Applicability of European collective agreements

Chapter 14 APPLICABILITY OF EUROPEAN COLLECTIVE AGREEMENTS Antonio Ojeda Avilés, Seville 1. AN ACCELERATED MIS EN SCENE As if trying to announce the 10th anniversary of the Community Charter of Fundamental Social Rights, in 1998 the first European collective agreement is signed (henceforth, ECA) on the sector level, on the working time of seafarers, between the European Community Shipowners' Association and the European Transport Workers' Federation I . Prior to it, several framework agreements on the highest level between European social partners had cleared the way for these sector agreements, several of which already exist e . In the space of a few short years, the European collective bargaining panorama has changed drastically, perhaps rendering obsolete the opinions voiced with caution for so long about the applicability of tose instruments. Thus, a revision of the subject is necessary, though of course it cannot be the final one. Not only do an considerable number of European intersectoral and sectoral agreements currently exist, the Commission has just updated its list of representative organisations in the various industries', and the European Trade Union Confederation (ETUC) seems to be comfortable with the new Helsinki statutes where it finds the basis needed for more standardised bargaining. The content of said collective agreements has also changed, as we will have the chance Signed in Brussels on 30 September 1998. 2 The most recent example — for the moment — is the European Agreement on Guidelines of Telework in Commerce, signed in Brussels on April 21, 2001 by EuroCommerce and Uni-Europa Commerce, whose dubious legal nature I will address further on. Paper by the Commission called European Social Dialogue, a Force for Innovation and Change, Brussels, 26 June 2002, COM (2002), 341 final, annex I. 428  Collective bargaining in Europe to examine in the following pagel. At the same time, the Commission is asking itself about the nature of the agreements that are inexorably appearing in multinational firms and European workers' delegations. In short, there is a new panorama, where employers have been quicker to organise than the trade unions 4 and there are as many as 27 sectoral dialogue committees, although bargaining itself is not without its difficulties 5 . Before moving on to reflect on questions directly related to the applicability of ECAs, we must make, then, a brief digression to discuss the origins and distinguishing features this new phenomenon, which is reaching maturity right before our very eyes. 1.1. The origins of European collective bargaining It has been repeated ad nauseum that collective bargaining emerged on the Community leve) with sector agreements on working hours in agriculture, reached by the European joint committee for that industry from 1968 onward 6 . This gave rise to a more generalIn the previously cited Commission paper (Annex I). there are 38 European employers' industry organisations, verses 12 European trade union organisations, most of them not affiliated to the ETUC, as consulted in article 138 TEC. 3 In 1995 the Commission consulted the European social partners about a regulation of burden of proof in cases of gender-based discrimination, and it obtained separate opinions, for which it pronounced Directive 97/80/EC, actually based on the Social Policy Agreement annex of the Maastricht Treaty. Bargaining on labour flexibility, initiated in 1995, achieved both framework agreements on part-time work in 1997 and foced-term work in 1999, but those referring to part-time employment companies failed in May 2001 after a long time attempting to reach an agreement, and on other matters there have been more failures than successes, as can be seen in the Commission consultations of 1996 (prevention of sexual harassment of employees in the workplace), 1997 (information and consultation of workers), and 2000 (three reviews: protection of workers versus the insolvency of the employer, protection against asbestos, and safety and health in the workplace for self-employed workers), which received separate opinions and resulted in Directives in most cases. For information about the current situation of the consultation about the protection of personal details and social aspects of company restructuring, see the chapters on European collective subjects and social dialogue in this book. 6 It is the second oldest joint sectoral committee (1963; European Commission Decision 74/422/ECC, reformed by Decision 87/445/EEC), only preceded by the coal and steel committee (1955). Currently made up of representatives from EFFAT (trade unions) and GEOPA-COPA (employers' organisations). It is one of the 27 advisory committees of sectoral and bipartite character that comprise the institutional participation in the EU, the first of which can be seen in RIBAS J. J.; JONCZY, M. J. and SÉcuÉ, J., Derecho Social Europeo, Madrid, 1980, pp. 196-7. The agreements were signed in 1968, 1972, 1978 and 1981. The 1968 agreement establishes the working hours of permanent workers in agriculture, and the 1972 agreement for zootechnics. Applicability of European collective agreements  429 ised acceptance of the validity of such agreements, usually considered as mere recommendations aimed at the national social partners'. The object of these joint committees is to formulate the sector' s economic or commercial policies for relations between Member States and up against non-Community countries, no matter how often they take stances having indirect relevance to employment relationships 8 . In effect, the European Agricultura) Trade Union Federation itself admitted, referring to these agreements, that they were intended as «European recommendations» in the sense given to framework agreements, setting objectives for national collective bargaining °. But as Bercusson has pointed out, the absence of an effective European employers' organisation in that sector and a lack of interest in developing something beyond vague joint opinions kept impeding the European Community' s efforts to develop social dialogue on the sector leve) I° . In reality, as Rocella and Treu have accurately pointed out, they were «joint recommendations,» forms resembling the bona fide collective agreement, significantly developed in a sector where Community authority has invested conspicuous resources, following lines of common economic policy, although still very much tributaries of national interests 11 . Also worthy of mention are the joint opinions signed between the main European confederations UNICE, CES and CEEP, baked by the European Commission in Val Duchesse. As a product of these tripartite meetings 12 during the summit, very interesting opinions were produced about questions ranging from employment (1986) and crossindustry advisory committees (1993) to occupational training (1995) without any intention of regulating working conditions in the sense that a collective agreement does 13 . As Lyon-Caen and Guarriello point out, the parties reach agreement not on a rule understood as binding, ' SCHNORR VON CAROLSFELD, " 1 contratti collettivi in un'Europa integrata", RivltDirLav 1 (1993), 333. They do not have regulatory effects, he argued, because Mey do not have an immediate bearing on employment relationships, since applying the contract to the parties as such, being third parties, cannot be derived from the agreement. ROCELLA, M. and TREU, T. Diritto del Lavoro della Comunitá Europea, Padova, 1995, p. 371. 