Ane Aranguiz, PhD
Candidate, University of Antwerp
On 16 April 2019 the Commission
launched the discussion
on how to render decision-making process at EU level more efficient in the
social field by activating the passerelle
clauses and moving from unanimity to qualified majority voting (QMV) and from
special to ordinary legislative procedure without undergoing an unwieldly
process of Treaty reforms – although a unanimous vote of Member States is still
necessary to approve this change.
The passerelle clauses are part of a number of ‘flexibility mechanisms’
introduced by the Lisbon Treaty that allow to simplify the decision-making
process thereby enabling a more efficient exercise of EU competences where
special legislative procedure and unanimity are maintained. The Lisbon Treaty
provides for a general passerelle
clause enshrined in Article 48(7) TEU that is applicable to all policy areas -with
the exception of military or defence-related decisions-, as well as specific passerelle clauses that apply only in
certain policy areas, namely, Article 32(3) TEU on Common Foreign and Security
Policy, Article 82(3) TFEU on judicial cooperation in civil matters, Article
153(2) TFEU on social policy, Article
192(2) TFEU on environmental policy and Article 312(2) TFEU on the Multiannual
Financial Framework.
Background
This Communication
is the last of a series of four aiming at reviewing the passerelle clauses
provided for the EU Treaties as envisioned by President Juncker in his 2018
State of the Union address. In September 2018, the Commission presented the
first proposal on common
foreign and security policy, followed by a communication in January 2019 on
taxation.
In April 2019, the Commission presented the last two proposals first on energy
and climate and later on social policy. (None of these proposals has been
followed up by the Member States yet).
In social policy, most areas
where the EU has competence to act are already subject to QMV and ordinary
legislative procedure, which has allowed for an expansion of the social acquis
at the EU level over the years. Yet, a reduced but significant number of areas
of social policy still require unanimity among EU Member States and a special
legislative procedure. These areas include measures relating to the protection
against dismissal, social representation and defence of workers’ and employer’s
interests, conditions of employment for third-country legal residents,
non-discrimination (based on gender, racial or ethnic origin, religion or
belief, disability, age, and sexual orientation) and social security and social
protection for workers outside cross-border situations.
The specific passerelle clause under Article 153(2) would allow for the
transition of the first three areas, whereas the general passerelle could further be applied to the latter two. Differences
remain between the general and specific passerelle
clauses regarding the procedural requirements for their activation. In order to
activate the general clause, the European Council has to take the initiative and
indicate the precise envisaged change in the decision-making procedure and
notify national parliaments, which have up to six months to object to the
proposal. After that, the European Council may, by unanimity and once consent
by the European Parliament has been obtained, adopt the decision authorising
the Council to act by QMV or enabling the adoption of the corresponding
measures by ordinary legislative procedure. This procedure allows also for the
half-way activation of the clause where they move from unanimity to QMV while
maintaining the special legislative procedure. The activation of the specific passerelle clause, differently, is
‘only’ subject to unanimous agreement in the Council on the basis of a proposal
by the Commission and after consultation with the Parliament.
According to the Commission, other
than the fact that these policy areas might have major implications on the
financial equilibrium of the national welfare systems, a limitation
specifically provided for in Article 153(4)TFEU, there is seemingly no logical
reasons that explain why these fields remain subject to unanimity and special
legislative procedure. Consequently, in December 2018 the Commission presented
its roadmap
for the proposal for more efficient law-making in social policy and opened the
feedback period that collected 27
opinions from different stakeholders.
The Communication
The Communication opens the
debate on the enhanced use of QMV and ordinary legislative procedure with the
aim of rendering the decision-making process more timely, flexible and
efficient.
The Communication emphasizes that
while the activation of the passerelle clause would change the decision-making
method, it would not alter the overall EU legal framework and earmarked that EU
measures are still subject to the principles of subsidiarity and proportionality,
the limitations under the social policy title Article 153 TFEU regarding, inter alia, defining fundamental
principles of social security or the specifically excluded areas of the right
to association, the right to strike and the right to impose lockouts.
Further in the Communication, the
Commission discusses the possibility of activating the passerelle clause in the five areas where unanimity and special
legislative procedure is still required. Yet, the Commission concludes that
only in two out of the five areas the activation of the would passerelle clause have an added value.
Firstly, the Commission argues in favour of the use of the passerelle clause in the field of non-discrimination to facilitate
equal protection against discrimination that guarantees an effective redress
mechanism for all. Particularly, the Commission states that while there is
certain level of protection for gender and racial discrimination in employment,
equal treatment on the grounds of belief, disability, age and sexual
orientation remains protected only in employment and occupation. The Commission
considers necessary to address the inconsistent and incoherent EU legal
framework where some individuals are better protected than others. (Note that a
Commission
proposal in this field from 2008 has not yet been agreed).
