The European Constitution and the icons of solidarity

Sottotitolo: 
The reform of the European Constitution, or rather the 'Treaty establishing a European Constitution', appeared on the scene in July 2004 assuming a singular guise. The event had been anticipated for some time, but it went beyond expectations given that in the Laeken Declaration of December 2001 mention had never been made of a 'Constitution' but, according to a privileged witness, i.e. the vice-president of the Convention, what the founding fathers were called upon to do was to "make recommendations for simplifying and restructuring the Treaties, while the adjective 'constitutional' only appeared alongside the noun 'future', followed by a question mark" . But the result today is quite different: what we have is a text that reads like a symphony, even if there are a few hesitations in the score and with some bass notes that deserve to be more strongly coloured than they are, not to mention interpretative doubts which need to be worked out in detail, the result of its being a multilayered document which sometimes lacks coordination between its various sections.

1.The Constitutional project, the European context and labour law

The reform of the European Constitution, or rather the 'Treaty establishing a European Constitution', appeared on the scene in July 2004 assuming a singular guise. The event had been anticipated for some time, but it went beyond expectations given that in the Laeken Declaration of December 2001 mention had never been made of a 'Constitution' but, according to a privileged witness, i.e. the vice-president of the Convention, what the founding fathers were called upon to do was to "make recommendations for simplifying and restructuring the Treaties, while the adjective 'constitutional' only appeared alongside the noun 'future', followed by a question mark" . But the result today is quite different: what we have is a text that reads like a symphony, even if there are a few hesitations in the score and with some bass notes that deserve to be more strongly coloured than they are, not to mention interpretative doubts which need to be worked out in detail, the result of its being a multilayered document which sometimes lacks coordination between its various sections. . Moreover, its shape is atypical with respect to the structure of the entire constituent process as is enshrined in national legal systems (the absence of a demos from the outset, the uncertain nature of the EU itself).
One decidedly positive result is the incorporation of the Charter of Fundamental Rights in the project of the reformed Treaties of which it is an integral part and which, in my opinion, endows it with meaning.
1.1 The Charter of Fundamental Rights, then, moves out of the limbo area in which it had been suspended since birth and can become a guide in orienting the way the Treaties should be interpreted.
The novelty, as has been said, lies in the fact that the model of the Convention breaks with the traditional method of reform which had become outdated. Certainly, it lacks "the symbolic power and legitimization of a constituent assembly" but it is nonetheless the expression of a strong political will coming from within an institutional-parliamentary framework which is therefore the projection of a popular will.
This high-profile process of evolution in reformist decision-making has been marked by hesitations and worries, mainly motivated by the idea that the deficit in democracy that has characterized the life of the Community-Union is due to the premise on which it was born, i.e. the aim of integrating markets (so-called negative integration) within a strongly economic framework. On the other hand it would appear to be influenced by the idea that, in a society and an economy that are quite different from those of the mid-1950s when globalization was unheard of, today a strong institutional identity is all the more necessary the more it is founded on a grundnorm that has inspired its normative architecture. In short, a unitary legal system should be consolidated, possibly driven by clear founding values, which is dynamic and open to representative pluralism and makes it truly democratic and participative, capable of identifying itself, as is the case in many European constitutions, in the Welfare State. In other words, a State which - like those of the audience of its members - is capable of responding to the demands and social needs that emerge from a society that is profoundly changing, with solid laws and with a strong institutional sense.
But this does not always happen, and labour law in general, with its original values such as solidarity and the balance between individual and collective powers, has never had a quiet life, as history has shown .
1.2. The Charter of Fundamental Rights of 2000, the solemn declaration expressing the highest degree of political and legal commitment by a supranational lawmaker that was compatible with its drafting schedule, is a spurious document coming after the political agenda had been worked out for the Intergovernmental Conference of 2000. The latter was much more determined to sort out the institutional problems of Community governance, by finding the right balance between its decision-making bodies: reform of the Council's electoral system, redefining the decision-making powers of the Court of Justice and the composition of the European Parliament, and a common security and defence policy faced with the wars in progress at that time.
A 'social agenda' was excluded, perhaps because it seemed risky proposing one with the enlargement pending of the EU to future members. Not that these institutional reforms, which were reformulated again in 2003, are not important in terms of acquiring political consensus and the legitimization of the institutions. But they are certainly no more delicate and precious than the problems of the labour market which guarantee the supply of a further dose of consensus, albeit of a different, i.e. a social, kind of which the representative institutions of widespread interests (the social parties, non-governmental bodies in civil society) are an expression.
But precisely this type of agenda which regulates through binding legal norms production and labour relationships is bound to have a hard life if it is true that labour law is the technique for regulating social power, and sometimes it is not just limited to that, but it distributes it in society, though not always in proportions that are compatible with a democratic way of handling the industrial relations system. And support for the 'democracy of labour' is all the more difficult the wider, the more complex and heterogeneous the system is, and the harder and slower the mediations and compromises may be that lie at the heart of regulation.
But in order to perceive fully the role that European labour law can play as an element in promoting collective consensus, we need merely think of the difficulties that social dialogue has encountered. This is the outcome of the cultural diversity existing both between the natural antagonists (employers and workers) and, to an even larger degree, within one of them - the employers' representatives - if it is true that Ceep has a more 'participative culture' than Unice .
This social agenda has become all the more necessary as the Community has acquired a thinking body (the European Central Bank) by which it regulates the way national States breathe by directly controlling cyclical trends (containing expenditure and reducing the public debt), with the centralization of monetary strategy (the stability pact), and also, surreptitiously, oscillations in the labour market (employment, unemployment) by means of open method of coordination (title VIII, of the Treaty on European Union, now Chapter III of the Constitution).
And yet the social Action Plans represent, like a continuous X-ray, the state of health of Europe's labour market, and from 1974 to today they have shown that a policy of support for the 'social economy of the market', as theorized by the Frieburg School, was not enough to compensate for the Community's democratic deficiencies. The labour market and welfare in Europe would seem to have been sacrificed by the diktat of economic integration where the fundamental principles of competition and the free movement of goods and services are accepted.
Certainly, there is also the free movement of persons, but European law - the so-called 'social' Directives of the 1970s and 1980s on the transfer of undertakings, employers insolvency and collective dismissals - were essentially aimed at making Community labour law, the orphan of a founding inspiration, merely an instrument for 'homogenizing' the rules as a way of limiting the distortions of competition. In fact, what was lacking was a long-term project which qualifies a political institution as being truly reformist. This is proved by the fact that, from the 1980s onwards, those social Action Plans began to be concerned not just with creating employment but with reducing the pathology of unemployment by attempting to identify possible therapies (education/vocational training, labour market flexibility, the fight against discrimination).
Delors' White Book of 1993 already envisaged a radical change in the Community's economic strategy, with the restoration of the idea of full employment at the heart of European policy. In fact, the new manifesto is entitled 'Growth, competitiveness and employment' and it states that a profound change in economic policy is necessary which must put once again the theme of full employment at the centre of the overall policy of the countries of Europe in a renewed economic culture that is healthy, open decentralized but above all based on solidarity .
2. The need for fundamental rights: the statute of the 'new European' and social citizenship
Solidarity is a 'gene' which has characterized since its birth the trade union system and the kind of labour law that provides that system with its legal framework. It has long belonged to a European legal culture that has perceived that neither solidarity nor social cohesion can exist if they are not supported by a model rooted in a robust platform of fundamental rights and on criteria of social convergence for monetary union. In other words a series of founding legal principles of a category such as social citizenship on which to build positive integration must be opposed to the pure economic ideology.
The notion of citizenship includes all those civil and political rights together with social rights , thereby achieving the identity of the European cives which gives meaning to a "belonging founded on trust in a commonly owned civilization"
This is a word that we will find in the Nice Charter and which is also in the new Constitution today.
E' quindi chiaro che il futuro dei paesi candidati non può a lungo fare affidamento sul vantaggio comparativo dei bassi salari. Un alto valore aggiunto, invece di un puro lavoro d'assemblaggio, è richiesto per avere la possibilità di integrarsi ad un livello più alto della competizione industriale Europea.
Here art. I-10 is part of the so-called "Citizenship of the Union" which, by inserting it from the Treaty of Amsterdam, builds a series of rights limited - at least in their express formulation - to the political profile of European citizenship and which belong to those who have the right to move within the territory of the EU, to participate in the political dynamics of the Community, to be protected by their consular and diplomatic offices as well as to sign petitions and present them to EU bodies. However, the physiognomy they build up is incomplete insofar as this European identity is configured as a corollary of national citizenship while the social aspect of identity is ignored. In other words they ignore the collocation of the citizen as a socius, and not just the concept of polis but also the collective context of the labour market and as the recipient of Welfare. Thus, citizenship, as has been said, would seem to be no more than a mere 'metaphor' .
On all this lies the weight of the past which bequeaths a State that is no longer what it was, with a legal system essentially aimed at economic integration as experienced by a union of peoples that is not the original demos
Hence the idea of a more complete European citizenship as a sign of evolution which brings together civil rights (freedom, equality) and political rights (participation in democratic life) and also embraces social rights (welfare and solidarity) .

