Consultation and Agreements between Management and Work-Force
by Abbo Junker
The idea of a social dialogue, developed by Jacques Delors, was realized for the first time on 31 January 1985 with the initiation of a social dialogue at the castle of Brussels Val Duchesse, and subsequently became a component of Art 118b EC as amended by the Single European Act (SEA) in 1987. Article 154 TFEU/118b EC required the Commission to promote the dialogue between management and labour on a European level—possibly resulting in a contractual relationship. At the Maastricht Intergovernmental Conference in 1991 the socio-political competences were meant to be extended under an amendment of the EU Treaty. However, the United Kingdom blocked such an amendment. Therefore, a Social Policy Protocol was annexed to the—furthermore unmodified—EC Treaty. This Social Policy Protocol referred to a Social Policy Agreement that was signed by 11 of the Member States of the then European Communities. The United Kingdom opted out. This led to a ‘two-speed Europe’ with two distinct legal bases for social policy: the EC Treaty itself and a separate agreement that the United Kingdom had not signed. This Social Policy Agreement set out the policy objectives whose path had first been paved by the 1989 Social Charter: promoting employment, improving living and working conditions, combating exclusion, developing human resources etc. It also laid down the procedure for adopting social policy measures and acknowledged the vital role played by management and labour in this field.
Following the election of a new government in the United Kingdom in 1997 it was possible to incorporate the Social Policy Agreement—almost verbatim—into the Social Chapter of the EC Treaty through the Treaty of Amsterdam (Arts 138 ff) on 2 October 1997. The Treaty of Nice amended the fields of activities of the Member States (Art 153 TFEU/137 EC).
According to Arts 153 ff TFEU/137 ff EC there are four different types of social dialogue. The informal social dialogue includes various statements of will, eg Communications from the European Commission. The consultation of management and labour and the promotion of their dialogue according to Art 154 TFEU/138 EC are part of the vertical institutional social dialogue. Within the framework of the horizontal institutional social dialogue, opinions of management and labour are formulated and agreements between management and labour are made; these agreements then become part of Union law or the domestic law as part of the legislative social dialogue. The legislative dialogue complies with Art 154(2)-(4) TFEU/138(2)–(4) EC and Art 155 TFEU/139 EC and is part of the legislative procedure of the European Union.
3. European management and labour
Just who constitutes management and labour in the social dialogue is neither defined in Arts 154, 155 TFEU/138, 139 EC nor elsewhere in Union law. Regarding its evolutionary history, the social dialogue has occurred via the following organizations which represent the social partners at European level: on the side of the employer, the Union of Industrial and Employers’ Confederations of Europe (UNICE) and the European Centre of Employers and Enterprises providing Public services (CEEP) and, on the side of the employee, the European Trade Union Confederation (ETUC). In addition to these three European cross-industry organizations, there are many other socio-professional groups representing specific or sectoral interests.
4. Rights regarding the involvement of management and labour
According to Art 154(1) TFEU/138(1) EC, the Commission shall have the task of promoting the consultation of management and labour at the Union level and shall take any relevant measure to facilitate dialogue by ensuring balanced support for the parties. This general task is made concrete by different rights regarding involvement.
a) Rights to be heard
According to Art 154(2) TFEU/138(2) EC the Commission shall consult management and labour on the possible direction of Union action before submitting proposals in the social policy field. If, after such consultation, the Commission considers Union 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 (Art 154 (3) TFEU/138(3) EC). On the occasion of such consultation, management and labour may according to Art 154(4) TFEU/138(4) EC inform the Commission of their wish to initiate the process provided for in Art 155 TFEU/139 EC.
b) Competence of law-making
The social dialogue according to Arts 154 and 155 TFEU/138(4) and 139 EC expands the involvement of management and labour on European law-making in a dual manner. First, where the Commission has taken the initiative of its own accord, management and labour can be brought into the legislative procedure in the second consultation stage (Art 154(4) TFEU/138(4) EC). Secondly, management and labour may pursue agreements on a topic of European legislation and contact the Commission pursuant to the procedure outlined in Art 155(1) TFEU/139(1) EC.
