The Evolution of EU Labour Law

Caroline Johansson
2015
 The Evolution of European Labour Law

• The origin of Labour Law

• Modern European Labour Law
• Focus on EU Labour Law
”Labour law is made by men and women in a
society, not of their own making”
- Bob Hepple
 What is labour law?
• Contract law or public law?
• Social aim.
• Self-regulation through the labour market parties.
• Area of conflict and collaboration.
• Late academic disciplin but,
• early international regulation.
Traditional legislator Level Special ”legislator”

Contracting parties International Social partners

Member States EU Social partners

Parliament National Social partners

Observe! Not all rules that affect workers fit this mold!
What processes have then lead to the labour law
we find in Europe?

- The Industrialization in
Western Europe

- Workers’ organisation.

- Methods to counteract
social problems in the
aftermath of war
 The Industrialization of Western
Europe
• British ideas of freedom of trade – free
labour market with minimum intervention.
• Individual employment contract.
• Competition in the newly industrialised
Europe lead to tough working conditions.
• Call for international regulation.
 Industrial relations
• Started in the UK.
• Collectively bargained working conditions
instead of individual.
• First criminalised,
• then tolerated,
• and now a right.
 Methods to counteract social
problems in the aftermath of war
• 1919 – The Creation of the International Labour
Organisation (ILO)
- Social justice, a condition for lasting peace.

• 1944 – Declaration of Philadelphia

- Labour is not a commodity!

• 1949 – Council of Europe

- The European Convention of Human Rights (1950)
- The European Social Charter (1961)

• 1951 – The Coal and Steel Community

 From the Coal and Steal Community to
the European Community

• 1957 – Treaty of Rome

- Still focus on trade, but…
- ”Constant improvement of living and working conditions”
(preamble)
- Market making
- Equal pay (art 119, now 157) and paid holiday schemes
(art 120), but…
- Reason: to protect French industry and to prevent
destructive competition.
 1974 – Social Action Programme
Political and economic turmoil puts pressure on European
leaders and the EEC-project is questioned.

The answer is to give the EEC-project a “Human face” – the

first Social Action Programme is launched.
“Economic expansion is not an end in itself. Its first aim should
be to enable disparities in living conditions to be reduced… (the
Member States attach) as much importance to vigorous action
in the social field as to the achievement of the economic…”
• The Legislator was active in the social sphere.
• The Court was active in the social sphere.
 Legislation in the social sphere
• Sex discrimination
- Dir 75/117/EEC on Equal Pay
- Dir 76/207/EEC on Equal Treatment
(These two were replaced by Dir 2006/54/EC)

- Dir 79/7/EEC on Equal Treatment in Social Security

• Industrial re-organisation
- Dir 75/129/EEC on Collective Redundancies (repealed and replaced by Dir
98/59/EC)
- Dir 77/187/EEC on Transfer of Undertakings (repealed and replaced by Dir
2001/23/EC)
- Dir 80/987/EEC on Inslovent Employers (repealed and replaced by Dir.
2008/94/EC)
 Case law in the social sphere
• The ECJ judged in three landmark cases during
the 1970’s
The Defrenne cases

- Art 119 is found directly effective (Defrenne no 2).

- The Court acknowledges that the EU has both an
economic and a social aim (Defrenne no 2).
- The Court stated that equality between men and women
is a fundamental right (Defrenne no 3)
 But then something happens in
1979…
• Thatcher wins in the UK

- Why does this affect European policy?

- Legislative proposals required unanimity (art 110a matters relating to
the rights and interests of employed persons) and,
- The new British direction differed widely from the other
Member States.

How did the other governments continue their work?

- President of the Commission which prioritised social
policy

“The creation of a vast economic area, based on market and business

cooperation is inconceivable – I would say unattainable – without some
harmonization of social legislation. Our ultimate aim must be the
creation of a European social area”

- Jacques Delors -
1986
 Treaty changes
Single European Act (1989)

• Qualified majority in the field of health and safety

(art. 118a)
• Creation of the Social Dialogue (art 118b, now
154 – 155 TFEU). The labour market parties get
consultative status.

Apart from that, not many binding initiatives were

taken and the 1980’s is often considered as an era
of stagnation in EU labour law.
 The Social Charter Action Plan
(1989)
• The result of the Social Charter Action Plan
- 47 proposals of which 17 were directives,
- Dir 91/533/EC the Written Statement Directive
- Dir 92/85/EC the Pregnant Workers Directive
- Dir 93/104/EC the Working Time Directive
- Dir 94/33/EC the Young Workers Directive
- Dir 96/71/EC the Posting of Workers Directive
(Observe the legal base!)
However,
most of the directives dealt with narrow health and safety
matters.
 The Maastricht Treaty (1991)
• Social Policy Agreement
- Wider competence for the EU in social policy.
(Exceptions pay and the right to strike and impose lock-outs)

- More decisions could be taken with qualified majority.

