Introduction
| Author | Silviana Sciarra |
| Profession | Professor of Labour Law |
| Pages | 5-7 |
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The present general report is based on the analysis and the evaluation of country studies written by national experts of EU Member States.1
The group was asked to interpret the notion of evolution paying attention to changes in national legal systems, both for reasons of innovation and adaptation of previous legislation.The impact of EU law was to be taken into account, for the transposition of relevant directives and with regard to the employment guidelines issued by the Council, according to Title VIII TEC.
The research group dealt with the evolution of labour law in 15 Member States. In the 10 Member States which joined the EU in May 2004 labour law has evolved too, albeit with different points of departure and complex social and political factors underlying these changes. They have in recent years engaged in a sustained process of convergence with the rest of the EU, which should be the object of further investigation in a different research project.The outcome of the present joint study is offered to the observation of new Member States, with a view to expanding the field of comparative research in the near future.
National experts and experts from DG Employment and Social Affairs met for the first time in Brussels in February 2003 and discussed a timetable and a common outline to be followed in national reports. Some headlines were agreed, indicating broad areas to be covered.They mirrored in some passages the terminology adopted in describing the 'pillars' of employment policies, thus confirming a strict correlation between national legislation and European hard and soft law.
A common starting point was to underline that the approach to be followed in national reports should be mainly legal. However, it was agreed that some insight into the overall structure and functioning of the industrial relations system should be offered in an introductory section of each country study.The idea was to provide background information which would enable readers to understand the environment in which the evolution of labour law took place over a decade. I refer to national reports for such a rich collection of data regarding the actors of the industrial relations systems, as well as the institutions operating in labour markets.
The impact of EU law on the evolution of labour law was indicated by all experts as a leading theme to be taken into consideration.The 'Europeanisation' of national legal systems is a reality which we all encounter in the practice of law and in academic research. One of the intentions of this study is to highlight the areas of the discipline most influenced by European law and the ways in which the transposition of the Directives has been intertwined with national legislative reforms.
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It was also agreed that attention should be paid to the regulatory techniques used in each country to develop its recent legislation. Evolution in this domain has to do with the way in which different sources link together in legislative reforms.The shift among them may be modulated, in order to find the best possible balance.
Despite the fact that labour law has always been engaged in this complex exercise, it seems that there are always new ways of appraising the scales among voluntary and legal means of regulation.This may reflect different orientations of the legislature and respond, in some cases, to contingent problems, rather than to coherent and overall programmes.
A constantly changing relationship among different sources, all interacting in the evolution of labour law, is taken into account in all country studies, when providing relevant background information. Collective agreements continue to be very significant sources in accompanying and complementing law. As such they contribute to shape the evolution of labour law, while, at the same time, evolving themselves.
This report, in line with what emerges from national reports, highlights such a double role of collective sources, but does not provide information on the evolution of collective bargaining as such. The main emphasis in this report is on changes which have taken place in individual labour law.2
This is not to say that collective labour law is excluded from evolutionary trends. References are frequently made to shifting levels of collective bargaining which also reflect a changing function of collective agreements in regulating individual contracts of employment and in responding to wage policies.3 The report on Germany discusses the important 2001 reform of the Betriebsverfassungsgesetz, showing the implications that co-determination has on collective agreements. All country reports emphasise the importance of national legislation transposing the European Directive 94/45 on European Works Councils.
Industrial conflict accompanies the evolution of labour law and marks its main aspects, albeit with differences in the solutions adopted.4
In Greece the system of compulsory arbitration provided for by the Greek independent service OMED (Art. 16 Law 1876/1990) was criticised by the International Labour Organisation's Committee on Freedom of Association and was considered by a November 2003 decision not to be in compliance with Conventions 98 and 154, both ratified by Greece. A revision of existing legislation on arbitration and mediation, developed in the early 1990s, is incumbent and could result in social unrest.
A recurring theme in most EU labour law systems has been the recourse to wide forms of consultation of the social partners in view of adopting legislation. Despite the difficulties in evaluating the legal nature of 'agreements' which can result from these consultations, it must be acknowledged that, in general, they played a significant role in shaping important areas of the subject matter. Apart from paying attention to sources of law - be they legal or voluntary -this study does not dismiss the multiple ways in which legislation emerges as a result of the activities carried out by tripartite social dialogue.
This study confirms that as a peculiar feature of European labour law, all forms of negotiated legislation, social pacts and 'concertation' - the latter being a neologism which is now widely recognised as part of the official jargon - must be referred to as important resources for the evolution of labour law.5
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Several examples support this point. It may suffice to mention Belgium, where the role of the National Labour Council contributed to confirming a solid consensual tradition. In Finland tripartitism and income policy continued to be common practice.
In Germany, the 1998 Red/Green coalition launched the Alliance for Work, to fight unemployment and to pursue legal reforms. In Spain all labour law reforms covered in this study - with the exception of the one introduced in 1994 - were enacted after making recourse to social dialogue.
In Ireland, 'partnership agreements' have represented an original feature of the evolution of the national legal system and possibly of the recovery of the national economy, ever since the first deal was reached in the late 1980s.
