The Open Method of Coordination: A New Supranational Form of Governance?

* Research Officer, International Institute for Labour Studies (ILO).1 European Council, Lisbon Conclusions, BEU, 3-2000, point 5.2 European Council, Barcelona Conclusions, BEU, 3-2002, point 29.3 European Commission, Report of the High Group on industrial relations and change in the European Union

(2002, Employment and Social Affairs, Luxembourg).

The Open Method of Coordination: A NewSupranational Form of Governance?

Sabrina Regent*

Abstract: The open method of coordination (OMC) has emerged as a new policy instru-ment in the European context. While it was initially confined to the employment field, ithas recently been applied to several other areas. The aim of this article is to provide areconstruction of the OMC. The focus is in particular on the structure and process of theOMC, but also on the new approach to law that it proposes. The OMC differs from tra-ditional EC methods but also from traditional soft-law mechanisms. In order to highlightthose original features, the paper analyses the key steps in the evolution of a strategy, theEuropean employment strategy, which slowly became a new mode of governance.

I Introduction

The ‘Open Method of Co-ordination’ (OMC) was first introduced in the Europeanarena at the Lisbon Summit of March 2000. In order to achieve the European Union’sgoal of becoming ‘the world’s most competitive and dynamic knowledge-basedeconomy, capable of sustainable economic growth with better jobs and greater socialcohesion’,1 a new method of intervention was needed. It was in this context that theOMC was presented as the appropriate tool for an integrated approach toward achiev-ing an economic and social renewal. Since its introduction, it has gained ground inEuropean policy. Many areas, previously considered to fall under the sovereignty ofMember States, are now tackled at a European level. Whilst this method was firstdesigned to promote a European problem-solving approach in the field of employment,it has now expanded to several other sensitive fields. For instance, the fight againstpoverty and social exclusion, as well as pensions, immigration, education and youthissues. Social partners at European level have also been called to develop their ownexperience of OMC. They are now in charge of benchmarking best practices regard-ing lifelong learning2 and the quality of industrial relations in Europe.3

The OMC is thus an original tool that is interesting to examine. Its novelty derivesmostly from the approach to legislation that it allows. The objective is not to prescribe

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uniform rules or to deliver policy outcomes. Instead, it organises a learning process inorder to promote the exchange of experiences and best practices. To this extent, itclearly marks a departure from traditional community methods4. The emphasis shiftsfrom harmonisation or mutual recognition, to a soft law mechanism designed to achievesome convergence of results while permitting a diversity of national policies.5 Never-theless, even if the OMC cannot formally be defined in terms stronger than soft law,6

it differs in many essential respects from soft law measures such as codes of conduct,recommendations or resolutions. The OMC is not just a provision, but is, in addition,a process. It provides a soft framework for hard law interventions and has its ownmethods of sanctioning. It is flexible enough to be adapted to complex realities, but,at the same time, establishes a follow-up system that significantly limits the scope forcircumvention. Its innovative character therefore also potentially provides a new modelof governance.7

In order to highlight those two features, a historical reconstruction emerges as themost useful analytical tool. On the one hand, to obtain a fully-fledged comprehensionof this new regulatory instrument, it is necessary to look at the whole development ofthe European Employment Strategy. It is in the field of employment that this methodfinds its premises and was first developed. With this background, it is possible to seethe origins of the different components of OMC and thus to better understand thepeculiarities of this soft mechanism. On the other hand, the OMC shapes a type ofgovernance that relies on a dynamic that is interesting to examine. The OMC is com-posed of different phases, each one deeply marked by a common feature: the centralrole played by a supranational actor. Its position, ‘above the States’, makes possible acoordination of national policies through a system of benchmarking, best practices andrecommendations. While this method does not imply any transfer of competences fromthe national towards the European level, it nonetheless empowers the European insti-tutions with very specific tasks central to the whole process. In this sense, by the term‘supranational’ we do not intend to refer to the longest-running debates about Euro-pean integration between intergovernmentalism and supranationalism.8 Instead, our

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4 J. Scott and D. M. Trubek, ‘Mind the gap: Law and New Approaches to Governance in the EuropeanUnion’, ELJ, 2002, 4; J. Cohen and C. F. Sabel, ‘L’Europe sociale vue des Etats-Unis’, Semaine SocialeLamy, 2002, n. 1095, p. 14.

5 F. Scharpf, ‘European Governance: Common Concerns vs. The Challenge of Diversity’, Jean MonnetWorking Paper No.6/01, Symposium: Mountain or Molehill? A Critical Appraisal of the CommissionWhite Paper on Governance, 2001, http://www.jeanmonnetprogram.org/papers/papers01.html, at 9.

6 We refer to ‘hard law’ to design measures that have a legally binding effect and to contrast their situa-tion with ‘soft law’ measures whose legal effect is more uncertain. On this notion see: F. Snyder, Soft lawand institutional practice in the European community (1993, European University Institute, W.P. N.93/5);K. C. Wellens and G. M. Borchardt, ‘Soft law in the European Community law’ (1989) ELR 267–319.

7 To define ‘governance’ we will refer to the definition given by C. Scott: ‘the rich concept of governancerecognizes widespread dispersal of the key resources relevant to the exercise of the power amongst bothpublic and private actors, and uses this insight both to understand processes by which we are governed,and to provide a basis to the programming relations and institutions of governance so as enhance theircapacity to deliver particular desired outcomes’. C. Scott, ‘The governance of the European Union: thepotential for multi-level control’, (2002) ELJ 60.

8 For an overview on those theories and on more recent ones see: P. Craig, ‘The nature of the Commu-nity: Integration, Democracy, and Legitimacy’, in P. Craig and G. de Búrca, The evolution of EU law(Oxford University Press, 1999), 1–54, H. Wallace, ‘The institutional setting, Five variations on a theme’,in H. Wallace and W. Wallace, Policy-making in the European Union, fourth edition (Oxford UniversityPress, 2000) 28–33.

http://www.jeanmonnetprogram.org/papers/papers01.html

contribution aims to give a clear picture of the dynamics of this whole process by recall-ing the focal moments that slowly led to the framing of a strategy that was first con-fined to the employment field and, later, became a method applicable to any sensitivearea.

II From the White Paper to the Dublin Summit: The Blueprint for aEuropean Employment Strategy

An historical reconstruction of the European Employment Strategy must have as itspoint of departure the Delors White paper, Growth, Competitiveness and Employment.9

As its title conveys, the White paper is an ambitious and concerted response to one ofEurope’s greatest challenges: combating unemployment.10 In the context of a highlyintegrated market and in light of monetary union, the problem of unemployment in Europe is a burning one. The Delors Commission, thus, set out a medium-term strategy for both restructuring economies and creating jobs. In this document, theEuropean Commission advocates no ‘miracle cure’11 for unemployment. Rather, theWhite paper embodies a ‘lucid analysis of the strengths and weaknesses of Europeaneconomies’12 and provides a ‘macroeconomic reference framework’13 to guide MemberStates.

The key idea underlining this document is that unemployment in Europe hascommon roots and can be best addressed through a common scheme of action, evenif the Union currently lacks legal competence in this area. In this context, the WhitePaper underlines the close interrelation between growth, competitiveness and em-ployment. To pull Europe out of recession, a combination of macroeconomic andstructural policies was put forward.14 As the Commission emphasised, reducing unemployment would reinforce many European social objectives.15 In an integratedmarket, social justice and solidarity should be essential elements of economic policies.Consequently, and perhaps surprisingly, the White Paper contains explicit numericaltargets for job creation: 15 million jobs to be created within five years and the mobili-sation of 600 billion ecu to this end.16 Quantitative targets will likewise be reflected in the European Employment Strategy pronouncements from the Lisbon process onward. This expansionist agenda, which some commentators characterise as the‘Commission’s “Keynesian” solutions’,17 was rejected by Member States reluctant

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9 European Commission, Growth, Competitiveness and Employment—The challenges and ways forward intothe 21st century,White Paper, Bull. E.C., Suppl. 6/93, (1993, Office for Official Publications).

10 The opening sentence of the White Paper asks the question ‘Why this White paper?’ and gives the answer:‘The one and only reason is unemployment’ White Paper, at 9.

11 Ibid., at 9.12 ‘White paper on Growth, Competitiveness and Employment: a fervent appeal for European cohesion’,

(1994) 133 International Labour Review 1 at 120.13 White Paper, at 12 and 39–53.14 White Paper, 48–53. The Commission also addresses recommendations regarding the relevant sectors to

invest, for instance the trans-European networks. See C. Turner, ‘Trans-European Networks: The WhitePaper and Beyond’, (1994) Intereconomics 253–258.

