Social dialogues—the state of the art a decade after Maastricht

Social dialogues 411

Social dialogues—the state of theart a decade after Maastricht

Berndt Keller

The article asks whether social dialogues, according theprocedures of the Social Protocol and the Amsterdam Treaty,have proved to be valuable instruments able to make majorcontributions to the development of social integration. Morerecent developments at the inter-professional as well as at thesectoral level are evaluated. Furthermore, major trajectoriesfor likely future trends at both levels are highlighted. The finalpart discusses the problem of whether social dialogues willprofit from the introduction of new modes of governance,especially the more recently preferred open method of co-ordination.

IntroductionThe new regulatory mechanism of the Protocol on Social Policy and its Agreement(hereafter called the Social Protocol) was first of all annexed to the Maastricht Treatyon European Union and later incorporated into the main body of the AmsterdamTreaty (Articles 137–139). The Social Protocol was supposed to overcome the more tra-ditional variants of social dialogues ‘à la Val Duchesse’ that had been launched in themid 1980s when Delors became President of the European Community and revitalisedthis then more or less dormant variant of dialogue. The political intent was to replacethe old, strictly non-binding forms by new and more binding ones. The Social Proto-col provided the peak associations of ‘management and labour’, called the social part-ners in Euro jargon, responsibility for the processes of European social policy making.1

These private actors’ rights were not only broadened towards a two-stage con-sultation, first on the direction and, later on, the substance of regulation. They werealso granted new opportunities to negotiate and conclude voluntary framework

© Blackwell Publishing Ltd. 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main St., Malden, MA 02148, USA.

Industrial Relations Journal 34:5ISSN 0019-8692

❏ Berndt Keller is Professor of Industrial Relations and Labour Market Policy at the University of Konstanz. Correspondence should be addressed to Berndt Keller, Universität Konstanz, FachbereichPolitik und Verwaltungswissenschaft, Fach D83, D-78457 Konstanz, Germany; [email protected] Europeanisation of industrial relations can take different forms. In this article we focus on genuineEuropeanisation in the strict sense of vertical integration. The process could, however, also mean, andpossibly include, the transnational co-ordination of national collective bargaining policies on a purelyhorizontal axis (Schulten and Bispinck, 2001; Schulten, 2003).

agreements and thus replace proposed action by the Commission by their own ‘nego-tiated legislation’.

The Social Protocol became effective in 1993. After a period of ten years it is time fora preliminary summary and empirically based assessment of results. We are much betterinformed about more recent developments at the interprofessional (or multisectoral)level (Falkner, 1998; Hartenberger, 2001) than at sectoral level although the importanceof the latter for the evolution of a ‘European’ system of industrial relations is undisputedand can hardly be overestimated. More flexible or even tailor-made framework agree-ments dealing with various sector-specific problems (like restructuring or coping withthe consequences of EMU) could possibly be concluded at sectoral level (Treu, 1996). Inthe vast majority of member states collective bargaining still takes place at this level(Ferner and Hyman, 1998; Traxler et al., 2001). Most recently, the Commission’s interestshave shifted to some degree from the interprofessional, its original focus of attention, tothe sectoral level granting both equal importance for the future.2

The decisive question to be dealt with in this article is: have social dialogues accord-ing to the procedures of the Social Protocol proved to be valuable instruments able tomake major contributions to the development of what Jacques Delors has called the‘social dimension of the internal market’? Furthermore, we will highlight major tra-jectories for their possible future development. Last but not least we will discuss theproblem of whether social dialogues will profit from the introduction of new modesof governance, especially the more recently introduced open method of co-ordination.A detailed description of the history of social dialogues has been given elsewhere(Dolvik and Visser, 2001; Falkner, 2000; Kluth, 1998) and is, therefore, beyond the scopeof this article.

Interprofessional level: a short summary of resultsExpectations of ‘euro-optimists’ were high when the Social Protocol became effective.In numerous, not only trade union quarters there were far-reaching hopes concerningthe opportunities and prospects of these new provisions. Even a ‘European bargain-ing area’ seemed to appear on the political horizon. Ten years later it is fair to say thatthese hopes have not materialised. The most obvious indicator is the fact that theoverall number of regulatory projects has (at about ten)3 remained rather limited (fordetails on substantive aspects of various issues see Branch and Greenwood, 2001;Hartenberger, 2001; Falkner, 2003). On average, only one two-stage consultationprocess (according to Article 138) has taken place per year.

So far the social partners at interprofessional level4 have negotiated and signed onlythree framework agreements (parental leave in 1995, part-time work in 1997, fixed-

412 Industrial Relations Journal © Blackwell Publishing Ltd. 2003.

2 In its first and second communication on social dialogue (Concerning the application of the Agree-ment of the Social Policy, COM (93) 600 final, and Concerning the Development of the Social Dialogueat Community Level, COM (96) 448 final) the Commission hardly mentioned the sectoral level at all.This constellation changed to some degree in the third and fourth communication (Adapting and Promoting the Social Dialogue at Community Level, COM (98) 322 final, and The European Social Dialogue, a Force for Innovation and Change, COM (2002) 341 final). These communications are exper-iments of procedural structuring of various stages of originally indefinite processes (Keller and Sörries,1999b for details).3 Indicated figures do vary because, among others, the Commission’s original proposal for a Directiveon atypical work was split into three parts and led to three consultations (on part-time work, fixed-term contracts and temporary agency work). Therefore, the official figure published by the Commis-sion in mid 2002 is 12 (COM (2002) 341 final).4 The social partners have been the European Trade Union Confederation (ETUC) on the employees’side and the Union of Industrial and Employers’ Confederations of Europe (UNICE) and the Euro-pean Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest(CEEP). Since 1999, the European Association of Craft, Small and Medium-Sized Enterprises(UEAPME) has been included after it had signed a cooperation agreement with UNICE (see Branchand Greenwood, 2001; Keller and Bansbach, 2001 for details). In the following analysis we will focuson UNICE, the most important actor on the employers’ side.

term contracts in 1999) which were enacted by Council decision, at the request of socialpartners. Thus, quantitative output is rather small. Its qualitative ‘European valueadded’ is also limited. Substantive improvements of already existing national regula-tions are usually limited to a small number of member states. Different exemptionsfrom broad framework regulations and frequent opening clauses create ample oppor-tunities for factual ‘opt-outs’ of individual member states. Generally, it is justified toconclude that social partners have hardly used their broadened opportunities of semi-private decision-making.

