level~ 

consist of organisations which  are themselves an  integral  and  recognised 

part  of Member  State social  partner structures  and  with  the  capacity  to 

negotiate agreements, and which are representative of all  Member States, 

as  far  as  possible~ 

have  adequate  structures  to  ensure  their  effective  participation  tn  the 

consultation  process. 

Annex  2  sets  out  the  organisations which  currently  comply  broadly  with  these 

criteria. The list will  be reviewed in  the light of experience acquired  in  applying 

the  new  procedures  instituted  by  the  Agreement,  and  of the  way  the  social 

dialogue  develops. 

1l 

25. 

At the  same  time,  the  Comtnission  recognises  that  there  is  a  substantial  body 

of experience behind the social  dialogue established between the UNICE, CEEP 

and  ETUC. 

It  has  also  taken  note  of  their  joint  position  regarding  the 

implementation  of the  new  procedures  introduced  by  the  Agreement. 

26. 

There are a  number of organisations which  meet the criteria set out in  para 24 

and  which  are  thus  potential  candidates  for  involvement  in  the  consultation 

process.  The Commission does not wish to take a  restrictive view of this issue, 

hut  is  at  the  same  time  conscious  of  the  practical  problems  posed  by  a 

tnultiplicity  of potential  actors.  Only  the  organisations  themselves  are  in  a 

position  to  develop  their  own  dialogue  and  negotiating  structures.  The 

Commission  will  endeavour  to  promote  the  development  of  new  linking 

stntctures  between  all  the  social  partners  so  as  to  help  rationalise  and  improve 

the  process.  Special  attention  will  be  paid  here  to  the  due  representation  of 

small  and  medium-sized  undertakings. 

27. 

This  raises  the  question  of whether  or  not  it  is  necessary  in  a  first  phase  to 

ereate  some  form  of consultation  body  or  umbrella  liaison  committee  for  the 

purposes of the  procedure foreseen  under  Ar1icle  3  of the  Agreement.  Having 

earefully  considered  the  matter,  the  Commission  considers  that  at  this  initial 

stage  this  is  not  the  best  way  forward,  though  this  question  will  undoubtedly 

need  to  be  re-examined  in  the  light  of experience  as  the  process  develops. 

New  approach  to  consulhltion:  Surnnulry 

28. 

The  situation  regarding  consultation  of  the  social  partners  on  social  policy 

tnatters  is  now  as  follows: 

The  Commission  will  continue  its  policy  of wide-ranging  consultation 

to  ensure  that  its  policy  relates  as  closely  as  possible  to  economic  and 

social  realities.  Such  consultation  will  cover  all  European  or,  where 

appropriate,  national,  organisations  which  might  be  affected  by  the 

Community's  social  policy. 

Within  the  framework  of Article  3  of the  Agreement  it  will  undertake 

formal  consultations  with  the  European  social  partners'  organisations 

which  are listed  in  Annex  2  and  which  meet the criteria set out  In  para 

24. 

The Commission  feels  that these specific  consultation  procedures  under 

the terms of Article 3  of the Agreement should apply  to all  social  policy 

proposals,  whatever 

legal  basis 

is  eventually  decided  on.  The 

Commission  also  reserves  the  right  to  engage  in  specific  consultations 

on  any  other  horizontal  or  sectoral-type  proposal  which  has  social 

implications. 

The formal  consultation  of the  social  partners  provided  for  in  Article  ] 

of 

the  Agreement  may 

lead 

to 

the 

adoption  of  opinions, 

recommendations  or  agreement-based  relations  (including  agreements) 

within  the  social  partners'  sphere  of competence. 

FROM  CONSULT AT ION  TO  NEGOTIATION 

29. 

The social  partners consulted  by  the  Commission  on  the  content  of a  proposal 

for  Community  action  may  deliver  an  opinion  or,  where  appropriate,  a 

recommendation  to the Commission.  Alternatively,  they  may  also,  as  stated  in 

Article  3(4),  "inform  the  Commission  of  their  wish  to  initiate  the  process 

provided  for  in  Article  4".  Should  they  decide  on  this  latter  course  of action, 

they  may  embark,  independently,  upon  a  process  of negotiation  which  could 

lead  to  the  establishment  of  a  direct  agreement  between  the  parties.  The 

negotiation  process may  take  up to nine  months and  may  be extended  with  the 

agreement  of the  Commission. 