15 European Commission, European Social Policy—a way forward for the Union, COM (94) 333, at 17.16 White Paper, at 11.17 D. Ashiagbor, ‘EMU and the Shift in the European Labour Law Agenda: From “Social policy” to

“Employment policy” ’ (2001) ELJ at 318. See also C. Barnard and S. Deakin, ‘A year living dangerously?EC Social Rights, Employment Policy and EMU’, (1999) IRJ, at 356; P. Teague, ‘Reshaping employmentregimes in Europe: Policy Shifts Alongside Boundary Change’ (1999) Journal of Public Policy 37.

to accept the substantial expenditure required and the erosion of their budgetary independence.18

However, the White Paper was important in providing a springboard for the subse-quent European Employment Strategy. First, it was an initial attempt at a Europeananswer to one of the main scourges affecting European citizens and the credibility ofthe European integration.19 By bringing the employment question into a field previ-ously within the competence of single national systems, macroeconomic policy aimingto reach full employment was taken into consideration for the first time.20 Although thevigorous approach announced has barely been implemented,21 the White Paper had the merit of placing employment policy within the context of economic integration andmonetary union. It marks a common awareness of the compelling need to give a European dimension to the fight against unemployment.22

Following the White Paper, employment became a prominent part of the agenda ofevery subsequent European Council. Moreover, while this document is ‘neither a sourceof obligations, nor a legislative programme, nor yet a plea for broader Union powers’23

but rather a ‘moral commitment by Member States to follow the development guide-lines it contains’,24 it nonetheless constitutes an important piece of work. The WhitePaper introduces a shift of method ‘from harmonisation to the definition of pertinentpolicies’25 and thus opens the way to a Community approach by means of soft law.26

It is worth noting that the procedural approach, which is a central component of softlaw, can be considered as a reaction from Member States to the expansionary propos-als advocated by the White Paper. The lack of consensus on the interventions at thecore of the White Paper is arguably one of the defining elements of the future Euro-pean procedural approach to employment matters.27

The approach suggested by the Delors White Paper to stimulate job creation tookclearer shape at the Essen European Council. The ‘Essen priorities’, as they have beenlabelled, follow the main axes drawn by the Commission in 1993, but translate theminto five priorities. Their underlining idea is that the high level of unemployment facedby all European countries is closely linked to the ‘gap between the skills requirementsand skill formation’.28 Member States are driven to organise their employment policiesin order to tackle unemployment around a set of priorities, as follows:



18 J. Goetschy, ‘The European Employment Strategy: genesis and developments’, (1999) 5 EJIR at 120.19 A. Barrau, Rapport d’information déposé par la délégation de l’Assemblée Nationale pour l’Union

européenne sur la stratégie européenne en faveur de l’emploi, Assemblée Nationale, n. 904, 14.05.1998,p. 27.

20 J.-C. Barbier, ‘La stratégie européenne pour l’emploi: limites et potentialités’, (1999) Problèmeséconomiques 20.

21 J.-C. Barbier and J. Gautié (eds), Les politiques de l’emploi en Europe et aux États-Unis (1998, Cahiersdu Centre d’études de l’emploi, n.37).

22 R. Toulemon, ‘L’Europe et l’emploi’ (1996) RMCUE 485–488.23 ‘White paper on Growth, Competitiveness and Employment: a fervent appeal for European cohesion’,

op. cit., at 21.24 Ibid., at 120.25 A. Barrau, op. cit., at 34.26 S. Sciarra, ‘The employment title in the Amsterdam Treaty: a multi-language legal discourse’, in D.

O’Keeffe and P. Twoney (eds), The Treaty of Amsterdam (Hart, 1999) p. 158 ff.27 D. Ashiagbor, op. cit., at 322.28 European Commission, The European Employment Strategy: recent progress and prospects for the future,

COM(95) 465 final, Brussels, 11.10.1995, at 19.

Priority 1: Improving employment opportunities for the working populations by pro-moting investment in vocational training;

Priority 2: Increasing the employment intensiveness of growth;Priority 3: Reducing non-wage labour costs, particularly for non-qualified workers;Priority 4: Improving the efficiency of employment policies by avoiding measures that

negatively affect the availability for work and by replacing passive policiesfor active ones;

Priority 5: Improving measures relating to groups most affected by unemployment(women, youth, older employees, long-term unemployed). These commonobjectives have then to be translated by each Member State into a multi-annual employment programme to be reported to the Commission. TheEmployment and Social Affairs Council, the ECOFIN Council29 and theCommission are then in charge of conducting a follow-up procedure byexamining the national employment policies and drafting a Joint Report tothe European Council. In so doing, the Essen summit sets the frameworkof a European strategy on employment. The two major innovations intro-duced in 1994, i.e. a European definition of employment objectives and mul-tilateral employment monitoring of the implementing process, will remainas milestones for the European strategy in this field.30

In spite of its importance in the context of the mid-1990s, the ‘Essen strategy’ proved,nonetheless, to be insufficient. The intention to favour convergence of national employ-ment policies along the lines of the Essen recommendations failed,31 probably due to the lack of quantified and measurable objectives, combined with an insufficient political consensus.32 If soft law appeared as the emerging discourse in order to tackleunemployment, the search for the ‘right model’ combining non-binding tools with aneffective Community employment policy was still left open. In this period, soft law wasless a legal tool promoting convergence of different policies than an instrument tomanage social policy pluralism.33 The Essen strategy did, nonetheless, pave the way forthe subsequent initiatives and can, therefore, be considered ‘the blueprint for the for-malised procedures set out in the Amsterdam Employment Title’.34 At this point, theCommission managed at least to put the employment question at the centre of thepolitical stage. To this end, the new head of the European Commission, Jacques Santer,tried to give new impetus to labour markets reforms as envisaged in the White Paper,by proposing a Confidence Pact.35 The idea was to provide a complement to the



29 The Ecofin Council is attended by the Economic and Financial Affairs Ministers of the 15 EU MemberStates and generally meets once a month in Brussels or Luxembourg. This Council formation adoptsmeasures needed to implement the Treaties’ provisions in this area.

30 J.-L. Sauron, ‘Le Conseil européen extraordinaire de Luxembourg des 20 et 21 novembre 1997’, (1997)RMCUE, at 649; J.-C. Barbier, ‘La stratégie européenne pour l’emploi: limites et potentialités’, op.cit.,at 21.

31 J. Goetschy, ‘The European Employment Strategy: genesis and development’, op.cit., at 122.32 A. Barrau, op. cit., at 45 ff.33 E. Szyszcak, ‘The evolving European Employment Strategy’, in J. Shaw (ed.), Social Law and Policy in

an Evolving European Union (2000, Hart) at 213.34 J. Kenner, ‘The EC Employment Title and the “Third way”: making soft law work?’, (1999) IJCLLIR at 48.35 European Commission, Action for Employment: a confidence pact, B.E.U., Suppl. 4/96, Brussels, 1996.

D. Ashiagbor describes the Confidence pact as ‘an instance of the use of “soft-law” measures, which nev-ertheless placed informal pressure on the Member States to coordinate their employment policies’. Inthis respect it can be considered as anticipating the Amsterdam Employment guidelines. D. Ashiagbor,op. cit., at 320.

Stability and Growth Pact36 by re-launching all the measures that could not be adoptedin the past. One of the means suggested was to reach a full mobilisation of all stake-holders in the employment strategy, in particular the social partners.37 Nevertheless, inspite of the expressed willingness of the European Community to deal with unem-ployment, concrete instruments converting words into action were still missing.38

Subsequent European Council Summits (Cannes,39 Madrid,40 Florence41 andDublin42) further sharpened the Essen employment strategy. At the Cannes Summit,the Council reaffirmed the fight against unemployment as a high priority task of theCommunity and called on Member States to build on efforts initiated in compliancewith the Essen strategy priorities. The framework for developing national measures forjob creation was deemed appropriate, but had to be refined. The Madrid EuropeanCouncil gave new impetus to the employment strategy identifying, among the Essenpriorities, specific spheres of action that Member States were urged to regard as pri-orities, i.e. the long-term unemployed, the young and women. The Council also empha-sised the necessity to establish common indicators in order to improve the monitoringprocedure endorsed by the Commission. The Dublin European Council carried theprocess further by inviting the Commission and Member States, especially in the frame-work of the new Employment and Labour Market Committee and the Economic PolicyCommittee, to develop instruments for effective monitoring and evaluation of employ-ment and labour market policies and identification of good practices. In other words,it proposed complementing the Essen priorities with common employment indicatorsand benchmark possibilities in order to strengthen a procedure still too soft to bringto any convergence.43

III The Amsterdam Treaty: The Institutional Framework of the EuropeanEmployment Strategy

The institutionalisation of the European Employment Strategy marked a significantturning point in the history of European integration. To a certain extent, nevertheless,the inclusion of an Employment chapter in the Amsterdam Treaty, even if highly significant, is less an innovation than the natural extension of this emerging soft law



36 Resolution of the European Council on the Stability and Growth Pact, Amsterdam 17.06.1997, O.J.C.E.of 28.08.97, C 236, p. 1. The preparation of the Stability and Growth Pact was requested at the Dublinsummit in 1996. The pact is mainly concerned with maintaining the stability of prices and ensuring thecontinuity of the budgetary disciplines according to the convergence criteria of the Maastricht Treaty.See A. Euzéby, ‘La communauté européenne face au défi de l’emploi’, (2001) RMCUE at 189.

37 See the position of ETUC in J. E. Dolvick, The ETUC and the development of social dialogue and Euro-pean negotiations after Maastricht, WP n.2/97, Arena, Oslo.

38 M. Colucci, ‘Alla ricerca di una strategia Europea per l’occupazione’, (2000) DL at 244.39 European Council, Cannes Conclusions, BEU, 6-1995.40 European Council, Madrid Conclusions, BEU, 12-1995.41 European Council, Florence Conclusions, BEU, 6-1996.42 European Council, Dublin Conclusions, BEU, 12-1996.43 P. Pochet underlines that the Dublin summit lead the Essen process further highlighting the need to act,

in the employment field, on the inadequacy between the training of the job seekers, and employees ingeneral, and the needs of the future information society. Nonetheless, this strong message goes togetherwith the statement that employment has to stay a matter of national competence. See P. Pochet,‘L’emploi après le sommet de Dublin’, (1997) RMCUE at 86 ff.

discourse. Several major elements contributed to the ‘constitutionalisation’44 of thisemerging soft law discourse.

Undoubtedly, one of the key ingredients was the existence of a political climatefavourable to the institutional consolidation of Community action in the employmentfield. The victory of the Labour Party in the United Kingdom and especially the arrivalof a new-left government in France determined to provide a counterbalance to theEuropean Monetary Union, were certainly significant.45 Whereas the Amsterdamsummit was initially intended to finalise only measures regarding the Stability andGrowth Pact, incoming President Jospin emphasised the need to prioritise the employ-ment issue on the European Agenda. Even if unequal attention was given to the singlecurrency as opposed to social policy concerns, Member States did, nonetheless, committhemselves to fight actively for job creation. Unemployment was openly reaffirmed asa common concern of both Member States and the European Community and its fighta matter that could actively be dealt with only by integrated action of different actorsat different levels.46 The political consensus reached at this particular moment in timeis thus one of the key factors to be mentioned when examining this path towards amore stringent framework for soft legislation.