9 BERCUSSON, B., European Labour Law, London, 1996, p. 83-4. BERCUSSON, ibid., p. 84. Diritto del Lavoro, p. 372. 17 Backed by the European Union (European Social Action Programme of 1984), which, however, does not take part in them, refers to that kind of virtual tripartism where one party — usually the government — commits and finances, but remains formally on the sidelines. 13 The Reports from 1986 to 1995, in MTAS, El Diálogo Social en la Unión Europea, Madrid, 1997, pp. 49 et seg. 430  Collective bargaining in Europe but on an opinion ". Tripartism takes on new functions with the biannual meetings between the European confederations and the troika starting in 1997 and the social summits of Stockholm, Laeken and Barcelona (2001 and 2001). However, it does not bring them closer, but perhaps even drives them further away from the missions of collective bargaining. Neither agreements on working hours in agriculture nor the opinions on specific aspects from the Val Duchesse meetings can be considered as the origins of what we know as European collective agreements. The argument for this conclusion stems from the absence of a will to regulate working conditions in what their own authors regarded as recommendations or reports, not to say pure and simple desiderata. And such a will could not have existed since one of the signing imites, the employers, had no organisations with bargaining power, nor were they willing to authorise a the UNICE or the CEEP to sign collective agreements. Even in the 1995 Framework Agreement on parental leave, specific authorisation had to be given to each confederation belonging to the UNICE'• a mandate that the British employers' association CBI refused, without any consequence at the time beyond preventing its application in the UK. It was only in 1987 that the Single European Act, with its incorporation of article 118 B and its support via the Commission of European social dialogue and collective agreements on this level, did the necessary phases for the emergence of European collective agreements start to appear. This was followed by the Community Charter of Fundamental Social Rights, pushed along by a powerful personality, Commissioner V. Papandreou, article 14 of which clearly states that the right to bargain and sign collective agreements implies that "relations based on agreements may be established between the two sides of industry at European level if they consider it desirable," and that these agreements can cover employment and working conditions and the corresponding social benefits. In this brief digression about the antecedente, I should mention, as a major milestone, the Social Policy Agreement (SPA) reached in 1992 as an annex to the Maastricht Treaty, where the 11 signing countries declare their desire to continue along the route plotted by the 1989 Social Charter. The SPA proposes a trilogy of European 14 G. and A. LYON-CAEN, Droit Socjal International et Européene, Paris, 1993, p. 333, and GUARRELLO, F., Ordinamento comunitario e autonomia collettiva. dialogo sociale, Milan, 1992, p. 375, cited by ROCELLA and TREU, Diritto del lavoro, p. 375. 15 Agreement of 14 December 1995, based on the Social Policy Agreement, which initially excluded the United Kingdom and Northern Ireland. Applicability of European collective agreements  431 collective agreements: those that substitute Community standards ' those reinforced by Community standards, and those resulting from a transposition of Community standards 16 . Leaving out the latter type, for which the SPA confirms the possibility that national agreements may bring about the transposition of Community rules, a role questioned by the Court of Justice on several occasions 17 , the other two types are trae novelties in European social Iaw, with more than a few problems when it comes to their application which seem to be getting worked out with practice, as we will see over the course of this article. Here I will only say that, although they might look like a single type of agreement, inserted in the process of the elaboration of a Community standard that will later be promulgated anyway, but in connection with the agreement, what we are really witnessing are two independent types, initially linked to the point of giving the impression that they comprise a single body with two elements. I will go into more detail on this later. With the SPA, we already have all the necessary ingredients for European collective agreements to be made. We will still see two failed attempts at collective regulation on the basis of its mechanisms, when the Commission consults the European social partners about their willingness to bargain an agreement about European works councils and about burden of proof in cases of gender discrimination, and receives a negative reply in both cases, giving rise to Council Directives 94/45/EC and 97/80/EC, respectively ". The Amsterdam Treaty of October 1997 incorporales into ordinary Iaw the typology of European collective agreements of the SPA (articles 137, 138 and 139 TEC), but it goes one step further: in the new article 136 TEC, express mention is made to the Community Charter of Fundamental Social Rights of 1989 and social dialogue becomes an objective of the Community and the Member States. The 16 Cf. my article "La negociación colectiva europea," RH II (1993), 1249 et seq. 17 For example, in the ECJ sentence of 30 January 1985, Commission v. the Kingdom of Denmark C 148/83, with respect to the transposition of Directive 75/ 117, about pay equity between men and women. Also, ECJ rulings of 8 June 1982, Commission v. the Republic of Italy C 91/82; 10 June 1986, Commission v. the Republic of Italy C235/84; 21 October 1999, Commission v. Grand-Duchy of Luxembourg. Cf. on this issue, CASAS BAAMONDE, M. E., "Directivas comunitarias de origen convencional y ejecución convencional de las Directivas: el permiso parental," Relaciones Laborales 11 (1996), 85 et seq. 18 More specifically, the statements of legal grounds for both indicate that "at the end of the second phase of the reviews, the social partners did not inform the Commission of their willingness to initiate the process that could lead to the signing of an agreement, as it is laid out in article 4 of the Agreement." 