In all other cases voluntary negotiations either failed or were not even launched. Inthe majority of regulatory projects the Commission as the ‘prime mover’ had to stepback in and to finalise a Directive by traditional, legislative means. Therefore, it is jus-tified to argue that, within the new institutional arrangement of the Social Protocol,the enlargement of decision making by qualified majority vote to areas that formerlyneeded unanimity in the Council of Ministers has been more important than thebroader inclusion of the social partners. In these areas (such as providing informationand consultation for workers, working conditions, equality between men and women)

© Blackwell Publishing Ltd. 2003. Social dialogues 413

Table 1: Results of the ‘new’ social dialogue at interprofessional level

Initiative of the Result of the two-step Adoption of theCommission consultation Regulation

European Works Failure of the social partners to Directive 94/45/ECCouncils, 1994 reach a framework agreement,

Draft Directive by the Commission

Parental leave, 1995 First framework agreement on Directive 96/81/ECparental leave

Burden of Proof, 1995 Failure of the social partners to Directive 97/80/ECreach a framework agreement,Draft Directive by theCommission

Sexual harassment, Failure of the social partners to No specific legislation1996 reach a framework agreement, because of member

Draft Directive by the states resistanceCommission

Flexibility in working- Second framework agreement Directive 97/81/ECtime, 1995 on part-time work

Fixed term contracts, Third framework agreement Directive 99/70/EC1999 on fixed-term contracts

National information Failure of the social partners to Directive 2002/14/ECand consultation, 1998 reach a framework agreement,

Draft Directive by theCommission

Temporary agency Failure of the social partners to Still on the agendawork, 2000 reach a framework agreement, (Proposal by the

Draft Directive by the Commission in 2002)Commission

veto block votes against the Commission’s proposals on Directives are more difficultto organise than before when only one dissenting vote prevented any decision (Green-wood, 1999: 159–60). The Commission’s official offer to refrain from its own initiativesincluding legislative action if social partners managed to negotiate voluntary frame-work agreements only proved to be of value in a fairly limited number of cases. Inother words, European peak associations have hardly been able to take advantage ofthe fact that they obtained a status similar to that of legislating agencies (Keller andSörries, 1999a).

There are, of course, various reasons for this relative stagnation of social integra-tion. The ‘mainstream’ explanation is obvious—and basically correct. Employer asso-ciations’ interests in social partnership and social dialogues have always been limitedas a semi-official statement confirms:

Concerning the possibility to negotiate under the social chapter in order to avoid adoption by theCommission of a draft directive, employer organisations have been reluctant to use it. . . the onlymotivation . . . to take up negotiations is the threat of even more restrictive regulation, if it is leftto the Commission and the EP. However, this negative motivation is rather weak and becomes lessand less credible as a basis for the development of the negotiating practice at EU-level from theemployers’ perspective. (Hornung-Draus, 2002: 218–219)

Similar arguments are put forward by the former secretary-general of UNICE(Tyszkiewicz, 1999). At least since its strategically oriented report on future socialpolicy issues UNICE (1999) has frequently and vigorously opted for ‘a more generalapproach to social dialogue’ instead of one ‘restricted only to the negotiation of agree-ment at European level’.

Interprofessional level: most recent trendsIn 2001, after the ultimate failure of protracted attempts to conclude a frameworkagreement on temporary agency work, the social partners agreed to negotiate on thebroadly defined issue of telework. From the beginning, UNICE preferred to concludea ‘non-legally binding’ agreement whereas ETUC expressed its surprise about theintended status of a purely voluntary accord and documented its interest in Councildecisions with legal force. These efforts to regulate telework at EU-level were quiteremarkable because they constituted the first negotiations that did not take place ‘inthe shadow of the law’ (Bercusson, 1994: 20) but on an autonomous basis, e.g. withoutthe active participation of the Commission. Finally, social partners signed an agree-ment in mid 2002 despite the fact that their views on its nature were hardly reconcil-able. The agreement covers areas such as the definition of telework, employmentconditions, health and safety, training and collective rights (for details see Broughton,2002a; Clauwaert, 2002a). Signatory parties agreed to set up an ad hoc group and toreport on the implementation of the agreement; the group will prepare joint annualreports on the actions taken and the progress achieved.

Analysing the policy making process, the sequence of the policy cycle indicatesvarious stages with different problems ranging from agenda setting, to policy formu-lation, to the implementation of results (Anderson, 2003). Therefore we should explic-itly distinguish between the conclusion and the implementation of agreements despitethe fact that industrial relations analysis as well as official documents of the Com-mission frequently focus only on the stage of conclusion. Our existing knowledge ontransposition and implementation is rather limited.5 Consequences can be unevenlydistributed across member states because of major institutional differences at nationallevel before European regulation takes place.6 This constellation may lead to major dif-


5 Exceptions include Hall (1998) on the Directive on parental leave and Clauwaert (2002b) on the part-time work Directive.6 The most recent Directive on informing and consulting employees in the European Community con-stitutes a prototypical example (Sisson, 2002). This phenomenon is by no means limited to the macrolevel. At sectoral level ‘differential impacts’ would be even more significant between as well as withinsectors.

ferences in efforts of adaptation. Furthermore, it might even be the case that specificDirectives have no consequences whatsoever for individual member states.

At supranational level, the constellation, of course, is more complex than at nationallevel because of the existence of an additional hardly structured level. Concluded regu-lations have to be transposed before being implemented. Processes of transposition areeasier to investigate than those of implementation. The EU in general, and the Com-mission in particular, have no competencies and instruments of their own, and thus,depend on procedures and institutions including ‘customs and practices’ at the levelof individual member states.