And yet the foundations can even be found in the EU Treaty when it is grandly claimed (art. 2) that one of the objectives of the Community is "to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development". A coordinated interpretation of the law suggests that work and employment can be a means for achieving the status of 'social' citizen in the Union. In short, we can find a more complete idea of new humanism as envisaged by Erasmus of Rotterdam.

3. The foundations of social citizenship: values and objectives
But first the legal means and techniques for making this status visible and effective must be created, and this is not easily achieved. It must be built in stages, starting precisely from the definition both of the values on which the legal system is founded, insofar as they are common to all member states, and the objectives to be reached. The former have been reformulated today (art. I-2 of the Constitution) adding dignity and equality to freedom and democracy, as contained in the old art. 6 of the EU Treaty. The EU has become an area where ever wider values are taking root, such as pluralism, solidarity and non-discrimination, nouns which belong to the lexis of labour law and social policy where they collocate, as we shall see, with appropriate adjectives. Nevertheless, social justice is not included in this list, whereas Work Group XI of the Convention had suggested adding it so as to complete the nucleus of 'transversal' principles that are relevant for the European social model .
These values orientate the objectives that the political powers of the EU are committed to achieving, in a terminological crescendo, beginning above all with the mere promotion of peace and of the values and wellbeing of peoples, followed by the building of an area of freedom, security, justice and a single market, and lastly through the achievement of sustainable development based, in any case, on a social market economy genuinely competitive, and aims at full employment and social progress (art. I-3 of the Constitution). The final result is the basic choice made by the drafters of the Constitution consisting in the placing of social objectives in a position of equivalence and not of subordination to economic ones. The "social market economy", next to full employment and social progress, constitutes an innovation in the existing normative plot which goes back to the strategy worked out in Lisbon. Its presence in the constitutional text underlines the desire to measure economic policy on the effects it produces both on welfare and on the world of labour.
The tone becomes stronger and to some extent emphatic when this commitment is translated in terms of fighting against social exclusion and discrimination, of promoting social justice, and of protecting the principles of equality between men and women, of solidarity between generations, and of enacting social cohesion.
These semantic variations are certainly important; at the very least they testify to the attention to the consequences deriving from economic trends which influence legal formulae. But there are few changes with respect to the old art. 2 of the EU Treaty: they consist in a utopian dream - the achievement of full employment - and a simple promise, the promotion of social justice.
That is all there is for industrial relations.
In short, the "European social model" has not been exhaustively identified. Also because a project of reform should be evaluated also in terms of what it does not say, and it is easy to discover that, within the framework outlined, there is no reference to issues such as the quality of work, continuous and permanent vocational training, a high level of social services and of services of general interest .
Emphasis is placed, rather, on the usual objectives of negative integration: a commitment to work for free competition that is not subject to distortion, balanced economic growth and a highly competitive social market economy.
This is how the Constitutional Project was born, by balancing various objectives, the fulfilment of which must be measured by respecting the values proclaimed, and thus any economic programme must be such as to be based on (and guarantee) dignity, freedom, democracy and equality. And herein lies the challenge for the future: how will it be possible to ensure the respect and dignity of individuals working in a highly competitive economic system? How can the freedom of individuals or of groups be protected in an environment of balanced economic growth?
This is a commitment that the Union undertakes insofar as it is active in coordinating the national strategies of each Member State which must pursue shared aims (art. I-1 of the Constitution).
The answers to these questions will have to come from the judges in Luxembourg whose task is not only that of ensuring the freedom of movement of persons, goods and services and the freedom to reside in any Member State, which are deemed to be fundamental rights, but also includes the delicate mission of harmonising them "with the Constitution" (art. I-4). And these include the obligation for the Union to bring into being an area of freedom, security, full employment, progress and social justice (art. I-3) of the Constitution.
4. The social lexis of the new millennium
These are the other words which, alongside solidarity, qualify the renewed reformism of the 21st century. On these should be built a labour law system based on different, alternative and stronger guidelines with respect to those on which the European Community was originally based.
The most significant innovation in the Constitution is the incorporation of the Nice Charter of Fundamental Rights, of which the EU "recognises the rights, freedoms and principles" (art. I-9, Title II). And the reason for this is that a clear formulation of these rights removes any aura of ambiguity and hence any oscillations in the case law of the European Court of Justice, thereby overcoming the hostility of those countries that object to a bill of rights on the grounds that it undermines national sovereignty .
The incorporation of the Charter also satisfies the demands of the European trade unions who had asked for the introduction of a monitoring procedure with regard to the dynamic evolution of the Treaty. The European Confederation of Trade Unions had asked that the new Constitution should also contain the obligation for Member States to adhere to and comply with the equivalent rights laid down in the European and international instruments on which the Charter is based. It had recommended that the Union should accede to the European Convention of human rights and fundamental freedoms.
The reform Project didn't take on the request in its entirety, and it only spoke in terms of an "aspiration" ("shall seek accesion", art. II-7). But it abandoned its terminological prudery of the past by not merely committing itself to "respect" (art. 6, para. 1, of the EU Treaty) the rights contained therein, but by going further and offering a further source of inspiration insofar as it affirms that the fundamental rights of the European Convention are part of the "general principles" (art. II-7, para. 3) of EU law . The final version of the Constitution is less ambiguous and more clear and states that Union "shall accede" to European Convention (art. I-9, para. 2, Title II).
It would seem clear now just how much normative heritage becomes available, but if we return to the Nice Charter (now Part II of the Constitution), we can see how cautiously the legislators have dealt with the debate - as old as it has been sterile from the legislative point of view - of the coexistence between the Convention of 1950 and the European Union-Community. Two siblings separated by the same language.
In fact, in the Preamble to the Charter, which has remained almost identical except for an explanatory addition, it is stressed that it simply "reaffirms" the rights contained in the Convention of 1950.
So what value do these different formulae have? How can specifically and clearly identified 'rights' be considered at the same time as "general principles" by the Constitutional Project, as "being part" of the Constitution itself, and as being simply "reaffirmed" by the Charter which is incorporated into the Constitution? Because of its transitive quality, is this reaffirmation a means of integrating the rights of the Convention into the Treaties, via the Charter? If so, why not say so clearly using a clearer and stronger formula?
So what value do these different formulae have? How can specifically and clearly identified 'rights' be considered at the same time as "general principles" by the Constitutional Project, as "being part" of the Constitution itself, and as being simply "reaffirmed" by the Charter which is incorporated into the Constitution? Because of its transitive quality, is this reaffirmation a means of integrating the rights of the Convention into the Treaties, via the Charter? If so, why not say so clearly using a clearer and stronger formula?
Those who remember the entire debate that accompanied the coexistence between the latter and the Convention and the availability of the judges in Strasbourg to "proceed to checking over the law of the Community" may be able to explain the linguistic balancing act on which the compromise is based and through which the EU judges proudly defend their judicial role. This 'judiciary chauvinism' can be seen in the homage made - again in the preamble to the Charter - both to the judges in Strasbourg and to those in Luxembourg whose orientations are "reaffirmed" as sources of the production of law of equal merit and dignity.
The choice of incorporation eliminates the uncertainties that had characterized the constituent debate between those who wanted to insert the Charter into the body of the Constitution and those who considered it sufficient to have it as an attached protocol, except for an express reference contained in art. 6 of the EU Treaty . By choosing the former the EU is now endowed with being "the original and authentic public power" , with consequent effects both in terms of the justiciability of rights (in general, and labour rights in particular) contained in it, of their superimposition with respect to the national laws of Member States , and of their coordination with the provisions of the Convention of 1950.
As an example, precisely in the field of collective employment relationships, it is worth remembering that, in terms of searching for a piece of the legal mosaic on which to build a system of industrial relations, art. 11 of the 1950 Convention recognising the right of trade union organisations "as the right to participate in the setting up of trade unions and of belonging to them for the defence of one's own interests" may not be decisive.
As a general principle it is not so wide-ranging as the corresponding principle in the Nice Charter. In fact, according to its formulation in the Convention it would seem to be incapable of embracing the multiplicity of aspects of freedom of organisation such as the right to associate, to set up autonomous organisations, to carry out trade union activities (including 'works councils' inside the factory), but also the legal status of trade unions, their definition, the right to information and consultation, collective bargaining and trade union activity in general . Not to mention the minimalist approach that the right in question offers the European Court of human rights by extracting from art. 11 only the principle of negative freedom. It is worth remembering that in the Bosman case the Court of Justice recognised that art. 11 of the 1950 Convention deriving also from the common constitutional inspiration of Member States is "one of the fundamental rights which as the Court consistently held and as is reaffirmed in the Preamble to the Single European Act and in art. F (2) of the EU Treaty, are protected in the Community's legal order" (Sentence 415/93 15.12.1995, Racc. I, p. 4921, point 79).
5. Employment as the expression of social citizenship
The conclusions of the Presidency of the Council in Lisbon 2000, in particular, define the strategy for the future as "employment, economic reform and social cohesion" with the intention of "modernising the European social model, by investing in people and fighting against social exclusion". They also add that the aim is "to act so that the Union returns to conditions of full employment" and so that "social cohesion is strengthened" within the Union.
It is therefore a genuinely reformist creed which many people will dislike, but I believe it is the only one possible in the Community's legal system today, a headless and fragile-footed body with a penchant for long drawn-out and often disappointing compromises. It has, however, one undeniable merit, that of adding to the long list of the EU's political idealtypes lexical items which, when translated into formal expressions become: full employment = labour law, and social cohesion = the Welfare state.
The evolution of European policy in terms of the relationship between the economy and the labour market is marked by the stages that lead to the Swedish presidency of the Council in 2001 and to the importance it gives to the "quality of the work environment". They show that the path begun in 1997 and with the Treaty of Amsterdam must continue, precisely because the European strategy of employment (title VIII TEU) must be measured against two structural elements: demographic change and unemployment .
The latter is the 'dark side of the market': its pathological profile introduces destabilising factors into the culture and climate of industrial relations. Thus, together with an active labour policy, it awakens the sense of responsibility of labour law and collective bargaining which must ensure strength and efficiency to the existing juridical-institutional instruments or else invent new ones to protect the physiognomy of the social citizen in the wider Community polis.
If we look closely, we see that employment/unemployment couple requires a labour law and industrial relations policy which, in national contexts, found expression in the various models of legal culture arising out of the crisis years between 1973 and 1977 in Europe. Legislation promoting collective autonomy, industrial democracy, the institutional involvement of the social parties, and deregulation have had (and continue to have) the function of recouping the consent necessary for regulating the labour market and for rationalising the system of collective employment relationships.
The theme has been echoed on a multiple scale in Europe and has been resolved by resorting to soft law, a device that is still fragile in terms of its institutional efficiency. Title VIII of the EU Treaty (today Part III, Chapter III of the Constitution) is inserted next to the chapter on social dialogue and codecisional procedures, where the initiative in the sphere of labour law develops under the impulse of EU authority and private collective powers.
But the regulatory instruments are quite different: on the one hand, as regards employment policies there is the method of open coordination (the Luxembourg process); on the other, as regards decisions concerning employment relationships there is social dialogue seen as a negotiation process which leads - under the impulse of the Community institution - to collective bargaining.

