Memorandum by the Department for Work
and Pensions
1. The evidence is presented under the summary
headings for Employment and Social Affairs in the Annex on page
5 of the call for evidence. The Government believes these are
the main areas within the Employment and Social affairs remit
of Sub-Committee G which will have an impact in the EU and particularly
in the UK.
Employment and Social Affairs
A specific reference to social partners, social
dialogue and the Tripartite Social Summit (new Art 136a) is introduced.
2. This is an EU level action and has limited
impact on the UK. It provides a Treaty base for the formal meetings
that have taken place on the eve of European Councils since 1997
between the Council Presidency and the two subsequent Presidencies,
European Commission, and the European "Social Partners"
(European level representatives of employers and workers—including
Business Europe and the ETUC).
3. The new Article reflects Council Decision
of 6 March 2003 (2003/174/EC) which established this forum to
replace the former Standing Committee on Employment. The EU level
social dialogue also includes Lisbon Strategy focussed bilateral
exchanges and meetings with the officials' level committees for
employment and social protection.
The Treaty currently provides that management
and labour can be entrusted by Member States to implement Directives
adopted in the specific areas laid down in Article 137. This possibility
is extended to Council Decisions codifying agreements reached
between the social partners under Article 139.
4. This continues the provision whereby
Member States may decide to implement EU employment law through
Collective Agreements rather than national law. The change is
a minor clarification to include not only those Directives that
have been negotiated by the Council (and the Parliament) but also
those concluded between the Social Partners at European level
and then submitted to the Council for their agreement by Council
Decision.
In the areas referred to in Article 140,[2]
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."
5. This is a clarification of the existing
provision, reflecting the existing practice of the Open Method
of Co-ordination in the field of employment, which is already
set out in detail in the Treaty, and of social protection (in
particular, in relation to pensions).
The provisions to maintain Member States'
financial autonomy in relation to social security are strengthened,
permitting the normal legislative procedure to be suspended and
the issue to be referred to the European Council.
6. Article 42 of the Treaty deals with the
adoption of such measures in the field of social security as are
necessary to provide freedom of movement for workers. The EC Treaty
provides for these measures to be agreed unanimously by the Council
of Ministers. The EU Reform Treaty will provide for Article 42
measures to be agreed by qualified majority voting. Member States'
financial autonomy in relation to social security has been maintained
by the addition of a "brake" provision negotiated by
the UK. This will allow any Member State to declare that proposed
legislation would affect important aspects of its social security
system and request referral to the European Council. Once a Member
State has invoked the brake, if the European Council (which operates
by consensus—ie unanimity) takes no action within four months
of the brake being triggered, or cannot reach agreement, the original
proposal will fall. Alternatively the European Council may request
the Commission to submit a new proposal.
7. Experience of the emergency brake will
be required to gain a full appreciation of how it will operate
in practice. However, the Government believes that it maintains
the UK's ultimate control over any changes to social security
measures for migrant workers that may be taken under Article 42
of the Treaty, and which could affect important aspects of the
UK's social security system after the EU Reform Treaty takes effect.
The amended Treaty on European Union gives
the rights, freedoms and principles of the EU's Charter of Fundamental
Rights the same legal value as the Treaties, without extending
in any way the competences of the Union as defined in the Treaties.
The Charter includes a "Solidarity" section (Title IV)
which covers employment rights, amongst others.
8. The Charter does not create any new rights,
freedoms or principles. It simply records rights, freedoms and
principles that are already recognised in EU and national law,
and makes them more visible. This is made clear by the horizontal
provisions in Title VII of the Charter, as amended by the 2007
IGC, and by the accompanying explanations. In particular, the
horizontal provisions say:
— The Charter applies to Member States
"only when they are implementing Union law."
— The Charter does not extend or modify
the Union's powers or tasks.
— Rights deriving from EU law or the
ECHR are the same (ie the rights in the Charter are not more extensive).
— Rights resulting from the common
constitutional traditions of the Member States "shall be
interpreted in harmony with those traditions."
— The principles contained in the Charter
will guide the EU institutions when legislating but they are only
enforceable in limited circumstances.
— "Full account shall be taken
of national laws and practices as specified in this Charter."
9. As is well-established in the case law
of the ECJ, UK courts already have the power to strike down national
legislation that is incompatible with a fundamental right constituting
a general principle of EU law, if the legislation implements or
derogates from EU law. After the Charter is made legally binding,
that will remain the case. The Charter does no more than to restate
the fundamental rights to which courts have always had regard,
and the circumstances in which they may take those fundamental
rights into account.
10. The Charter also includes "principles"
that—as the Horizontal Articles explain—do not have
legal effect independently of the legislation that gives them
effect. Their purpose is to guide the EU legislature, rather than
to give justiciable rights to individuals. For instance, the Charter
records that when the EU legislates, it should do so in a way
that will ensure a high level of human health protection. But
that does not create an individual right to health care. And a
court may only have regard to such principles when considering
whether the EU legislature has taken them sufficiently into account
when acting.
A Protocol annexed to the Treaty clarifies
that the Charter does not extend the ability of the Court of Justice
of the European Union, or any court or tribunal of Poland or of
the United Kingdom, to find that the laws, regulations or administrative
provisions, practices or action of Poland or of the United Kingdom
are inconsistent with the fundamental rights, freedoms and principles
that it reaffirms.
11. The UK has extra guarantees in the Protocol,
Article 1(1) of which guarantees that "The Charter does not
extend the ability of the Court of Justice of the European Union,
or any court or tribunal of Poland or of the United Kingdom, to
find that the laws, regulations or administrative provisions,
practices or action of Poland or of the United Kingdom are inconsistent
with the fundamental rights, freedoms and principles that it reaffirms".
12. The UK protocol does not constitute
an "opt-out". It puts beyond doubt the legal position
that nothing in the Charter creates any new rights, or extends
the ability of any court to strike down UK law.
14 December 2007
2 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
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