30. 

The  question  of whether  an  agreement  between  social  partners  representing 

certain  occupational  categories  or  sectors  constitutes  a  sufficient  basis  for  the 

Commission  to  suspend  its  legislative  action  will  have  to  be  examined  on  a 

case-by-case basis with  particular regard  to the nature and  scope of the proposal 

and  the  potential 

impact  of  any  agreement  between 

the  social  partners 

concerned  on  the  issue  which  the  proposals  seek  to  address. 

31. 

Jn  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.  The social  partners concerned  will  be those who agree 

to  negotiate  with  each  other.  Such  agreement  is  entirely  in  the  hands  of the 

different  organisations.  However,  the  Commission  takes  the  view  that  the 

provisions regarding small  and medium-sized undertakings referred to in  Article 

2(2)  of the  Agreement  should  be  borne  in  mind  by  organisations  which  are 

~;ignatory to  an  agreement. 

32. 

The  negotiations  may  not  exceed  mne  months,  unless  the  social  partners 

concerned  and  the Commission decide jointly to  extend  them.  The Agreement 

between the Eleven  has associated the Commission in  this decision on extension 

and empowered  it  to  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. 

In  making  such  an  assessment,  the  Commission  will  respect  fully  the  social 

partners'  independence. 

33. 

At  or  before  the  end  of this  nine-month  period,  therefore,  the  social  partners 

have  to  submit  to  the  Commission  a  report  taking  stock  of the  negotiations. 

This  report  may  inform  the  Commission  that: 

a) 

they  have  concluded  an  agreement  and  jointly  request  the 

Commission  to  propose  that  the  Council  adopt  a  decision  on 

implementation,  or 

b) 

having concluded an  agreement between  themselves,  they  prefer 

to  implement  it  in  accordance  with  the  procedures  and  practices 

specific to tnanagement and labour and  to the Member States,  or 

c) 

they  envisage  pursuing the  negotiations  beyond  the  nine  months 

and  accordingly  request  the  Commission  to  decide  with  them 

upon  a  new  deadline,  or 

d) 

they  are  unable  to  reach  an  agreement. 

34. 

Where  point  d)  applies,  the  Commission  will 

look  into  the  possibility  of 

proposing,  in  the  light of the work  already  done,  a  legislative instrument  in  the 

1ield  in  question  and  will  forward  the  result  of its  deliberations  to  the  Council. 

The Economic and  Social  Committee and the  European  Parliament will  also be 

consulted  in  accordance  with  the  procedures  laid  down  in  the  Treaty. 

35. 

At  any  event,  and  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  procedure  involving  the  social 

partners. 

36. 

Consultation of the Member States will  take place as  in  the past.  As regards the 

situation  in  the  EFTA  countries,  the  point  has  already  been  made  that  the 

Protocol forms  part of the acqui,,· communautaire like any other provision of the 

EC  Treaty.  Thus,  a  decision  taken  on  the  basis  of Article  4  may  be  extended 

to  the  EFT A  countries  too.  In  practice,  the  social  partners'  organisations 

normally  cover  the  EFT A  countries,  so  that  they  are  de  facto  integrated  at  all 

stages  of the  consultation  procedure,  with  negotiation  being  a  matter  for  the 

social  partners. 

THE  IMPLEI\1ENTATION  OF THE  AGREEMENTS 

37. 

Agreements  concluded  at  Community  level  are  to  be  implemented: 

a) 

either  in  accordance  with  the  procedures  and  practices  specific  to 

management and  labour and  the Member  States~ this provision is  subject 

to  the  following  declaration: 

"The  11  High  Contracting  Pa11ies  declare 

that 

the  first  of  the 

arrangements  for  application  of the  agreements  between  management 

and  labour at Community level  -referred to in  Article 4(2)- will  consist 

cl 

in  developing,  by  collective bargaining according  to the  rules  of each 

Member State,  the content of the agreements, and  that consequently this 

arrangement  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". 

h) 

or,  in  matters covered by  Article 2,  at  the joint request of the signatory 

parties,  by  a  Council  decision  on  a  proposal  from  the  Commission. 

