IR Notes

After long months in the planning, the European Pillar of Social Rights was unveiled by the European Commission on 26 April (see press release and Q&A). Never before had the Commission produced such an initiative relating to social affairs. Indeed, this “pillar” operates according to the “Russian dolls” system: at first glance, the initiative is based on three documents, each no more binding than the next: 1/ A Commission communication establishing the European Pillar of Social Rights, a kind of explanatory statement that outlines how the Pillar will work. 2/ A Commission recommendation and a proposal for a joint proclamation by the Parliament, the Council and the Commission, two texts virtually identical in content whose aim, in the first case, is to adopt the Pillar and the 20 key principles and rights it contains immediately, and in the second, to have its content “sanctified” by the European institutions and the member states. The impression at this stage is of facing a new initiative from Brussels that is barely comprehensible for the average citizen – and there is certainly some truth in that. However, consideration needs to be given to the actual content of the Pillar. The latter, as the Commission indicates, “reaffirms rights that are already present in the EU and international legal acquis”. Even then, one can question the merit in reaffirming principles and rights that already exist, if not to make them more understandable. While certainly laudable, is such an exercise sufficient to woo European citizens and win them back from the grip of the populist and nationalist parties that threaten the EU’s existence? One must therefore proceed to read the individual principles which, placed end to end, make the EU a haven of peace and protection. Furthermore, a certain number of these principles, which may at first appear inconsequential to the most jaded eyes, contain advances. For example, principle 7b provides that “prior to any dismissal, workers have the right to be informed of the reasons and be granted a reasonable period of notice”. Such a right to being told the reason for an individual dismissal does not currently exist in EU legislation. According to principle 9, parents and people with caring responsibilities (for children, dependent relative etc.) “have the right to suitable leave, flexible working arrangements and access to care services”. There again, the right to flexible working arrangements does not currently exist. As a final example, principle 12 provides that “regardless of the type and duration of their employment relationship, workers, and, under comparable conditions, the self-employed, have the right to adequate social protection”. This signifies a right to a replacement income and the extension of social coverage to all the new forms of employment. A Commission staff working document sets out each principle in detail, presenting the present EU acquis, changes brought about by the Pillar and how the principle should be implemented. Finally, reading this document reveals the Commission’s intention to launch an extended series of consultations of the European social partners, which may encourage them to negotiate European collective agreements or lead the Commission to present legislative proposals on information for workers, access to social protection and working hours. In the end, the initiative may relaunch a social Europe that was put on hold when the EU was enlarged, but that will depend on the goodwill of the member states and the capacity of the European social partners to negotiate new balances. Nothing could be less certain given the reaction of the employers’ organisation BusinessEurope which, on the eve of the Pillar’s publication, had strongly criticised the Commission’s intention to repeal the directive on parental leave by proposing a work-life balance directive for parents and carers, provoking a curt response from the European Trade Union Confederation (ETUC), which denounced the employers’ bad faith. The ETUC otherwise welcomed the initiative (see press release).
> Also see: Reflection paper on the Social dimension of Europe

Report on the implementation of social legislation applicable to truck-drivers: The European Commission on 7 March published a report on the implementation in 2013-2014 of the social legislation relating to road transport (regulation No. 561/2006 and directive 2002/15). The aim of the report is primarily to determine the number and type of checks carried out and the type of offences detected. The document underscores the poor quality of the reports conducted by eight member states, the inadequate number of checks in certain countries and a reduction in offences (down by 15%), which may however be partially linked to the increase in practices to manipulate the equipment installed in trucks to record driving hours (tachographs).

• Public consultation to evaluate European agencies: The European Commission on 10 April launched a public consultation that aims to collect opinions from the general public and stakeholders on the four EU agencies under the remit of DG Employment, Social Affairs and Inclusion (Eurofound, Cedefop, ETF and EU-Osha) which together employ more than 400 staff and have an overall budget in excess of € 75 million (see press release). The evaluation is related to the proposals for a regulation adopted by the Commission on 23 August 2016 with a view to revising the founding regulations of these agencies, without ruling out restructuring or mergers.


• European aid for former employees of Nokia: The European Commission on 7 April put forward a proposal to provide Finland with € 2.6 million from the European Globalisation Adjustment Fund (EGF) in order to help 821 former workers of Nokia Network Systems to find new jobs (see press release).


• Trade-union opposition to the e-card: The plan by the European Commission to establish an electronic services card (e-card) to facilitate the free movement of services within the EU (see Commission press release) is contested by the European trade union federations EFBWW, EFFAT and UNI Europa, as well as by the European Trade Union Confederation. On 10 April they sent a joint letter to MEPs and to the Permanent Representations of the member states, calling on them to reject this initiative. The unions are merely opposing a scheme not wanted by the social partners, particularly in the construction sector, and which they already contested during the consultation phases. The trade union federations are starting to wonder whether there really is a desire on the part of the European Commission to draw on social dialogue before developing initiatives.


• ILO declaration on multinational enterprises revised: The International Labour Organisation has completed a revision of its tripartite declaration of principles concerning multinational enterprises and social policy. This declaration targeted at multinationals is the only global instrument addressing corporate social responsibility and sustainable business practices. It was elaborated and adopted in a tripartite manner by governments, employers and workers from around the world (see ILO press release).

Court of Cassation boosts European works councils created under article 13: In a rare ruling issued by the Court of Cassation concerning European works councils, the French supreme court has given precedence to an anticipatory agreement under British law (that is to say an agreement concluded in the two years following publication of directive 94/45 of 22 September 1994 allowing negotiators to sign agreements under terms derogating from the directive’s requirements) over the provisions of the French labour code. French employees made redundant during restructuring affecting the French subsidiary of the Wolseley group blamed the management for not informing and consulting the group’s EWC about the restructuring plan. The EWC installation agreement dated from 1996 and had since then been renewed twice. The Court of Cassation noted that “the renewal agreement expressly provides for the information and consultation of the European works council of the Wolseley group exclusively in relation to transnational matters”, to the exclusion of issues affecting only one country in the group. Contrary to the view taken by the court of first instance, the Court of Cassation ruled that there was no need to apply the supplementary provisions envisaged by the French labour code in the absence of an agreement on setting up a European works council (art. L. 2343-4 sub-para 1). While this can be seen as reaffirming the strength of the exceptional nature of anticipatory agreements, the judgement lacks rigour in particular because it does not verify whether the anticipatory agreement was renewed correctly, which would have presumed an analysis of the related British legislation (Court of Cassation, labour chamber, 1 February 2017, No. 15-24571).

• Reform of working hours’ legislation: The government has presented before parliament a draft reform of the labour code that aims to modify certain aspects of the legislation relating to working hours. The principal measure is to extend the reference period for calculating the maximum working time to 36 months. Such an extension must be justified by objective reasons linked to the organisation of working time and introduced by collective agreement.

• No obligation to count the number of hours worked: The labour chamber of the Spanish supreme court has ruled that Spanish businesses are not legally obliged to record the working hours of their employees. The question has been debated for the past two years and the decision is already highly controversial, to the extent that a certain number of judges have adopted a dissenting opinion. In practice, the ruling will impact directly on the work of the labour inspectorate, which previously required companies to keep a daily record of the number of hours worked by employees to ensure compliance with the legislation on working hours and in particular to monitor the performance of overtime hours. From now on, companies will no longer be subject to this obligation, which will make the labour inspectorate’s job much more difficult.