- The European Social Partners got a prominent role
through changes in the European Social Dialogue.
But!
- This agreement was not a part of the Treaty due to the
UK’s resistance.
 The Amsterdam Treaty (1997)
• The Social Policy Agreement gets integrated in
the new Treaty trough articles 136 – 145
(now in the Social chapter of the Lisbon Treaty starting with article 151).

• Art. 13 (now art. 19) is adopted.

- More discrimination grounds than gender and nationality.
- Enables the adoption of the Race and ethnicity directive
(dir. 2000/43) and the Framework directive (dir. 2000/78).

• Tendency: From harmonisation and hard law to

coordination and soft law.
 The European Social Dialogue
• The social partners were not only consulted, but
had also the possibility to initiate negotiations in
order to conclude collective agreements which
could be given erga omnes effects by a Council
decision (art. 139.2 in the Amsterdam Treaty, now 155.2 TFEU).
• Directives which are based on the social
dialogue:
- Dir 96/34/EC on Parental Leave
- Dir 97/81/EC on Part-time work
- Dir 99/70/EC on Fixed-term Work
 The Nice Treaty (2000)
• Treaty changes:
- Amendments in the Social chapter to raise the profile of the Open
Method of Coordination (OMC)

• The launch of the Lisbon strategy (2000)

”(the EU shall become) the most competitive and dynamic
knowledge-based economy in the world capable of sustainable
economic growth with more and better jobs and greater social
cohesion.”
Presidency conclusions, March 2000

• The adoption of the Community (now Union)

Charter of Fundamental Rights.
 Legislative standstill, but the Court
active.
• Non-discrimination cases
- C-109/00 Tele Danmark
- C-54/07 Firma Feryn
- C-144/04 Mangold
(And many more…)
• Free movement with social implications
- C-438/05 Viking Line
- C-341/05 Laval
- C-319/06 Commission v. Luxemburg
- C-346/06 Rüffert
(Also known as the Laval-quartet)
• Working time
- Joined cases C397/01 – C-401/01 Pfeiffer
(And many more…)
• Conclusion:

The CJEU’s activity lead to negative integration of

the Member States’ labour laws rather than
positive integration through legislation on the EU
level.
 The Lisbon Treaty (2009)
• Few changes in the social policy chapter
But!
• The Union Charter of Fundamental Rights was
made legally binding (Article 6 TEU).
• Social values and aims have been given a more
prominent role in the EU Treaty (articles 2 and
3).
It remains to be seen how these changes affect the
direction of the EU in the long term…
 After the Lisbon Treaty
More awareness of fundamental rights and international
law?
The CJEU has acknowledged and developed the application of the EU
Charter in its case law:
C-236/09 Test-Achats – the Court rejects an exception in a EU directive on
grounds that it is discriminatory and incompatible with the EU Charter.
Joined cases C-335/11 and C-337/11 HK Denmark – the Court expands the
definition of disability with reference to the UN convention on disability.

- But what rights have weight? How does the Court balance
conflicting rights and principles?
C-426/11 Alemo-Herron – collective bargaining v. freedom of contract.
 After the Lisbon Treaty
And what about the European Convention on
Human Rights?
The Lisbon treaty establishes that the EU shall
accede the European Convention (article 6.2).
But!
In Opinion 2/13 of the Court, the Court found the
agreement on the accession of the EU to the
ECHR incompatible with EU-law. (Amongst other things
the Court considered it to affect the autonomy of EU law.)
 After the Lisbon Treaty
• The Monti Report (2010)
- Decisive to deal with ” …the fault lines that run
between the single market and the social
dimension at national level…”.

- The Commission put forward two proposals:

• The Monti II regulation on the right to strike
• Directive 2014/67/EU on the enforcement of the PWD
 Future challenges
• The Soveregin Dept crisis.
- Affects labour law through decisions and conditions
connected to the euro-cooperation.

• The tension between EU economic policy and

national social policy (and national industrial
relations models).
• The economic freedoms and the fundamental
rights – how to balance?
 To sum up:
• National labour law
- Main objective: protect workers
– although similarities it differs between the European Countries.
(Sweden and Denmark can be found on one side of the spectrum while France
is found on the other.)
- General regulation through legislation or collective agreements.

• International labour law

– Main objective: protect workers
(But must consider a wider range of socio-economic realities.)
- Often lack effective encforcement measures.
• EU labour law
- Mixed objective: create a single market and
protect workers.
- Provides solutions for specific situations such as
cross-border situations or trade related matter,
rather than a general system.
- Supremacy over national law.
That was all for today

See you next Friday!