The Council  is  to act by qualified majority,  except where the agreement 

in  question  contains one or  more  provisions  relating to  one of the  areas 

referred  to  in  Article  2(3),  in  which  case  it  is  to  act  unanimously. 

Jn  the  event  of negotiations  resulting  in  an  agreement  that  the  social  partners 

decide  to  implement  via  the  voluntary  route,  the  terms  of this  agreement  will 

hind  their  members  and  will  affect only  them  and  only  in  accordance with  the 

practices  and  procedures  specific  to  them  in  their  respective  Member  States. 

THE COUNCIL DECISION 

38. 

The  Commission's  view  IS  that  implementing  an  agreement  concluded  at 

Community  level  by  means  of  a  Council  decision  on  a  proposal  from  the 

Commission  at  the joint  request  of the  social  pat1ners  would  give  the  Council 

no opportunity  to  amend  the agreement.  For this  reason,  the Commission  will 

merely  propose,  following  examination  of the  agreement  between  the  social 

partners,  the  adoption  of a  decision  on  the  agreement  as  concluded. 

39. 

By  virtue  of its  role  as  guardian  of the  Treaties,  the  Commission  will  prepare 

proposals  for  decisions 

to 

the  Council 

following  consideration  of  the 

representative status of the contracting parties,  their mandate and  the  "legality" 

of each  clause  in  the  collective  agreement  in  relation  to  Community  law,  and 

the provisions regarding small and medium-sized undertakings set out in  Article 

2(2).  At  all  events,  the  Commission  intends  to  provide  an  explanatory 

memorandum  on  any  proposal  presented  to  the  Council  in  this area,  giving its 

comments  and  assessment  of the agreement  concluded  by  the  social  partners. 

Where  it  considers  that  it  should  not  present  a  proposal  for  a  decision  to 

implement  an  agreement  to  the  Council.  the  Commission  will  immediately 

inform  the  signatory  parties  of the  reasons  for  its  decision. 

40. 

Under  Article  4(2)  of the  Agreement,  the  Commission  is  not  legally  required 

to consult the European Parliament on  requests made to it by the social  partners 

concerning  implementation  of an  agreement  by  means  of a  Council  decision. 

However,  the  Commission  does  intend  to  inform  Parliament and  to  send  it  the 

text  of  the  agreement,  together  with  its  proposal  for  a  decision  and  the 

explanatory  memorandum,  so  that  Parliament  may,  should  it  consider  it 

advisable,  deliver  its  opinion  to  the  Commission  and  to  the  Council. 

41. 

The  Council  decision  must  be  limited  to  making  binding  the  provisions  of the 

agreement  concluded  between  the  social  partners,  so  the  text  of the  agreement 

would  not  form  par1  of the  decision,  but  would  be  annexed  thereto. 

42. 

]f the  Council  decides,  in  accordance  with  the  procedures  set  out  in  the  last 

subparagraph  of Article  4(2),  not  to implement  the  agreement  as  concluded  by 

the  social  partners,  the  Commission  will  withdraw  its  proposal  for  a  decision 

and will  examine, in  the light of the work done,  whether a legislative instntment 

in  the  area  in  question  would  be appropriate. 

THE IMPLEMENTATION  OF DIRECTIVES  BY  COLLECTIVE AGREEMENT 

43. 

Article 2( 4) of the Agreement states that a signatory Member State "may entrust 

management  and  labour.  at  their  joint  request.  with  the  implementation  of 

directives adopted pursuant to paragraphs 2 and 3".  However, the Member State 

remains responsible for ensuring that "management and labour have introduced 

the necessary  measures by agreement"  and  for taking  "any necessary  measures 

enabling  it at  any  time to be in  a  position  to  guarantee the  results  imposed  by 

1hat directive". This implementation of a directive by agreement must take place. 

"no  later  than  the  date  on  which  a  directive  must  be  transposed  in  accordance 

with  Article  189". 

44. 

