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Published online by Cambridge University Press: 27 October 2017
This chapter considers the legal foundations for the EU institutions to act in the context of the Lisbon and EU2020 Strategies, including the EES (the Luxembourg European Employment Strategy). It begins by examining the formal structure provided by the Treaties for these processes and the legal basis for the resulting measures, focusing on the social strand of the three strategies. The chapter then examines the documents resulting from these strategies to see whether a legal basis is specified and, if so, what. These data are used to conclude that, outside the context of the EES, there is a remarkable absence of any express legal basis for particular EU institutions to act. Nevertheless, the European Council has assumed a pre-eminent role, pushing forward these strategies even in the absence of express competence to do so. The legitimacy of this mode of decision-making is then considered, particularly in the light of the changes introduced by the Lisbon Treaty.
1 See, eg Zeitlin, J, Pochet, P and Magnusson, L (eds), The Open Method of Coordination in Action: The European Employment and Social Inclusion Strategies (Brussels, Presses Interuniversitaires Européennes-Peter Lang, 2005)CrossRefGoogle Scholar; Zeitlin, J, ‘Social Europe and Experimentalist Governance: Towards a New Constitutional Compromise?’ in de Búrca, G (ed), EU Law and the Welfare State: In Search of Solidarity (Oxford, Oxford University Press, 2005)Google Scholar; Szyszczak, E, ‘Experimental Governance: The Open Method of Coordination’ (2006) 12 ELJ 486 CrossRefGoogle Scholar; Armstrong, K and Kilpatrick, C, ‘Law, Governance, or New Governance? The Changing Open Method of Coordination’ (2007) 13 Columbia Journal of European Law 649 Google Scholar; the essays resulting from the JCMS symposium on EU Governance after Lisbon (2008) 46 Journal of Common Market Studies 413; Heidenreich, M and Bischoff, G, ‘The Open method of Coordination: A Way to the Europeanisation of Social and Employment Policies’ (2008) 46 Journal of Common Market Studies 497 CrossRefGoogle Scholar.
2 Armstrong, K, ‘Governance and Constitutionalism After Lisbon’ (2008) 46 Journal of Common Market Studies 413 CrossRefGoogle Scholar.
3 For a fuller discussion of the different capacities in which the ‘Heads of State or Government’ can act, see Dashwood, A, ‘Decision-Making at the Summit’ (2000-2001) 3 CYELS 79 Google Scholar.
4 Communiqué issued by the Paris summit: ‘Recognising the need for an overall approach to the internal problems involved in achieving European unity and the external problems facing Europe, the Heads of Government consider it essential to ensure progress and overall consistency in the activities of the Communities and in the work on political coordination. The Heads of Government have therefore decided to meet, accompanied by the Ministers of Foreign Affairs, three times a year and, whenever necessary, in the Council of the Communities and in the context of political cooperation’. The Single European Act (SEA) 1986 specified the composition of the European Council but ‘deliberately abstained from defining its role’ ( Peterson, J and Shackleton, M, The Institutions of the European Union, 2nd edn (Oxford, Oxford University Press, 2006) 45 Google Scholar).
5 Armstrong, above n 2, 417.
6 Ibid.
7 Ibid.
8 Scharpf, F, Governing in Europe: Effective and Democratic? (Oxford University Press, Oxford, 1999) 123 CrossRefGoogle Scholar. Further details of the Essen approach can be found in Barnard, C, EC Employment Law (Oxford, Oxford University Press, 2006) ch 3 Google Scholar.
9 This was recognised by the Amsterdam European Council’s Resolution on Growth and Employment 97/C236/02: ‘This approach, coupled with stability based policies, provides the basis for an economy founded on principles of inclusion, solidarity, justice and a sustainable environment, and capable of benefiting all its citizens. Economic efficiency and social inclusion are complementary aspects of the more cohesive society that we all seek.’
10 Rhodes, M, ‘Employment Policy: Between Efficacy and Experimentation’ in Wallace, H, Pollack, MA and Young, AR, Policy-making in the European Union, 6th edn (Oxford, Oxford University Press, 2010) 294 Google Scholar.
11 Ibid.
12 Barnard, C and Deakin, S, ‘A Year of Living Dangerously? EC Social Policy Rights, Employment Policy and EMU’ (1998) 2 Industrial Relations Journal European Annual Review 117 Google Scholar.
13 EC Bull Supp 6/93.
14 Bull 12/94.
15 See Deakin, S and Reed, H, ‘Between Social Policy and EMU: The New Employment Title of the EC Treaty’ in Shaw, J (ed), Social Law and Policy in an Evolving European Union (Oxford, Hart Publishing, 2000)Google Scholar.
