Vilniaus universiteto Teisės fakulteto
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socialinių mokslų daktaras LL.M.
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The article analyses the role of the European social partners in the law-making process in the European Community. The idea to promote negotiations between employers’ and workers’ organisations at Community level and to involve them in the legislative process was brought to the light together with the ambitious project of creation of single European market in mid 80’s. Nowadays social dialogue at European level became a cornerstone of so-called European Social Area. The Treaty establishing European Community (TEC) consolidates very strong role of the social partners which makes them nearly central figure in the process of social legislation. First of all, the social partners shall be mandatory consulted by the Commission on the possible direction of the Community action in the field of social policy and on the content of envisaged proposal. Secondly, the social partners may take the opportunity to negotiate the agreement concerning Commission’s proposal or other agreement at Community level, which may be implemented either in accordance with the procedures and practices specific to social partners and the Member States or by the Council decision (from authors point of view – by directive only). Decisive role of the social partners lays in the temporary stoppage of the Commission initiative during the period of consultation and the period of negotiations, if the negotiations came out as a result of the previous negotiations.
Indisputably, present model of social dialogue brings positive effects to the regulation of industrial and employment relations but some problems of legal and political nature still shall be addressed. Since the definition of or requirements for the European social partners do not exist in the Community’s primary law the fundamental problem arises, which organisations concerned entitled to be involved in the consultation procedure according to Article 138 TEC and which are allowed to conclude agreements on Community level and, eventually, conclude agreements on Community level and apply for their implementation by the Councils decision (to authors view – directive only). In order to solve the problem author suggests to divide clearly between two functions of the employers’ and workers’ organisations prescribed in the Articles 138–139 TEC, namely the consultative and the negotiating function. The representation and other criteria shall be applicable only if European social partners are involved in the consultation procedures or negotiations according to Article 138 TEC because of the blocking effect for Commissions legislative initiative. Article 139 TEC does not require social partners to be representative or to fulfil other requirements in order to use their autonomy and to be engaged in the negotiations at Community level. Community law does not limit the power of the Commission or the Council to implement the agreement of the social partners at Community level even if the agreement is concluded not by “sufficient representative” organisations. The concept of the replacement of the European Parliament by the “sufficient representative” social partners seems not to be persuasive and, additionally, creates artificial obstacle to implement desirable agreements. In order to retain the balance of powers author proposes introduce per analogiam the system of the decision-making of the Article 137 TEC.
The present model of European social dialogue clearly indicates willingness of European legislator to create legal framework for collective bargaining at Community level. Article 138–139 TEC do not however establish the legal basis for real cross-border bargaining resulting in the agreements with normative effect. The internationalisation of the collective bargaining is confronted with rather reluctant attitude of the actors at national level. The absence of mandate to represent members applies both to workers and employers’ organisations at European level which is dictated mostly by the fear of loss of domestic influence and unpredictable outcomes of the European bargaining. Fear of negative influence of European bargaining on the national system of industrial relations or economical and social situation institute another argument preventing European Community from creating solid legal framework for European collective bargaining system. By concluding agreements based on Article 139 TEC European social partners sent a strong signal indicating their readiness and ability to negotiate at Community level terms of working conditions and employment in Member States. It is now up to Member States and national organisations to grant them or not to grant appropriate legal remedies.