MIME-Version: 1.0 Content-Location: file:///C:/5C634A97/ARTICLE137.htm Content-Transfer-Encoding: quoted-printable Content-Type: text/html; charset="us-ascii" [ARTICLE 137]

SINGLE MARKET:

INTERNAL MARKET WILL CONTINUE TO BE SWAMPED

BY ENDLESS LABOUR AND SOCIAL LEGISLATION

 [ARTICLE 137]

 

 

AMENDMENT TO: Treaty of Lisbon amending the Treaty on European Union and t= he Treaty establishing the European Community (Lisbon, 13 December 2007)<= /span>

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Policy Area:

Treaty= on the Functioning of the European Union, Part Three Policies and Internal Act= ions of the Union, Title IX Social Policy, Ar= ticle 137

 

Amendment:<= /o:p>

Clause  2,&n= bsp; page  1,  line  12,  after ‘excluding’, insert— 

 

‘(i) Article 2,= paragraphs 114 to 122, inserted Article 136a TEC (TFEU) relating to social partners, a= nd amendments to Articles 137 to 140, 143 and 148 TEC (TFEU) relating to social policy; and<= /p>

 

(ii)’.

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<= st1:City w:st=3D"on">Lisb= on Treaty: =

“116) Article 137 shall be amended as follows:

(a) in paragraph 2, in the introductory words of the first subparagraph, the words "the

Council:" shall be replaced by "the European Parliament and the Council:" and the first sentence of the second subparagraph shall be split into two subparagraphs which shall read as foll= ows:

"The European Parliament and the Council shall act = in accordance with the ordinary legislative procedure after consulting the Economic and Social Committee and the Committee of the Regions.<= /span>

In the fields referred to in paragraph 1(c), (d), (f) and (g), the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the said Committees."

The second sentence of the second subparagraph shall bec= ome the last subparagraph, and the words "of this Article" shall be deleted;

(b) in paragraph 3, at the end of the first subparagraph, the following words shall be added "or, where appropriate, with the implementation of a Council decision adopted in accordance with Article 139"; in the second subparagraph, the words "a directive must be transposed in accordance with Article 249" shall be replaced by "a directive or a decision must be transposed or implemented," and the wo= rds "or that decision" shall be added at the end of the subparagraph.= ”

 

Consolidated Treaty Article(s):

 “Article 137

1. With a view to achieving the objectives of Article 13= 6, the Community shall support and complement the activities of the Member Sta= tes in the following fields:

(a) improvement in particular= of the working environment to protect workers' health and safety;

(b) working conditions;<= /o:p>

(c) social security and social protection of workers;

(d) protection of workers whe= re their employment contract is terminated;

(e) the information and consultation of workers;

(f) representation and collec= tive defence of the interests of workers and employers, including codetermination, subject to paragraph 5;

(g) conditions of employment = for third-country nationals legally residing in Community territory;=

(h) the integration of persons excluded from the labour market, without prejud= ice to Article 150;

(i) equa= lity between men and women with regard to labour mar= ket opportunities and treatment at work;

(j) the combating of social exclusion;

(k) the = modernisation of social protection systems without prejudice to point (c).

2. To this end, the Council:<= o:p>

(a) may adopt measures designed to encourage cooperation between Member States through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences, excluding any harmonization of the l= aws and regulations of the Member States;

(b) may adopt, in the fields referred to in paragraph 1(a) to (i), by means = of directives, minimum requirements for gradual implementation, having regard = to the conditions and technical rules obtaining in each of the Member States. = Such directives shall avoid imposing administrative, financial and legal constra= ints in a way which would hold back the creation and development of small and medium-sized undertakings.

The Council shall act in accordance with the procedure referred to in Article 251 after consulting the Economic and Social Committ= ee and the Committee of the Regions, except in the fields referred to in parag= raph 1(c), (d), (f) and (g) of this Article, where the Council shall act unanimo= usly on a proposal from the Commission, after consulting the European Parliament= and the said Committees. The Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render = the procedure referred to in Article 251 applicable to paragraph 1(d), (f) and = (g) of this Article.

3. A Member State may entrust management and labour,= at their joint request, with the implementation of directives adopted pursuant= to paragraph 2.

In this case, it shall ensure that, no later than the da= te on which a directive must be transposed in accordance with Article 249, management and labour have introduced the neces= sary measures by agreement, the Member State concerned being required to take any necessary measure enabling it at any time to be in a position to guarantee = the results imposed by that directive.

