Social Law in the European Union: The Search for a Philosophy

2 Colum. J. Eur. L. 265 (1996)

Ferdinand von Prondzynski. Professor of Law, Jean Monnet Professor of European Social Law, Dean of the University of Hull Law School.

Ada Kewley. Lecturer in Law, the University of Hull Law School.

One of the major topics of discussion in the context of the continuing re- assessment of the United Kingdom’s role within the European Union has been the Union’s so-called “social policy.” Legislating for social purposes makes right-wing politicians uncomfortable, and the current British Conservative Government has used resistance to such legislation as a tactic to build a united party line on Europe. It is widely known – although the effect is often misunderstood – that the United Kingdom opted out of the social policy Protocol of the Treaty on European Union, and the Government has been keen to publicize its assertion that social legislation, particularly in the employment field, imposes high costs on business and has a negative impact on levels of employment.

The effect of all this has been to turn the European spotlight on the nature and purpose of social policy within a single market. As is well known, the European Commission had, from the mid-1980s onwards, proposed that the post- 1992 Single European Market should have, as an accompanying feature, a social dimension. This led to the European Charter of Fundamental Social Rights of Workers, concluded at the European Council in Strasbourg in December 1989, and more recently to the Protocol of the Treaty on European Union, concluded in Maastricht in 1992.

The assumption implicit in most of the coverage of EU social policy has tended to be that it is all about workers’ rights, and that within this context the approach is largely collectivist. In other words, it is often assumed that European social policy has at its heart an intention to sustain or re-impose a trade union- oriented industrial relations structure built on a Keynesian model of macro-economics. EU documentation has not entirely contradicted this view. For example, the Inter-departmental Working Party, set up by the European Commission to advise on the social dimension of the Single Market argued in 1988 that one of the main tasks should be to give -“deep thought to the concrete conditions of organizing a European industrial relations area” incorporating “a European collective agreement relationship” and a strengthening of the “social dialogue.” This emphasis in turn owes much to the provisions of the EEC Treaty in its original form, which implied in art. 117 that social policy was concerned with “the need to promote improved working conditions and an improved standard of living for workers.” On the other hand, it has long been clear that social policy is not just about the regulation and practice of industrial relations. The Commission’s Working Party mentioned above, despite the degree of emphasis it gave to industrial relations, showed a strong awareness of other relevant factors which needed to be addressed, most of which dealt with the composition and development of the labor market. The Working Party identified “major structural problems, foremost among which is a very high rate of unemployment.” In fact, an increasing amount of attention has more recently focused on the effects of demographic changes and changes in lifestyle patterns on the labor market, seen in the context of “the whole issue of how to reconcile economic and social objectives in the face of rising unemployment and growing concern about Europe’s ability to remain competitive into the 21st century.”

What, then, is the debate on social policy in the European Union really about? It could be a debate about the place in economic and commercial development of social equity, of the fair distribution of resources, and of rights at work; or it could be about economic efficiency, and the degree to which this can be furthered through the manipulation of social conditions; or it could be about the search for a “level playing field” in the Single Market, so that market distortions caused by what has become known as “social dumping” can be avoided; or it could be about a new Community dimension focusing on social affairs as an area deserving attention in its own right. The problem to date is that it is not clear which, if any, of these aspects lie at the heart of the Union’s social policy. The recent Green Paper side-stepped the definition issue by describing social policy simply as “the full range of policies in the social sphere,” which is hardly helpful. However, if social policy is to be influential, it must be a recognizable concept affecting a clearly defined area; conversely, the absence of definitional clarity will almost certainly hamper the development of an effective policy.

It is the purpose of this article to outline in more detail the territory which social policy might be thought to cover, to examine the problems which are encountered within this territory, and to suggest a legal policy agenda which both reflects an identification of the problems and is in tune with the existing policy documents and legal instruments of the Community.