A second element in the construction of a supranational employment strategy is thebody of practice already in use before Amsterdam, which was subsequently reflectedin the Employment Title. One such practice is the convergence process set up by theMaastricht Treaty for a European Monetary Union (EMU). The high rate of unem-ployment across Europe became a key question, in particular, after the completion ofthe second phase of EMU. The implementation of the convergence criteria led to rel-atively healthy public budget balances, creating fertile ground for promoting employ-ment as a priority in the principles and objectives of the Union. Moreover, the highlevel of economic integration reached with EMU inevitably highlighted the unsatisfiedquest for balance between economic and social objectives.47 Community interventionin the field of employment was, thus, expected. The links between monetary union andunemployment, European deregulation of public services and unemployment, decen-tralisation of undertakings in the framework of the common market and unemploy-ment became important political issues.48 As some commentators have observed, therewas, at this time, considerable domestic political pressure towards the development ofa EU employment strategy, whereas governments were looking for popular support formonetary integration. In such a context ‘whether these processes—unemployment and



44 C. Barnard, ‘EC “Social Policy” ’, in P. Craig and G. De Búrca, The evolution of EU law (1999, OxfordUniversity Press) at 486.

45 C. Aubin, ‘Comment Bruxelles traite du social: l’exemple de la stratégie européenne pour l’emploi’, (1999)Revue française des affaires sociales 4-4, at 114.

46 The desire to give major weight to the social objectives of the European Union was declared in the Ams-terdam European Council’s resolution on growth and employment which was aimed to be the politicalcounterbalance to the stability and growth pact. Resolution of the European Council on Growth andEmployment, Amsterdam, 16.06.1997, OJ CE of 2.08.1997, C 236, p. 3–4.

47 The inclusion of the Employment Chapter has to be seen against the background of the defeat of pro-posals for a centralized macroeconomic policy based on reflationary interventions. See C. Barnard andS. Deakin, ‘A year of living dangerously? EC Social Rights, Employment Policy and EMU’, op.cit., at359.

48 J. Goetschy, ‘Les nouveaux éléments sur l’emploi et le social: rattrapage, consolidation ou percée?’, in M.Telò and P. Magnette (sous la dir. de), De Maastricht à Amsterdam, L’Europe et son nouveau traité, (1998,Complex) 151.

convergence—were causally related became less important than whether they werelinked in public perception’.49 The inclusion of employment in the Treaty of Amster-dam was, thus, meant to lead to a new equilibrium between monetary policy and socialpolicy.50

But the further relevance of the EMU to the European Employment Strategy, as thelatter was shaped after 1997, lay in its provision for a methodology, for identifying apossible answer to the search for the ‘right model’ of intervention in the employmentfield. The mechanisms set up for employment policies borrow broadly from the eco-nomic policy model set up by Article 103 of the Treaty of Maastricht.51 The approachadopted relies on the definition of common objectives, leaving the appreciation of themeans used to reach the preset goals to a further evaluation.52 It introduces in theemployment field a leading principle with potential to bind national actors within acommon scheme of action, that is: coordination.53 The success of the convergencemethod adopted in the monetary sphere had, thus, the dual impact of inspiring mimicryand spilling over onto the employment field.54 Nevertheless, as distinct from the EMUmechanism, any recommendations issued on employment matters will not be binding,a factor that, as some commentators noted, called into question the ability to reducethe imbalance between monetary and political integration.55 The European Employ-ment Strategy does not provide for sanctions, which, in principle, represents a weak-ness compared to the mandatory regulation of the monetary system. Nevertheless, thiscoercive perspective could be misleading if one wants to grasp deeply the evolutionaryapproach, depicted by some commentators as a ‘revisionist approach’,56 to law repre-sented by the Amsterdam Employment Title. In the latter context, the focus switchedfrom a normative approach centered on legislative harmonisation and binding mea-sures, to social consensus where ‘a mix of “hard” and “soft” law is intended to estab-lish minimum standards at Community level while leaving a wide range of discretionto the Member States’.57 It introduces a new logic, ‘from management by regulation tomanagement by objectives’,58 which could be looked at as a possible alternative to tra-ditional ways of legislating, even in fields other than employment.59

The Employment Chapter has also to be read in relation to the practices already inoperation since Essen. It reflects extensively the two main approaches for promoting



49 C. Pierson, A. Foster and E. Jones, ‘The politics of Europe: (Un)employment ambivalence’, in B. Towersand M. Terry (eds), Industrial Relations Journal: European Annual Review 1997 (1998, Blackwell) at 7.

50 J. Goetschy and P. Pochet, ‘The Treaty of Amsterdam: a new approach to employment and social affairs’,Transfer, 3/97, 608.

51 Ibid., 609.52 C. Aubin, op. cit., at 114.53 S. Sciarra, ‘Integration through coordination: the Employment Title in the Amsterdam Treaty’, (2000)

The Columbia Journal of European Law at 221.54 C. Degryse and P. Pochet, ‘La politique européenne de l’emploi en 1999’, in Bilan social de l’Union

européenne, O.S.E., at 13.55 J. Goetschy and P. Pochet, ‘The Treaty of Amsterdam: a new approach to employment and social affairs’,

op. cit., at 609.56 J. Kenner, op. cit., at 34 ff.57 Ibid., at 40.58 M. Biagi, ‘The impact of European Employment Strategy on Role of Labour Law and Industrial Rela-

tions’ (2000) IJCLLIR at 161.59 M. Biagi underlines that the ‘European employment logic would be preferable when the object of the

Community action is not fundamental rights’, M. Biagi, loc. cit., at 161.

employment set in motion by the Essen strategy: the definition of common objectivesand the evaluation of their implementation by a multilateral monitoring process. Thus,we can see that employment was on the European agenda even before the Intergov-ernmental Conference of 1996 prior to the Amsterdam Treaty.60 It is an ‘incrementalapproach where progress is measured in the reality of practice before being inscribedin institutional texts’.61 Thereby, the new powers given to the Community at Amster-dam have, thus, to be looked at in the context of a dynamic initiated some years before,reflecting the common concern of Member States of the need to tackle unemployment,but also the common consensus that the Essen process proved to be insufficient.62 Thisdynamic represents a vertical consolidation of the emerging soft law discourse,63

wherein, henceforth, coordination will be the key component of a renovated EuropeanEmployment Strategy.

A further element to add in this interpretative picture is certainly the ambiguousstructure of Title VIII. This ambiguity is due to the fact that the Employment Titledoes not correspond to a ‘communautarisation’64 of employment policies. It is an openstructure based on an innovative dynamic that relies on the dialogue between differentactors at different levels,65 and on an evolutionary approach trying to reconcile poten-tially conflicting policy themes.66 The leading principle is not harmonisation, as it isopenly mentioned in the Treaty,67 nor is it convergence. The philosophy originally pro-posed by the Commission is simply coordination.68 But, while employment policiesremain a matter of national responsibility, the Amsterdam Treaty legitimises commu-nity action in employment matters. With the introduction of the principle of coordi-nation, the European Commission prevents Member States from acting independentlyin their employment spheres.69 The whole dynamic leaves an open space to a centralactor, the Commission, upon which much of the future progress, development and orientation of the process will depend.

In this context, soft law appears as the most appropriate tool to frame communityaction in the employment field. The purpose of Community intervention is not to con-strict actors within a prescriptive framework, but to add value by organising them inorder to achieve shared policy ends. The flexibility of soft law gives the opportunity toCommunity institutions to stimulate these different actors by building on or aroundcommon objectives without directly setting legal obligations.70 Rather than relying onemployment law, the focus is placed instead on a multi-tiered policy making. Moreover,



60 J. Goetschy, ‘Les nouveaux éléments sur l’emploi et le social: rattrapage, consolidation ou percée?’,op. cit., at 152 ff.

61 J. Goetschy, ‘Quelle place pour l’emploi dans la politique sociale communautaire’, in L’année sociale 1996,(1996, Institut de Sociologie, Université libre de Bruxelles).

62 J. Goetschy, ‘The European Employment Strategy: genesis and development’, op. cit., at 122.63 E. Szyszczak, op. cit., at 198.64 C. Degryse and P. Pochet, op. cit., at 15.65 S. Sciarra, ‘The Employment title in the Amsterdam Treaty: a multi-language legal discourse’, op. cit., at

157 ff.66 E. Szyszczak, op. cit., at 204.67 Art 129(2) TEU.68 S. Sciarra introduces a further distinction between cooperation (Art 127) and coordination (Art 125)

which have to be conceived as two different legal instruments even if they are running parallel and leadingin the same direction.

69 M. Biagi, ‘The Implementation of the Amsterdam Treaty with regard to employment: Co-ordination orConvergence?’, (1998) 14 IJCLLIR 4, at 325.

70 J. Kenner, op. cit., at 58.

the flexibility of soft law facilitates linkages between conflicting themes. It addressesthe highly controversial question of the role that social policy should play in Europeaneconomic integration, especially in relation to EMU.

The use of soft law as a tool to intervene in sensitive policy areas and bring togetherthe contributions of the different actors—institutional and quasi-institutional—rele-vant to macroeconomic and social policies, comes out quite clearly from the text of theTreaty. The idea is to make them interact and contribute to the achievement of thecommon goal of reducing unemployment.

