English notes special study EU social law and international employment (EU social law and international employment). integrated slides. So this is an appropriate summary sufficient to pass the exam.
New summit of EU: negotiations about Brexit, debate (see further)
Question: can we refuse EU-citizens rights on benefits? (issue which we will cover as well)
Approach of this course:
- Ppt-presentation: all topics
- Interaction
- Understand what Europe is doing in social law
What is Social Law?
Equal treatment is the only harmonized social law there is
National perspective: social security (state distributes money, benefits)
The social dimension of the EU is very particular, you cannot compare it to what’s happening
on a national level
Content
- In which domains is the EU active on the domain of EU social law (labour law, social
security) and how does it influence our national law?
- Focus on international employment
o If I’m going to work abroad, what’s going to happen with me, which
legislation will apply? What if a foreigner comes here?
o What happens if I go abroad for professional reasons (shortly)n, what is the
impact?
- Emphasis on a very crucial issue: social dumping competition distorted by cheap
labour coming her
Evaluation
1. Oral exam
2. Paper
Write a short note on a recent phenomenon in European social policy (case CJEU,
proposals directives)
Essay on topic + presentation (15 min)
1
, Last week semester
The evolution of European Social Policy
A social Europe
Conflict between social and economic objectives
If you look at the evolution of social policy, the social dimension of the EU, it changed
considerably. From the 50’s until now, there was an evolution. But this evolution is
characterized by a conflict: economic or also social dimension? Constant conflict
Tension between market regulation, free movement and social justice
When the EU started (50’s, end WOII, peace and economic collaboration), from the
beginning there was a discussion: should we give EU the power to do something in
the social field? Some people: good idea, majority: no
Still today: is EU a social union? (Cf. what is social?).
Is social justice, creating minimum standards an idea? (Cf. ILO).
Representatives of the ILO have special status in respect to EU, beginning: observer
status in EU (experts in social domain).
Question: what has priority? Social justice or economic objectives?
Social Europe: servant of market integration
Social justice: servant of market integration. Social dimension as long as it’s necessary
for creating more economic mobility.
o Example: coordination regulation on social security for migrant workers (Cf.
European social security card). The first regulation on social security: 3/58.
Third ever adopted regulation was dealing with social security for migrant
workers. First legal text: free movement of civil servants of the EU (e.g.
members EC), second one: salary of these people. So because it was the third
regulation, you might say: that’s important. Yes & no. Why did we get this
regulation? we wanted to give social security rights to European workers that
cross borders. Question here is: what kind of protection? Minimum social
security rights. Safeguarding rights. Migrant workers if they move, they have
risks: for social security you have to start again (pension rights, you will lose
them, lots of countries don’t export pensions).
Why do people move? Higher salary, love, family reasons, climate,...
In EU we don’t move that much. If you would compare the US to EU: lots
more movement between states in US (migration of 10%). EU: limited (1,5-2%
migrate: I’m going to work & live abroad). EU is not a migrating ‘country’.
Social security is often a real argument for movement. Losing pension rights is
not an argument.
EU: we need this regulation because if we don’t we won’t have economic
migration?
2
, o Another example: ’70: directive on collective dismissal. If a company closes
completely there is certain protection. Very important directive on that. Why?
Economic reason: huge concern (multinational): Dutch concern with branches
all over Europe. Concern: we need to close branches down. Looking at the
productive and non-productive branches. Economic perspective: no reason to
close Belgium, perhaps more reason to close Germany, Netherlands. But: they
started to calculate, problem: not good to close Germany: firing someone is
not an easy task (German & Dutch legislation): permission judge. In Belgium
it’s easy to fire someone (pay & fire). What happened? Concern: due to the
fact that it’s too difficult to close Germany, while Belgium is much easier, let’s
close Belgium. Contradictory because Belgium branch was better. Social
legislation was influencing the economic decision on which branch to close +
no social protection for the employees. So EU-level: we have to find a
common idea. Guarantee that when a company closes down, there will be
protection for employees. Reason: fact that company has legislation or not
influences the economic decision
We install social regulations for economic objectives
Piecemeal: Evolution of European social policy is not comparable to evolutions on
national level
Piecemeal: in periods, not a constant process.
