Europaudvalget 2016
KOM (2016) 0127
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EUROPEAN
COMMISSION
Strasbourg, 8.3.2016
SWD(2016) 50 final
COMMISSION STAFF WORKING DOCUMENT
The EU social acquis
Accompanying the document
Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions
Launching a consultation on an European Pillar of Social Rights
{COM(2016) 127 final}
{SWD(2016) 51 final}
EN
EN
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Table of Contents
1.
2.
2.1.
2.2.
3.
3.1.
3.1.1.
3.1.2.
3.1.3.
3.1.4.
3.1.5.
3.1.6.
3.1.7.
3.1.8.
3.1.9.
A brief history of the social
acquis
.............................................................................. 3
The framework of the EU social
acquis
as laid down in primary law ......................... 4
The Treaties.................................................................................................................. 4
The EU Charter ............................................................................................................ 5
Social rights and principles in EU secondary law ........................................................ 6
Work environment and access to work ........................................................................ 6
Equal treatment in the workplace ................................................................................. 7
Reconciling family and professional life ..................................................................... 7
Awareness of conditions of employment ..................................................................... 7
Equal treatment regardless of type of contract ............................................................. 8
Limitation of working time .......................................................................................... 8
Protection of health and safety ..................................................................................... 9
Posted workers ............................................................................................................. 9
Third country nationals ................................................................................................ 9
Protection in the event of termination of employment............................................... 10
3.1.10. Organisation, information and consultation of workers ............................................. 10
3.1.11. The prohibition of child labour and protection of young people at work .................. 11
3.2.
3.2.1.
3.2.2.
4.
4.1.
4.2.
4.3.
4.3.1.
4.3.2.
4.3.3.
5.
Social protection......................................................................................................... 11
Social security coordination ....................................................................................... 12
Equal treatment in social security and social integration ........................................... 12
Soft law ...................................................................................................................... 12
Policy coordination .................................................................................................... 12
EU funding ................................................................................................................. 14
Recommendations ...................................................................................................... 14
Work environment and access to work ...................................................................... 14
Social protection......................................................................................................... 15
Education and training ............................................................................................... 16
Social rights and principles as laid down in international law ................................... 17
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1.
A brief history of the social
acquis
EU primary law, consisting of the Treaty on European Union (TEU), the Treaty on the Functioning of
the European Union (TFEU) and the Charter of Fundamental Rights (EU Charter), bestows a social
mission and mandate on the EU. This social mandate is the result of a long and gradual development.
Social policy in the broad sense began as a means of securing market integration, and has developed
into a method to deliver social policies. This paper focuses on this "acquis", in a legal sense.
Already starting with the Treaty of Rome (1957), the European Economic Community provided the
creation of a European Social Fund (ESF) in order to improve employment opportunities for workers
and to contribute to the raising of their standard of living (Chapter II). It included a right to free
movement of workers and the abolition of any discrimination based on nationality between workers of
the Member States as regards employment, remuneration and other conditions of work and
employment (Article 48). As illustrated in Article 119, it also focused on gender equality with respect
to equal pay for equal work. In the field of the protection of health and safety in the workplace the
Commission could issue opinions on problems at national and international level (Articles 117 and
118).
1
Moreover, due to the Treaty's obligation for the Council to act in the area of the coordination of
social security (Article 51), EU secondary legislation in this field has existed since 1958.
2
Finally,
concrete action was taken on vocational training already in 1963.
3
Relatively early the Court of Justice
of the European Union (CJEU) took social considerations on board, in particular in cases involving
individuals. The result was that individuals, often migrant workers and their families were held to be
entitled to various types of social benefits.
4
The EU social
acquis
initially evolved in order to complete the single European market.
5
The social
policy further developed with the inclusion by the Single European Act in 1986 of the possibility to
adopt minimum requirements on the health and safety of workers (Article 118a). The areas for EU
action were expanded in the 1992 Maastricht Treaty’s Social Protocol. The Protocol’s provisions were
subsequently integrated into the general Treaty framework by the 1998 Amsterdam Treaty rendering
them applicable to all Member States, forming the basis for the current Title X of the TFEU. From the
entry into force of the Lisbon Treaty, the EU had for the first time in the history of integration
included the concept of achieving a highly competitive social market economy.
6
As for fundamental social rights, the initial point of reference in the EU legal order was the
Community Charter of the Fundamental Social Rights of Workers, adopted in 1989 by all Member
States except the UK. Not legally binding, the 1989 Community Charter was a political instrument and
a point of reference for the CJEU.
7
Many of the 1989 Community Charter’s rights are now featured in
the EU Charter. Proclaimed in Nice in 2000 and given status equal to primary law by the Lisbon
Treaty in 2009, the EU Charter contains a great number of social and welfare rights that need to be
respected by the EU Institutions, as well as the Member States when they are implementing EU law.
1
Minimum occupational health and safety requirements were needed in order to complete the single European
market. This led to the adoption, for example, of Directive 82/605/EEC on protection against the risks
associated with metallic lead, Directive 83/477/EEC on asbestos, and Directive 86/188/EEC on noise.
.
2
Regulations No 3 and 4 of 1958.
3
63/266/EEC: Council Decision of 2 April 1963 laying down general principles for implementing a common
vocational training policy.
4
Cf. Case 249/83,
Hoeckx;
case 94/84,
Deak;
and C-237/94,
O’Flynn.
5
Many early EU labour law measures were based on the general harmonisation competence for the
establishment and functioning of the internal market. See e.g. Directive 80/987/EEC on employer insolvency,
Directive 75/125 on collective redundancies, and Directive 77/187/EEC on transfer of undertakings.
6
Article 2(3) TEU.
7
For example case C-173/99,
BECTU;
C-397/01,
Pfeiffer
and C-151/02,
Jaeger.
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2.
2.1.
