External review of the democratic legitimacy of the European social dialogue

The Maastricht Treaty on European Union transformed EC labour law by formally ‘constitutionalising’ the social dialogue in the Protocol and Agreement on Social Policy. Following the Treaty of Amsterdam of June 1997, and the UK's opt-in to the Social Policy Agreement, the role of the social dialogue in the making of EC labour law is formally enshrined in the EC Treaty.

At the very moment when the Amsterdam Treaty was incorporating the social dialogue process into the EC Treaty, there was litigation pending before the Court of First Instance (CFI) which challenged the first product of that process: the Parental Leave Directive and annexed Agreement. In a decision almost exactly one year after the Amsterdam Summit, the CFI delivered a judgment which highlights the constitutional nature of the integration of social dialogue into the EC Treaty. The judgment raises profound issues of the democratic legitimacy of EC labour law and legislation, the autonomy of the social partners engaged in social dialogue, and the role of litigation as a control mechanism of this legitimacy and autonomy.

The UEAPME case is a potential landmark in the history of European labour law. It concerns a choice between competing legal conceptualisations of the EU social dialogue. Put simply, EC labour law can be defined, described and developed in concepts derived from the constitutional law of the EC, or in concepts drawn from labour law traditions of the Member States.