16 Szyszczak, E, ‘The New Paradigm for Social Policy: A Virtuous Circle’ (2001) 38 CML Rev 1125, 1136Google Scholar.
17 This is considered below.
18 Art 2 EC as amended by the Treaty of Amsterdam.
19 Piris, J-C, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 230 CrossRefGoogle Scholar, writing in the context of the amendment of some of the other provisions on the Commission.
20 Pochet, P, ‘The New Employment Chapter of the Amsterdam Treaty’ (1999) 9 Journal of European Social Policy 271, 275CrossRefGoogle Scholar. This section draws on Barnard, C, EC Employment Law (Oxford, Oxford University Press, 2006) ch 3 Google Scholar.
21 See also Biagi, M, ‘The Implementation of the Amsterdam Treaty with Regard to Employment: Coordination or Convergence?’ (1998) 14 International Journal of Comparative Labour Law and Industrial Relations 325 CrossRefGoogle Scholar.
22 Emphasis added.
23 Art 146(2) TFEU (ex Art 126(2) EC). Sciarra notes the parallel track of coordination and cooperation in the Employment Title: Sciarra, S, ‘The Employment Title in the Amsterdam Treaty: A Multilanguage Legal Discourse’ in O’Keeffe, D and Twomey, P (eds), Legal Issues of the Amsterdam Treaty (Oxford, Hart Publishing, 2009)Google Scholar.
24 Art 148(4) TFEU (ex Art 128(4) EC).
25 Art 148(1) TFEU (ex Art 128(1) EC).
26 Art 121 TFEU (ex Art 99 EC).
27 Art 148(2) TFEU (ex Art 128(2) EC).
28 Peterson and Shackleton, above n 4, 55.
29 Nugent, N, The Government and Politics of the European Union, 6th edn (Basingstoke, Palgrave Macmillan, 2006) 236 Google Scholar.
30 Communication from the Commission ‘From Guidelines to Action: The National Action Plans for Employment’, COM(98) 316. Szyszczak, E, ‘The Evolving European Employment Strategy’ in Shaw, J (ed), Social Law and Policy in an Evolving European Union (Oxford, Hart Publishing, 2000)Google Scholar; Kenner, J, ‘The EC Employment Title and the Third Way: Making Soft Law Work?’ (1999) 15 International Journal of Comparative Labour Law and Industrial Relations 33 CrossRefGoogle Scholar; Sciarra, S, ‘Integration through Coordination: the Employment Title in the Amsterdam Treaty’ (2000) 6 Columbia Journal of European Law 209 Google Scholar.
31 The report is drafted by the Commission and is then modified and/or endorsed by ESPHCA.
32 Art 148(5) TFEU (ex Art 128(5) EC). The first Joint Employment Report can be found at <http://www.europa.eu.int/comm/employment_social/employment_strategy/report_1998/ jer98_en.pdf> accessed 19 July 2010.
33 Art 148(4) TFEU (ex Art 128(4) EC).
34 See Deakin and Reed, above n 15. The first recommendations were issued in 2000: Council Recommendation 2000/164/EC, [2000] OJ L52/32.
35 Art 126(1) TFEU (ex Art 104(1) EC).
36 Rhodes, M, ‘Employment Policy: Between Efficacy and Experimentation’ in Wallace, H, Pollack, MA and Young, AR, Policy-making in the European Union, 6th edn (Oxford, Oxford University Press, 2010) 294 Google Scholar.
37 Art 149 TFEU (ex Art 129 EC).
38 Or, to use the terminology of Belgian Minister Frank Vandenbroucke, open coordination is not some kind of ‘fixed recipe’ that can be applied to whichever issue but is instead ‘a kind of cookbook that contains various recipes, lighter and heavier ones’: cited in J Zeitlin, ‘Introduction: The Open Method of Coordination in Question’ in Zeitlin et al (eds), above n 1.
39 The use of ‘resolutions’, at least in the first year, reflects the fact that the Amsterdam Treaty, which introduced the Employment Title, was not yet in force.
40 See eg Senden, L, Soft Law in European Community Law: Its Relationship to Legislation (Oxford, Hart Publishing, 2004)Google Scholar; de Witte, B, ‘Legal Instruments and Law-Making in the Lisbon Treaty’ in Griller, S and Ziller, J (eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty (Vienna, Springer-Verlag, 2008)Google Scholar.
