One of the major innovations introduced by the Treaty of Amsterdam in the European Community's social policy is the incorporation of a strengthened social agreement in the EC Treaty. Already all the Directives adopted by the 14 signatories to the agreement have been extended to the United Kingdom.
The "reunification of the fifteen" restores unity and cohesion to the Community's social policy. It should encourage more frequent reliance on the social provisions of the EC Treaty and should broaden the policy's remit. Essentially, the Social Agreement has been incorporated as it stands. However, some provisions have been strengthened, especially those on equal opportunities and combating social exclusion.
THE FOUNDATIONS OF SOCIAL POLICY
The new Treaty provides for the merger of the two legal bases on which social policy previously rested:
- the EC Treaty, which contains provisions applicable to all member states (Title IX, ex Title VIII);
- the Social Agreement annexed to the Social Protocol, which contains provisions concerning the 14 signatory Member States.
Article 136 (ex Article 117) reaffirms that social policy is a competence which the European Community shares with the member states. However, even if the Community's main role is to support and complement the activities of the Member States, incorporation of the Social Agreement substantially extends its powers in this area.
Moreover, the Community and the Member States have defined the social rights they hold to be fundamental on the basis of two texts:
- the European Social Charter signed at Turin on 18 October 1961 and
- the 1989 Community Charter of the Fundamental Social Rights of Workers.
These fundamental social rights mainly concern employment, living and working conditions, social protection, social dialogue and the combating of exclusion.
INTEGRATION OF THE SOCIAL AGREEMENT
A Social Agreement was concluded at the intergovernmental conference on political union in 1992. The United Kingdom decided to opt out. However, the 12 Member States at the time adopted a protocol, annexed to the Treaty of Maastricht, authorising the other 11 Member States to apply, without the United Kingdom, a more ambitious text than the chapter on Community social policy. This text was based on the Social Charter adopted in 1989 by all the Member States save the United Kingdom.
The Social Protocol has been repealed and the Social Agreement incorporated into the provisions of Title IX of the EC Treaty. The European Community can now act or reinforce its action in the following areas:
- 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.
To this list, already present in the Social Agreement, the Treaty of Amsterdam adds the possibility of adopting initiatives specifically designed to combat social exclusion.
However, as in the past, remuneration, the right of association, and the right to strike or lock out are not addressed at Community level.
The extension of codecision to certain areas
While the Community's remit is not broadened to any great extent, the legislative process has changed in the areas indicated above. Taking account of the conditions and technical rules that apply in each of the member states, the Council may adopt directives by qualified majority under the codecision procedure, after consulting the Economic and Social Committee and the Committee of the Regions.
Using the same procedure, the Council may also adopt measures to encourage cooperation between Member States in developing exchanges of information, promoting innovative approaches and evaluating experiences in order to combat social exclusion.
The maintenance of unanimity in the other areas
The following areas defined by the Social Protocol are being introduced under Title IX. The decision-making procedure remains unchanged. Here the Council acts unanimously on a proposal from the Commission, after consulting the European Parliament and the Economic and Social Committee. The only difference between this and the Social Agreement procedure is that the Committee of the Regions is also consulted.
This procedure applies to the following points:
- social security and social protection of workers
- protection of workers when their employment contract is terminated
- representation and collective defence of the interests of workers and employers (including co-determination)
- employment conditions for third-country nationals legally resident in Community territory
- financial contributions for promotion of employment and job-creation (without prejudice to the provisions relating to the Social Fund).
Finally, it should be noted that measures adopted at Community level do not prevent Member States from introducing more stringent protective measures, provided they are compatible with Community law.
THE SOCIAL PARTNERS
The fundamental role of the social partners has been enshrined in the Social Agreement and the provisions contained in this agreement have been fully embodied in the Treaty of Amsterdam.
The Commission facilitates dialogue between the social partners and consults them on the content of proposals in the social field before presenting them.
The social partners are involved throughout the legislative process, and this allows them to play a substantial role both in drafting and implementing new measures. Indeed each Member State can leave it to the social partners to implement the new directives.
EQUAL OPPORTUNITIES AND EQUAL TREATMENT
Up to now the treaty required member states to ensure equal pay for men and women for equal work. With the Treaty of Amsterdam, a new legal basis has been introduced for measures on equal opportunities and equal treatment of men and women at work.
After consulting the Economic and Social Committee, the Council can adopt positive measures to ensure that the principle is applied, acting under the codecision procedure. The member states, too, are free to make specific concessions to allow men or women easier access to occupations where one sex is underrepresented. But the measures taken must not involve rigid quotas, because the Court of Justice outlawed these in its Kalanka judgment of 1995 (the Court also addressed the issue in a judgment in 1997, in the Marshall case).