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Published online by Cambridge University Press: 17 January 2008
Since the 1997 Amsterdam Intergovernmental Conference a sea-change in the formulation and implementation of European Union Social Law and Policy has taken place in response to the demands made by economic, political and monetary union. The evolution of EU social law is an area which has developed within a process or framework of “differentiated integration”,1 not only between the Member States, but also the regions of the EU. Since its emergence in the EU Council's Conclusions of 22 June 19842 the concept of a “European Social Area” has slowly been created by the processes of “Europeanisation”3 of social policy whereby through EU-led processes a “re-nationalisation”4 of domestic policies has taken place. The process is similar to the ideas of “re-regulation” of national law in relation to the basic economic freedoms of the EC Treaty whereby a measure of national autonomy can only be retained through European Community law standards. It is striking how the Amsterdam IGC has led to a definite shift in the paradigm of EU social policy law with distinctive aims, values, processes, new legal tools and new political actors.
1. For a discussion of “differentiated integration” see Walker, N., “sovereignty and Differentiated Integration in the European Union” (1998) 4 European Law Journal 55.CrossRefGoogle Scholar
2. “… differences between the institutions and social policies do not preclude the implementation of joint measures aimed at gradually promoting a European social area.” OJ. 1984 C175/1.
3. Snyder identifies the process of “Eropeanisation” as encompassing, inter alia, the effects of European integration on certain fields of national law, the elaboration of EU law so as to provide a new framework for, or sometimes to even replace, national laws, the interaction of piecemeal strands of EU law with national law and finally indirect and sometimes unintended consequences of European integration in relation to national law. Snyder, F., “Introduction” in Snyder, F. (ed.), The Europeanisation of Law (2000), p.3.Google Scholar
4. See the use of this term by S. Sciarra, “Global or Re-Nationalised? Past and Future of European Labour Law’ in Snyder, ibid., pp.269–291.
5. Certain Aspects for A European Union Social Policy: a Contribution to Economic and Social Convergence in the Union O.J. 1994 C368/6.
6. See Nielsen, R. and Szyszczak, E., The Social Dimension of the EU (1997).Google Scholar
7. On the need to create a typology of this new form of soft law see Szyszczak, E., “The Evolving European Employment Strategy” in Shaw, J. (ed.), Social Law and Policy in an Evolving European Law (forthcoming).Google Scholar
8. Supra n.4.
9. Cullen, H. and Campbell, E., “The Future of Social Policy-Making in the European Union” in Craig, P. and Harlow, C. (eds), Lawmaking in the European Union (1998), pp.262–284.Google Scholar
10. COM (93) 700.
11. This is seen in the attempts to develop a co-ordinated employment and social policy (or strategy) from the Essen Council Summit 1994 onwards. Although the Commission introduced a monitoring procedure and benchmarking exercises for the Member States’ policies, the lack of institutional co-ordination mechanisms and evaluation of policies reduced the EU's commitment to a “State-watching” role.
12. See Biagi, M., “The Implementation of the Amsterdam Treaty With Regard to Employment: Co-ordination or Convergence?“ (1998) 14 The International Journal of Comparative Labour Law and Industrial Relations 325.CrossRefGoogle Scholar
13. The Labour Ministers of the G8 countries, the European Commission, alongside representatives of ILO, OECD, IMF (as well as representatives from the two sides of industry) met in Washington, DC on 24–26 Feb. 1999 in a conference entitled “Labour Polices in a Rapidly Changing Global Economy”. Here they endorsed the EU approach, the G8 countries seeing the EES as being an effective instrument to enhance employment.
