Parámetros de control

A range of output has been produced by the European social partners in the previous two decades or so. This may be usefully divided into (i) output that has been aimed at the European public authorities or another third party (i.e. joint declarations, joint

statements), and (ii) output that involves a reciprocal commitment with lower level actors (i.e. Framework Agreements, Framework of Actions) (Keller, 2003). The concern and focus of this study is with output of the second kind.

A series of criticisms have been leveled at the output of the European social dialogue. The most common criticism that has been advanced is that only three Framework Agreements were concluded by the European social partners prior to the year 2000. This was evidence for many of the inherent weaknesses of the dialogue (Keller, 2003; Degryse, 2000). The quality and quantity of the output of the

European sectoral social dialogue has also been subject to specific criticism. Pochet (2005) recorded that of the 353 documents produced by the European sectoral social partners since 1978 less than 2% had been Agreements. It was further noted that 60% of these documents were 'common positions', and that there was no statistical

evidence of a progression from 'softer' tools to the conclusion of more substantial Agreements within sectors. A similar verdict was reached by De Boer et al (2005) who conducted a statistical survey of the output of the inter-professional and sectoral social dialogues. The conclusion of De Boer et al was that the system of social dialogue that had emerged was better considered a social partner lobbying system rather than a system of industrial relations given the lack of collective agreements and high quantity of non-legally binding texts.

Falkner (1998) analyzed the content of the first three Agreements concluded since the annexation of the social protocol to the Maastricht Treaty, and concluded that the

quality of the content of the Agreements was indicative of the development of a genuine system of 'Euro-corporatism'. Clauwaert and Harger (2001) examined the possible legal ramifications of the implementation of the Parental Leave Directive in member states, and argued that the Directive would be likely to have significant legal implications for the regulation of parental leave in member states.

The most noteworthy study of the implementation of the output of the social dialogue is Falkner et al's Complying With Europe. In this work, the implementation of six EU

social policy Directives in fifteen member states was examined. This involved ninety-one individual case studies of the implementation of the six Directives in the fifteen member states. Although only two of the Directives were actually the product of the European social dialogue (the Parental Leave Directive and the Part-time Work Directive), the study is nevertheless a key source of information on the impact of social policy Directives and the likely impact of future Directives and

Agreements. This is particularly the case given that Falkner et al deal with the implementation and impact of the 'hard' and 'soft' clauses of the Directives. Several key findings are relevant. One was that the Directives in question had actually imparted comprehensive new rights to national systems of social and employment regulation. In a mere four cases out of the ninety-one studied were all of the terms of the relevant Directive present within a national system. In the vast majority of cases then, the Directives imparted at least some new rights to national contexts. This would seem to refute the suggestion of some (Streeck, 1998) that the potential of the European level to impart major new employment rights to national contexts is minimal.

Complying with Europe also revealed the persistent failure of many member states to

implement Directives correctly and on time. Of the ninety-one case studies

conducted by the scholars, only in ten cases (11%) was implementation 'on time and fully correct'. Also, as of April 2003 (the point at which the scholars finished their data collection), in forty out of ninety-one cases there was not 'full' correctness of transposition, and in seventeen of ninety-one cases there was not 'essentially' correct transposition. Ten out of the fifteen states studied took over an average of thirty months to transpose the Directives 'essentially correctly'. These findings would suggest that although EU social policy Directives have the potential to impart key new rights to national systems there is a persistent problem with the ability of member states to implement the terms of the Directives efficiently and effectively.

Falkner et al found an ambivalent relationship between the 'soft' provisions of

Directives and their implementation and impact in member states. In many cases, the 'soft' clauses of the Directives inspired activity within member states. For example, in the case of the Parental Leave Directive, 'no fewer than ten member states reflected one or more of these "soft" law provisions in their transposition measures'. In the case of the Part-time Work Directive, the 'soft' provisions of the Directive inspired transposition activity in nine member states. However, Falkner et al also established that there was an ambiguous relationship between the 'soft' clauses of the Directives and the countries in which they achieved an impact. In Denmark and Sweden, two of the countries in which the legally binding clauses were transposed in the most

efficient manner, the 'soft' clauses of the Directives had a minimal impact. In contrast to this, in many of those countries where the transposition of the legally binding

clauses of the Directives were less efficient, the 'soft' clauses of the Directives had a major impact. This finding would appear to suggest that there is an ambiguous relationship between EU-level 'soft' law and domestic political trends. It will be auspicious to investigate the possible nature of this relationship in other areas of the literature in the next section of this literature review.

The explanatory factors advanced by Falkner et al to explain cross-national implementation outcomes are also worthy of comment. The concept of 'worlds of compliance' is introduced by the authors to explain varying national implementation performances. Falkner et al argued that there are three different 'worlds of

compliance'; the 'world of law observance', the 'world of domestic politics', and the 'world of neglect'. Falkner et al then argued that the fifteen countries that are the subject of their study could be categorized within one of the groupings. Further, a set of political and social factors were identified that were deemed to drive the

implementation performances of the various country clusters. Within the 'world of neglect', it was argued that a permanent culture of apathy to EU regulation precluded the effective implementation of EU social policy directives. Within the 'world of domestic politics', it was argued that domestic political factors such as the political programme of incumbent Governments determined the response to the Directives. Finally, within the 'world of law observance', it was argued that a set of cultural attitudes existed that encouraged 'good' compliance with EU social policy Directives. A fourth ‘world of compliance’ was added by Falkner and Treib in 2008 after

research on the implementation of three EU social policy Directives in four new member states. Their research suggested that the four countries studied fitted into what was described as ‘the world of dead letters’. This ‘world of compliance’ was

characterized by ‘politicized transposition processes and systematic application and enforcement problems’. It was also added that Ireland and Italy would be best classed as belonging to this ‘world of compliance’.

Little however exists on the implementation of the Agreements and texts produced by the European social partners during the 'new phase' of the European social dialogue. Further, the small existing body of scholarship occupies itself almost entirely with the procedural implementation of the Agreements and texts and has little to say about the impact of the Agreements and texts upon substantive aspects of the employment relationship in European member states and sectors. Those studies that do exist are broadly pessimistic, in line with Keller’s (2003) expectation that the use of the first implementation route envisaged in the Social Protocol would involve a further weakening of the process given the existence of several member states in which there was little coordination between levels of social dialogue. Larsen and Andersen (2007), in a study of the implementation of the Telework Agreement across member states, contended that the national implementations that had occurred had reflected the logic of ongoing 'power games' between national social partners rather than those of actual national ‘procedures and practices’. Koukiadaki and Deakin (2008), in their study of the implementation of the Telework Agreement in five member states, found that the ambivalent nature of the national 'procedures and practices' implementation clause inspired ad hoc implementation outcomes and that

the weak nature of the Agreement meant that little in terms of new regulation was offered to national contexts.