House of Lords - European Union

Select Committee on European Union Tenth Report

CHAPTER 8: SOCIAL AFFAIRS

8.1. The social security "emergency brake" was one of the Government's "red lines". Measures in the field of social security for migrant workers and their dependants are currently adopted by unanimity (Article 42 TEC), but will move to qualified majority voting under the Lisbon Treaty. In order to maintain Member States' financial autonomy, the UK negotiated an "emergency brake" whereby any Member State is able to request that a proposed measure be referred to the European Council should the Member State believe that it would affect important aspects of its social security system (Article 48 TFEU).

Competence

8.2. The Lisbon Treaty states that social policy (as defined in the Treaty) will be an area of shared competence between the Union and the Member States (Article 4(b) TFEU). The Union has a duty to take measures to ensure coordination of the employment policies of the Member States (Article 5(2) TFEU) and it may take initiatives to ensure coordination of Member States' social policies (Article 5(3) TFEU). These provisions clarify rather than extend the current situation, which is outlined in Articles 3(1)(i), 3(1)(j) and 136-145 TEC. For a further discussion of competences, see Chapter 2.

Social Dialogue

8.3. Article 152 TFEU introduces a specific reference to social partners as such, social dialogue and the Tripartite Social Summit[211]. The TEC refers to consultation of, and dialogue between, management and labour (Article 138 TEC).

8.4. Article 137(3) TEC currently provides that a Member State "may entrust" management and labour, at their joint request, with implementing Directives adopted in the specific areas laid down in Article 137 TEC. By way of an amendment to the current Article 137(3) TEC (Article 153(3) TFEU), this possibility is extended to Council Decisions codifying agreements reached between the social partners under Article 139 TEC, which becomes Article 155 TFEU.

Coordination and monitoring

8.5. In the areas referred to in Article 156 TFEU[212] (Article 140 TEC), the Commission's possible actions are clarified as relating in particular to "initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation". Declaration 31 on Article 156 TFEU confirms that the policies described in Article 156 fall essentially within the competence of the Member States.

The Charter of Fundamental Rights

8.6. As regards the Charter of Fundamental Rights, see Chapter 5.

EVIDENCE

Social security "emergency brake"

8.7. The Department for Work and Pensions (DWP) noted that experience would be required to gain a full appreciation of how the social security "emergency brake" would work in practice but the DWP indicated its belief that the mechanism maintained the UK's ultimate control over any changes to social security measures for migrant workers (pp G26-27).

Competence

8.8. The Federation of Small Businesses (FSB) expressed the view that Article 2 (sections 1, 2 and 3) of the TFEU passed control of employment policy to the EU. They regarded this supposed development with apprehension in the light of their view that the developing body of EC employment law had created regulations and restrictions that were both costly and complex, which had reduced flexibility, had borne disproportionately upon small businesses and had ignored the principle of subsidiarity. The FSB cited problems surrounding the Working Time Directive as evidence that Community legislation was difficult to amend once it was in place even if problems had arisen from it (pp G30-31). In fact, as is made clear in Chapter 2 of this report, Article 2 of the TFEU (together with Articles 3 to 6) sets out for the first time a description of the categories of competence. It implies no extension of EU competence in the field of employment.

Social dialogue

8.9. The DWP believed that the reference to the social partners, social dialogue and the Tripartite Social Summit simply provided a Treaty base for the formal meetings that had taken place on the eve of European Councils since 1997 between the Council Presidencies, the two subsequent Presidencies, the European Commission and the European "social partners" (pp G26-27).

8.10. The National Farmers Union (NFU) welcomed the principle of tripartite dialogue but believed that the impact of such dialogue on labour relations in the agricultural sector was, at best, "marginal" (p D15). Dr Richard Parrish (Centre for Sports Law Research, Edge Hill University), on the other hand, suggested that the expanded provisions on social dialogue could provide a mechanism through which discussions of European sports' issues with the social partners could be conducted, and legal conflicts mitigated (pp G33-34).

8.11. The FSB regretted that, whilst recognising and promoting the role of the social partners, the Lisbon Treaty did not give any status to small businesses, "even though 99% of EU businesses are SMEs whose needs are crucial, but who are denied a voice" (pp G30-31).

8.12. As regards small business involvement in the social dialogue, we recommended in our 2007 EU labour law report that "the Government should support UK small business organisations in finding means to ensure that social dialogue in the EU includes a wider representation of interests, in particular representatives of the small business sector."[213] In response, the Government noted that the European level organisation representing SMEs, UEAPME, has recognised Social Partner status but the Government remains "unaware of any intentions by UK small business organisations to join UEAPME"[214].