This pattern is reproduced in the Constitution within an undoubtedly rich legal culture arising both out of its quality as a constitutional text and from the presence of the Charter of fundamental rights.
But the collocation of 'employment' next to social policy in Chapter III, under the general heading 'Policies in other specific areas', does not free it from the burden it was born with. Employment, and active labour market strategies in general, are still considered as complementary features of economic policy, even if a "full employment" is an objective that the EU must reach (art. I-3 of the Constitution). But if the objective is praiseworthy and contains a strong proposal, the means remain paradoxically weak and structurally clumsy: in fact the entire procedure of open coordination is not based on social partnership; rather, it relegates collective autonomy to a relatively marginal position .
The normative model proposed is built upon the operative responsibility of the Union and of the Member States which alone are responsible for "developing a coordinated strategy for employment and in particularly for promoting a skilled, trained and adaptable workforce" (art. III-203 of the Constitution). And this is precisely because the techniques for regulating the dynamics of the labour market capable of responding to the economic changes of the labour market "shall contribute to the achievement of the objectives referred in art. III-203 in a way consistent with the broad guidelines of the economic policies of the Member States and of the Union adopted pursuant art. III-179 (2)" (art. III-204).
It is true - and much of the history of labour law proves this - that it is economic strategy that conditions the choices of legislative policy and the legal techniques connected with the regulation of work. But it is also true that the area of this market has always been controlled by collective trade union autonomy. However, the supranational legislator has not appreciated the value of this cultural tradition belonging to most Member States.
The social parties are entrusted with a merely consultative role, albeit in the guise of fulfilling an obligation of information by the Committee for employment (art. III-208). However, this does not come at the start of the path outlined by the legislator but at the end. Thus there will be no trade union involvement either in the phase where the Council draws up its conclusions, or in the one where Member States are meant to indicate their annual trends for the future, nor during consultation relating to the application of their national policies nor, lastly, in the subsequent phase when recommendations are made.
Nothing would have prevented the creation - in the elaborate sequence of activities and in the complex formative procedure of the final decision, the adoption of guidelines and recommendations, and the activities of the Committee in favour of employment - of a space for trade union participation in the form of a more stable and institutionalised consultative role that went beyond the mere involvement of the parties "in the possible direction of Community action" (art. III-211 para. 2). Nothing would have prevented this, and it would have detached the function of control over the market from the rhetorical emphasis that transpires from the documents accompanying the drafting of Title VIII .
Even today, then - and this is a disheartening conclusion - the Chapter on employment is still part of a weak institutional body with a poor bone structure and not sufficient nervous system.
Social policy, transplanted into the norms of the constitutional text, is still entrusted, then, to the action of "encouragement towards cooperation" among Member States, to the method of open coordination described above, and to the minimum prescriptions applicable. We can therefore witness the continuation of the 'original sin' that accompanies the entire European strategy on employment of title VIII (today Chapter III-Section 1 of the Constitution), i.e. that "the European laws and framework laws do not include the harmonisation of the laws and regulations of the Member States" (art. III-207) even for the issues contained in art. III-210 which embrace the whole of labour law.
The reasons for this strategic fixity are to be found in the ideological background and inclination for forced compromise that permeate EU circles. The device of open coordination appears to be the only possible form of mediation which, at present, compensates for the centralist aspirations of the Union and the pride of national clubs jealous of their own prerogatives as managers of the 'labour system'. The ground on which the Union moves is unstable, national chauvinism takes root there, measuring the social agenda and the model it proposes against the economic cost and social dumping.
And yet a few lessons emerge from the acquis communautaire which moves with the caution and self-restraint necessary for planning policies for creating or at least regulating employment through legislation which produces indirect effects on it. The directive on working hours (93/104) establishes the temporal boundaries of excess work, while the directive on part-time work prevents the fixing of conditions that are less favourable to the employee. The Court of Justice has also dealt with labour policies when it was asked to pass a verdict on the compatibility with the norms on State subsidies (Case C-241/94 French Republic v. the Commission) or on those aimed at promoting employment (Case C-167/97 Seymour, Smith and Perez) .
Moreover, collective autonomy itself has not betrayed its historical vocation in concerning itself with the dynamics of the labour market by using the tools of social dialogue and participation in the drafting procedures of directives. In fact, those mechanisms constituted "a contribution to overall European strategy on employment" and also in regulating the dynamics of individual employment relationships (Preamble to the European Agreement on part-time work annexed to the 1997 directive). And through those very mechanisms the ETUC had also managed to obtain the commitment from firms to facilitate the access of fixed-term employees to vocational training and mobility of employment (Preamble to the agreement on fixed-term employment annexed to directive 1999/70).
Finally. those fundamental rights which guide the action of the EU and of individual Member States by prohibiting discrimination (directives 43 and 78 of 2000), given that equal treatment and equal opportunity guarantee the social inclusion of minority groups, are not extraneous to the recomposition of the labour market and to improving its functionality .
The perspective is widened when the change in general culture promotes a broader model of industrial relations where also the spread of the rights to information and to consultation to workers in the 'gallery of members' is assigned the value of fundamental element "into all public policies likely to benefit employment" insofar as they can facilitate coherent change with conservation of that objective which is marked as having priority (Directive 2002/14/EC, point no. 10).