432  Collective bargaining in Europe  Applicability of European collective agreements  433 Nice Treaty of February 2001 does not introduce any significant novelties as far as European collective bargaining goes. 1.2. Distinguishing features In my opinion, collective bargaining really takes off with two important Directives, the ones that emerged after, and based on, the SPA: the Directive on Working Time 93/104/EC, one of the few that managed to get passed in that period of renewed concern about social matters in the Community, and Directive 94/45/EC, on European works councils. The former represents an important new twist in many ways: it meticulously and peremptorily regulates a number of questions about working time, which will earn the Council a lawsuit in the Court of Justice by a certain affected country 19 ; it constantly remas to national or regional bargaining to determine certain aspects; also, it contains a mysterious article 14 that envisages the non-application of the Directive in the event that "other Community instruments" establish more specific regulations pertaining to particular professions or activities. Most likely, the individuals who drew up the Directive were not so clear, when they presented it, about which Community instruments it might be referring to. It is even feasible that they actually had other specific Directives in mind, of the type developed in 89/391 on matters relating to safety and health in the workplace. However, the Community strategy gave centre stage to collective bargaining for the regulation of working conditions, though we can't be sure if it was to scrupulously comply with the mandate of promoting social dialogue, to apply the principie of subsidiarity, or to back off on a particular subject — working conditions — about which it had always shown its mistrust. In my opinion, the Commission reacted to the new elements it did not have at its disposal before. Namely, the willingness to bargain that the employers' organisations had assumed since the SPA — the 11 signing countries free of the usual British ball and chain — showed them the Council' s eagerness to pass Community laws that would have been unthinkable a short time earlier 2° . 19 I am referring to the ECJ sentence of 12 November 1996, United Kingdom v. Council of the European Communities C84/94. The Directive about informing the worker 91/533, which precedes it, is also sufficiently specific, but the matter regulated does not allow it to be overly extensive. 20 The most recent example is found with working hours for the highway transport sector: though industry federations in the area of aerial navigation and maritime transport had both reached agreements, the European highway transport As for the latter, the European works councils started to persistently bargain all kinds of agreements about the progress of companies, theoretically aimed not so much at working conditions as at their sustainabilily in labour terms, real enterprise agreements whose characteristics deserve a specific chapter in this book. Here we will focus our attention on intersectoral (cross-industry) and sector agreements, which in a short time have made the following headway: a) The first to appear, and the most abundant, are intersectoral ECAs of a framework variety, referring to a specific issue for all sectors and bargained by representatives from the European trade union confederations and employers' associations 21 . In turn, these can be subdivided according to their relationships with the Directives on the same subjects: 1. Framework ECAs with an accompanying Directive, which covers most of those mentioned 22 . 2. Framework ECAs without an accompanying Directive, a group only made up, so far, by only one on telework, the most recent. b) A bit later on, and as the result of negotiations between European industry federations, emerge the first sectoral agreements, initially as an extension of the Directive on Working Time, which as we have already seen, which proclaimed themselves to have subsidiary application against more specific Community provisions'. It is not long, however, before an autonomous sector agreement appears, on telework in European commerce'. These agreements can also be representatives failed in their attempts: "despite intense negotiations between social partners, it has not been possible to reach an agreement with respect to mobile workers in the highway transpon sector," was the wording of the statement of reasons of Directive 2002/15/EC of 11 March, which as a result of this was passed by the Parliament and the Council. 21 Framework Agreement on Parental Permission, of 14 December 1995, signed by CES, UNICE and CEEP; Framework Agreement on Pan-time Work of 6 June 1997, signed by CES, UNICE and CEEP; Framework Agreement on Fixed-term Work of 18 March 1999, signed by CES, UNICE and CEEP. 22 See previous note. Directive 96/34/EC on parental leave; Directive 97/81/EC on part-time work; and Directive 99/70/EC on temporary work. Sectoral ECA on the working time of seafarers of 30 September 1998, signed by the organisations European Community Shipowners' Associations and the European Transpon Workers' Federation (ETF); Sectoral ECA on working hours for flight personnel in civil aviation, of 22 March 2000, signed by the organisations Association of European Airlines (AEA), European Transport Workers' Federation (ETF), European Rrgions Airline Association (ERA), European Cockpit Association (ECA) and International Air Carrier Association (LACA). 24 Of 26 April 2001, signed by Eurocommerce and UniEuropa Commerce, already cited. Applicability of European collective agreements  435 434  Collective bargaining in Europe broken down into two categories, just as we have done with the intersectoral agreements. 1. Sectoral ECAs accompanied by a Community standard, also the majority here, these being ECAs deriving from the Directive on Working Time which in turn provoke the promulgation of other specific Directives ". 