This  provas1on  establishes,  in  the  context  of  the  ·Agreement,  the  general 

principle  that  directives  may  be  implemented  by  collective  agreement.  This 

principle has been  recognised  in  the case law of the Court of Justice3

.  It is  also 

in  line  with  the  implementation  requirements  of  the  International  Labour 

Organisation4  and  the Council  of Europe5

. 

45. 

Article 2(4) of the Agreement must be interpreted  in  the light of the objectives 

set  out  in  Article  I  of that  same  Agreement:  promotion  of dialogue  between 

management  and  labour,  taking  account  of  the  diverse  forms  of  national 

practices,  in  particular  in  the  field  of contractual  relations. 

46. 

Article  2(4)  does  not  require the Member  States to  introduce any  particular or 

3 

4 

Case  91/81  [ 1982]  ECR  2133~ Case  193/83  [ 1985]  ECR  427. 

lLO Conventions  Nos  I 00,  l 0 I,  I 06,  Ill,  171,  172,  etc. 

Article  35  (I) of the  European  Social  Charter. 

special  procedures or that any explicit formal  terms of reference be given to the 

social  partners~  nor  is  there  any  need  for  them  to  submit  a joint  request  prior 

to  negotiations  between  them  on  an  agreement  for  implementation  of  the 

directive.  The  actual  conclusion  of an  agreement  and  its  forwarding  tQ  the 

competent  authority  of the  Member  State  should  be  regarded  as  a  tacit joint 

request within  the  meaning  of the  first  paragraph  of Article  2( 4). 

47. 

Under  the  second  subparagraph  of Article  2(4)  the  Member  State  concerned 

remains  responsible  for  ensuring  that,  no  later  than  the  date  on  which  a 

directive must be transposed  in  accordance with  Article  189,  the social  partners 

have  introduced  the  necessary  measures  by  agreement  and  for  taking  "any 

necessary  measure  enabling  it  at  any  time  to  be  in  a  position  to  guarantee  the 

results  imposed  by  that directive".  This wording,  which  is  a  slightly  amended 

version  of  corresponding  provisions  in  certain  directives6

, 

implies  that  the 

Member  State  concerned  must  provide  for  procedures 

to  deal,  where 

appropriate, with any shortcomings in the agreement implementing the directive, 

the purpose being to ensure that the workers concerned are  in  practice afforded 

their  rights  under the  directive. 

48. 

Under  Article  2(4),  the  Member  State  must  "guarantee the  results  imposed  by 

that  directive",  although  it  may  entrust  management  and  labour  with  its 

implementation.  In  this  connection  the  reference  in  Article  1 of the  Agreement 

to  measures  which  "take account  of the  diverse  forms  of national  practices,  in 

particular in  the  field  of contractual  relations"  is  relevant. 

6 

Article  2(1)  of  Council  Directive  92/56/EEC  of  24/6/1992:  At1icle  9(1)  of 
Council  Directive  91/533/EEC  of  14/10/1991. 

)/ 

CONCLUSION 

49. 

The  new  situation  created  by  the  co-existence  of  two  legal  frameworks  for 

action  in  the  social  field  will  be complex  to  manage. 

The new role for  the  social  partners is  a  good  step  forward  but will  need  time 

to grow and  develop. 

The  Commission  will  do  all  it  can  to  operate  these  new  procedures  in  an 

efficient  but  flexible  manner.  The  important  point  at  this  early  stage  of 

implementing the new mechanisms is to allow space for  natural  evolution.  The 

creation  of heavy  structures  is  not  likely  to  yield  the  best  results  at  this  early 

stage. 

The Commission  feels  that this Communication  lays  down  the groundrules  for 

the  implementation  of the  new  procedures  so  that  business  can  be  conducted 

efficiently  and  openly.  The  Commission  sees  this  as  a  dynamic  process  which 

will  develop  with  time  and  will  require  re-examination  at  some  later  stage. 

To  this  end,  the  Commission  has  decided  to  make  provision  for  a  regular 

pattern  of appraisal  and  re-examination  in  cooperation  with  the  Council,  the 

Parliament and  the social  partners themselves  in  the light of experience gained. 

