The Social Dimension of the Reform Treaty[1]

The European Community, with its common market, which came out of the EEC of 1957 has so far primarily been based on the foundation of market and competition. Community policy is and was therefore essentially market policy. Priority is given to financial, competition and economic policy as a matter of common interest, while social and employment policy is conceived of as a secondary policy area - slotting in behind, with varying status and binding to a greater or lesser degree - which may correct or adjust market policy.

The reform treaty seeks to correct this one-sided view: in it, Article 3(3) on the objectives of the Union now reads: ‘The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment.

It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.

It stimulates economic, social and territorial cohesion and solidarity between the Member States.'

This horizontal approach to develop a social dimension in the Union is defined generally in Article 9. 'In defining and implementing its policies and actions, 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.'

Thus the Union is saying loud and clear that it is founded on the basic principle of the European social model; this should be realised ‘by appropriate means commensurate with the competences which are conferred upon it in the Treaties' (Article 3(5)).  The European social model is underpinned by the reference (Article 6) to the legally binding adoption of the Charter of Fundamental Rights, which includes the essential, enforceable, social fundamental rights.[2] However, the competences of the Union as defined in the Treaties are in no way extended by the provisions of the Charter.

As regards actually guaranteeing fundamental social rights, the public welfare structures, solidarity-based social security systems and economic and social general interest services all play an important role, and the Member States need enough scope to define and form them.

Thus Article 16 (EU Treaty) is specified as follows: ‘The provisions of the Treaties do not affect in any way the competence of Member States to provide, commission and organise non-economic services of general interest', and, ‘The shared values of the Union in respect of services of general economic interest include in particular:

• the essential role and the wide discretion of national, regional and local authorities in providing, commissioning and organizing services of general economic interest as closely as possible to the needs of the users;

• the diversity between various services of general economic interest and the differences in the needs and preferences of users that may result from different geographical, social or cultural situations;

• a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights.'

The social chapters of the old constitutional treaty remain unchanged so that unfortunately unanimity within the Council's agreement must still be obtained to pass laws on a European level concerning:

• employee's social security and protection;
• employee protection when an employment contract is terminated;
• representation and collective defence of employee and employer interests including co-determination and,
• terms of employment for third-country nationals.

Legislation in the area of social security is made even more difficult by the addition of the following text:

‘Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:

(a) refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure, or,

(b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.'

Fundamentally the reform treaty does not extend the existing competencies in the employment and social areas, as regulated by the current treaties; however with its socio-political emphasis it strengthens Europe's social dimension by accentuating the social market economy, which aims for full employment and social progress. Moreover, apart from fighting social exclusion and discrimination and promoting justice and social protection, the aims now also include solidarity between generations and acceptance of fundamental social rights such as non-discrimination, equality between men and women, children's rights, rights of the elderly, integration of people with disabilities, the right to social security benefits, fair and appropriate working conditions, prohibition of child labour and protection of young people in the workplace.

For many years it has proven particularly difficult to pass majority or unanimous decisions, as demonstrated by the dossiers on working time, temporary work, employee data protection, revision of guidelines on European works councils and portability of occupational pensions. The open coordination method does not make it any easier. The Intergovernmental Conference should therefore investigate the possibility of whether countries could adopt European legislative proposals if they so wish and in this way formulate and implement binding social standards.

Klaus Kellersmann

[1] The reform treaty will include two key articles amending the Treaty on European Union (TEU) and the Treaty Establishing the European Community (TEC). The TEU will keep its current name and the TEC will be known as the Treaty on the Functioning of the Union.

[2] The authority of a United Kingdom court is in not extended by the Charter in such a way that a court could decide that the legal and administrative provisions are not in accordance with the fundamental rights, freedoms and principles in the Charter.