Coordination and monitoring

8.13. Monika Mura (Department of Politics, University of Bristol) considered that the clarification that the Commission would coordinate the exchange of best practice and the monitoring of progress in various aspects of employment policy was unlikely to have a significant impact. She stated that this provision should be seen against the wider background of the EU economy and the fact that any type of coordinated intervention to tackle unemployment was subject to the rules of economic and monetary union (pp G32-33). The DWP considered that this clarification reflected the existing practice of the Open Method of Coordination[215] (pp G26-27).

CONCLUSIONS

8.14. The "emergency brake" negotiated by the UK Government as regards social security measures for migrant workers and their dependants is significant and we are satisfied that, if required, it will achieve the purpose for which it is designed.

8.15. The increased emphasis on social dialogue is also significant, but we are concerned that there is insufficient involvement of UK small business. We trust that UK small business organisations along with their colleagues in Brussels can resolve this matter to their mutual satisfaction and thereby ensure the proper involvement of the UK small business sector.

Education, Vocational Training and Youth

WHAT THE TREATY DOES

8.16. As regards youth policy, an addition to the 5th indent of Article 165(2) TFEU (formerly Article 149(2) TEC) states that Community action shall now also be aimed at encouraging the participation of young people in democratic life in Europe. This links to the new provision on democratic principles in Articles 9-12 TEU and, in particular, to Article 10(3) TEU on participation in the democratic life of the Union.

8.17. Under Article 3(3) TEU, as amended, the Union shall promote the protection of the rights of the child. Also of relevance to education and to rights of the child are the new horizontal Articles 9 and 10 TFEU relating to adequate social protection, the fight against social exclusion, a high level of education and training, and the combating of discrimination based on age as well as sex, racial or ethnic origin, religion or belief, disability or sexual orientation.

8.18. The Council will be able to adopt Recommendations in the field of vocational training (Article 166(4) TFEU).

EVIDENCE

Youth Policy

8.19. The Department for Innovation Universities and Skills (DIUS) and the Department of Children Schools and Families (DCSF) stated simply that the addition regarding the participation of young people in democratic life in Europe built on activity already undertaken by mutual agreement under the Open Method of Coordination (pp G25-26). Monika Mura indicated that it might provide an additional source of funding with which to finance relevant UK programmes (pp G32-33). Louise King of Save the Children suggested that the UK Government could use its positive experience with the Every Child Matters agenda[216] to show the EU institutions how it was possible to engage children in policy-making (Q G22).

8.20. The DIUS and the DCSF noted that the inclusion of rights of the child in Article 3(3) TEU was a departure from the current Treaties. The Departments pointed out that the UK had ratified the United Nations Convention on the Rights of the Child (UNCRC), with some reservations on migrant children and juvenile justice (pp G25-26).

8.21. Kathleen Spencer Chapman of the NSPCC concluded that "the Treaty is a step forward for children" (Q G2) and NSPCC et al[217] judged that the new Article 3(3) TEU was the most significant change for children's rights introduced by the Lisbon Treaty. They noted that this did not create new powers for the EU but, in other policy areas, it would enable actions to be taken specifically to protect children's rights. As part of this process, a child rights impact analysis of EU policies could be undertaken (pp G1-2).

8.22. Ms King explained that the lack of a formal objective encompassing children's rights meant that other considerations had taken precedence when drawing up EU legislation in the past. She cited a number of examples, including the Dublin II Regulation[218] which had caused problems in relation to children separated from their families (Q G3). Ms Spencer Chapman noted that the European Parliament was proposing to set up an internal unit to coordinate actions for children's rights "in accordance with the Lisbon Treaty". This indicated, she judged, "that, without this Treaty, it is very unlikely that this kind of unit or coordinating mechanism could be set up to make sure that children's rights are better integrated" (Q G3).

8.23. Both Ms Spencer Chapman and Ms King expressed the view that the inclusion of children's rights in the TEU would help to ensure that issues such as arrangements for children in institutional care were taken into account during accession negotiations (QQ G9-10).

8.24. Ms Spencer Chapman also drew attention to the horizontal Articles 9 and 10 TFEU because "children and young people are vulnerable to the effects of poverty and social exclusion, they are vulnerable to discrimination and public health, and education issues, of course, impact on children" (Q G8). She felt that these Articles might help to avoid difficult battles in the future similar to that required to exclude social services from the scope of the Services Directive[219].

8.25. According to the NSPCC et al, a specific EU policy area of relevance to the protection of children is Freedom, Security and Justice. They stated that child trafficking and sexual exploitation of children are already dealt with in EU activities to combat cross-border crime, but the Lisbon Treaty will help to make sure that a stronger children's rights perspective is integrated in these activities (pp G1-2). See Chapter 6.

