2 Colum. J. Eur. L. 241 (1996)
David O’Keeffe. Professor of European Law and Director of the Centre for the Law of the European Union, University College London; Visiting Professor, College of Europe; Editor, Common Market Law Review; Member, Editorial Advisory Board, Columbia Journal of European Law; Hon. Secretary, United Kingdom Association for European Law; Of Counsel, Coudert Brothers, London and Brussels. Former Legal Secretary to The Hon. Mr. Justice Thomas F. O’Higgins, Court of Justice of the European Communities.
The development of the Community’s social policy has been marred by a stop-go process, one which has consistently failed to achieve a satisfactory social policy at European level. This can be explained both by the weakness of the original Treaty provisions on social policy, and by successive partly-failed attempts to give a dynamism to social policy. These failures can be attributed to a lack of political will and have further reflected, at least until the passage of the Single European Act (SEA), the Community’s own lack of dynamism.
More fundamentally, however, the failure of Community social policy is a result of a lack of consensus among the Member States on the role of social policy in the Community, and whether it should be the subject of national or Community competence. Doubts also exist about the cost of social policy and its connection with Community growth, competitiveness and employment. The political differences in this area between the United Kingdom on the one hand and the remaining Member States on the other were crystallized in the Maastricht Treaty on European Union (TEU).
I. THE ORIGINAL TREATY PROVISIONS
The social provisions of the original EEC Treaty are found in Part Three, Title III, Chapters 1 and 2. The provisions applicable to workers, the self-employed and the providers of services, as well as Article 7 (now Article 6 of the EC Treaty) also have a notable social dimension, particularly in the light of the interpretation given to them by the Court of Justice.
Title III is entitled “Social Policy.” Chapter 1, containing Articles 117-122, bears the heading “Social Provisions,” while Chapter 2 deals with the European Social Fund and the common vocational training policy. This analysis will focus on the social provisions, although the accomplishment of the European Social Fund should not be under-estimated.
There is a palpable contrast between treaty provisions dealing with economic actors (Articles 48, 52 and 59) and Articles 117-122 concerning social policy. Whereas the former provisions give legislative competence to the Community and have been held to have direct effect, thus creating directly enforceable rights for the individual, the social policy provisions are comparatively weak. With the notable exception of Article 119, they are without substantive content, describing aspirations rather than imposing specific obligations, while conferring no legislative competence on the Community. With the exception of Article 119, Articles 117-122 are without direct effect for individuals.
II. EARLY SOCIAL POLICY INITIATIVES
Community social policy has developed in phases. In the first phase, 1958 to 1972, the Community passed legislation on social security and the free movement of persons. However, social policy steps were confined to the harmonization of health and safety standards without, however, resulting in the adoption of significant legislation in this area.
The second phase began in 1972 when the Heads of State and Government, meeting in the Paris Summit in 1972, noted the disparity between economic growth and the quality of life of citizens, and resolved to undertake more vigorous action in the social field. The “Social Action Programme” of January 1974 was the result. The Programme had three principal aims: 1) the attainment of full and better employment in the Community; 2) the improvement of living and working conditions; and 3) increased participation of workers in industry. The Social Action Programme led to the adoption of Directives on the protection of employees in the event of collective redundancies, transfer of undertakings and insolvency of the employer. Directives were also adopted on equal pay, equal treatment,” and social security. Subsequently, however, the impetus for developing social policy legislation seems to have waned.
III. THE SINGLE EUROPEAN ACT
The adoption of the SEA in 1986 marked the beginning of the third and more important phase of the development of Community Social Policy, in which one can see a renewed interest in developing social policy. Three reports presented to the European Council in 1985 reflected a strategy of proceeding on three fronts simultaneously: completion of the internal market; furthering European political integration; and developing a “human face” for the Community, to the benefit of its citizens. The prevailing view was that social policy should be an essential part of the revitalized Community. Hence, the reference in the Preamble to the SEA to promoting social justice through, inter alia, the European Social Charter. However, it was not entirely clear whether the Member States saw this as a value in itself, or whether they viewed social policy merely as a part of economic policy, particularly as regards the prevention of distortions in the competition between the Member States due to differing production costs.
The SEA added two provisions to the social chapter in the Treaty. Article 118a provides the Community’s legislative power to adopt directives to improve, especially in the working environment, the health and safety of workers. Article 118b contains a rather weak provision concerning the dialogue between management and labor at European level.
Article 118a sets a precedent which requires further analysis. It provides that Member States “shall set as their objective the harmonization of conditions in this area [of health and safety of workers, particularly in the working environment], while maintaining the provisions already made.” Furthermore, it states that the Council “shall adopt, by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States.”
Proceeding by way of minimum requirements for gradual implementation is a critical policy decision. Instead of aiming at an optimal social policy, setting high-level standards for application throughout the Community, the SEA reflects the realization that this may not be an immediately achievable goal. Thus, the less controversial path of gradual implementation (precluding a “big bang” harmonization) aims only at setting minimum thresholds in terms of health and safety. As a result, Article 118a(3) provides that Member States may maintain or introduce more stringent measures for the protection of working conditions.
Article 118a is thus a harbinger of imminent debates on the costs of an adequate social policy and the potential for social dumping in the internal market. It also illustrates the tensions inherent in a Community with different levels of prosperity and therefore different levels of ability to pay for optimal worker protection.
Article l18a was the legal basis for Directive 89/391,11 the “parent directive” on health and safety at work. This directive has in turn given rise to a host of other directives concerning specific aspects of employees’ health and safety. However, other legislative measures proposed by the Commission based on an expansive interpretation of Article 118a (in the absence of a more satisfactory legal basis), led to disputes in the Council, and thus were not adopted. Nevertheless, other measures were adopted after lengthy conflict and resulted in the deletion of some of the most ambitious features.” In the face of this legislative conflict, it became apparent that Article 118a was not in itself sufficient and that further changes were needed to develop a Community social policy.