2. Sectoral ECAs without an accompanying Community standard, for the time being only the one on telework in European commerce. Needless to say, the biggest novelty in the recently described scenario is agreements that lack an accompanying Community standard, both in the category of framework agreements as well as in the sectoral agreement category. Another noticeable trend in the group of European bargaining instruments and their "speculative" Community regulations — of these we should mention not only the accompanying ones, but also those passed after the failure of bargaining to reach an agreement — , I think it is important to point out the progressively detailed nature of their texts, as it can be seen by simply comparing the framework ECA on parental leave with Directive 2002/15/EC, which punishes the social partners of road transpon for not having known, or wanted, to bring their negotiations to a successful conclusion. 2. THE MYSTERIES OF THE TREATY 2.1. How many types of collective European agreements? Setting aside transposed national agreements, European to the extent to which they internalise a European-level rule, and whose consecration as valid instruments is found in article 137 TEC, there are still interpretative problems regarding what the Treaty was seeking in terms of purely European agreements. It has usually been admitted that articles 138 and 139 of the TEC allude to only one type of collective agreement, since the first remits to the second when the social partners decide to inform the Commission of their willingness to "initiate the process provided for in article 139". This phrase might zs Two to reinforce the ECA on the working time of seafarers: Directives 1999/ 63/EC and 1999/95/EC, due to the fact that the Agreement basically reproduces articles 1 to 12 of the OIT 180 agreement about seafarers, still not in force, and one for the ECA on working hours in civil aviation, Directive 2000/79/EC. be interpreted to mean that it remits to the next article in its entirety, and consequently that it recognises a willingness to bargain an agreement, which would weaken the draft of the Community standard on the same matter, and the application of which could either be made via the social partners' own procedures or based on a Council decision adopted at the Commission's suggestion. There would be a continuum between these two articles, such that an agreement substituting a Community action would invariably be reinforced by another, giving the agreement a scope similar or identical to the thwarted Community standard. One gets the impression that the Treaty does not envisage that the signing parties to the agreement might fail to make a joint request for a reinforcing Community standard, since the offered alternative consists of applying the agreements through collective instruments. This is specified in Declaration 27, annex to the Treaty of Amsterdam, which indicates that the social partners' own procedures, alluded to in article 139, actually refer to collective bargaining subject to the regulations of each Member State, without each State being required to directly apply the agreements, enact their transposition rules, or even modify national legislation. We could arrive at a somewhat more open interpretation, however, of the phrase "initiate the process provided for in article 139" if we consider that the remittance refers exclusively to the first section of this article, the part where it says that the dialogue between social partners may result in collective agreements. Thus, the second section would be "liberated" from it, in such a way that the application of the agreements concluded on the Community level could be done via intemal collective bargaining or through the support of an EC decision. The tendential unity between the substituting agreements and the reinforced ones would thus be broken, and any other European collective agreement could be accompanied by an EC decision, not only the substituting agreements. The Commission's reiterated interest in publishing the lists of general and sector organisations that it considers to have representative authority will help facilitate the procedure of identifying which European agreements might seek to obtain the backing of Community law, which would not have much of a point if we knew in advance that only substituting agreements deserve this kind of support. On the other hand, it is too easily understood that collective agreements can only substitute a Community standard. Article 138 fails to make such a clarification, as it always refers to "Community action," which could just as well mean a regulatory action as a merely administrative one. 436  Collective bargaining in Europe  Applicability of European collective agreements  437 The previously cited Declaration 27, in short, narrowly restricts the possibilities of European agreements, by specifying that they can only be applied via Community decision or internal collective bargaining. If article 139 says that the agreement can be applied through the social partners' own procedures, the Declaration at least seems to suggest that it is referring to internal agreements when it indicates that the direct State application of European agreements is not possible. These and other shadowy parts of the TEC can and should be explained by the origins of its articles 138 and 139 and its Declaration 27. None of these saw the light in the Amsterdam Treaty of 1997. Rather, their origins can be traced to the Agreement on collective bargaining entered into on 31 October 1991 between CES, UNICE and CEEP 26 , which was later included in the Social Policy Agreement annex of the 1992 Maastricht Treaty as a binding standard for 11 EC countries, and after that to the foundational Treaty via the Treaty of Amsterdam. Declaration 27 originated with the incorporation of the terms agreed upon by the European social partners in 1991 into the 1992 Social Policy Act 27 . The limitations of the current TEC consist, therefore, in the failure to anticipate the new forms that European collective bargaining was going take starting in the second half of the Nineties. The fact is, the TEC text derives from, I repeat, what was agreed by the social partners in 1991 when Commissioner Papandreou' s regulatory thrust obliged the UNICE to accept, as a lesser evil, a bargained rule before an imposed role 2% . Thus, in reality, the intentio legis of articles 138 and 139 is merely to prevent Community regulatory drafts initiated by the Commission from being brought to a good end by substituting them with agreements bargained by European social partners. This also explains the emphasis placed 26 The European organisations CES, CEEP and UNICE had reached the agreement on collective bargaining and Community regulation in the ad hoc group promoted by the Commissioner V. Papandreou, and is contained in articles 3 and 4 of the Social Policy Agreement "in almost exact tercos": MOLINA GARCÍA, M., La negociación colectiva en Europea. Entre el acuerdo colectivo y la norma negociada, Tirant, Valencia, 2002, p. 37. The SPA contains "the substantial parts of the previous Agreement of 31 October 1991, signed by CES, UNICE and CEEP", indicate COLINA, M.; RAMÍREZ, J. M. and SALA, T., Derecho Social Comunitario, Tirant, Valencia, 1995, p. 559. The text of the 1991 Agreement on proposals for drawing up articles 118, 118A and 118B, in MTAS, El Diálogo Social en la Unión Europea, cited, pp. 85 et seq. 2 It was about, as you will recall, the Declaration of the 11 High Contracting Parties relating to section 2 of article 4 of the Social Policy Agreement, added by the Treaty on European Union, Maastricht, 7 February 1992. 