The framework of the EU social
acquis
as laid down in primary law
The Treaties
The social mission and objectives of the EU are to promote the well-being of its peoples (Article 3
TEU), to work for the sustainable development based on a highly competitive social market economy,
aiming at full employment and social progress, and a high level of protection. The EU shall combat
social exclusion and discrimination, promote social justice and protection, equality between women
and men, solidarity between generations and protection of the rights of the child. It shall also promote
economic, social and territorial cohesion, and solidarity among Member States.
The EU shall pursue these social objectives by appropriate means commensurate with the competences
which are conferred upon it in the Treaties (Article 5(2) TEU). The use of these competences shall
comply with the principles of subsidiarity and proportionality (Article 5(3) and 5(4) TEU).
The social mission of the EU is further enhanced by Article 9 TFEU that prescribes a social
‘mainstreaming’ obligation, stating that in defining and implementing its policies and activities, the
EU shall take into account requirements linked to the promotion of a high level of employment, the
guarantee of adequate social protection and the fight against social exclusion.
The EU has implemented its social mission and objectives
inter alia
on the basis of Article 153 TFEU
of the Social Policy Title X. The central provision in this Title is Article 153(1). It has a wide personal
and material scope, providing the legal basis for the EU “to
support and complement the activities of
the Member States”
in a number of fields for people both inside and outside the labour market:
workers, jobseekers and unemployed. The objective is to improve working conditions, social security
and social protection, workers' health and safety, information and consultation of workers, and the
integration of persons excluded from the labour market.
For all those fields the EU is granted a law-making competence to adopt directives (except the
combating of social exclusion and the modernization of social protection systems), but this power is
limited in two ways: the EU operates under “shared
competence”
(Article 4 TFEU), and can only
establish minimum requirements.
For directives concerning social security and social protection of workers, the protection of workers
where their employment contract is terminated, the representation and collective defence of workers
and employers and conditions of employment for third-country nationals legally residing in EU's
territory, unanimous Council voting with consultation of the European Parliament is required.
8
The
specific bridging clause, which authorises the Council to decide unanimously to apply the ordinary
legislative procedure
9
can be applied in those cases, except on measures concerning social security and
social protection of workers.
The final paragraph of Article 153 TFEU declares that "the
provisions of this Article shall not apply to
pay, the right of association, the right to strike or the right to impose lock-outs",
limiting the EU’s
power under this social competence.
10
8
9
Second subparagraph of Article 153(2)(b) TFEU.
Third subparagraph of Article 153(2)(b) TFEU.
10
However, some measures based on Article 153 TFEU, such as the fixed-term, part-time and temporary agency
work directives include pay among the “employment conditions” for which they lay down a right to equal
treatment. Aspects of pay are also indirectly regulated by Article 7 of the Working Time Directive, which lays
down the right to minimum paid annual leave. In none of these cases are the levels of pay determined by EU
law and this remains a matter of national competence. The CJEU has explicitly held that “as [Article 153(5)
4
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Article 5(3) TFEU provides that the EU may take initiatives to ensure coordination of Member States'
social policies. The scope of and arrangement for exercising the Union’s competence in this regard is
set out in Article 156 TFEU, laying down the necessary infrastructure for a social ‘open method of
coordination’.
The TFEU features a unique additional way for the EU to adopt social policy legislation, namely by
the implementation of agreements concluded between the social partners, i.e. representatives of
management and labour, at EU level. Articles 152, 154 and 155 TFEU provide the legal framework
for this European-level social dialogue. In the areas covered by Article 153 TFEU, such agreements
shall be implemented “at
the joint request of the signatory parties, by a Council decision”.
11
Article 21(3) TFEU provides competence for the EU to adopt measures concerning social security or
social protection. Similarly, for cross-border situations in the internal market Article 45–48 TFEU
provide competence to secure the free movement of workers in the EU.
Finally, Articles 145, 148, 162, 165 and 168 TFEU on employment guidelines, the ESF, education and
health can be mentioned in the present context.
2.2.
The EU Charter
A wide range of social rights and principles are laid down in the EU Charter.
12
The EU Charter is
binding on the EU institutions, which means that they have to respect and observe it whenever they act
in accordance with the powers conferred on them by the Treaties. In addition, the Charter is binding
on the Member States when they are implementing EU law, for instance when transposing directives
into their national law. Many of the social rights and principles laid down in the Charter have been
concretised by means of secondary law. These measures are fully binding on the Member States and
are interpreted by the CJEU in the light of the Charter.
13
TFEU] derogates from paragraphs 1 to 4 of that article, the matters reserved by that paragraph must be
interpreted strictly so as not to unduly affect the scope of paragraphs 1 to 4, nor to call into question the aims
pursued by Article [151 TFEU]”. See
inter alia
Case C-268/06,
Impact,
and C-307/05,
Yolanda Del Cerro
Alonso v Osakidetza-Servicio Vasco de Salud.
11
The social partners have to date adopted ten such agreements: Four cross industry and six at sector level.
12
Such as the prohibition of forced labour (Article 5), respect for private and family life (Article 7), freedom of
association (Article 12), the freedom to choose an occupation and right to engage in work in any Member State
(Article 15), the right not to be discriminated on only ground (Article 21), the equality between men and
women in all areas, including employment, work and pay (Article 23), the right to information and consultation
within the undertaking (Article 27), the right of collective bargaining and action (Article 28), the right to a free
placement service (Article 29), the right to protection in the event of unjustified dismissal (Article 30), the right
to fair and just working conditions, to maximum working hours, breaks and holiday (Article 31), the
prohibition of child labour and protection of young people at work (Article 32), and the entitlement to social
security and assistance (Article 34).
13
Already before the entry into force of the EU Charter, the CJEU attached considerable importance to it when
interpreting EU law. See Case C-540/03,
Parliament
v
Council,
paragraphs 38 and 58; Case C-432/05,
Unibet,
paragraph 37; Case C-438/05,
International Transport Workers’ Federation and Finnish Seamen’s Union,
paragraphs 90 and 91; Case C-275/06,
Promusicae,
paragraphs 61 to 65; Joined Cases C-402/05 P and
C-415/05, P
Al Barakaat International Foundation
v
Council and Commission,
paragraph 335;
Kücükdeveci
and Joined Cases C-92/09 and C-93/09,
Volker und Markus Schecke and Eifert,
paragraph 45 et seq. See also
Case T-177/01
Jégo-Quéré
v
Commission.