6. Social policy between rules of competence and voting system
The EU's reluctance to legislate in order to enact measures relating to the labour market can be explained in the light of the division of competences in the sphere of social policy and the voting system.
Proof of this lies in the fact that precisely these two issues, which involve the delicate relationships between central power and the periphery in the Community system, have not been affected by constitutional reform. This would have been the right time to update these two profiles and to give them a dynamic role in the creation of norms. But this would have meant redefining the political balance and dislocating powers as well as the overall framework of supranational governance. In a word, redefining competences would have meant interfering with the principle of subsidiarity.
The time is not yet ripe, and the European Confederation of Trade Unions has proposed that the current competences of the Union in the social policy sector should be maintained without any reduction. It has underlined, rather, the need to amend art. 137, para. 5, of the EU Treaty by eliminating all references to the right to strike and to lockout, the right of association and to remuneration.
The reformist design does not present any great innovations since social policy, as regards the aspects defined in part III, and social cohesion (Part I, art. I-14, para. 2), remain entrusted to the principle of shared competence. The Community's government still keeps the function of coordinating the employment policies of the Member States through guidelines, including actions of support and completion in the spheres of education and vocational training (Part I, art. I-17, para. 2).
The basic idea is that the area of labour market policy, which is made up of incentive techniques for employment such as systems for providing job skills and training to support individuals wanting to enter the labour market, is complementary to economic coordination, as the Constitution explicitly indicates when assigning to the Union the "coordination" of the two spheres (Part I, art. I-15, para. 3). As integral and conditioning parts of the economic cost of each country, the dynamics within employment flows must be subject to two limitations: on the one hand a check on the peripheral trends of national markets, and on the other the prohibition of any attempt to harmonise legislative and regulatory provisions (Part I, art. I-18, para. 3).
The restyling of the Treaty has got bogged down on this point, in spite of the efforts of some members of Group XI to reaffirm the dignity of the employment sphere and to detach it from its supine subjection to the economic sphere: the final recommendation is limited to hoping for a "more decisive role" on the part of the European Parliament in coordinating the two areas . So it seemed impossible to change the distribution of political and legislative power by altering the logic of subsidiarity, and the debate has shifted into the area where it was hoped that it would be possible to promote the decision-making dynamism of the bodies of supranational government.
Group XI has taken note of the impossibility of changing competences by calling for an extension of the right to qualified majority voting, and for greater "visibility" to be given to the articles on social policy in the newly revised Constitution. Nothing more, given that European action which "supports and completes national reforms" must above all be directed to those areas where the internal market operates in order to prevent distortions in competitiveness.
The end result is that we find the same logic and sense contained in the previous set of norms also in the Constitution, but with an updated numbering system. Today art. III-210, Part III (ex art. 137 of the EU Treaty) reproposes the issues which the Council, in joint codecision with the European Parliament, can decide on with a qualified majority by allowing for minimum prescriptions to be progressively applied: improvements in the working environment to protect the health and safety of employees, working conditions, information and consultation, the integration of persons excluded from the labour market, complete equality between men and women, the fight against social exclusion, modernisation of the welfare system.
Unanimous decisions are required, on the other hand, precisely for those issues which have inevitably economic or broadly political consequences or effects, i.e. where control cannot be entrusted to a codecisional mechanism in order to avoid imbalances in terms of uniformity and regulatory force:
a) social security and the social protection of workers,
b) the protection of workers in case of termination of the employment contract,
c) the representation and protection of workers' and employers' interests, including joint management,
d) working conditions for citizens from third party countries who legally reside in the territory of the Union.
The type of voting mechanism is strictly connected to the delicacy of the subject and the value it has been given in terms of the stability of the Single Market and the rules of competition. Each of these themes could affect the fundamental freedom of movement and the objective contained in art. I-3, para. 2, Part I of the Constitution. In fact, these are all 'nerves' that are sensitive to the economic temperature of every State: they reveal the link between labour law and the economy, and they are the proof of how the former affects the latter.
Social security and social protection, as integral parts of the European welfare model, entail an economic onus as well as a fiscal policy insofar as the termination of the employment relationship and the payment of relative benefits are burden for the enterprises system.
The issue of third party citizens is of general interest in that it is complementary to the free movement of persons, the raison d'être on which the decisional power of the States is exercised by means of a centralised coordination of strategies. It constitutes a fundamental value compliance with which is controlled by the Court of Justice according to which "the employment situation and, more generally, the improvement of living and working conditions within the community are liable to be affected by the policy pursued by the Member States with regard to workers from non-member Countries. It is therefore important to ensure that the migration policies of Member States in relation to non-member Countries take into account both common policies and the actions taken at community level, in particular within the framework of Community labour market policy, in order not to jeopardize the results" (Court of Justice 9.7.1987, case 281-287/85, Germany France, Netherlands, Denmark and United Kingdom v. Commission, Rec. 1987, p. 3203).
The question of the representation and protection of employers and workers, including joint management, is one of the manifestations of the collective dimension of interests, and it affects the balance of opposed social powers which are composed in various institutional models of integration of workers' representatives in the management of firms. In national contexts the question acquires a distinctly political flavour which, without a favourable institutional framework or any ideological consistency, has difficulty in taking off if it is not supported by an already-existing strong consensus.
In any case when faced with that icon of trade union law the Community has always been afraid of behaving like a 'bull in a china shop', to the extent of opting for self-restraint, which most visibly manifests itself in previous art. 137, para. 5 TEU (today art. III-210, para. 6, Part III). By excluding specifically trade union features - such as the right to associate and the right to strike and to lockout - the new Constitution continues to perpetuate, on the one hand, the worry about the dangerousness of the codecision procedure, which is the source of a Community initiative, and, on the other, the respect for national jealousies. All those legal systems that have included trade union law have developed by reaching a difficult balance between legal heteronomy and collective autonomy.
The picture, then, does not change as regards the voting system in the Constitution which absorbs, both in terms of its guiding principles and structure, the changes introduced by the Nice Treaty, though it does make one or two linguistic innovations, also in terms of substance.
The ideas developed in Nice, then, are reaffirmed, namely:
1) as regards labour policies - specified in art. III-210, para. 1, Part III - the cooperation of Member States, when called for by the Union, does not entail harmonisation among legal systems;
2) this comes about through initiatives aimed at improving knowledge, developing the exchange of information and good customs and practices, and promoting innovative approaches and evaluating past experience;
3) in all the matters listed in the article (except for the modernisation of the systems of social protection) the technique will be that of progressively applied minimum prescriptions "taking into account the conditions and normative techniques existing in each Member State";
4) the first lexical innovation is where, in indicating the measures to be activated, in identifying the body (the Council) the new norm replaces the regulatory act, and the legal source of the 'measure' is no longer the directive but laws and European framework laws";
5) the second would appear to be due to a flaw in coordination: the preamble on social policy (Section 2, Chapter III, art. 209 of the Constitution, ex art. 136 of the EU Treaty) tacitly refers to art. I-3, para. 3, recalling the objectives of the Union, even if, among them, in the rewording of the new art. III-103 the term 'employment' is preceded by the adjective 'high' and not 'full' (which can be found instead in art. I-3, para. 3). The new Constitution, then, does not alter the political balance that had emerged from past reforms and was enshrined in Nice, thus leaving behind unchanged those institutional procedures on which the precarious structure of the Union is based. In fact, neither the philosophy of subsidiarity nor the decision-making mechanisms have been promoted in the new text, and the final solution adopted quietly ignores the debate arising from Group XI who favoured widening the range of matters to be decided by a qualified majority , and hence the supporters of the noli me tangere philosophy which takes into consideration "national diversities" based on the traditions and cultures of the Member States. To these we must add those who recommended as a possible compromise a "superqualified majority vote" of 75%.

