Ane Aranguiz, PhD Candidate, University of Antwerp
In April 2019, the European Commission initiated a discussion on streamlining the EU’s decision-making in social policy. The goal was to enhance efficiency by utilizing “passerelle” clauses, which permit a shift from unanimous voting to qualified majority voting (QMV) and from special to ordinary legislative procedures. This change, while requiring unanimous approval from Member States, aims to bypass the complexities of Treaty revisions.
Passerelle clauses are flexibility mechanisms within the Lisbon Treaty designed to simplify decision-making and enhance the EU’s ability to act effectively in areas where special legislative procedures and unanimity still prevail. A general passerelle clause, applicable to all policy areas except military and defense matters, is outlined in Article 48(7) TEU. Specific passerelle clauses, applicable to particular policy areas, are found in articles dealing with common foreign and security policy, judicial cooperation in civil matters, social policy, environmental policy, and the Multiannual Financial Framework.
Background
This Communication represents the final installment in a series of four, initiated by President Juncker in his 2018 State of the Union address, aimed at reviewing the passerelle clauses within the EU Treaties. Following proposals on common foreign and security policy and taxation in 2018 and 2019, the Commission presented proposals concerning energy and climate, along with this social policy communication, in April 2019. Notably, none of these proposals have been acted upon by Member States.
While many areas within the EU’s social policy competence already function under QMV and ordinary legislative procedures, some still necessitate unanimity among Member States and adhere to a special legislative procedure. These areas encompass measures related to protection against dismissal, social representation and worker/employer interest defense, employment conditions for third-country legal residents, non-discrimination based on various grounds, and social security and protection for workers outside cross-border situations.
The specific passerelle clause outlined in Article 153(2) could facilitate a transition for the first three areas mentioned, while the general passerelle clause could be applied to the latter two. Procedural distinctions exist between these clauses. Activating the general clause requires the European Council to initiate the process, specify the proposed decision-making changes, and notify national parliaments. These parliaments then have six months to raise objections. Subsequently, with unanimous agreement and European Parliament consent, the European Council can adopt the decision, authorizing the Council to proceed under QMV or enabling the adoption of relevant measures through ordinary legislative procedures. This process also allows for a partial activation, transitioning from unanimity to QMV while retaining the special legislative procedure. In contrast, activating the specific passerelle clause requires only unanimous agreement within the Council, based on a Commission proposal and following consultation with the Parliament.
The Commission argues that, beyond the potential impact on national welfare systems’ financial equilibrium (as outlined in Article 153(4) TFEU), there is no clear rationale for maintaining unanimity and special legislative procedures in these areas. Consequently, in December 2018, the Commission presented a roadmap for enhancing legislative efficiency in social policy, initiating a feedback period that yielded 27 opinions from various stakeholders.
The Communication
The Communication aims to foster dialogue on the expanded use of QMV and ordinary legislative procedures to make decision-making more efficient, timely, and adaptable.
It emphasizes that while passerelle clause activation would modify the decision-making process, it wouldn’t alter the overall EU legal framework. It underscores that EU measures remain subject to the principles of subsidiarity and proportionality, as well as limitations within the social policy title (Article 153 TFEU). This includes limitations on defining fundamental social security principles and specifically excluded areas like the right to associate, strike, and impose lockouts.
The Commission explores the potential for passerelle clause activation in the five areas still requiring unanimity and special legislative procedures. However, it concludes that only two areas would genuinely benefit. The first is non-discrimination, where the Commission advocates for passerelle clause use to facilitate equal protection against discrimination and guarantee effective redress mechanisms for all. The Commission highlights that while some protection exists for gender and racial discrimination in employment, equal treatment on other grounds is protected only in the workplace. It stresses the need to address inconsistencies in the EU’s legal framework that result in unequal protection. (A 2008 Commission proposal in this area remains pending).
The Commission also supports activating the general passerelle clause for social security and worker protection to enable future recommendations. It cites the politically agreed-upon recommendation on access to social protection for workers and the self-employed (still awaiting final adoption) and suggests that a more efficient decision-making process would be beneficial in modernizing and harmonizing national social protection systems.
However, the Commission sees no immediate need to activate the passerelle clause in the remaining three areas (protection against dismissals, third-country nationals’ employment conditions, and worker/employer interest representation and collective defense). It cites reasons such as Treaty limitations, the adequacy of existing legislation, and the close interconnectedness and diversity of national social protection systems.
Commentary
The Commission’s proposal deserves cautious optimism. The current requirement for QMV in most social policy areas, with unanimity only in specific domains, has led to uneven and fragmented development of the social acquis. Shifting from unanimity to QMV in these limited areas could allow for more agile and effective policy responses, preventing individual Member States from obstructing social initiatives while still necessitating a strong consensus. Moreover, transitioning to ordinary legislative procedures would elevate the European Parliament’s role, shifting it from a consultative body to a co-decision-maker alongside the Council. This move towards greater democratic representation could benefit those directly affected by these policies. Activating passerelle clauses in the social sphere might mitigate Member State blockages and empower the (typically more socially progressive) European Parliament, potentially facilitating decision-making in social matters.
However, concerns remain. Passerelle clause activation is envisaged for only two of the five social policy areas still operating under unanimity and special legislative procedures. Furthermore, these two areas rely on the general provision under Article 48(7) rather than the specific passerelle clause (Article 153(2)), necessitating a more stringent procedural route. Moreover, one of these areas (social security and worker protection) only contemplates the adoption of recommendations, sidelining the potential for binding instruments. This is particularly noteworthy given the Commission’s recent challenges in formulating measures for worker and self-employed access to social protection, where a lack of political support for binding instruments led to a recommendation proposal.
While passerelle clause activation is positive, its limited scope is regrettable. Continued fragmentation in social policy might encourage enhanced cooperation, potentially leading to a two-tiered Europe where some Member States, through separate agreements, provide greater social protection for their citizens, leaving others behind.
The Commission’s proactive stance concerning the European Pillar of Social Rights offers a chance to adapt, update, and create social legislation, aligning EU law with the Juncker Commission’s social priorities. If this discussion results in (even limited) passerelle clause activation, it could lead to new, efficiently adopted Commission proposals addressing non-discrimination more comprehensively. However, this depends heavily on whether the next Commission shares the Juncker delegation’s enthusiasm for social progress.
If, as many argue, the Pillar represents the last hope for a social Europe, this initiative feels like a missed opportunity. It fails to fully leverage the potential for more effective social policy decision-making and misses the chance to address gaps in current legislation, particularly concerning protection against dismissals. Equally concerning is the decision to limit the passerelle clause’s use in creating a unified, binding response to the shortcomings of current social protection systems. Addressing the concrete needs of citizens is crucial, especially in times of rising Euroscepticism and non-standard employment. Removing obstacles to utilizing Union competences would help realize a genuine social market economy. This initiative, at the very least, signals a willingness to partially clear the path if there is sufficient political will.
Barnard & Peers: chapter 20
Photo credit: The Independent