23. The Union's social policy objectives are set out in Article 136 TEC: "the Community and the Member States ... shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion".

24. Article 137(1) 2 specifies how those objectives are to be achieved: "With a view to achieving the objectives of Article 136, the Community shall support and complement the activities of the Member States in the following fields:

25. Minimum requirements may be adopted only in the areas referred to in paragraphs (a) to (i), by means of a Directive. Adoption is by qualified majority and in codecision with the Parliament, with the exception of paragraphs (c), (d), (f) and (g) which are by unanimity and in consultation with the European Parliament.

26. Finally, Article 137(5) 3 of the Treaty excludes the adoption of minimum requirements in the fields of pay, the right of association, the right to strike and the right to impose lock- outs.

27. With regard to the relevance of the scope of the current competences set out in the Treaty, all members felt that social matters should remain an area of shared competence. Opinions, however, differed on possible extensions of, or reductions to, the existing scope of that competence. Some members insisted that the primary responsibility for social matters should remain within the Member States.

28. The Group was unable to reach agreement on the question of amending the exceptions in Article 137(5). A number of Group members felt that these were obsolete and could be deleted. Other members were firmly of the opinion that the exceptions in Article 137(5) should continue to apply. Although Article 137(5) TEC rules out the adoption of uniform minimum requirements on pay, it does not rule out the possibility of adopting measures under other provisions of the Treaty, even if these measures have an impact on pay. The result is that a number of Community instruments contain provisions on pay.

29. On the other hand, a considerable number of Group members expressed their support for the limits placed on action at European level. In particular, they emphasised that these were areas in which the specific features of each Member State are very important. One member insisted nevertheless that the EU should not in the future harmonise Member States rules at a lower level than today and that future legislation should not undermine the existing social legislation.

30. Others emphasised that the scope of the provisions of Article 137(1) was too broad as it was sometimes difficult to envisage what Union legislative initiative could be taken in certain areas (Article 137(1)(f) was mentioned to in this respect). However, this situation caused concern amongst some Member States as to the extent of possible legislation in the areas concerned, leading them to maintain the unanimity rule as a means of protection. Following this line of argument, a better definition of the scope of Community action could be combined with general use of qualified-majority voting (see Chapter VI of this report).

31. Most members were of the opinion that current Article 152 of the EC Treaty should be amended so as to constitute a sufficient legal basis for EU action on Communicable Diseases in a multi-state emergency, in anticipation of a grave cross-  border threat, bioterrorism and WHO Agreements. The protection of the exclusive competence for Member States' health systems in Article 152(5) should be maintained. Furthermore, the current Treaty provides for only a limited obligation to ensure a high quality and safety for blood, tissues and organs. Science (biotechnology) could offer new challenges for which there are currently no health provisions available. Consistently with the Group's recommendation to add a high level of physical and mental health, as one of the basic objectives of the Union, the Group agreed to recommend to strengthen and enlarge EU competences in the field of public health, while maintaining it as a shared competence.

32. With regard to services of general interest, it was emphasised that these were linked to universal access to basic services (health, education, etc.) for all citizens, which many members considered should be included among the objectives. In their view, services of general interest were a means of achieving that objective.

The current Article 16 TEC and Article 36 of the Charter of Fundamental Rights recognise the special role of services of general interest while specifying that they should be operated without prejudice to Articles 86 and 87 TEC (competition law and State-aid arrangements). Article 86(2) TEC provides, however, that "undertakings entrusted with the operation of services of general economic interest (...) shall be subject to the rules (...) Treaty, in particular to the rules on competition, insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them". Some members of the Group underlined that the reference to public service enterprises in Article 86 does not imply any obligation of provision of such services exclusively through enterprises organized commercially and that member-states either by themselves or through local communities remain free, especially in the context of subsidiarity, to organize the provision of such services in other forms.

For various members, Article 16 TEC has an essentially declaratory value and cannot provide the basis for genuine European legislation on services of general interest, which would require a positive rather than an exceptional legal basis. These members therefore pleaded for the Constitutional Treaty to contain a legal basis allowing the Union to adopt framework legislation at European level, covering relevant aspects of the provision of such services e.g. universal access. Others considered the existing competences to be sufficient.

33. A number of members pleaded for a provision in the Treaty allowing the Council to adopt by codecision the legislative measures necessary for establishing minimum standards of social protection not only in health care but also in social security benefits and social services providing protection in cases such as old age, incapacity for work, maternity, unemployment and dependency and in social and housing assistance needed to ensure a decent existence for those who lack sufficient resources. Some members considered that recognition of the role of the "social economy" should be made in the Treaty, allowing for its development on the basis of social solidarity.

34. A substantial number of members of the group pleaded also for the extension of the scope of action of Article 42 TEC, currently limited to workers, to all citizens and residents.

35. The Group considered that, in general, the range of competences available at European level were adequate. However, better clarification of the scope of European action could be envisaged, which in turn might make it easier to extend the use of qualified-majority voting. In this regard, the group believes that European action, which should support and supplement the activities of the Member States, should primarily concern areas of action closely linked to the functioning of the internal market, preventing distortions of competition, and/or areas with a considerable cross- border impact. Consideration should also be given in the final structuring of the Constitution to ensuring the visibility of articles relating to social policy. Furthermore, current Article 152 should be enlarged so as to give the Union more competences in the field of public health and cover matters such as grave cross-border threat, communicable diseases, bioterrorism and WHO Agreements. The question as to whether current Article 16 TEC should be amended to become a legal basis concerning services of general interest should be considered by the Convention.