Two procedures, the ‘legislative’ versus the ‘negotiation track’, have been provided.They were introduced by the Social Protocol and, later on, taken over, without changes in substance, into the Amsterdam Treaty (Article 139). Framework agreementsand Directives are to be implemented either ‘in accordance with the procedures and practices specific to management and labour and the Member States’ or at thejoint request of the signatory parties ‘by a Council decision on a proposal from theCommission’. The crucial problem concerning the framework agreement on teleworkwas the fact that procedures had not been clarified in advance and, therefore, pro-tracted problems of ‘sustainability’ at national level will be difficult to solve. Both vari-ants for transposition and implementation are not directly applicable in this specificcase.

On the one hand, in contrast to tripartite arrangements including the Commissionas the focal actor, legislation will not constitute a realistic alternative and will have tobe excluded for various reasons. European actors, the Commission and the Council,can neither accept the results of decision-making by private corporate actors as thebasis for their own legislative initiatives nor adopt them as public policy proposalswithout any opportunities of substantive and fundamental changes. Furthermore,why should national governments tolerate any restriction of their political competen-cies by decisions taken by the European peak associations of social partners?

On the other hand, the strategy of relying on implementation by ‘the members ofthe signatory parties’ and in accordance with the ‘procedures and practices specific tomanagement and labour’ (at national, regional or enterprise level) faces a number ofserious difficulties. First of all, European peak associations have no power or author-ity to enforce compliance of their national member organisations and can, therefore,by no means guarantee binding and effective transposition and implementation bytheir affiliates. Binding sanctions against non-complying negotiation partners are alsonot available. Public actors’ options are also restricted because of ‘a legal gap at theEuropean level: there is no legal foundation for European collective agreements andfor such agreements to acquire binding effect’ (Leisink, 2002: 104; Deinert, 1999 forlegal details). Furthermore, at least some national systems of industrial relations ingeneral and of collective bargaining in particular, especially but not exclusively decen-tralised ones like in the UK, are inappropriate for the implementation of Europeanframework agreements. Last but not least, the controversial core issues of industrialrelations (like wages and salaries, strikes and lock-outs) are legally excluded from thecoverage of the Social Protocol and the Amsterdam Treaty respectively.

More recent comparative studies come to the conclusion that national coverage ratesdiffer significantly between countries as well as between sectors within countries(Traxler, 1996; Traxler et al., 2001). High coverage rates need two institutional require-ments, either high density ratios (like in Scandinavian countries or Belgium) or thelegal existence and frequent application of so-called erga omnes clauses. These clausesdeclare the content of collective agreements generally binding and extend them to non-members of signatory parties. Both necessary preconditions exist only in a limitednumber of member states. Therefore, it is no coincidence at all that the vast majorityof member states have preferred the ‘legislative route’ as the more frequently usedmode of transposition for framework agreements and Directives. Denmark is thenotable exception from this general rule. However, even in this case of comparativelyhigh coverage rates supplementary legislation proved necessary in order to reach acomplete coverage.


From a legal perspective both forms are supposed to be of equal importance. Inreality, however, they differ significantly and, in contrast to wide-spread assumptions,do not constitute functional equivalents (Keller and Sörries, 1998a). Implementationby private actors only does not constitute a viable alternative. Furthermore, it is a real-istic assumption that supranational agreements will result in even lower coveragerates than national ones because of the ‘voluntary route’ of transposition and imple-mentation and the lower degree of acceptance by national affiliates of supranationalassociations. In this regard it is important to note that, at least in some countries, evencompliance with national agreements has become a major problem during the 1990s.7In other words, the complete coverage of the workforce is a very ambitious but highlyunrealistic goal; the existence of a regulatory patch-work at national level is the mostlikely scenario.

Furthermore, purely voluntary efforts of implementation (such as recommendationsaddressed to national social partners) are difficult to accept for the vast majority ofETUC members in the long run because they leave the final decision to probably dis-senting national associations and their members. In other words, ‘soft’ instrumentssuch as transposition on a purely voluntary basis could prove to be unacceptable froma union point of view because they do not guarantee an equal level of regulation inall member states. All in all, they serve employers’ interests in purely ‘soft’ regulationmuch better than unions’ preferences for legal validity. It is true that ‘UNICE is takinga paradoxical stance . . . on the one hand it is calling for more flexible rules; but on theother it is refusing all attempts to institutionalise procedures or to verify that they arebeing applied correctly’ (Arcq and Pochet, 2002: 207). Finally, such voluntary agree-ments should by no means be confused with the results of collective bargaining in itsstrict sense (Kim, 1999) because they lack the threat to strike or to take industrial action.

All framework regulations have to be quite ‘flexible’ because of the necessity to con-clude political compromises at European level and because of existing and lasting(statutory) differences between member states including their ‘customs and practices’.This requirement provides ample room for strategic manoeuvring by national gov-ernments as well as intensive lobbying activities by national social partners during theimportant phase of transposition. Such protracted compromises would be overtlycomplicated to reach if transposition by means of collective bargaining constitutes thepreferred strategy.

Last but not least, if such autonomous negotiations between social partners eitherfail or do not take place there are no alternative solutions whereas in the case of tri-partite arrangements the Commission could revitalise its original proposal in order tofinalise the issue by legislative means. This has been the case on several occasionsincluding the 1994 Directive on European Works Councils as the most prominentexample. Thus, successful bilateral negotiations are almost by definition restricted toareas of fundamental agreement between social partners. However, what is going tohappen in those broad areas of basic disagreement without the Commission’s realis-tic threat ‘you negotiate or we’ll legislate’! In these cases the Commission requiresgreater courage to act as a ‘means of last resort’.

From a legal point of view, such purely voluntary, bilateral negotiations andautonomous framework agreements between social partners without any interferenceby the Commission have already been possible in the past. In empirical perspective,however, they have just not taken place. The basic reason for the non-action of socialpartners is their disagreement on a whole series of fundamental issues. Almost by def-inition, bilateral negotiations can only be successful in areas of consent and mutualtrust. UNICE has never been interested in such undertakings and, therefore, it is dif-ficult to see why its basic preferences should have changed drastically in the mean-time. All in all, it is rather unlikely that traditional tripartism, including the


7 In Germany, among others, the so-called silent escape from the results of collective bargaining con-stitutes a fairly widespread phenomenon especially but not exclusively in the new federal states.

