Legal uncertainty dogs parental leave directive

Date: 21/03/1996

By Michael Mann

THE first practical application of the much-vaunted Social Protocol has sown the seeds of doubt among the member states.

While the European Commission remains hopeful the deal on parental leave negotiated by the social partners will be formally adopted by ministers at their meeting next Friday (29 March), a number of delegations are insisting that several points need to be clarified.

Member state officials are anxious to plug any gaps in the agreement which could lead to legal uncertainty or force countries with flexible leave arrangements to water down their standards.

All 14 member states which have signed up to the protocol are determined to dispel the impression that they have any intention of challenging the autonomy of the social partners.

But, clearly concerned at the constitutional ramifications of the agreement, officials stress that it will only gain legal legitimacy when adopted by the Council of Ministers. “Some member states have real problems with leaving things up to the social partners which have traditionally fallen solely within the competence of the national authorities,” said one.

Several EU governments are also concerned that the Commission has seen fit to add extra details to the main body of the draft directive, including guarantees that it could not be used to weaken existing national rules, a clause setting out sanctions against member states which fail to implement the deal and an anti-discrimination clause.

Countries with strict national legislation, including Germany, Finland and the Netherlands, also want clarity on who should bear the financial responsibility when the only working parent opts to take a period of leave.

German officials deny there is any doubt in Bonn about the legitimacy of the social dialogue, but there is obvious concern about a possible challenge at the Constitutional Court in Karlsruhe if the directive is not made watertight.

Officials claim that other member states which have not voiced their concerns until now will display much more nervousness once the directive looks like being adopted.

Even some MEPs have expressed concern at the possible “democratic deficit” of the social partners “dictating” social legislation behind closed doors, and have repeatedly called for a formal role in the process.

Officials stress that although many governments feel the social partners “have gone a bit far”, all the member states are prepared to accept the deal because it is “such an important political signal” about the importance of the social dialogue.

But many believe the Commission will be forced to drop its insistence on anti-discrimination and sanctions clauses. “With these sorts of questions on the agenda of the Intergovernmental Conference, this debate shouldn't be played out in the Council,” said one, underlining the sensitivity of the broader issues as the review of the Maastricht Treaty gets under way slowly.

Member states are thought likely to include a declaration in the final compromise clearly setting out the division of responsibilities in EU decision-making “so that the social partners don't go any further the next time”.

The Commission adopted its proposed directive at the end of January, including the draft agreement finalised by UNICE, ETUC and CEEP in December in a separate annex. This approach meant that changes could only be made to the rest of the proposal, leaving the social partners' agreement intact.

The agreement would entitle workers in all member states except the UK to a minimum of three weeks' unpaid parental leave regardless of sex, as well as time off for urgent family reasons.

Although the Council only needs to muster a qualified majority, officials say “it's traditional in social affairs and politically desirable to get unanimity”.