28 It was also a personal bet between two energetic personalities, Commissioner Papandreou and the Secretary General of the UNICE, Tadeua Tyskiewicz, which ended with the transaction referred to in this article. by article 138 on the stimulated emergence of said agreements, as an upshot of a Commission communication announcing its intention to initiate proceedings for a Community action. And as the bargained substitution can result in a mere neutralisation of the planned measure, the panorama is completed with the "strong" possibility of an accompanying decision, perhaps to dispel the doubts of the ceding authority. This is the rigid scenario that is seen in the early years, as each time the Commission announces a project for a Community standard a substituting agreement is reached, which only pretends to establish a few general rules; a framework agreement. This is overcome with sectoral agreements on working hours, which in turn substitute Directive 93/104, as I have already mentioned. However, it is a much more autonomous substitution, in the sense that they neither avoid its existence — they only weaken its application for certain sectors — nor do they crop up as part of the stimulating procedure of the SPA, but rather on the basis of the standard on health and safety. Later, we will see new scenarios with the non-stimulated framework agreements — or, if another name is preferred, independent or ordinary — such as the one on telework, which are not reinforced by Community standards either, and Community standards passed after the failure of bargaining between the social partners, such as 2002/15/EC. Of course, the scene gets cloudier with the signing of certain instruments that call themselves agreements, but which only propone mere recommendations to the Commission or the national bargainers. Fortunately for us, articles 138 and 139, as well as Declaration 27, are drawn up leaving sufficient room to make up from the described overflowing. Now seems like a good moment to identify the loopholes in both articles before moving on to other questions: a) Substituting agreements of article 139.1 TEC do not require the backing of a Community decision in the sense stipulated in article 139.2. b) European agreements do not necessarily need to be of the substituting variety to obtain the backing of a Community decision of article 139.2 TEC, in their application to the Member States. c) The application of European agreements can also occur through collective bargaining, according to the rules of each Member State. This does not necessarily require the intervention of national or internal agreements, as we will discuss later on. d) Neither the articles nor the Declaration mention ordinary agreements; that is, those that arise as an autonomous manifestation 438  Collective bargaining in Europe  Applicability of European collective agreements  439 of the European collective partners, without no intention of substituting a Community rule or being accompanied by one. 2.2. Collective European pseudo-agreements Within the so-called European social dialogue, we mustn't limit ourselves to regulatory agreements, aimed at regulating working conditions or employment relationships between collective parties. We must take into consideration that the variety of instruments is sometimes much more extensive, including non-statutory types that we should keep separate from the agreements analysed here 29 . It could even be said that historically the non-legal instruments appear first, stricto sensu agreements being a quite recent offshoot, still in the minority. The number of joint options and recommendations signed by the European confederation and sector parties is very high 30 , and have not dropped of late, a moment in which they accompany binding agreements. Unfortunately, while the instruments called joint options or recommendations clearly show their nature of mere proposals to the Commission, Member States or national bargainers, or simple expressions of opinion, the ones that call themselves agreements do not always reflect in their articles the nature they are supposed to have — and it doesn't matter at this point if it is a `self-executing' or an indirectly binding agreement — . I am not talking about the typical distinction within a collective instrument between its obligational and regulatory parts, since in reality this distinction is always artificial, although the first is aimed at the signing parties themselves with its compulsory clauses and in the second at the affiliates with the regu29 SCHNORR VON CAROLSFELD, G. warned about this in "I contratti collettivi in un 'Europa integrataa'", Rivista Italiana di Diritto del Lavoro I (1993), 328, that the reference in 118 B TEC (introduced by the European Single Act of 1986) that European social partners could have contractual relationships contrasts with article 4.1 of the SPA of 1992, which speaks of "contractual relationships, including agreements", which leads us to the conclusion that the concept of agreement is higher than that of contractual relations, and that only the former can result in the "integrated procedure" contained in arts. 3 and 4. According to the same author, agreement relations have an inferior legal nature and shall remit to the establishment of presuppositions to organise future bargaining, as well incentives for the development of pre-bargaining. 