Also: evolution is not comparable to evolutions on national level
There are other reasons on EU-level. Other reasons for new legislation
Whole history of EU social policy is related to who is head of state, who is president
of EC,…
Periods that a lot happened, periods that not a lot happened one or another
politician
Presidents of EC that we considered important
’70: French. Monet
’80: nothing happened because of Thatcher
Last years: EC (Barroso: not the strongest one in social domain)
Juncker: we’ll have to wait
Who on national level & EC (see stages of development)
Lack of social competence will lead to precedence of economic policies
(notwithstanding will of the Commission)
Still debate: has EU sufficient social competence? Does treaty allow you to enact
social legislation?
Today a lot of possibilities in treaty to enact but we don’t do it often. More in times
when there was no competence
Three possible ideas
3
,Three perspectives
Active role of the EC
If you want a social union: we give active role to EC
Only intervenes if necessary to realise economic objectives
Or: competence when it’s necessary to get economic objectives
No competence at all
Other idea: I don’t give anything, no competence at all
Prof: today: for economic objectives, still not the case that we’re developing a social Europe
Multi-level government
Another way of looking at it
Theory of sociologists
Social law is not only enacted on national level, it is a combination of influences from the EU,
national & also local (cf. Scandinavia)
1. Redistributive
o no money from Brussels
Brussels gives money no they don’t
Brussel doesn’t give money to give benefits in the EU. Budget is not used for
redistributive reasons like a state does (collect money and use it for social
objections)
Unless (1 exception): European Social Fund: finance certain projects on EU-
level. Mostly to support the less economically developped regions (support
employment, create jobs so kind of redistributive function)
Build a high speed train creates job
ESF always problem when new MS join
2. Regulatory
o influence of Europe on various domains
We influence directives, regulations (labour law, social security law)
We influence, make (health safety, men & women) law
3. Inspiring function
o further convergence in material law
Europe is an organisation that influences, but sometimes indirectly
EU is not an organization that will go to a country: we have so much money
but then you have to change that and that in your legislation
E.g. Not like world bank: money, support under certain conditions
EU: they don’t have this money
But indirectly they will influence
4
, EU is not telling you how to organise your pension system (two or three pillar
system) <-> world bank does say this
But doesn’t mean that they don’t influence. Recommendations or resolutions
on pensions. System with conditions. Not forcing but by making resolutions
EU guides all countries to that direction. World bank has pension model which
they influence. EU not but through different documents they try to get you in
that direction.
= inspiring function. Further convergence = growing, coming together
Different legislations, not 1 EU legislation but get people closer to each other
The evolution
A question of competence
Evolution is clearly competence question
o influenced by economic situation
o influenced by political leaders
o periods of great activity and lengthy periods of inertia
o indirect competence and switch to new set of instruments
There is an indirect competence (OMC)
Development in different phases
Start
1. EU Treaty of Rome 70s
the initial discussions
Discussion: should we have a treaty where we have minimum standards
influence of Ohlin and Spaak report
There was an important report: Spaak report
Also Ohlin report: commission expert group set up together with ILO: should
we have minimum standards? Ohlin said no: we don’t need social minimum
standards. They will result from economic development. If the economic
situation gets better thanks to more mobility. Welfare benefits will rise. State
will spend more money on welfare, social rights.
o social standards are for (economic) efficiency rewards
So social rights are result, the reward of economic efficiency. Idea: not
say it in the treaty, it will come. That was the most important.