5
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However, the EU Charter must be read in conjunction with the Treaties. The Charter does not establish
any new power or task for the Union. Moreover, Article 52(2) requires that rights of the Charter for
which provision is made in the Treaties shall be exercised under the conditions and within the limits
defined by the Treaties and the general principles of EU law. The freedom to choose an occupation
and right to engage in work in any Member State (Article 15 of the Charter) is therefore to be
exercised under the conditions and within the limits defined by article 45 TFEU as interpreted by the
CJEU. Most importantly, in many areas where social rights feature in the EU Charter (e.g., housing,
child well-being, social protection), there is little to no EU competence to enact secondary legislation.
3.
Social rights and principles in EU secondary law
The largest part of the EU social
aquis
consists of secondary legislation, mostly in the form of
directives. Many of these give a more concrete expression or implementation of social rights as
derived from the Treaties and in the EU Charter. Moreover, EU secondary law in other areas also
includes social clauses.
3.1.
Work environment and access to work
The protection of workers at the EU level is currently ensured through a set of individual and
collective rights. The EU has adopted directives on the basis of Article 153 TFEU on social policy.
14
In those directives, the definition of worker is not uniform
15
and most refer to national definitions.
16
For a few, where there is no definition or reference to national definitions, the one used under Article
45 TFEU applies.
17
This leaves a margin of appreciation to Member States and to their courts.
18
14
For example on worker's health and safety (Framework Directive 89/391/EEC and the 23 specific Directives,
see Part 3.1,
Protection of health and safety,
and footnote 36), and working conditions: Directive 91/533/EEC
(Written Statement); Directive 94/33/EC (Young People at Work); Directive 2008/104/EC (Temporary Agency
Work); Directive 2008/94/EC (protection of employees in the event of the insolvency of their employer);
Directive 1997/81/EC (Part-time work); Directive 1999/70/EC (Fixed-term work); 2002/14/EC (Information
and Consultation Directive); Directive 2003/88/EC (Working Time) and Directives 2000/78/EC (non-
discrimination on the grounds of religion or belief, disability, age or sexual orientation) and 2000/43/EC (racial
equality).
15
See for example Directive 90/270/EEC (work with display screen equipment); Directive 92/85/EEC (Pregnant
workers); Directive 2010/32/EU (sharp injuries); Directive 92/29/EEC (medical treatment on board vessels)
and the Framework Directive 89/391/EEC.
16
All working conditions directives referred to in footnote 3 except Directive 98/59 (collective redundancies)
and Directive 2003/88/EC (working time).
17
Directive 2000/78/EC (case C-432/14,
"O");
Directive 2003/88 (case C-428/09,
Isère);
Directive 98/59 (case
C-229/14,
Ender Balkaya).
18
The CJEU has brought some limitation to this discretion in order to ensure the effectiveness of EU law See for
example Case C-393/10,
O’Brien.
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3.1.1.
Equal treatment in the workplace
Several Directives aim to implement the principle of equal treatment between persons irrespective of
racial or ethnic origin
19
and of men and women.
20
They require Member States to set up National
Equality Bodies to promote equal treatment and to assist victims of discrimination. The Employment
Equality Directive
21
prohibits discrimination in employment on the basis of sexual orientation,
religious belief, age and disability, and the Racial Equality Directive
22
prohibit discrimination on the
basis of race and ethnicity in employment, in education, and in access to social security and goods and
services. In 2006, the Gender Recast Directive consolidated into a single directive earlier EU
legislation relating to equal opportunities and equal treatment for men and women in employment and
occupation.
23
In addition to the antidiscrimination directives, EU law in areas of transport, telecommunication,
consumer protection, state aid or public procurement include provisions to ensure accessibility for
persons with disabilities.
3.1.2.
Reconciling family and professional life
The Pregnant Workers (Maternity Leave) Directive provides for paid maternity leave, at least at the
level of sick pay for fourteen weeks.
24
In addition, the Directive on self-employed workers and
assisting spouses also grants a maternity allowance that is sufficient to enable an interruption of
occupational activities for at least fourteen weeks for female self-employer workers or female spouses
of self-employed workers.
25
The revised Parental Leave Directive
26
entitles men and women workers
to a minimum of four months' leave after the birth or adoption of a child. Member States, or where
implemented through collective agreements, social partners are granted discretion to decide whether or
not this leave is paid, and whether or not this leave can be taken in a piecemeal way or part-time.
Parents who return from parental leave have the right to request but are not entitled to changes to their
working hours and/or patterns for a certain period of time. It also provides that workers may request
limited time off work for urgent family reasons (force
majeure).
3.1.3.
Awareness of conditions of employment
The worker is entitled to receive essential information relating to the employment relationship in
writing, not later than two months after the commencement of employment on the basis of the Written
Statement Directive.
27
These elements cover the description of the work, the date of its
commencement, its duration, the amount of paid leave and the working time with additional
information for expatriate employees. The Commission is currently undertaking an evaluation of the
Directive.
19
20
Directive 2000/43/EC.
Directive 2006/54/EC (recast) on the implementation of the principle of equal opportunities and equal
treatment of men and women in matters of employment and occupation; Directive 2004/113/EC implementing
the principle of equal treatment between men and women in the access to and supply of goods and services;
Directive 97/7/EC on the progressive implementation of the principle of equal treatment for men and women in
matters of social security.
21
Directive 2000/78.
22
Directive 2000/43.
23
The recast Directive 2006/54/EC.
24
Directive 92/85/EEC.
25
Directive 2010/41/EU.
26
Directive 2010/18/EU implementing the revised Framework Agreement on parental leave.
27
Directive 91/533/EEC.