Vocational Training

8.26. The DIUS and the DCSF considered that the Council's new power to adopt Recommendations on vocational training was a change of legislative procedure and not substance, aligning Articles 165 and 166 TFEU with each other. Recommendations are not binding upon Member States (pp G25-26).

Education

8.27. The DIUS and the DCSF had some concerns about the potential impact of the provisions in the Charter on the right to education. See Chapter 5.

CONCLUSIONS

8.28. The inclusion amongst the Treaty's objectives of the protection of children's rights will have an important impact by making future legislative instruments subject to an assessment of their impact on children's rights.

8.29. The new Articles 9 and 10 TFEU may be of particular assistance to children.

8.30. The inclusion in the Treaty of a specific provision on the participation of young people in democratic life in Europe does not amount to a significant extension of EU competence beyond action that is already taking place.

8.31. The new provision relating to vocational training does not amount to a significant extension of EU competence.

Sport

WHAT THE TREATY DOES

8.32. The Lisbon Treaty introduces sport as a new area of EU competence (Article 165 TFEU). The Treaty emphasises that the Union must take account of the specificity of sport and its social and educational function. According to Article 6(e) TFEU, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of Member States in this policy area. Any harmonisation of the laws and regulations of the Member States is excluded by Article 165(4) TFEU.

8.33. Sport is a policy area that has been developing at the EU level over several years. A non-binding Declaration was annexed to the Amsterdam Treaty in 1997[220] and the December 1999 Nice European Council adopted conclusions giving a mandate for sport to be examined at Community level[221]. The European Commission issued a White Paper on Sport[222] in July 2007.

EVIDENCE

The special nature or "specificity" of sport

8.34. The CCPR (Central Council for Physical Recreation) expressed the view that "sport desperately needs to have its status within EU law clarified" (pp G9-10). They argued that the "specificity" of sport related to the need, because of its special nature, for sport to have partial exemptions from some of the general principles of Community law, such as free movement and competition. The CCPR referred to a range of ECJ rulings that have, on the one hand, accepted the "autonomy" of sport governing bodies and the "specificity" of sport but, on the other, applied principles of Community law equally to sport as they might be applied to other sectors. In Meca Medina[223], the ECJ ruled that sporting cases must be ruled on a case-by-case basis, a position which does not assist in clarifying the position of sport with respect to EC law.

8.35. A number of examples of sport-related ECJ judgments were cited by witnesses. James MacDougall (European and International Officer, CCPR) referred to the Koch and Walgrave case[224], where the ECJ ruled that the formation of national teams was purely a matter of sporting interest to which the free movement rules of the Treaty did not apply (Q G29). In Meca Medina, it was established that drugs bans did not impinge on the freedom to provide a service (pp G9-10). Dr Parrish cited the Bosman judgment[225] as an example of the "insensitive application of EC law to sporting contexts" (pp G33-34). In that case, restrictions on the number of non-nationals playing in a club team within a Member State were ruled to be in contravention of the Treaties. On the other hand, he explained, in Meca Medina, the Court established a methodology for applying competition law to sport, allowing rules inherent to sport to be removed from the scope of EU competition law.

8.36. In the light of the case-law, both the CCPR and Dr Parrish emphasised that an EU legal base for sport would allow the ECJ and the other European institutions to recognise the "specificity" of sport more systematically than had been the case thus far (pp G9-10, G33-34). Dr Parrish explained, "it can be envisaged that the Treaty Article could be invoked in the context of justifying measures otherwise contrary to free movement or competition law".

The autonomy of sport

8.37. Mr MacDougall explained the concept of "autonomy" and its close link with "specificity": sporting organisations should "have the autonomy to actually choose how they want to develop their sport for the good of the sport as well, and without the specific nature within EU law, they do not have that and they do not have the guarantees to actually do that" (Q G31). By way of example, were the EU to recognise the specificity of sport, he explained, the EU would be able to permit home-grown player quotas (the issue at the heart of the Bosman ruling) and therefore sporting organisations would have the autonomy to be able to regulate their sports in the interests of securing vibrant international competition between countries and between clubs (Q G32). He emphasised that the issue of quotas applied to sports ranging from football to chess (Q G34).

8.38. The British Olympic Association (BOA) were not convinced that "autonomy" was sufficiently protected in the Treaty, since there was no reference to the autonomy of sports organisations in the revised articles. According to the BOA, "this could, potentially, have far-reaching implications for sporting organisations" (pp G16-17). They cited the President of the International Olympic Committee, Jacques Rogge, who explained that "sport can play its unique role thanks to its autonomy, and this role would be seriously compromised if the governing bodies of sport are subject to public interference" (pp G16-17).