14. The title of the Summit was “Employment, Economic Reforms and Social Cohesion—for a Europe of Innovation and Knowledge”. See www.portugal.ue-2000.pt/uk/docmne-main02.htm
15. “The Lisbon European Council—An Agenda of Economic and Social Renewal for Europe” contribution of the EC Commission to the Special European Council in Lisbon, 23–24 Mar. 2000, DOC/007, Brussels, 28 Feb. 2000. See also the Commission's Social Policy Agenda which uses this as a recurring theme: COM (2000) 379. This aspect of the “Europeanisation” of EU and national labour law is explored in Nielsen, R., European Labour Law (2000).Google Scholar
16. COM (2000) 551 final, p.6.
17. See Szyszczak, E., EC Labour Law (2000), Chap. 1.Google Scholar
18. Article 126 EC states “Member States, through their employment policies, shall contribute to the achievement of the objectives referred to in Article 125 in a way consistent with the broad guidelines of the economic policies of the Member States and of the Community adopted pursuant to Article 99(2).” Note the difference between the Joint Employment Report (supra n. 16) where an upbeat message on employment and economic growth is delivered and the Commission's sterner message in the proposed Broad Economic Guidelines (COM (2000) 214) where the message is that economic growth is weak and that the employment rate disappointingly lower than expected.
19. See Sciarra, S., “The Employment Title in the Amsterdam Treaty. A Multi-Language Legal Discourse” in O'Keeffe, D. and Twomey, P. (eds), The Treaty of Amsterdam (1999), pp.157–170.Google Scholar
20. See Rodriguez-Piñero Royo, M. C. “Flexibility and European Law: A Labour Law Lawyer's View” in de Búrca, G. and Scott, J. (eds), Constitutional Change in the EU: From Uniformity to Flexibility? (2000) pp.219–235Google Scholar and Szyszczak, supra n.17.
21. Snyder, F., “EMU Revisited: Are We Making a Constitution? What Constitution Are We Making?” in Craig, P. and de Búrca, G. (eds), The Evolution of EU Law (1999), pp.417–78.Google Scholar
22. This precedent has led to the idea for a new Committee, The Social Protection Committee, which will bring together high level officials from the Member States to act as focal points for new forms of co-operation in “modernising social protection in the EU”. COM (2000) 134 final. The Commission also proposes to invite other relevant actors to participate in this process: the European Parliament, the Economic and Social Committee, the Committee of the Regions, NGOs, and social security institutions.
23. See Biagi, supra n.12.
24. Arguments are made that the involvement of the social partners in the Stability Pact and the agenda of improving domestic competitiveness have weakened the traditional social corporatist arrangements in Western Europe, giving way to a much weaker social agenda. See Rhodes, M., Competitive Corporatism (1997)Google Scholar and Teague, P., “Monetary Union and Social Europe” (1998) 27 Journal of Social Policy 117.CrossRefGoogle Scholar
25. See Sciarra, supra n. 4.
26. See the ESRC Project One Europe or Several? The Dynamics of Change Across Europe, Project Emerging Boundaries of European Collective Bargaining at Sector or Enterprise Level, www.one-europe.ac.uk/cgi-bin/esrc/world/db.cgi/proj.htm+24.
27. Sand, I.-J., “Understanding the New Forms of Governance: Mutually Interdependent, Reflexive, Destabilised and Competing Institutions” (1998) 4 European Law Journal 270.CrossRefGoogle Scholar
28. See A. Benz and B. Eberlein, Regions in European Governance: The Logic of Multilevel Interaction, RSC Working Paper, No. 98/3 www.iue.it/ERPA/mainfiles/ ../../RSC/WP-Texts/98_31.html.
29. See, for example, www.eurocities.org.
30. European Commission, European Strategy for Encouraging Local Development and Employment Initiatives (1995).Google Scholar
31. Action for Employment in Europe, A Confidence Pact, Doc. CSE (96) 1 final, EU Bull. Supp. 4/96, p.30. The idea behind this is that the creation of new jobs can only be enhanced by confidence built in the economic field on the basis of concerted action by the different actors in the economic, social and political field in order to establish a co-ordinated employment strategy. The idea was taken up by the European Council at the Florence Summit of June 1996.
32. See Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, Acting Locally For Employment: A Local Dimension For the European Employment Strategy COM (2000) 196 final.
33. Swyngedouw, E., “The Mammon Quest: ‘Globalisation,’ Interspatial Competition and the Monetary Order: The Construction of New Scales” in Dunford, M. and Kaflakis G., G. (eds), Cities and Regions in the New Europe (1992).Google Scholar
34. Council Directive 97/81/EC of 15 Dec. 1997 concerning the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC, O.J. 1998 L14/9.