Annex  I 

OVERVIEW  OF  THE MAIN  LEGAL  BASES  FOR  SOCIAL  POLICY  MEASURES 

MAASTRICHT  PROTOCOL 

EC  TREATY 

QUALIFIED  MAJORITY  (44/66) 

QUALIFIED  MAJORITY  (54/76) 

POSSffiLE (Art.  2  (I)) 

POSSIBLE 

improvement  in  particular of the 

.Art.  49:  free  movement  of workers 

working  environment  to  protect 

workers'  health  and  safety 

.Art.  54:  freedom  of establishment 

working  conditions 

.Art.  57:  1nutual  recognition  of diplomas 

the  information  and  consultation  of 

.Art.  125  (new):  ES 

workers 

(application  decision) 

equality  between  men  and  women 

.Art.  127  (new):  vocational  training 

with  regard  to  labour  market 

opportunities  and  treatment  at  work 

.Art.  118a:  health  and  safety  at  work 

the  integration  of persons  excluded 

.Art.  I OOa.  Art.  43:  agriculture:  Ar1.  75: 

from  the  labour  market 

transpor1 

UNANIMITY {11)  REQUIRED  (Art.  2  (3)) 

UNANIMITY  ( 12)  REQUIRED 

social  security  and  social  protection  of 

.Art  51:  social  security  (measures 

workers 

necessary  for  freedom  of movement) 

protection  of workers  where  their 

. Art.  I 00:  internal  m ark et 

employment contract  is  terminated 

representation  and  effective  defence  of 

and  organisation  of the  Structural 

.Art.  130d:  tasks,  priority  objectives 

the  interests  of workers  and  employers, 

Funds 

including  eo-determination 

.Art.  235 

conditions  of employment  for  third-

country  nationals  legally  residing  in 

Community  territory 

financial  contributions  for  promotion  of 

employment and job  creation 

EXPLICITLY  EXCLUDED  FROM 

COMMUNITY 

JURISDICTION  (Article  2  (6)) 

pay 

right  of  association,  the  right  to  strike, 

the  right  to  impose  lock-out. 

t:' L 
) "1 

Annex  2 

Social  partners'  organisations  currently complying with  the criteria  set out in  paragraph 

24  of the  {~ommunication 

1. 

General  cross-industry  organisations: 

lJnion  of Industrial  and  Employers'  Confederations  of Europe  (UNICE) 

European  Centre  of Enterprises  with  Public  Participation  (CEEP) 

European  Trade  Union  Confederation  (ETUC) 

2. 

!:ross  -

industry  organisations  representing  certain  categories  of  workers  or 

!tndertaki ngs: 

European Association of Craft,  Small and Medium-Sized Enterprises (UEAPME ~nd 

E /J R.-C f.>tl1I 

other associated  organisations) 

Confederation  europeenne  des  cadres  (CEC) 

Eurocadres 

3. 

Specific  organisations: 

EUROCHAMBRES 

4. 

Sectoral  organisations  with  no  cross-industry  aftiliationM· 

Eurocom merce 

COP A/COGECA 

Sectoral  organisations  of UNICE  and  committees of the  ETUC  will  also  be  consulted  as 
required  (see  category  I). 

Association  of European  Cooperative  Insurers,  AECl 

International  Association  of Insurance  and  Reinsurance  Intermediaries,  BIPAR 

European  Insurance  Comtnittee,  CEA 

Banking Federation  of the  European  Community 

Savings Banks Group  of the  European  Community,  GCECEE 

Association  of Cooperative  Banks  of the  EC 

European  Timber  Association,  ET A 

Confederation  of the  National  Hotel  and  Restaurant  Associations  in  the  European 

Community,  HOTREC 

European  Construction  Industry  Federation 

European  Regional  Airlines  Association,  ERA 

1nternational  Civil  Airports  Association,  ICAA 

Association  des  transports  aeriens a la  demande 

Association  of European  Community  Airlines,  AECI 

Association  of European  Airlines,  AEA 

Organisation  europeenne  des  bateliers 

]nternational  Union  for  Inland  Navigation 

European  Community  Shipowners  Association 

Community  of European  Railways 

1 nternational  Road  Transport  Union 

Main  Findin~:s of the  "Social  Partners Study (Representativeness)" 

Annex  3 

The main  purpose of the study  is  to  get  an  overview  of what is  represented  by  a  number 
of European federations  at all-industry level  (the exact choice  is  explained  below).  It does 
not aim  to  give  a  full  description  covering all  representative all-industry or sectoral social 
partners'  organisations  at European  or national  level. 

