Full text - European Trade Union Institute (ETUI)

Employee representation in corporate governance: part of the economic or the social sphere?
Indeed, this intra-organisational regulation demonstrates that the sharp
division of labour between different DGs should be understood not so much
in terms of organisational rationality in the taylorian sense of scientific
management, but instead in terms of its strategic and political dimension.
If the clear division of competencies between various DGs was aimed only
at meeting technical requirements for the efficient organisation of services
within a large public institution, then there will be no impediment in the
concomitant involvement of several DGs in a legislative procedure. Hall
(1992) as well as Moreno and Palier (2004) came to the same conclusion
when looking at, respectively, the intra-organisational regulation taking place
between DG Internal Market and DG Employment in the legal production of
the SE Statute, each pursuing a different legislative strategy 28 , and the intraorganisational
regulation in force between DG Economic and Financial Affairs
and DG Employment’s political orientation in legislating on welfare policies,
which the authors qualified as ‘competition’ within the European Commission
(Moreno and Palier 2004: 16).
There is one last lesson to be learned from Table 5: the involvement of both
DG Internal Market and, on an equal basis, DG Employment appears to be
a prerequisite for the successful adoption of a European legal rule including
provisions on employee participation. Of course, adoption of a European legal
text requires much more than input from EC intra-organisational regulation:
for example, the importance of the political compromise between national
governments in the Council and the European Parliament should not be
minimised. However, it remains the case that the joint and concomitant
action of DG Internal Market and DG Employment appears to be a distinctive
element compared to similar legislative proposals which eventually failed.
Indeed, the two successful attempts – the adoption of the SE and the SCE
Statutes – saw the involvement of both an economic-oriented DG and DG
Employment. In contrast, EC legislative proposals dealing, inter alia, with
BLER and which involved only one DG – DG Internal Market –, and only
developed a company law based approach, eventually failed. The most patent
illustration is given by the historical genesis of what has been called the Fifth
Directive concerning the structure of public limited companies and the powers
and obligations of their organs, as shown in Table 6. The Fifth Directive, fairly
close to the initial proposal for an SE Statute, aimed at imposing the German
model of Mitbestimmung, i.e. a two-tier governance structure for companies
with compulsory one-third employee representation (European Commission
1972). The dead-end reached in the legislative procedure caused the European
institutions to give up in 2001 (European Commission 2001).
28. The then competing legislative strategies could be summarised in terms of the harmonisation/
flexibility dichotomy we described in our introduction.
WP 2011.08 27