EU: the CJEU will have to rule on the European Commission’s right to refuse to give general scope to an agreement negotiated by the European social partners

The conclusions delivered by Advocate General Priit Pikamäe on 20 January 2021 in Case C‑928/19 P (European Federation of Public Service Unions (EPSU) v European Commission) serves as a second bruising disappointment for the European social partners. The European Federation of Public Service Unions (EPSU) had filed an appeal against the European Commission’s decision not to propose a directive transposing an agreement it had concluded in 2015 with the representatives of central government administrations that created a right to information and consultation for civil servants and employees of these administrations; an agreement which had been reached in the framework of this sector’s social dialogue committee. The Treaty of the European Union recognizes the right of the European social partners to negotiate agreements that can be implemented by a regulatory act – and thus oblige the EU Member States to transpose it – if the social partners so request. However for the first time, the European Commission decided not to follow up on such a request, which led to this dispute. The EPSU brought the matter before the EU General Court, which handed down a decision in 2019 (c.f. article No.11446) confirming the European Commission’s choice by recognizing its role as guarantor of the general interest, where the social partners, ‘even where they are sufficiently representative and act jointly, represent only one part of multiple interests that must be taken into account in the development of the social policy of the European Union.’ The EPSU then appealed to the CJEU and in his conclusions, the Advocate General proposed that the CJEU confirm the European Commission’s power not to follow up on the transposition request. The formulation is more nuanced, however, because it bases its conclusion on the particularity of the field, which affects the State apparatus and therefore the sovereignty of the Member States, which obliges the European Executive, if it decides to legislate on the subject, ‘to take account of the particular role and specific features of those administrations to ensure that the general interests of the Member States are safeguarded,’ which are guaranteed by the Treaty. The formulation also stresses the role of the European Commission as a body that ‘is required to weigh up the competing interests involved,’ and that must be able to act in complete independence and not be subject to any obligation to transform an agreement into a regulatory text if it judges that this does not match the interests of the EU. If the CJEU confirms this decision, then the role of the European social partners in the elaboration of European social standards would indeed be affected.