41 Lisbon Presidency Conclusions, 23 and 24 March 2000.
42 Ibid, para 5.
43 Ibid.
44 See Barcelona European Council, 15–16 March 2002, para 30.
45 Cf Commission Communication, Proposal for Guidelines for Member States Employment Policies 1998, COM(97) 497, Section I, where the Commission proposed a target of increasing the employment rate from 60.4% to 65% thereby creating at least 12 million new jobs.
46 Above n 42, para 30. Intermediate targets were also set of 67% overall and 57% for women: Stockholm European Council, 23 and 24 March 2001, para 9.
47 Ibid, para 9.
48 See more generally Kenner, J, ‘New Frontiers in EU Labour Law: From Flexicurity to Flex-security’ in Currie, S and Dougan, M (eds), Fifty Years of the Treaty of Rome (Oxford, Hart Publishing, 2009)Google Scholar.
49 COM(2007)359, 5.
50 Commission Communication, Europe 2020. A Strategy for smart, sustainable and inclusive growth, COM(2010) 2020, 5.
51 The Swedish Prime Minister, Frederick Reinfeldt, is reported as having recognised this: EurActiv, ‘Sweden admits Lisbon Agenda “failure”‘, 3 June 2009, available at <http://www. euractiv.com/en/priorities/sweden-admits-lisbon-agenda-failure/article-182797>, accessed 19 July 2010.
52 COM(2010) 2020, 16.
53 Opportunities, access and solidarity: towards a new social vision for 21st century Europe, COM(2007) 726.
54 Renewed Social Agenda: Opportunities, Access and Solidarity, COM(2008) 412.
55 Ibid.
56 Arnull, A et al, Wyatt and Dashwood’s European Union Law, 5th edn (London, Sweet & Maxwell, 2006) 31 Google Scholar. See also Werts, J, The European Council (London, John Harper Publishing, 2008)Google Scholar.
57 Preliminary Conclusions, paras 35 and 36.
58 Art 13 TEU.
59 Peterson and Shackleton, above n 4, 47.
60 Ibid, 43.
61 See Arts 235–236 TFEU and EU Council Dec 2009/882/EU, [2009] OJ L315/51. Earlier rules for the organisation of the proceedings of the European Council can be found in Annex I of the Seville European Council Presidency Conclusions, 21–22 June 2002.
62 See also Dashwood, above n 3, 103 ‘… there is no actual need for express [Heads of State or Government] attribution. The European Council is free to discuss any matter it chooses, at any level of generality or particularity’.
63 Peterson and Shackleton, above n 4, 47.
64 Ibid, 45. See also Dashwood, above n 3: ‘… a clearly framed set of instructions is sure to be complied with by the institutions with formal legal powers.’
65 Art 263(1) TFEU. However, as Philip Allott notes, the Lisbon judgment of the German Federal Constitutional Court seems to suggest that the European Council would be subject to the jurisdiction of that court even in respect of those functions, with the possibility that the Federal Constitutional Court might find that the European Council had exceeded its limits.
66 Nugent, above n 30, 238.
67 Discussion with Commission official.
68 See above n 51.
69 Barnard, C, ‘Solidarity and the Commission’s “Renewed Social Agenda”’ in Ross, M and Borgmann-Prebil, Y (eds), Promoting Solidarity in the European Union (Oxford, Oxford University Press, 2010) 73 CrossRefGoogle Scholar.
70 See text to nn 17 and 18 above.
71 See also Rhodes, above n 10, 299.
72 The 2003 reforms have helped to overcome this problem: Rhodes, above n 37, 295.
73 Available at <http://www.europarl.europa.eu/sides/getDoc.do?type=IM-PRESS&reference =20070202BKG02682&language=EN#title1>, accessed 19 July 2010.
74 Available at <http://www.europarl.europa.eu/news/expert/infopress_page/048-73522116-04-18-908-20100426IPR73482-26-04-2010-2010-false/default_en.htm>, accessed 19 July 2010.
75 P Syrpis, ‘Legitimising European Governance: Taking Subsidiarity Seriously within the OMC’, EUI Working Papers, Law 2002/10. See the calls in the Final Report of Working Group XI on Social Europe, CONV 516/1/03, para 44, for the ‘incorporation of the open method of coordination in the Treaty [which] would improve its transparency and democratic character, and clarify its procedure by designating the actors and their respective roles’.
76 See, eg, Council Recommendation of 14 October 2004 on the implementation of Member States’ employment policies 2004/741/EC, [2004] OJ L326/47.