The task to achieve and maintain a ‘high level of employment and social protection’,introduced by Article 2 of the Maastricht Treaty, is brought into effect by Title VIII ofthe Amsterdam Treaty. The core structure of the process launched at Amsterdam isreflected in Article 128(1)–(5), where the different key components of this reneweddynamic are exposed. First, Article 128(1) EC charges the European Council to adoptconclusions on the employment situation within Member States on the basis of a jointannual report from the Commission and the Council. The second stage71 consists ofthe drafting of the annual employment guidelines, representing ‘the driving force of thecoordination process’.72 While under the traditional scheme, the primary responsibilityfor the formulation of proposals is vested in the Commission and the responsibility fortheir adoption vested in the Council, the scheme governing the elaboration of the guide-lines is quite atypical. Several actors, including the European Parliament, the Economicand Social Committee, the Committee of the Regions and the Employment Committee,are currently involved in consultations on the formulation of the guidelines with whichMember States will have to comply in their employment policies. As the text of theTreaty makes clear, these shared competences between Member States and the EU willhave to be discharged in a manner consistent with the broad economic guidelines,taking into account of the need for compatibility.73 But these objectives have to beachieved through a discursive path, compelling different actors into the dialogue.

An interesting actor in this regard, embodying the entire logic of the process andsupporting the Community in its coordination tasks, is the Employment Committee.74

This advisory body replaces the Employment and the Labour Market Committee(ELMC)75 set up in 1997, the main objective of which was to assist the Council in the



71 Art 128(2) TEU.72 J. Goetschy and P. Pochet, op. cit., at 609.73 This need for compatibility is clearly mentioned also in Article 125 which states: ‘Member States and the

Community shall, in accordance with this Title, work towards developing a coordinated strategy foremployment and particularly for promoting a skilled, trained and adaptable workforce and labourmarkets responsive to economic change with a view to achieving the objectives defined in article 2 of theTreaty on the European Union and in article 2 of this Treaty’ and Article 126 which provides: ‘MemberStates, through their employment policies, shall contribute to the achievement of the objectives referredto in article 125 in a way consistent with the broad guidelines of the economic policies of the MemberStates and of the Community adopted pursuant to article 99 (2)’.

74 The Member States and the Commission each appoint two members of the Committee and they mayalso appoint two alternates. The members of the Committee and the alternates are selected from amongsenior experts possessing outstanding competence in the field of employment and labour market policyin the Member States. The Committee may call on external experts where appropriate to its agenda. SeeCouncil Decision 2000/98/EC of 24 January 2000 establishing the Employment Committee, OJ L 29,04.02.2000, 21–22.

75 The Employment Committee is provided by Article 130 of the Amsterdam Treaty and has been estab-lished by a Council Decision in the year 2000. See Council Decision 2000/98/EC of 24 January 2000establishing the Employment Committee, op. cit.

employment field.76 The mission of the Employment Committee is to monitor theemployment situation and employment policies, formulate opinions and contribute tothe preparation of the process referred to in Article 128.77 In fulfilling its tasks, theCommittee should in particular contribute to ensuring that the Employment Strategy,macroeconomic policy coordination and the process of economic reform are formu-lated and implemented in a consistent and mutually supportive way.78 It must strive topromote synergy between social and economic policies, while also discharging its func-tion under Article 130(4) of consulting management and labour. The EmploymentCommittee will have to achieve improved coordination through a consolidation of itsrelations with committees79 involved in the coordination of economic policies, i.e. theEconomic and Financial Committee and the Economic Policy Committee, and thesocial partners represented in the Standing Committee.80 The Employment Committeecan, thus, be seen as an institutionalised bridge between different forums composed ofexperts, national and community institutional personalities and social partners,81 par-ticipating in discussions on the compatibility and interdependence of the broad eco-nomic policy guidelines and the employment policy guidelines. According to somecommentators, the Amsterdam Treaty, in this respect, contributes to a further institu-tionalisation of social dialogue by giving an important role to the social partners in theelaboration of the Employment Strategy.82 This committee provides an importantmeans of ‘keeping close track’ of employment trends and briefing the Council onthem.83

The next stage of the process takes place at the national level where Member Statesprepare an annual report for submission to the Council and the Commission, on theprincipal measures taken to implement their employment policies.84 At this point, thedynamic shifts again to the Community level, where follow-up activities are carried out.First Article 128(4) establishes benchmarking competences for the coordinator whose



76 For a short explanation of the mission of these committees see:http://europa.eu.int/scadplus/leg/en/cha/c10239.htm

77 Art 130 TEU.78 Preamble (3) of the Decision 2000/98/2000.79 Preambles (4) and (5) and Art 5 of the Decision 2000/98/2000.80 The Standing Committee is a tripartite forum composed by the social partners, the Commission and the

representatives of both ECOFIN and the Social Affairs Council. It has been reformed in 1999 by aCouncil Decision in order to play a more pivotal role in the definition of the European EmploymentStrategy. According to Article 2 of this Decision ‘the task of the Committee shall be to ensure, in compliance with the Treaty, and with due regard for the powers of the institutions and bodies of theCommunities, that there is continuous dialogue, concertation and consultation between the Council, theCommission and the social partners in order to enable the social partners to contribute to the coordi-nated employment strategy and to facilitate the economic and social objectives of the Community asreflected in both the Employment Guidelines and the Broad Economic Guidelines’. See Council Deci-sion 1999/207/EC of 9.03.1999 on the reform of the Standing Committee on Employment and repeal-ing Decision 70/532/EEC, at 33–35. For a brief historic of the Standing committee since its creation in1970 see: http://europa.eu.int/scadplus/leg/en/cha/c/10233.htm

81 On the involvement of the social partners in the Employment strategy see: D. Foden, ‘The role of thesocial partners in the European Employment Strategy’ (1999) 4 Transfer, at 526.

82 T. Treu, ‘Il ruolo della politica europea’ (1997) Dir rel ind., at 11. M. Colucci has a different point ofview. He considers that the Employement Committee lacks the orientation power and the political weightpossessed by the newly established Economic and Finance Committee. Therefore it is hardly capable ofhelping to institutionalise social dialogue. M. Colucci, op. cit., at 250.

83 S. Sciarra, ‘The Employment Title . . .’, op. cit., at 163.84 Art 128(3) TEU.

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function is, on the basis of the annual report, to assess Member State’s employmentpolicies for compliance with the employment guidelines. In this evaluation phase, basedupon the principle of benchmarking, there is again an interface with the EmploymentCommittee whose views have to be delivered to the Council. Then, still in this follow-up stage, the Council may address, on the proposal of the Commission, a recommen-dation to any Member State failing to follow the guidelines.

The benchmarking exercise, together with the possibility to issue recommendations,represents important steps forward in the conceptualisation of a potentially effectiveEuropean Employment Strategy based on soft law. As we shall see, benchmarking hasturned out to be one of the key factors giving binding effect to this soft structure.However, for the time being, we shall focus on the ‘recommendation’ as a possible toolestablishing a legal obligation, albeit without legal sanctions. Even if ‘recommenda-tions’ are, by definition,85 devoid of formal binding effect, their potential impact ongovernments should not be underestimated. Since the ‘raison d’être’ of the wholeprocess is founded upon political consensus for the need to reduce unemployment,create new jobs and link the social and economic policy spheres, the political nature ofthis kind of sanction can have a significant effect on the domestic political situation.The issuing of a ‘recommendation’ is much more than symbolic86 or friendly87 adviceto the Member State. It is a very important political sanction because it could place anational government in great difficulty as regards national public opinion.88 The follow-up process is completed by a joint annual report, drawn up by the Commission and theCouncil and addressed to the European Council, on the implementation of the guide-lines for employment and the employment situation in the Community.89

One other facet of this process, reflecting a ‘more dynamic mood focused on con-crete action’,90 is constituted by the possibility for the Council to adopt ‘incentive measures’.91 These measures are ‘designed to encourage cooperation between MemberStates and to support their action in the field of employment through initiatives aimedat developing exchanges of information and best practices, providing comparativeanalysis and advice as well as promoting innovative approaches and evaluating experi-ences, in particular by recourse to pilot projects’.92 Here again the Employment Com-mittee, together with the Committee of the Regions, has an advisory role. When lookingat the incentive measures aimed to give effect to employment policies, it is useful tomention the European Social Fund (ESF).93 The ESF is the main financial tool through



85 Art 189 TEU.86 J. Goetschy, op. cit., at 126.87 C. Barnard and S. Deakin, op. cit., at 357.88 M. Biagi, ‘The implementation of the Amsterdan treaty with regard to employment: co-ordination or

convergence?’, op. cit., at 327.89 Art 128(5) TEU.90 J. Goetschy and P. Pochet, op. cit., at 613.91 The introduction of this provision has been hotly debated, with Member States worrying about the finan-

cial impact of a European employment policy. The consensus over the introduction of an EmploymentChapter into the Treaty was largely based upon the agreement that employment policies will primary staya national priority and that large expenditure measures would be avoided at the European level. Underthe German pressure two political declarations have been promulgated expressly to limit the use of thosemeasures. See European Council, Declaration for the final act on incentive measures of Art 129 TEU.

92 Art 129 TEU.93 The ESF is one of the four European Structural Funds. Created in 1957, the ESF is the European Union’s

main tool for the development of human resources and the improvement of the workings of the labourmarket. See http://europa.eu.int/comm/regional_policy/index_en.htm

http://europa.eu.int/comm/regional_policy/index_en.htm

which the European Union translates the objectives of the European EmploymentStrategy—to protect and promote employment, and combat unemployment, discrimi-nation and social exclusion—into action. Within the new European Structural Fundregulation provided for by Agenda 2000,94 the potential of the ESF has been fully inte-grated into what is done at Member-State level, thereby putting European Strategy’spriorities into practice. The ESF provides funding to Member States to complementtheir activities in the five main policy fields it oversees95 and offers supporting financefor the implementation of National Action Plans for Employment. This support ischanneled through the operational programmes under Objectives 1, 2 and in particu-lar, through Objective 396, financed by the ESF alone. This funding is provided to helpadapt and modernise policies and systems of education, training and employment.