1° The joint opinions, recommendations and statements of Val Duchesse and their continuators are already numerous, and they are not faz behind commerce and agriculture sector agreements, to cite a few examples. In the Web sites of these organisations, especially the trade unions, the texts of most of these can be seen. latory clauses. Even in agreements where only commitments for the signing parties are considered, the document has legal force. Instead, I am referring to other documents called ECAs whose clauses are so gentle that they resemble, if they are not identical to, joint options 31 . These are the so-called "new generation" texts (letters, codes of conduct, agreements), which express commitments to be applied on the long term 32 . And if they lack formal imperativeness, what we might call material imperativeness is worthless, which gives the signing parties the capacity to impose their mandates about employment relationships, which is the second element to be taken into account. I will mention three recent examples of the confusion produced by these ambiguous terms: — The Agreement (sic) about fundamental rights and principies at work 33 repeatedly indicates in its text to be referring to a joint statement, which seems to be different from joint opinions, if only in a tiny variation in the narre. However, article 1 clears up the fog by saying that the signing parties recommend their national organisation members to encourage companies and workers in European commerce to comply, whenever possible, with the fundamental rights set forth in the OIT Agreements, in particular the elimination of hard labour, the abolition of child labour, the elimination of discrimination and the rights to unionisation and collective bargaining 34 . — The European agreement (sic) on guidelines for telework in commerce " offers a more complex content, as it contains useful delimitations for the regulatory mission — for example, telework has a definition that could come in handy when distinguishing between similar figures — , it shows the determined willingness of the signing parties to respect the principie of equality and proportionality between teleworkers and other comparable workers, and confirms the It is the content of the clauses, and not the formal or express attribution of binding effects which gives the ECA legal effects: "the question is whether it has compulsory effect, or if it serves to orient the legislator and the judge in acting on and interpreting the Directive.", as ARRIGO; G. indicates in "A propósito dell comparazione nel diritto comunitario del lavoro," Il Dirittio del lavare 1-2 (2002), p. 76. 32 This is what the EC communication on European social dialogue, a force for innovation and change, ct., p. 18, calls them. 33 Agreement on Fundamental Rights and Principies at Work, signed in Brussels on 6 August 1999 between EuroCommerce and Euro-FIET. 34 It adds that the signing organisations will regularly debate about the application of the joint statement, and if necessary will make recommendations or carry out any pertinent actions (!). 13 European Agreement on Guidelines on Telework in Commerce, signed in Brussels on 21 April 2001 by EuroCommerce and Uni-Europa Commerce. 440  Collective bargaining in Europe teleworker's right to be informed of the basic terms of his or her contract. It also envisages the treatment of the workplace and teleworkers' right to communicate with their colleagues and particípate in union acts and meetings, among other questions. Moreover, it contains a surprising article 5 that recommends national organisations, whether they decide to regulate telework separately or include it in existing agreements, to include the guidelines of the European agreement I am referring to. In addition, most of the labour rights are expressed with a "should be applied" or "should be assumed", which do not indícate they are compulsory. In my opinion, an Agreement like this would have to be classified as hybrid, part recommendation and part regulatory agreement, as it is not made sufficiently clear which parts are binding and which others are merely declarative. — The recommendation framework agreement on the improvement of paid employment in agriculture of the Member States of the Union ' contains numerous recommendations about working hours and other conditions for bargaining conducted on the national, regional or provincial leve1 37 . Its final declaration gives us an idea of its programmatic nature on the very long term: the signing of this Framework Recommendation Agreement by GEOPA/COPA and EFA/ETUC — it says — is the crucial first stage of the process of jointly improving the position of paid employees in agriculture. It represents an act of mutual trust by the signing parties and makes it much more probable that they will be able to successfully face the challenges they come up against on the eve of the third millennium. Such ambiguities can be overcome, however, when the dubious collective instrument obtains the backing of a Community rule. The EC rule breathes life into what was born a weakling. In doing so it can say that some clauses are not sufficiently detailed, or that they have a provisional character, but we will always bet talking about a "collective" rule. I will return to this question in a moment. The question takes on a new complexion when the signing parties do not ask the Community authorities to enact a back-up Community standard, or when the Council decides by majority or unanimously to reject the request, which means that the Agreement will have the binding effect deserving of it alone. Not only the kind of applicabilBrussels, June 24 1997, signed by GEOPA/COPA and EFA/ETUC. 31 "The annual working time established by national, regional or provincial agreements shall not exceed 1,827 hours per year," it says, for instance. Beyond its orientative or programmatic Iiteralness, the omission of other levels of bargaining, like local or enterprise, are surprising in the Recommendation Framework Agreement. Applicability of European collective agreements  441 ity, but even the very nature of these autonomous or ordinary agreements is under debate. In the fines that follow I will take a look, first of all, at the legal situation of collective agreements accompanied by an EC regulation and secondly, at the possibility and applicability of those that do not have this backing. 