77 Art 148(4) TFEU (ex Art 128(4) EC).
78 See Case 322/88 Grimaldi v Fonds des Maladies Professionnelles [1989] ECR 4407, where the Court of Justice said in the context of a recommendation on compensation for persons with occupational diseases, that national courts were bound to take recommendations into account in order to decide disputes before them, in particular where they clarify the interpretation of national rules adopted in order to implement them or when they are designed to supplement binding Union measures.
79 Borrás, S and Jacobsson, K, ‘The open method of coordination and new governance pat terns in the EU’ (2004) 11 Journal of European Public Policy 185, 188 and 199Google Scholar.
80 Kilpatrick, C, ‘New EU Employment Governance and Constitutionalism’ in de Búrca, G and Scott, J (eds), Law and New Governance in the EU and the US (Oxford, Hart Publishing, 2006)Google Scholar.
81 His role is defined only cursorily by Art 15(6) TEU: ‘The President of the European Council:
(a) shall chair it and drive forward its work;
(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission …
(c) shall endeavour to facilitate cohesion and consensus within the European Council;
(d) shall present a report to the European Parliament after each of the meetings of the European Council. …’
82 ‘Parliament threatens to block “Europe 2020” plan’, euractiv, 7 June 2010, available at <http://www.euractiv.com/en/priorities/liberals-threaten-block-europe-2020-plan-news494914>, accessed 19 July 2010.
83 [1998] OJ C30/1.
84 [1999] OJ C69/2.
85 ‘11. The European Council welcomes the decision to convene a special meeting of the European Council on employment, economic reform and social cohesion (towards a Europe of innovation and knowledge) under the Portuguese Presidency in the spring of 2000 in order to review the progress made after the Cologne, Cardiff and Luxembourg processes.’
86 [2000] OJ L72/15.
87 COM(2000) 379.
88 [2001] OJ L22/18.
89 COM(2001) 104. See also the Mid-term Review: COM(2003) 312.
90 COM(2001) 428.
91 [2002] OJ L60/60.
92 ‘Taking Stock of Five Years of the European Employment Strategy’ COM(2002) 416.
93 COM(2002) 487.
94 ‘The Future of the European Employment Strategy (EES). A Strategy for Full Employment and better jobs for all’ COM(2003) 6.
95 First Meeting took place before the European Council.
96 [2003] OJ L197/13.
97 ‘Creating more employment in Europe’.
98 Namely: (1) increasing the adaptability of workers and enterprises; (2) attracting more people to the labour market; (3) more and effective investment in human capital; and (4) ensuring the effective implementation of reforms through better governance.
99 [2004] OJ L326/45.
100 Facing the Challenge: The Lisbon Strategy for Growth and Employment. Report from the High Level Group chaired by Wim Kok (Luxembourg, OOPEC, 2004).
101 COM(2005) 33.
102 Commission, ‘Employment and social policies: a framework for investing in quality’ COM(2001) 313 and the progress report: COM(2003) 728. cfRaveaud, G, ‘The European Employment Strategy: Towards More and Better Jobs?’ (2007) 45 Journal of Common Market Studies 411 CrossRefGoogle Scholar.
103 ‘Working Together for Growth and Jobs—a new start for the Lisbon Strategy’ COM(2005) 24, 7. See also SEC(2005) 160, SEC(2005) 193.
104 SEC(2005) 192.
105 Rhodes, above n 10, 298.
106 COM(2005) 141. The microeconomic guidelines were re-ordered by the European Council but the employment guidelines were adopted verbatim.
107 107 [2005] OJ L205/21.
108 This was followed up by Commission Communication, ‘Common Actions for Growth and Employment: The Community Lisbon Programme’ (COM(2005) 330) focusing on 8 key measures, and Commission Communication, ‘Addressing the concerns of young people in Europe—implementing the European Youth Pact and promoting active citizenship’ COM(2005) 206. This was followed up by the Annual Progress Report ‘Time to Move up a Gear’ COM(2006) 30.
109 [2006] OJ L215/26.
110 ‘Modernising labour law to meet the challenges of the 21st century’ COM(2006) 708. Outcome of Communication can be found at COM(2007) 627.
111 ‘Towards Common Principles of Flexicurity: more and better jobs through flexibility and security’ COM(2007) 359.
112 [2007] OJ L183/25.
113 ‘Opportunities, access and solidarity: towards a new social vision for 21st century Europe’ COM(2007) 726.
114 ‘Renewed Social Agenda, Opportunities, Access and Solidarity in 21st Century Europe’ COM(2008) 412.
115 [2008] OJ L198/47.
116 [20069] OJ L180/16.
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