Key  questions  dealt with  in  the initial  phase (the expert reports) 
In  the first  phase of the study  a  report consisting of two  parts was  made for  each  Member State 
by an  independent expert from  that country.  The first part of the expert reports supplied the basic 
data  which  show  how  the  following  issues  of representativeness  of employers'  and  trade  union 
organisations  are  dealt  with  within  the  framework  of both  formal  consultations  and  collective 
bargaining: 

if systems for formal  or mutual  recognition  of social  partners exist,  what criteria are used 
to  establish  whether  they  are  representative? 

the existence of formal  mechanisms for consulting social  partners at  national,  sectoral  or 
regional  levels:  who  is  involved? 

in  the context of both  formal  consultations  (at  national,  regional  or sectoral  levels)  and 
of  negotiations,  an  inventory  of  relevant  legal,  administrative  and  political  rules 
concerning  trade  unions  and  employers  organisations,  in  particular  rules  regarding  the 
inclusion  and/or  exclusion  of certain  organisations. 

The second part of the expert reports consisted of "individual  factsheets"  for each  relevant (within 
the context  of the  study)  organisation  of employers and  trade  unions  in  that country,  indicating: 

type:  its  area  of activity  (industries  covered)~ 

quantitative  data:  about  its  membership  and  affiliated  organisations~ 

qualitative  men1bership  data:  what  type  of  membership  (e.g.  over- or  under-

representation 

of certain  categories  or  sectors)~ 

collective  bargaining  role:  to  what  extent  is  the  organisation  involved 

in  concluding 

collective  agreemements~ 

role  in  consultations:  its  involvement  in  formal  consultations  at  national  level  (if more 
appropriate,  at  regional  or  sectoral  levels)~ 

5} 

2 

links  of  the  organisation  with  other  organisations,  1n  particular  membership  of 

organisations 

at  a  higher level  (national,  EC),  and 

representation,  directly  and  indirectly,  in  the  annual  IL0-1neetings. 

Choice  of organisations  covered  by  the study 

The  study  deals  with  European  federations  of employers'  and  trade  union  organisations  at  all 
industry  level.  The selection of "relevant"  organisations for the purpose of this study  was carried 
out as  follows: 

Included  are  federations  with  tnember  organisations  having  a  clear  vocation  to  represent  the 
interests  of their  members  as  either  employers  or  trade  union  organisations  both  in  the  context 
of negotiations  (with  the  "other  side")  and  in  consultations.  Some  organisations  are  included  in 
the study  although  it was  not a  priori  fully  clear to  what extent they  would  satisfy  this  criterion, 
one of the purposes of the study  being to clarify  their nature.  Some organisations were added  to 
the  list  of "relevant"  organisations,  because  they  had  made explicit  requests  to  the  Commission 
to  be considered  for  inclusion  in  the  Social  Dialogue. 

More  specifically,  twelve  confederations were  chosen,  for  the  following  reasons: 

UNICE,  CEEP  and  ETUC  because they  are already  participants in  the social  dialogue at 
European  level; 

on  the trade union  side the two following organisations who seek  participate in  the  social 
dialogue:  CEC  and  CESI; 

on the employers' side UEAPME, EUROPMI and  possibly  EMSU who have made similar 
requests  on  behalf of SME's;  AECM  and  CEDI,  which  equally  represent  SME's  at  the 
European  level,  have  been  added  to  permit  a  more  complete  comparison  between  these 
"competing"  organisations; 

EUROCOMMERCE,  although  not  an  all-industry,  but a  multi-sectoral  organisation  also 
\\:ith  substantial  SME-membership,  has  also  requested  to  be  recognized  as  the  first 
representative  of  the  trade  sector  in  social  affairs,  rather  than  UNICE.  ECWIT A,  a 
partially competing sectoral federation (with EUROCOMMERCE), was included to clarify 
the  situation  regarding  the  (wholesale)  trade  sector. 