7. The 'coming of age' of social dialogue and the role of the social partners

Collective autonomy has not always had a quiet life in the sophisticated ambience of the Community, proof of the difficulty that labour law and the industrial relations system have experienced every time they have attempted to "develop a basis of rationality" to the EU's social policy . The effect has been a tardy recognition of the virtues of compromise and responsibility that collective bargaining can play in the labour market. The directives of the 1970s and 1980s testify to the 'resistible rise' of collective relationships and their timid appearance in Europe's legal lexis. Information and consultation express the maximum degree of politically tolerable nouns, while collective agreements are only marginally taken into consideration. Collective autonomy did not constitute a legally recognised category in relation to the labour market, and thus it did not appear in the sphere of industrial relations, if nothing else because it could not create them without strong legislative support.
But the Court of Justice does not consider it blasphemous to recognise that States may first of all entrust to the social parties the task of carrying out the aims of social policy pursued by the Directive (Court of Justice 10.7.1986, Case 235/84, Commission v. Italian government, Rec. 1986, p. 2291). Moreover, from the framework directive of 1989 on the protection of workers' health to the most recent directives we can observe a growth in the trust afforded to collective bargaining. It has come to be considered as a functional device sometimes specifying, or applying, or defining, or even derogating with respect to the Community's rules within a dialectic among the sources of legislation in which the law even calls upon collective bargaining to modulate forms of protection (Directive on Posting of workers in the framework of provision of services 96/71) .
The celebration of this model within the Community, and thus in its specifically European dimension, begins with the Single Act where social dialogue first appears, subsequently passing through Maastricht, Amsterdam, and Nice, and ending up on the table of the drafters of the Convention.
Along the path between 1987 and 2003 the model was updated both lexically and substantially: social dialogue may "break out" if the social parties "consider it opportune in conventional relations" (art. 22 of the Single European Act); this "may lead", if the parties "so desire" also to "bargaining relations, including agreements" (Maastricht, Amsterdam and Nice - art. 139, ex 118 B).
This long path has produced the result of raising the functional dimension of collective autonomy to a supranational level where the rules are worked out perhaps with greater difficulty than elsewhere. In any case, the lawmaker's choice has its roots in the legislative traditions of the Member States, i.e. in those 'promotional' norms that distinguish the national model also on a constitutional level.
With the difference that in the new Constitution the words used are new. The role of the social parties is implicit, while recognition is explicit as regards the value on which social dialogue is founded, i.e. the capacity for making the life of the Union 'democratic'. This is the 'tune' played by Title VI, in which both the former and the latter are expressions of 'social' democracy which, on a par with representative democracy (art. VI-46, Part I) and participatory democracy (art. VI-47, Part I), realises 'democratic equality', i.e. the right of all citizens to receive "equal attention" from the Union (art. VI-45, Part I).
The novelty lies in the fact that now the European government not only has the obligation "to recognise and promote" the role of the social partners ("taking into account the diversity of national systems") but also to 'facilitate' "dialogue … by respecting their autonomy" (art. VI - 47, Part I).
It assumes fresh value as a guiding principle of the Union's collective social dimension and of its active involvement in the sphere of industrial relations.
The new expression of "autonomous" social dialogue stands for the reaffirmation of autonomy as a founding value of the inter-trade-union system, as was meant by Giugni . And the Constitution repeats the ways in which that respect is actively conveyed. Legislative support is given by:
· promoting consultation between the social partners;
- setting up measures which facilitate dialogue between them;
- providing balanced support;
- consulting the parties predominantly over the possible orientation of the legislative function;
- consulting on the content proposed and recognising their right to give opinions and make recommendations;
- · guaranteeing the right to stipulate an agreement which is the final outcome of a productive dialogue of bargaining relations and autonomous agreements (art. III-105, Part III, ex art. 138 of the European Union Treaty).
Collective autonomy intervenes in the process of forming the legislative will both as regards the definition of the orientation and on the content of supranational action. It can decide to replace the legislator by initiating substitute bargaining procedures which lead to a Community-wide collective agreement. Moreover, the "material Constitution" of Community industrial relations benefits from political recognition since the role of the social partners is sublimated - thanks to the Lisbon process - into so-called periodical "social summits", during the European Council meetings in spring. Not to mention the initiation of a bargaining process that has given birth to three European intersectoral agreements and two sectoral agreements (for civil aviation and maritime workers).
Could a higher evaluation than the one actually provided - admittedly 'noble' and of constitutional rank - have been obtained for the role of the social partners in the codecision-making mechanism? The proposals that emerged from within Group XI all strongly express the 'philosophy' of the formal recognition of collective autonomy in Title VI of the Constitutional text and of its functional prerogatives such as consultation, the recognition, support and strengthening of collective bargaining, and a more active involvement of NGOs in the areas of social policy . But they did not go beyond the new label attributed to social dialogue, for example, as a means of increasing and formalising horizontal subsidiarity through a boost of normative lymph. The ETUC unsuccessfully proposed the creation of a stable and permanent infrastructure for involving the trade unions, and which also included organisations from civil society. But it received no answer, and perhaps this depends on the difficulty even today of identifying the actors - according to J.T.Dunlop's classic analysis - that operate the system.
In fact, we can read these provisions with reference to the acquis communautaire and to the Court of Justice which (Ueapme v. Council and Commission, 17 June 1998, T-135/96, Rec. 1998, II, p. 2335) has already found a possible place for the European industrial relations system when it refers to the identity of its actors. It is true that ex artt. 138 and 139 recognise the right for all the social parties to be consulted - as the Court says - but only if they are consulted do they have the right to bargain. These articles do not confer at a European level a general and unconditional right to all the social parties, whatever the interest that they claim to represent, to take part in any form of bargaining. In order to exercise that right they must have a 'cumulative' representativeness "in the light of the sphere of application ratione materiae of the agreement". It is like saying that to carry out the delicate task of "making the Union's life democratic" reliable interlocutors are needed since it is a task that "requires - in the absence of the participation of the European Parliament in the legislative process - that the participation of the people be otherwise assured, in this instance through the parties representative of management and labour who concluded the agreement which is endowed by the Council, acting on a qualified majority, on a proposal from the Commission, with a legislative foundation at Community level" (Ueapme Case, para. 89).
This explains why social dialogue has been proclaimed as being explicitly "autonomous" in the incipit of art. III-103, endowed as it is with a delicate operative responsibility that is at the same time formal and substantial.
But how far can the Court of Justice go in identifying which collective parties are effectively responsible? What meaning should be given to the formula of 'cumulative representativeness'?
8. Fundamental social rights and the Nice Charter
The recognition of a fundamental social right to trade union organisation at a transnational level, which the ETUC has called for on several occasions, has not been accepted, and the Confederation must find legitimisation, as it has done so far, by walking down the corridors of Brussels on its own feet, and making do with the label of 'social party'. Certainly it shares, on a par with the Unice and the CEEP, the visibility conferred upon it, today more than in the past, by the European drafters where it co-decides, is consulted, participates, is contacted by the Social Protection Committee and, lastly, negotiates. But it is a visibility which, in the list of rights, is nameless and without coercive instruments that might weaken the resistance of reluctant antagonists. The European trade union exists but, as Musil would say, it is "without qualities", that is, without that structural identity which justifies an explicit attribution of functional rights.
Has anything changed with the inclusion in the Constitution of the Charter of Fundamental Rights, which has now become itself a primary source of EU law?
Many of the questions that its provisions raise are linked to the interpretation of the provisions in themselves and as part of a more general context in which it is inserted, from which new competences may possibly emerge.
Certainly, beyond the affirmations in the Charter's preamble, in which the values and the objectives of the Union are coherently recalled, the choice has been that of a legal framework structured according to fundamental values similar to those of the Project taken as a whole. But with an important difference, which lies precisely in the chapter on solidarity which has assumed an autonomous identity, based on collective labour rights. It coexists with other values within a non-hierarchical ordo ordinans where each is equally important and part of a coherent ratio which requires interpretation. It is the latter that becomes of central importance in terms of the effectiveness, breadth and compatibility of these values with EU law and with the national law of each Member State.
The birth of the Charter is as anomalous as the entire history of the Community-Union is singular, a body working with a head that is too small to reason in terms of modernity and social justice. And the Charter has not dismantled any ancien régime, it is not the daughter of any revolution of sanculottes nor has it been blessed with any 'divine grace'; moreover, it was born amidst doubts concerning its very usefulness , but also with high hopes .
Accompanied by the perennial fear that it could expand competences in general, and in the sphere of social rights in particular, it represents a missed opportunity for the European trade union to appear in the first person, albeit in the role of deuteragonist on the scene of industrial relations.

But - and this is more important - the provisions contained in the chapter on Solidarity modernise the cultural framework of the Union, and in its corridors new lymph will circulate which will ensure, at least for its employees, a series of rights that cannot be compressed today. However, this is not enough for the new 'tablets of law' to represent an 'irreversible canon' for the gallery audience of Member States: their innovative force must be measured, one provision at a time, with the impact produced on individual legal systems.
The Chapter on Solidarity gives this value a plurality of meanings that are assumed in the traditions, be they constitutional or not, common to the Member States. It has become a normative paradigm, a "reference point for all those involved in the Community context" .
The chapter clearly reveals the choice of the Convention in assuming normative models of collective relationships that are a common heritage both juridically and in terms of industrial relations on a widespread European level. The Solidarity of Title IV (of the Charter) provides content with respect to the more general value outlined (art. I-2, Part I) in the Constitution, it specifies it and provides it with detailed outlines, thus endowing it with a wider meaning than that of mere intergenerational solidarity (art. I-3, Part I).
Thus all doubts are dismissed as to the dimension of general principle attributed to the paradigm and its derivatives - solidarity on work and in work - which consolidates its normative framework through the affirmation of parallel and specular values. The latter are to some extent antagonists with respect to that of free competition seen as a vital nucleus of the Community's lex mercatoria as has always been upheld by the Court of Justice.
Title IV of the Charter contains all those rights protecting collective interests expressed by private social powers: consultation and information, negotiation and conflict. But the picture is decidedly incomplete: the right to freedom of assembly and to associate (art. II-72) is placed in the chapter of freedoms and as such comes within the rights of individual freedom. At first sight its separation from the other 'twin' rights making up the pattern of 'social' solidarity may seem an artifice if it is true that in some countries the common denominator connecting them all is that it identifies individual rights which are collectively exercised. Their functional identity - the fact of being at the service of a collectivity of workers - justifies the structural identity of the juridical model around which trade union law revolves. But the artifice has a logic insofar as the founding act of the association was always the result of a choice, arising from an option which can only come from the individual who is free either to become or not become a member of the trade union. Moreover, the fact of placing the right to meet and to associate in a separate Title in the Charter may reflect the different perception that national industrial relations systems have of such a choice. Information and consultation, negotiation and conflict are almost a posterius with respect to the freedom of belonging to a group; they have a more obviously collective physiognomy and their exercise requires a coalition, the synthesis of individual efforts without which these respective rights have no operative effectiveness.

9. The trilogy of solidarity
widening of the sphere of labour law issues requiring a majority vote are well-founded. One is still struck today by the diversity of labour law and industrial relations systems. But this does not mean that such diversity cannot be overcome through the interpretations of a higher judicial court settling constitutional and no-constitutional traditions of the legal systems of individual Member States. The latter have accepted self-limitation in the name of a common belief in the values and principles evoked by a supranational Constitution and they are prepared to accept the consequence of sanctions laid down by it (art. 7 of the Nice Treaty). The Court's interpretation, then, must measure itself against the diversity of ways in which the State-collective social powers relationship is expressed and the legal framework in which it is nurtured. The trilogy of solidarity is an example of this.

