User:GeeJo/Sandbox/Social Policy Protocol

Eurofound
The Social Policy Protocol was the legal mechanism adopted to resolve the impasse reached over the social policy provisions of the Treaty of Maastricht at the summit in December 1991. Eleven of the EU Member States agreed on the provisions of a new Social Chapter of the EC Treaty, reflecting the Agreement on Social Policy reached by the European social partners on 31 October 1991; the United Kingdom was opposed. Unanimity was required for the Maastricht Treaty to be adopted.
 * European industrial relations dictionary, entry for "Social Policy Protocol", European Foundation for the Improvement of Living and Working Conditions, 5 October, 2007. URL last accessed 13 October, 2007.

The outcome of Maastricht was the Treaty on European Union signed by the Member States of the European Community on 7 February 1992, a Protocol on Social Policy and an Agreement, annexed to the Protocol, between 11 Member States, with the exception of the UK (which benefited from an opt-out), also on Social Policy. The Protocol notes that 11 Member States ‘wish to continue along the path laid down in the 1989 Social Charter [and] have adopted among themselves an Agreement to this end’; accordingly, all 12 Member States:

1. Agree to authorise those 11 Member States [excluding the UK] to have recourse to the institutions, procedures and mechanisms of the Treaty for the purposes of taking among themselves and applying as far as they are concerned the acts and decisions required for giving effect to the above-mentioned Agreement.

2. The [UK] shall not take part in the deliberations and the adoption by the Council of Commission proposals made on the basis of this Protocol and the above-mentioned Agreement...

3. Acts adopted by the Council... shall not be applicable to the [UK].’

This division in the Community over social policy might have been resolved by the expected victory of the Labour Party in the British general election of April 1992, which would have led to the UK becoming party to the Agreement. Its provisions would then have substituted for the provisions in the Treaty. As this did not happen, there continued in existence two parallel sets of provisions: one applicable to all the Member States (in the Treaty), and one applicable to all but the UK (in the Agreement).

The election of a Labour government in the UK in May 1997 led the UK to opt-in, and the Treaty of Amsterdam, agreed on 7 June 1997, provided for the provisions of the Agreement on Social Policy to be incorporated into the EC Treaty, terminating the Social Policy Protocol.

Tribune

 * Goldsmith, C; Social Policy Pact, Without Britain, Will Use EC Rules, International Herald Tribune, December 12, 1991. URL last accessed October 13, 2007.

MAASTRICHT, the Netherlands: A crucial agreement on European Community social policy will operate outside the formal EC treaty while incorporating most procedures used in everyday Community lawmaking.

Britain, which staunchly opposed any EC role in workplace issues, is totally exempted from the Protocol on Social Policy and its accompanying rules.

The protocol, unlike many provisions adopted by EC leaders early Wednesday morning, will not serve as amendments to the Treaty of Rome, the Community's basic document. But mainstream EC methods will apply.

Under the protocol, the 11 countries that signed will "have recourse to the institutions, procedures and mechanisms of the European Community" in adopting measures to implement a common social policy.

As with all legislation, the EC Commission will make proposals, and the Council of Ministers will then vote by unanimity or weighted majority depending on the type of measure involved. The weighted majority voting rules will be adjusted to account for Britain's absence.

"The system fits squarely within the rules of the Community because the European Council decided on this procedure," said Jacques Delors, the commission president. The European Council is the official name for EC summit meetings.

What remained unclear was whether legislation adopted under the social policy protocol would be subject to full jurisdiction of the European Court of Justice, given that the protocol's legal basis is outside the EC treaty.

The distinction, experts said, could prove to be a loophole that allows member states to disregard social legislation.

Under the Treaty of Rome, the EC Commission can take a member state to the Court of Justice for failing to "fulfill an obligation under this treaty," such as neglecting to enact national legislation to implement EC laws.

"It does present a constitutional question," a Brussels lawyer, Frank Fine, said of the social policy protocol. "The Court could say, 'Sorry, the commission has no power to sue for failing to implement laws under this protocol because the social decisions made at Maastricht were not part of the treaty,' " he said. "On the other hand, the court could say that this is as formal a protocol as member states could reach, so we will give it binding force as an annex to the treaty."

Britain's exemption from the social protocol, Prime Minister John Major said, "certainly will do us no harm" in achieving a competitive edge over the EC's continental members in attracting foreign investment. He said that Britain had reduced the number of workdays lost to strikes from 29 million in 1979 to 2 million last year, and did not want to risk a reversal.

Mr. Delors, when asked at a news conference whether Britain would enjoy an investment advantage, replied, "Frankly, I don't think so." He added, "What we wish to do is to have a minimum amount of legislation to show to the workers of the community that we are looking after them."

At a news conference last week, Mr. Delors said that an "opting out" for Britain on social legislation would set "a dangerous precedent and create a distortion of competition." But after the summit meeting he said, "We're not talking about opting out, we're talking about moving up by 11 countries."