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Awareness of rights is also ensured through the Directives adopted in view of a more effective
enforcement of existing EU rules in the fields of posting of workers
28
or of free movement of
workers.
29
They include obligations to ensure effective access to information on rights as established
in the EU law and transposed into national law, via the use or setting up of dedicated tools or specific
bodies through the availability of effective mechanisms for dispute resolution, or similar judicial or
administrative proceedings.
3.1.4.
Equal treatment regardless of type of contract
Three separate EU labour law Directives, concerning fixed-term work, part-time work and temporary
agency work are aiming to provide equal treatment and prevent abuse of ‘atypical’ contracts.
30
Where
a worker is employed under such an atypical contract, he or she should generally not be treated in a
less favorable manner than comparable permanent and/or fulltime staff concerning employment
conditions unless there are objective reasons for different treatment. Under the Temporary Agency
Work Directive for instance, from the first day of their assignment, temporary agency workers have to
have the basic working and employment conditions that would apply if they were recruited directly by
the user firm to occupy the same job. These conditions cover pay, as well as the duration of working
time, overtime, breaks, rest periods, night work, holidays and public holidays. To allow flexibility for
workers and employers, they allow deviations from this principle in specific circumstances. The
Fixed-Term Work Directive also includes an 'anti-abuse' clause to impede unjustified successions of
such contracts. An additional directive extends the EU rules on occupational health and safety to
temporary workers, generally more exposed to the risk of accidents at work and occupational
diseases.
31
3.1.5.
Limitation of working time
The Working Time Directive
32
provides a limit to weekly working time, which must not exceed 48
hours on average, including overtime. There can be an individual opt-out of this maximum on the
basis of a written agreement between the worker and the employer, if the Member State has allowed
the use of this derogation. This opt-out does not apply to the minimum rest provisions of the Directive,
which prescribe a minimum daily rest period of 11 consecutive hours, a rest break during working
hours if the worker is on duty for longer than 6 hours, and a minimum weekly rest period of 24
uninterrupted hours for each 7-day period. The Directive also lays down the right to minimum paid
annual leave of 4 weeks. The Working Time Directive allows flexibility to accommodate differences
between national rules or the requirements of specific activities. There is substantial scope for flexible
working arrangements through collective bargaining (e.g. yearly accounting of working time) and
derogations are also available to address circumstances where continuity of service is crucial (e.g.
hospitals). In addition to the Working Time Directive, specific directives apply to a number of
transport sectors.
33
28
29
Directive 2014/67/EU.
Directive 2014/54/EU.
30
Fixed-Term Work Directive 1999/70/EC; Part-time Work Directive 97/81/EC; Temporary Agency Work
Directive 2008/104/EC.
31
Directive 91/383/EEC.
32
Directive 2003/88/EC.
33
Minimum standards for working time in the civil aviation sector are laid down in Directive 2000/79/EC.
Directive 2005/47/EC implements the Social Partners agreement on certain aspects of the working conditions
of mobile workers engaged in interoperable cross-border services in the railway sector. Directive 2002/15/EC
in turn sets the framework for the organisation of working time for mobile workers in road transport activities
and self-employed drivers. Regulation (EC) No 561/2006 provides for minimum requirements on the daily and
weekly driving times, minimum breaks and daily and weekly rest periods for drivers engaged in the carriage of
goods and passengers by road. These provisions reinforce the existing rules on the organisation of the working
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3.1.6.
Protection of health and safety
EU rules in the social policy area guarantee workers’ right to occupational health and safety (OSH). A
Framework Directive and 23 individual directives provide rules on the prevention of occupational
risks, the protection of safety and health, the elimination of risk and accident factors.
34
The Framework
Directive establishes general principles for managing safety and health, such as responsibility of the
employer, rights/duties of workers, using risk assessments to continuously improve company
processes, and workplace health and safety representation. All individual directives follow these
common principles, tailoring the principles of the Framework Directive to specific tasks, specific
hazards at work, specific workplaces and sectors, and specific groups of workers. The individual
directives define how to assess these risks and, in some instances, set limit exposure values for certain
substances or agents.
3.1.7.
Posted workers
To ensure fair and just working conditions also in the context of the temporary provision of services
across borders, the Posting of Workers Directive
35
provides that a host State is required to apply to
workers posted to its territory certain basic standards of its own labour law system (e.g. minimum
wage, working time, holidays) as laid down in national legislation or universally applicable collective
agreement. The Enforcement Directive allows host States more effective methods of enforcing labour
standards in these situations.
36
3.1.8.
Third country nationals
Legal migration of third-country nationals to the EU is partly regulated by EU Directives which set out
the conditions of entry and residence and also minimum of rights that third-country nationals should
enjoy, in particular equal treatment with nationals. The Long-term Residence Directive created a
single status for non-EU long-term residents. A Directive on family reunification establishes the rules
and conditions under which non-EU nationals who are residing lawfully on EU territory may exercise
the right to family reunification. The EU also harmonised national legislation concerning the entry of
students and non-remunerated trainees and researchers.To attract talent and high skills workers, the
European Union adopted the EU Blue Card Directive in 2009. A Directive on seasonal work sets
important labour standards for third country nationals engaging in seasonal work in the EU.
37
The
Directive provides the principle of equal treatment between third country nationals and Union
nationals, particularly as regards the freedom of association and the right to strike, concerning terms of
employment, working conditions and social security benefits.
time and are strictly monitored by means of recording equipment. The working time of seafarers is regulated
by Directive 1999/63/EC.