Commission as the ‘prime mover’, will be replaced by autonomous bipartism of thesocial partners exclusively.

Whether the agreement on telework can indeed be regarded as ‘a new landmark inthe EU social dialogue’ (Clauwaert, 2002a: 541) remains to be seen. It could be thebeginning of the end of EU regulation by ‘negotiated legislation’ à la Maastricht andindicate that social dialogues have again entered a new phase of development that ischaracterised by ‘bilateral’ voluntarism instead of the former ‘trilateral’, bindingnature. New methods of independent instead of ‘classic’ legislative transposition willhave to be developed in order to improve the viability of policy implementation. Inany case, the most recently concluded fourth framework agreement on telework is ofa different nature and should not be mixed up with the other three (on parental leave,part-time work and fixed-term contracts).

Sectoral level: a short summary of resultsPredecessors of present sectoral social dialogues can be traced back to the 1960s. Until1998 they took place under various but similar institutional settings, especially JointCommittees (JCs) and Informal Working Parties (IWPs) (Keller and Sörries, 1998b and1999b, Sörries, 1999 for details). JCs were appointed by formal Commission decisionsin sectors corresponding to one of the common Community policies (like in agricul-ture). IWPs were launched by the social partners themselves, either on a purely vol-untary basis, or in response to a joint request by the social partners. First, theirestablishment has been closely linked to the formulation and implementation ofcommon EU policies (like in transport or agriculture). Later on, internationalisation ofmarkets, first of all product markets, as well as national policies of liberalisation, de-regulation and privatisation favoured the installation of such dialogues (among others,in postal and telecommunication services). Factual differences are small. ‘In practicethe JCs and IWPs have served similar purposes, notably in assisting the Commissionin the elaboration and implementation of Community social policy affecting theirrespective actors and in creating a climate of confidence and mutual understandingbetween the parties’ (Dolvik, 1999: 156).

All conclusions about existing dialogues and their results depend strictly on theobservers’ perspective and are somewhat ambiguous. On the one hand, the purenumber of dialogues expanded and results increased slowly but non-steadily, mainlyduring the 1990s to an overall number of more than 200. Furthermore, they covered abroad range of not only social issues (such as working conditions, employment, healthand safety) but also topics of sector-specific economic policy. Representatives of sec-


Table 2: Institutional framework of the ‘old’ sectoral social dialogue

Joint Committees (JC) Informal Working Parties (IWP)

— Agriculture (1963) — Hotels, restaurants, cafés (1984)— Road transport (1965) — Sugar (1984)— Inland navigation (1967) — Commerce (1985)— Railways (1972) — Insurance (1987)— Fisheries (1974) — Banks (1990)— Maritime transport (1987) — Footwear (1991)— Civil aviation (1990) — Construction (1991)— Telecommunications (1990) — Cleaning (1992)— Postal services (1994) — Textiles and clothing (1992)

— Wood (1994)— Private security (1994)

Source: Commission of the European Communities (1996), Annex II; eironline (1999).

toral organisations got to know each other, developed a more profound understand-ing for the positions of their opponents and intensified their exchange of information.Thus, activities of sector-specific lobbying took place, primarily addressing the Com-mission and other European institutions, rather than processes of autonomous deci-sion-making, addressing national members of European peak associations. The crucialproblem of transposition and implementation, not to mention monitoring of compli-ance, is of course less important within the first group that constitutes the majority ofpresently existing results.

On the other hand, all results, such as recommendations and joint statements, wereof a purely non-binding nature for the signatory parties and did not manage to passthe critical threshold of binding framework agreements that have to be transposed andimplemented by established procedures. Thus, they were of more symbolic than prac-tical relevance and their ‘European value added’ remained limited. This lasting lackof binding results contributed to growing discontent within ETUC and the Commis-sion—and led the abolishment of this specific form of sectoral dialogues.

It is remarkable to realise that these ‘old’ dialogues did not cover large key sectorswhich are of primary importance for national economies and their industrial relationssystems including their ‘pattern setting’ by collective bargaining (engineering, chemi-cals, public sector). All in all, the distribution of these dialogues and their results across sectors was rather uneven. They took place in smaller sectors, the majority ofwhich belonged not to manufacturing but to the service sector (such as transport ortelecommunications). Favourable conditions for their establishment were either theexistence of a common European policy (like in agriculture constituting the oldestexample) or the politically motivated introduction of European strategies of liberali-sation and measures of deregulation (like in telecommunication as the most promi-nent example) (Sörries, 1999 for details). Furthermore, precise definitions of thecharacteristic features of ‘sectors’ did not exist, a problem we will elaborate on in thenext section. All in all , these kinds of dialogues have to be assessed as nothing elsebut the sectoral version of the older, strictly non-binding ‘Val Duchesse approach’although they extended far into the ‘post’-Maastricht period of interprofessional dialogues.

The new regulatory system introduced by the Social Protocol is equally applicableat both levels. However, it has had no factual impact at the sectoral level. The onlydeviating case is the transport sector whose social partners signed two frameworkagreements (in maritime transport and railways) in 1998 but failed to reach conclu-sions in others (such as road transport, the most important sub-sector). Preconditionswere, however, rather extraordinary because these negotiations took place ‘in theshadow of the law’ after the Commission had announced in its white paper the planto extend the Directive ‘on the organisation of working time’ (93/104/EC) to a rangeof previously excluded sectors in order to guarantee complete coverage (Keller andBansbach, 2001 for details). Therefore, it is not justified to draw generalising conclu-sions from these two framework agreements signed under very specific circumstances.