o differences in nominal costs are not an obstacle, what matters are unit
labour costs (productivity)
Differences in nominal costs is not an obstacle
5
, Matters: unit labour costs (who is the most productive)
Doesn’t matter that you’re more expensive, what matters is are you
more productive
o exchange rates canalise advantage of low wage states
Different exchange rates will also impact, low wage states will not
profit that much because of differences exchange rates (no argument
with euro now)
Argument Ohlin, copied by Spaak
few articles (117-122) rather promote cooperation than impose any results;
failed to provide legally enforceable rights; some exceptions on equal pay /
paid holiday
2 exceptions: equal pay & paid holiday
Why? When negotiations took place, French: our national legislation: better
equal rights for men & women than in Germany
If we don’t do something, Germany will benefit, labour is still cheaper
French had a legislation that paid holiday: more rights than in other countries
provision in treaty but never used
But basically no social standards except for these 2
All other reasons: we promote
Nothing enforceable
European Social Fund
ESF already at that stage
some provisions in respect of free movement of persons equally crucial for
social prosperity -> equalisation in terms of competition
Already some provisions on free movement
Regulation for social security migrant workers: we need it to support free
movement
So nothing special
And until the 70’s nothing happened
Free movement in EU: first directive in 69, until than no free movement, not
possible to go to another country to work
2. 1974
noticed different levels of economic growth and quality of life
73: big economic crisis in the world
EU had a problem
6
, EC idea, noticed: we are not very popular, not a good reputation. We need to
show that we are an international organisation willing to protect, support the
workers?
Idea: EC is organisation for economic activity
social action programme (better employment, improvement of working
conditions and involvement of management); give the European Commission
a human face; need for social dimension
So they made a courageous social action programme
EC: improve employment, working , involvement of management)
Plan: next year we will make regulations
Not much realised: economic crisis; new MS; UK
But that was a plan, not much happened in 70’s. Economic crisis, new MS, UK
Program was there but nothing really happened
o directives in particular fields (on health and safety, mass redundancies,
transfers of undertakings, insolvent employers) – but still unanimity
rule (due to lack of mandate one had to apply the general law, using
Articles (100 and 235 until 1987)).
Certain directives
But for support of economic objectives
Problem was as well: we needed unanimity, one state could block ->
complicated
EU law: division of competences: EU-level
Explicit competences
Art. 235: garbage article: EU has competence to enact every legislation
which is necessary to achieve internal market. If you don’t find
competence somewhere else, so this can be used. Open door. But this
article also explicitly refers to.
o European regional development fund
3. The 80s: stagnation due to deregulation
80’s. Block in the EU. Result of Thather & differences in philosopy
UK (Thatcher) blocked any proposal in the social field
Thatcher: deregulation.
UK: blocked.
Arrival of J. Delors with his idea of single market by 1992 reconfirmed interest
in social field
Changed a little bit when French commissioner Delors becomes the president
of the EC. Revitalised EU idea: idea 1992: European single market. There is a
social dimension to that. Because single market mobility.
7
, 4. Single European Act (1986)
To have creation ESM
liberalisation of trade will lead to economic growth and more benefits for the
citizens
= idea
EP more power (cooperation procedure)
Also process where EP more power
EP in beginning had nothing to say, 70’s EP = advise board
80’s: EP + council: council had to cooperate with EP (more than just advise)
Today: co-decision (decision power)
Idea: EP considered to be more close to the people
Cecchini Report
For preparation single market we had report Italian prof: Cecchini report. 200-
300 p. Advantages for creating single market. 10 lines on social dimension.
The creation of the ESM will lead to better employability & more jobs. That
was all.
In process more elements. Result single act.
some progress in social field: economic and social cohesion, but no real
mentioning of social policy
Some progress
Objective is to create economic and social cohesion
Word social
Council may adapt minimum standards (floor of basic rights)
Not much happens
More qualified majority, so no harmonisation (health and safety)
More qualified majority because UK blocks. Especially in health & safety, leads
to discussions.
EC: wanted to adopt directive max working hours
Problem: social directive
Social directives ask unanimity
UK was not willing to adopt European directive in domain in working hours
EC adopted directive. UK didn’t want to. EC: health & safety: qualified
majority. UK went to ECJ. Wrong legal basis: working hours is social
dimension, CJEU: it’s about health & safety.
“l’espace social européen” as counterweight for negative consequences for
employees (relocation: Europe exists for citizens and not vice versa)
Idea: Europe exists for citizens, Europe should do something for its citizens.
The relocation, social dumping ghost appeared. Multinationals were moving
8
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