It is interesting to note that the ESF is related to the European Employment Strat-egy not only as a means of financial support97 but also in its own organisation, basedon a ‘logic of dialogue’. As stated in the description of the ESF in the Europa site: ‘theESF acts as a catalyst for new approaches to projects, harnessing and bringing to bearthe combined resources of all involved. It fosters partnerships at many different levelsand encourages the Europe-wide transfer of knowledge, sharing of ideas and best prac-tice, ensuring that the most effective new solutions are incorporated into mainstreampolicies’.98 Even in the ‘implementing’ aspects of the process, the key point of referenceremains the importance of hearing the voices of different actors at different levels, andthrough a driven supranational force, helping them to converge.

IV Luxembourg, Cardiff, Cologne: Refining the Instititutional Framework

The Employment Title was first implemented by the Luxembourg Summit. An extra-ordinary European ‘Jobs Summit’ took place in November 1997, a month before theAmsterdam Council. By anticipating the implementation phase, the Commissiontogether with the Member States stressed the crucial character and the urgency of theemployment question. At this meeting, the Commission presented its proposals for thedraft 1998 Employment Guidelines.99 The general orientation adopted since Essenremained the same in substance, but the method did change.

This meeting, known as the ‘Luxembourg Process’, identified four pillars aroundwhich the European Employment Strategy had to be centred.100 Designed to promote



94 See: http://europa.eu.int/comm/agenda2000/index_en.htm95 ESF’s aim is to: develop and promote an active labour market; promote equal opportunities for all in

accessing the labour market; promote and improve training, education and counseling as part of a lifelong learning policy, promote a skilled, trained and adaptable workforce and improve women’s access toand participation in the labour market.

96 Agenda 2000 reduces the ESF objectives from 7 to 3. Objective 1 promotes the development of regionswhose development is lagging behind, Objective 2 supports the economic and soial conversion of areaswith specific difficulties, Objective 3 provides funding for all areas of the EU, except Objective-1 regions,to help adapt and modernise policies and systems of education, training and employment. Objective 3represents 12.3% of Total Structural Funds spending, a total of euro 24.05 billion from 2000 to 2006.

97 On the importance of ESF for Union employment policy in the next seven years: L. Pavan Woolfe, ‘TheEuropean Strategy For Employment—What lies ahead?’, (2000) IJCLLIR at 303.

98 See: http://europa.eu.int/comm/employment_social/esf2000/introduction-en.htm99 Commission Communication—Proposal for Guidelines for Member States Employment Policies 1998,

COM (97) 497.100 Extraordinary European Council on Employment, Luxembourg Conclusions, BEU, 11–97.

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an integrated medium-term approach, those four pillars are: employability, entre-preneurship, adaptability and equal opportunity. It is around this structure that theemployment guidelines will be defined.101 Employability is the central pillar of theemployment strategy.102 Nine-tenths of the measures in the employment policies ofMember States stand under this pillar. The concept of employability means, in verygeneral terms, the objective to improve each person’s access to employment, giving priority to the most disadvantaged. Beyond this broad meaning, this term is far fromself-explanatory, having regard to the different economic and social models and theambiguous links between employability and employment.103 The interpretation givento the ‘entrepreneurship’ pillar is also quite variable. What is meant by the establish-ment of an ‘enterprise culture’ goes from a broad interpretation where ‘entrepreneur-ship’ is understood as the promotion of ‘flexibility with security’ in the labour marketto a more reduced semantic scope where this term means no more than self-employment.104 Decisions related to the adaptability pillar fall, in most of the Euro-pean Union countries, into those involved in collective bargaining. Partnership is meantto be one of the essential factors contributing to the modernisation of work andimprovement in the firm’s adaptability. Nonetheless, some authors consider that thethird pillar is interpreted in too restrictive a manner in the national action plans, lackingreal strategic potential to modernise the organisation of work and working time.105 Thelast pillar, equal opportunity, has a particular statute. It has developed as one of thefour objectives around which the Employment Strategy is centered through measuresaimed to combat sexual discrimination in employment. But it now has the declaredobjective to introduce an integrated approach through mainstreaming, making equal-ity cut across all the employment pillars.106

The Luxembourg Process was, thus, initially meant to be a ‘peer pressure’107 process,which would leave the employment policy to remain a matter for national govern-ments.108 Nonetheless, while convergence was not the declared initial purpose, differentcomponents of the Luxembourg dynamic—i.e. the fruitful exchange of best practices,the influence exercised by benchmarking and peer pressure—led to a logic of conver-gence. The Commission’s ‘softly, softly approach’109 certainly helped to reinforce this



101 For some commentators these pillars reflect adherence to deeper underlying principles characterising thestate of the European countries today. On one hand, they reflect an ongoing quest for economic growthas an unquestioned premise, which implies that high priority is given to the strengthening of the eco-nomic infrastructure and, on the other hand, they indicate that the main aim of the strategies is to bringabout ‘full’ employment in paid labour, reflecting a valuation of paid labour above other possible formsof participation. See H. Coenen and R. Hortulanus, ‘The concept of labour in a European perspective’(2001) 1 Transfer, at 74–89.

102 F. Lefresne, ‘Employability at the heart of the European Employment Strategy’ (1999) 4 Transfer, at460–480.

103 This controversy over the term ‘employability’ is reflected in the French translation which is not ‘employ-abilité’ but ‘capacité d’insertion professionnelle’. Y. Chassard and A. Bosco, ‘L’émergence du concept d’em-ployabilité’, (1998) D Soc, at 903.

104 On the various implementation of the second pillar in the different Member States see D. Foden and L.Magnusson (eds.), Entrepreneurship in the European Employment Strategy (1999, ETUI).

105 D. Meuders and R. Plasman, ‘The third pillar: adaptability’, (1999) 4 Transfer, at 481–501.106 S. Lemière and R. Silvera, ‘Equal opportunities policies for women and men: a critical analysis of the

1998–1999 Employment Action plans’ (1999) 4 Transfer, 502–521.107 On the importance of this ‘peer pressure’ which makes the Luxembourg process substantially different

from the Essen process see T. Treu, ‘1997: un anno di politiche del lavoro’, (1998) LD, at 325.108 D. Henderson, ‘The UK Presidency: an insider’s view’ (1998) JCMS at 563.109 J. Kenner, ‘EU Labour Law: The softly, softly approach’ (1995) IJCLLIR at 307 ff.

trend. By establishing EU committees in the social field, launching research projectsand small-scale programmes, issuing communications and drawing actors into the EUpolicy process, the Commission engaged in a ‘softening-up process’.110 In so doing, theCommission paved the way for its preferred course of action in the event that a ‘policywindow’ should open up. Its catalytic activities play a central role in this ‘softening-upprocess’, where the weight is more placed on identifying which is the most suitableaction, and persuading Member States that the optimal instrument is a Communityone, than in attempting to reach conclusive determinations of correct policy. This ledsome authors to define the Commission as ‘a purposeful opportunist’ in its use of softlaw measures.111

The subsequent processes took the Luxembourg Process further and contributed tothe development of a softly binding European employment policy. Just one year later,the Council, in its Vienna conclusions,112 called for a ‘European Employment Pact’.What was meant by ‘Pact’ was initially quite unclear. It emerged progressively that,rather than an ‘agreement’, the term referred to the setting up of ‘procedures’ for dia-logue and policy formation.113 This represents the first declared manifestation of theprocedural approach adopted at the European level in the employment field, and a signof what had been depicted earlier as a ‘revisionist’ approach to law. It is at the CologneSummit114 that content was given to European Employment Pact. After having formallyconfirmed that ‘higher employment continues to be Europe’s top objective’, the Councilinvited a ‘comprehensive overall approach bringing together all the Union’s employ-ment policy measures’.115 The pact was to be an exercise in coordination among threeseparate pillars. These pillars are: the Luxembourg Process, mainly focused on labourmarket policy; the Cardiff Process, concerned with the structural reforms in productand capital markets and modernisation of the labour market; and the Cologne Summitwhich deals with the interaction between macroeconomic and monetary policy andaims at instituting a macroeconomic dialogue between various actors including thesocial partners116 first and foremost and the European Central Bank.117 The Employ-ment Pact, thus, brought essentially two new elements into this global framework: onthe one hand, the willingness to bring together all the actors concerned with employ-ment promotion and on the other hand, the need for an integrated approach to macro-economic and social questions.118

V The Lisbon Summit: from the European Employment Strategy to the Open Method of Co-ordination

In March 2000, when the soft regulatory method applied to the Employment field was institutionally recognised as a new form of intervention, all the ‘ingredients’ were



110 See for this expression G. Majone, ‘Ideas, interests and policy change’ EUI, WP 92/21, at 6.111 On the Commission’s persuasive role by way of soft legislation in the social policy field see. L. Cram,

Policy making in the EU: conceptual lenses and the integration process (1997, Routledge), 34 ff.112 European Council, Vienna Conclusions, BEU, 12–98.113 D. Foden, op. cit., at 524.114 European Council, Cologne Conclusions, BEU, 6–99.115 Cologne Conclusions, point 7.116 D. Foden, op. cit., 525–529.117 As regards the position of the European Central bank relating to employment questions, in particular

wages, see P. Pochet, ‘The New Employment Chapter of the Amsterdam Treaty’, (1999) JESP, at 272 ff.118 C. Aubin, op. cit., 114–115.

already present. The main area of intervention—employment—had been highlightedas a matter of European common concern since the White Paper. With Lisbon,119

employment became the core subject of a special summit held every year in the spring.Employment was, thus, consecrated as a challenge to be brought to the forefront of EUand national debates. But it is also focused on an empirical area where a new form ofEuropean governance, likely to be applied to other sensitive issues if it proves its value,has to be experienced. Rather than harmonisation or mutual recognition, MemberStates agreed to promote an alternative form of intervention dubbed the ‘Open Methodof Co-ordination’.