34
Framework Directive 89/391/EEC and Directive 89/654/EEC on minimum safety and health requirements for
the workplace; 92/57/EEC on temporary or mobile construction sites; 92/91/EEC on the mineral-extracting
industries through drilling; 92/104/EEC on workers in surface and underground mineral extracting industries;
93/103/EC on fishing vessels; 92/29/EEC on improved medical treatment on board vessels; 89/656/EEC on
personal protective equipment; 90/269/EEC on the manual handling of loads; 90/270/EEC on work with
display screen equipment; 92/58EEC on safety and/or health signs at work; 2009/104/EC on work equipment;
92/85/EEC on pregnant workers; 2013/35/EU on electromagnetic fields; 1999/92/EC on explosive
atmospheres; 2002/44/EC on mechanical vibration; 2003/10/EC on noise; 2006/25/EC on artificial optical
radiation; 2000/54/EC on biological agents at work; 2010/32/EU on sharp injuries in the hospital and
healthcare sector; 98/24/EC on chemical agents; 2004/37/EC on carcinogens or mutagens; 2009/148/EC on
asbestos.
38
Directive 96/71/EC.
39
Directive 2014/67/EU.
37
Directive 2014/36.
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The Single Permit Directive establishes a single application procedure for a single permit to work in
the EU and a common set of rights for third country workers legally residing in a Member State.
38
A
common set of rights for intra-corporate transferees when working in the EU, facilitating their entry
and mobility between Member States is provided by Directive on the conditions of entry and residence
of third country nationals in the framework of intra-corporate transfers.
39
3.1.9.
Protection in the event of termination of employment
Article 153 TFEU provides for the possibility for the EU to support Member States in ensuring the
protection of workers where their employment contract is terminated, notably through the adoption by
unanimity voting of directives laying down minimum standards. There is no secondary EU law to
implement this right. Similarly, there are no EU rules regarding the length of probation periods.
Three different directives are concerned with the potential termination of the employment contract in
the event of structural changes in companies. They embody the basic right to protection against
unjustified dismissal, but only in ‘collective’ circumstances. The Insolvency Directive ensures
payment of employees' outstanding claims in the event of the employer's insolvency.
40
The Collective
Redundancies Directive regulates the situation of workers affected by decisions of employers to lay
off a group of employees.
41
The Transfer of Undertakings Directive
42
protects employees’ rights in the
event that an undertaking, business, or part of an undertaking or business is transferred from one
employer to another, stipulating
inter alia
that such a transfer does not in itself constitute valid
grounds for dismissal. The Directives on transfer of undertakings and collective redundancies provide
for information and consultation rights. The Maternity Leave Directive
43
prohibits women's dismissal
from work because of maternity for the period from the beginning of their pregnancy to the end of the
period of maternity leave, save exceptional circumstances, for which the employer needs to give
justification in writing. The Recast Directive
44
furthermore sets out that workers taking paternity or
adoption leave should be protected against dismissal due to exercising those rights.
The Directive establishing a framework for equal treatment in employment
45
protects workers against
dismissal where there is discrimination on a prohibited ground, including victimisation.
46
3.1.10. Organisation, information and consultation of workers
The promotion of social dialogue is enshrined as a common objective of the EU and the Member
States in Art 151 TFEU. The rights of association, collective bargaining, to strike or to impose lock-
outs are excluded from the application of this article. The role of the social partners is recognised at
EU level, taking into account the diversity of national systems and their autonomy (Art 152 TFEU).
Eight social partner agreements have been implemented either by EU law or by the social partners.
47
38
39
Directive 2011/98/EU.
Directive 2014/66/EU.
40
Directive 2008/94/EC.
41
Directive 98/59/EC.
42
Directive 2001/23/EC.
43
Directive 92/85/EEC.
44
Directive 2006/54/EC.
45
Directive 2000/78/EC.
46
Other EU anti-discrimination directives (such as Directive 2006/54/EC or Directive 2000/43/EC) also provide
specific protection against unfair dismissal.
47
Articles 153 and 154 TFEU. Examples of such cross-industry agreements are: Parental leave (revised) (2009),
Fixed-term contracts (1999); Part-time work (1997); Parental leave (1996). Autonomous Framework
agreements implemented by social partners: Inclusive labour markets (2010); Harassment and violence at work
(2007); Work-related stress (2004); Telework (2002).
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The General Information and Consultation Directive
48
establishes a framework for informing and
consulting employees at enterprise level. Information and consultation are required on the
development of the activities, economic situation and employment, and particularly anticipatory
measures where there is a threat of restructuring, and likely changes in work organisation or in
contractual relations.
The European Works Council Directive
49
provides for the creation of a Works Council (a body
representing the employees of a transnational company, to inform and consult them on the progress of
the business and any decisions significant for their working conditions) at the request of 100
employees of at least two undertakings or establishments in at least two Member States, or on the
initiative of the employer. The involvement of employees, including at board level, is also provided by
company law directives.
50
Finally, the Cross-Border Mergers Directive
51
provides for detailed rules of
employee participation in the event of mergers of limited liability companies.
3.1.11. The prohibition of child labour and protection of young people at work
The Young People at Work Directive
52
requires Member States to take the necessary measures to
prohibit work by children, particularly that the minimum working age is not lower than the minimum
age at which compulsory full-time schooling ends, or 15 years in any event. Exceptions can be
adopted by Member States for occasional work or short-term work, involving domestic service in a
private household or work regarded as not being harmful, damaging or dangerous to young people in a
family undertaking, for cultural, artistic, sporting or advertising activities, subject to prior
authorisation by the competent authority in each specific case, for children of at least 14 years of age
working under a combined work/training scheme, and for children of at least 14 years of age
performing light work. The Directive provides specific limits to maximum weekly working time, night
work and minimum rest periods for children and adolescents when they engage in employment.
53
3.2.
Social protection
The EU
acquis
in the area of social protection is rather limited. Though the EU may adopt legislation
in the area of 'security and social protection of workers' (Article 153(1)(c)), it does not have the
competence to adopt legislation for 'the combatting of social exclusion' (Article 153(j)) or for 'the
modernisation of social protection systems' (Article 153 (k)).
48
49
Directive 2002/14/EC.
Directive 2009/38/EC.
