CROSS-BORDER SOCIAL DIALOGUE AND AGREEMENTS: An ...

Cross-border social dialogue and agreements
clear that the willingness of the social partners to engage in social dialogue
is dependent on the political balance of power in EU institutions.
If the Commission takes initiatives, if Member States mobilize in Council
and if Parliament is supportive, the social partners are confronted with
the likelihood of regulation. A logical calculus of self-interest points to
incentives to self-regulate via social dialogue.
This clearly explains the 31 October 1991 agreement that led to the
Maastricht Protocol, which appears now in Articles 138-139 of the EC
Treaty (Dølvik, 1997, Chapter 8). At that time, employers and unions at
EU level, faced with the Netherlands’ presidency’s draft of the Maastricht
Treaty (which proposed expansion of social and labour competences exercised
through qualified majority voting), agreed on the alternative of
labour regulation through social dialogue (Bercusson, 1996a).
However, this dynamic is fragile, as it depends on the political balance
of power in the EU institutions. For instance, if the Commission
does not push for social policy initiatives, if there are blocking minorities
of Member States in the Council of Ministers, or if the Parliament is not
supportive, then the likelihood of legislative regulation recedes. In these
circumstances, employers particularly are unlikely to look to alternative
forms of regulation voluntarily, unless they can be offered incentives.
This is the major difference between European social dialogue and
social dialogue within the Member States of the EU. Unlike trade unions
in Member States, the European Trade Union Confederation (ETUC)
lacks the power to force employers to bargain. This has become increasingly
evident. Employers will not agree to social dialogue, or, if they do,
only on marginal issues, and then only if the results do not take the form
of binding obligations. Employers provide many justifications for their
actions, such as the need to maintain competitiveness, flexibility and
deregulation. The outcome, however, is the impoverishment of European
social dialogue.
Follow-up to the Commission’s Social Agenda
Following the Commission’s Social Agenda 2005-2010 of February
2005, a group comprising labour law academics coordinated by Professor
Edoardo Ales of the University of Cassino, Italy, prepared a legal study
in response to a tender advertised by the Commission (Ales et al., 2006;
134