The concept of social dialogue has become empty rhetoric, divorced from reality.

We live in Orwellian times. Although it’s not quite the dystopian scenario of George Orwell’s magnum opus 1984, there are alarming commonalities—including the phenomenon of ‘doublethink’, where rhetoric is used to obfuscate meaning. Social dialogue has fallen foul of this device.

‘Social dialogue’ was imbued with meaning by the then president of the European Commission, Jacques Delors, in the 1990s. Recently, however, it has been hollowed out, yet the concept is still frequently rhetorically deployed.

Consensual approach

In March 2015, the commission held a high-level conference marking a new start for social dialogue. During his closing remarks, its president, Jean-Claude Juncker, applauded the social partners for realising a consensual approach. ‘[L]et us strive to do as well as those who were our illustrious and virtuous predecessors,’ he concluded, for ‘a social market economy requires a European social dialogue.’ And he insisted: ‘It is the social partners who are in charge of the social dialogue. There is no tripartism, if bipartisanship does not work.’ Hence, the onus was placed firmly on the social partners to produce agreement.

The following December the social partners in public administration, the EPSU and EUPAE, representing the workers and employers respectively, secured an agreement on information and consultation rights for central-government administrations. The agreement came at a time when public administrations were coming under constant pressure to reorganise and streamline work practices, while at the same time improving the quality of services for citizens. The social partners held the unambiguous view that the agreement would result in a directive, thereby enhancing the rights of 9 million workers.

This was welcomed by the commission,  as a ‘contribution to a modern and high-quality public service across Europe’. In a letter to the social partners, it said it would ‘carry out a proportionate impact assessment of the Agreement’, in line with Juncker’s ‘better regulation’ agenda.

The assessment was however never conducted. The commission had no intent to initiate legislation. And rights were denied to millions of workers.

Case filed

The EPSU filed a case against the commission, for breaching article 155(2) of the Treaty on the Functioning of the European Union. In a nice irony, this article originates from an agreement concluded by the European social partners in 1991.

It was the first time proceedings had been taken by a European trade union against the commission. The strategy was seen as risky, for the outcome would determine the rights of EU social partners on matters of labour and social law, and the EPSU’s decision to take the legal route met disquiet from some trade unionists.

Notwithstanding, a resolution supporting that decision was overwhelmingly endorsed by the European Trade Union Confederation at its May congress in Vienna. The deputy general secretary Esther Lynch insisted: ‘It is not acceptable for the commission to say it supports social dialogue, but then do the opposite.’ In other words, no more doublethink.

No obligation

A four-hour public hearing was held in Luxembourg at the EU General Court that month. On October 24th, it ruled that the commission, despite official rhetoric to the contrary, was under no obligation whatsoever to exercise its sole right to initiate legislation. What might the implications be for sectoral social dialogue?

It is well acknowledged in the scholarship on European social dialogue that the ‘shadow of law’ is fundamental to securing a successful outcome. In the absence of the commission’s willingness to draft legislation on a specific item, agreements would be difficult to initiate, never mind conclude.

This is largely because employers’ associations are less inclined to engage meaningfully in a process of negotiation unless there is a proactive commission prepared to initiate legislation which, to all intents and purposes, could favour the interests of workers over those of employers. Under the ‘shadow of law’ numerous pieces of legislation were initiated and approved by the Council of Ministers, including on parental leave and part-time and fixed-term work.

Speaking the language

A recent analysis of the evolution of social dialogue by a former commission official, Jean-Paul Tricart, is quite critical of the Barroso and Juncker commissions. While the two commissions under José Manuel Barroso were firmly committed to limiting legislative developments in the social sphere, the Juncker commission, as indicated, sought to set itself apart from its predecessor by speaking the language of a more social Europe.

One such endeavour was the ‘better regulation’ package. From the wording, one might be forgiven for thinking that the initiative embraced a more inclusive approach to policy-making. In reality, it was about the power to reject unilaterally proposals submitted by outsiders. 

Despite the rhetoric, Tricart argues, ‘the Better Regulation initiative established procedures that institutionalised the Commission’s mistrust and suspicion towards the social partners and their role in the legislative process’. He charges the commission with ‘thus assuming a discretionary power such that it cannot help but discourage the social partners from engaging in collective bargaining at European level’.

If Tricart’s analysis does not quite occlude the prospect of a social Europe, the court’s ruling against the EPSU does precisely that. It means that social dialogue can only proceed on questions that have the ex-ante blessing of the commission. This undermines the autonomy of the social partners to address issues pertinent to their sectors.

Trust integral

Trust is integral to collective bargaining. In the past, sectoral trade unions could trust the commission to implement agreements reached with employers. This was important in ensuring that unions had a stake in the process of European integration. The sun has now set on that trust, which raises questions for the future of social dialogue and the European social model.

This trust, which was established over two and a half decades, was effectively renounced by the commission in its contributions to the court. The EPSU  deemed the commission’s line of argument ‘a betrayal’ and ‘cynical’ and it said: ‘The Commission cannot be trusted to assess social partner agreements on their merits.’

How the European social partners react remains to be seen. Whether trust can be rebuilt with the commission is another open question. If there is a silver lining to the clouds now overlaying the ‘shadow of law’, it is that the commission’s doublethink has been laid bare—as Orwell’s 1984 sought to do.