The Social Dialogue as a Source of EU Legal Acts – Past Performance and Future Perspectives
Draft paper submitted for publication in the collected courses volume of the EUI Summer Course on European Law 2014 as one of the Specialized Courses on “EU Legal Acts: Challenges and Transformations”(OUP).
Posted: 9 Dec 2015 Last revised: 13 Mar 2018
Date Written: December 7, 2015
The social partners enjoy a special position in EU law. At the EU level, organizations of employers and workers are privileged stakeholders within the system of information and consultation regarding EU social policies. They may enter into negotiations, leading up to contractual relations, which may in turn be transformed into EU law by Council decision. At the national level, social partners may be responsible for implementation of EU law, but may also jointly or on their own accord be held accountable for violations of the Treaty provisions on non-discrimination and freedom of movement.
Both the TFEU provisions, the EC and the ECJ recognize the (de jure and/or de facto) regulatory function of the social partners, both at national and European level. Hence, it makes sense to study the role of the social partners as EU legal actors in the context of the current course/book. But studying the role of private actors as regulators poses a challenge, both with regard to the issue of definition (what exactly is meant by ‘private regulation’?) as to the question of legitimacy. On both topics the literature is immense and cannot even be summarized here. Hence the goals of this contribution can be no more than modest. What I aim to do, is first to provide an overview of the role of social partners in EU law. It will be concluded that EU law does recognize the regulatory role of the social partners, but provides neither a legal nor a fully developed conceptual framework (§ 2). The second point to be addressed concerns the output of the social dialogue at EU level (§ 3). Here the conclusion will be that the social partners fulfill a variety of functions, both as stakeholder and co-regulator. However, only a small percentage of the documents produced in the social dialogue have the status of collective agreement. It is the latter group which is most interesting from the point of view of regulation. Hence in the next sections, the route from agreement to binding decision is analyzed. How do the activities of the social partners interact with the EU legislative architecture (§ 4)? Can these acts be measured by the existing model(s) of good governance at EU level (§ 5 and 6).
The question is topical as there is currently a debate on the role of the Commission with regard to the procedure of Article 155 TFEU. This debate is triggered by the refusal of the Commission to put a collective agreement entered into by the social partners in the hairdressing sector before Council. The refusal was part of the Refit package in which the Commission announced its strategy to reduce red tape.1 Hence, the result of negotiations between the social partners was tested against the current policy agenda of the Commission. This contribution puts that decision in a wider perspective in order to assess its implications for the future (§ 7).
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