9.1. Volume one of the trilogy concerns the models of industrial democracy. Based on the information and consultation of workers and their representatives in the firm, they have become by now the milestones of the European system because that is largely what they are, with differing nuances, in their national systems . Their inclusion in the Charter is a "major step forward in the development of labour law" insofar as not all countries recognise this status in constitutional law. Precisely this juridical recognition activates an extraordinary sensitivity in contexts where representativeness oscillates between a single channel and a double channel model. The provision is expressed in the careful language of Community formulae when they venture into areas where there is a balance of diverging interests present also within the workers' world. The bearers of information and consultation are workers or, as an alternative, their representatives. The formula gets round but does not overcome, nor could it overcome, the problem of the dramatis personae (who represents whom), i.e. of the joint presence of variously qualified representatives (be they trade unions or not) in the citadel of the firm.
However, the right in question was not born in Jupiter's mind but, like some other rights, it is based in the European Social Charter revisited in 1996 and in that of Strasbourg of 1989 (art. 17).
The provision, then, cannot be said to be original - and the EU drafters were aware of this - but it sublimates in the form of legal precepts the multiplicity of national participatory models arising 'on the periphery of the empire'. The spread of these models has led to an evolution in legal culture which tends to give value to industrial democracy which has slowly acquired greater credibility in directives 98/59 (collective dismissals), 77/187 (transfer of undertakings), 94/45 (European Works Councils), and 2002/14 (information and consultation) - with a progression towards the generalisation of the right which qualifies it on the basis of the importance of the source providing the information and of the interests involved. The next stage in this progression is a consequence of this, namely its being raised to constitutional level, given that it 'functionalises' the participatory model for the labour market on the basis of the "likely development of employment within the undertaking" when … the latter may be affected (point 8 of Directive 2002/14 in OJEC L.80/29).
The formula used is a wide one based on the principle of 'definitory subsidiarity', given that it is up to the Member States with their "national laws and customs" to provide the model with muscle and bone. A comparative analysis offers a wide range of hypotheses for involving workers within the boundaries of the firm through forms of growing participation whose intensity and shape range from a minimum basis of information to the regulation by law of consultation, to structured codecision .
In short, what is needed is at least to consolidate a minimum denominator that is common to all models in the belief that only by "maintaining the essential values on which our societies are based and ensuring that all citizens benefit from economic development" can the development of the market "be properly balanced" (Directive 2002/14, Point no. 11).
Its added value is to be appreciated for two reasons: on the one hand, as in the other cases it is linked to its vertical effectiveness, to its direct effect on the legal systems of the Member States, such as Germany and Italy, where the right is not recognised by their respective Constitutions. On the other hand, by imposing the obligation that information must be provided "in good time", art. II-27 subtracts one of the ways in which national laws and practices can fulfil such an obligation, thus allowing them the possibility to concern themselves with other aspects (e.g. identifying the type of information, the receivers of such information and how it should be collocated).
9.2. The second 'volume' of the trilogy concerns the right to collective bargaining and to collective action which, like the previous rights, makes up the 'book' of the dignity of the subordinate worker, a dignity that strengthens and protects the worker thanks to the mechanisms of solidarity. This right too is endowed with a noble pedigree - art. 6 of the European Social Charter, art. 12 of the Strasbourg Charter of 1989, the 87 and 98 ILO Conventions - all aimed at promoting private collective autonomy, an area that the acquis communautaire has increasingly paid attention to. Certainly it has not been easy: for many years it has been a sort of 'nonexistent knight' (to quote Italo Calvino), even if the Court of Justice dedicated an explicit reference to it in 1986 when it affirms that "the States can entrust first of all to the social parties the task of carrying out the aims of social policy pursued by the directive" (case C 235/84 Commission v. Italian government). But it also poses conditions: firstly that "legal certainty" must be achieved (Case 143/83, Commission v. Denmark, Rec. 1985, p. 427), and secondly that the clauses that clash with the Community precept be considered null and void (Commission v. United Kingdom/ Northern Ireland, case 165/82, Rec. 1983, p. 3431).
In the directives of the 1970s-1980s, however, there is still no explicit reference to collective bargaining: it is almost 'hidden' behind the vague reference made to "national practices" to which an equally important creative potential is entrusted.
In these practices we can find:
- the model for indicating the safety representative (directive 89/131, art. 3, letter c)
- the systems for informing workers (art. 10, paras. 1 and 2, Dir. 89/391) and the content of balanced participation (art. 11, paras. 1 and 2, of the same directive).
But the tone becomes more categorical in the Directive on working hours (93/104 of 23.11.93) which delegates a plurality of functions to collective bargaining and agreements: these are applicative or explicative of the legal rule as the identification of the type and duration of breaks, or even definitory as in the definition of nightshift work (art. 2, point 4, letter b). The lawmaker's language is enriched by a more explicit lexis than that of the Maastricht era when collective autonomy became a reliable protagonist at the Community level.
The groundwork had already been laid, then, and the first major sign can be found in the recognition of the right to bargain in the Charter that has been incorporated into the Constitution (art. II-88), which nevertheless promises more than it can deliver.
Its meaning should be measured against the European scenario where it emerges that "negotiating and stipulating collective agreements at the appropriate levels" is not always a right of constitutional rank. It is in some countries such as Italy, Belgium, Holland and Portugal; elsewhere it is merely a corollary deriving from the right of association as the structural element of a relative freedom (Germany).
So the provision of a "right to collective bargaining" will have not only a semantic but also a substantive impact on the expressions used in different legal contexts where it is the subject of a mere freedom which in any case needs to be enacted by law in order to become effective.
But that is not all: the Charter considers that right to contain the effectuation of a collective bargaining process which is carried out in two phases, the initial negotiation and bargaining phase, followed by the stipulation of an agreement. They are part of an indivisible right, indicating a complete and dynamic process projected towards a specific objective, i.e. the possibility of a long-lasting compromise between those who are in conflict.
The formula is more comprehensive than the one usually found in constitutions or national laws and is destined to have a direct effect: in Germany where it is not explicit, in Italy where the Constitution speaks of collective bargaining and is still programmatic, and in the UK where it is not clear whether the right of trade union representatives "to seek recognition" is the same as that of "collectively bargaining".
It is obvious that the constitutional provision could not go beyond the indication of a model and could not describe the structure or its internal profile, as it were, and it delegates to the national social parties the necessary dose of creativeness. Nothing, then, is said about the juridical nature of the agreement, or its structure, or to which parties it applies to, or its content, or the relationships between the various bargaining levels, and between these levels and the individual agreement, and on its position within the hierarchy of sources. National customs and practices and laws will offer profiles and shape without altering or reducing the essential content of the right.
Art. II-88 is openly promotional about the bargaining function: this is the point of no return which, however, will have to be compatible with other values contained in the Charter and in the whole of the constitutional text, such as freedom of competition and of enterprise (art. II-76).
This has already happened, and in this respect art. 88 does not ensure total protection for the procedure from the incursions of the Court's general advocates, as occurred - for the time being without provoking serious damage - in Case C-67/96 Albany (Albany International BV v. Stichting Bedrijfspensioenfonds Textielindustrie, 21 September 1999, Case C-67/96, Rec. 1999 p. I-5751). In any case, the judges of Luxembourg were concerned with specifying that a collective contract that is protected from the right to competition is one which:
- is by its very nature a collective agreement;
-is stipulated in the context of collective bargaining (Pavlov and others v. Stichting Pensioenfonds Medische Specialisten, case 180/184 of 12.9.2000, Rec. 2000, p. I-6451);
- is between firms and workers;
- pursues an objective of social policy, i.e. the establishment of working conditions alone.
In short, the identity of the contract and its true nature can be gleaned from the quality of its objective. It would seem to be irrelevant for the Court of Justice that in almost all European countries the contract is composed of a normative part and a compulsory part.