In Italy, a significant contribution came from social dialogue in the early 1990s and contributed to a transition to Economic and Monetary Union. A shift into a more controversial phase of relationships with the social partners - and among the social partners - characterises the centre-right administration currently in power. 6
In Sweden, the social partners have not been able to overcome dissenting opinions on the needs and modes of flexibilisation, and have not always succeeded in exercising a joint influence on the legislature in this field. Nevertheless, a consensual climate is favoured by the solid structure of collective bargaining.
This General Report is organised in 10 sections:
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Introduction
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A comparative legal methodology
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Constitutional developments
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The impact of the European Employment Strategy on national labour law
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Evolution and the 'autonomy' of labour law
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Areas of evolution with adjustments towards flexibility
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The evolving relationship between law and collective agreements
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Changes in regulatory techniques
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The impact of EU law
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Concluding remarks
Executive summaries of national reports follow this Report as appendices and offer to the reader synthesised information on the most significant events to have marked the evolution of labour law in each country.
In the General Report I have arranged materials and information provided by all national experts under headlines which are different from the ones followed in each country study. I have also drawn on other sources for additional information.Therefore, the General Report must be read in conjunction with all national reports.
The selection of headlines - and consequently of issues to be included in the present account -is submitted as a first outcome of comparative analysis. It also confirms the indication that the main 'pillars' of European employment policies, the ones taken as guidelines for assembling and organising information in the national reports, are in the process of being changed and simplified.7
Each section opens with a brief summary of the main issues and conclusions drawn from both the General Report and the national reports.
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[1] Country studies were assigned by the Commission, DG Employment and Social Affairs to the following national experts:Thomas Radner (Austria), Chris Engels (Belgium), Niklas Bruun and Jonas Malmberg (Denmark); Marie-Ange Moreau (France), Niklas Bruun and Jonas Malmberg (Finland), Ulrich Zachert (Germany), Stamatina Yannakourou (Greece), Alan Neal (Ireland) Silvana Sciarra (Italy), Marie-Ange Moreau (Luxembourg), Chris Engels (The Netherlands), Miguel Rodríguez-Piñero Royo (Portugal and Spain), Niklas Bruun and Jonas Malmberg (Sweden), Alan Neal (United Kingdom).The group met in Brussels in February 2003 and in November 2003. A third meeting was held in January 2004. The present writer was responsible for drafting the outline to be followed in country studies, in collaboration with experts from DG Employment and Social Affairs. Country studies remained, however, within the responsibility and the discretion of individual authors. In the November 2003 meeting I presented the structure of the General Report in a preliminary form to the research group and received from colleagues a provisional approval. I then incorporated further suggestions and took responsibility for re-organising all materials and selecting the issues to be highlighted. As it frequently happens in collegial work, it is both the privilege and the responsibility of the general rapporteur to combine one's own interpretation with that emerging from national reports. I express my deep gratitude to each individual member of the group, while maintaining the sole responsibility for mistakes and omissions. I am also indebted to Fernando Vasquez,Astrid de Koning and Michael Wimmer of DG Employment and Social Affairs of the European Commission for assistance throughout the preparation of this project and in the editing of the final version of this Report. Malgorzata Zajac, doctoral student at the EUI, has provided invaluable help in the organisation and editing of bibliographical references.
[2] A comparative project on 'The evolving structure of collective bargaining' in all EU Member States and in candidate countries is under way, co-ordinated by the present writer and co-financed by the Commission and the University of Florence, to be published in 2005. See also the results emerged from the comparative research group sponsored by the Commission and directed by F. Valdés Dal-Ré, Labour Conciliation, Mediation and Arbitration in European Union Countries, 2003, Madrid.
[3] In several countries decentralisation of collective bargaining is associated with the intention to increase productivity.The national level of bargaining remains, in most countries, a significant and indispensable source for the regulation of working conditions and wages.
[4] In some countries legal reforms had to do with strikes in essential services, a sensitive area in which limits to the right to strike counterbalance the protection of individual freedoms and fundamental rights. See the Italian and Portuguese Reports.
[5] Some less well-known - and yet extremely significant - examples can be quoted. In Greece OKE, an Economic and Social Council, was introduced in 1994 and social concertation started in 1997, in order to ensure consensus in view of EMU. A 'Confidence Pact' was reached in November 1997 (see Chapter IV, section 2 of the Report). In Luxembourg in 2003 negotiation among the social partners and government on the central issue of continuous training made a legislative reform unnecessary. Social dialogue led to a better enforcement of existing measures.A well-established system of 'social partnership' is described in the Austrian Report.
[6] Report on Italy, Executive Summary. See also on this point M. Ferrera and E. Gualmini, Rescued by Europe? Social and Labour Market Reforms in Italy from Maastricht to Berlusconi, 2004,Amsterdam University Press,Amsterdam.
[7] See discussion on such issues in Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, The Future of the European Employment Strategy. A Strategy for full employment and better jobs for all, Brussels 14.1.2003, COM(2003) 6 final, pp. 8ff. The Commission supports a more target oriented approach and a simplification of the guidelines. See also the Explanatory Memorandum in European Commission, Proposal for a Council Decision on Guidelines for the Employment Policies of the Member States, COM(2003) 176 final, 2003/0069 (CNS).
