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4th meeting, Opatija, 16 October 2008
EUROPEAN SOCIAL DIALOGUE AND CIVIL DIALOGUE
Ms Metka Roksandić, member of the European Economic and Social Committee
The aim of this paper is to outline the content of the two concepts of social dialogue and civil dialogue, within the context of the European legal framework, its implementation and practice[1].
1. European social dialogue
1.1 Legal framework
The first consultations between social partners began in the mid 1960s. The launch of the bipartite social dialogue in 1985 was promoted by Jacques Delors, the President of the European Commission (EC) at the time. During a first period (1985-1991), the bipartite activities resulted in the adoption of resolutions, declarations and joint opinions, without any binding force.
The second phase (1992-1999) was opened with the signature, on 31 October 1991, of an agreement between the social partners, which was subsequently integrated into the protocol on social policy and annexed to the Maastricht Treaty in 1991. This agreement of 1991 was incorporated into the Amsterdam Treaty in 1997.
As a part of the Treaty establishing the European Community (TEC), the European social dialogue is a fundamental element of the European social model. It encompasses the discussions, negotiations and joint actions undertaken by the European social partners.
The articles 138 and 139 of the TEC give a specific role to consultation between employers and workers. The obligatory consultation of social partners in all matters of social policy laid down in article 137 is foreseen by article 138. Article 139 addresses the negotiations through which the European social partners can conclude agreements on social policy at EU level.
1.2 Bipartite social dialogue
It is also known as "Val Duchesse dialogue" and takes the form of consultations between employers and trade-union organizations at European level. Bipartite social dialogue can take place either on a cross-industry or sectoral basis and consists of formal consultations, exchanges of view and negotiations. The EC acts as a mediator and a facilitator.
The European social partners meet mainly in social dialogue committees. These take place regularly and adopt the results of the consultations. Besides the main social dialogue committee, set up in 1992, there are currently 33 other committees for different sectors. The committees can set up working groups to look into specific issues. They can also decide to open negotiations, which take place in special meetings organised specifically for that purpose.
At EU level, workers are represented by the European Trade Union Confederation (ETUC). European employers are represented by three different organisations: the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP), created in 1961; BUSINESSEUROPE (formerly the Union of the Industrial Federations of the EEC countries - UNICE), founded in 1958; and, following a cooperation agreement signed in 1998, the European Association of Craft Small and Medium-Sized Enterprises (UEAPME), which participates in the social dialogue as a member of the BUSINESSEUROPE delegation. Social partners at European level are defined by the EC’s decision according to the principles laid down and relevant studies carried out.
1.3 The mechanism of articles 138 and 139 of the TEC
1.3.1 Article 138
The consultation process according to article 138 has two stages:
· Before submitting proposals for new social policy legislation, the EC has to consult workers and employers on the possible direction of EU action.
· If the EC then considers EU action advisable, it must consult workers and employers on the content of its planned proposal.
After the second stage, the European social partners (only employers and trade unions at the European level) can inform the EC that they wish to open negotiations and start the process laid down in article 139.
1.3.2 Article 139
Article 139 gives to employers and trade-union organizations the opportunity to conclude agreements on social policy at European level if they decide so. Negotiations cannot exceed nine months unless the European social partners and the EC jointly decide to extend it. Any agreements concluded by the European social partners will be legally binding once implemented.
The implementation can take one of the following forms:
· Either the European social partners ask the Council to adopt a decision (in practice, this is a directive proposed by the EC). In this way, the agreement becomes part of EU law.
· Or the social partners make their national member organizations responsible for implementing the agreement in line with the relevant national procedures and practice; these are known as "autonomous agreements".
These procedures apply to both cross industry and sectoral social dialogue.
Besides the process of consultation and negotiation provided by the TEC, there is also a process of autonomous social dialogue developed independently by the European social partners, without the EC consulting them first.
In December 2001, at the EU Summit in Laeken, the social partners called in their declaration for more autonomy for social dialogue. This led to the adoption of two years work programmes for cross industry social partners, identifying the issues to be negotiated and other initiatives for the relevant period. Such programmes have also been adopted in each particular sector.
The result of such autonomous social dialogue is visible in the signature of several autonomous agreements (for example on teleworking in 2002 and stress at work in 2004), which are implemented by the social partners themselves.The European social partners make recommendations to their members, making sure that they commit themselves to ensuring that these are implemented at the national level. These texts mainly take the form of action frameworks, codes of conduct and guidelines.
1.4 Results of bipartite social dialogue
Consultations between European social partners result in various texts and proposals:
a) Agreements and framework agreements adopted by the social partners that are legally binding. They establish minimum standards and assign the implementation of certain commitments to a deadline, in line with the article 139 (2) of the TEC. There are two types of such agreements, and the main difference lie in the method of implementation foreseen.
· Agreements implemented by Council decision and monitored by the EC are for example:
-Framework agreement on parental leave, 1995;
-Framework agreement on part-time work, 1997;
-Framework agreement on fixed-term work, 1999;
-European agreement on the organization of working time of seafarers, 1998;
-European agreement on the organization of working time of mobile workers in civil aviation, 2000;
-European agreement on certain aspects of the working conditions of mobile workers assigned to interoperable cross-border services, 2004;
-Agreement of certain aspects of the working conditions of railway mobile workers assigned to interoperable cross-border services, 2007.
The three cross-industry framework agreements were negotiated as a result of a consultation under article 138. Concluded sectoral agreements make use of the space left to the social partners by a directive (Directive 93/104/EC concerning certain aspects of the organization of working time) to adapt the Community provisions to the specific needs of the sector.
