The EU social policy according to the treaty of Lisbon
One of the arguments against the treaty establishing a Constitution for Europe, presented by the socialist parties in the referendums in France and in the Netherlands, in 29 May 29 and 1 June 2005, which caused the death of that treaty, was its ''social deficit''. It is therefore interesting to compare the social clauses of this defunct treaty with those of the treaty of Lisbon, which adopted almost all its subject matters [see section 2.5] and with those of its predecessor the treaty of Nice [see section 2.4]. In fact, we will examine not only the title on social policy, in the strict sense, but also the related titles on ''employment'', on ''education and training'' and on ''public health''.
Employment is dealt in Articles 145 to 150 of the Treaty on the functioning of the EU (TFEU), in Articles 125 to 130 of the former treaty establishing the European Community (TEC) and in Articles III-203 to III-208 of the defunct treaty establishing a constitution for Europe (Constitution). There is no practical difference between the texts of these Articles. However, the treaty on the European Union (TEU, Lisbon), following the defunct Constitution, sets among the objectives of the Union that of promoting ''a highly competitive social market economy, aiming at full employment and social progress" (Article 3Article I-3 Constitution). The notion of ''a highly competitive social market economy'' supposedly should satisfy both the advocates of the ''market economy'' and those of the ''social economy'', but this does not change the substance of the social policy of the treaty of Lisbon compared to that of the treaty of Nice. TEU,
The new Title on Employment of the Treaty on the functioning of the EU urges the Member States and the Union to work towards developing a coordinated strategy for employment and particularly for promoting a skilled, trained and adaptable workforce and labour markets responsive to economic change (Article 145 TFEU, ex Article 125 TEC, Article III-203 Constitution). To this end, Member States must regard promoting employment as a matter of common concern and must coordinate their action in this respect within the Council (Article 146 TFEU, ex Article 126 TEC, Article III-204 Constitution). The Union must encourage cooperation between the Member States, support and, if necessary, complement their action (Article 147 TFEU, ex Article 127employment guidelines, consistent with the broad guidelines of economic policies [see section 7.3.1], which the Member States should take into account in their employment policies (Article 148 TFEU, ex Article 128 TEC, Article III-206 Constitution). The European Parliament and the Council, acting in accordance with the ordinary legislative procedure [see section 4.3.], may adopt incentive measures designed to encourage cooperation between Member States and to support their action in the field of employment through initiatives aimed at developing exchanges of information and best practices (Article 149 TFEU, ex Article 129 TEC, Article III-207 Constitution) [see section 13.3]. TEC, Article III-213 Constitution). The European Council should each year consider the employment situation of the Union and adopt conclusions thereon, on the basis of which the Council should draw up
Title on social policy
Social policy, in the strict sense, is covered in Articles 151 to 161 of the TFEU, Articles 136 to 145 of the TEC and Articles III-209 to III-219 of the Constitution. There is practically no difference between these Articles.
Article 151 of the Treaty on the functioning of the EU (ex Article 136Article III-209 Constitution) declares that the Union and the Member States, having in mind fundamental social rights, have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour and the development of human resources. This last goal entails effectual education and training policies. TEC,
With a view to achieving these objectives, the Union supports and complements the activities of the Member States in the following fields:
(a) improvement in particular of the working environment to protect workers' health and safety;
(b) working conditions;
(c) social security and social protection of workers;
(d) protection of workers where their employment contract is terminated;
(e) the information and consultation of workers;
(f) representation and collective defence of the interests of workers and employers, including co-determination, subject to paragraph 5;
(g) conditions of employment for third-country nationals legally residing in Union territory;
(h) the integration of persons excluded from the labour market, without prejudice to Article 166;
(i) equality between men and women with regard to labour market opportunities and treatment at work;
(j) the combating of social exclusion;
(k) the modernisation of social protection systems without prejudice to point (c).
