It is the European Commission, the European Community's civil service, that puts forward proposals for new Community legislation. It may generate a proposal on its own initiative, or at the suggestion of the Council of the European Community or the European Parliament. When suggesting new legislation, however, the Commission must observe the principle of subsidiarity. This means that, before deciding to propose a Directive, the Commission should consider whether the results it wants to achieve could more appropriately and effectively be dealt with by action at a more local level, by individual Member States or even by individual employers and employees. Community legislation should be adopted only where action at Community level is necessary.
The Commission consults widely when formulating proposals in the employment field, involving European-level organisations representing employers and workers as well as national officials and experts. The European employers' and workers' organisations are often referred to as the Social Partners, and include UNICE (the Union of Industrial and Employers' Confederations of Europe), ETUC (the European Trade Union Confederation) and CEEP (the European Centre of Public Enterprise).
Before submitting a proposal for legislation in the area of social policy, including employment rights, the Commission must give the Social Partners an opportunity to negotiate a legally binding agreement on the issue, as an alternative to legislation. If the Social Partners do not wish to negotiate or cannot reach agreement, the Commission will put a proposal for a Directive to the Council of the European Community.
Although recent alterations to the Community Treaty have given the European Parliament greater power in the legislative process, in practice it is usually the Council of the European Community that decides whether a Directive is adopted and in what form. The Council is made up of ministers of the Member States, but its membership differs according to the subject matter under discussion. For example, when the Council is dealing with issues in the area of social policy, it is made up of the employment or social security ministers of the Member States.
The procedure by which a Directive is adopted depends on its 'Treaty base', that is, the part of the Treaty that gives the Community power to adopt the Directive. Directives on some issues, for example, can be adopted only by a unanimous vote of the Council. Others can be adopted if what is termed a 'qualified majority' of the Council vote in favour. In order to decide whether a proposal has qualified majority support, each Member State's vote is weighted according to its size. The UK's vote, for example, has a weight of 29, whereas Malta's vote has a weight of three.
The role of the European Parliament in the legislative process also differs according to the Directive's Treaty base. In some areas, the Parliament has the right only to be consulted. In others, the Parliament can delay the adoption of a proposal (the 'co-operation procedure') or block the adoption of a proposal if the Council will not agree to the amendments it suggests (the 'co-decision procedure').
A proposal for a Directive on working conditions, health and safety or the information and consultation of workers is likely to be adopted through the co-decision procedure, which requires the proposal to have qualified majority support in the Council. Directives dealing with social security, on the other hand, can be adopted only with the unanimous support of the Council, after consultation with the Parliament. The Community has no power, under the Social Section at least, to legislate on pay, trade union membership or the right to strike.
The Community legislative procedure is long, complex and influenced by political developments within and between Member States. Even the most uncontroversial proposal can therefore take many months to be adopted, and some proposals have taken decades to reach fruition.
From time to time, the European Commission produces documents that are intended to influence governments and individuals in Member States. In 1993, for example, the Commission published a recommendation on sexual harassment that suggested steps that employers and unions should take to tackle the issue.
These recommendations do not themselves create legal rights and responsibilities, but they will be taken into account by courts and tribunals when they are interpreting related Community legislation. A UK court or tribunal could, for example, refer to the recommendation on sexual harassment when deciding whether there has been a breach of the Equal Treatment Directive, the Community legislation on sex discrimination, or the Sex Discrimination Act 1975, the national legislation that implements that Directive.