Transnational Collective Bargaining in Europe: The Case for Legislative Action at EU Level

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Since the second half of the 1990s, cross-sectoral, sectoral and companylevel bargaining has developed into a key movement in transnational industrial relations in the European Union. Originally stimulated by EU institutions, these forms of bargaining have since progressed autonomously. At present, it is difficult to say exactly what effect, if any, they can have on individual working conditions. Based on a 2005 report to the European Commission, this paper argues for EU legislative action to create an optional framework for transnational collective bargaining, in the form of a Council regulation to be adopted under the social and economic cohesion chapters of the EU Treaty.

Since the second half of the 1990s, and closely connected to the incorporation of the Maastricht Agreement on Social Policy in the European Commu- nity Treaty (ECT) (Kenner, 2003), several "new" forms of collective bargaining have developed in Europe. ' The first is that based on Articles 138 and 139 of the ECT,2 whereby European Community institutions may rely on cross-sectoral social dialogue within the Community to overcome the political difficulties linked to the definition of "minimum requirements" in the social field (Article 137, para. 1). Bargaining on this basis led to the conclusion of framework agreements on parental leave, part-time work and fixed-term contracts, each of which was then implemented by a Council Directive.3

A second form of bargaining is that conducted within the framework of the Commission Decision of 20 May 1998 on the establishment of Sectoral Dialogue Committees promoting the dialogue between the social partners at European level.4 The outcomes of such sectoral bargaining between European social partners have been implemented by Council directives in only a few cases.5

A third form of bargaining is developing at company level, between transnational enterprises and, either singly or jointly, European works councils (EWCs) or European trade unions. This type of bargaining aims to provide for homogeneous regulation of issues that transcend the national level, or to define procedural rights applicable to all branches or establishments of the enterprise, including its subsidiaries, regardless of the Member States in which they operate.6

A fourth form is cross-sectoral and conducted in an "autonomous" perspective by the European social partners within the framework of Article 139 of the ECT. Such bargaining aims to define minimum standards in relation to specific, albeit fairly broad, aspects of working conditions.7

At first sight, all of these forms of collective bargaining except the first which is explicitly regul ated by Articles 138 and 1 39 of the ECT - might look like voluntary self-regulation either by European social partners or by management and employees' representative bodies (notably EWCs). All of them, however, have been encouraged by European Union (EU) initiatives - the second, by Commission Decision 98/500/EC on Sectoral Dialogue Committees; the third, by Council Directive 94/45/EC on European Works Councils; and the fourth, by the Commission's opening of consultations under Article 138 of the ECT. The EU has thus played an important, if not decisive, part in the emergence of all of the abovementioned forms of collective bargaining.

However, it is also true that these last three forms of bargaining have since developed on a voluntary basis,8 at times going far beyond the original scope of EU intentions. While demonstrating their vitality, this also raises significant questions as to their legal status and effect. As a matter of fact, it is difficult at present to say exactly what effect, if any, each of these forms of bargaining can have on individual working conditions. In practice, the parties to Communitylevel sectoral and cross-sectoral bargaining have so far relied either on ad hoc initiatives by EU institutions9 or on interventions of the social partners at national level, encouraged to implement the contents of European-level bargains through national collective agreements. …