3. REINFORCED AGREEMENTS 3.1. Do they always have to be stimulated by the Commission? Article 138 TEC seems to suggest that always, in all cases, European collective agreements must originate as a response to a Community action initiative that the social partners decide to substitute, for whatever reason, with their own action. Thus, the Commission will consult with the social partners, and these will respond with an opinion or a recommendation in which they announce their willingness to initiate the process provided for in article 139. And this article states that the European social partners can reach agreements, and that the application of these can occur via procedures of their own or via a Council decision. Bearing in mind both articles, it seems that the panorama opens up on the way out, but not on the way in; in other words, there are two possibilities for applying the agreement, but they can only originate with a Commission initiative to which the social partners respond with their agreement. I have already mentioned that since its beginnings in the 1991 agreement, the intention of this procedure has been to substitute the planned Community standard through a collective regulation. Thus, it seems logical not only that the ECA emerges reactively, on the defence, but also that it is on the level of a Community rule owing to its compliance with the tercos of article 139. The meteoric evolution from that period until the present has surpassed the legislator' s intention by far, giving a new dimension to the two TEC articles around which these ideas revolve. The interpretation of a standard cannot remain anchored in the historical moment when it carne into being, but should be fuelled by the social reality of the moment when it is applied 38 . The two agreements on the working time of seafarers and civil aviation crews in the measure mentioned aboye have been spontaneous, not stimulated; and equally 38 As the Spanish Civil Code states in article 3.1. 442  Collective bargaining in Europe  Applicability of European collective agreements  443 spontaneous has been the agreement on telework in commerce. The difference between the first two and the second lies in the fact that the former have obtained the backing of EC regulations, while the latter does not seem to have either requested or obtained it ". The trail has been blazed for the possibility of non-stimulated agreements, and it truly does seem logical in every way for the social parties, whether they be confederate or sectoral — although with even more reason, the latter — not to wait for the Commission to initiate preliminary steps if they deem it advisable to reach an agreement on some issue. The interpretation of articles 138 and 139 TEC bring us to the same conclusion. If section 1 of article 138 orders the Commission to adopt all necessary provisions to facilitate dialogue between social partners, at the same time section 1 of the following article states that Community social dialogue can lead to agreements of this level. The spirit of this statement should not be interpreted as an imperative mandate to bargain, going against all the Community's philosophy of freedoms, but as the EC legislator's desire to see this practice flourish. Neither of the sections, as fas as I understand them, envisages an incitement by the administration, although it comes from European levels; however, they do point out that the agreements are recognised even in the event that they are not guided by Community action. The fact that in another spot in article 138 a remittance is made to article 139, which I interpret as its section 1, does not necessarily imply that this section is, for that reason alone, confined to the opportunities offered by Commission initiatives, nor that all ECAs have to match the thirst for blocking incipient Community action. The invitation to bargain can in no way be understood as sine qua non legitimation, since this would mean a limit incompatible with the objective of social dialogue contained in article 136 TEC. Thus, there is the possibility of non-stimulated ECAs; that is, agreements arising spontaneously from social dialogue, without any intervention whatsoever by the Commission. Both these as well as the stimulated agreements can obtain the backing of a Community regulation, as the contents of sections 1 and 2 of article 139 are independent, as we have seen. To clear up any possible doubts that this is so, we must only have a look at the back-up decisions, particularly the function they perform in the regulatory structure. 39 However, the Framework Agreement on Telework of 16 July 2002 was motivated by a reaction to the second phase of consultations by the Commission on the modernisation and development of employment relationships, with a formal invitation to social parties to initiate bargaining on telework, accepted in a similarly formal manner by the parties on 20 September 2001. 3.2. The accompanying Community decision If the concept of Community action is ambiguous, for whose substitution bargaining is sometimes initiated by the social partners, equally or more so is the concept of Community "decision" announced to accompany certain European agreements, when the Council agrees to this a qualified majority or unanimously, depending on the case". The doctrinal possibilities that arise around the SPA range from those who thought that the "decision" referred to the usual kind of rule found in European social laws, the Directive, to those who thought that it should be interpreted in its technical sense, as a Council Decision, as well as others who defended a new, different meaning for the word 41 . The main problem stemmed from the fact that the Directives granted erga omnes applicability to European agreements that could inhibit bargaining in certain cases and for certain countries where the effects of bargaining activity had been traditionally restricted to affiliates of the signing parties. The Decision, on its part, had no such pretensions, and its statutory character directed at specific targets allowed its applicability to be adjusted to the desires of the social partners, without it being any different, on the other hand, from other cases in which a Decision reached millions of people in the EU. In practice, we see that the Decisions described in the TEC are published in the OJEC and many of them have a plural, although not general, target: for instance, those referring to matters such as tenders, official announcements, subsidies, etc., whose field of application at times affects many Europeans their defining identity resides — argues Boulouis — in the absence of general scope 43 . 40 The Commission, in its Communication about the application of protocol on social policy, COM (93) 600 final, dated 14 December 1993, carefully avoids commenting on the nature of this measure, at the most calling it a "legislative instrument" (p. 16). 