The heteronomous Community legal framework

Addressing the activities of the social partners towards the objectives of the Call, we need a reference, albeit summary, to the EU legislative framework. An understanding of its logic, the identification of the degree of prescriptiveness of its rules and, above all, of its criticalities and shortcomings are indeed indispen-sable to distinguish which part of the ambitious objectives of the project falls within the prerogatives of the role of the social partners and which legal nodes should necessarily be dissolved by intervention of the Community legislator. It should be immediately specified that the issue of active aging, although includ-ed in a broad sense in the so-callinclud-ed “Social pillar”, is part of the wide norm-creative availability of the social partners, which can therefore have an impact on the results of corporate management policies in terms of inclusive solidarity.

However, the strong connotation of autonomy that marks the initiatives pro-duced by the social partners must not underestimate the current lack of a fa-vourable EU legislative framework: no EU directive recognizes the erga omnes efficacy of collective agreements reached at transnational level. In practice, none of the Joint Texts at European level, even if signed by the European sec-tor federations, gets the character of a collective agreement tout court, and there-fore the “autarchic solution” does not guarantee the positive, systemic effects that must be pursued. In this regard, it should be immediately clarified that it is essential to find a system solution to the problem of social exclusion generated by bad management of aging: the issue affects the entire perimeter of the Europe-an Union Europe-and not individual countries or individual national compEurope-anies. The

risk of a different, fragmented solution is that social dumping is favoured by sacrificing solidarity on the altar of pure competition between companies. But let’s proceed in order, starting from an elementary recognition of the legal ex-istence.

The Treaty on the Functioning of the European Union (TFEU) identifies, in addition to the legislative “competences per subject” attributed, respectively, to the Eu-ropean Union and to the Member States (also using the formula of the so-called “shared competence”), the specific prerogatives of the “dialogue system social”: it can not only fill the empty spaces by the legislator, but must propose itself as a recognized legal source, under the combined provisions of articles 152, 153, 154 par. 1, 155 par. 1 of the Treaty. The framework norm that estab-lishes the “autonomy” of social dialogue is Article 152, which estabestab-lishes that

«the European Union recognizes and promotes the role of the social partners at its level, taking into account the differences of national systems. The Euro-pean Union facilitates dialogue between these parties and respects their auton-omy». Located in Title X - Social Policy, in paragraph 1, article 153 states that

«The European Union supports and complements the activity of the Member States in the following areas: a) improvement, in particular, of the working en-vironment, to protect the safety and greeting of workers; b) working condi-tions; c) social security and social protection of workers; d) protection of work-ers in the event of termination of the employment contract; and ) information and consultation of workers; f) collective representation and defense of the in-terests of workers and employers, including comanagement […]; g) conditions of employment of third-country nationals legally residing within the Union; h) integration of people excluded from the labor market». In practice, the Union can legislate on active aging and inclusive solidarity. Although these matters fall within the legislative power of the Union (in paragraph 2, the same Article 153 TFEU states that European directives must lay down minimum requirements), the rule of paragraph 3 prescribes that «a Member State can entrust the social partners, at their joint request, the task of implementing the directives taken pursuant to paragraph 2 or, where appropriate, a Council decision adopted in accordance with Article 155. In such a case it is linked that […] the social part-ners established by agreement the necessary provisions».

At the moment, however, there is no EU directive on active aging; and, more-over, the further prerequisite for the usability of the rule is that there is an en-trustment by individual States; instead, an overall, system solution is needed here!

The solution is to be found elsewhere. As has been said, the Treaty also recog-nizes the formal value of a legal source in social matters for social dialogue and collective bargaining: indeed, there is a mandatory consultation procedure be-tween the Commission and the social partners. Article 154 and article 155 par.

2 dictate procedural rules that derogate from the general provisions on the functions of the Commission (art. 17 and s., TEU), applying the power of

initi-ative in the matters pursuant to art. 153, TFEU. These procedures are relevant in terms of: a) consultation of the European social partners, which may give rise to non-binding “opinions” and “recommendations” addressed to the Commission and also formulated jointly by the social partners; b) the stipula-tion of agreements at European level concerning matters subject to the Com-mission’s legislative initiative, with the effects referred to in art. 155, TFEU. In particular, art. 155 TFEU empowers the social partners to communicate to the Commission their intention to regulate the subject of active aging by agree-ment: from which it follows, ipso jure, the suspension of any initiative by the Commission for a period of nine months. The agreements reached (in consul-tation or even autonomously) by the social partners can be implemented either with a “weak” procedure (which gives rise to “no-tied agreements”, the imple-mentation of which is entrusted to the individual Member States) or with a

“strong” procedure (we speak of “tied agreements”, which require a Commis-sion proposal and a “deciCommis-sion” of the Council, equal to a European directive).

The path of “no-tied” or “autonomous” agreements does not produce the di-rect effect of a didi-rective: it does not create obligations for the Member States but only commitments for the underwriters and, cascading, towards the collec-tive subjects that themselves have conferred a representation mandate. This is the difficult route travelled so far by the European social partners who, in the silence of Community law, have identified a negotiating solution that has the advantage of autonomy and the limitation to be programmatic (i.e. the lack of cogency and prescriptiveness of the rules contained in the agreements).

The European “Pillar of Social Rights” is a set of 20 fundamental principles and rights in the social sphere (structured around three chapters: equal oppor-tunities and access to the labor market, fair working conditions, social protec-tion and inclusion) adopted by the European Parliament, Council and Commis-sion on 17 November 2017 in Gothenburg, Sweden. This is the first set of so-cial rights proclaimed by the EU institutions since the Charter of Fundamental Rights of 2000 was adopted. It is useless to ask whether it is a legal text with mere reconnaissance or innovative value: of course, the European Parliament , the Council and the Commission intended to express a political direction, which recognizes priority to employment and social protection, to ensure the proper functioning of labor markets and social protection systems. Indeed, the European Parliament had asked for «a solid European pillar of social rights to strengthen social rights and produce positive effects on people’s lives in the short and medium term, as well as to support European construction in the 21st century» (Preamble, § 7). Moreover, the document «does not prevent Member States or social partners from establishing more ambitious social standards» (ibidem, § 16). Significantly, it is only the (final) Chapter III (“Social protection and inclusion”) which establishes the principles of social protection, guarantee of assistance, health and non-health care, and of income placed on

the States: thus implying that the status of “active” worker (and active for as long as possible, with a view to active aging) imposes upstream, that is, on the part of companies and social partners, intense collective negotiation work to identify management measures inclusive and supportive, endogenous to the production system and alternatives to its early expulsion from the world of work (and the consequent social dispersion and experiential know-how).

Chapter I (Equal opportunities and access to the labor market) introduces, in point 4, the “active support for employment”, concerning all age groups. Chapter II (Fair working conditions) guarantees in point 5 a “flexible and safe employment”

through social protection and training, also in the perspective of professional transitions, and therefore including the retraining policies of individuals (both young and old) and experiential transmigration between generations of workers (in a biunivocal sense). In point 8 («social dialogue and worker involvement») it is enshrined that «the social partners are consulted for the development and implementation of economic, employment and social policies in compliance with national practices. They are encouraged to negotiate and conclude collec-tive agreements in the areas of their interest, respecting their autonomy and re-specting the right to collective action. Where appropriate, agreements conclud-ed between the social partners are implementconclud-ed at the level of the Union and its Member States». The social partners took the initiative to promote the sign-ing of a fundamental autonomous agreement, startsign-ing from this principle.

3. The autonomous framework agreement between the European