Agreements concluded by management and labour at the Union level shall be implemented either in accordance with the procedure and practices specific to management and labour and the Member States (Art 155(2) TFEU/139(2), alt 1 EC) or, in matters covered by Art 153 TFEU/137 EC and at the joint request of the signatory parties, by a Council decision on a proposal from the Commission (Art 155(2) TFEU/139(2) EC).
The regulation in Art 155(2)(1) TFEU/139 (2)(1) EC represents a political target with a non-binding recommendatory character for the implementing institution. The agreement is only binding on the actual parties who have concluded it; it does not apply to management and labour at Member State level or to the Member States themselves. Article 155(1) TFEU/139(1) EC also does not enable the enactment of a normative rule, ie it is not a basis for the conclusion of a European collective agreement. The content of the agreement obtains proximate effect by domestic law on collective agreements or a normative legal act by the responsible legislative organ.
The implementation of an agreement pursuant to Art 155(1) TFEU/139(1)1 EC by a Council decision according to Art 155(2)(2) TFEU/139 (2)(2) EC represents a transformation on the European level. The transformation by a Council decision stands in contrast to implementation by management and labour or by the Member States (Art 155(1)(1) TFEU/139(1)(1) EC) and is only possible in matters covered by Art 153 TFEU/137 EC.
Attention should be paid to Art 153(5) TFEU/ 137(5) EC, whereupon agreements cannot refer to pay, the right of association, the right to strike or the right to impose lock-outs.
The Council shall act by qualified majority, except where the agreement in question contains one or more provisions relating to one of the areas for which unanimity is required pursuant to Art 153(2) TFEU/137(2) EC. In that case, it shall act unanimously.
The legal character of a Council decision under Art 155(2) TFEU/139(2) EC is disputed. Based on previous practice the decision has the character of a directive. Procedural prerequisites are the joint request of the signatories of the agreement and the proposal of the Commission.
c) Competence for implementation
According to Art 153(3) TFEU/137(3) EC a Member State may entrust management and labour, at their joint request, with the implementation of directives adopted pursuant to Art 153(2) TFEU/137(2) EC. In this case, it shall ensure that, no later than the date on which a directive must be transposed in accordance with Art 288 TFEU/ 249 EC, management and labour have introduced the necessary measures by agreement, the Member State concerned being required to take necessary measures enabling it at any time to be in a position to guarantee the result imposed by that directive.
5. Developments in the field of management and labour agreements
To date, 15 joint opinions have been delivered on economic growth, the introduction of new technology education, vocational training and other subjects. In the second part of 1990 the Council of the European Community (Council and the European Council) adopted several directives which arise from the social dialogue regulated in Art 154(4) TFEU/138(4) EC. This social dialogue developed five cross-industry framework agreements concerning parental leave, part-time work, temporary work, telework and stress. Three of these agreements have been translated into secondary Union law, namely parental leave, part-time work and temporary work. Regarding the agreements on telework, management and labour did not request implementation by a Council decision.
Christian Arnold, ‘Die Stellung der Sozialpartner in der europäischen Sozialpolitik’  NZA 1261; Ursula Rust, ‘Art 98–188 EC‘ in Hans von der Groeben and Jürgen Schwarze (eds), Kommentar zum Vertrag über die Europäische Union und zur Gründung der Europäischen Gemeinschaft, vol 3 (6th edn, 2003); Olaf Deinert, ‘Partizipation europäischer Sozialpartner an der Gemeinschaftsrechtssetzung’  RdA 211; Abbo Junker, ‘Die Zukunft des europäischen Arbeitsrechts’ (2006) RIW 721; Maximilian Fuchs and Franz Marhold, Europäisches Arbeitsrecht (2nd edn, Vienna 2006); Roland Schwarze, ‘Sozialer Dialog im Gemeinschaftsrecht’ in Hartmut Oetker and Ulrich Preis (eds), Europäisches Arbeits- und Sozialrecht, part B 8100; Gregor Thüsing, Europäisches Arbeitsrecht (2008).