50
Firstly, Directive 2001/86/EC supplementing the Statute for a European company with regard to the
involvement of employees provides that the establishment of a European company will not mean the
disappearance or watering down of existing employee involvement arrangements, calling for agreement
between the employer and the representatives of employees and providing subsidiary rules applicable in the
absence of agreement. Secondly, Directive 2003/72/EC on the information, consultation and participation
rights of employees in a European Cooperative Society provides that information, consultation and in some
cases, participation procedures at transnational level are to be used whenever a European Cooperative is
created.
51
Directive 2005/56/EC.
52
Directive 94/33/EC.
53
See also Commission Recommendation of 31 January 1967 to the Member States on the protection of young
workers and the Commission Recommendation of 15 September 2000 on the ratification of International
Labour Organisation (ILO) Convention No 182 of 17 June 1999 concerning the prohibition and immediate
action for the elimination of the worst forms of child labour.
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3.2.1.
Social security coordination
The rules on social security coordination apply to national legislation on sickness, maternity and
equivalent paternity benefits, old-age pensions, pre-retirement and invalidity benefits, survivors’
benefits and death grants, unemployment benefits, family benefits, benefits in respect of accidents at
work and occupational diseases.
54
The Directive on patients' rights in cross-border healthcare clarifies
citizens' rights to receive healthcare services in another EU Member State; guarantees the safety,
quality and efficiency of care that they will receive there; and promotes cooperation between Member
States on healthcare matters.
55
3.2.2.
Equal treatment in social security and social integration
The equal treatment for women and men in matters of social security is ensured by the Directive on
the protection against discrimination in the scope, contributions and benefits of social security
schemes.
56
The Gender Recast Directive moreover ensures respect for the principle of equal treatment
for men and women in occupational social security schemes. The Racial Equality Directive gives
protection against discrimination based on race or ethnic origin in social protection (including social
security and healthcare) as well as access to goods and services, including housing.
57
Finally, some legislation exists in order to promote access to necessary goods and services for
ensuring adequate livelihoods. The Directive on Payment Accounts seeks to improve access to low
income individuals for basic bank accounts.
58
The European Commission's recent proposal for a
European Accessibility Act,
59
currently under discussion between co-legislators, also seeks to ensure
that people with disabilities can access products, transportation, information and communications
technologies, and other facilities/services that are necessary for their full inclusion in society.
4.
Soft law
In addition to the legally binding instruments, the EU has adopted ‘soft law’ measures. As they are
‘soft law’, they do not confer social rights in the strict sense. Nevertheless, they provide a policy
framework for such rights.
4.1.
Policy coordination
The EU has competences to coordinate the employment policies of the Member States.
This coordination was formalised in the context of the Europe 2020 strategy and is implemented
annually through the European Semester.To meet the Europe 2020 objectives, five headline targets
have been agreed for the whole EU to achieve by the end of 2020. These include achieving an overall
employment rate of 75% for 20-64 year-old women and men as well as reducing by at least 20 million
the number of people in or at risk of poverty and social exclusion.
54
See most notably Regulation (EC) 883/2004 on the coordination of social security systems, which was
adopted on the basis of Article 42 EC (now Article 48 TFEU) and Article 308 EC (now Article 352 TFEU)
and its implementing Regulation (EC) 987/2009.
55
Directive 2011/24/EU.
56
Directive 79/7/EC.
57
Directive 2000/43/EC.
58
Directive 2014/92/EU on the comparability of fees related to payment accounts, payment account switching
and access to payment accounts with basic features.
59
Proposal for a Directive on the approximation of the laws, regulations and administrative provisions of the
Member States as regards the accessibility requirements for products and services (COM(2015) 615 final).
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On education, a twofold headline target is set on reducing the rates of early school leaving below 10%
and ensuring at least 40% of tertiary graduates. To measure progress, each EU headline target is
declined into national targets.
The Employment Guidelines include common priorities and targets for employment and social
policies. The current guidelines reflect the new approach to economic policy-making built on
investment, structural reform and fiscal responsibility.
60
They aim to boost demand for labour,
covering job creation, labour taxation and wage-setting and to enhance labour and skills supply, by
reinforcing education and training systems, and by tackling youth and long-term unemployment. To
improve the functioning of labour markets, they call for reducing labour market segmentation and the
development of active measures and mobility. They also aim to increase fairness, combating poverty
and promoting equal opportunities.
The European Semester includes a stronger emphasis on employment and social performance, under
more focused Country-Specific Recommendations.
61
In recent years, the European Semester has been
taking better account of employment and social objectives by upgrading the employment indicators in
the Macroeconomic Imbalances Procedure and by seeking to strengthen the involvement of social
partners at both EU and national level in the process.
The European Semester also aims to better integrate national and euro area dimensions.
A recommendation for the economic policy of the euro area was issued for the first time in 2015
together with the Annual Growth Survey 2016 in order to better coordinate Member States' reforms,
individually and collectively, to address imbalances and promote upwards convergence.
62
In the area of social policies, the Open Method of Coordination (OMC) supports the definition,
implementation and evaluation of social policies based on common objectives and indicators. The
method supplements the legislative and financial instruments of social policy. It applies to the
eradication of poverty and social exclusion; to adequate and sustainable pension systems; and to the
provision of accessible, high-quality and sustainable health care and long-term care.
63
The Education and Training 2020 strategic framework for European cooperation in education and
training covers the following four objectives: making lifelong learning and mobility a reality;
improving the quality and efficiency of education and training; promoting equity, social cohesion and
active citizenship; enhancing creativity and innovation, including entrepreneurship, at all levels of
education and training.
64
Cooperation between Member States is supported through a set of
benchmarks and through mutual learning processes.
60
Council Decision (EU) 2015/1848 of 5 October 2015 on guidelines for the employment policies of the
Member States for 2015.
61
Communication on steps towards completing Economic and Monetary Union COM (2015) 600 final.
62
Recommendation for a Council Recommendation on the economic policy of the euro area, COM(2015) 692
final.
63
A renewed commitment to social Europe: Reinforcing the Open Method of Coordination for Social Protection
and Social Inclusion COM(2008) 418 final.