Sectoral level: Recent trendsIn its third Communication ‘Adapting and Promoting the Social Dialogue at Com-munity Level’ (COM (1998) 322 final) the Commission shared the criticism of someparticipants, particularly trade unions, about more recent developments and the non-binding character of results. It argued that the old structures ‘often hinder positivedevelopments’ and ‘have become over-institutionalised or have retained operationalmethods which have outlived their usefulness’. Therefore, the Commission abolishedthe diverse old structures at the end of 1998 and replaced them with more harmonised,unitary ‘sectoral dialogue committees’ as ‘the key forum for consultation, joint actionand negotiations’ (OJ, L 225/27). In the future, they ‘shall be consulted on all devel-opments at Community level having social policy implications, and develop andpromote the social dialogue at sectoral level’ (ibid.).


What do we know about the interim results of these new institutional arrangements?At first glance, the overall number of ‘newly’ constituted sectoral dialogue com-mittees is rather impressive considering the comparatively short period of time since the abolition of the old organisational structures. On second glance, however, it appears that the former structures of JCs and IWPs were simply re-established. Social partners from sectors with ‘old’ dialogues made ‘joint requests’,applied to set up new sectoral committees, and fulfilled the ‘established criteria of representativeness’. Thus, they managed to preserve the provision of logistical andfinancial support by the Commission for their activities (simultaneous translation facilities, coverage of travel expenses and secretarial services, among others) and conserved their status quo ante.

Most recently, the increase in overall numbers has slowed down. Furthermore, onlyfew, really new dialogues, mainly in small service sectors (such as live performance


Table 3: Sectoral social dialogue committees in 2002

Joint requestfor a Sectoral Informal Non-

Dialogue New Joint Working structuredCommittee Dialogue Committees Group Group

Agriculture 1 1Banks 1 1Civil Aviation 1 1Cleaning 1 1Commerce 1 1Construction 1 1Culture 1 1Fisheries 1 1Footwear 1 1Horeca* 1 1Inland navigation 1 1Insurance 1 1Leather 1 1Maritime transport 1 1Personal services 1 1Postal services 1 1Privare security 1 1Railways 1 1Road transport 1 1Sea Transport 1 1Sugar 1 1Tanning 1Telecommunications 1 1Temporary work 1 1Textiles and clothing 1 1Wood 1Local public services 1Electricity and gas 1Graphisme 1Media 1

26 4 10 9 6

Source: Commission/DG V. *Horeca includes hotels, restaurants and tourism.

or hairdressing), have been launched so far. Whether they manage to increase theircoverage rates and extend their organisational domains (among others, from hair-dressing to personal services) remains to be seen. The crucial imbalance of social dia-logues and their results across sectors of the economy still exists; major sectors (suchas engineering) are still completely missing.8

There are even further problems. Among others, there is no exact official definitionof which criteria constitute a ‘sector’. This vagueness leads to peculiarities in the countof overall numbers. Within the transport sector, among others, there are various ‘sub-sectoral’ dialogues that are counted separately (civil aviation, road transport, railways,maritime transport, inland navigation and fisheries). Furthermore, the Commissionfrequently uses the term ‘social dialogue’ in a rather indefinite sense—almost as anequivalent for industrial relations if not social policy in general. Such generalisationsare not very helpful for detailed analysis. Last but not least, the Commission frequentlysubsumes under the same heading social dialogue at various levels (enterprise,regional, cross-border, sectoral and interprofessional), disparate institutionalisedforms (tripartite and bipartite, binding and voluntary) and manifold qualities of results(joint opinions, recommendations and agreements, among others). This overall strat-egy contributes to conceptual confusion. A semi-official judgement that referred to the‘old’ sectoral dialogues is still correct:

As there has been no clear definition of the notion of sector at Community level, the sectoral socialdialogue has sometimes also suffered from uncertainty as to its true scope and this has discour-aged the Commission from its potential to the full (European Commission/DG V, 1995: 9).

After the termination of the old forms and their complete procedural restructuringoutput in quantitative terms has increased to a certain degree. ‘The main topics dis-cussed within the framework of the sectoral social dialogue include employment,training, change management, labour rights, equal opportunities, and health andsafety’ (EIRR, 2002: 27). In qualitative regard, however, results are still as mixed as theyused to be before the ‘streamlining of operating procedures’. There are joint statementsand recommendations but no binding voluntary agreements at all.9 In other words,the crucial question of implementation and monitoring at European and national levelis still unsolved. Whether more recent , so-called ‘new generation texts’ (such as codesof conduct) that are non-legally binding but recommend national members certainsteps to be taken, constitute a new quality of results, remains to be seen. ‘A panoplyof tools’ (Eironline, 2003: 16) does not necessarily change the quality of outcomes.

The motives and incentives of the social partners have not fundamentally changeddespite the introduction of the new dialogue structures. Therefore, substantial andencompassing progress towards more binding agreements is unlikely in the future.Our low expectations are in clear contrast to the Commission’s far-reaching hopes(European Commission/DG V, 2000: 5–8) which are shared, among others, by the HighLevel Group on Industrial Relations (European Commission, 2002). Our anticipationis, however, in line with the observation of other researchers that the Commission‘does not do much more than offer a general framework for the setting up of sectoralcommittees and bring the existing Joint Committees under this new label. Not tooambitious an approach!’ (Jacobs and Ojeda-Aviles, 1999: 59). Thus, unilinear develop-ments or the evolution of a relatively homogeneous system of sectoral dialogues israther unlikely. There will always be leaders and laggards within a diverse polity.


8 The chemical industry constitutes an interesting, probably deviating case. Sectoral dialogues had beencompletely missing but a form of sub-sectoral dialogue was launched in late 2000 in the polyvinylchloride (PVC) industry. On the other hand a study on collective bargaining in that sector concludesthat ‘despite growing interest in transnational labour cooperation, the conclusion is that progresstowards Europeanisation is so far modest’ (LeQueux and Fajertag, 2001: 117).9 A typical example for problems of transposition and implementation is the telework guidelineadopted in the telecommunication sector in 2001: ‘The parties to the guidelines hope that they will beadopted by telecommunications companies in Europe, on a voluntary basis and according to eachcountry’s laws and collective bargaining practices.’ (Eironline, 2001: 1).


Table 4: Main sectoral social dialogue joint texts concluded in 2000 and 2001

Sector Text Date

Agriculture Two safety manuals (for forestry work November 2000and for spray operators).