The fact  that  no  other sectoral  federations  were  included,  does  not  imply  that  they  would  be  of 
less representative significance, both in  their own sector or at European level,  but only  means that 
in  the  other sectors  questions  concerning  representativeness  did  not  arise  in  a  similar  way. 

3 

they  represent  and  about 

The  inclusion  of  certain  federations  in  this  study  therefore  in  no  way  prejudges  their 
representativeness. It mainly means that there was a  need  to  have more  information about 
what 
their  (inter)relationships.  Some  other  European 
organisations,  which  are  in  themselves  much  more  important  than  some  of the  ones  just 
mentioned,  were  not  included  because  there  was  no  need,  within  the  context  of  the 
application  of the  Social  Protocol,  to  have such  clarification  about them. 

Methodology  used 

Initially  the  work  was 
The  study  was  carried  out  in  the  period  September  1992  - July  1993. 
mainly  done  by  the  national  experts  selected  by  the  Commission  who  were  responsible  for 
drafting a  report about their own  country  with  the contents described  above.  In  a  next  phase all 
twelve  country  reports  were  analysed  and  summarised  by  the  services  of DG  V  in  the  form  of 
so-called  .. quick  analyses ..  Part  A  and  Part  B,  which  were  largely  based  upon  the  reports  but 
which  also contained data which  were supplied by  the expert to the Commission after closure of 
their final  report. 

These  documents  were  then  sent  to  the  twelve  European  federations  examined  to  give  them  an 
opportunity  to  react to  their  descriptions,  and  to  verify  the  correctness  of the  data,  in  particular 
those  relating  to  their  own  organisation.  In  most  cases  the  provisional  findings  were  also 
discussed  with  them  (in  informal,  bilateral  meetings).  Similarly,  the  documents  have  been  the 
subject of extensive discussions with  the national  administrations  of the Member States (in  most 
cases the  Ministry  of Labour or Social  Affairs),  which  have  been  closely  involved  in  this  study 
project from  the beginning in  Septetnber  1992 through  the meetings of the Directors General  for 
Working  Relations  and  have  all  corrected  the  initial  drafts. 

The latest draft is  therefore still  based on  the initial work of the national  experts,  but it  has 
also  incorporated  rnany  con1ments  and  data  corning  fron1  the  consulted  organisations  and 
adn1 inistrations. 

The  study  addresses  the  following  questions  in  particular: 

1.  What systems  for  recognition  of social  partners  do  exist  in  the  Member  States? 
For  collective  bargaining,  in  most  countries  mutual  recognition  is  the  basic  mechanism,  but 
additional  formal  or  legal  requirements  may  have  to  be  fulfilled.  In  several  countries  there  are 
mechanisms  (for  example  quantitative  criteria  established  by  law  or  otherwise)  to  make  a 
distinction  between  organisations  with  (the  most)  substantial  membership  and  those  which  are 
less  representative. 

For other  purposes  (for  example  representation  on  consultative  bodies:L 
there  are  in  half of the  Metnber  States  formal  recognition  mechanisms  which  have  different  or 
additional  features  to  the  ones  used  for  collective  bargaining  purposes. 

4 

The  study  shows  that  there  is  a  great  diversity  in  the  Member  States  in  the  systems  and 
mechanisms used for recognition of social  partners' organisations and that it is difficult to identify 
a common denominator which could easily be transposed to the Community level,  apart from  the 
principle of mutual  recognition  for  negotiation  purposes. 

2.  In  the  formal  systems  for  recognition  of  social  partners,  what  criteria  are  used  to 
establish  whether they are representative? 
These systems,  if they  exist,  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. 

3.  What formal  mechanisms  for  consulting social  partners  exist  at  national  level? 
Most  Member  States  have  at  least  one  formal  body  for  consultation  of the  social  pa11ners,  of 
varying significance.  Some kind  of "Social  and  Economic Council"  is  the  most  prevailing type. 

4.  Who  is  involved  in  those  formal  consultations? 
As  a  general  rule  the  major  national  "umbrella"  federations  affiliated  to  UNICE  and  ETUC 
occupy most of the seats in the formal  consultative bodies listed under 3.  However,  in  most cases 
a  smaller  number of seats  is  attributed  to  other  organisations. 