64
2015 Joint Report of the Council and the Commission on the implementation of the strategic framework for
European cooperation in education and training (ET 2020) New priorities for European cooperation in
education and training.
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4.2.
EU funding
Article 174 TFEU provides
inter alia
that, in order to strengthen its economic, social and territorial
cohesion, the Union is to aim at reducing disparities between the levels of development of the various
regions. On that basis, European Structural and Investment Funds (ESIF) are the main source of
investment at EU level to help Member States to restore and increase growth and ensure a job rich
recovery while ensuring sustainable development, in line with the Europe 2020 objectives.
65
In this
context, the European Social Fund (ESF) helps people get the right skills for the right job, by
improving the quality of and access to education and training from early childhood to later life. The
European Regional Development Fund (ERDF) provides support to both infrastructure and direct
creation of job-rich activities, by supporting housing, childcare infrastructure, healthcare facilities,
education and training infrastructure, employment creation and entrepreneurship measures and urban
regeneration. The European Agricultural Fund for Rural Development (EAFRD) supports training and
advice for farmers and other rural SMEs wishing to grow their businesses. The European Maritime
and Fisheries Fund (EMFF) promotes social cohesion and job creation in fisheries-dependent
communities, through diversification into other maritime sectors and training in fishing communities,
including fishers, fish farmers and their relatives.
4.3.
Recommendations
EU soft law on social matters may also take the form of policy coordination, exchanges of good
practice, benchmarking, frameworks of action and codes of conduct, aimed at shaping consensus and
creating incentives for national or company-level action.
In accordance with Article 288 TFEU, recommendations do not have binding force. In addition,
Council recommendations in the field of social policy are also limited in scope by Article 153 TFEU.
Nevertheless, they can be important tools for agenda setting, can be used by the CJEU in its
interpretation of EU law,
66
and can be used in the context of cooperative mechanisms.
4.3.1.
Work environment and access to work
Under the Youth Guarantee, Member States should ensure that, within four months of leaving school
or losing a job, young people under 25 can either find a good-quality job suited to their education,
skills and experience; or acquire the education, skills and experience required to find a job in the
future through an apprenticeship, traineeship or continued education.
67
The Youth Guarantee requires
early intervention and activation, as well as reforms of training, job-search and education systems to
improve the transition from school to work and the employability of young people.
The Quality Framework for Traineeships proposes guidelines enabling trainees to acquire high-quality
work experience based on a written traineeship agreement, with learning and training objectives, under
safe and fair conditions, thus increasing their chances of finding a good quality job.
68
65
See the Common Provisions Regulation (EU) No 1303/2013; European Regional Development Fund
Regulation (EU) 1301/2013; European Social Fund Regulation (EU) No 1304/2013; Cohesion Fund
Regulation (EU) 1300/2013; Regulation on the European Agricultural Fund for Rural Development (EU)
1305/2013; Regulation on the European Maritime and Fisheries Fund (EU) 508/2014.
66
Case C-322/88,
Grimaldi.
67
Council Recommendation of 22 April 2013 on establishing a Youth Guarantee.
68
Council recommendation of 10 March 2014 on a Quality Framework for Traineeships.
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The Council Recommendation on the integration of the long-term unemployed in the labour market
offers guidance on encouraging the registration of long-term unemployed, on enhancing and
simplifying support by an individual in-depth assessments and offering a job integration agreement
identifying a single point of contact to all registered long-term unemployed at the very latest at 18
months.
69
The Council Recommendation on the promotion of employee ownership and participation promoted
the use of financial participation schemes, with the direct involvement of the social partners.
70
In 2008, the Commission issued a recommendation on the active inclusion of people excluded from
the labour market. The recommendation covers policy guidance on providing adequate income support
together with help to get a job, on inclusive labour markets and on access to quality services helping
people participate actively in society, including getting back to work.
71
The Commission has issued recommendations or opinions on topics such as the protection of young
workers (1967),
72
an equitable wage (1993)
73
and the ratification of ILO Conventions on home work
(1998),
74
seafarers’ working hours (1999)
75
and child labour (2000).
76
4.3.2.
Social protection
The 1992 Council Recommendation on common criteria concerning sufficient resources and social
assistance in social protection systems
77
sets out that persons residing in the EU should have access to
sufficient resources and assistance to live in a manner compatible with human dignity. The
Recommendation defines the common principles for implementing this principle in all the Member
States in order to progressively cover all instances of exclusion.
The 1992 Council Recommendation on the convergence of social protection objectives and policies
78
recommends guaranteeing a level of resources in keeping with human dignity, access to all legal
residents to protection of human health and support for social integration and integration into the
labour market. It also calls for a wide coverage of a replacement or benefits and for strengthening
appropriate social protection for self-employed persons.
69
Council Recommendation of 15 February 2016 on the integration of the long-term unemployed in the labour
market.
70
Council Recommendation 92/443/EEC of 27 July 1992 concerning the promotion of employee participation in
profits and enterprise results, including equity participation.
71
Commission Recommendation 2008/867/EC of 3 October 2008 on the active inclusion of people excluded
from the labour market.
72
67/125/EEC: Commission Recommendation of 31 January 1967 to the Member States on the protection of
young workers.
73
Commission opinion on an equitable wage COM (93) 388 final.
74
98/370/EC: Commission Recommendation of 27 May 1998 on the ratification of ILO Convention No 177 on
home work of 20 June 1996.
75
1999/130/EC: Commission Recommendation of 18 November 1998 on ratification of International Labour
Organisation (ILO) Convention 180 concerning seafarers' hours of work and the manning of ships, and
ratification of the 1996 Protocol to the 1976 Merchant Shipping (minimum standards) Convention.
76
2000/581/EC: Commission Recommendation of 15 September 2000 on the ratification of International Labour
Organisation (ILO) Convention No 182 of 17 June 1999 concerning the prohibition and immediate action for
the elimination of the worst forms of child labour.
77
92/441/EEC Council Recommendation of 24 June 1992 on common criteria concerning sufficient resources
and social assistance in social protection systems.