4. The provisions adopted pursuant to this Article:=

— shall not affect the right of Member States to define the fundamental principles of their social security systems and must= not significantly affect the financial equilibrium thereof,

— shall not prevent any = Member State from maintaining or introducing more stringent protective measures compatib= le with this Treaty.

5. The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-o= uts.”

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Expl= anation:

Although the Lisbon Treaty does not provide for substantial amendments to Article 13= 7 on social policy, the EU’s delivery of endle= ss labour and social legislation will continue to swamp British business. Arti= cle 137 provides that the Union “shall support and complement the activities = of the Member States” in a vast number of fields, “…<= span lang=3DEN-GB style=3D'font-size:11.0pt;font-family:Arial;color:black;mso-an= si-language: EN-GB'>in particular of the working environment to protect workers' health = and safety, working conditions,  s= ocial security and social protection of workers, protection of workers where thei= r employment contract is terminated, the information and consultation of workers, repres= entation and collective defence of the interests of workers and employers, condition= s of employment for third-country nationals legally residing in Union territory,= the integration of persons excluded from the labour market, equality between men and women with regard to labour market opportunities and treatment at work,  the combating of social exclusion, the modernisation of social protection systems.” These policies are already extensively governed by EU legislation and need to be stopped.

 

According to Article 137 (2)(b), the Union is allowed to decide on matters in these areas “by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such directives sha= ll avoid imposing administrative, financial and legal constraints in a way whi= ch would hold back the creation and development of small and medium-sized undertakings.” The number of direct= ives on employment rights and work organisation, health and safety at work, equal treatment and non-discrimination, information and consultation of workers i= s infinite and it is not in the UK’s interests to be submerged beneath it all.

 

There is no real change in decision-making since these areas continue to be subje= ct to the ordinary legislative procedure (co-decision) and to QMV. The require= ment to consult the Economic and Social Committee and the Committee of Regions on these matters is kept. The Lisbon Treaty retains the exception concerning social security and social protection of workers, protection of sacked work= ers, representation and collective defence of workers and the conditions of employment of third country nationals which are subject to unanimity. The Council decides, in accordance with a special legislative procedure (consultation), after consulting the European Parliament and the above mentioned committees. Article 137 (2) provides for a p= asserelle clause since the “Council acting unanimously on a proposal from= the Commission, after consulting the European Parliament” is allow to ren= der the co-decision procedure and QMV applicable to protection of sacked workers, representation and collective defence of workers and the conditions of employment of third country nationals. Hence, only social security and social protection of workers will be subject to unanimity. The Lisbon Treaty has not changed this provision.

 

The provision demands that Member Sta= tes take measures to ensure that a Directive guarantees results. Article 137 (3) provides that “A Member State may entrust management and labour, at their joint request, with the implementati= on of directives adopted pursuant to paragraph 2.”  The Lisbon Treaty adds the possibility of a Member State entrust management and labour “with the implement= ation of a Council decision adopted in accordance with Article 139.” Art= icle 139 concerns agreements concluded at Union level between management and labour. Thus, according to Article 137 (3), second subparagraph, the Member<= /st1:PlaceName> State must ensure t= hat management and labour have introduced the neces= sary measures by agreement “no later than the date on which a directive or a decision must= be transposed or implemented in accordance with Ar= ticle 249.” The= Lisbon Treaty amends this subparagraph taking into account “a Council decisi= on adopted in accordance with Article 139” – therefore the word “decision” was added to the text. Moreover, that Member State is “required to take any necessary measure enabling it at any time to= be in a position to guarantee the results imposed by that directive or that decision.”

 

Article 137 (4) and (5) were retained= by the Lisbon Treaty, stressing that provisions adopted under this Article “shall not affect the right of Member States to define the fundamental principles of their social s= ecurity systems” and “shall not apply to pay, the right of association,= the right to strike or the right to impose lock-outs”. Nevertheless, the = EU has sufficient powers to interfere in social security, largely threatening = British interests.

 

It should be noted that the Charter of Fundamental Rights which although not incorporated into= the Lisbon Treaty, will be an integral part of it and will be legally binding. = The Charter contains a plethora of rights, such as the right to negotiate collective agreements and to take collective action, the right of access to free placement services and protection against unjustifi= ed dismissals, and the right to have access to social security and social assistance, the right to strike. Member States are required to comply with the Charter wh= en implementing Community law. The UK has a Protocol on the Application of the Charter which will be further discussed.