To this end, the European Parliament and the Council:
(a) may adopt measures designed to encourage cooperation between Member States through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences, excluding any harmonisation of the laws and regulations of the Member States;
(b) may adopt, in the fields referred to in paragraph 1(a) to (i), by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.
In the fields referred to in paragraph 1(c), (d), (f) and (g), the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the Economic and Social Committee and the Committee of the Regions. The Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render the ordinary legislative procedure applicable to paragraph 1(d), (f) and (g) (Article 153 TFEU, ex Article 137 TEC, Article III-210 Constitution).
Article 151 (TFEU) states also that the objectives of social progress and cohesion that it sets should ensue not only from the functioning of the internal market, which will favour the harmonisation of social systems, but also from the procedures provided for in the Treaties and from the approximation of provisions laid down by law, regulation or administrative action. However, the measures taken by the Union and the Member States to attain the objectives of Article 151 must take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy [see section 13.5].
Social dialogue, consultation and participation
The treaty of Lisbon (following the defunct Constitution but not the treaty of Nice) declares that the Union recognises and promotes the role of the social partners at its level, taking into account the diversity of national systems. It facilitates dialogue between the social partners, respecting their autonomy. The Tripartite Social Summit for Growth and Employment contributes to social dialogue (Article 152 TFEU, Article I-48 Constitution).
Article 153 of the Treaty on the functioning of the EU (ex Article 137Article 151) stipulates that TEC, Article III-210 Constitution) states that the Union supports and complements the activities of the Member States concerning, inter alia, the information and consultation of workers and the representation and collective defence of the interests of workers and employers, including co-determination (excluding pay, the right of association, the right to strike or the right to impose lock-outs). In addition, the 1989 Social Charter, acknowledged by the TFEU (information, consultation and participation for workers must be developed along appropriate lines, taking account of the practices in the various Member States. Such information, consultation and participation must be implemented in due time, particularly in the following cases:
- when technological changes which, from the point of view of working conditions and work organisation, have major implications for the work-force, are introduced into undertakings;
- in connection with restructuring operations in undertakings or in cases of mergers having an impact on the employment of workers;
- in cases of collective redundancy procedures; and
- when workers, especially transboundary ones, are affected by the employment policies of the company where they are employed [see section 13.5.2].
Article 151 of the Treaty on the functioning of the EU (ex Article 136Article 153 (TFEU ex Article 137 TEC, Article III-210 Constitution) states that the Union shall support and complement the activities of the Member States concerning, inter alia, social security and social protection of workers. In addition the Charter of Fundamental Rights of the European Union [see section 9.2] mentions several rights, such as: the workers' right to information and consultation within the undertaking; the protection in the event of unjustified dismissal; fair and just working conditions; protection of young people at work; and, of course, social security and social assistance. TEC, Article III-209 Constitution) names proper social protection and improved living and working conditions among the objectives of the Union and the Member States.
In fact, the Member States have preferred cooperation rather than harmonisation in the fields of social protection and particularly social security legislation. On these subjects the Council decides alone (after consulting the Parliament) and by unanimity, which means that any Member State may veto the adoption of European legislation [Article 153 TFEU, ex Article 137 TEC, Article III-210 Constitution]. It is true that as systems of social protection reflect the traditions and existing social benefits of each individual State, it is not easy to change them [see section 13.5.3].
Improved living and working conditions
Following the treaty on the establishment of the European Community, the Treaty on the functioning of the EU sets among the objectives of the common social policy ''improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained'' (Article 151 TFEU, ex Article 136 TEC, Article III-209 Constitution). With a view to achieving this objective, the Union supports and complements the activities of the Member States, inter alia, concerning the improvement of the working environment to protect workers' health and safety; and the improvement of working conditions (Article 153 TFEU, ex Article 137 TEC, Article III-210 Constitution) [see section 13.5].