White paper on employment in 13 April 2000agriculture.

Civil aviation Accord on working time for mobile 22 March 2000workers in air transport.

Wood Code of conduct. 31 October 2000Footwear Social action programme. 2 June 2000

Code of conduct on fundamental labour 17 November 2000rights.

Commerce Joint declaration on employment. 14 April 2000Joint statement on the fight against 15 May 2000

racism and xenophobia.Agreement on teleworking. 26 April 2001

Electricity Joint declaration on a study on the 7 November 2000impact on employment of liberalisation of the sector.

Cleaning Common declaration on the future 31 January 2000development of the sector.

Common declaration on employment. 20 February 2001Joint declaration on EU enlargement. 3 April 2000

Fishing Social partners’ resolution on the fuel 20 November 2000crisis.

Common declaration on training and 20 November 2000mutual recognition of qualifications.

Postal services Round-table conclusions on training. 29 November 2000Best practice anti-discrimination 30 November 2000

guidelines.Private security Joint declaration on modernising the 11 July 2000

organisation of work.Personal services Code of conduct in hairdressing. 26 June 2001Entertainment Common declaration on continuing 27 May 2000

training.Sugar Joint declaration on apprenticeship. 13 November 2000

Joint declaration on developing 13 November 2000countries.

Leather and tanning Code of conduct. 10 July 2000Telecommunications Common declaration on work 25 January 2000

organisation and the information society, for submission to the Lisbon European Council.

Agreement on a framework for 7 February 2001regulating telework.

Textiles and clothing Social action programme. 26 May 2000Maritime transport Contribution on the recruitment and 25 January 2001

training of sailors in Europe.Road transport Common opinion on the employment of 15 September 2000

drivers.Temporary agency Joint declaration on the development of 3 July 2000work the social dialogue.

Joint declaration on a draft Directive on 8 October 2001temporary agency work.

Source: Broughton (2002b).

Causes for the present stagnation are rather obvious. The question of representa-tiveness of social partners’ organisations has always played a major role and led tovarious ‘studies of representativity’. The problem that is of relevance for the legiti-macy and effectiveness of the process is more difficult to solve at sectoral than at inter-professional level because of the larger number of associations (for a complete listCOM (2002) 341 final). The Commission has established certain criteria organisationshave to fulfil in order to be officially recognised as social partners. The institutionalinfrastructures of representative organisations that constitute necessary prerequisitesfor any kind of activities differ significantly between ‘both sides of industry’. There isa formalised and established sub-structure of sectoral associations on the employees’side, the European Industry Federations (EIFs). They consist of national sectoralunions and are fully recognised members of ETUC. There is, however, no equivalenton the employers’ side.


Table 5: European Industry Federations

RecentNumber of Number of Congress/

European Year of member members GeneralIndustry Federation establishment organisations (in millions) Assembly

Transport 1999 n.a. 3 1999Workers’ Federation(ETF)

European Federation of 2000 120 2.6 2000Food Agricultural andTourism (EFFAT)

European Federation of 1958 49 2.4 1999Building and Wood Workers (EFBWW)

European Federation of 1964 n.a. 1.5 2000Textile, Clothing andLeather (ETUF-TCL)

European Federation of 2000 n.a. 7 2000Services andCommunication(Uni-Europa)

European Metalworkers’ 1971 59 6.4 1999Federation (EMF)

European Federation of 1974 180 10 2000Public Service Unions(EPSU)

European Trade Union 1975 81 8 2001Committee of Education(ETUCE)

European Federation of 1988 43 0.16 2001Journalists (EFJ)

European Mining, 1996 119 3 2000Chemical and EnergyFederation (EMCEF)

Source: ETUI.

Generally, the fundamental differences of interest are obvious. On the one hand,ETUC and its EIFs are interested in various kinds of social dialogues, trilateral con-certation as well as bilateral, autonomous dialogues, as possible means to activelypromote ‘the social dimension of the internal market’. On the other hand, UNICE iskeen to preserve the status quo of a minimum of European regulations. Therefore, itwill not take the lead but keep a ‘wait-and-see’ position and enter into negotiationsonly if the Commission credibly threatens legislative action for the case of non-compliance. Strategic planning predominates. ‘UNICE has never viewed the socialdialogue as a goal in itself, but as a means to an end, namely as a way of ensuring thesuccess of the internal market and the competitiveness of European companies’(Branch and Greenwood, 2001: 67). UNICE prefers the strict application of the renewedprinciple of subsidiarity (Article 5 of the Amsterdam Treaty). More recently, this overallstrategy, which serves the interests of the vast majority of its national members best,has been described in great detail in the official masterplan for future social policy(UNICE, 1999).

In other words, the ETUC needs a complex, comparatively homogeneous substruc-ture in order to negotiate an ‘organised space’ at European level; UNICE does not andgets along quite well with a high degree of organisational fragmentation within a‘deregulated space’. At present, existing structures are very heterogeneous. There aresome sectors without any representative employers’ organisations (like the publicsector), others with existing associations that are hardly willing to negotiate (like inengineering), and few with social partners being ready to negotiate and concludeframework agreements (like construction or transport). As far as instruments of inter-est representation are concerned ETUC prefers strict and binding regulatory forms ofmarket forces (first of all Directives) whereas UNICE is only interested in non-bindingand soft instruments (such as joint opinions, guidelines, recommendations and codesof conduct).

The judgement of Weber referring to the ‘old’ structure is still correct: ‘On the whole,the European sectoral social dialogue has so far failed to fulfil the original goal set bythe European Commission, namely that it contributes to the development of a Euro-pean system of industrial relations and the formulation of a European collective agree-ments at sectoral level’ (Weber, 2001: 129). An incremental patchwork and highdiversity across sectors constitutes the most likely scenario for the future. In the shortterm, lobbying will remain the main activity of social partners. Only in the mediumterm might social dialogues serve as an instrument for the development of ‘European’industrial relations in some, comparatively internationalised sectors. The Commissionwill remain fairly reluctant to launch initiatives because of internal fragmentation ofinterests between its DG’s as well as its limited resources.