This current shift from employment to a broader area is mainly reflected in the over-arching goal introduced in Lisbon of the EU to become ‘the most competitive anddynamic knowledge-based economy in the world, capable of sustainable economic growthwith better and more jobs and greater social cohesion’.120 The Lisbon Summit, thus, wentbeyond the fight against unemployment and called for an integrated approach towardsachieving an economic and social renewal. The virtuous triangle of modernising theEuropean social model, investing in human resources and fighting against social exclu-sion121 had become the privileged arena of intervention.

With the term ‘Open Method of Co-ordination’ the European Council did notlaunch a new process, because the Luxembourg, Cardiff and Cologne Processes hadalready offered the necessary instruments.122 The Lisbon Summit took the four key principles further, which already distinguished the European Employment Strategy ofthe Luxembourg Process from any previous attempt to develop a credible Europeanapproach to employment policy.123 Lisbon strengthened the logic of ‘mutual learning,benchmarking, best practice and peer pressure to achieve objectives’. Thus, a flexibleparticipatory method of governance was institutionalised rather than one based on top-down, uniform rule backed with sanctions.124 This method relies mainly on therationalisation and refinement of the different processes set in motion earlier. WithLisbon, the former European ‘strategy’ was transformed into a proper ‘method’ ofintervention.

This method has several steps. First is the definition of common objectives to guidenational policy. In conformity with the framework set up in Essen, the conceptualisa-tion of the lines along which national policies are formulated takes place at a supra-national level. But in order to reach this first goal, the Lisbon European Councilproposed combining those guidelines with ‘specific timetables for achieving the goalswhich they set in the short, medium and long-term’ and to establish ‘quantitative and qualitative indicators and benchmarks against the best practices in the world and



119 Lisbon Conclusions.120 Ibid., point 5.121 Ibid.122 Ibid., point 35.123 J. Lönnroth sum up these principles as: convergence, management by objectives, country surveillance, an

integrated approach. For further details on these different principles see: J. Lönnroth, ‘The EuropeanEmployment Strategy, a model of open co-ordination and the role of the social partners’, presentationat a conference on the Legal Dimension of the European Employment Strategy, Brussels 9–10 October2000, Saltsa/Swedish National Institute for Working Life, at 2 ff.

124 D. M. Trubek and J. Mosher, ‘New Governance, EU Employment Policy, and the European SocialModel’, Jean Monnet Working Paper 6/01, Symposium: Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance, 2001,http://www.jeanmonnetprogram.org/papers/01/011501.html

http://www.jeanmonnetprogram.org/papers/01/011501.html

tailored to the needs of different Member States and sectors as means of comparingbest practices’.125 One of the leading principles of the European Employment Strat-egy—coordination—is thereby strengthened. Coordination is provided with the neededdetails for the EU level to exercise a pressure on the employment policies of MemberStates’ and set up a common scheme of action.126 Member States are, thus, guided atthe EU level to reach full employment by raising the overall European employment rateto 70% and the employment rate of women to more than 60% by 2010.127 This com-mitment was complemented with an interim target to which Member States will haveto refer when drafting their National action plans. The targets for January 2005 are of67% overall and 57% for women.128 Further details are also provided regarding ageingpopulations: the Council has agreed to set an EU target for increasing the average EUemployment rate among older women and men (55–64) to 50% by 2010.129

The second step consists of translating EU guidelines into national action plans.Here again, we face a mechanism already in place since the Luxembourg Summit. Themulti-level dialogue that characterised the Employment Strategy is naturally at theheart of OMC. But the dialogue is refined and pushed further. The main goal of thissecond stage is to make the EU objective efficient, by leaving to each Member State thedefinition of the most appropriate implementing measures. The Lisbon Council stressthe importance of including into this multi-level dialogue a regional dimension. All theactors, even at a local level, are called to participate in this policy decision-making. TheCouncil made this call clear in the Lisbon conclusions, stating that ‘a fully decentralisedapproach will be applied in line with the principle of subsidiarity in which the Union,the Member States, the regional and local levels, as well as the social partners and civilsociety, will be actively involved, using variable forms of partnership’.130 By broaden-ing the goal from employment to economic and social renewal, the EU set itself anambitious and complex objective. In order to reach this aim, a third building block,which will include the regional and local levels, has to be added to the European andnational levels. The mobilisation of all the actors involved, at all levels, thus appearedas the only way to comply with these ambitious commitments.131

Decentralisation essentially meets the need to enhance the efficiency of the Employ-ment Strategy. As the Commission highlighted, the conditions of competition betweenterritorial spaces have changed in the new global context. Competition is based on thecapacity to value local specificities within this context. The local area is where unsatis-fied needs can be best identified and social and economical diversity dealt with in an



125 Lisbon conclusions, point 37.126 S. Sciarra, ‘The Employment Title . . .’, op. cit., at 148.127 Lisbon conclusions, point 30. This objective goes beyond reducing the level of unemployment by half. It

means to bring back into the labour markets whole groups of those ‘inactive’ and consequently address-ing the founding causes of labour market inactivity P. Pochet, ‘Avons-nous besoin d’indicateurs sur laqualité du travail et de l’emploi’, intervention in the Conference Pour une meilleure qualité de l’emploi,Brussel, 20–21 September 2001. All the speeches of the Conference are available on the website:http://europa.eu.int/comm/employment_social/market2_en.htm

128 Stockholm conclusions, BEU, 3-2001, point 9.129 Ibid., point 9.130 Lisbon conclusions, point 38.131 ‘Acting Locally for Employment’ or how to develop a local dimension for the European Employment

Strategy. The Campaign still goes on,http://europa.eu.int/comm/employment_social/empl&esf/news/actlocal_en.htm

http://europa.eu.int/comm/employment_social/market2_en.htm

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appropriate way.132 Local actors can, thus, act as an ‘integrator’ of segmented policies.But their potential relies also on their capacity as promoters of third-system activitiesand their contribution to achieving the overarching EU goal, in particular as regardssocial exclusion and equal opportunity. The so-called ‘third system’, ‘social economy’or ‘third sector’133 represents a sizeable economic and social reality in many countriesand should be an area of concern in the framework of the European Employment Strat-egy.134 Local actors, in particular NGOs, are the most directly related to this third sector.

More generally, decentralisation is part of a wider European approach focusing onpartnership. The White Paper on European Governance,135 which proposes reform ofthe ‘means, rules, processes and behaviour that affect the way in which powers are exer-cised at European level’,136 has opened policy making to make it more inclusive andaccountable at its heart. To achieve participation—one of the five key components ofgood governance137—the Commission suggests reaching out to citizens through regionaland local democracy. This implies a multi-level partnership in which national govern-ments fully involve their regions and cities in European policy making. The idea is topromote a policy-making culture based on consultation with the various involvedactors. The decision-making and implementing phases have to be based on the exist-ing needs and competences.138

The Commission stresses this key idea also when dealing with employment. In orderto succeed in local employment development, European Employment Strategy shouldfully reflect the ongoing cultural change in its approach to development issues. Employ-ment policy can no longer be considered as the exclusive concern of political decision-makers and economic operators. It is the concern of the society as a whole. Therefore,the EU should bring together all forces through the creation of local partnerships andcoordinate the different players between the various levels.139

The European Employment Strategy therefore, offers the appropriate framework atthe European level to coordinate the local, the regional and the national actors and toinclude them in the policy decision-making. Its whole structure, in particular whendefining the guidelines and implementing them, could represent a useful grid against



132 European Commission, Communication from the Commission to the Council, the European Parliament,the Economic and social Committee and the Committee of the Regions, Acting Locally for Employment,A Local Dimension for the European Employment Strategy, COM (2000) 196 final, at 20, Brussels,7.04.2000.

133 The third sector/third system/social economy are defined as ‘some forms of socio-economic organisation(cooperatives, associations, mutual organisations, and foundations) commonly referred to under thegeneral term of the “social economy”, “third sector” or “third system” share principles such as the lackof profit-making goals, independence from the public and private sectors, seeking a more participatoryform of organisation, and a community service ethos’, COM (2000) 196 final, at 10.

134 This sector is thought to account for 8,590,000 jobs or 6.45% of total employment and 7.78% of salariedemployment. If volunteer work were converted into full-time equivalents, it is estimated that 10% of theworkforce would be in the third system. The enterprises and organisations of third system: a strategic chal-lenge for employment, CIRIEC study, December 1999.

135 European Commission, European Governance, White Paper, COM (2001) 428 final, Brussels, 25.07.2001.136 COM (2001) 428 final, at 8.137 The five principles that underpin good governance and the changes proposed in this White Paper are:

openness, participation, accountability, effectiveness and coherence, COM (2001) 428 final, at 10.138 COM (2001) 428 final, at 12.139 COM (2000) 196 final, at 20.

which to develop a local employment strategy. It would be a way of increasing thecoherence, effectiveness and the participatory aspects of the Employment Strategy.The involvement of different actors in the elaboration and implementation of policiescould contribute to establishing a coherent link between local players and, therefore,maximise the impact of the national plans.140

The fulfillment of those three central components of good governance will mainlydepend on the capacity of European actors to coordinate. With its Communication in2000, Acting locally for employment, the Commission aimed at fully endorsing this coordination role by encouraging:

• awareness, experimentation and dissemination of best practices in the develop-ment of local employment among and within Member States;

• development wherever possible of local employment strategies coherent with theNAPs;

• evaluation of these local plans before further policy development.