Action to combat social exclusion in the EU
Article 3 of the treaty on European Union (Lisbon), unlike Article 2 of the TEU (Nice) makes combating of social exclusion one of the objectives of the European Union. Moreover, Article 9 of the TFEU stipulates that in defining and implementing its policies and activities, the Union shall take into account requirements linked to the fight against social exclusion. In this declaration, the TFEU of the treaty of Lisbon follows Article III-117 of the defunct Constitution, not the TEC of the treaty of Nice. However, the project of the constitutional treaty elaborated this subject thus: ''In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices'' (Article II-94 Constitution). This elaboration was not retained in the treaty of Lisbon. Hence, the project of the Constitution was more advanced on this subject.
However, Article 151 of the TFEU (ex Article 136 TEC, Article III-209Article 153 of the TFEU (ex Article 137 TEC, Article III-117 Constitution) gives the Union a role in supporting and complementing the activities of the Member States as regards the combating of social exclusion, but does not empower the European institutions to take any measures towards this end. In compliance with the principle of subsidiarity, initiatives to combat poverty and social exclusion are primarily the preserve of the Member States' local, regional and national authorities. The European Union can only complete and stimulate the work of the Member States in these fields by promoting the exchange of information, the comparison of experiences, the transfer of know-how and the demonstration of the validity of the projects based on partnerships. Thus, the Union action against social exclusion is mainly centred on vocational training [see section 13.4.2]. Constitution) declares that combating of exclusion (in general) is one of the objectives of the Union and the Member States.
The European Social Fund
According to Article 162 of the Treaty on the functioning of the EU (ex Article 146 TEC, Article III-219 Constitution) the European Social Fund (ESF) aims to: (a) render the employment of workers easier and to increase their geographical and occupational mobility within the Union; and (b) facilitate their adaptation to industrial changes and to changes in production systems, in particular through vocational training and retraining. The ESF is administered by the Commission, which is assisted in this task by a Committee composed of representatives of the governments, trade unions and employers' organisations (Article 163 TFEU, ex Article 147 TEC, Article III-219 Constitution) [see section 13.3.3].
Equality between the sexes
Article 8 of the Treaty on the functioning of the EU declares that in all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women. In this declaration, the TFEU follows Article III-116 of the project of the Constitution. There was no similar declaration in the treaty of Nice.
Concerning the substance of gender equality there are no important differences between Article 157 of the TFEU, ex Article 141 of the TEC and Article III-214 of the Constitution. The new Article, like the older versions, stipulates that each Member State shall ensure the application of the principle that men and women should receive equal pay for equal work. This principle means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; and (b) that pay for work at time rates shall be the same for the same job. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment should not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers [see section 13.5.5].
Education and training policies
Article 165 of the Treaty on the functioning of the EU (ex Article 149, Article III-282 Constitution) states that the Union contributes to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity. Union action is aimed at:
- developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States,
- encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study,
- promoting cooperation between educational establishments,
- developing exchanges of information and experience on issues common to the education systems of the Member States,
- encouraging the development of youth exchanges and of exchanges of socio-educational instructors, and encouraging the participation of young people in democratic life in Europe, (Article III-282 Constitution )
- encouraging the development of distance education,
- developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen (Article III-282 Constitution).
The underlined texts are new objectives of the Union concerning education, which the treaty of Lisbon has adopted from the defunct Constitution.
Concerning vocational training, there are no practical differences between the three treaties. According to Article 166 of the TFEU (ex Article 150 TEC exact, Article III-283 Constitution), the Union shall implement a vocational training policy which shall support and supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training. Union action shall aim to:
- facilitate adaptation to industrial changes, in particular through vocational training and retraining,
- improve initial and continuing vocational training in order to facilitate vocational integration and reintegration into the labour market,
- facilitate access to vocational training and encourage mobility of instructors and trainees and particularly young people,
- stimulate cooperation on training between educational or training establishments and firms,
- develop exchanges of information and experience on issues common to the training systems of the Member States.
