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Treaties

Legislative Acts (binding and not binding)

European collective agreements

ECJ rulings The competencies in social law

• (1957) did not contain, apart from a very few articles specifici provisions on social law. • The European Community had no specific competencies about social issues that were reserved to national member state • The funding fathers were deeply convinced that any improvement in social conditions In the member states was possible if the internal market was installed and functioned without restrictions • Funding principle of the four freedoms: goods, services, capital and persons can move without restriction within the EU. The competencies in social law

• ARTICLE 100 of the Treaty of Rome • The Council shall, acting unanimously on a proposal from the Commission, issue directives for the approximation of such provisions laid down by law, regulation or administrative action in Member States as directly affect the establishment or functioning of the common market. • This provision means that the Commission for each proposal of a directive in the social field had to demonstrate that it directly affected the establishment or functioning of the common market. The competencies in social law

• ART. 119 Treaty of Rome • Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work (after work of equal value) • It was originally included in the Treaty to alleviate French concerns that its strong devotion in domestic law to the equal pay principle would not disadvantage French businesses in the common market. • Nontwithstanding it’s market regulation effects, art. 119 establish a genuine social right The competencies in social law

• European Court of Justice, C-149/77 • Miss Defrenne was employed as an air hostess by the belgian airline company, Sabena. • She brought an action before the belgianTribunal du travail claiming a compensation for the discrimination that she had suffered as a woman since she had been paid less than her male colleagues doing the same job as air stewards. • The European Court of Justice, in answering to a preliminary ruling request, said that Article 119 EEC can be interpreted as producing horizontal direct effects, so any employee can sue his/her employer to claim the right to get equal pay for equal work, even before the adoption of directives regulating the issue of equal pay. The freedom of movement of workers • Article 45 TFEU • Freedom of movement for workers shall be secured within the Union. • Such freedom of movement shall entail the abolition of any discrimination based on • nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. • 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: • (a) to accept offers of employment actually made; • (b) to move freely within the territory of Member States for this purpose; • (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; • (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission. • 4. The provisions of this Article shall not apply to employment in the public service. The competencies in social law

• The Single European Act (SEA) is the first Treaty amending the original Treaty of Rome in 1986 introduced provisions recognising a specific competence of the EU community for the harmonisation of health and safety conditions at work. • It also introduced the qualified majority voting principle inside the Council of Ministers . This voting principle helped the adoption of social directives laying down minimum requirements in the area of health and safety conditions at work. • The SEA also introduced the practice of social dialogue by which the social partners ( Unions and Employer’s associations) at European level could negotiate collective agreements. The competencies in social law

• The Community Charter of the Fundamental Social Rights of Workers was adopted at the Strasbourg Summit in December 1989 by the Heads of State or Government of 11 Member States. • the United Kingdom opted out and the Charter had a non binding nature but served as a basis for the Commission Programme of Social Action. • A reference to the Community Charter of the Fundamental Social Rights of Workers was made in the Treaty of Rome (today art. 151 TFEU)and even if indirectly, it acquired a binding nature. The competencies in social law

• Art. 151 TFUE • The Union and the Member States, having in mind fundamental social rights such as those set out in the signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, 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. The competencies in social law • (1992) • altered the former European treaties and created a based on three pillars: the European Communities, the Common Foreign and Security Policy (CFSP) and cooperation in the field of justice and home affairs (JHI). From now on two Treaties Treaty of the European Communities (EC treaty) and Treaty of the European Union (TEU) • introduced the European Community’s objective of the promotion of a high level of employment and social protection • Being impossible for the 12 Member States to reach a unanimous agreement during the intergovernmental conference, 11 Member States decided to move ahead by concluding an Agreement on Social Policy, with the UK opting out (Social Protocol annexed to the Maastricht Treaty). The competencies in social law

• the Amsterdam Treaty (2007), including the UK (Blair government), agreed to incorporate the Agreement on Social Policy into the text of the EC Treaty with some slight changes (Articles 151-161 TFEU). • In Article 153, the co-decision procedure with the parliament replaced cooperation and was also extended to provisions relating to the European Social Fund, the free movement of workers and social security for Community migrant workers. • The new Article 19 conferred on the EC the ability to ‘take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. The competencies in social law

• Lisbon Treaty ( 2007), • emphasises the EU’s social objectives, including full employment and solidarity between generations (Article 3); • Article 6 recognises the Charter of Fundamental Rights as having the same binding force as the Treaties. • A horizontal social clause is introduced into the TFEU: ‘in defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health’ (Article 9). • The fundamental social rights in EU law Charter of fundamental rights of the European Union (Nice 2000) • The Charter of Fundamental Rights of the EU sets out the full range of civil, political, economic and social rights that are based on other legal sources like: a) the fundamental rights and freedoms recognised by the European Convention on Human Rights (Council of Europe) b) the constitutional traditions of the EU Member States, for example, longstanding protections of rights which exist in the common law and constitutions of EU Member States c) European Social Charter (Council of Europe ,1961) d) the Community Charter of Fundamental Social Rights of Workers (1989) Charter of fundamental rights of the European Union (Nice 2000) • Article 15 Freedom to choose an occupation and right to engage in work • Article 20 Equality before the law • Article 21 Non-discrimination • Article 27 Workers’ right to information and consultation within the undertaking • Article 28 Right of and action • Article 29 Right of access to placement services • Article 30 Protection in the event of unjustified dismissal • Article 31 Fair and just working conditions • Article 32 Prohibition of child labour and protection of young people at work • REMEMBER! The Lison Treaty (2007) recognises the Charter of Fundamental Rights of the EU as having the same binding force as the Treaties. European labour law