The Commission also sees suitable
to activate the general passerelle
clause with regard to social security and social protection of workers for the
adoption of recommendations in the near future. The Commission here recalls the
recently politically agreed recommendation
on access to social protection for workers and the self-employed which is
still pending for final adoption, and considers that a more effective
decision-making process is desired to support the process of modernisation and
convergence of national social protection systems.
Nevertheless, as for the other
three fields where unanimity and special legislative procedure is required,
namely, protection against dismissals, employment conditions of third-country
nationals and the representation and collective defence of the interests of
workers and employers, the Commission does not see fit to activate the passerelle clause due to either the
limitations envisioned in the Treaty, the sufficiency of the existing
legislation or the strong links and diversity between national social
protection systems.
Commentary
The proposal put forward by the
Commission should be given a cautious welcome. From a positive standpoint, the
fact that most of social policy fields where the EU has competence require QMV
and unanimity is required only in few domains leads to an uneven a fragmented
development of the social acquis.
Moving from unanimity to QMV in those limited areas allows for a swiftly and
effective policy response in all areas of EU law and prevents one single Member
State from vetoing social initiatives while still requiring a high degree of
consensus. Secondly, transitioning to an ordinary legislative procedure allows
for highlighting the role of the European Parliaments as a co-decision making.
While the special legislative procedure relegates the role of the European
Parliament to the subordinated position of a mere consultant, in ordinary
legislative procedures the European Parliament becomes an equal to the Council
and allows for a more democratic decision-making process where the direct
beneficiaries are being represented. The activation of passerelle clauses in the social field would therefore not only
avoid blockage by a single Member State, but also give the European Parliament
a real co-legislator role. Considering the obstacles faced in the adoption of
social policy legal instruments due to the lack of consensus in the Council, an
active involvement of the usually more socially progressive European
Parliament, is likely to free the decision-making process in social matters to
a certain extent.
Yet, there are a number of points
of concern. To begin with, the activation of the passerelle clause is only envisioned for two out of the five social
policy areas that still require unanimity and the special legislative
procedure. Moreover, these are the exact same two that cannot rely on the
special passerelle clause under
Article 153(2) but must be based on the general provision under Article 48(7)
which, in turn, requires a much stricter procedural formula. On top of this,
one of the two fields, namely social security and social protection of workers,
is only contemplated with regard to the adoption of recommendations, thus disregarding
the possibility to adopt binding instruments. This is particularly striking when
considering the challenges faced recently by the Commission in the formulation
of a measure for access to social protection of workers and self-employed, where
the Commission inclined for a proposal for a recommendation due to the lack of
political support to adopt a binding instrument by Member States.
The activation of the passerelle clause is clearly a positive
development, yet, the fact that this is such a limited activation is highly regrettable.
Continued fragmentation on social policy may moreover lead to the use of
enhanced cooperation, where Member States might separately agree on social
policy instruments for higher protection of their citizens. Yet, this will
unquestionably result in a two-speed Europe between those Members within and
out the enhanced cooperation framework.
The dynamism of the Commission in
the context of the European
Pillar of Social Rights provides the perfect platform to keep adapting,
updating and adopting new social legislation at the EU level thus aligning EU
law with the social
priorities identified by Juncker’s Commission. If, and this is a big if, the
discussion opened by the Commission leads to activating the passerelle clause (even if only
limitedly), it will in all likelihood lead to new proposals by the Commission
tackling non-discrimination in a more comprehensive manner that could be
adopted in a more efficient manner. However, this will fundamentally depend on
whether or not the next Commission resumes the enthusiastic social activism of
the Juncker delegation.
Yet, if the Pillar is indeed the
last chance for social Europe that many have claimed, this initiative
represents a missed opportunity to render effectiveness in the decision-making
process in social policy by closing the door to facilitating measures tackling
clear gaps on the current EU legislation, most clearly with regard to
protection against dismissals. It is equally regrettable the choice to limit
the use of the passerelle clause to
adopt a binding unified response to the inadequacies of our current social
protection systems. In times of increased Euroscepticism and rising non-standard
forms of employment, providing a response to concrete needs of citizens remains
an imperative for future-proving the EU, therefore, it is in the best interest
of the same to remove any obstructions of the use of Union competences that
allow to move closer to an actual social market economy. At the very least,
this initiative embodies the intention to partially unclog the ‘way’ when there
is certain degree of ‘will’.
Barnard & Peers: chapter 20
Photo credit: The Independent
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