In order to contribute to the achievement of the objectives referred to in Articles 165 and 166 (TFEU) the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Economic and Social Committee and the Committee of the Regions, may adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States. The Council, on a proposal from the Commission, may adopt recommendations. The underlined texts did not exist in Article 150 of the TEC, but do not signify any important changes, since that Article referred to the co-decision procedure and the Council could adopt recommendations, even if it was not explicitly invited to by the treaty [see section 13.4].
Title XIV of the treaty of Lisbon, following previous versions of the treaties, states that a high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. Union action, which complements national policies, is directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. Such action covers the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education, and monitoring, early warning of and combating serious cross-border threats to health. The Union complements also the Member States' action in reducing drugs-related health damage, including information and prevention. Member States should, in liaison with the Commission, coordinate among themselves their policies and programmes in these areas and foster cooperation with third countries and the competent international organisations (Article 168 TFEU, ex Article 152 TEC, Article III-278 Constitution) [see section 13.5.8].
The conclusion of this analysis is that there are no substantial differences between the contents on social policy of the treaty of Lisbon, its predecessor the treaty of Nice and the project of the constitutional treaty. This last one was the most friendly of the three towards a progressive social policy, although the treaty of Lisbon has adopted most of the changes that it proposed. Hence, the criticism about its ''social deficit'' was certainly unjustified, if one keeps in mind that a treaty, like a Constitution, can only give the basis of a policy and it is up to the ordinary legislators to build on it. In fact, the ''social model'', which was built over the years by the European institutions inside the European Community and now the Union, is probably the most advanced in the world, although it is a matter of controversy between parties and between countries of the European Union.
Discuss this theme
- 2 September 2010
As tou say, the treaty is one thing and economic reality is another thing. In the present crisis, the 'European social model' is coming to an end. The concept that state spending would provide perpetual high standards of living, high growth, full employment and social protection for citizens is set aside by governments and parliaments in countries like Greece, Spain, Ireland and even Germany and France, hard hit by the economic crisis and obliged to cut spending in social security schemes and public companies. They are coming step by step closer to the much criticised by them anglosaxon way of thinking and running economies.
- 4 September 2010
Plutôt que le modèle social européen, c'est le modèle anglosaxon du marché libre qui a fait faillite et a conduit à la crise, d'abord dans son pays d'origine, les Etats-Unis d'Amérique, et ensuite en Europe et dans le reste du monde. Ils ont du culot les propagandistes de ce modèle de prétendre que la main invisible de la libre concurrence peut sauver le monde de la crise qu'ils nous ont légué.
- 9 September 2010
A 'highly competitive social market economy' is a nonsense. A 'market economy' is supposedly run by the invisible hand of the competition, whereas a 'social economy' is run with state intervention. The treaty probably wants to suggest that there should be a mix of the two systems in Europe. But this mix is up to the governments (conservative or socialist) of the member states. A treaty does not need to go into such political or ideological details.
- 13 September 2010
Ωραία κοινωνική πολιτική έχει η Ευρωπαϊκή Ένωση, όταν επιβάλλει μειώσεις μισθών και συντάξεων στους Έλληνες για να υπερηφανεύονται οι Γερμανοί ότι επιβάλλουν δημοσιονομική πειθαρχία στους άτακτους Νότιους της Ένωσης.
- 16 September 2010
Despite the health reform of President Obama, I think that Europe is still far ahead of the United States in social issues.
Dr Ian Richardson
- 21 September 2010
Thank you for providing a PDF version of the treaty of Lisbon, where one can easily find the new Articles. So many have changed numbers since the treaty of Nice that one cannot find one's way without a guide such as Europedia.
Bob van den Dunk
- 25 September 2010
Social policy depends on the economy and the economies in practically all European countries are in recession, since mid 2008, when the global crisis started in the United States. We now see socialist governments in Greece and Spain and conservative governments in France and Germany take the same measures to cut social benefits. So whatever the social provisions of the treaty of Lisbon, it is the real economy that dictates the social policy of the Member States.