78
92/442/EEC: Council Recommendation of 27 July 1992 on the convergence of social protection objectives and
policies.
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Work-life balance measures were promoted through the 1992 Council Recommendation on child care
focusing on childcare for parents who are working or who are following education/training; special
leave for parents and improving the environment, structure and organization of work for working
parents with children.
79
The 2013 Commission Recommendation on investing in children also
provided a set of recommendations to improve child outcomes and reduce the intergenerational
transmission of disadvantage, including by stepping up affordable, quality early childhood education
and care services.
80
The Council Recommendation on effective Roma integration measures promotes
effective policy measures in the areas of access to education, employment, healthcare and housing.
81
4.3.3.
Education and training
The Recommendation on key competences for lifelong learning aims to equip young people with key
competences for further learning and working throughout their lives.
82
In 2011 Member States were
asked to implement comprehensive policies to tackle early school leaving, encompassing prevention,
intervention and compensation measures.
83
The European Qualifications Framework relates national qualifications systems through common
European reference levels for knowledge, skills and competences.
84
The European Quality Assurance
Reference Framework for Vocational Education and Training provides common European references
to develop, improve, guide and assess the quality of vocational education and training.
85
The European
Credit System for Vocational Education and Training (ECVET) allows validation and recognition of
work-related skills and knowledge acquired in different systems and countries.
86
The proposal for a
Council Recommendation on the validation of non-formal and informal learning aims to establish
arrangements for the identification, documentation, assessment and certification of learning
outcomes.
87
4.1.4. Health
The Council Recommendation on smoke free environment
88
recommends Member States to provide
effective protection from exposure to tobacco smoke in indoor workplaces, indoor public places,
public transport and other public places.
The Council Recommendation on prevention of injury and the promotion of safety
89
promotes better
use of existing data and the development, where appropriate, of representative injury surveillance and
reporting instruments to obtain comparable information, monitor the evolution of injury risks and the
effects of prevention measures over time.
79
80
92/241/EEC: Council Recommendation of 31 March 1992 on child care.
Commission Recommendation Investing in children: breaking the cycle of disadvantage, C(2013) 778.
81
Council recommendation of 9 December 2013 on effective Roma integration measures in the Member States.
82
Recommendation of the European Parliament and of the Council of 18 December 2006 on key competences
for lifelong learning (2006/962/EC).
83
Council Recommendation on policies to reduce early school leaving (2011/C191/01).
84
Recommendation of the European Parliament and of the Council of 23 April 2008 on the establishment of the
European Qualifications Framework for lifelong-learning.
85
Recommendation of the European Parliament and of the Council of 18 June 2009 on the establishment of a
European Quality Assurance Reference Framework for Vocational Education and Training.
86
Recommendation of the European Parliament and of the Council of 18 June 2009 on the establishment of a
European Credit System for Vocational Education and Training (ECVET).
87
COM/2012/0485 final.
88
Council Recommendation on smoke free environment, 2009/C 296/02.
89
Council recommendation on prevention of injury and the promotion of safety, 2007/C 164/01.
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5.
Social rights and principles as laid down in international law
The EU Charter, the European Social Charter and the European Code of Social Security of the Council
of Europe, as well as those defined by the International Labour Organisation (ILO), can be a source of
inspiration for both the EU legislator and the CJEU.
The EU is not party to most of the international conventions that requires membership of the
organisations where they are enacted. However there are exceptions and new developments. The UN
Convention on the Right of Persons with Disabilities (CRPD) was ratified by the EU in December
2010. The CRPD is an integral part of EU law and takes precedence over secondary EU legislation.
A number of ILO conventions are ratified by all 28 EU Member States (core labour standards, labour
inspection) or by the large majority of them (social security conventions, human resources
development). All EU Member States have ratified the eight fundamental ILO conventions and most
of the priority conventions covering labour market governance (employment policy, tripartite
consultations, labour inspection). These instruments cover all possible enterprises, institutions and
activities (formal and informal economy) with very limited exceptions and cover all workers without
distinction. For other conventions on for example skills, working conditions, employment protection
legislation, minimum wages fixing, social security and OSH, the ratifications vary according to
subject.
The second important international source of social rights and principles is the Council of Europe,
with in particular its EU Charter of 1961 and the Revised Social Charter of 1996. All Member States
have ratified either the 1961 or the 1996 Social Charters.
90
The importance of the Social Charters is
acknowledged in the EU legal order in Article 151 TFEU, which provides that the EU and Member
States should have as their objectives the promotion of employment, improved living and working
conditions, so as to make possible their harmonisation, proper social protection, dialogue between
management and labour, the development of human resources with a view to lasting high employment
and the combating of exclusion, “having
in mind fundamental social rights such as those set out in the
European Social Charter signed at Turin on 18 October 1961”.
It reflects the common views and
traditions of the Member States and can be considered a declaration of the fundamental principles held
dear by the EU and its Member States.
91
The ratification by EU Member States of ILO conventions, classified as up to date by ILO, and the
acceptance of the different articles of the (Revised) European Social Charter, in particular on working
conditions, income and employment relationships, is uneven. Many EU Member States have used the
possibility to opt out to some of the provisions such as on minimum wages, working time or social
inclusion and protection.
EU law is enforceable and more detailed than international standards, and can be made effective
through a strong legal framework ensuring fair remedies for both citizens and businesses.
92
International standards remain an important reference, as they can express common views on
minimum labour and social protection.
90
91
http://www.coe.int/t/dghl/monitoring/socialcharter/Presentation/Overview_en.asp.
See Opinion of Advocate General Trstenjak in Case C‑282/10,
Maribel Dominguez,
paragraph 104.
92
ILO standards and the European Social Charter cover a wider range of aspects, including minimum wages, the
right to skills and human resources development, protection against individual dismissals, minimum standards
for social security and unemployment benefits, as well as governance aspects such as labour inspection,
collective bargaining and tripartite consultations.
17