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EU: European Social Partners cannot force the Commission to take Legislative Action

In the EPSU Case, the Grand Chamber of the Court of Justice had to decide whether the European Treaties should be interpreted in a way, that the Commission must implement a framework agreement negotiated by the European social partners, when the latter requests it.

The Social Policy Chapter of the Treaty on the Functioning of the European Union (EU) awards important legislative powers to the European social partners, which allow them to conclude EU-wide framework agreements. Article 155, §2 of the TFEU states:

“Agreements concluded at Union level shall be implemented either in accordance with the procedures and practices specific to management and labour and the Member States or, in matters covered by Article 153, at the joint request of the signatory parties, by a Council decision on a proposal from the Commission. The European Parliament shall be informed.”

This clause means that the European social partners can request the Commission to initiate the legislative procedure for the creation of a directive or a regulation, in order to implement their agreement. This is an interesting option for the social partners, as an EU directive or regulation has a clear legal status and Member States will be forced to implement these rules, while the binding nature of a European framework agreement is far less secure.

In 2015, the Trade Unions’ National and European Administration Delegation (TUNED) and European Public Administration Employers (EUPAE) laid down the general framework for informing and consulting civil servants and employees of central government administrations of the Member States, in a European sectoral collective bargaining agreement. Subsequently they asked the Commission to submit a proposal for a directive to implement this agreement. However, the Commission refused to do so, as it did not see the need for a legislative implementation. This opened the discussion on whether or not art. 155, §2 TFEU allows the Commission to refuse a request of the social partners.

The European Federation of Public Service Unions (EPSU) brought the case before the General Court of the European Union, as it found that the Commission lacks any margin of appreciation and refusing the request would restrict the autonomy of the European social partners. However, the General Court ruled on 29 October 2019, that the Commission and then the Council, are not bound to give effect to a joint request presented by the signatory parties to an agreement seeking the implementation of that agreement at EU level. EPSU appealed this decision before the Court of Justice of the EU.

The CJEU upheld the General Court’s decision in September 2021, by undertaking a literal, teleological and contextual interpretation of the European treaties. Most importantly, the CJEU cites art. 155, §2 TFEU, together with art. 17, §2 of the Treaty on the European Union (TEU), which awards the sole legislative initiative power to the Commission.                   In addition, art. 17, §3 TEU states that the Commission is to carry out its responsibilities independently. According to the Court, in the present context, the Commission’s role consists of determining, in the light of the general interest of the European Union, whether it is appropriate to submit a proposal to the Council on the basis of an agreement between management and labour, for the purpose of its implementation at EU level. If the Commission would not have a margin of appreciation according to art. 155, §2 TFEU, this would mean that the interests of the signatories (management and labour) to an agreement alone would prevail over the task, entrusted to the Commission, of promoting the general interest of the European Union, which is not the case.

The Court does not see a violation of the autonomy of the social partners, as during the negotiation stage of an agreement by the social partners, they may engage in dialogue and act freely, without receiving any order or instruction from the Member States or the EU institutions. However, this autonomy does not take precedence over the independent role of the Commission at the stage of the implementation in EU law.

Key Action Points for Human Resources and In-house Counsel 

  • The EU social partners still enjoy full autonomy to conclude framework agreements at EU-wide or sectoral levels.
  • However, only the Commission can take the decision to submit a proposal to the Council in order to implement such an agreement into EU law.
  • The EU social partners merely have a right to request the Commission to initiate the legislative implementation, but there is no right to the implementation itself.

Source: CJEU, 2 September 2021, C-928/19 P, European Federation of Public Service Unions (EPSU)