Funding for sport

8.39. Another important issue is that of providing a legal base to support funding streams specific to sport. The Department for Culture, Media and Sport (DCMS) stated that the Treaty would provide the basis for a dedicated EU budget line (pp G23-24). In one case, referred to by Dr Parrish, the ECJ did in fact annul a Commission decision on grants due to a lack of a legal base[226] (pp G33-34), and the CCPR noted that the current lack of a dedicated sport funding stream meant that "sporting projects must be sculpted to meet other aims and not developed for sport's sake" (pp G9-10). As an example, Richard Hanson (Head of Policy, CCPR) mentioned a case in Austria and the Czech Republic, where "they managed to pull together a Nordic skiing centre based on a funding stream directed at tourism" (Q G40).

Coherent sport policy and the role of sport in society

8.40. Dr Parrish felt that the Lisbon Treaty served to establish "a formal rolling institutional agenda to replace the informal, and legally questionable, activity of the institutions in sporting contexts. The formalisation of that agenda is likely to lead to increasing coherence and continuity in European sports policy and enhance the visibility of sport in EU policy making" (pp G33-34).

8.41. Mr Hanson gave two recent examples of EU legislation that might have led to unintended consequences for the sport sector. First, the Temporary Work at Height Directive[227] would, if applied to rock climbing instructors as was initially proposed, have forced instructors to teach according to an industrial ropes method rather than the normal climbing procedures, which are considered safer. Second, the Bathing Waters Directive[228] concerning the cleanliness of bathing waters would, if applied to sailing, rowing and yachting as was proposed, have meant that rowing would not have been possible on the River Thames (Q G30).

8.42. The DCMS argued that the competence would enable the Commission to develop a sports programme, following on from the White Paper on Sport, and that sport was likely to be taken into greater consideration when developing other relevant policies such as health and education (pp G23-24). DCSF was of the view that the new Treaty provision was valuable in promoting the health and education of young people (pp G25-26).

8.43. The broader function of sport was highlighted by other witnesses too. Dr Parrish referred to the Declaration that was annexed to the Amsterdam Treaty, which emphasised "the social significance of sport, in particular its role in forging identity and bringing people together" (pp G33-34). The BOA described sport as "the biggest social movement in Europe", noting that it "accomplishes important societal tasks in the fields of integration, education and health" (pp G16-17). The wider benefits brought by sport were due in part to grassroots sports. Indeed, the CCPR considered that the Commission needed to appreciate better "the link between professional and grassroots sports" (pp G9-10).

Restrictions on Union action

8.44. The CCPR emphasised that the Union would only have competence to take actions that supported, coordinated or complemented Member States' actions (pp G9-10) and the DCMS stated that "activity in this area … can be supported only where clear value is added to existing national policy" (pp G23-24).

CONCLUSIONS

8.45. The inclusion of a legal base for sport builds on action already undertaken by the Community, which has recognised the role of sport in forging identity and bringing people together. It is nonetheless significant.

8.46. The provision of a legal base for sport within the Treaty is intended to permit the special nature or "specificity" of sport to be recognised by the European institutions.

8.47. The provision of a legal base for sport is also intended to ensure that EU legislation does not impose unintended consequences upon sporting activities and that the ability of sport to play an important role in European society is recognised.

8.48. A legal base for EU action on sport is intended to provide a transparent basis for EU-level funding of sporting projects.

8.49. Action in this area cannot go further than supporting, coordinating or complementing Member States' actions and we urge the Government to ensure that the European institutions adhere to this provision.

Culture

WHAT THE TREATY DOES

8.50. Culture is already a Community competence by virtue of Article 151 TEC and will remain so under Article 167 TFEU. Any harmonisation of the laws and regulations of the Member States continues to be excluded. The Lisbon Treaty (Article 167(5) TFEU) states that the Council should take decisions on culture under QMV rather than by unanimity. This represents a removal of the national veto.

8.51. In the past, EU action in the field of culture has included the development of funding streams such as the Culture Programme, which runs from 2007-13 and is the successor to Culture 2000. The majority of this Programme supports cross-border cooperation, an example of which has included EU-wide information sharing among music ensembles dedicated to the development of new electronic technologies in the field of music[229].

EVIDENCE

8.52. The DCMS noted that the impact of the Treaty change was that no single Member State would be able to veto European Union initiatives on cultural programmes. This would have the positive effect of simplifying the decision-making process in an area that had consistently proven to be in the UK's interest (pp G23-24).