However, the provision says more than it should. It speaks of the right 'conclude' contracts, a verb which lies outside the legal lexis of European countries, where the bargaining process is seen as containing the right to initiate and continue but not necessarily to conclude negotiations. Some legal systems also provide for the obligation to negotiate but not to conclude which, nevertheless, would seem to clash with trade union freedom (as in Italy) and with that of 'free negotiation' (as in Greece).
The European Committee for the social rights of the European Social Charter has therefore explicitly underlined the 'free' character of collective bargaining, as upheld also by the ILO Committee of Experts. Moreover, it should be remembered that the provisions of the Charter should also be applied "to the institutions, bodies and agencies of the Union" and thus should be read in connection with the new formulation contained in the Constitution which only provides for a simple, albeit important, obligation for the Union to 'promote' "social dialogue" (art. III-209, Part III) but without any explicit right to conclude collective agreements. If this were not so, one would have to presume that the Charter and the Constitution have two different spheres of application, and that the Charter includes a right which elsewhere, i.e. in the text of the Constitution, is explicitly omitted, even if it is not actually denied. A somewhat odd situation for a text that was born as a unifying project .
If, then, the recognition of a right is followed by a corresponding obligation to satisfy that right one can only interpret the right to conclude agreements as being in tune with the entire spirit of the provision which tries to exalt rather than limit the will of the parties.
Consequently, in art. II-88 the right to conclude implies:
- absolute freedom from any interference from public authority throughout the decision-making process;
- the right for workers and for firms that are not associated to accede to collective agreements negotiated by others;
-the recognition by the State as to whether to initiate negotiations and also the right to decide whether or not to conclude them;
-the obligation for each of the parties to refrain from any time-wasting or from such behaviour as would jeopardise the reaching of an agreement;
-the obligation to cooperate in good faith in order to reach an agreement;
- the conclusion of an agreement without the compulsory interference of a third party.
9.3 The third 'volume' concerns collective self-protection. This is contained in the same art. II-88 in wide, generic terms when referring to "collective action … including strike action". It is described as a syllogism in that if a strike is a collective action and the latter is qualified as a right, then, because of its transitive property, also a strike is a right, and moreover of constitutional rank.
The conclusion is peremptory and clear-cut: it is superimposed onto EU law which oscillates between two poles, i.e. those countries that qualify it as a constitutional right and others that consider it to be a mere freedom, while in the international sphere provisions differ.
The right is ignored by ILO Conventions 87 e 98, but its Committee of experts on the freedom of association has considered that the general prohibition of strike action constitutes a restriction of the opportunities offered to trade unions to defend and promote the interests of their members besides the right to organise their own activities. Similarly, it has attributed to workers - through a distillation process, as above, from artt. 3, 8 and 10 of Convention 87 - the right to strike insofar as it is a legitimate means for defending one's "professional interests".
Art. II-28 has one undeniable merit: between the strike-as-freedom model and the strike-as-right model it has chosen the latter. The consequence lies in the impact on the contract of individual employment which is not interrupted but merely suspended: the British courts tell a different story because they show that the strike-as-freedom model offers firms the chance to dismiss workers because that form of dispute is configured as one of the countless torts that British case law has at its disposal under common law. It can also lighten the interpretative efforts of those judges - e.g. in Holland or Germany - who consider it as deriving from the general right of association.
The provision is made up of four structural elements:
- a strike is a collective action;
- it arises in the case of a conflict of interests;
- it is a right which protects the interests of workers and their organisations;
- it is a symmetrical right which also protects employers and their organisations. Thus the area to be protected is specified while the type of collective action is left vague - deliberately so, as was the case with collective bargaining - since strike action is one of the possible and multiform types of action in the case of a dispute. The qualification of the interest to be defended is left unspecified even if the expression "conflict of interest" might be considered to exclude those of a political nature.
A systematic interpretation - reference to which is made in art. 112 of Title VII, Part II- serves to indicate that this minimum content in the article must be respected, and that limitations to the law may only be made "if necessary and genuinely meet objectives of general interest recognised by the Union or by the need to protect the rights and freedoms of others" (art. II-112, para. 1, Title VII).
In this framework, then, it is possible to hypothesise as constitutionally correct a national law that does not affect the nucleus of the content of the right but only provides for the ways in which it can be exercised, e.g. as occurs in essential public services and in the exclusion of categories of workers who represent constitutionally guaranteed values of the collectivity.
The exercising of collective action must also be reflected in the distorting mirror "of the general interest recognised by the Union" to which belongs competition which is continually checked by the Court of Justice. The free movement of goods is a dogma that has already found conflict along its path (CJ 9.12.1997, case C-265/95, Commission / France, Rec. 1997, p. I-6959) and it required a regulation (2679/98/EC) in order to dispel the doubt as to the nature of strike action as a fundamental right.

But the risks are still incumbent: and in any case the absence of a reference to a supranational dimension of conflict in terms of solidarity between workers from different countries still means that the European strike is no more than a juridical chimera.
Moreover, the constitutional philosophy of the 'symmetry of weapons' gives firms, in the guise of a right, a deterrent such as that of lockout which elsewhere is only a freedom. Most European Constitutions do not qualify it as a constitutional right, while some either say nothing or prohibit it altogether.
The impact of the provision is a strong one given that it pays homage to the symmetry of rights and authorises firms to close as retorsion in a dispute.
This choice is debatable insofar as by conferring an equality of positions between the parties this is inevitably translated into a defeat for the weaker party. By underlining this recognition of equality, the Committee of experts of the European Social Charter affirms that this does not necessarily mean full juridical equality between these two means of defence (Conclusions VIII, 1995).

10. Conclusions: fundamental social rights as a means of "civilised conversation"?
It is certain that the Constitution has removed all of the doubts that had accompanied the drafting of the Charter of Fundamental Rights as regards its definitive inclusion in the Constitution. Today it is neither merely "recalled" in the Preamble of the Constitution nor is it placed in some additional protocol. The path chosen is thus its incorporation into the text, thereby overcoming the resistance by those (e.g. the UK) who fear that this would lead to judicial activism by the courts which would privilege extrastatutory provisions with respect to national provisions. And the most exposed and delicate area would be that of social rights and solidarity.
Certainly, one cannot ignore the fact that, when one examines the Nice Charter closely in order to interpret it, the entire constitutional reform completes the process of the de-nationalisation of the fundamental provisions which have become the expression of an ethico-judicial tradition that has pervaded European history. This is shown precisely by those articles which raise to the rank of fundamental rights the most consolidated manifestations of the European industrial relations system.
Their closeness to those principles and values most strictly linked, as it were, to the act of birth of the Community-Union, or rather which constituted the reason for its foundation (free single market of goods and services, competition), can only be of relevance in terms of interpreting the entire EU legal system.
The fundamental social rights acquire a function of compensation and balance, and their achievement depends also on the Court of Justice together with national judges at all levels, be they constitutional or not, in a dialogue that still contains several unknown entities . This dialogue among interpreters is rich in precedents in which the debate became lively precisely when the controversial topic was the relationship between fundamental European rights and national constitutions (Case 11/70, Internationale handelsgesellschaft, Rec. 1970, p. 1125). The judges of Luxembourg raised their voices and clearly enunciated the principle whereby the "respect for fundamental rights forms an integral part of the general principles of law protected by the Court of justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community". And the fact that the fundamental rights enshrined in a national constitution may not be given full recognition "cannot affect the validity of a Community measure or its effect in the territory of that State" (Court of justice 17/10/1989, case 97/87, Dow Chemical Ibérica and others / Commission, Rec. 1989, p. 3165).
The presence of the Court merely reaffirms the primacy of supranational law by summing up and evaluating a consolidated orientation in case law which was then transferred into art. I-6, Part I of the Constitution. It has the undoubted merit of favouring normative integration by offering a solid basis constituted precisely by high quality norms which represent a barrier and a limitation to the action of both the Community-Union and the Member States.
As regards the former, the Charter has accepted the advice of the Cologne Council of June 1999 by concerning itself with ensuring the protection of rights with respect to acts "of institutions, bodies, offices and agencies" (art. II-111), i.e. of all those organs that are bearers of powers and competences within the sphere of the EU. This means that not only their organisational life and activity as employers but also their normative function must always be guided "with due regard for the principle of subsidiarity" (art. II-111, para. 1), from the rules established concerning individual and collective labour law.
All the more reason, then, that the application of fundamental standards to national States should respect the case law tradition of the Court which in the past transferred them to be 'incorporated' into the normative framework. However, the "incorporation effect" today occurs "only when (the Member States) are implementing Union law", in order to carry out their Community obligations. In this case, as has been said, incorporation "allows for an invasion of the pitch" ; but only in this case and in order to prevent, for example, a national or regional law from limiting the freedom of movement of workers by a law which discriminates on the basis of one or more of the grounds listed in art. II-81.

The problem is posed as regards the effectiveness that the provisions themselves have on national States when they fail to enact a Community obligation: the Court of Justice has restricted its intervention by not wanting to involve itself in those State activities that concern issues which are totally extraneous to Community law but come under the competence of Member States.
Thus the problem of the effectiveness of social provisions is strictly linked to that of the distribution of competences:
a) the fundamental standards are bound to be applied when States act in order to enact Community law;
b) since the provision (art. II-111, Title VII) is expressed in general terms, i.e. in the sense that the obligation the States must absolve is to adapt to EU law, without specifying the quality of the competence, the standards are applied both in the case of issues which are of exclusive competence of the EU, i.e. the provisions of ex art. I-13 which do not include labour law issues, and those laid down in art. I-17 where, on the contrary, "education and vocational training" are included (point e);
c) both in the case of shared competence (art. I-14) where all of social policy (as regards the aspects defined in part III) and social cohesion are contained;
d) and in the case where the Charter is deemed to be applicable to all those State acts which in some way involve or fall within the shadow of Community law .
In this third hypothesis the consequence would be important for two reasons:
on the one hand fundamental social rights should be respected by national States insofar as they come within the list of issues specified by the Constitution, and the list is so wide as to include rights of individual employment relationships and of collective employment relationships. On the other hand, this would resolve a contradiction already present in the EU Treaty and which has been carried over into the constitutional reform, i.e. the exclusion from the EU's competence of issues such as wages, the right of association, the right to strike and of lockout (art. III-210, para. 6). In fact, these are subjects that constitute the content of fundamental norms that are proclaimed as such in another part of the same reform to which, as has been said, both the EU and Member States are subject. Wages come within "working conditions", the others within "representation and collective defence of the interests of workers and of employers" over which the concurrent competence of Member States and the Union is exercised (art. III-210 letters b, f).
In this hypothesis the principle would also be respected which art. VII-51 puts at the heart of the Union-States dynamics, i.e. the one according to which the Charter "does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify the powers and tasks defined in the other Parts of the Constitution".
No new competence, then, nor any extension or modification: we are dealing with issues already included in the normative activity of the Union and of the Member States which are thus guided by new fundamental social rights through which the Charter fulfils its integrating vocation. This clause should put an end to fears that a federal type of Constitution could end up by expanding the powers of a central government to the detriment of the periphery. Furthermore, these are fears that emerge from the clauses that often accompany the drafting of single articles. They are expressed in a language that is not uniform but, limiting ourselves to collective rights, the right to information and consultation is guaranteed "in the cases and under the conditions provided for by national law and practices" besides, of course, EU law, while the right of negotiation and of collective action is guaranteed "in accordance with … national laws and practices".
Their presence indicates one of the ways in which the principle of subsidiarity may be considered, but by itself those expressions containing the so-called "reference to conformity" should be seen within the overall context of the Charter. In fact, given that the rule of law must constitute the source of limitations to rights, that limit must in any case respect its "essence", be "necessary", and respond to the aim of "general interest" or to the need to protect the rights and freedoms of others (art. II-112, para. 1). It is a general limitative clause that is present in other international documents and is destined to operate in the widest field possible and to function as a "limit to limits".
It is here that the future of the applicability of social rights will be played out insofar as it is up to the judge to identify the essential nature of the content, its nucleus without which the exercising of the right would be meaningless. Analogously it is in the moment of interpretation that one can appreciate the breadth of the references to conformity which often accompany the formulation of the law. One possible meaning that can be given to them is that, always assuming that the right proclaimed is untouchable, it does not concern its structure as much as its methods of application. The latter can only be devolved to experiences typical of peripheral industrial relations, to the ways in which they have developed and to the laws that have regulated them. One example could be precisely that of the right to strike where the ways in which it can be carried out are entrusted to legislation in cases where strike action involves essential public services. In cases of collective bargaining, its articulation at one or more levels is the outcome of customs and practices that have been stratified in the course of time, and in the case of the right of association its juridical nature (non-recognised association, de facto body, legal person) derives from State law and the shape it has taken (confederation, federation, simple organisation) from the history of each country.
And that it can be so is proved also by the group of laws where those clauses do not appear and whose absence can be explained by the nature of the right itself. In general it is the instrument for proclaiming and protecting a personal good such as dignity or freedom the exercise of which can only be regulated by the law.