The responsibility for ensuring that agreements implemented by Council decision are transposed and implemented lies with the Member States, even in cases where the provisions are implemented through collective bargaining by social partners.
· Autonomous agreements implemented by the procedures and practise specific to management and labour and the member states. These are monitored by the social partners themselves. They are for example:
-Framework agreement on teleworking, 2002;
-Framework agreement on work-related stress, 2004;
-Agreement on the European licence for drivers carrying out a cross-border interoperability service, 2004;
-Agreement on Workers Health Protection through the Good Handling and Use of Crystalline Silica and Products containing it;
-Framework agreement on harassment and violence at work.
Effective implementation and monitoring is important in the case of agreements of this kind, particularly if they have been negotiated subsequent to an EC consultation under article 138. Article 139 (2) states that Community level agreements "shall be implemented", which implies that there is an obligation to implement these agreements and for the signatory parties to exercise influence on their members in order to implement the European agreement.
b) Process oriented texts consist of a variety of joint texts which are implemented in a more incremental and process-oriented way than agreements. In these texts, European social partners make recommendations of various kinds to their members for follow-up. They also evaluate regularly the progress made toward achieving their objectives. The implementation of some aspects of these texts may require cooperation with national public authorities. These are:
· Frameworks of action which consists of the identification of certain policy priorities towards which the national social partners undertake to work. Social partners report annually of the action taken to follow-up these texts. They are for example:
- Framework of actions on the lifelong development of competencies and qualifications, 2002 (cross-industry);
- Framework of actions on gender equality, 2005 (cross-industry).
· Guidelines and codes of conduct make recommendations and/or provide guidelines to national affiliates concerning the establishment of standards or principles. For example:
- Agreement on promoting employment in the postal sector in Europe, 1998;
- European agreement on guidelines on teleworking in commerce, 2001;
- Code of conduct - Guidelines for European hairdressers, 2001;
- Code of conduct on CSR in the European sugar industry, 2003;
- Guidelines to drawing up gender equality action plans in local and regional government, 2008.
· Policy orientations are meant as texts in which social partners pursue a proactive approach to promoting certain policies among their members. The texts explain how these will be promoted (e.g. collection and exchange of good practise, awareness-raising activities) and how the social partners undertake to assess the follow-up. These are for example:
- Orientations for reference in managing change and its social consequences, 2003 (cross-industry);
- Joint statement on Corporate Social Responsibility in commerce, 2003;
- Lessons learned on European Works Councils, 2005 (cross-industry);
- Joint statement of the postal sector on CSR, 2005.
c) Joint opinions and tools contribute to exchanging information, either from the social partners to the EU institutions and/or national public authorities or by explaining the implications of EU policies to national members. The instruments do not entail any implementation, monitoring or follow-up provisions. These are for example:
- Joint declaration on the European harmonization of the legislation governing the private security sector, 2001;
- Joint declaration on the objectives of the European directive on private agency work (temporary work sector), 2001;
- Brochure on tutoring in construction industry, 2004;
- Joint declaration on the mid-term review of the Lisbon strategy, 2005 (cross-industry social partners);
- European Vocational Training Manual for Basic Guarding (private security).
d) There are also procedural texts in which parties lay down the rules for the bipartite social dialogue. This includes the cross-industry social partners.
e) Follow-up reports are the final category of outcomes, consisting of the follow-up reports produced jointly by the social partners, in which they report on the implementation and follow-up given to their new generation texts. Examples are:
- Third report on the Code of conduct on Corporate Social Responsibility (sugar sector) 2004;
- Third follow-up report on the framework of actions for the lifelong development of competencies and qualifications, 22 March 2005;
- 2005 Report on social partners actions on employment in Member States, 22 March 2005.
2. European Civil dialogue
2.1 Legal framework
There is no legal base for the civil dialogue at the European level and also no consensus on the concept itself, its scope, its procedures and the players involved. Many stakeholders, including the European Economic and Social Committee, are carrying out their own appraisals of these issues.
There is no commonly accepted or legal definition of the term "civil society organisation". Nevertheless, it exists a common understanding of what civil society organizations are. They consist of social partners (business and labour associations), companies or representatives of specific economic and social interest which are not social partners - interests such as consumer associations or organisations representing interest of professionals, and diffuse interest groups which champion collective causes (e.g. nongovernmental organisations) and religious communities.
Wide consultation is one of the EC's duties according to the Treaties. Protocol No 7 on the application of the principles of subsidiarity and proportionality, annexed to the Amsterdam Treaty, stipulates that "the Commission should [.] consult widely before proposing legislation, and, wherever appropriate, publish consultation documents."
General principles and minimum standards for consultation between the EC and interest groups are applicable since 1 January 2003 (Communication from the European Commission: Towards a reinforced culture of consultation and dialogue - General principles and minimum standards for consultation of interested parties by the Commission, COM(2002)704 of 11.12.2002).
On the 6th of September 2006 the European Parliament and the Council have adopted a Regulation (EC) N° 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies. The Aarhus Convention is widely recognized as the world’s foremost international instrument promoting access to information, public participation in decision-making and access to justice in environmental matters.
2.2 Consultation
The EC's Communication sets out principles (participation, openness, accountability, effectiveness and coherence), that should govern its attitude when it consults external parties. It also establishes minimum standards for consultation. They require, in particular, that
· the content of consultation is clear;
· relevant parties have an opportunity to express their opinions;
· the Commission publishes consultations widely in order to meet all target audiences, in particular via the web portal "Your Voice in Europe", which is the Commission's single access point for consultation;
· participants are given sufficient time for responses (8 weeks for open public consultations);
· acknowledgement and adequate feedback is provided.