Select Committee on European Union Appendices to the Minutes of Evidence

Memorandum by the European Commission

  Thank you for the invitation to submit comments on the report of the Convention Working Group on Social Europe.

  Anna Diamantopoulou, Commissioner responsible for Employment and Social Affairs, appeared before the Working Group on the full range of its mandate. I was a member of the Working Group as alternate to Commissioner Barnier in the Convention.

  At the start of the Working Group's deliberations, members of the Working Group were invited to submit written comments on the seven points of the Working Group mandate. [1]The following comments update my written submissions in the light of the Group's final report and the discussion in the plenary session of the Convention on 6 February. The Working Group's conclusions proved to be very much in line with Commission positions on these issues.

  The current EU provisions on social policy provide a reasonably satisfactory framework for action. In the first place, the Union supports and complements the activities of the Member States in a number of social fields. This can involve measures in the form of directives setting "minimum requirements for gradual implementation" or measures designed to encourage co-operation between Member States.

  These provisions seem to strike the right balance between Member State and Union competence and provide for a complementarity between action at national and European level.

  It is worth emphasising that the measures foreseen in the Treaty must "have regard to the conditions and technical rules obtaining in each of the Member States", and do not "prevent any Member States from maintaining or introducing more stringent protective measures compatible with the Treaty". In addition, Member States can "entrust management and labour, at their joint request, with the implementation of directives" in the social field. These provisions therefore add up to a high level of flexibility for Member States to apply social policies according to national circumstances.


  The Working Group's recommendations on values and objectives were in line with Commission priorities in many respects. First, the emphasis placed on equality between men and women reflected the fact that gender equality is a core feature of the European social model. Although it would already come within the Constitution as part of the Charter of Fundamental Rights, it nevertheless deserves a specific mention. Second, the objectives proposed for the Union took account of the balance at the heart of the Lisbon strategy between economic, employment and social policies, and environmental policy.

  The recommendations of the Social Europe Working Group, like those of the other Working Groups, now have to be incorporated into the text of the Constitution. Clearly, the need to produce a balanced and coherent Constitution, as well as the need to reflect the debates on Working Group reports in the plenary, means that some reworking of Working Group conclusions may be necessary. But the priorities laid out in the conclusions should be reflected in the Constitution.


  One of the papers I submitted to the Working Group was specifically devoted to the issue of health. [2]The paper argued that, as well as stating that public health was an objective of the Union, the Constitution should seek to extend the scope of the existing article 152 TEC. It pointed out that the Union did not have the legal basis to co-ordinate responses to the threat from communicable diseases or bioterrorism. Nor could it establish a mechanism to make co-operation effective, such as a European Centre for Disease Control. These suggestions were taken up in the Group's conclusions, and received very strong support from Convention members during the debate on the Group's report. I am confident that such an article 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.


  In the Commission's December 2002 Communication on the Union's institutions, [3]it concluded that:

    "The Union must have at its disposal a range of instruments to implement its policies. The non-binding options include in particular the open method of co-ordination whereby common guidelines can be given for certain areas which lie outside the Union's legislative powers. The constitutional treaty should mention this method and guarantee that the way it is applied is consistent with the Community method."

  This should not affect those co-ordination processes provided for explicitly in certain areas (such as Article 99, 104 and 128 TEC) and should not be used in cases where the Union's objectives could better be achieved through legislation. But this method can deliver real benefits. In the area of social policy, the progress of the European employment strategy provides clear evidence of how EU policy-making can be helped by the process of agreeing objectives at European level and designing and implementing policies at national level which contribute to the overall European objective.

  The place of the Open Method in the Constitution has been the subject of a series of discussions in the Convention. The Group's report noted that there was a clear majority in favour of a horizontal provision defining the method and the procedures to follow. This majority support was echoed in the plenary debate.


  The Working Group report points to the need for a coherent approach, to reflect the close relationship between the Union's economic and social policies. There are a number of initiatives which bring economic and social policies together at the EU level. These include the Broad Economic Policy Guidelines, and the European Employment Strategy set up under the Luxembourg process. The recommendation to focus on the Spring European Council as the point at which these strands come together seems the right starting point to build on current processes. Another majority view which is worth emphasising was the opinion that the European Parliament should be given a greater role in the policy co-ordination process.


  The debate in the Working Group on the social partners and civil society was in part a reflection of the opportunity given by the Constitution to recognise and cement their role in Constitutional terms. The social partners, of course, already have a special place in the Treaties, and this should be recognised and consolidated in the Constitution. This should include their capacity for autonomous negotiation.

  The Working Group was anxious to emphasise that both the social partners and civil society had a distinctive role to play. The Commission has already given particular emphasis to the role of civil society in the context of the White Paper on governance and its follow-up.


  Much of the discussion in the Working Group was given over to the issue of procedures in general, and qualified majority voting (QMV) in particular. The fact that no consensus was reached should not be allowed to overshadow the reality that there was a strong majority in the Group in favour of extending QMV, a trend confirmed during the debate in the Convention plenary.

  Decision-making in the social field cannot be divorced from the wider issue of decision-making under the Constitution. As the Commission made clear in its December Communication, [4]the need for a more efficient Union and the need for a simplified Union both require the adoption of codecision and qualified majority voting as a general rule. In a Union of 25 and more, we should not pretend that a competence constrained by the need for unanimity would be a real competence: the competence will be a "virtual competence" only.

  Social policy is unquestionably a core task of the Union, and there is no reason for it, or for aspects of it, to be an exception from the general rule. Although the Nice Treaty gives the Council the freedom to decide—by unanimity—to extend QMV in some areas, this falls short of what is required. All provisions should be subject to codecision and qualified majority voting.

  The Working Group's report highlights an important distinction between the different articles. The report records how the case for QMV in article 13 (non-discrimination) was seen as particularly compelling: an area of policy at the heart of the Union's objectives. Equally, article 42 (social security measures to secure free movement) was seen as closely tied to a core competence of the Union.

  Article 137 raises different issues. In particular, it lies at the frontier between key areas of EU activity in the social field, and what is clearly a national responsibility for the fundamental principles governing social security systems and their financing. So part of the reticence about a move to QMV on this article may lie in sensitivities about its exact scope, perhaps exacerbated by the drafting of the article. It could be that a reworking and modernisation of the article could help to address these concerns and reassure those who fear the scope of the article. This in turn could pave the way to acceptance of QMV.

  I hope these reflections are helpful for the Sub-Committee's deliberations. Please let me know if this raises further questions.

David O'Sullivan

Secretary-General of the Commission and alternate member of the Convention

7 March 2003

1   WD 001 and WD 025. Back

2   WD 037. Another note was submitted concerning cross-border care (WD 027). Back

3   Communication of the Commission on the institutional architecture: For the European Union-Peace, Freedom, Solidarity (COM(2002) 728, 5.12.2002). Back

4   Communication of the Commission on the institutional architecture: For the European Union-Peace, Freedom, Solidarity (COM(2002) 728, adopted by the Commission on 5 December 2002). Back

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