The competencies of EU in the TFEU

•Article 3 TFUE •1. The Union shall have exclusive competence in the following areas: (a) customs union; (b) the establishing of the competition rules necessary for the functioning of the internal market; (c) monetary policy for the Member States whose currency is the ; (d) the conservation of marine biological resources under the ; (e) common commercial policy. European labour law

The competencies of EU

•Article 4 TFUE •1. Shared competence between the Union and the Member States applies in the following principal areas: •(a) internal market; (b) social policy, for the aspects defined in this Treaty; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conservation of marine biological resources; (e) environment; (f) consumer protection; (g) transport; (h) trans-European networks; (i) energy; European labour law Social Policy Social policy is not an area of exclusive competences of the Union and the Member States, they can both adopt legislative measures

Principle of

In areas which do not fall within its exclusive competence, the Community shall take action,inaccordance with the principle of subsidiarity,only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore,by reason of the scale or effects of the proposed action, be better achieved by the Community. European labour law Social Policy

Social policy as defined in art 4, par. 2 (b) of the TFEU is an area of shared competence between the Union nd the Member States

The Union and the Member States may legislate and adopt legally binding acts in the area of social policy. Shared competence between the Union and the Member States applies in the following principal areas: (b) social policy, for the aspects defined in this Treaty (see art. 153 TFEU where You can find the list of matters on wgich the EU competencies can be exercised) ; European labour law

In the area of social policy for some social matters a qualified majority voting is required inside the Council and this procedure make it easier to adopt binding legislative acts, like directives, establishing minimum requirements for all the Member States (art.153 TFEU.)

• improvement of the working environment to protect workers' health and safety; • working conditions; • information and consultation of workers; • integration of persons excluded from the labour market • equality between men and women with regard to labour market opportunities and treatment at work; • combating of social exclusion; • modernisation of social protection systems European labour law

Social matters for which unanimity is required inside the Council. For these matters even if a competence is recognised at EU level, de facto this competence is impossible or very difficult to exercise, since it’s very difficult to reach unanimity between 27 Member States (28?) (art. 153 TFEU). You can note that in all these issues the States have demonstrated to be reluctant to leave regulatory powers to the EU level

•social security and social protection of workers; •protection of workers where their is terminated; •representation and collective defence of the interests of workers and employers including co-determination; •conditions of employment for third-country nationals legally residing in Union territory; European labour law

Social matters for which any competence of the EU is excluded and which remains Of exclusive competence of Member States and no legislation at Eu level can be adopted: (art. 153 TFEU, last par.)

•wages •the right of association •the right to strike or the right to impose lock-outs. Remember that the right to strike is protected by art.II-28 (The Charter of fundamental rights of the European Union ) which says that workers and employers or their respective organisations in cases of conflicts of interest have the right to take collective action to defend their interests including . That means that there is a possible contradiction between these two legal sources ot the EU DIRECTIVES

• are binding for member states as to the objectives to be achieved • member states are free to choose the form and the means to implement them • In the social field they are the preferred source since they respect the traditions of Member States as far as industrial relations, workers structure of representation in working places, • Protection of the right to strike and so on. EFFECT OF DIRECTIVES

• direct effect: the capacity of a directive to create right and obligations • it’s possible even when a directive is not implemented yet (via judicial interpretation) • it’s possible when their content is enough clear and precise EUROPEAN REGULATIONS

•Its’a legislative act of general application •It ‘s binding in its entirety and directly applicable in all Member States without the need for national measures to implement them

In social law it is used in the social security area. Ex. Regulation 1408/1971 (replaced by Regulation 883/2004) On Coordination of social security systems DECISIONS

• they are not general as regulations • they are binding in their entirety upon those to whom they are addressed • they can be addressed to any or all member states, to undertakings or to individuals

A European decision it’s a non-legislative act binding in its entirety. A decision which specifies those to whom it is addressed It’s binding only on them. RECOMMENDATIONS AND OPINIONS

• THEY ARE NOT BINDING • THEY ARE INSTRUMENTS OF HARMONISATIONOF NATIONAL LEGISLATIONS • THEY CAN BE USED AS INTERPRETATIVE TOOLS RESOLUTIONS

• THEY ARE NOT BINDING • THEY ARE NORMALLY ADOPTED BY THE PARLIAMENT AND THE COUNCIL TO EXPRESS THE LINES OF A POLICY • MANY RESOLUTIONS HAVE BEEN ADOPTED IN THE SOCIAL FIELD (THE COMMUNITY CHARTER ON FUNDAMENTAL SOCIAL RIGHTS) European labour law

The employment strategy

•The Union and the Member States work towards developing a coordinated strategy for employment (art. 145 ff. TFEU) •Member states competencies in the field of employment policies Are respected •Each year the European Council adopts conclusion on the basis of an Annual report on the employment situation in the Union •On the basis of these conclusions the Council adopts (proposal of the Commission and the Parliament) employment guidelines which Member States shall take into account in their employment policies •Each member State will describe in an annual report the principal steps taken to implement its employment policy in the light of the guidelines European labour law

Social dialogue and collective agreements

•Before submitting any proposal in the social policy field, the Commission consults the social partners on the possible direction of Community action. •If the Commission considers Community action advisable it consults the social partners on the content of the envisaged proposal and a) Give an opinion or a recommendation. b) Initiate the process leading to a collective agreement in a period not exceeding nine months

The European collective agreements can be implemented as such in each member State or their content can be transferred into a directive