35. Council Directive 1999/70 of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, O.J. 1999 L175/143.
36. Case T–135/96 ]1998] E.C.R. II–2335.
37. See, for example, Bercusson, B., “Democratic Legitimacy and European Labour Law” (1999) 28 Industrial Law journal 153.CrossRefGoogle Scholar
38. By this I mean the organisation of the social partners at the national and transnational level, how mandates are achieved, processes of consultation, re-adjustment of mandates during the bargaining process etc.
39. Supra n.16, Part I, 4.3.
40. COM (1999) 347. Other “soft law” during 2000 includes the following Commission documents: COM (2000) 79 Building An Inclusive Europe; COM (2000) 78, Policies in Support of Employment; COM (2000) 163, Report on Social Protection in Europe and COM (2000) 368, Proposal for a Decision to the European Parliament and Council Establishing a Programme of Community Action to Encourage Co-operation Between the Member States to Combat Social Exclusion.
41. These comprise employment, health care, old age and social exclusion.
42. Council Conclusions on the Strengthening of Co-operation For Modernising and Improving Social Protection, 226th Council Meeting of Labour and Social Affairs Ministers, Brussels, 29th Nov. 1999, 13457/99.
43. A prime concern has been the sustainability of pension schemes. One of the first mandates given to the High Level Group at the Lisbon Summit of Mar. 2000 was to prepare a study, based upon a Commission Communication, on the long-term evolution of social protection. Pensions are estimated to make up over 40% of social security budgets and all Member States face the common challenge of an ageing population. In contrast other policies from the Commission's 1999 Communication have not been followed up, for example, the Council has explicitly excluded public health issues from these processes (see COM (2000) 285), strategies for the new Accession of the Central and Eastern European States have not been fully refined beyond vague reference to the need to secure a balance between economic and social development in applicant States and new ground rules have not been established for alternative models for financing social security.
44. Commission Communication to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, Strategic Objectives for 2000–2005, Shaping the New Europe COM (2000) 154.
45. For a wider discussion see E. Szyszczak, EC Labour Law, supra n.17, pp 17–18.
46. These four categories comprise 1. The basics (employment, good social protection, health care and housing); 2. Prevention of exclusion (use of new IT technologies, action for the disabled, prevention of debt, exclusion from school, homelessness); 3. Help for the most vulnerable (disabled, other groups, children); 4. Mobilisation of all parties (public authorities, social partners, NGOs, social responsibility of business).
47. See the use of horizontal direct effect of Article 39 EC in Case C–281/98 Roman Angonese v. Cassa di Risparmio SpA judgment of 6 June 2000, [2000] 2 CMLR 1120.Google Scholar
48. See Bercusson, B. et al. , “A Manifesto for Social Europe” (1999) 3 European Law Journal 189.CrossRefGoogle Scholar
49. The changes ushered in by the old Article 118A EC in the Single European Act 1987 were the legislative beginnings for such a process, although, of course, the lead was taken much earlier by the Court of Justice.
50. Case 43/75 [1976] E.C.R. 455.
51. Case C–67/96 Albany International BV v. Stichting Bedrijfspensioenfonds Textielin-dustrie, judgment of 21 Sept. 1999.
52. Ibid, para.54.
53. Case C–50/96, judgment of 10 Feb. 2000.
54. Case 149/77 Defrenne III [1978] E.C.R. 1365, paras 26 and 27; Joined Cases 75/82 and 117/82 Razzouk and Beydoun v. Commission [1984] E.C.R. 1509, para. 16; Case C–13/94 P v. S and Cornwall CC [1996] E.C.R. 1–2143, para. 19.
55. Now Article 141 EC.
56. Supra n.53, para. 57.
57. See Moreau, A., “The Lessons of Renault” in Olsson, P.-H. et al. (eds), Transnational Trade Union Rights in the European Union (1998).Google Scholar
58. See the Resolution of the European Council on the Stability and Growth Pact, 16 June 1997, OJ C 236/1 (2 Aug. 1997).
59. The Member States were slow to take this idea up, as is revealed in the Commission's 1999 Recommendations to the Member States COM (99) 442. But the 2000 Joint Report, (supra n.16, Part I, 4.5) suggests that there is greater interest (and success) in this field.