12. The Working Group's Report concludes that, broadly speaking,
the existing EU competences in the field of social policy are
adequate. This view has been endorsed by witnesses as diverse
as the Government,
the CBI and the TUC,
which also suggested that existing competences should be streamlined
and updated. Peter
Hain told us that the Government saw the present mix of competences
as useful in maintaining diversity between the different social
systems in the Member States; and that further harmonisation that
did not take account of that diversity could undermine the Lisbon
objectives of creating more jobs and reforming the European economy.
13. The Working Group did, however, recommend a specific extension
to existing competences in one area, that of public health.
This recommendation has been cautiously welcomed by the Government,
which acknowledge that there may be a case for enhancing Community
action in areas such as bio-terrorism and communicable disease
control, and that it would be beneficial to rationalise existing
Community powers to deliver health objectives more effectively,
such as on tobacco control.
It may, however, be difficult to determine what is included under
EU action in "public health"whether, for example,
it should cover areas such as tobacco advertising and the mobility
of patients across the EUand clarity will be needed when
drafting the relevant Title of the Treaty. This is particularly
important in view of the legitimate concern of Member Statesexpressed
in the Government's evidence to usto retain control over
the way that their national health systems are run.
The Commission was, however, confident that a provision on public
health could be drafted "to make clear that Union action
would in no way impinge on the competence of the Member States
to manage and finance their own health systems".
14. We regret that the Working Group missed an opportunity
to make recommendations for clarifying and simplifying the legal
base of social policy in the EU, especially by drawing distinctions
between employment and social policy matters, and we hope that
even now this can be picked up in the Convention. There is a pressing
need for clarification. The legal base for current Community competence
for social policy is complex, resulting from longstanding disagreements
about the need for Community competence in this area and the purpose
of a Community social policy.
15. Without such clarification the legal base is likely to
be further complicated by the delimitation of competences in Articles
11-16 of the draft Treaty. At present "social policy",
"economic and social cohesion" and "public health"
appear as areas of shared competence in Article 12(4). "Employment",
on the other hand, is an area of "supporting action"
under Article 15(2).
Article 15(3) further states that the Member States "shall
co-ordinate their national employment policies within the Union".
There are three issues that may be controversial here:
· The distinction between
what comes under "social policy", which is a shared
competence, and what comes under "employment", which
is an area of supporting action. The distinction is significant,
as it has a considerable impact on the discretion of Member States
· Whether all or only some
aspects of "social policy" are areas of shared competence.
At present Article 137 EC grants the Community supportingrather
than sharedcompetence on a wide range of issues (including
social security and the protection of workers). On the other hand,
Article 141 EC enables the European Parliament and the Council,
acting jointly, to adopt measures to ensure the principle of equal
pay for male and female workers (a shared competence).
A shared competence may mean that Member States are not free to
act in these matters if the Union has already done so. As we pointed
out in our earlier report, the division of competences in Articles
10-15 of the new Constitutional Treaty is sometimes unclear and
confusing. This is
of particular concern in relation to social policy as it is not
clear from the wording of Article 12 whether it is the intention
to make all matters currently falling under the heading of "social
policy" the subject of shared competence (thus limiting Member
State action) or only some of them. We hope that this issue is
clarified when the relevant Articles in Part Two of the new Treaty
· In relation to public health,
Article 152 of the EC Treaty provides for a mix of shared competence
and supporting action. Now it appears that shared competence is
proposed in all cases.
These are issues that need further careful examination in the