New modes of governance and social dialogues: the open method of co-ordination

Predominant modes of governance have changed several times throughout the historyof the EU. The decisive question is whether new modes of governance, especially theopen method of co-ordination recommended by the Commission and the High LevelGroup on Industrial Relations (European Commission, 2002), will stimulate or blockthe future development of social dialogues.

Traditional strategies of strict and encompassing ‘upward harmonisation’ wererather ambitious in terms of intended, uniform degrees of social integration butproved to be impossible to materialise throughout the 1970s and early 1980s. Majorlegal and institutional differences between member states continued to exist; una-nimity in the Council of Ministers was necessary for political decision-making butimpossible to reach because of lasting opposing interests between member states.Therefore, closed concepts of homogeneity and coherence had to be abandoned.

Since the mid/late 1980s, concepts of ‘mutual recognition’ of existing national stan-dards as well as the introduction of only ‘common basic or minimum standards’ have


been developed. These strategies are less ambitious but more realistic than their pre-decessors. It is in this way that institutional peculiarities as well as ‘customs and prac-tices’ existing at national level are taken into regard and mutually recognised. MemberStates have to implement these ‘soft’ European regulations within given periods oftime, but are free to choose their own appropriate means and instruments.

In contrast to their unsuccessful predecessors these more ‘flexible’ and more realis-tic concepts have managed to cope with some lasting problems and closed regulatorygaps that were related to the single market project (like European Works Councils) or, to be more precise, the Single European Act and the Social Charter. They have,however, definitely not solved all other issues of general social policy and specificindustrial relations. Voluntarism, neo-liberalism and laissez-faire are catch-words todescribe this specific mode of regulation. Last but not least, under the political headingof the ‘principle of subsidiarity’ the secular shift from substantial to procedural formsof regulation or from materialisation to proceduralisation has been completed.

Since the mid 1990s, a new and most likely less ambitious kind of regulation, the‘open method of co-ordination’ (OMC), has become more important. OMC has beenof major importance within the European Employment Strategy that was, first of all,introduced into the Amsterdam Treaty and, later on, further developed and opera-tionalised within the so-called ‘Luxembourg process’ (Goetschy, 1999, 2003). Accord-ing to official statements since the Lisbon summit in 2000 (European Council, 2000)OMC is supposed to play a crucial role in heterogeneous areas of social policy (amongothers, social protection including pensions, health care, immigration and social inclu-sion). Industrial relations and specifically social dialogues could constitute importantexamples for its application. The question is, of course, if this constitutes a realisticperspective.

Focal elements of this mode of regulation include the following (De la Porte andPochet, 2002)

• The definition of broad, European-wide public policy goals and political priori-ties in terms of guidelines and pillars.

• The establishment and regular revision of national action plans as country-specific instruments for detailed implementation of these common objectives atthe level of individual member states.

• Participation and integration of various actors of civil society, in our case socialpartners, at European as well as national level in all phases of these processes.

• Regular compilation and submission of national reports concerning strategies ofimplementation and national degrees of goal attainment.

• Assessments and evaluation that include comparisons between Member States bythe Commission in its annual joint reports.

• Various suggestions for ‘benchmarking’ and intensified exchange of ‘best prac-tices’ between participants.

• A system of multi-lateral surveillance or monitoring (‘peer review machinery’)including public, but non-binding recommendations for strategies of memberstates.

• The iterative establishment of policy loops and ongoing opportunities for mutualand repetitive learning processes instead of the production of single events suchas Directives.

Thus, OMC covers all stages of the policy cycle and creates variable or ‘flexible’ pro-cedures. This new method provides various mechanisms for vertical as well as hori-zontal co-ordination and voluntary recommendations but not at all opportunities forformal sanctions. Therefore, it constitutes a typical ‘soft law’ instrument for co-ordination that is rather different from ‘hard law’ instruments of regulation, first of alltraditional legislation. Only the latter include, almost by definition, binding sanctions,such as the regulatory regime of the European Monetary Union (EMU) and the Pro-tocol to the Stability and Growth Pact defining limits for short-term (three per cent ofGDP) as well as long-term (60 per cent of GDP) financial deficits and debts. If memberstates violate these quantitative criteria they face not only public recommendations


but, in a later stage, even financial fines. Last but not least, OMC preserves existingnational sovereignty and heterogeneity of ‘customs and practices’ instead of aimingat high degrees of convergence, not to mention uniformity, across member states.Therefore, it is attractive for the vast majority of member states as well as from anintergovernmental perspective.

It is, of course, much too early for a final assessment of this new approach. The solu-tion of methodological problems, among others of benchmarking and the constructionof valid indicators, needs time (De la Porte, 2002a; Sisson et al., 2002); substantivetopics, such as target setting and identifying best practices, including their transfer-ability from one member state to others, are of crucial importance. At least for the timebeing major caveats remain: OMC might produce not only more but also effectiveresults in some policy areas and/or member states than in others (De la Porte, 2002bfor some evidence). Its preliminary results in the most prominent area of application,the European employment strategy, are at least mixed (Goetschy, 2003; Keller, 2003).All available empirical evidence concerning social dialogues demonstrates that theCommission’s implicit or sometimes even explicit threat of legislative action consti-tutes a necessary prerequisite for maintaining or increasing social partners’ incentivesto take voluntary action.

The Commission remains the key actor. Independent observers argue:

It is very important to see the Commission reacting on failures to negotiate in the social dialogueby pushing forward its own proposals. Only if that remains the line will the employers realise thatthey cannot simply refuse collective bargaining in the social dialogue, which they otherwise mightbe inclined to do. Given the absence of industrial muscle of the trade unions in the European SocialDialogue this is one of the few effective pressures which can be brought to bear on employers inthe present circumstances (Jacobs and Ojeda-Aviles, 1999: 59).