In this document, the Commission provided the political framework for consultationand a campaign to raise the awareness of local actors. This paper focuses on ways inwhich labour-market interventions can be made more effective and on the contribu-tions which players at the local level can make to developing and sustaining employ-ment. It aims at sparking a debate amongst the various local, national and Europeanplayers, enabling conclusions to be drawn. The synthesis document of the consulta-tion141 confirmed that the Communication is a useful framework for debate, mainly fortwo sets of reasons. On the one hand, it has helped ‘map’ the actors involved and iden-tify the relevant issues. On the other hand, this document has been a supportive toolfor local actors, giving them visibility and recognition of the central role they play indeveloping employment. This broad consultation, then, resulted in a new Communi-cation from the Commission142 which suggested ways of developing and implementinglocal employment strategies, capitalising on lessons drawn from previous experiencesin this area and making better use of existing Community financial provisions.

Regarding the last aspect, financial instruments, it is worth noting that the partner-ship approach, which is at the heart of the local Employment Strategy, is an importantconcept in the reorganisation of the European Social Fund. The creation of a broadpartnership, encompassing a wider range of institutional, private and associative actorsat regional and local level is a key feature of the new Regulations governing the Struc-tural Funds for the 2000–2006 period. The new ESF Regulation contains a specific provision aimed at boosting the participation of local partners and NGOs in ESF-supported programmes in the form of small grant schemes.143 The area of social



140 COM (2000) 196 final, at 17.141 Synthesis of the consultation concerning the Communication Acting Locally for Employment—A local

dimension for the European Employment Strategy, Colloquium Territorial Strategies for EmploymentStrasbourg, 30 November–1 December 2000.

142 European Commission, Communication from the Commission to the Council, the European Parliament,the Economic and Social Committee and the Committee of the Regions, Strengthening the local dimen-sion of the European Employment Strategy, COM (2001) 629 final, Brussels, 06.11.2001.

143 Article 4.2 of Regulation (EC) 1784/1999 on the ESF provides that Member States will allocate a rea-sonable amount of Objective 1 and 3 appropriations for global grants, managed by intermediary bodiesthat will in turn offer support in the form of small grants to NGOs and local partnerships. Most MemberStates’ programmes have allocated 0.5% to 1% of the appropriations to this form of support.

exclusion is broadly reflective of this new partnership approach. Within the new roundof programmes under Objectives 1, 2 and 3, the European Social Fund embraces anintegrated strategy to fight against exclusion in the labour market. The promotion ofsocial inclusion in the labour market is achieved through the greater participation ofall relevant actors in the design, implementation and monitoring of ESF aid. The newchallenge for the ESF is to build on the existing capacities at the local level, by pro-moting wider access of local actors such as social partners, NGOs and other small localorganisations, as full beneficiaries of the ESF.144

The final step of the OMC relates to evaluation and benchmarking of nationalemployment performance. The evaluation phase has played a key role in the develop-ment of the European Employment Strategy launched in 1997. Nevertheless, commontargets according to which progress could be assessed were missing. The PortuguesePresidency called for the development of quantitative indicators, in order to assessprogress towards the implementation of the Lisbon Strategy, and ‘to ensure the neces-sary coherence and standard presentation’.145 In the years following, much progress wasachieved with the development of indicators that helped to consolidate the compar-isons between national employment policies, to assess the impact of the implementa-tion and the impact of the guidelines and facilitate the identification and exchange ofbest practices.146 At the Laeken Summit indicators on quality in work were presented147

in order to address the common concern for a ‘qualitative’ as well as ‘quantified’approach in the fight against unemployment.148 More generally, the importance ofdeveloping indicators was highly stressed. In the Stockholm conclusions, the Councilcalled for the elaboration of indicators regarding the provision of care facilities for chil-dren and other dependants, on family benefit systems,149 and so for education, trainingand skills,150 and to ensure that there were no discriminatory pay differentials betweenmen and women.151

Thus the European task of assessing the employment guidelines’ implementation,monitoring of progress and following-up of the Lisbon Process through appropriateinstruments is acknowledged. By advocating the establishment of policy indicators, to



144 COM (2001) 629 final, 11–12. The regional and local dimension of the implementation of the Fund ishighlighted also in European Commission, The European Employment Strategy and the ESF (1999,Employment and Social Affairs); Communication from the Commission to the Council, the EuropeanParliament and the Economic and Social Committee, European Social fund support for the EuropeanEmployment Strategy, COM (2001) 16 final, Brussels, 23.01.2001.

145 Feira conclusions, BEU, 6-2000, at 8. The Council requested to the Commission to present a report onstructural indicators by the end of September 2000. Those indicators are contained in the Communica-tion from the Commission, Structural indicators, COM (2000) 594 final, 27.09.2000, Brussels. A furtherreport has then been published in 2001. See COM (2001) 619 final, 30.10.2001, Brussels.

146 European Council, Decision on Guidelines for Member States’ employment policies for the year 2001,2001/63/EC, J.O. L.22 of 24.01.2001, at 19.

147 Laeken conclusions, BEU, 12–2001, point 22. See the report by the Employment Committee presentedat the Laeken summit. Employment Committee, Indicators of quality in work, 14263/01, Brussels,23.11.2001.

148 In Nice, the aim to provide ‘more jobs’ is complemented by the need to provide ‘better jobs’. Quality ofwork is the ‘red thread’ that guides the whole Social Agenda. Improving the quality of work, it is said,will strengthen competitiveness and social cohesion, the key features of the European social model. The‘quality’ aspect of the social policy thus becomes the prism through which policies have to be evaluated.

149 Stockholm conclusions, point 9.150 Ibid., point 10.151 Ibid., point 27.

effectively evaluate Member States employment policies, the Portuguese Presidencybrought the whole process a step closer. Common elements of statistical evaluation,which are crucial in any effort to coordinate, became a constitutive element of this newform of governance.152 But it is worth noting that the inclusion of indicators, also ifindirectly, embodies a sanctioning function. The setting of parameters, to identify whichMember States succeed or fail in their commitments, corresponds to a sanction, evenif they are soft in the sense that they do not provide any coercive effect. While bench-marking is acertainly a ‘looser and less formal type of community-based control’,153 itnonetheless represents an incentive to achieve the preset objectives, with its effective-ness assured through monitoring and peer review.

The benchmarking exercise, which consists of identifying the best labour market performances and drawing attention to best practices in each dimension of the EES,acquired particular relevance thanks to the support of the peer review programme. TheEuropean Commission (DG Employment and Social Affairs), in close consultationwith the Employment and Social Affairs Committee, launched this programme in 1999.The objectives of the peer review programme are:

• to identify, evaluate and disseminate good Active Labour Market Policies;• to assess whether and how good practices can be effectively transferred to other

Member States;• to follow-up and implement the ideas and objectives of the European Employ-

ment Strategy;• to develop and propose a list of methodological criteria for the selection and

review of good practices.154

This peer-review exercise is the main vehicle through which benchmarking can be effec-tively organised.

Evaluation, peer review and benchmarking can be considered as the fundamentalsallowing the OMC to be a learning process. The potential to promote policy learningis at the heart of this new approach.155 The key purpose point is not to mandate uniformemployment standards but, instead, to manage by objectives and promote an interac-tive process based mainly on a multi-level dialogue.156 The process, as this soft approachimplies, is open as regards state actions, the policy outcomes or the degree of states’involvement that could be considered as an involvement ‘à la carte’. Nevertheless, ifone goes from the traditional perspective of regulation and takes a wider perspective,where the role of the supranational actor is to show better paths rather than to deliverpolicy outcomes, then the evaluation of this new method has to be phrased accordingto new parameters. The ‘Open Method of Co-ordination’ is designed to help MemberStates progressively develop their own policies.157 Member States have different policy



152 S. Sciarra, ‘Integration through coordination . . .’, op. cit., at 222.153 C. Scott, ‘The Governance of the European Union: The potential for Multi-Level Control’, op. cit., at

72.154 http://peerreview.almp.org/en/principles.html155 C. de la Porte, ‘Is the Open Method of Coordination appropriate for organising activities at European

Level in Sensitive Policy Areas?’, ELJ, (2002) 8 at 41 ff.156 P. Pochet, ‘Subsidiarité, gouvernance et politique sociale’, in F. Delprée (sous la dir. de), Le principe de

subsidiarité (2001, Bruylant).157 Lisbon conclusions, point 37.

http://peerreview.almp.org/en/principles.html

options, are able to proceed individually, but are not sure of the best path.158 In thiscontext, the flexibility offered by soft law assumes critical importance.

VI The Open Method of Coordination: a New Mode of Governance

The OMC has clearly emerged as an alternative approach to governance. Since its intro-duction, it has expanded to numerous other areas. At the Nice Summit, the Counciladopted its social inclusion strategy based on the structure of the OMC. In order tofight poverty and social exclusion, the Council defined common objectives and invitedMember States to draft national action plans in response to those guidelines. MemberStates will have two years, from June 2001, to implement the priorities set in theirNAPs.159 Significant effort has been made in the process of developing commonlyagreed indicators to measure poverty and social exclusion. In its report on indicatorsof poverty and social exclusion, the Social Protection Committee set up methodologi-cal principles concerning the criteria an indicator should respond to.160 Thus representsan important step forward in refining the OMC as a new form of governance. Theseindicators are essential to monitor progress towards common goals, to comparenational practices, to establish good practices and therefore to promote the learningprocess. In the subsequent Stockholm Council meeting, it was suggested to apply theOMC to the extremely politically sensitive domain of pensions.161 Despite their vague-ness, these objectives and working methods were followed up by national strategy plans,thus providing a new path towards an integrated framework for cooperation in thisfield.162 More recently, the OMC has been designated to address the contemporary chal-lenges faced by education systems163 and for cooperation in the area of youth policy.164

Interestingly, the value of OMC has been recognised by the Social Partners. In theirattempts to improve the role of industrial relations at local, regional or national level,they referred to the OMC.165

The growing use of the OMC indicates that it cannot be considered as a transitionalmechanism. Instead, it is progressively developing into a typical mode of governance.



