The Amsterdam European Council of 16-17 June 1997 raised some hopes for the future of labour law in the EC and the UK. A new Title on Employment was introduced into the EC Treaty.

This means labour market policy aimed at tackling unemployment moves from political declarations to a concrete legal framework. In addition, some important changes are likely to impact on the future EC law on sex equality (dealt with in the next issue of LELR).

The best-known outcome was a result of the new Labour government in the UK. The "social chapter" (the Protocol on Social Policy to the Maastricht Treaty, and the Agreement annexed to it) was integrated into the EC Treaty. It replaces the former Articles 117-122 with new provisions. It will take effect when the Amsterdam Treaty is ratified by all the Member States.

The Conclusions of the Amsterdam Council noted "with great satisfaction the willingness of the United Kingdom to accept the Directives which have already been agreed under the Agreement and those which may be adopted before the entry into force of the new Treaty". The legal means of achieving this, however, were not specified.

Apart from ending the UK opt-out by integration of the "social chapter", however, the Amsterdam Treaty introduced some changes, in particular, to the "social chapter", with potential consequences for the future of EC and UK labour law.

UK Presidency: January 1998

The UK assumes the Presidency of the European Council for the six months beginning 1 January 1998, including formal responsibility for the EC labour law and social policy agenda under the "social chapter". The other Member States were prepared to simply ignore the UK opt-out and declared "that the United Kingdom will now be invited to express its views in discussions on acts to be adopted on the basis of the said Protocol".

This is legally risky. It is uncertain whether the UK's vote could count towards a majority decision, for example, approving or rejecting a proposal brought under the "social chapter" before the Amsterdam changes are ratified. There may be a question of procedural propriety if the UK speaks in the discussion under the opt-out provisions, even if it does not vote.

Nevertheless, by clearing the way for the UK Presidency to act, an opportunity exists for the new Labour government to set the EC agenda on labour law and social policy for the Þrst half of 1998.

Social Charters

The new Article 117 of the EC Treaty (formerly Article 1 of the Maastricht Agreement) sets out the social policy objectives of the Community and the Member States agreed at Maastricht. But it adds "having in mind fundamental social rights". Two sources of such rights are specified in the new Article 117.

First, the Social Charter of the Council of Europe (1961) is the "social rights" equivalent (eg right to organise, right to bargain collectively) of the European Convention on Human Rights, which the present Labour government is committed to introducing into UK domestic law. The question must now be: why not also the 1961 Social Charter?

Second, the Community Charter of the Fundamental Social Rights of Workers (1989), previously rejected by the former UK Conservative government, which included fair remuneration, adequate social protection and freedom of association and collective bargaining.

These instruments are now reference points for labour law and policy in both the Community and the Member States. But there are a number of potential difficulties. Does "having in mind" mean that the law of the EC and the Member States should conform to these Charters? Must the European Court of Justice have the Charters in mind in interpreting EC law (even when the two instruments are not always precisely in agreement)?

In the case of the 1961 Charter, the situation could become complicated because ratifying States may select only some of its 19 articles and 72 paragraphs. That Charter also has a 1991 amending Protocol and a 1994 Collective Complaints Protocol. It has been given sometimes generous interpretation by the Committee of Independent Experts responsible for its application. How will all this material influence EC labour law? 
Nonetheless, the reference in an EC Treaty Article to the Social Charters reinforces fundamental social rights in EC law. Article 117 is stronger than a mere mention in the Preamble to the Treaty on European Union (which the Amsterdam Treaty reinstated after they had been dropped from even this lowly status by the Maastricht Treaty). They may even have acquired more status than the better known European Convention on Human Rights, explicitly referred to in Article F of the Maastricht Treaty, but not subject to the jurisdiction of the ECJ (though possibly an interpretative aid).

Non-regression

Article 117 of the EC Treaty specified social policy objectives and explicitly included a "non-regression" clause. The EC aimed to "promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonization while the improvement is being maintained".

Ominously, the "social chapter" of the Maastricht Treaty failed to include this "non-regression" clause. This created the ugly possibility of some Member States using economic and monetary integration to justify regressive social policy. The Amsterdam Treaty's new Article 117 re-incorporates the non-regression clause a positive signal.

The European Parliament

The Maastricht Agreement empowered the Council of Ministers to adopt directives in new areas of labour law and social policy, either by majority vote or unanimity, using the "co-operation procedure" (Article 189c of the EC Treaty). This enabled the European Parliament to propose amendments, which the Council could either adopt by qualiÞed majority (if the Commission agreed) or by unanimity (if the Commission objected). The Council could reject Parliament's amendments, but only by unanimous vote.

The new Article 118 changes the procedure: the Council is now to "act in accordance with the procedure referred to in Article 189b...". This is the new "co-decision" procedure. If the Council does not agree to Parliament's amendments, conciliation is attempted to agree a joint text. If agreed, Parliament must approve, and then the Council can approve it by qualified majority. But if no text is agreed, Parliament can block the measure.

This change means that the European Parliament will have a much more important role in determining the content of EC labour law in the future. Commission proposals and Council decisions will have to take into account the wishes of Parliament, on pain of a possible veto.

Implementation of EU agreements

Article 4(2) of the Maastricht Agreement (now the new Article 118b(2) of the EC Treaty) appears to impose obligations on "management and labour and the Member States" by requiring that collective agreements concluded at EU level "shall be implemented".

However, when this was agreed in 1991, the Member States attached to this provision a Declaration which explicitly renounced any: "obligation to apply the agreements directly, or to work out rules for their transposition, nor any obligation to amend national legislation in force to facilitate their implementation".

This Declaration, by disowning any obligation on Member States, appeared to strip the Article of much of its potential, and was hotly disputed. The Commission took the view that the Article "is subject to the... declaration", while the Economic and Social Committee contested its legal status.

Happily, the Amsterdam Treaty has now clarified the position. It attaches the identical Declaration, in italics, to the new Article 118b(4), but the front page of the Treaty states clearly that "Declarations to the Final Act are in italics, in order to distinguish them from legally-binding Treaty texts". The implication is that the Member States do have an obligation to implement EU collective agreements; their disclaimer has no legally binding effect.

The right of association and collective bargaining New Article 118c of the EC Treaty agreed in Amsterdam sets out the tasks of the European Commission in the labour law field: "[to] encourage co-operation between the Member States and facilitate the co-ordination of their action in all social policy fields under this chapter, particularly in matters relating to... the right of association and collective bargaining between employers and workers".

The equivalent Article 5 of the "social chapter" agreed at Maastricht previously specified tasks "in all the social policy fields under this Agreement". However, despite this broad wording, it was seen as a potentially backward step.

This was partly because Article 2(6) of the same "social chapter" explicitly stated that "The provisions of this Article shall not apply to... the right of association, the right to strike or the right to impose lock-outs". This was seen by some as excluding the Commission from taking initiatives in these areas.

By its explicit reference to, indeed, emphasis on the right of association and collective bargaining, the new Article 118c raises a question mark over whether the scope of Article 2(6) of the former "social chapter", although retained in Article 118(6), has been narrowed. It does not now seem arguable that it can limit Commission initiatives related to the rights of association and collective bargaining under new Articles 188a and 118b of the EC Treaty.

These allow for labour and management to reach agreements at EU level which "shall be implemented". The new wording of Article 118c is significant in not only taking the brakes off Commission initiatives in this area, but encouraging them particularly in such matters. The Commission should follow the example of the European Parliament, which is considering own-initiative proposals on trade union rights. Such initiatives may influence the current UK debate over union recognition, industrial action, and other trade union rights.