5.  What  do  the  twelve  independent  EC-Ievel  organisations  of employers  or  trade  unions 
examined represent in each Member State? What can be inferred froan  this concerning their 
"significance"  or  representativeness  at  the  level  of the  European  Contmunity? 
The  study  summarizes  what  each  of  the  twelve  European  federations  examined  basically 
represents  at  the  level  of  each  Member  State,  without  going  into  much  detail  about  any 
weaknesses  or strengths  they  might  have  in  specific  sectors. 

However, on the basis offue findings of the study it is  possible to come to the following analysis 
of the  organisations  examined. 

I 

On  the  employers'  side: 

The  most  representative  general  all-industry  employers'  federation  is  UNICE~ CEEP  is 
also generally  recognised  as  an  employers'  federation  at  European  level. 

Employers federations or associations which are very representative for specific categories 
of enterprises  or  specific  aspects  of their  activities,  in  particular: 

When  SME's are concerned:  UEAPME (and  its joint structure with  EUROPMI); 

Possibly  under  the  same  heading  also  EUROCOMMERCE,  which 
is  a 
representative  multi-sector  organisation  with  many  SME-members  and  which 
claims that its members employ about 20 million  people (but considerable overlap 

5 

with  UNICE).  One  could,  however,  also  find  arguments  for  considering  it  to  be 
a  most  representative  employers'  organisation  of the  trade  sector; 

When training or employment initiatives are concerned for  instance organisations 
like EUROCHAMBRES, CECOP, YES  FOR EUROPE; 

When the liberal  professions are directly  concerned:  SEPLIS (not covered by the 
study,its  representativeness  remains  to be established). 

Substantially  representative sectoral employers federations or associations which  will  be 
consulted  on  proposals  directly  relating  to their  specific  sectors. 

ll On  the trade  union  side: 

The  most  representative  general  all-industry  trade  union  federation  is  ETUC.  There  is 
another  general  trade  union  federation  which  claims  to  be  representative  at  European 
level:  CESI.  However,  its  total  membership,  which  is  to  be found  predominantly  in  the 
public  and  semi-public  sectors,  is  believed  to  be  at  most  approximately  a  tenth  of the 
ETUC.  CESI  has  no  affiliates  in  Denmark,  Greece  and  Ireland.  The  role  of its  member 
organisations  in  both  collective  bargaining and  in  formal  consultations  at  national  level 
is  not very  significant in  most other Member States.  CESI  is  not likely  to  be recognized 
by  the  employers'  federations  as  a  very  significant  negotiating  partner  at  the  EC-Ievel. 

Trade  union  federations  or  associations  which  are  very  representative  for  specific 
categories  of  workers,  in  particular  in  respect  of  higher  white-collar  employees  and 
managerial  staff:  CEC.  The  same  category  is  also  organized  inside  ETUC  in 
EUROCADRES,  which  is  believed  to  be at  least  as  representative. 

Substantially representative sectoral trade union  federations or associations which  will  be 
consulted  on  proposals  directly  relating  to  their  specific  sectors. 

The findings  of the study are set out in  three separate annexes: 

Annex  I  to the  study  presents  its  main  findings. 

Annex ll to  the  study  contains  summary  tables  presenting an  overview of the  national  affiliates 
of the twelve European Federations covered.  The answers to question  5 are  mainly  derived  from 
these  tables. 

6 

In  many  cases  the  Federations  have  more  than  one  affiliated  organisation  per  country,  and  the 
tables  do  not  always give  an  overview of all  affiliates in  that  country  (see  explanatory  notes  to 
the  tables). 

Annex m presents  in  much  more  detail  than  Annex  I  an  overview of the  answers  to  questions 
1 to 4,  in  separate  chapters for  each  Member State. 

The three  annexes  to the  study  are  available  at the  Commission  for  anyone  who  is  interested. 

Operational Chart 
showing the Implementation 
of the Agreement on Social Policy 

Annex 4 

First consultation 

Second consultation 

Continue 

track ~ 

No further action 

Consultation 
track 

Cooperation 

t 

Depending 
on  subject 

t 

Consultation 

E.P. and ESC 
informed