41 See the different doctrinal stances in my article "Los euroacuerdos reforzados y la naturaleza de la decisión del Consejo," REDT 62 (1993), pp. 855 to 867, and in PÉREZ DE LOS Cosos ORMUEL, F., El derecho social comunitario en el tratado de la Union Europea, Civitas, Madrid, 1994, pp. 150 et seo. 42 This is the case, among many others, of the Council Decision 93/465/EEC (OJEC of 30 August) about the system of placing and use of the term "EC", which has no express target in its articles, although its is directed at European "manufacturers" in its annex. The Council Decision of 24 June 1992 (OCEJ of 26 August), about the European Year of Older People, aimed at "public and prívate operators", although it doesn't show a precise target in its articles either. Or Council Decision 93/379/EEC (OJEC of 2 July) on a multi-annual support program for small and medium-sized undertakings (SMU), with a diverse range of measures, without stipulating a specific target, although in the Annex it can be deduced that it is all SMUs as a whole. 43 Boutouts, Droit institutionnel des communautés européennes, Paris, 1991, p. 181. For more details on the type of Decision, please refer to my article "Los euroacuerdos reforzados y la naturaleza de la decision del Consejo," cited aboye. 456  Collective bargaining in Europe  Applicability of European collective agreements  457 It is pointless to say that the ECA only binds the affiliates 74 , that is, that it will be regarded as a collective agreement of limited applicability. In Spain the ECAs signed by CES and UNICE, organisations to which the most representative national head offices belong, would have general applicability if they did not lack other requirements, such as registration and publication in the official bulletin ", unless one of the following conditions had been met: either they were registered and published officially or at the request of a party 76 , or if the local judge put the ECA on the level of a national agreement, just as the European citizen is on the same level as the national citizen for labour issues. The doctrine has raised another specific question in terms of the application of the ECAs, especially because they can serve to lower the levels reached by agreements in force ". For that reason, Zachert proposes a special formulation of the most favourable standard principie, by virtue of which the ECA could only establish minimum conditions" opposed to national agreements. As far as Spain goes, given that an ECA of direct application is normally going to be considered as an agreement with limited applicability, the principie of the most favourable standard acts against agreements of general applicability, so the one with the better leve) of conditions for workers would prevail. lack of accreditation of the foreign law, SSTC 33/2002 of I1 February, and TS of 22 May 2001 (AR 6477). " In countries like Spain, where there is no rule or common law doctrine on application when only one of the parties belongs to a signing organisation, the local court can do little except declare the ECA applicable, as neither by the conferred mandate nor by the representation held can it bind an employer or worker who has not shown his or her consent to it. Of course in Labour Law there are more measures of direct action to obtain application of the agreed terms. " Similarly, PÉREZ DE LOS COROS, El Derecho Social Comunitario, p. 148: the ECA is contractual in nature and is an extra-statutory agreement, but if at the European bargaining table the most representative Spanish organisations were represented and they had complied with the requirements laid out in anides 87 et seq. ET, the agreement would have erga omnes or statutory validity in Spain. Article 2.f of Royal Decree 1040/1981 of 22 May indicates as the object of registration in the agreement registry, "any other agreement, arbitration award or pact that has the legal effects of an agreement. Article 2.c also requires crossindustry agreements to be registered and on concrete matters of anide 83 of the Workers' Statute, which refers to agreements drawn up by the most representative national or regional organisations, so that they can be considered as such to the ECAs, when said organisations are represented in them. The response would be different if article 83 strictly alluded to agreements signed on a national or regional level. n This is the fear shown in Italy by ARRIGO, G., A proposito della comparazione, pp. 69 et seq. 78 Europaische Tarifvertrage, p. 827. 5. EUROPEAN ENTERPRISE AGREEMENTS Without the stir produced by the intersectoral and sectoral ECA, the multinational enterprise agreements subject to the Directive 9445-EC have flooded the European space in a short time, and will probably constitute in the near future the real channel through which continental industrial relations take shape. In principie referring to the creation of European works councils or alternative formulas, the matters assigned as the competencies of these committees is leading to important agreements with the management of multinational companies 79 . Their importance is proven by the swift appearance of ECJ doctrine in several rulings, of which we are interested in the one about Luxembourg: in the ECJ ruling of 21 October 1999, Commission v. the Grand-Duchy of Luxembourg C-430/98, the Member State defended itself of the accusation of not having duly transposed Directive 94/45/EC, saying that it had entrusted its application to collective bargaining and that most of the affected multinational firms had signed European works council agreements, except one or two of them, for which it had not deemed it necessary to enact a guaranteeing law. The ECJ found that precisely for this reason, the transposition of the Directive had not been totally safeguarded, and ruled against Luxembourg. How these enterprise agreements fit in the context of European bargaining is one of the issues that remains to be settled. The Commission' s Communications on social dialogue allude to intersectoral and sectoral agreements, but not to those of a lower level". The appropriate place to debate these problems is in the chapter of this book on enterprise bargaining, to which I refer. "Particularly with respect to mobility, pensions and equivalency of qualifications," says the Communication on European Social Dialogue of 26 June 2002, p. 11. It will have to be examined whether an agreement signed between social partners, representatives of certain occupational categories or sectors, is sufficient basis for the Commission to suspend its legislative action, says the Communication on Protocol for Social Policy of 14 December 1993, p. 15. However, PÉREZ DE LOS COROS, El Derecho Social Comunitario en el Tratado de la Unión Europea, cited, pp. 157-8, considers that article 4 of the SPA (now anide 139) is a precarious framework, but a framework after all, for regulating these European enterprise agreements.