8.53. The DCMS emphasised that culture remained an issue to be dealt with in individual Member States but the EU was able to develop programmes such as the Culture 2000 Programme and its successor, which had been beneficial to UK cultural organisations (pp G23-24).

CONCLUSION

8.54. The move from unanimity to QMV in the area of culture is a small but significant step. In the view of the DCMS, this will have a positive effect.

Public Health

WHAT THE TREATY DOES

8.55. An addition to the first paragraph of Article 152(4) TEC (Article 168(4) TFEU) provides that measures should be adopted in the area of public health "in order to meet common safety concerns". This represents a restriction on Union action because the existence of common safety concerns will now have to be clear.

8.56. Under the Lisbon Treaty, it will be possible for the Union to seek to harmonise standards of quality and safety in relation to medicinal products and devices (Article 168(4)(c) TFEU). It should be noted that measures have already been adopted in this area relying on the internal market legal base[230].

8.57. The Union will be able to adopt "incentive measures" in relation to cross-border health threats, tobacco and alcohol abuse (Article 168(5) TFEU). Such "incentive measures" should not seek to harmonise the laws and regulations of the Member States. Action along these lines has already been undertaken through, for example, the EU Strategy to support Member States in reducing alcohol-related harm[231] and the Green Paper "Towards a Europe free from tobacco smoke: policy options at EU level"[232].

8.58. A reference to "mental health" is introduced into the Treaty by replacing the phrase "human health" with "physical and mental health" (Article 168(1) TFEU).

8.59. Article 168(7) TFEU expands the current Article 152(5) TEC concerning the limits of the EU's role in the field of public health. With reference to the provision that Member States will be responsible for the definition of health policy and the delivery of health services, the Article now specifically states that the responsibilities of the Member States shall include the management of health services and medical care and the allocation of resources assigned to them.

EVIDENCE

8.60. The Department of Health considered that the changes to Article 152 TEC (Article 168 TFEU) "will not change the role of the EU institutions, the UK Government or interested stakeholders in relation to the formation of policy" in the new areas of health introduced (pp G24-25). The DH felt that the wording of Article 168(7) TFEU provided clarity with regard to the role and responsibilities of Member States (pp G24-25).

8.61. The DH warned, however, that harmonised requirements which affected the provision of health services might be generated under other existing articles of the Treaty. By way of example, the ECJ had been active recently in relation to patient mobility and, as a result, European Commission proposals on cross-border health services were expected shortly (pp G24-25).

CONCLUSIONS

8.62. The Lisbon Treaty strengthens the provision on the limits of EU action in the field of public health policy. However, in practice, the application of this provision could be influenced by differing perceptions across the EU of the scope of public health policy.

8.63. The new measures on which action can be taken do not represent an extension of EU competence beyond action that is already taking place. However, the explicit reference to mental health in the Lisbon Treaty is significant, reflecting the importance of the issue and the work undertaken on it by the European Commission and Member States.

Consumer Protection

WHAT THE TREATY DOES

8.64. The Lisbon Treaty states that consumer protection will be an area of shared competence between the Union and the Member States (Article 4(f) TFEU). This is a clarification of the current situation.

8.65. The existing Article 153(2) TEC, which provides that consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities, is given greater prominence as the new Article 12 TFEU.

EVIDENCE

8.66. Malcolm Harbour MEP (a member of the European Parliament's Internal Market and Consumer Protection Committee) recalled that consumer protection had now been specifically singled out as an area of shared competence between the EU and the Member States (Q B1). Mr Harbour expressed his contentment that consumer protection was now much more clearly identified in the Treaty (Q B11).

8.67. The Department for Business, Enterprise and Regulatory Reform (DBERR) stated that there were no significant changes to the consumer protection provisions of the Treaty (pp G21-22).

CONCLUSION

8.68. The new prominence given to consumer protection by the Lisbon Treaty is of limited significance.

211 The "social partners" are representatives of management and labour. Council Decision 2003/174/EC of 6 March 2003 establishing a Tripartite Social Summit for Growth and Employment (OJ L 70, 14.3.2003, pp.31-33) formalised the annual summit process, which has now been explicitly recognised in the Treaty. Back

212 Employment, labour law & working conditions, basic & advanced vocational training, social security, prevention of occupational accidents & diseases, occupational hygiene and the right of association & collective bargaining between employers and workers. Back

213 Paragraph 200, European Union Committee, 22nd Report (2006-07): Modernising European Union labour law: has the UK anything to gain? (HL 120) Back