Unanimity as to the role of the Union in the fields of social policy has never been reached. However, ‘the economic and institutional dynamics of creating a single market have made it increasingly difficult to exclude social issues from the EU’s agenda.’2 The Member States recognised the indispensability of an effective social policy in achieving economic integration but a real commitment in its development was only clear starting with the 1980s. Before this, the Treaties included with regard to the project of market integration a few social provisions intended to ease the free movement of labour across the borders of Member States, and the few Directives that the Council adopted promoting gender equality, health and safety at work were justified as necessary to achieve fair competition in a common market. Little by little, the dimension of social policy progressed alongside with the successive Treaty amendments. Furthermore, a transformation in the legal and governance aspects of social policy was visible starting with the Single European Act in 1987 which introduced Qualified Majority Voting (QMV) in the areas of health and safety at work to facilitated prompt legislation. In 1993, when the Treaty on the European Union came into force, the QMV was expanded to include working conditions, equal opportunities and treatment and integration for those excluded from the labour market. It also introduced the Agreement on Social Policy which was only signed by eleven states, excluding the UK, which opted out until 1997 when the Amsterdam Treaty came into effect.
In 2009, the amended and renamed version of the TEEC, namely the Treaty on the Functioning of the European Union (TFEU) made a great impact in the field of social policy. The TFEU includes enhancements to the social dimension of the EU through its seven titles on employment; social policy; education vocational training, youth and sport; culture; public health; consumer protection; and environment in addition to the general application provisions in Art 8-11:
It recognises the social values of the Union in the founding Treaties and includes new objectives for social matters.
Furthermore, the Treaty of Lisbon recognises the legal value of the Charter of Fundamental Rights of the EU, constituting an advance in social matters as the Charter ensures the social rights of persons resident in EU territory. It also introduces two innovations: it extends QMV to benefits for migrant workers and it institutionalises the Open Method of Coordination (OMC).3
In terms of competence in matters of social policy, consumer protection and environment, under Art 4 TFEU, the EU’s competence is shared with the Member States. However, in the spheres of public health, education and culture, the EU’s competence is restricted to be only complementary and supportive under Art 6 TFEU. Thus, the EU is limited to supporting and coordinating the actions of Member States and it is prohibited from adopting any harmonisation measures.4
As regards the types of measures the EU can enact, Art 153 TFEU gives it competence to adopt directives. However, the directives can only impose minimum requirements, they need to have regard to the Member States and moreover, the Member States have the…