EU economic governance: a tool to promote or threaten social rights? The example of the right to collective bargaining

Abstract

In addition to legislation, the European Union also uses a hybrid policy method called 'economic governance' to make annual (country specific) recommendations to the member states, the follow-up of which is monitored by the institutions through various mechanisms in the European Semester. These recommendations (or guidelines) relate to the Member State budget and the economy, but also to the social and employment policies of the Member States. While the EU does not have strong legislative powers in the social dimension, it made extensive use - certainly during the crisis - of EU economic governance to issue (theoretically) soft law guidelines on employment, labour law and social security systems. Many of the recommendations related to wage setting or directly to a reform of the collective bargaining system (often decentralisation). Such recommendations and subsequent Member States' measures encroach upon the fundamental right of the social partners to collective bargaining (and social dialogue). This right, which gives the social partners a certain autonomy to negotiate with each other on social matters, is protected not only by the EU legal order itself, but also by the International Labour Organisation and the Council of Europe (ECHR and ESH). EU economic governance has, during the crisis led to violations of the right to collective bargaining by national measures. The legal nature of the economic governance mechanisms is less 'soft law' than seems at first sight. Especially in the event of budgetary problems or crisis situations (such as e.g. in Greece and Portugal), the instruments of 'economic governance' have hybrid characteristics of both soft law and hard law, thus limiting the margin of appreciation of the Member States. From the evaluation of the recommendations and measures we can draw lessons for the EU (and the Member States) to better reconcile EU economic governance with the right to collective bargaining, taking into account the post-crisis climate and the renewed focus on the EU's social dimension under the Juncker Commission (and possibly its successor?).