* This article is a revised and updated (with the addition of a few changes and the notes) text of the inaugural paper presented in Malaga for the 22nd Andalusian labour law conference, held on 18-19 December 2003, on La constitucion europea y las relaciones laborales. The references to the articles of Constitution are based on the text delivered on 13 octobre 2004 (CIG 87104) Rev 1. The various stages in the process are as follows: the 'Declaration on the future of Europe' attached to the Treaty of Nice (16 February 2001) and the Laeken Declaration of the European Council (December 2001) calling for a 'Convention on the future of Europe'; the work actually carried out by the Convention between February 2002 and June 2003; the convocation of the Intergovernmental Conference to pass the 'Constitutional Treaty'. The final text was approved November 2004. On the method adopted see S. Cassese, La 'Costituzione' europea del 1957 comparata con quella ora in preparazione, Giorn. dir. amm., 2003, 8, p. 867 ff. G. Amato, 'Per fare l'Europa non basta una Costituzione', La Repubblica, 11 December 2002; S. Rodotà, I nemici della nuova Europa, La Repubblica, 28 January 2002. In the text reference is made to the 'Treaty establishing a European Constitution' using the term 'constitution' which, moreover, is used in the Preamble to the Treaty itself. A. Tizzano, Prime note sul progetto di Costituzione europea, Il dir. dell'Unione europea, 2003, 2-3, p. 249 ff. A. Pace, La dichiarazione di Laeken e il processo costituente europeo, Riv. trim. dir. pubbl., 2002, 3, p. 613 ff.; doubts are also expressed by T. Oppermann, Il percorso costituzionale europeo dopo Nizza, Riv. trim. dir. pubbl., 2003, 2, p. 353 ff. B.H. Hepple (ed.), The making of labour law in Europe since the industrial revolution to 1945, Mansell, London, 1987. As we were taught by O. Khan-Freund, Labour and Law, Stevens and sons, London, 1977, 2nd edition. The social dialogue - the social partner's view, in EIRR, 299, December 1998; see also B. Bercusson, Introduction to "Commentario alla Carta dei diritti fondamentali", to be published shortly by Nomos, p. 4 of the manuscript. Libro bianco, in A.Genovesi, Per una Europa migliore, L'Unità, Rome, 2003, p.25; R. Blanpain, European labour law, Kluwer, The Hague, London-New York, 2003, 9th ed., p. 188 U. Muckenberger, B. Bercusson, S. Deakin, P. Koistinen, Y. Kravaritou, A. Supiot, B.Veneziani, Manifeste pour une Europe sociale, Desclée de Brouwer, Paris, 1996,1st ed. T. Humphrey Marshall, Cittadinanza e classe sociale, Laterza, Bari, 2002, p. 43. B. Bercusson, cit., p. 6. N. Reich, Union citizenship-Metaphor or source of rights, European law journal, 2001. VV.AA., A manifesto for social Europe, Brussels, European trade union institute, Etui, 2001. Final report of Group XI "Europa sociale", Conv. 516/I/03, p. 8. As Group XI on 'Social Europe' had suggested, op. cit., p. 10. R. Dahrendorf, Solo una nuova Costituzione può far nascere la nuova Europa, La Repubblica, 5 July 2000. Legal doctrine had underlined the fragile nature of art. 6, para. 1, in the past, as A. Pace (op.cit. p. 625) points out. R.A. Garcia, Le clausole orizzontali della Carta dei diritti fondamentali dell'Unione, Riv. it. dir. pubbl. com., 2002, p. 9 ff. A. Tizzano, op. cit., p. 269. S. Cassese, op. cit., p. 869. A. Pace, op. cit., p. 640. B. Bercusson, Commento all'art.12 della Carta di Nizza, p. 15. Ibidem, p. 10. Moreover, it is curious that Group XI ("Social Europe") appears to be lukewarm on this point, even if their attitude can be explained by the political 'temperature' of the issue. See Group XI, cit., p, 18. B. Bercusson, p. 13. B. Veneziani, G. Leone, Le rôle de la Cour de justice dans l'évolution du droit du travail italien, Bulletin de droit comparé du travail et de la sécurité sociale, 2003, p. 81. B. Bercusson, p. 16. Group XI "Europa sociale", op. cit., p. 22. Including not only art. 137, para. 1, but also artt.13-16-42-95, para. 2, and 175 of the Treaty, and utilising the provision according to which the Council, always with unanimous approval, can establish to codecide with the European Parliament and have a majority vote ex art. 251. P. Davies, The emergence of European Labour Law, in McCarthy (ed.), Legal intervention in industrial relations, gains and losses, Oxford, OUP, 1992, p. 346. B. Veneziani, Dal dialogo sociale alla contrattazione collettiva nella fase della trasformazione istituzionale dell'Unione europea, Rivista Giuridica del lavoro, 1998, no. 2, pp. 268-269. G. Giugni, Introduzione allo studio dell'autonomia collettiva, Giuffrè, Milano, 1962. Gruppo XI "Europa sociale", cit., p. 28-29. J.T.Dunlop, Industrial relations systems, New York, 1971, 2^ ed. J.H.H.Weiler, Editorial, Does the European Union truly need a Charter of Rights, in European Law Journal, 2000. VV.AA, L'Europa dei diritti. Commento alla Carta dei diritti fondamentali dell'unione europea, Bologna, Il Mulino, 2001. Avv. Generale Tizzano in Broadcasting entertainment cinematographic and theatre Union v. Secretary of State for trade and Industry, Case C-173/99 opinion of 8 February 2001; CGE decision 26 June 2001. EC Commission, XXII report on competition policy, 1992, Brussels, Luxembourg, 1993, p. 47. A structural value is free movement just as much as the free performance of services, Eco Swiss China C-126/97 and Proc.pen. v. A.Webb C-279/80 of 17.12.1981. EC, Report of the high level group on industrial relations and change in the EU, 2002, p. 25. T. Blanke, Commento all'art.IV-27, in Commentario alla Carta, forthcoming to be published by Nomos ed. B. Veneziani, Stato ed autonomia collettiva, Cacucci, Bari, 1992, p. 265 and ff.; M. Biagi, Rappresentanza e democrazia in azienda, Maggioli, Rimini, 1990. Observations which can generally be shared in G. Coscia, Il rinvio di conformità nell'art. 28 della Carta europea dei diritti fondamentali, Il dir. dell'Unione europea, 2-3, 2003, p. 419 and ff. M. Panebianco, Repertorio della Carta dei diritti fondamentali, Giuffrè, Milano, 2001 S. Sciarra (ed), Labour law in the courts, Hart, Oxford, Portland, Oregon, 2003. M. Cartabia, Commento all'art. 51, in R. Bifulco, M. Cartabia, A. Celotto, L'Europa dei diritti. Commento alla Carta dei diritti fondamentali dell'Unione europea, Il Mulino, Bologna, 2001, p. 348. M. Cartabia, op. cit., p. 349; R.A. Garcia, op. cit., p. 3. T. Groppi, in R. Bifulco ed AA., cit., p. 353.

 

Bruno Veneziani