158 J. Mosher, ‘Open method of co-ordination: functional and political origins’ (2000) 13 ECSA Review 3, at7.

159 About the different approaches that have been adopted by Member States in their NAPs against poverty and social exclusion see European Council, Joint Report on Social Inclusion, 2001,http://europa.eu.int/comm/employment_social/soc-prot/soc-incl/15223/part1_en.pdf

160 Social Protection Committee, Report on indicators in the field of poverty and social exclusion, October2001, http://europa.eu.int/comm/employment_social/news/2002/jan/report_ind_en.pdf

161 For a short comment on this summit see Edito du Notabene 121, ‘Stockholm et après . . .’, OSE, April2001, http://www.ose.be/be/fr/forum/default.htm; A. de Soucy, ‘Le volet social du Conseil Européen deStockholm’, op. cit., at 311–313.

162 See Joint Report of the Social Protection Committee and the Economic Policy Committee on objectivesand working methods in the area of pensions: applying the open method of co-ordination, November2001, 14098/01. For the national strategy plans see:http://europa.eu.int/comm/employment_social/soc-prot/pensions/index_en.htm

163 For the time being, the OMC is at an early stage of application as only broad lines for the next decadehave been established. See European Commission, Report from the Commission, The concrete future objec-tives of education systems, COM (2001) 59 final, Brussels, 31.01.2001.

164 European Commission, European Commission White Paper—A New Impetus For European Youth,COM (2001) 681 final, Brussels, 21.11.2001.

165 European Commission, Report of the High Group on industrial relations and change in the European Union,op. cit., at 37.

http://europa.eu.int/comm/employment_social/soc-prot/soc-incl/15223/part1_en.pdf

http://europa.eu.int/comm/employment_social/news/2002/jan/report_ind_en.pdf

http://www.ose.be/be/fr/forum/default.htm

http://europa.eu.int/comm/employment_social/soc-prot/pensions/index_en.htm

It could therefore be expected that the Commission White paper, especially dedicatedto European Governance,166 would have greatly emphasised this new method. However,this trend is only partially reflected. In this document, the innovative character of thismethod is recognised and the OMC is mentioned as one of the ways to improve thequality and effectiveness of regulation. But, instead of fostering the positive aspects ofOMC, namely its flexibility, the White Paper approaches it with a ‘jaundiced eye’.167

The Commission starts by recognising that OMC is a policy instrument useful for com-pleting or reinforcing Community action, in particular where there is little scope forlegislative solutions. The following statement presupposes nevertheless that legislationis always the preferable solution. It says: ‘The use of the open method of coordinationmust not dilute the achievement of common objectives in the Treaty or the politicalresponsibility of the institutions. It should not be used when legislative action, underthe Community method, is possible’.168 The White Paper thus marks a clear preferencefor methods that maintain a certain degree of uniformity or ensure the Commission acentral role in policy making.169 This position draws back to the negative views on softlaw and tends to undermine the full potential of this new policy instrument.

The strength of this new form of governance relies on its capacity to systemise amethod for intervening when an integrated approach to policies is needed. The com-plexity of certain issues calls for the cooperation of different actors, at several levels,in a plurality of action fields. This is particularly true in a globalised context that leadsto a dissemination of centres of power as much as an emergence of issues of a transna-tional dimension.170 The OMC manages to accommodate, by its very structure, all thosediversities and can, by placing at its heart a supranational actor, deliver coordinatedsolutions to complex issues. This method is also interesting in terms promoting par-ticipation in the decision-making process. It does not only involve institutional players.It is an iterative process based on dialogue with several kinds of organisations, includ-ing the private sector.171 In this way, it opens the floor for systematised communicationand cooperation between the private and the public in the sphere of policy instruments.This method also implies a need for decentralisation and addresses a call for leaving,as much as possible, final policy making to the lowest level.172 It implies a different rolefor the traditional actors in the decision-making process, wherein the State is an actoramong others. The local level, thereby, acquires a relevant role for its capacity to valuelocal specificities, to identify unsatisfied needs and deal in an appropriate way withsocial and economical diversity. The supranational level becomes the level where co-ordination of the different players takes place, where the actors involved in the processcan be mapped and be given visibility and recognition. Its role is to show the better



166 European Commission, European Governance—A White Paper, COM (2001) 428 final.167 F. Scharpf, ‘European Governance: Common Concerns vs. The Challenge of Diversity’, op. cit., at 10.168 COM (2001) 428 final, 21–22.169 J. Scott and D. M. Trubek, ‘Mind the gap: Law and New Approaches to Governance in the European

Union’, op. cit., at 16.170 M. Telò, ‘Combiner les instruments politiques en vue d’une gestion dynamique des diversités nationales’,

Jean Monnet Working Paper No. 6/01, Symposium : Mountain or Molehill? A Critical Appraisal of theCommission White Paper on Governance, 2001,http://www.jeanmonnetprogram.org/papers/papers01.html, at 1.

171 C. Barnard, ‘The Social partners and the governance agenda’, (2002) ELJ at 89; C. Scott, ‘The gover-nance of the European Union: the potential for multi-level control’, op. cit., at 60.

172 J. Scott and D. M. Trubek, ‘Mind the gap: Law and New Approaches to Governance in the EuropeanUnion’, op. cit., at 6.


path, to help Member States to develop their own policies. The underlying idea is thatStates are able to proceed individually but are not sure of the best path.

A major interest of this new form of governance also resides in its innovative logic.Its aim is not to reach uniform rules, but to promote a learning process. It offers aninstrument to intervene when the issues at stake cannot be covered by a legislativeoption but rather by suggesting a framework to policy responses. The OMC can providesome coherence in terms of policy directions, identify the best actors and levels toinvolved, and indicate assessment criteria for this process. The main outcome expectedis to allow a circulation of information, to identify the best practices and promote thedissemination of this knowledge. As some commentators have stressed, if the soft lawmechanism, at the heart of the EES and of the OMC, were able to promote policylearning, this would be an important governance innovation over traditional regula-tory approaches.173 The question of how to define and measure learning assumesprimary importance. Trubek and Mosher identified a certain number of elements whichcan potentially promote policy learning. One of those is the annual rephrasing of theguidelines that gives an opportunity for deliberation between the different stakeholders.The important revision in the guidelines from 1998 to 2001 can be read as a sign ofevolution in the objectives consequent to the acquisition of new information.174 Thecapacity of this new process to promote learning is also stressed in the Commissioncommunication which reviews five years of application of the EES. The multilateralsurveillance system in particular is said to have created a ‘stress for convergence’.175 Itis generally understood that despite the difficulty to identifying the causes of improve-ment in employment performances, ‘there have been significant changes in nationalpolicies with a clear convergence towards the common EU objectives set up in the EESpolicy guidelines’.176

VII Conclusion

The OMC can be considered as a new mode of governance, which has emerged in theEU context in recent years. Too little time has passed since its introduction, to obtaina clear picture of the entire process and its effectiveness. Nevertheless, a historicalreconstruction of the key moments of this process, i.e. from the Delors’ White Paperof 1993 to the Lisbon Summit, shed valuable light on the fundamental features of thismethod. The OMC was originally an intergovernmental commitment by MemberStates to regard their employment policies as a matter of common concern, and hassubsequently developed into something different that we have labelled ‘a supranational



173 M. C. Dorf and C. F. Sabel, ‘A constitution of democratic experimentalism’ (1998) Columbia Law Review,267–473; C. Sabel, ‘A quiet revolution of democratic governance’: towards democratic experimentalism’,presented at the EXPO 2000, OECD Forum on the future, Conference on 21th Century Governance,Hannover, 25–26.03.2002; P. Teague, ‘Deliberative Governance and the EU Social Policy’, (2001) European Journal of Industrial Relations, at 7–26. Authors cited by D. M. Trubek and J. S. Mosher, ‘Newgovernance, EU Employment policy, and the European Social Model’, Jean Monnet Working PaperNo.6/01, Symposium: Mountain or Molehill? A Critical Appraisal of the Commission White Paper onGovernance, 2001, http://www.jeanmonnetprogram.org/papers/papers01.html, at 16.

174 Ibid., at 17.175 European Commission, Taking stock of five years of the European Employment Strategy, COM (2002)

416 final, Brussels, 17.07.2002, at 15.176 Ibid., at 1.


form of governance’. By using this term, the principal element that we wanted to stresswas the dominant role played by an actor ‘above the states’ in each of the three stepsof the process. The entire dynamic relies on the capacity of this supranational actor toidentify relevant issues and formulate objectives, raise awareness, design a strategybased on the cooperation between the local, regional, national and European levels,map the relevant actors, and collect and disseminate information in order to promotea learning process.

The OMC also provides the opportunity to rethink the added values that a soft reg-ulatory tool can offer. OMC does not include sanctions. Nevertheless, it is not withoutbinding effect. When considering this aspect, different elements have to be kept in mind.On the one hand, OMC objectives are addressed to States, not to individuals. It is upto the States to implement, by hard law the European soft commitments. On the otherhand, even if OMC cannot be defined as other than soft law, it differs from traditionalsoft law measures. It is a process flexible enough to be adapted to a complex reality,whilst at the same time providing a follow-up system that prevents it from being a fullyopen means of intervention. From this perspective, and because it does not rely on thetransfer of competences as do the traditional community methods, the OMC can alsoconstitute a noteworthy mode of governance of interest in an international context.



Documents

The Open Method of Coordination: A New Supranational Form of Governance?