Negotiations between social partners ‘in the shadow of the law’ indicate their pursuitof non-parallel or even opposing self-interests and is rather different from the strictco-operation of public authorities and national governments within OMC procedures.In other words, the application of OMC as a means of self-regulation by ‘both sidesof industry’ is restricted to consensual topics with common interests and shared goals.Issues of health and safety constitute a prominent, in the meantime well establishedexample for this constellation of interests. This does not mean, however, that OMC is well suited for core issues of industrial relations. Whether it really creates ‘anextremely promising way forward’ (COM (2002) 341 final) remains to be seen.

‘Policy learning’ or ‘learning from each other’ constitute fairly complicated effortsto the successful implementation of OMC because major legal-institutional differencesbetween member states continue to exist. At present, available opportunities are over-estimated in quantitative as well as qualitative terms. Furthermore, within processesof purely voluntary co-ordination there is no mechanism to enforce the compliance ofall participants—and, thus, to guarantee the effectiveness of the new regulatory device.Last but not least, the present preference for OMC could be interpreted as an indica-tor of the Commission’s continued weakness in sensitive policy areas where it pos-sesses neither political power nor regulatory competence to establish binding rules ofconduct or to install a certain standardisation of conditions. The Commission’s origi-nal reluctance to accept OMC as a new and general mode of European governance isunderstandable for certain reasons of self-interest (COM (2001) 428 final). Last but notleast, the exact relationship between OMC and other modes of regulation (such as tra-ditional legislation) has not been clarified. Are they supposed to constitute alternativesor complements?

OutlookAll future developments of social dialogues will depend on action taken by key actors,the social partners as well as the Commission. The empirical evidence of the pastdecade we have presented in this article hardly justifies any far-reaching expectations.Significant contributions of the social dialogues either to the realisation of Delors’


‘social dimension of the internal market’ or, in more recent terminology, the Commis-sion’s ‘European social model’, have been and will remain limited. In more generalterms, the developments of social dialogues support the conclusion that social inte-gration has always been lagging behind economic integration. It is rather unlikely thatthis considerable gap will narrow in the future. The opposite development could evenbe the case because economic integration has increased in speed throughout the 1990swhereas progress in social integration has remained slow and limited.

Towards the end of 2001, shortly before the summit of Laeken took place, the socialpartners agreed on a ‘joint declaration’ concerning their future role in European gov-ernance (European Social Partners, 2001). The future should consist more ofautonomous, bipartite dialogue of the social partners on a legally non-binding andpurely voluntary basis than of tripartite concertation including European publicauthorities and the conclusion of binding framework agreements. Furthermore, theyagreed to draw up a multiannual work programme (2003–2005) for their moreautonomous, independent social dialogue instead of purely ad hoc reactions from thesocial partners to initiatives from the Commission. Soft strategies and instruments,such as OMC or benchmarking, should be used more frequently. In late 2002 at a socialdialogue summit the social partners presented their ‘joint work programme’ andannounced the future use of a ‘spectrum of diversified instruments such as Europeanframework agreements, opinions, recommendations, statements, exchanges of experi-ence, awareness-raising campaigns and open debates’ (ETUC 2002).

The decisive question is, of course, whether these most recent arrangements will beable to establish the nucleus of a ‘new dynamism’ and launch a new era for interpro-fessional social dialogues within the ‘political machinery’. It is quite likely that moreactivities are going to take place but that their results will be less binding than in thepast under the Maastricht social policy regime. In other words, various forms of quan-titative ‘widening’ or broadening must not necessarily be positively correlated withforms of qualitative ‘deepening’ or intensification. The semi-official formula of a‘deepening and widening’ of integration will not necessarily prove to be an accuratedescription of future developments.

A complete U-turn back to the pre-Maastricht status of non-binding recommenda-tions and the period of ‘joint opinions’ is also likely. This strategic change of direc-tion will be reinforced by the consequences of the Eastern enlargement of the EU.Further integration will be more difficult to achieve because associations are eitherweak or do not exist in the accession states (Kohl and Platzer, 2003; Ghellab andVaughan-Whitehead, 2003). This ‘social dialogue gap’ creates problems for the necessary institutional adjustments of sectoral social dialogues. Therefore, the alreadyexisting degree of diversity could even increase despite the fact that all existing regu-lations are part of the acquis communautaire that has to be adopted by all candidatecountries.

With its monopoly on initiating regulation according to the Social Protocol the Com-mission has determined the direction and content of European social policy. It hasremained the most important political entrepreneur under the changed provisions forsocial dialogues despite the fact that the impact of the social partners increased to aconsiderable degree. In contrast to their predecessors of the late 1980s and early 1990s(the Commissions led by Delors) more recent ones, led by Santer and Prodi, haverefrained from new proposals of their own and have stressed the cautious, less far-reaching strategy ‘to consolidate and implement’ already existing results. They haveswitched from proposing the introduction of more and far-reaching social rights tomore practical topics like ‘modernising the workforce’ to be arranged by the socialpartners. Therefore, we have entered ‘an era of legislative abstinence’ and ‘newmodesty’ (Kowalsky, 2001: 51).

The renewed ‘principle of subsidiarity’ (Article 5) opts for private and strictly decen-tralised instead of public and relatively centralised action and regulation at the EUlevel. Under this direction and the frequent demands for more ‘flexibility’, most recentCommissions have tried to transfer the prime responsibility as well as the role of the‘driving force’ for the development of future social dialogues and social integration to


private corporate actors, or to be more precise, to the social partners (COM (2002) 341final constitutes a typical most recent example). This trend towards more and stricterself-regulation by the social partners has been launched despite the fact that the Com-mission has the legal task of promoting and facilitating the consultation of social part-ners at community level (Article 138) and has factually been the spiritus rector of allsocial dialogue initiatives.

Available evidence over more than a decade demonstrates, however, that socialpartners have not been able to exhaust their increased opportunities of action and toachieve a higher quality of ‘negotiated legislation’. So far, there is no convincing em-pirical evidence for the overtly optimistic official assumption that this establishedpolitical pattern is going to change in the future. Its occurrence is even more unlikelyin the diversified polity after the so-called eastern enlargement of the EU. Theseprocesses could easily result in the continuation of ‘regulatory minimalism’.

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Documents

Social dialogues—the state of the art a decade after Maastricht