The European Community was originally founded as an economic community. The EC treaty did not contain any concrete social policy objectives and competences. As part of efforts to extend the European internal market to include a “social component”, the EU’s social policy competences have been widened on several occasions with successive revisions of the treaty. The EU has made enthusiastic use of this development in years past by adopting a range of directives and regulations in the areas of labour legislation, health and safety at work, and combating discrimination. In addition to this, the European Court of Justice often interferes disproportionately in the national margin for implementation which is a feature of directives.
Flexibility is a condition for security
The social dimension of the single market is now covered by a tightly meshed net of EU-wide minimum social standards and additionally safeguarded in an appropriate way by the posting of workers directive. As a result, the EU has an excess of rules which protect workers. Additional jobs and an increase in competitiveness can only be achieved through a dismantling of regulation and the creation of flexibility. Flexibility and security must complement and reinforce each other. Yet in the past only notional security has been extended through ever more regulation. As a result, flexibility in labour legislation has suffered greatly. But flexibility is an absolute condition for businesses to be able to react to changing market conditions. At European level, existing over-regulation must be eliminated and social policy rules must be limited to genuine minimum standards.
Stop following the wrong path of regulation
Despite this, the European Commission continues to go down the wrong route of regulation undeterred. The proposal for a further anti-discrimination directive extends the discrimination ban for a range of elements (religion or belief, disability, age, sexual orientation) to civil law in its entirety. As a result, there is a risk of new regulation as well as high costs caused by additional documentation obligations. The longer period of maternity leave and longer period of protection against dismissal proposed by the European Commission in the new version of the maternity leave directive would also lead to a considerable increase in costs for companies. The proposal for minimum standards in occupational retirement provision (formerly the portability directive) would also lead to burdens on occupational retirement provision and to over-regulation of workplace pensions.
Correct directives which are unworkable in practice
BDA expressly welcomes the fact that the European Commission is correcting directives which have become unworkable in practice due to narrow or disproportionate jurisprudence by the European Court of Justice. This is particularly the case for the working time directive. The revision of the working time directive must therefore ensure that the inactive parts of on-call duty are basically not regarded as working time. However, this step should not be accompanied by restrictions on use of the opt-out clause to vary maximum weekly working hours, a move which would unnecessarily limit the flexibility available to companies.
Make labour and social legislation employment-friendly
The EU has adopted a plethora of directives and regulations on labour and social legislation. These set minimum standards for the labour and social legislation in the member states and mean that companies often face bureaucratic burdens. Accordingly, in future the focus must be on dismantling unnecessary regulation and on implementing the existing social policy rules rather than extending them.