Lawmaking by European unions and employers: A vision unfulfilled

Abstract

This article discusses why over the past 35 years the ‘lawmaking through a framework agreement' option of the European trade unions and employers’ organizations, based on Art. 154-155 TFEU, has hardly been used. It discusses the reasons why this is the case, pointing to a variety of factors. First are the differences of interest between the European unions and employers. Second is the unwillingness of the European employers to engage in lawmaking and their capacity to speak with one voice. Third is the heterogeneity of the interests of the member organizations of the ETUC, which weakens its power to foster framework agreements. Fourth is the role played by the European Commission, which promotes the lawmaking role of the European unions and employers but at the same time undermines it. This includes EU policy but also its function as a ‘shadow of hierarchy’ that is key to get employers, in particular, to the bargaining table. Fifth is the influence of the Court of Justice of the EU, which through several judgements has increased uncertainty around the legal status of European framework agreements and the effectiveness of European social dialogue. It is concluded that, in spite of a series of attempts to revive European social dialogue in general and the concluding of framework agreements in particular, the neo-corporatist vision of people like Delors, which included a strong regulatory role for unions and employers at the EU level, has not materialized and is unlikely to materialize in the near future.